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Parry & Sadler [2024] FedCFamC2F 603 (15 May 2024)

Last Updated: 31 July 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Parry & Sadler [2024] FedCFamC2F 603

File number:


Judgment of:


Date of judgment:
15 May 2024


Catchwords:
FAMILY LAW – Parenting – where the mother would not facilitate a meaningful relationship with the father – change of residence ordered – short respite of no time with the mother.


Legislation:


Cases cited:
R & R: Children’s Wishes [2000] FamCA 43; (2000) FLC 93-000


Division:
Division 2 Family Law


Number of paragraphs:
262


Date of last submission/s:
18 April 2024


Date of hearing:
20, 21 and 22 March and 17 and 18 April 2024


Place:
Brisbane


Counsel for the Applicant:
Ms M. Cullen


Solicitor for the Applicant:
Trianon Law


Counsel for the Respondent:
Mr S. Jones


Solicitor for the Respondent:
CG Legal Group


Counsel for the Independent Children’s Lawyer:
Ms A. Frizelle


Solicitor for the Independent Children’s Lawyer:
HM Lawyers


ORDERS
BRC 10734 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PARRY
Applicant
AND:
MS SADLER
Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
15 MAY 2024



THE COURT ORDERS:

  1. That all previous Orders and Parenting Orders be discharged.
  2. That the father shall have parental responsibility for the child X born in 2011 (“the child”) and sole decision-making authority in respect of all decisions concerning major long-term issues affecting the child.
  3. That the child shall live with the father.

Recovery Order

  1. That in the event that the child is not returned to the father, pursuant to s.67Q of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a) To find and recover the child and deliver the child to the father at such place as the father and the person effecting such recovery agree to be appropriate; and

(b) To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

  1. That the mother, her servants or agents, be and are hereby restrained from again removing or causing the removal of the child from the care of the father, upon any breach of which injunction the persons to whom this recovery order is addressed are authorised and directed to arrest the mother without a warrant.
  2. This recovery order will remain in force for 18 months.
  3. That that child spend time and communicate with the mother at all times as may be mutually agreed between the parties and failing agreement as follows:
(a) From 26 May 2024 until 16 June 2024 by Facetime, Skype or telephone call (“the call”) for no more than 30 minutes, each Sunday at 5.00pm, with the mother to arrange for the call to the father’s mobile phone, for the purposes of the call the following shall apply:
(i) The call shall be supervised by B Contact Centre Suburb D (“B Contact Centre”) (or if B Contact Centre is unable to accommodate such time, then in accordance with the time available to B Contact Centre); and

(ii) If B Contact Centre does not offer supervised call facilities, then the father shall supervise the call;

(b) From the week beginning 17 June 2024 until the week beginning 9 December 2024, supervised time at B Contact Centre for a period of no more than two (2) hours each alternate week and for this purpose the following applies:

(i) That within (7) days of the date of the making of these Orders, each parent shall attend B Contact Centre to make arrangements for an intake interview at the parents own cost and to otherwise comply in every respect with the Guidelines of B Contact Centre; and

(ii) The costs of supervised visitations to be borne solely by the mother;

(c) From the Saturday, 21 December 2024 until 14 June 2025, each alternate Saturday from 10.00am until 4.00pm;

(d) From 28 June 2025 until 13 December 2025, each alternate weekend from 10.00am Saturday until 4.00pm Sunday;

(e) Thereafter, each alternate weekend from after school Friday (or 3.00pm on a non-school day) until 4.00pm on Sunday; and

(f) From the week beginning 17 June 2024, by telephone, Facetime or Skype each Wednesday at 6.00pm with the mother to make the call and the father to facilitate the call.

  1. That for the purposes of Order 7(a) that within seven (7) days of the date of the making of these Orders, each party shall attend at B Contact Centre, C Street, Suburb D to make arrangements for an intake interview at his / her own cost and to otherwise comply in every respect with the Guidelines of B Contact Centre.

School holidays

  1. That until the time progresses to Order 7(e), the mother’s time pursuant to Order 7 herein is to continue during all school holiday periods.
  2. That following the time progressing to Order 7(e), the child’s time pursuant to Order 7 herein is suspended, and the child shall spend time with the mother during the school holiday periods from the end of school or 3.00pm Friday until the following Friday at 3.00pm in each alternate week thereafter such that the child spend ‘week about’ time between the residence of each parent unless otherwise agreed in writing.
  3. That the commencement of the child’s time with the mother during school holiday periods pursuant to Order 10 above shall progress as follows:
(a) In the first week of the school holiday periods in the even numbered years; and

(b) In the second week of the school holiday periods in the odd numbered years.

Christmas

  1. That until the child’s time with the mother progresses to the time specified in Order 7(e) herein, the father shall faciliate the child having a mobile telephone available to receive a call from the mother at 9.00am on Christmas Day.
  2. That following the child’s time with the mother progressing to Order 7(e), the child’s time in accordance with Order 7 and 10 is suspended and the child shall spend time with the parents as agreed in writing and failing agreement as follows:
(a) With the father from 12.00pm on Christmas Eve until 12.00pm on Boxing Day in the even numbered years; and

(b) With the mother from 12.00pm on Christmas Eve until 12.00pm on Boxing Day in odd numbered years.

Easter time

  1. That until the child’s time with the mother progresses to the time specified in Order 7(e) herein, the father shall faciliate the child having a mobile telephone available to receive a call from the mother at 9.00am on Easter Sunday.
  2. That following the child’s time with the mother having progressed to Order 7(e), the child’s time in accordance with Order 7 is suspended and the child spends time with the parents as agreed in writing and failing agreement as follows:
(a) With the father from after school on the Thursday before Good Friday until 3.00pm on Easter Monday in odd numbered years; and

(b) With the mother from after school on the Thursday before Good Friday until 3.00pm on Easter Monday in even numbered years.

New Years Eve/Day

  1. That following the child’s time with the mother having progressed to the time specified in Order 7(e), the child’s time in accordance with Order 7 and 10 is suspended and the child shall spend time with the parents as agreed in writing and failing agreement as follows:
(a) With the father from 12.00pm New Years Eve to 12.00pm New Years Day in odd numbered years; and

(b) With the mother from 12.00pm New Years Eve to 12.00pm New Years Day in even numbered years.

Birthdays

Parent’s birthday

  1. That until the time progresses to Order 7(e), the father shall faciliate the child having a mobile telephone available to receive a call from the mother at 9.00am on the mother’s birthday.
  2. That until the time progresses to Order 7(e), that should the child be scheduled to spend time with the mother and that time aligns with the father’s birthday, then the child shall remain with the father for the father’s birthday and the father shall faciliate a makeup day with the mother as agreed in writing with B Contact Centre or the mother as the time requires.
  3. That following the time progressing to Order 7(e), the child’s time in accordance with Order 7 is suspended and the child spends time with the parents for each of the parents’ birthday as agreed in writing and failing agreement as follows:
(a) For the mother’s birthday:
(i) If the birthday falls on a school day and the mother is residing outside of Region E then the immediately preceding Saturday from 9.00am to 5.00pm;

(ii) If the birthday falls on a school day and the mother is residing inside of Region E then from after school to 7.30pm; and

(iii) If the birthday falls on a non-school day from 9.00am until 5.00pm;

(b) For the father’s birthday:

(i) If the birthday falls on a school day then from after school (or 3.00pm on a non-school day) to 7.30pm; and

(ii) If the birthday falls on a non-school day from 9.00am until 5.00pm.

Child’s birthday

  1. That until the time progresses to Order 7(e), the father shall faciliate the child having a mobile telephone available to receive a call from the mother at 6.00pm on the child’s birthday.
  2. That following the time progressing to Order 7(e), the child’s time in accordance with Order 7 is suspended and the child spends time with the parent that the child did not wake up in the care of as follows:
(a) Should the time be with the mother:
(i) If the birthday falls on a school day and the mother is residing outside of Region E then the immediately preceding Saturday from 9.00am to 5.00pm;

(ii) If the birthday falls on a school day and the mother is residing inside of Region E then from after school to 7.00pm; and

(iii) If the birthday falls on a non-school day from 9.00am until 5.00pm;

(b) Should the time be with the father:

(i) If the birthday falls on a school day then from after school (or 3.00pm on a non-schoolday) to 7.00pm; and

(ii) If the birthday falls on a non-school day from 9.00am until 5.00pm.

Fathers’ Day and Mothers’ Day

  1. That until the time progresses to Order 7(e), the father shall faciliate the child having a mobile telephone available to receive a call from the mother at 9.00am on Mother’s Day.
  2. That following the time progressing to Order 7(e), the child’s time in accordance with Order 7 is suspended and the child shall spend time with the parents for Fathers’ Day and Mothers’ Day, if the child is not already spending time with the parent celebrating this special day, as follows:
(a) With the father from 9.00am to 5.00pm on Father’s Day; and

(b) With the mother from 9.00am to 5.00pm on Mother’s Day.

Other events

  1. That following the time progressing to Order 7(c) the child shall attend any funeral or memorial service of any late family members, irrespective of which parent they are living with at the time provided the child is only in attendance for the day or as otherwise agreed between the parents in writing.
  2. That following the time progressing to Order 7(c) the child shall attend special family events and occasions involving the extended family, irrespective of which parent they are living with, where there is agreement in writing between the parents.

Changeovers

  1. That changeover of the care of the child is as follows:
(a) For Orders 7(b) and 7(c), at B Contact Centre Suburb D and the costs of the Contact Centre is to be paid solely by the mother;

(b) For Orders 7(d) and 7(e):

(i) On the first fortnight of the month, at F Venue located at G Street, Town F; and

(ii) On the second fortnight of the month, at Suburb D Train Station located at H Street, Suburb D;

(c) For Orders 10, 13, 15, 16 and 23:

(i) On even numbered years, at F Venue; and

(ii) On odd numbered years, at Suburb D Train Station;

(d) For Orders 19(a) and 19(b) and 21:

(i) On the mother’s birthday and Mother’s Day, at F Venue and

(ii) On the father’s birthday and Father’s Day, at Suburb D Train Station.

  1. That the parents shall each be punctual in attending the changeover place.
  2. That if there is to be a delay, the parent who is delayed shall send a message by the Parenting Application to the other parent no less than one (1) hour before the changeover and inform them of the delay and notify them of the time that they will be arriving at the changeover location.
  3. That when the parents come into contact with each other at changeover, the parents are to be courteous and respectful towards each other.
  4. That when a parent is unable to personally attend a changeover, the parent unable to attend may nominate a third party that is known to the child and to both parents to attend and conduct the changeover.

The child’s personal property

  1. That once the child’s time with the mother has advanced to the time expressed in Order 7(c) herein, each parent is to deliver to the other parent at changeover the child’s property which the parents have agreed in writing is property which is to move between households (such as any clothing) in good, clean condition.

Mother’s mental health

  1. That forthwith, the mother is to attend upon a suitably qualified psychologist for therapeutic intervention to assist her with supporting the child’s placement with the father and to provide a letter from her psychologist to the father to confirm her attendances and compliance with a treatment regime.

Counselling

  1. That the father forthwith attend upon the child’s general practitioner for a referral for a mental health care plan for the child to a psychologist for counselling and follow all recommendations and treatment plans identified by that treating psychologist.
  2. That pursuant to s.121 of the Family Law Act 1975 the father be granted leave to publish to the child’s psychologist a copy of:
(a) The family reports in this matter;

(b) A copy of these Orders; and

(c) A copy of the Judgment.

Communication

Communication between parents

  1. That the parents shall communicate with each other by way of a Parenting Application, such as AppClose, Talking Parents or other such Parenting Application that is agreed between the parents in writing.
  2. That the communication through the Parenting Application shall only be in relation to the child except in the case of an emergency when communication by telephone shall be permitted.
  3. That the parents shall not make parenting arrangements with the child directly or have the child pass on messages to the other parent.

Communication with the child

  1. That when the child is spending time with the mother, the mother is to facilitate the child having his own mobile phone available for calls with the father.
  2. That following the child’s time progressing to Order 7(e), the father shall facilitate the child having his phone available to receive calls from the mother each Wednesday at 6.00pm.
  3. That the child shall have possession of the each parent’s mobile telephone number.

