FAMILY COURT OF AUSTRALIA

ARRANZIO & MOSS	[2015] FamCA 544	

FAMILY LAW – CHILDREN - with whom the child lives - with whom the child spends time - where the parties have diametrically opposed parenting approaches - where issues relating to the child's heath are significantly in dispute - where the parties cannot agree - where each party asserts the other poses a risk to the child - where the mother does not support a relationship between the child and his father	

Family Law Act 1975 (Cth) 	

McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509
Mains & Redden (2011) FLC 95-478	

APPLICANT:	Mr Arranzio	

RESPONDENT:	Ms Moss	

Independent children’s lawyer:	Stewart Family Law	

FILE NUMBER:	LEC	437		of	2010	

DATE DELIVERED:	17 July 2015	

PLACE DELIVERED:	Brisbane	

PLACE HEARD:	Brisbane	

JUDGMENT OF:	Hogan J	

HEARING DATE:	6, 7, 8, 9, 28, 29 May 2014	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Smith	

SOLICITOR FOR THE APPLICANT:	David Hunter Solicitor	

THE RESPONDENT:	In Person	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Bunning	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Stewart Family Law	

Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
(1)	All previous orders are discharged.
(2)	The child B, born … 2009, live with the father from: 
(a)	after school Friday, 17 July 2015 until before school Monday, 20 July 2015; and
(b)	after school Friday, 24 July 2015 until before school Tuesday, 28 July 2015; and
(c)	after school Friday, 31 July 2015 until before school Tuesday, 4 August 2015; and
(d)	after school Friday, 7 August 2015 until before school Wednesday, 12 August 2015; and
(e)	from after school 14 August 2015.
(3)	The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that he shall, prior to making a decision about any such issue:
(a)	inform the mother in writing of the issue about which a decision needs to be made; the decision he would like to make in respect of such issue and the reasons for that proposed decision; and
(b)	allow the mother 14 days after the provision of the information referred to above to respond to the same in writing; and
(c)	consider the mother’s response, if any, when coming to a decision about any such issue; and
(d)	inform the mother of the final decision made with respect to that issue as soon as practicable thereafter.
(4)	Each party have responsibility for daily decisions about the day to day care, welfare and development of the child when he is in that party’s care.
(5)	The child shall live with the mother as follows:  
(a)	commencing Thursday, 20 August 2015: each alternate week from after school Thursday until the commencement of school on Monday;
(b)	for half of the school holiday periods in each year being:
(i)	for the first half of the school holidays at the end of Terms 1, 2, and 3 in odd numbered years; and
(ii)	for the second half of the school holidays at the end of Terms 1, 2, and 3 in even numbered years; and
(iii)	until 2017: for the first, third and fifth weeks of the school holidays at the end of Term 4 in odd numbered years; and 
(iv)	until 2017: for the second, fourth, and sixth weeks of the school holidays at the end of Term 4 in even numbered years;
(v)	from 2017 onwards:
A.	for the first half of the school holidays at the end of Term 4 each year in odd numbered years, and 
B.	for the second half of the school holidays at the end of Term 4 each year in even numbered years.
(6)	In the event that the child would not otherwise be spending time with the father on the weekend on which Father’s Day occurs, the child shall spend time with the father from after school Friday until before school Monday on that weekend with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time. 
(7)	In the event that the child would not otherwise be spending time with the mother on the weekend on which Mother’s Day occurs, the child shall spend time with the mother from after school Friday until before school Monday on that weekend with the mother to collect the child from school at the commencement of time and return the child to school at the conclusion of time.
(8)	From the start of Term 3 in 2015 the operation of Clause (5)(a) shall be suspended during any school holiday period and shall resume with weekend time commencing:
(a)	on the first weekend of school Term if the child has spent time with the mother in the first half of the holiday period; or
(b)	on the second weekend of school Term if the child has spent time with the father in the second half of the holiday period.
(9)	Unless otherwise agreed between the parties in writing or otherwise provided for in this Order, changeovers shall occur at McDonald’s Restaurant C Town. 
(10)	Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.
(11)	The mother shall have telephone communication with the child each Wednesday between the hours of 6:30 pm and 7.00 pm or at such other times as may be agreed in writing between the parents with:
(a)	the mother to initiate the telephone call to a telephone number to be provided to her by the father; and
(b)	the father to ensure the child is available to receive the telephone call.
(12)	In any school holiday period during which the child is spending holiday time with the mother, the father shall have telephone communication with the child each Wednesday between the hours of 6:30 pm and 7.00 pm or at such times as may be agreed in writing between the parents with:
(a)	the father to initiate the telephone call to a telephone number to be provided to the father by the mother; and
(b)	the mother to ensure the child is available to receive the telephone call.
(13)	The mother and father shall:
(a)	keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within twenty-four (24) hours of such change; and
(b)	notify the other at least seven (7) days prior to relocating their residence; and
(c)	keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and
(d)	inform the other as soon as is reasonably practicable of any serious medical condition suffered by the child;  and
(e)	keep the other informed of any school, educational facility or extra- curricular activity provider attended by the child.
(14)	Each party is hereby restrained from smoking in the presence of the child. 
(15)	Each party is to use their best endeavours to ensure the child is not brought into contact with cigarette smoke and to remove the child from the presence of cigarette smoke. 
(16)	Each party shall refrain from consuming alcohol to excess or being under the influence of alcohol at a level higher than that which would enable that parent to lawfully operate a motor vehicle while the child is in their care
(17)	Neither party shall enrol the child in any activity nor arrange for the child to participate in any activity which occurs during time the child is with the other party without first obtaining the written agreement of that party. 
(18)	By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities. 
(19)	By this Order, the mother and father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment. 
(20)	Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of the child and, failing the third parties’ compliance with such a direction, shall remove the child from that environment immediately. 
(21)	Neither parent shall discuss these proceedings with the child, save for in counselling, nor involve the child in any discussions regarding any issue in dispute between them. 
(22)	Each parent shall forthwith complete a Post-Separation Parenting Orders programme through either a Family Relationship Centre or Relationships Australia and provide the other with written confirmation of their attendance and completion of the same within six (6) months of the date of this Order. 
(23)	Save in the case of emergency, the mother is restrained from taking the child to any medical practitioner other than the person nominated by the father in writing as the child’s general medical practitioner.
(24)	Save in the case of emergency, the father is restrained from taking the child to any medical practitioner other than the person nominated by him in writing to the mother as the child’s general medical practitioner.
(25)	Save as provided for in Clause (23), the mother is restrained from taking the child to any person or health practitioner howsoever described in relation to issues about his health.
(26)	Neither party shall change the child’s residence to a place more than 50 km from the C Town Central business district without first providing the other with no less than 60 days notice in writing of an intention to do so.
(27)	The mother, Ms Moss born … 1980 and the father, Mr Arranzio born … 1966 and their servants and agents each are restrained from removing or attempting to remove or causing or permitting the removal of the child B (a male), born … 2009 from the Commonwealth of Australia before 30 September 2016.
(28)	It is requested that the Australian Federal Police give effect to the preceding order by maintaining the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 30 September 2016. 