Medical

  1. That folllowing the progression of time pursuant to Order 7(d) herein, the changeover of the care of the child from the father to the mother shall not take place if the child is seriously ill and is in possession of a medical certificate. In that case, the child will remain in the care of the father, unless the child is in hospital care, until such time that the child has returned to full health as evidenced by a medical certificate.
  2. That the father shall keep the mother informed of the names and addresses of any medical or other health practitioners who treat the child and authorise that practitioner to provide the mother with information that they are lawfully able to provide about the child.
  3. That this Order authorises any treating medical practitioner, hospital and/or health professional to provide to each parent any information concerning the child’s health.
  4. That in the event of any childhood illness or emergency, the father shall contact the mother within two (2) hours of such occurrence and inform them of the illness or emergency, by means of email or through the nominated parenting communication app.
  5. That both parents shall administer medication to the child as directed by the child’s treating medical practitioner.
  6. That the parents shall provide to the incoming parent any prescribed medication with the instructions as to the administration of the medication at changeover.
  7. The out of pocket costs of the child’s therapy or counselling sessions are to be shared equally between the parents.
  8. That pursuant to s.121 of the Family Law Act 1975, the parents be at liberty to provide copies of:
(a) Updated Family Report of Ms K dated 28 November 2023, filed under cover affidavit dated 2 December 2023;

(b) The updated Family Report of Ms K dated 14 February 2024;

(c) A copy of the Reasons for Judgment; and

(d) A copy of these Orders,

to any medical practitioner/s including counsellor/s, psychiatrist/s, psychologist/s and therapist/s for the child and for the parents.

Education

  1. That the child attend a high school nominated by the father.
  2. That these Orders authorises the child’s school/s to provide to each parent copies of all school reports, school photographs, and any other documents regarding the academic progress or achievements of the child and notification of such important events such as parent-teacher events, sports days and concerts.
  3. That the parents shall keep each other informed of the name, address and contact telephone number of any school, educational facility, or extracurricular activity provider which the child attends.
  4. That pursuant to s.121 of the Family Law Act 1975, the parents be at liberty to provide a copy of these Orders to the child’s school.

Passport

  1. That for the purposes of s.11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”), this Order expressly permits the issue of a Passport or Travel Document (within the meaning of the Passports Act) for the child upon application by the father and without the consent of the mother to the child travelling outside the Commonwealth of Australia or her signing the passport application, with the court being satisfied that this Order is in the best interest of the child.
  2. That the child’s passport shall be retained by the father and shall be provided to the mother upon her request if travelling overseas.
  3. That should the mother require the passport for overseas travel, she will return the child’s passport upon return of the child to the father’s care.
  4. That the parents shall share the costs of obtaining the child’s passport equally.

Overseas travel

  1. That the father is permitted to travel with the child overseas to a country that is a signature to the Hague Convention, during the child’s time with the father and the father can suspend time in accordance with Order 8 of these Orders for up to three (3) weeks per year to facilitate this travel.
  2. That following the mother’s time with the child progressing to Order 7(e), the mother is permitted to travel with the child overseas provided that:
(a) The travel does not exceed 14 days’ in length, no more than once per calendar year;

(b) Unless otherwise agreed in writing, the child is always to travel accompanied by the travelling parent;

(c) The mother shall provide the father at least 30 days’ notice of the following:

(i) An itinerary to include the departure and return dates, the country or countries which the child will be travelling to, the approximate dates on which the child will arrive and depart each country and a contact telephone number and address at which the child can be contacted and where he will be staying; and

(ii) A copy of the tickets in the mother’s and child’s names for the departure and return flights;

(d) The father shall release to the mother the child’s passport by providing it directly or posting via registered mail to the mother’s nominated postal address at least 14 days prior to the departure date; and

(e) The mother be permitted to travel to an overseas destination which is not a signatory to the Hague Convention unless written consent is obtained at least 30 days prior to the travel. Such consent is not required in the event that a necessary flight change is required at a non-Hague Convention country.

  1. That neither parent travels with the child to a country that is rated at Level 3 or level 4 on the Smart Traveller Rating.
  2. That pursuant to s.65Y of the Family Law Act 1975, the child be permitted to leave the Commonwealth of Australia for travel provided the travelling parent complies with the preceding Orders.

Dispute Resolution

  1. That in the child event of a dispute arising about the terms or operation of these Orders or a disagreement relating to the care for the child, the parents shall engage with a Family Dispute Resolution Practitioner to assist with resolving any dispute or to reach an agreement about changes to be made and the parents shall share equally in the costs of the Family Dispute Resolution Practitioner PROVIDED THAT if the dispute relates to no more than two (2) discrete issues the parents shall in the first instance utilise the services of a government-funded family relationship centre.

Explaination of Orders

  1. That s.65L of the Family Law Act 1975, the child shall attend an appointment with a Court Child Expert as nominated by the Senior Court Child Expert of the Federal Circuit and Family Court of Australia, Brisbane at a time convenient to the Court Child Expert on 15 May 2024 at Court Children’s Services, Commonwealth Law Courts, Brisbane, for the purpose of explaining these Orders to the child.
  2. That the mother is restrained from attending Court Children’s Services when the Court Child Expert is explaining the Orders to the child.
  3. That Court Children’s Services is to release the child into the care of the father.

Omnibus

  1. That forthwith, the mother and father shall provide to the other parent their phone number and email address and both parents shall notify the other parent of any changes to those details within 24 hours of such change having occurred.
  2. That the parents undertake to the Court that when the child is in their care they shall:
(a) Not consume alcohol to excess, noting that this would include any volume that would render them unable to legally drive a motor vehicle or remain in the company of others consuming alcohol to excess;

(b) Not consume, or expose the child to anyone who is under the influence of, any illicit substances whilst the child is in their care, save for those prescribed by a medical practitioner;

(c) Not encourage or permit the child to refer to either parents’ partners as ‘mum’ or ‘dad’ or any like term;

(d) Respect the privacy of the other parent and not question the child in relation to the other parent’s private life;

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

(f) Not denigrate or insult the other parent or discuss any matters in dispute between them in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate, insult or discuss matters in dispute with the other parent in the hearing or presence of the child; and

(g) Not watch media content, where media content includes television, video, and electronic games, which is not rated at the Australian standard for the child’s age.

  1. That neither parent shall make adverse comments in relation the other parent online, including via social media.
  2. That the parents shall not physically discipline the child or permit others to physically discipline the child.

Procedural

  1. That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

  1. That for the purposes of Order 33 herein, the General Practitioner may be a new General Practitioner located on Region E.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE GOODCHILD:

INTRODUCTION

  1. The substantive proceedings involve parenting arrangements for X born in 2011(“X”), who is currently 12 years old. He will be 13 this year. X currently lives with Ms Sadler, the respondent mother (“mother”). Despite orders being made by consent on 5 December 2017 for X to live with his mother and spend time with Mr Parry, the applicant father (“father”), X has not spent time with his father in accordance with those orders since March 2021.
  2. The father seeks a change of residence such that X would live with him and spend time with the mother in a structured plan initially by Facetime, Skype or telephone for three months, then supervised time for a period of six months, then, subject to the mother commencing therapy with a psychologist and evidencing compliance with treatment, moving from supervised time to unsupervised regular overnight time.
  3. The Court had the benefit of an Independent Children’s Lawyer (“ICL”) who considered it was in X’s best interests that he live with his father, and spend time with his mother initially supervised for 6 months moving via a structured plan over another 6 months to unsupervised time each alternate weekend.
  4. The mother seeks for X to live with her and for X to spend time with the father in accordance with his wishes.
  5. Listed with the hearing of the substantive proceedings was the father’s application in a case seeking a determination that the mother had contravened a parenting order.
  6. The matters were heard at the Brisbane Registry of the Federal Circuit and Family Court of Australia over five days, commencing 20 March 2024 to 22 March 2024 and 17 April 2024 to 18 April 2024.
  7. On 22 March 2024, the third day of the hearing, it was clear that the matter would not finish that day and the only dates available to finalise the matter were 17 and 18 April 2024. After the luncheon adjournment, the legal representatives for the father and the Independent Children’s Lawyer (“ICL”) sought to agitate interim orders for X to be placed in his father’s care during the adjourned period. I heard submissions from the parties with respect to that application and I declined to make such orders and I delivered an ex-tempore judgment.
  8. During the adjourned period, Orders were made by consent for X to spend time with his father on seven separate occasions with the changeover of care of X to be facilitated by Ms J, the paternal grandmother.
  9. A subpoena objection had been raised by the mother concerning material identifying her contact details in documents produced by one of the subpoenaed parties. The offending material was identified, and appropriate orders were made for the redaction of the offending material.
  10. The contravention application was heard and determined on the first day of hearing. These Reasons incorporate the Court’s Reasons for Judgment in that matter.
  11. I have determined that on a final basis it would be in X’s the best interests to reside with his father and to spend time with his mother in a structured regime moving from supervised time to unsupervised time.

ISSUES IN DISPUTE

  1. In respect of the substantive proceedings, the issues for determination are as follows:
(a) Does the father pose an unacceptable risk of harm to X by reason of alleged family violence or exposure to family violence?

(b) Will the mother support X’s relationship with the father in the event he is found not to pose an unacceptable risk of harm?

(c) Which parent X should live;

(d) How much time X should spend with the parent with whom he is not living; and

(e) How parental responsibility for long-term decisions about X is to be allocated.

EVIDENCE

  1. Both parties were legally represented at the final hearing.
  2. The father relied upon the following documents:
  3. The ICL relied upon the following documents:
  4. The parties exhibited documents from the subpoenaed material.
  5. A s.102NA of the Family Law Act 1975 (“the Act”) order was made on 4 December 2023. The Court was informed that the mother filed an application for a grant of aid under the cross-examination scheme on 13 March 2024.
  6. The mother relied upon an affidavit dated 19 March 2024. This affidavit contained much of the same material as an affidavit dated 30 September 2021. No Outline of Case was filed by the mother. Leave was given for the mother to lead further evidence-in-chief to supplement her filed material. On the second day of the hearing the mother sought to rely upon a document detailing the final orders sought by her.
  7. Both parties were cross-examined for the substantive parenting proceedings. The mother was cross-examined for the contravention hearing.
  8. Ms J attended the final hearing and supported the father. She was not required for cross-examination.

RELEVANT FACTS AND PROCEDURAL BACKGROUND

  1. The father was born in 1976. He is employed as an allied health worker for the past seven years.
  2. The mother was born in 1975. At the time of the hearing she was unemployed and in receipt of a single parent pension.
  3. The parties commenced their relationship in 2008. X was born in 2011, and is the only child of the relationship.
  4. The parties separated on a final basis in November 2013. At the time of separation, the parties were living in Town M in Queensland. The mother and X moved to Region E in late 2013. The father relocated to Region E in late 2013. X did not spend any time with his father until mid-2014 and then on a supervised basis at B Contact Centre.
  5. On 29 September 2014 the father and mother entered into final parenting orders by consent, which provided that the mother and father have equal shared parental responsibility for X, that X live with the mother and spend time with the father each alternative weekend from after school on Friday until the following Monday before school.
  6. The father completed an N Centre ‘anger management’ course in early 2015.
  7. In 2016 the parties began to experience difficulty with their co-parenting relationship. An incident occurred that led to both parties taking protection orders out on the other. With the temporary protection orders in place, the father was not able to see the child.
  8. The father commenced a second set of family law proceedings in October 2016.
  9. On 5 December 2017 (“the December 2017 orders”) the father and mother entered into final parenting orders by consent which provided that the mother and father have equal shared parental responsibility for X and for X to spend time with his father a total of six nights per fortnight.
  10. From December 2017 X was spending time with the father, consistent with the December 2017 orders, until early 2021. The December 2017 orders also restrained the parents from relocating X outside a 55 kilometre radius of his school without written permission of the other parent.
  11. In early 2021 X was scheduled to speak with his father. The father says that the mother refused to facilitate his time to speak with X.
  12. In early 2021 X was scheduled to spend time with his father in accordance with the December 2017 orders from 3.00pm Friday until the following Wednesday 9.00am. The father says that upon him arriving at the school to collect X he was informed that X was not at school and that his absence was not explained.
  13. The mother says that in early 2021, X refused to go to school. She says that X said he was fearful of his father collecting him from school.
  14. On 13 August 2021 the father commenced these proceedings, the third set of family law proceedings. The father said that since early 2021, other than a couple of telephone sessions during family therapy and one supervised visit at B Contact Centre, Suburb O on in late 2021, he has had no contact with X.
  15. In late 2021 the parties attended upon Ms K for family report interviews for the purposes of the preparation of a Family Report filed on 13 December 2021 (“Ms K First Report”).
  16. One of the recommendations of Ms K first report at paragraph 181 was the following:
181(b) The parties and [X] engage in Court reportable Family Therapy with [Ms L] from [P Centre] with a view to assessing the dynamics within the family, rebuilding [X]’s relationship with his father, supporting [X]’s mental health and supporting the parties to co-parent and communicate, in addition to supporting [Ms Sadler] to recognise how some of her behaviours may be emotionally damaging to [X] and [X]’s relationship with his father. Such a process could also assist in [X] spending time with his father again.
  1. On 14 December 2021 this Court ordered that the mother and the father and X engage in therapy with Ms L from P Centre . The mother was ordered to make X available for counselling as directed by Ms L. It was also ordered that the mother and the father attend a Parenting Orders Program and a Triple P Parenting program and that each party actively promote the child’s relationship with the other parent and speak respectfully about the other parent.
  2. Despite the terms of the December 2017 orders, during mid 2022 the mother and X moved from Region E to the Brisbane area. The mother removed X from Q School and enrolled him in R School. The father did not consent to X moving from Region E to the Brisbane area. Nor did he consent to X changing schools.
  3. On 14 September 2022 Ms L completed a Family Therapy Summary Report, the details of which are referred to later in these Reasons.
  4. On 30 September 2022 the father filed an Application in the Proceeding seeking for the Court to make a Recovery Order for X to return to living in Region E.
  5. On 4 October 2022 the father filed an Application – Contravention alleging that the mother was no longer making X available to engage in Family Therapy from mid-2022 in breach of the 14 December 2021 orders. I will deal with that Application – Contravention in these reasons.
  6. In mid-2023 the father attended upon Ms K for the purposes of an updated Family Report. In late 2023 the mother attended upon Ms K, however the mother failed to make X available for the interview. The second Family Report of Ms K was filed on 2 December 2023 (“Ms K Second Report”).
  7. On 4 December 2023 Judge Middleton ordered that X attend upon a Child Court Expert or Family Consultant for the preparation of a family report to address:
    1. any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
    2. any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interest of the child.
  8. In early 2024 X attended upon Ms K for the preparation of a further Family Report. The third Family Report of Ms K was filed on 20 February 2024 (“Ms K Third Report”).

THE CONTRAVENTION APPLICATION

  1. The father’s statement of the alleged contravention is as follows:
The respondent has ceased making arrangements for the child to attend upon family therapist for counselling.
  1. In support of the application, the father relied upon an affidavit he affirmed on 29 September 2022. Counsel for the father informed the Court that the father was seeking a finding of contravention alone and not seeking any punishment nor a costs order.
  2. Mr Jones, Counsel for the mother, informed the Court that the mother admitted the contraventions as alleged and relied upon the reasonable excuse being that X had refused to attend. For the purposes of the contravention hearing, leave was given for the mother to lead evidence-in-chief in circumstances where she filed no response to the contravention application and filed no affidavit material dealing with that application.

LEGAL PRINCIPLES

  1. The meaning of contravention is defined in s.70NAC of the Act as follows:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order -- he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise -- he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or

(ii) aided or abetted a contravention of the order by a person who is bound by it.

Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
  1. The meaning of reasonable excuse for contravening an order is defined in s.70NAE of Act as follows:
Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.

(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

  1. The onus of proving the facts of the contravention lies with the father. Once the acts have been proven, the onus is on the mother to show that, on the balance of probabilities, she has a reasonable excuse for the contravention.

CIRCUMSTANCES OF CONTRAVENTION

  1. In her evidence-in-chief, the mother agreed that on 14 December 2021 interim orders were made, including that she was to arrange for X to attend the therapist at P Centre. The mother says that she took X to the appointments on about five occasions, cancelling the last appointment in mid-2022.
  2. In explaining the circumstances of the cancelling of that appointment, the mother said that X’s school had contacted her on that day and told her that the child had an illness, and she was to come and pick him up from school. She said that she contacted P Centre and explained the reason why she could not make the appointment.
  3. In cross examination, referring the mother to school records, Counsel for the father suggested to the mother that X remained at school all day in mid-2022, and he then went to after-school care. Counsel for the father suggested to the mother that she was in Brisbane that day and she cancelled the appointment because it was inconvenient for her. The mother did not accept that the school records were correct. The mother said she was not in Brisbane on that day. The mother rejected the suggestion that she cancelled the appointment with P Centre because it was inconvenient to her.
  4. The mother said that she made numerous attempts to make the child attend further appointments, but the child consistently refused. She said she tried to encourage him to go. She would sit him down and say to him “you need to go to these appointments, you know, your dad needs to see you also”. When asked what she said to him about the importance of the appointments, the mother responded, “that he could see his dad and talk to him in a safe environment”.
  5. P Centre Summary Appointment Schedule and Outcome records the following:
Late 2021 – Initial session attended;
Early 2022 – Follow up session, planning session with Mr Parry – attended;
Early 2022 – Skype Text messaging session – attended;
Early 2022 – Skype Text messaging session – Mr Parry unable to attend;
Early 2022 – Skype Text messaging session – Ms Sadler unavailable;
Early 2022 – Skype Text messaging session – Ms Sadler cancelled;
Early 2022 – Skype Text messaging session – Ms Sadler 15 mins late; X refuses to progress with session with Mr Parry;
Early 2022 – Skype Text messaging session – Completed;
Early 2022 – Video Call with Mr Parry – completed. Positive observations between X with Mr Parry;
Early 2022 – Video Call – Cancelled by Ms Sadler;
Mid-2022 – Video Call – rescheduled.
Mid-2022 – Video Call – X refused, then invited to write email. Agreeable to video call on next session.
Mid-2022 – Video Call – Cancelled by Ms Sadler;
Mid-2022 – Video Call – nil response by Ms Sadler
  1. P Centre arranged for 11 sessions between X and his father. X attended five of those sessions. The mother said that in circumstances where X had told her that he did not want to speak to his father, after attending the initial sessions, she made no attempt to contact P Centre to continue family therapy.

A REASONABLE EXCUSE?

  1. In submissions, Counsel for the father submitted that the contravention took place and the argument of reasonable excuse, being a child’s wishes, is not a justification or a reasonable excuse. Counsel relied upon the decision of Stavros v Stavros [1984] FamCA 38; (1984) FLC 91-562 where the Court determined that there is an obligation upon the parent with the care of the child to take reasonable steps to make a child available and those reasonable steps go far beyond merely inviting the child to participate. It was submitted that the Court has said that a child’s wishes is insufficient justification for non-compliance with court orders, that it is not a reasonable excuse to say that a child does not wish to participate in court ordered counselling and it is a parent’s obligation to ensure that the child did attend court ordered counselling and, in this case, the mother did not do that. On the mother’s own evidence, she ceased making arrangements for X to attend.
  2. Counsel for the mother submitted in response “... short of dragging him out and putting him into the car” – what else was the mother do. Counsel for the mother submitted it is just a matter of trying to reason with the boy to tell him that it was good for him to go. Counsel for the mother submitted, referring to the family therapy, there was only a limited time and observations were made and those that were made seem to be positive in the initial stages, however the child then elected to not want to attend after that point.
  3. A close consideration of the records from P Centre show that after what appears to be three or four positive sessions of Skype messaging and video calls, X informs his mother that he no longer wishes to attend, and the mother appears to have yielded to the child’s wishes. The mother then ceases contact with the therapy centre.
  4. I find that there has been a contravention of the orders made on 14 December 2021, specifically order 1(b), by the mother failing to make reasonable attempts to make arrangements for the child to attend P Centre. There was a clear obligation on the mother to make arrangements for X to attend upon P Centre and the mother failed to do so. On the mother’s evidence, X told her he did not want to go to the therapy sessions and it was on that basis, the mother stopped making arrangements for him to attend.
  5. True it is that a parent does not want to be dragging a child out of the house and putting him in the car in efforts to comply with orders. However, that is not the evidence in this case. The available evidence indicated that X co-operated and would attend the sessions that were arranged. On two occasions, there was negotiation about the method of the contact that was to occur between the father and X. On two occasions the contact between X and his father was observed to be positive.
  6. There was nothing in the mother’s evidence of a positive encouragement for X to attend the therapy with his father. Simply bringing the child to the therapy centre and doing no more is insufficient. A mere invitation is insufficient. I am not satisfied the mother encouraged the X to attend. I am not satisfied that the mother asserted her authority over her then 10-year-old child and insisted he attend the therapy. There is no direct evidence that the mother has counselled X to resist engaging with his father at therapy. That is not to say that she has not. However, simply failing to make arrangements for X to attend the therapy sessions because he said he did not want to go, does not constitute reasonable excuse in the circumstances of this case.
  7. I confirm my finding that there has been a contravention of the orders made on 14 December 2021, specifically order 1(b), by the mother failing to make reasonable attempts to make arrangements for the child to attend P Centre. In circumstances where no penalty is sought, I make no order. I make no order as to costs.

THE SUBSTANTIVE PARENTING PROCEEDINGS

PROPOSALS

  1. The respective proposals of the father, mother and ICL have been referred to earlier in these reasons.

THE EXPERT EVIDENCE

The first Family Report – Ms K 13 December 2021

  1. A Regulation 7 Family Consultant Social Worker working in private practice –Ms K – interviewed the mother and father and X in late 2021. At the time of the interviews the father had spent no unsupervised time with X since early 2021. Ms K did not conduct observations between X and his father due to X expressing a wish that he did not want to spend time with his father.
  2. Ms K completed a Family Report on 13 December 2021. For the purposes of preparing the report, Ms K spoke with a worker from B Contact Centre and a worker from S Organisation. Ms K made the following recommendations:
a) [X] lives with the mother.
b) The parties and [X] engage in Court reportable Family Therapy with [Ms L] from [P Centre] with a view to assessing the dynamics within the family, rebuilding [X]’s relationship with his father, supporting [X]’s mental health and supporting the parties to co-parent and communicate, in addition to supporting [Ms Sadler] to recognise how some of her behaviours may be emotionally damaging to [X] and [X]’s relationship with his father. Such a process could also assist in [X] spending time with his father again.

c) The Family Therapist is provided a copy of this Family Report.

d) Whilst I have not identified any risks to prevent [X] spending time with his father at this time, my view is that it is possible that [X] will continue to refuse to spend time with his father and may resist spending time with his father in line with the Court Orders made in December 2017, creating an unhelpful dynamic. The Court could order on an interim basis that [X] spends time with his father each alternate weekend from Friday until Monday before school along with the family engaging in robust Family Therapy, with [X] being encouraged to spend time with his father.

e) An Independent Children’s Lawyer is appointed in the matter to represent [X].

f) The Court obtains updated information from Police, DCYJMA, [X]’s school and the parties respective counsellors to inform the matter.

g) [Ms Sadler] engages in psychiatric assessment to inform the matter, informed by her medical and mental health records. In the interests of thoroughness, the Court could also order for [Mr Parry] to engage in a psychiatric assessment.

h) The parties engage in a post-orders parenting programme and Triple P parenting programme if they have not done so already.


i) The parties communicate via a parenting application.
j) Neither party engages in discussing adult issues with [X] or these Court proceedings, particularly about what [X] has shared with the report writer in this Family Report.

k) That neither party use physical discipline in respect to [X].

  1. The parties engage in Family Dispute Resolution to support them reaching an agreement in respect to final parenting arrangements for [X] following engagement in Family Therapy.
m) If the matter remains before the Court, that the matter is informed by an updated Family Report within a six-to-eight-month period to inform final parenting orders being made.

The Family Therapy Summary Report – Ms L 14 September 2022

  1. On 14 December 2021 it was ordered by the Court that the mother and father and X engage in therapy with Ms L from P Centre and Ms Sadler was ordered to make X available for counselling as directed by Ms L.
  2. Ms L completed a Family Therapy Summary Report dated 14 September 2022. Ms K, in her second report at paragraphs 14 to 20, provides a useful summary of the Ms L report as follows:
    1. ... [Ms L] confirms in this Report that [Ms Sadler] stopped engaging with the service in [mid]-2022 and that [X]’s last appointment with her was [in mid]-2022, when [X] refused to video call with his father as planned and instead engaged in an individual session with [Ms L].
    2. It is noted by [Ms L] that [X] reported resistance to spending time with his father due to [Mr Parry] “pushing” him but was not able to give further context or timeline to this occurring. [Ms L] noted that difficulties existed due to regular sessions not occurring secondary to cancellations/rescheduled appointments and that [X] presented with an increase in distress and refusal to engage with [Ms J] following positive interactions and in the context of increased time between appointments.
    3. [Ms L] observed that [Ms Sadler] expressed resistance and difficulty to incorporating information that suggested [X] and [Mr Parry] experienced positive time together, presenting with a distrust of observations and resistance to considering factors that might influence [X] expressing an alternative negative perspective.
    4. [Ms L] notes that [Ms Sadler] presented [X] to the service in a flustered manner at times, identifying that [X] had not wanted to attend and observably presenting as louder and dissatisfied with the process of [X] attending at these times.
    5. [Ms L] assessed that although her observation of [X] and [Mr Parry] were limited, observations indicated that they shared a positive and mutual connection that was categorised by shared interests and past positive connecting experiences. She noted positive engagement and behaviours from [Mr Parry]. [Ms L] opined that patterns of behaviour and statements by [X] indicated that there are some broader adverse impacts on his home life with [Ms Sadler], by him having time with [Mr Parry].
    6. [Ms L] reported that [X]’s sense of connection between [Mr Parry] and him sharing time/positive time and a negative experiencing a negative relationship with [Mr Parry] to [Ms Sadler], with these reports being in contrast to the observations of time for [X] with his father.
    7. [Ms L] noted that anxiety may be a feature of [X]’s presenting difficulties in spending time with his father and that if this were the case, he would need significant support from [Ms Sadler] to address these feelings and to minimise adverse changes in the home environment that may exacerbate anxiety for [X]. She suggested that [X]’s statements to her suggested that at this stage, [Ms Sadler] had not been able to provide such support.

The second Family Report – Ms K 28 November 2023

  1. Ms K interviewed the father and the mother in late 2023 for the purposes of an updated Family Report. Ms K identified that a significant limitation of the updating report was that X was not made available for the interview despite offering three appointments for him to attend and facilitating that one of those appointments occur in Brisbane. X was not made available by his mother for interview.
  2. Ms K had regard to the Family Therapy Summary Report dated 14 September 2022 completed by Ms L from P Centre.
  3. Ms K was not able to provide definitive recommendations in her second report. In summary, she stated (Para 90 – 96):
  4. She made the following recommendations at paragraph 104:
    a) If the Court orders for [X] to remain living with his mother, that [X] spends time with his father in line with his wishes and if [X] expresses a wish to spend time with his father, [Ms Sadler] does all in her power to contact [Mr Parry] and facilitate this to occur. If this were ordered that [Mr Parry] is permitted to send birthday cards, letters and presents to [X] on special occasions by an agreed form of communication between [Ms Sadler] and [Mr Parry] and that there is a bi-yearly process for [Ms Sadler] to keep [Mr Parry] updated about [X]’s development, health, wellbeing and educational process.

    b) If [X] is ordered to live with his father, [X] has supervised face to face contact with his mother on a weekly or fortnightly basis. Concurrently, [Ms Sadler] engages in robust, regular therapeutic support to help her navigate [X] being resident with his father and to ensure she does not undermine this placement and to reflect on her ability to support [X] having a relationship with both parents.

    c) Following a period of six months, [X] could build up to spending time with his mother each alternate weekend and for half of all school and public holidays, subject to [Ms Sadler] evidencing an ability to undermine [X]’s placement with his father and to work within Court ordered parenting arrangements.

    d) If [X] were ordered to live with his father, it would be important for him, his father, and his mother to engage in regular, consistent therapeutic support with a suitably qualified professional to support them to navigate such a big adjustment. It will be important that such support is in place prior to [X] moving into his father’s care if this were ordered and would include safety planning for [X] should his mental health deteriorate. Such therapy could be informed by the Family Reports completed by the report writer and the report completed by [Ms L] from [P Centre].

The third Family Report – Ms K 14 February 2024

  1. On 4 December 2023, Judge Middleton ordered that X attend upon a Court Child Expert/Family Consultant for the preparation of a report to address:
(a) Any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views; and

(b) Any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.

  1. In early 2024, X attended an in-person interview with Ms K. Ms K reported that X was friendly and engaging during the interview. He was brought along to the interview by his mother and presented as a typical boy of his age in both his physical and behavioural presentation. She records that at times X was happy to share information with the report writer, and at other times he appeared brief and guarded in his responses, appearing exasperated by the continuing Court matter and his need to be involved.
  2. Ms K recorded that X reported that during his sessions with Ms L, he had texted and telephoned his father and had two video link sessions with his father. He described his contact as repetitive and reported that he liked it and also did not like it and that he was making it look like he was having a good time because he did not want to hurt his father’s feelings. Ms K reported that X recalled that he had told her that his father had assaulted him and that he had injured himself in his father’s house causing him to bleed, suggesting that the injury may have been caused by his father. Ms K records that X shared the view that he wanted to live with his mother “all of the time” and to spend “no time” with his father. When the report writer asked X how he would feel if the Judge ordered for him to spend time with his father, X is reported to have said that he simply would not do it.
  3. Ms K records that X reported that changing schools when he moved to Brisbane had “not been the best”, stating that he had a lot of friends in Region E at the time. Ms K records that X said that if he had to go to live with his father, he would refuse to move schools again and would find travelling to Brisbane difficult to spend time with his mother.
  4. In her evaluations Ms K provides a view that weight should not be placed on X’s wishes insofar as his views are based on his current experiences of his life, family and his world and that X’s experiences and views need to be considered by the Court in respect to how X will experience changes to his life, for example, relating to a change of school, particularly during X’s adolescence, a significant time in his life.
  5. Ms K observed that it is possible that X may resist spending time with his father, impacting on his mental health and behavioural and emotional presentation in his safety and welfare.
  6. However, Ms K opined that X does not have the maturity and understanding due to his age and stage of development to appreciate or recognise how not having a relationship with his father will impact upon him psychologically, emotionally and from an identity perspective or about how not having a relationship with his father may impact on his adult functioning and relationships. Ms K further opined the following:
    1. [X] will also not have an understanding about how adult dynamics and behaviours will have impacted on his views and relationship with his father over time. It is likely that given that [X] has primarily been cared for by his mother that his view of his father will have been influenced by and shaped by his mother’s behaviour and communication around, about and in respect to [X]’s father.
  7. Ms K was required for cross examination. Prior to her cross examination she was provided with the 16 April 2024 affidavit from the father providing an update on the contact that had occurred between X and his father in the adjourned period. Ms K was also provided with the affidavit and report of the father’s treating psychologist Ms U.
  8. Ms K’s oral evidence given on the final day of hearing was, in summary, the following:

X

  1. Before applying the law, some focus must be given to X and his circumstances.
  2. X is 12 years old. He will be 13 years of age in 2024. He has been described as a typical boy of his age in both physical and behavioural presentation.
  3. He is currently enrolled in year 7 at T School. He is reported to enjoy school. He is said to enjoy sport and extracurricular activities.
  4. When living in Region E, X attended Q School. In mid-2022 his mother enrolled him into Year 5 at R School where he stayed until the end of year 6.
  5. At the time of hearing, his school attendance was positive such that he had been absent from school for a period of four days. The mother says he is doing very well at school and in the week before the hearing had received an achievement award.
  6. In 2023 he experienced a considerable disruption to his schooling in circumstances where he and his mother experienced housing instability. Notes produced under subpoena from the school record that both the mother and X had contact with the school guidance counsellor throughout mid to late 2023 in respect of the housing instability.

X’s mental health

  1. X was referred by a General Practitioner to S Organisation for treatment with a psychologist, Ms W, in early 2021 under a mental health plan. In cross examination when the mother was asked what was the behaviours that prompted the referral, the mother responded, “he didn’t want to sleep in like the room on his own. He was anxious, teary. I would ask [X] if I could ring, you know, “I will give dad a call” and he would say, “no, mum. I don’t want to talk to him”, and he would get anxious about that”. The mother agreed that at this period of time he was not seeing his father.
  2. The first session with Ms W went 15 minutes because the mother was late for the appointment. A second appointment was scheduled for mid-2021. The mother’s evidence was that X did not wish to go, so he did not attend. A third appointment was scheduled for mid-2021. The mother agreed in cross examination that she cancelled that appointment. The mother gave evidence that she ceased taking X to the appointments because the father had contacted the psychologist and copies of clinical notes had been sent to the father‘s solicitor with the mother’s address on it so she pulled X out of the appointments. The subpoena records show that X’s therapy was closed due to poor engagement.
  3. In her oral evidence, the mother said that X is seeing a psychologist from an organisation called Y Centre, who come to the house. She referred to the particular person called ‘Z’. She then corrected her evidence and said that Z was not a psychologist but that they come to the home at least once a week. She then stated that “we have not seen the psychologist yet”.

THE FATHER

  1. The father is currently employed as an allied health worker for the past four years. The father says that this position requires him to have a valid work cards as he works with vulnerable members of the community requiring ongoing patience, support and high level care. He says that his work situation is flexible to allow him to accommodate X’s schooling schedule during the week and to allow him to be home on the weekends.
  2. The father says that he currently resides in a unit, which he owns, in Town AA in Region E. He says he currently has a housemate renting the spare room on a casual basis however if the Court orders for X to either live with or spend time with him the housemate is able to leave such that X would have his own bedroom.
  3. The father’s mother Ms J, moved to Region E to be with X and the father in about 2019/2020.
  4. The father says that he completed the Triple P course in late 2021 which is evidenced by a certificate annexed to his affidavit. The father completed a Parenting Orders Program in early 2023 which is evidenced by a certificate annexed to his affidavit.
  5. The father says that he saw a counsellor for a period of time when the relationship with the mother ended. The father says that he is currently seeing a psychologist Ms U whom he has seen for the last seven years. The father read an affidavit of Ms U in these proceedings which included a psychological report dated late 2017 and a more recent report of 11 April 2024. The affidavit of Ms U also annexed the clinical notes of her sessions with the father. Ms U was not required for cross examination.
  6. In her report dated 11 April 2024, Ms U provided the following opinion:
[Mr Parry] presented as a level-headed, kind man whose priority was to be a good father to [X]. In all our discussions, [Mr Parry] demonstrated a child-centred perspective. ... In our early sessions, in 2017-18, while he had no contact with [X], [Mr Parry] was highly anxious and distressed about his son’s welfare, and he was grieving the loss of his relationship with him. ... When [Ms Sadler] has failed to comply with the access orders, he has been frustrated, and concerned that [Ms Sadler] was exerting undue pressure on [X]. When [Ms Sadler] made malicious allegations about [Mr Parry]’s behaviour, he was initially hurt and insulted and worried that others (e.g. [X]’s teachers) might be wary of him as a result. Over time, [Mr Parry] has come to expect such defamatory allegations from [Ms Sadler], and his attitude was more one of resignation.
....
I anticipate that, if he can be provided with legal support to facilitate stability in all aspects of [X]’s life in the future, further psychological support for [Mr Parry] will not be required.
  1. In cross examination the father recognised that should X be placed in his care it would be extremely challenging given the circumstances. He said that he is going to love and support his son like he always has and he would seek assistance for himself and for X. He stated that he has X’s “nanna” to help out and he also has his own psychologist to provide him with assistance.
  2. Should X be placed with the father he proposes to send him to AA School School, which the father said in cross examination was not far from his residence. He said he could drive X to school, they could ride their pushbikes to school. He said he would pick him up after school or if he was not available, the paternal grandmother would assist. He says that his work situation is flexible to allow him to accommodate X’s schooling schedule during the week and to allow him to be home on the weekends.
  3. The father, in cross examination, denied hitting X. He said that he and X used to play wrestle when he was six or seven years of age. He denied that he held X down long after X “tapped out”. He said that X liked to get rough and sometimes he had to put a stop to it. The father could not recall any time where X complained to him about being hurt when they were play wrestling.
  4. The ICL put to the father in cross examination that X told the report writer that he had assaulted X. The father denied assaulting X. The father denied ever hitting the mother.
  5. The father agreed in cross-examination that he did say something to X about child support in the context of a request for school shoes. He accepted that what he said to X was a negative thing to talk about.
  6. The father accepted that if X was struggling with his schoolwork that he would be willing to pay for a professional to assist him with his schoolwork.

THE MOTHER

  1. The mother and X currently live in a unit at an undisclosed location.
  2. Up until mid-2022 the mother and X were living in Region E and X was attending Q School.
  3. The school records show that during a period in early 2021, the mother kept X home from school. In cross examination the mother said that X was scared, that he was fearful that his father was going to come and pick him up from school. The school records show that the mother phoned the school and said that X was absent for “family reasons and that they were trying to keep safe from [X]’s father”. The mother obtained a medical certificate to say X was sick for the remainder of the term. The mother says she continued to reassure X that his father would not collect him from school and as a result X agreed to go back to school in mid-2021. The school records show that the mother informed the guidance officer at R School that if X returns to school, he needs protection at school from people. In cross examination the mother responded that X needs protection from the father going to pick him up from school.
  4. The mother enrolled X into R School in mid-2022 with the name of X Sadler. In cross examination she explained she did this because X preferred the name of X Sadler as opposed to X Parry-Sadler. On that same form where it seeks “family details”, the mother included her own name as “Parent 1” and failed to include any details about the father on this form. In cross-examination in response to a question why she did not complete the form with the father’s details, she responded “because he wasn’t with [Mr Parry], he was with me”.
  5. On the R School application form section for “Court Orders” the mother includes the words “Conviction Recorded of father” with a commencement date of “[late] 2022”. There was no evidence that the father had convictions of any sort. In cross-examination the mother refused to accept that the father had no convictions, insisting that he had convictions recorded at the Local Court. The mother was shown correspondence from Queensland Police Service dated early 2024 which reflected the position that the father had no criminal convictions within the State of Queensland. Despite this evidence, the mother refused to accept that the father had no criminal convictions.
  6. The mother enrolled X into T School in late 2023 as X Parry-Sadler. There was no communication from the mother to the father that she was proposing to enrol X at this high school. She failed to include the father’s details as a parent on the form.
  7. The mother agreed in cross-examination that during 2023 there was a period of time where she and X were homeless because they were locked out of their accommodation. The mother gave evidence that for a number of years she was caring for a terminally ill man, she and X were living in a house on the property where the man resided and when the man passed away in 2022 his family insisted that she and X move from the property. It seems that ultimately, she and X were locked out of their accommodation, unable to take with them their possessions. The mother gave evidence that X was without his possessions for a period of some three months.
  8. The mother gave evidence that during this time she and X stayed with friends and were also housed in motel accommodation. It was difficult to obtain an accurate indication from the mother as to the extent of the housing instability, but it appeared it was for a period of four or five months during 2023. The funding for the crisis accommodation was partially covered by the mother but also by an organisation called V Centre, a crisis support group supporting the mother at the time.
  9. The mother said that she secured her current rental accommodation in late 2023 by way of a lease which expires in mid-2024. She intends to renew that lease.
  10. Between mid to late 2023 X was absent from school. The mother agreed that X was not sick on all of those days. The mother gave evidence that “we were going through a lot of stresses in grief and lots of other things which affected us both”. The mother said that she did not have a car to get X to school.
  11. During 2023/2024 an organisation called BB Centre gave the mother a referral for X to attend upon CC Organisation to focus on his mental health. In cross-examination the mother conceded that she had not engaged X with this service.
  12. In cross-examination the mother agreed that X was not currently seeing a psychologist and that she has made no efforts for X to see a psychologist. The mother said that he was seeing a person called Ms DD with an organisation called BB Centre. The mother said that Ms DD is someone that “comes and sees us and helps us”. It was unclear how often X saw Ms DD. The mother said “nearly every week, yes”. The mother produced no documents supporting X’s weekly attendance on a person called Ms DD.
  13. The mother said that “I have been a single parent; I have done the best that I can; I have tried to protect my child from what he says his father has done. And of all of this stuff hadn’t happened when he was at his father’s house, [X] and I wouldn’t have to go to a psychologist, because we wouldn’t be dealing with the stuff that has happened while [X] has been in [Mr Parry]’s care”.
  14. In response to a question in cross-examination that she made a unilateral decision that the father could not spend time with X in 2021, the mother said it was “because things had happened to [X] whilst he had been at his fathers”. The mother was prompted to be more specific, to tell the Court what those ‘things’ were. She responded “Those things were him, you know, saying that, “My dad is being mean to me mum when [Ms EE] is there”, and, “My dad doesn’t pay attention to me, mum, when [Ms EE] is there”.
  15. When asked in cross-examination if she would comply with orders made by the court for X to spend time with his father, she responded that it “... depends on what [X] says when he is coming home”.
  16. When referred to the observations made by Ms L concerning X and his father having a positive connection, the mother contended that was only the case when somebody else was with the father and that “... wouldn’t happen with [X] with his dad on his own”.
  17. During cross-examination the mother would not accept that the father is not a risk to X. She was committed to the idea that X would be at risk in his father’s care when alone with his father.
  18. The mother gave evidence that she has always tried to follow court orders and said “It is difficult with [X] going to his father when he expresses things that are happening to him”.
  19. In cross-examination the mother stated that she had attended a Parenting Orders programs online. She was not able to produce a certificate confirming her completion of the course. Similarly, with respect to the Triple P course, the mother said that she completed the course online but again did not have a certificate confirming that completion.
  20. Should the court order that X reside with his father, the mother was asked would she consider moving back up to Region E. She stated that she would not because there are too many memories at Region E.

The mother’s health

  1. The direct evidence from the mother and evidence from documents produced under subpoena reflect the mother presenting with numerous health challenges. The mother stated she has some medical conditions; she has had depression since she was 14 years old; Hypertension (high blood pressure) and Post Traumatic Stress Disorder.
  2. The mother gave evidence that she is currently prescribed prescription medications for her medical conditions.
  3. The mother asserted in her affidavit that her health impacts her ability to gain employment but does not impact upon her parenting capacity. The mother stated that these proceedings and all of the previous proceedings have impacted her mental health and exacerbated her stress and anxiety significantly. She deposed in her affidavit that she regularly attends upon a General Practitioner.
  4. The notes produced under subpoena from the mother’s general practitioner Dr FF show a referral for the mother from Dr FF to mental health services in early 2021. The notes record the following:
History:
very stressed
[X] not wanting to go to fathers
[Ms Sadler] has been speaking to child safety
Child Safety visiting on Thursday
[Ms Sadler] concern for [X]’s safety
threatening emails from [X]’s dad
usually has very limited time with father
[X] gets very anxious, gets angry, doesn’t want to talk or visit father
Child Safety advised MHCP for [Ms Sadler] and [X], cert for [X] for School
  1. Documents were produced under subpoena from Ms W of S Organisation. The mother attended for an intake session with Ms W in early 2021. The notes from that session record the following:
[medical conditions]. PTSD. Diagnosed with depression at 14. [Self-harm] at 21 followed by a stay in psych ward.
DFV – current ex partner is using child as a pawn. DVO in place. Has lived in shelters with child – been physically emotionally and financially abused by child’s father.
Currently is caring for a friend with cancer.
Previously alcoholic – sober for 13 years.
Client appears sensible and has many protective factors in relation to the care of her son and the distress is experiencing having to visit his father.
  1. The notes record that a number of attempts were made for follow-up appointments with the mother. In cross-examination the mother agreed that she cancelled subsequent sessions.
  2. In mid-2021 X attended an appointment with Ms W. It was during this period that X was not attending school. The documents produced under subpoena record that X attended the appointment with his mother. This is what was recorded:
THIS SESSION HAD BEEN BOOKED AS A PHONE SESION WITH MUM HOWEVER MUM GOT MIXED UP AND ARRIVED AT THE CENTRE WITH THE CHILD.
Child and Mum currently living [in Region E] due to DFV.
Client is articulate and animated with expressions.
Client is currently not attending school due to the DFV and misses his mates. Enjoys [sporting activities at] school
Client does not wish to have any contact with his father at the present time.
Client has [pets]
Client was born at full term with [a medical condition] which has now [healed].
Client describes that Dad “has got gotten nasty since he broke up with his girlfriend”
Seeing client again on Monday as this was his original session time
  1. The subpoena documents record the mother’s attendance on Dr FF in early and mid-2023 as continuing with “low mood, teary, very stressed, anxious, pour appetite, attending daily AA meetings for emotional support and counselled at length”. The mother agreed she was feeling stressed, feeling overwhelmed during this time.
  2. As referred to earlier in these reasons, the mother and X experienced housing instability during mid-2023 through to late 2023. It was of considerable concern that the mother did not file any direct evidence in these proceedings as to the circumstances of that housing instability. The fact that the mother and X were homeless for some months and residing in crisis accommodation was only revealed from the R School subpoena records. The mid-2023 Specialist Support Records Report reveal that the guidance officer referred the family to the CC Organisation; that the mother was crying for most of the conversation; that the conversation was erratic and difficult to follow; that the mother had concerns about her phone and difficulties at the bank. The mother reported as presenting extremely overwhelmed. The mother is reported to have said that she currently has full custody and X’s father is now wanting access, that the father has mentally abused him. Those records report X informing the Guidance Officer that his mother was in hospital in mid-2023 because [of her medical condition].
  3. The mother was referred to Y Centre through S Organisation in early 2024. The BB Centre referral form to Y Centre (dated early 2024) records the following:
[Ms Sadler] is experiencing great distress and multiple panic attacks in her day to day life.
...
[V Centre] referred [Ms Sadler] to [BB Centre] and we are the only support in place at the moment. A referral to [CC Organisation] has also been made to focus on the mental health of [Ms Sadler’s] son [X].
...
[Ms Sadler] gets upset multiple times during our meetings and gets very overwhelmed on a day to day basis. [Ms Sadler] is showing very clear signs of an anxiety disorder. [Ms Sadler] gets overwhelmed by day to day tasks which prevents her of living a joyful life and prevents her of getting things done which she needs to do. She has stated in our meetings that she prefers to stay at home because then ‘nothing can go wrong’. [Ms Sadler] is extremely anxious about it anything happens to her son stating that ‘he is her everything’. Her son witnesses her getting emotional and overwhelmed.
  1. At the initial assessment undertaken by Y Centre with the mother in early 2024, the Mental Health nurse recorded the following:
Situation
[Ms Sadler] referred for assessment and managing anxiety and DEPRESSION.
History of domestic violence, has been moving homes in escape from ex partner. Has 12yr old son in her care.
Background
48yr old female, looks older than biological age, single mother to 12yr old son [X]. History of domestic violence, separated from ex partner past 9 years. Has been living “on the run” from her ex since. Depression and anxiety related symptoms, loss and grief, was a carer for a gentleman for 6yrs prior to his demise recently – left are looking for new accommodation.
Assessment
General appearance neat and appropriately dressed, wearing shorts and white summer blouse. Maintained eye contact, nil mannerisms noted. Mood very depressed, tearful, speech coherent, regular and normal rate and rhythm, preoccupied about people spying on her, denies visual hallucinations, admits to occasional auditory hallucinations, persecutory delusions, believes special messages appear on her mobile phone and TV, very hyper-vigilant, delusional, believes she has been hacked into, paranoid about people, very unsettled to sign [Y Centre] Consent form, lacks insight and judgement, well orientated, alert and cognition intact
Risk
Nil risk of harm – protective factor namely her young son.
Moderate to high risk of nutritional deficits – survives on coffee mainly, poor dietary intake, risk of poor self-care, erratic sleep patterns
  1. In cross-examination the mother sought to minimise her current mental health issues identified in the contemporaneous notes, including denying history as recorded as having been given by her. An example of this is the mother’s cross-examination with respect to the assistance provided by Y Centre mental health services. The mother denied she was having multiple panic attacks, she denied occasional auditory hallucinations. She denied she was preoccupied about people spying on her. She denied she said to the mental health nurse that she believes special messages appear on her phone or TV. She denied that X witnesses her becoming emotional and overwhelmed. The mother denied that the recommendations from the initial assessment were for a General Practitioner review of medication specifically with a view to commence antipsychotics.
  2. In cross-examination the mother agreed that she should be seeking treatment from a psychologist. When challenged that she was not looking after her mental health, the mother responded that she was looking after her health but on some days her legs were sore, that she was overwhelmed and stressed.
  3. The mother agreed, that despite recommendations from the services assisting her this year that she speaks to a doctor regarding the medication for depression, she had not done so. The mother stated in cross-examination that she currently does not have a mental health plan. She agreed she needed to obtain a new psychologist. It was put to the mother that her General Practitioner had been calling her to book an appointment for early this year. The mother denied that was the case. The records produced under subpoena record the General Practitioner’s calls to the mother’s phone number.
  4. The early 2024 file notes from the mental health nurse from Y Centre indicates that if there is no service who can intensively support X, the proposal was to make a child safety notification.
  5. With respect to the role that the mother plays in mending the relationship between X and his father, the mother expressed the view in cross-examination that the relationship between them is for them to resolve – that she cannot do anything about that. She agreed that it was important that X has a relationship with his father. She agreed that it was important that he spend time with his father.
  6. The mother agreed in cross-examination that she was informed by Ms L that X would require support to manage his emotions around spending time with his father. When asked what she did to support X during the period when he was attending upon Ms L – the mother’s response was “Well, I took him to the appointments”.
  7. When questioned by the ICL as to what specific incident occurred in early 2021 that caused X to refuse to spend time with his dad, the mother’s response was “Lots of things”. When pressed as to what she meant – she said that X was saying that his father had been “hitting him” that “my dad gets really angry with my mum”. It was pointed out to the mother that when speaking to Mr GG for the purposes of the Child Impact Report in November 2022 she was unable to identify any specific triggers for the stopping of the time between X and his father. The mother’s response was that “... It was a consecutive, a lot of things that were happening”. It was suggested to the mother that the fact that the father had assaulted X does not appear in Dr FF’s notes.

THE PATERNAL GRANDMOTHER

  1. In her affidavit, the paternal grandmother, Ms J describes a close and loving relationship between her and X. She states that during the early part of X’s life when she lived in Victoria, she would often drive to Queensland to spend time with X and her son. In early 2020 she relocated from Victoria to Region E to be closer to her son and grandson. She says that up until early 2021 she was regularly seeing X and X was communicating with her by telephone. She did not see X again that year until late 2021, when she saw him four times.
  2. The paternal grandmother described her observations of her son’s relationship with X as a “strong bond” and a “beautiful relationship”. She expressed concern that the mother had restricted her contact with X and also her sons contact with X.
  3. During the adjourned period from March 2024 to April 2024 when orders were made for the father and X to spend time together, the paternal grandmother agreed to facilitate the changeover of care between X and his father.

THE RELEVANT LEGAL PRNCIPLES

  1. Part VII of the Act guides the process in relation to the making of parenting order.
  2. Pursuant to s.60CA of the Act, the Court must regard the best interest of the child as the paramount consideration when making a parenting order.
  3. Subsections 60CC(2) and (3) of the Act set out the particular matters that the Court must take into account when determining the child’s best interest.
  4. There are two primary considerations. As stated in s.60CC(2), the best interest of the child are met by insuring they benefit from both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interest, and protecting them from physical or psychological harm and from being subject to exposed to abuse, neglect or family violence.
  5. There are also 13 additional considerations for determining what is in the child’s best interest, which are set out in s.60CC(3) of the Act. Those considerations relevant to the issues in dispute have been addressed throughout this Judgment.

WHAT PARENTING ORDERS ARE IN X’S BEST INTERESTS?

  1. Section 61DA of the Act provides for the application of the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child when making a parenting order. Relevantly for this case, s.61DA(4) of the Act permits the presumption to be rebutted when the Court is satisfied by the evidence that it would not be in the best interests of the child for their parents to have equal shared parental responsibility for them.
  2. Pursuant to s65DAC of the Act, in order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. Where the exercise of parental responsibility involves deciding about a major long-term issue, this section requires three things of the parents:
(f) The parents consult the other in relation to the decision to be made;

(g) The parents make “a genuine effort to come to a joint decision about that issue”; and

(h) The decision be made jointly by the parents.

  1. The parties have an inability to parent cooperatively and reach agreement in relation to decisions affecting X’s care, welfare and development.
  2. There was no evidence to support the proposition that they could jointly make long-term decisions about X. In those circumstances, the only alternative is to have one parent exercise sole parental responsibility. That parent should be the parent with whom X spends a majority of his time. The parent who exercises parental responsibility will be required to consult the other parent before making a decision, genuinely consider their perspective and advise them of the final decision.
  3. I will therefore proceed to determine the issue of who X should live with. To determine this issue, I shall assess the evidence through the rubric of the s.60CC factors. Before I assess the evidence, I propose to say something of the credit of the mother and the father.

Credit

  1. The mother’s preparation of her case was shambolic. I say that with no criticism of her legal representatives or Counsel. Her legal representatives were appointed close to the hearing date. To ensure that the mother had every opportunity to present her case, the matter was stood down for an afternoon to allow her legal representatives to prepare further affidavit material. When that did not materialise, I gave the mother leave to elicit evidence in chief viva voce.
  2. What was glaring however was the lack of evidence on key aspects of the mother’s case and importantly about her care of X. It was only via subpoena documents that a picture emerged of the last 12 months of X’s care. These records reveal that in the most recent past this boy has had a life of considerable instability – moving from Region E to Brisbane, changing schools, being homeless for a period of time and changing schools again to move into high school. All of this occurred in the circumstances where the mother is quite clearly experiencing chronic mental illness and has been overwhelmed by her circumstances. I accept that the last few years must have been a very difficult time for X and also for his mother.
  3. The mother was not a reliable witness. Under cross-examination, the mother was unable to answer most questions without apparent confusion or without providing tangential evidence, non-responsive to the question. The impression given by the mother in her cross-examination was that she was not doing the best that she could to follow and answer the questions, but that she was presenting as obtuse and, on some occasions, confused. She was unable to provide a reliable narrative. It was difficult, on occasion, to follow her evidence. On a number of occasions, I intervened to seek questions to be re-asked and direct the mother to listen to the question and to do the best she could to answer the question.
  4. The father gave his evidence in a direct fashion. I consider that he did the best he could in answering questions. He made appropriate concessions, and it seems that he has gained some insight over the litigation years, not only in how to manage his emotions in dealing with the circumstances of this litigation but also in parenting a 12-year-old boy.

PRIMARY CONSIDERATIONS

The benefit of the child having a meaningful relationship with both of the child’s parents

  1. What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518, with the Full Court in Moose stating at paragraph [68] that “Her Honour’s discussion was helpful and her conclusions about section 60CC(2)(a) are cogent.”
  2. At [26], Brown J concluded:
    1. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. ... a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.
  3. Kay J in Godfrey & Sanders [2007] FamCA 102; (2007) 208 FLR 287, spoke of the legislation promoting a “meaningful relationship, not an optimal relationship”.
  4. The Full Court in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 at [117] adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is “a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.”.
  5. It is my view that each of these parents have something valuable to offer X. I am satisfied that the mother and the father love X and that he loves his parents. In my view there is benefit to X in having a relationship with both parents and I proceed on the basis that subject to all other considerations it would be to X’s benefit for there to be a meaningful relationship between him and his parents.

Need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

Allegations of family violence

  1. Regarding subsection 60CC(2)(b) of the Act, the Court is directed when having regard to the primary considerations, to give greater weight to ss.60CC(2)(b) of the Act (see ss.60CC(2A) of the Act.
  2. Section 60CG of the Act imposes on the Court an obligation to ensure that as much as possible and taking into account the child’s best interest, any orders made will not expose a person to an “unacceptable risk” of family violence.
  3. The mother makes many allegations that the father has perpetrated family violence against her and X. The mother has informed numerous health professionals, education providers and the Queensland Police Service that the father has been violent to her and X and that her and X have been “on the run” from the father for a number of years.
  4. The mother has a fixed belief that X is unsafe and is at risk in his father’s care. She alleges that X told her that his father had “assaulted him”.
  5. These are serious allegations. The father denies all allegations. The father denies that X is scared of him.
  6. In her 19 March 2024 affidavit, the mother states the following:
    1. The communication between [Mr Parry] and me is minimal and only by email given the extensive history of family violence perpetrated by [Mr Parry] to me. I was subject to acts of family violence perpetrated by [Mr Parry] over the course of our marriage, particularly psychological and emotional abuse. [Mr Parry] would always be very controlling and manipulative towards me and [X]. We currently do not have a positive co-parenting relationship and this relationship has significantly declined over the years.
...
  1. [X] has expressed his strong wish not to spend time or speak with [Mr Parry] since [early] 2021. He continues to verbally tell me that he does not want to spend time with [Mr Parry] at his home and becomes distraught, upset and agitated when I encourage him to speak with [Mr Parry] [sic] and spend time with him. [X] has also threatened to hurt himself, or run away if he is required to see [Mr Parry] at his home. [X] has told me that [Mr Parry] has told him various times words to the effect ‘you are a silly boy’, and ‘you are weak’ and [X] has said he then goes into the bathroom and looks in the mirror and tells himself ‘I am a silly boy. I am weak’.
  2. I currently hold genuine concerns for [X]’s safety and wellbeing while spending time in [Mr Parry]’s care, including him running away and the emotional and psychological impacts he is experiencing from [Mr Parry]’s behaviour towards him and the continuation of being subjected and exposed to emotional and psychological abuse by [Mr Parry]. [X] would tell me [Mr Parry]’s behaviour includes physically hitting him and smacking him when he is in trouble, and he would make nasty and negative comments towards him mentally.
  1. The father deposed that the mother applied for a Protection Order against him in late 2013 whilst he was residing in Town M. The father denied the allegations. The mother left Town M in late 2013.
  2. In early 2014 the protection order was made after the father consented to the making of the order without admissions. There was no direct evidence from the mother as to the nature of the allegations which founded the application for the protection order. The documents produced under subpoena from Queensland Police Service did not provide any detail of the allegations.
  3. In mid-2016 there was an altercation between the parties which resulted in a Temporary Protection Order issuing early 2016 which protected both parties from each other. The father says that he was told that the Temporary Protection Order meant that X was not allowed to spend time with him. The father says that the mother would call the police in an attempt to breach him, and he believes in 2016 she attempted to do that around eight times. A protection order was made for two years from early 2017 to early 2019. There is no evidence of any breaches of that order. There was no direct evidence from the mother as to the nature of the allegations which founded the application for the protection order. The documents produced under subpoena from Queensland Police Service did not provide any detail of the allegations.
  4. The mother is recorded as having informed the police in late 2021 that X has “potentially been assaulted by” his father and that his father gets angry at him. The police record notes that “nil specific details/contextual information provided”.
  5. In cross-examination the mother said that she was told by X that the father assaulted him and that “My dad gets mad at me mum. He gets angry at me”. There is no evidence from the mother as to what further inquiries she made of either X or the father as to the cause of this allegation. The mother says that she did not take X to the doctor. The mother says she reported what X has said to her to the police. There was nothing in Queensland Police Service documents produced confirming that the mother had reported the father for assaulting X.
  6. In early 2021 the mother went to the police with messages from the father requesting the police consider the messages to be an act of domestic violence. The documents produced under subpoena from Queensland Police Service records that the “messages and written correspondence shown to police and directly observed by attending offices are of a nature/perspective of a concerned father/parent. There are no threats, no foul language, no coercion or any other poor behaviour/language that could possibly be construed as being sufficient enough to warrant any other form of action.”.
  7. In early 2021 the mother, in explaining the child’s absence from school to the school authorities, is reported to have stated that she was “trying to keep [X] safe from his father”. In early 2021, the mother is reported to have informed the school that “[X] was anxious in coming to school in case his father collected him”.
  8. In early 2021 the mother is reported to have informed her General Practitioner, Dr FF that she is “concerned for [X]’s safety, threatening emails from [X]’s dad”.
  9. In early 2021, the mother is reported to have informed Dr FF that she was “applying for DVO”. On the referral from Dr FF for the mother to Mental Health Intake services, it is reported “DVO AGAINST EX”, with the reason for the referral being “DOMESTIC CRISIS/VIOLENCE”.
  10. The mother filed for a protection order against the father in early 2021. Where in the application the mother was to specify the conduct or behaviour complained of and give reasons, the mother wrote the following:
That the respondent cannot stop me from seeking any help that the said child [X] may need or having a say in where we can live that we can reside where-ever we wish. that the [55]klm from [X]’s school be removed. if we so wish we can move to another state or country for our own protection. We have had to move to other places including a womens shelter for our own protection from the respondent.
  1. In cross-examination the mother agreed that in filing for the protection order she was seeking the existing family court orders to be cancelled or overridden. The mother also agreed that nowhere in the document did she include the allegation that she had been informed by X that the father assaulted X.
  2. The mother’s application was withdrawn, and the father entered into an informal undertaking in mid-2021 for 12 months to be of good behaviour and to not commit domestic violence towards the mother and X. The second undertaking was that the father would not approach within 100 metres of where the mother lived.
  3. In late 2021 the mother attended an intake session at P Centre. The notes from the intake session record the following:
[Ms Sadler] presents as a difficult historian, tangential in nature with timelines difficult to follow. Ascertain the following:
...
- Articulated physical violence as primary reasons for relationship breakdown between [X] and Father, however described incidents were difficult to isolate as to conflict between parents or incidents directly impacting [X]. [Ms Sadler] describes her relationship and post separation experience as categorised by domestic and family violence.
- DVO previous in place for two years, expired in 2020. Nil since.
- Questioned [Ms Sadler] on 3 occasions as to child protection reporting (phrases used by clinician – reported to Child Safety; reported to Child Protection) however nil answer provided. This enquiry was in the context of [Ms Sadler] using multiple times ‘he [assaulted X]; ‘he [assaults X]; ‘it’s child abuse’.
  1. At X’s intake session (in late 2021) at P Centre, the following was recorded:
Regarding Fa, [X] reported a wish not to spend time with him, advising that he has ‘[assaulted]’ [X]. He was unsure as to when this occurred or what else had occurred in the context of the ‘[assault]’. He was unable to identify any other information for ceasing time or his wish to not spend time with his Fa.
  1. The mother contacted the police in early 2024 complaining that the father had contacted X’s school seeking information about him. The police record showed that the mother informed the police officers that the father was not supposed to have contact with X. In cross-examination the mother accepted that this was a false statement to the police.
  2. In early 2024 the mother attended the Queensland Police Service making a complaint that the father was stalking her. The police spoke to the father about this complaint. The mother did not rely upon any evidence to substantiate the father having been stalking her. The father tended his work schedule which showed that on the day of the allegation, he was working.
  3. The T School 2024 records note that “Dad is not allowed to contact the school or make any contact with [X]. COURT ORDERED. ... Dad used to [assault him]. Caused damage. Its ongoing-limited movement & stretching and pain”.
  4. In early 2024 the mother complained to the police that somebody was hacking her phone. She agreed in cross-examination that she told the police that she thought it was the father who was hacking her phone. No action was taken by the police. The mother produced no evidence to this Court concerning the hacking of her phone by anyone, including the father.
  5. The mother is recorded to have told staff at S Organisation earlier this year that she had been on the run from her perpetrator for the last nine years who is still actively looking for her and her son.
  6. When asked in cross-examination what specific physical violence the mother alleges the father committed upon her, the mother responded that the father bashed the door open when they were in Town M. She said the father grabbed her arm and pushed it away when she tried to stop him from going out one time when they had a disagreement in 2008. The mother alleged that the father had assaulted her and she had told X that his father had assaulted her. When asked in cross-examination when the father had assaulted her, the mother responded it was when they were in Town M and he became upset and she locked yourself in the bedroom and he bashed and broke the door down.
  7. None of the allegations above appear in any other documents in these proceedings – either documents containing direct evidence from the mother or documents produced under subpoena.
  8. Despite many opportunities being presented to her, at no point in her cross-examination or her examination in chief did the mother give evidence with any particularity of physical violence occasioned upon her by the father. The evidence of the allegations of domestic violence that the mother makes against the father concerning her and X never rise beyond generalised allegation, unsupported by either contemporaneous documents or corroborative reporting.
  9. It is of some considerable significance, adverse to the mother’s credit that she has falsely asserted to Queensland Police Service and to Queensland Education authorities and to service providers that court orders exist that the father is not to have any contact with X.
  10. The documents produced under subpoena including health records, education records and police records do not document any independent or contemporaneous report of abuse or harm between the mother and the father which would support the narrative provided by the mother. Neither does the material contain any contemporaneous reports of assault or harm on X by the father.
  11. It was solely in the power of the mother to produce evidence in these proceedings supporting the allegations of family violence. The mother has not provided any coherent account with context or detail of any instances of family violence despite being given numerous opportunities to do so. In the circumstances, where the mother has failed to produce that evidence, the Court is entitled to infer that there is no evidence of sufficient particularity or persuasion that the father perpetuated family violence towards the mother or towards X.
  12. On the available evidence in this case, I am unable to find that the allegations of family violence made by the mother against the father to be proven on the balance of probabilities.
  13. On the available evidence in this case, I am unable to find that the father has engaged in family violence towards X. In any event, on day 2 of the hearing Counsel for the mother informed the Court that the mother was not seeking a finding that the father had assaulted the child.
  14. Further, it is my overall judgement having regard to the available evidence and the facts and circumstances of this case, that the father does not pose an unacceptable risk of harm to X by reason of alleged family violence or exposure to family violence.

Exposure to psychological harm

  1. The proven facts in this case reveal that the mother has failed to acknowledge the father as a parent on school enrolment, failed to seek the father’s consent to a change of schools, misrepresented family court orders, maintained a narrative that the father committed family violence against her and also against X and also, as recent as earlier this year, contacted Queensland police complaining about the father stalking her.
  2. On the basis of those proven facts, I find that if the Court ordered for X to remain living in his mother’s care and to spend time with his father either in line with his wishes or with a structured regime, it would be highly unlikely that the mother would facilitate or cultivate X’s relationship with his father.
  3. Further, having regard to the mother’s negative views of the father, her fixed belief that the father perpetrated family violence upon her and also upon X, the mother would actively dissuade the child from spending time with his father.
  4. Ms K opined that if X lives with his mother, it is highly likely that he will not have a relationship with his father or paternal family unless he sought contact with his father into his adulthood. Ms K stated this will likely have an impact on him emotionally and psychologically as he will not have a relationship with one of his parents, impacting on his identity and development and could lead to feelings of guilt or regret as X gets older for not engaging with his father in the context of no evidenced risk factors.
  5. In cross-examination, Ms K was asked what the likely long-term consequences for a child would be who aligns with one parent and rejects the other parent in regard to relationships with both parents and the impact on his future relationships with people up to and including his adulthood. Ms K said this:
... enmeshment can mean for children, and as they grow into adulthood, is that they can develop an over-concern for others or how others are, and that can often lead to a loss of autonomous development, so a lack of an ability to make their own decisions or to think about what their own needs are over other people’s needs. .... which again then leads into adulthood a pattern of behaviour where they don’t have an ability to think for themselves, where they may need to be overly reliant on a parent, even as an adult, or on partners as they move into, you know, partner relationships. ... it certainly does have impacts on people as they move into their adulthood, especially for children during an adolescent period where actually one of their key developmental tasks is developing their identity and being able to think about, “Well, who am I? What do I like? What’s going to be important for me?” And that’s really crucial for being able to move forwards as an adult that is well-functioning, that is less likely to suffer from mental health difficulties, and that then is able to engage in relationships that are positive and where they are not in relationships where they are overly reliant on others or dependent on others.
  1. Orders for X to live with his father and spend time with his mother will protect X from any psychological harm that may be occasioned from X being aligned with one parent and rejecting the other.

ADDITIONAL CONSIDERATIONS

Any views expressed by the child and any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight it should give to the child’s views

  1. At the interview held in late 2021 with Ms K for the purposes of the first Family Report, Ms K reports the following of her interview with X:
    1. [X] told me that he believed he had come to see me about “seeing dad”. He immediately told me that he wouldn’t like to seeing his father, telling me “he always asked me questions I don’t like, I don’t like answering him”. When I queried [X] about what questions his father asked him, he told me that his father might ask him things like “how’s your mum going?”. [X] said that going to see his father at [B Contact Centre] “wasn’t good, he kept saying sit on my lap and I didn’t want to. I was being happy, it’s the only place he can see me, I felt like I had to be happy for him”. He told me that he was only nice to his father because he didn’t want to hurt him.
...
  1. [X] described his father as “nasty, mean, ungrateful” and said that he had his own room at his father’s home and that he had a television in his room. He alleged that his father was always “[assaulting] me for no reason”. [X] said that when he gives his father stuff, his father doesn’t say thanks and that he doesn’t use things he has bought for his father, such as some [gifts]. [X] told me that his father never played with him and that he only rides his bike with him every two weeks. He told me that once he cut his hair off because he felt like he was “doing a lot wrong” and that his father didn’t notice.

...
  1. [X] alleged that his father used to say to him “I was mean and an idiot” and that he had stopped seeing his father because “he’s messed with me and mum, like since I was two years old, he was mean to me and mum. He abused mum. Mum used to say dad used to hit her and that’s why I’m ([X]’s mother) not with him ([X]’s father) anymore”.

...
  1. [X] said that he did not want to see or talk to his father and that he wanted to stay with his mother all the time, telling me “I wouldn’t live with dad, I’d run away”.
  1. Ms K recommended that the parties and X engage in court reportable Family Therapy with Ms L from P Centre. It is reported earlier in this Judgment that Ms L’s observations of X’s interactions with his father in 2022, whilst limited, indicated that they share a positive and mutual correct connection that is characterised by shared interests and past positive connecting experiences.
  2. At the interview held on 5 February 2024 with X for the purposes of the third Family Report, Ms K reports the following of her interview with X:
    1. [X] reported that during sessions with [Ms L], he had texted and telephoned his father and had two video link sessions with his father. He described this contact as repetitive and reported that he liked it and also didn’t like it, with [X] stating that he was making it look like he was having a good time. [X] said that he didn’t want to talk to his father because “I just didn’t want to, she ([Ms L]) wasn’t forcing me to, I didn’t want to hurt his feelings”.
...
  1. [X] shared views that he wanted to live with his mother “all of the time” and to spend “no time” with his father. When the report writer asked how [X] would feel if the Judge ordered for him to spend time with his father, [X] said that he simply wouldn’t do it.
  2. When the report writer asked [X] if he might like to spend some time with his father, for example, go to a café for a drink together, [X] said that he might want to do that at a later stage. He said that he remembered his father’s number and that if he wanted to contact his father, he could do this from a telephone box.
  3. [X] said that if the Judge ordered him to live with his father, he wouldn’t do this, stating that his father would ask him too many questions, such as “why didn’t you see me for three years” and stated that everything would be wrong with living with his father. [X] said that he simply would not want to go to live with his father and “wouldn’t do it”.
  1. In her third report, Ms K considered that due weight should be placed on X’s wishes “insofar as his views are based on his current experiences of his life, family and his world”. In Ms K’s opinion, X does not have the maturity and understanding due to his age and stage of development to appreciate or recognise how not having a relationship with his father will impact on him psychologically, emotionally and from an identity perspective or about how not having a relationship with his father may impact on his adult functioning and relationships.
  2. In R & R: Children’s Wishes [2000] FamCA 43; (2000) FLC 93-000, the Full Court noted at [54];
54. ... There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
  1. X is now 12 years of age and of sufficient maturity for the Court to place weight on his views. However, I am not satisfied that the views that he has expressed should be determinative.
  2. The B Contact Centre supervision notes from late 2021 indicate that at the first visit after X had not seen his father since early 2021, X was excited to spend time with his father, running to his father and hugging him and sitting on his father’s knee. X was described as relaxed, happy, comfortable, and engaging with his father, smiling, kissing and hugging his father and with there being positive verbal interactions between them. The contact between X and his father was described as “beautiful”.
  3. In her March 2024 affidavit, the mother says at paragraph 27:
    1. Since [late] 2021, [X] has been spending supervised time with [Mr Parry] at the [Town AA] contact centre, [B Contact Centre]. I understand the visits have been positive and [X] has expressed to me that he enjoys spending time at [B Contact Centre]. [X] has however commented words to the effect, ‘I think dad is only being nice to me as he knows others are around watching him’. [X] has also said words to the effect, ‘when people are not around, dad tells me things, like, he apologized to me for [assaulting] me.
  4. In her September 2022 report, Ms L noted her observations of X and his father which indicated shared positive and mutual connection categorised by shared interests and past positive connecting experiences.
  5. In cross-examination, Ms K said that X is quite aligned with his mother; he has been cared for her his whole life by the mother; he worries very much for her; the concern for Ms K was that the boundaries around parent-child interactions may have become quite blurred and X may express views that are in line with him wanting to please his mother, wanting to make sure she is okay.
  6. When the matter came back before the Court in April this year, the father read an affidavit deposing to the time X spent with him during the adjourned period. There was no objection to this evidence and the father was not required for further cross-examination. It is clear from the father’s evidence that the contact occurred without incident, with X hugging both his father and his maternal grandmother, sharing shopping occasions, lunch occasions, playing games and exchanging Easter eggs. There was no report of any hesitation from X to moving into his father’s care during this time.
  7. The Court will determine what arrangements are in X’s best interests independent of his views.

Nature of the relationship of the child with each of the child’s parents and other persons

  1. The child has a strong attachment to the mother. The mother has been X’s primary carer for his whole life. I have detailed above the opinion of the report writer with respect to the nature of the relationship between X and his mother. X described that his mother was “good” and that they were “quite close”, stating that they cook dinner and bake together and played video games.
  2. The relationship between X and his mother is a significant factor in the decision not to make a no time order and no communication order between X and his mother upon X living with his father.
  3. The father deposes to taking an active parenting and caring role regarding X during the relationship. The father says that he was often caring for X. He says that he purchased almost all of X’s clothes, bottles, nappies, formula and other necessary items and he always ensured that X’s needs were attended to. The father says that when X was spending time with him he focused on providing X with a structured environment, especially when it came to his schooling.
  4. But for the most recent time that X has spent with his father during the adjourned period, X has not spent time in formal with his father since early 2021. I refer to the evidence described above contained in the father’s affidavit concerning the recent time X spent with his father.
  5. X has a close relationship with his paternal grandmother. The orders proposed will ensure that this relationship is continuing.

Extent to which each of the child’s parents has taken or failed to take the opportunities to participate in making decisions to spend time with and to communicate with the child

  1. Each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with the child and communicate with the child to the extent permitted by orders and with respect to the father, to the extent permitted by the mother.

Extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child

  1. There is no complaint that the father has not paid the assessed child support for X.
  2. The mother has been unable to work for many years. She has been in receipt of benefits. In 2023 she and X experienced a period of homelessness.
  3. Ms K opined that the mother is suffering from significant mental health issues, and it appears has been struggling probably for quite some time with significant anxiety and that anxiety has impacted on her functioning and her experiences in the world.
  4. In term 4 of 2023 the documents produced under subpoena from the Department of Education reflect that X had been away from school that term for more than 80 percent of that term. In cross-examination the mother’s explanation of that was “because of the circumstances that we were in at the time at the house”.
  5. On the available evidence, I find that the mother has, at times, been unable to fulfil a parent’s obligation to maintain X with a stability of housing, stability of schooling and properly responsive to his medical needs.

The likely effect of any changes in the child’s circumstances, including likely effect on the child of any separation from either parent or any other child or other person

  1. I propose to make orders that X live with his father. That change in his circumstances will likely have a significant effect upon him. X will move from his primary carer to live with his father in circumstances where, but for the day-to-day contact on seven occasions earlier this year, he has not spent any extended period with his father since early 2021.
  2. X will have a further change of school in circumstances where he has been at his current school, his first year of high school, only for this year. The significance and the traumatic nature of this potential change was acknowledged by the ICL and by the father.
  3. However, he is returning to Region E, which is an area where he spent some years.
  4. It may well be that some of his school peers will not be completely unknown to him. The close relationship that he has with his paternal grandmother will provide some solace and comfort to him. His father gave evidence that he would seek counselling for X.
  5. It is the determination of this Court that it is in X’s best interests for him to reside with his father. This will provide an opportunity for the father to step up into the day-to-day parenting role. This will also provide some respite to the mother who may, with some distance from this litigation, welcome some time to focus on herself and her mental health. But importantly, this decision will allow X to live with stability in his home life and schooling and day-to-day care and allow him the opportunity to focus on the usual challenges of adolescence.
  6. In her second report Ms K express a view that although a change of residence for X to live with his father would undoubtably be difficult for X to navigate, the father presented with knowledge and skills to support X to navigate such a move in a responsive and nurturing manner.

Practical difficulty and expense of child spending time with and communicating with their parent and whether that will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis

  1. The father owns a residence in Region E. There is no suggestion that he intends to move away from Region E. The father can offer X a stability of accommodation. The father has a stable employment having worked as an allied health worker for a number of years.
  2. The mother lives outside Brisbane and said in her evidence that she would not relocate to Region E.
  3. The mother and father live within a reasonable driving distance however the mother currently does not have a vehicle. The father will be shouldering a larger responsibility for at least some of the occasions of time between X and his mother. The mother gave evidence that she can catch public transport from her home to Region E to spend time with the child.

Capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

  1. The father’s capacity as a parent who has full-time care and control of X is untested. He says that he will have the support of his mother. He says that he has a flexible work schedule which would allow him to be responsive to X’s needs. There is no suggestion that he does not have the finances to meet the day-to-day needs of a child.
  2. I am satisfied that the father has the capacity to meet X’s emotional and intellectual needs. I am satisfied that he properly understands the significance of X’s relationship with his mother and that he would act in a way to promote that relationship. This can be evidenced simply in the relief that he seeks in these proceedings. The orders that he seeks in these proceedings are generally appropriate and reflect an eye upon X’s best interests.
  3. I consider that the mother’s capacity to meet X’s needs is impaired.
  4. At times X’s school attendance has been very poor. X does not appear to have any major health issues however the mother has not always been responsive to recommendations with respect to treatment for X’s mental health.
  5. The mother is unable to meet X’s emotional needs and in particular his need for a relationship with his father. The mother has failed to comply with orders from this Court for X to spend time with his father on many occasions. She has made unilateral decisions concerning X’s schooling. She has made unilateral decisions concerning where X lives. She has represented to X that the father has assaulted her, is someone that X needs to be “safe” from, that the father is someone to be “on the run” from. She has perpetuated a narrative to X and education providers, doctors, services, and police that the father is a violent person and someone to be feared in circumstances where I have found there is no evidence to substantiate such a narrative. She has falsely represented the effect of court orders providing for X and his time with his father.
  6. The mother has an unshakeable belief that X is at risk in his father’s care, be that a risk of violence or emotional abuse. The mothers repeated refrain in this context is that X has told her things that his father has done to him. When X has repeated this allegation, it is an allegation without any specificity or force. As I have found, the father does not represent a risk of harm to X. By the mother maintaining this refrain concerning the father she is not providing for the emotional and intellectual needs of X.

Maturity, sex and lifestyle of the child

  1. X is a 12 year old boy. He will be 13 this year. He is in his first year of high school. I consider the orders to be made by the Court, in the circumstances, properly have regard to X’s maturity and lifestyle.

Attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

  1. The father’s overall attitude to X and to the responsibilities of parenthood are adequate in the circumstances.
  2. The mother’s overall attitude to X is adequate. However, her attitude to the responsibilities of parenthood is impaired. She has consistently failed to support and encourage X having contact with his father. She has maintained a narrative that X would not be safe in his father’s care perpetuating an attitude which would cause X harm and diminish the father in X’s life.

Family violence involving the child or a member of the child’s family

  1. I have dealt with family violence earlier in these reasons.

Whether it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings

  1. These are the third set of proceedings initiated by the father in the last 10 years.
  2. Not being satisfied that the mother will encourage X to spend time with his father, or cultivate X’s relationship with his father, placing X in the care of his father and providing for a graduated contact regime between X and his mother, in my view are the orders that would be least likely to lead to the institution of further proceedings.

OVERALL CONCLUSION ON PRIMARY AND ADDITIONAL CONSIDERATIONS

  1. The mother’s proposal for X carries with it the advantage of stability both in current residence and school – although given the instability in both housing and schooling in 2023, that advantage is somewhat tenuous. X would maintain his relationship with his mother. However, that is about all that can be said of the benefits of the mother’s proposal. There are disadvantages to the mother’s proposal. The most significant being the near certainty that X will not have a relationship with his father or with his paternal grandmother if he remains in the mother’s care. The mother will continue to deliver a narrative that X is not safe in his father’s care. She will continue to deliver a narrative that X and her are fleeing domestic violence and that X’s father perpetuated family violence on her and X.
  2. The father’s proposal carries with it the advantage of an opportunity for X to have a relationship with both of his parents. I consider that the father will meet X’s physical, emotional and intellectual needs including his need for an ongoing and meaningful relationship with his mother. It will however have a disadvantage for X, the most significant of which will be a change to his current arrangements. It cannot be overstated the impact that that may have on X. However, I am satisfied that the father, with the support of the paternal grandmother will meet X’s needs to deal with that change of circumstances. The short term distress that X will no doubt exhibit in no longer living with his mother will, in my view, be outweighed by the long-term advantages for X that I have identified.
  3. On balance I consider that the father’s proposal overall carries with it more advantages for X than disadvantages compared to the mother’s proposal.
  4. Section 61DA(1) of the Act requires me to presume that it is in X’s best interests for his parents to have equal shared parental responsibility for decisions concerning major long-term issues for X. Section 61DA(2) of the Act provides the circumstances in which the presumption does not apply. Moreover, I am required to apply the presumption where I do not consider that it is in X’s best interests for it to apply. Here, I do not consider that it is in X’s best interests for the presumption to apply because there is no possibility of these parents communicating or coparenting effectively in the circumstances of this case. The mother expresses a fear of the father, and she holds a fixed belief that X is not safe in his father’s care. It would be completely impractical to expect these parents to coparent X and, having regard to his age and developmental level, attempting a coparenting regime would cause conflict and potentially emotionally and/or psychologically impact upon X.
  5. Having regard to my view that there are greater advantages in the father’s proposal than the mother’s, I find that it is in X’s best interest that he live primarily with his father. He should no longer live primarily with his mother. The allocation of parental responsibility must flow to the parent with whom the child lives, which is the father. I do not think consultation between the parties is practical or viable. The mother does not wish to disclose her mobile phone number, her email address, or her residential address. The father asserts that the mother has made many false allegations against him. In those circumstances, the father shall have parental responsibility for X and sole decision-making in respect of all decisions concerning major long-term issues.
  6. There will be an order that the parties communicate via a Parenting Application, such as AppClose and Talking with Parenting.
  7. The clear psychological risk of harm to the child from the change of residence means careful consideration is required about the way in which initial contact is resumed between X and his mother and how the maintenance of X’s his relationship with his mother is managed.
  8. The mother is strongly urged to engage with a psychologist or psychiatrist to obtain assistance with her mental health.
  9. While I have real concerns that the mother will be able to comply with injunctions, on balance I consider there is no real benefit and significant risk of harm to X if he is completely separated from the mother for a period of months. However, X will be given the opportunity to get into a routine living with his father, attending his new school and becoming acquainted with his new environment. Time needs to be given for this new regime to ‘stick’, for X and his father to further develop their relationship and their day-to-day lives. Order for contact between X and his mother will commence after a short settling period.
  10. If possible, the child’s counselling should start immediately.
  11. I am very concerned about the type of messaging that X will receive about his mother and about the reasons why he is living with his father. The ICL have proposed in order that ... I think it is a good idea however I think there is a lot on X’s plate at the moment and when he is going to see a side collar just perhaps this could be raised with her. I propose to make an order releasing my reasons for judgment to any treating psychologist for X. I also propose to make an order releasing the transcript of the cross-examination of Ms K to X’s treating psychologist.
  12. Both parties will be restrained from discussing the proceedings or denigrating the other party at all and especially in front of X.
  13. I shall make the standard orders concerning the exchange of contact information and access to health and educational information. To be clear after the period of six months it is to be hoped that the mother has engaged with a psychologist and/or psychiatrist and is getting assistance with regard to her mental health, there should be no impediment to her attending the usual things that parents attend at school and extra-curricular activities.
  14. Each party shall bear their own costs.
  15. Ms K’s opinion was that if X was to leave the care of his mother and reside with the father that change should happen forthwith. Accordingly, the orders that I pronounce will be to that effect.
  16. I make the orders set out at the commencement of these reasons.
I certify that the preceding two hundred and sixty-two (262) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.

Dated: 15 May 2024

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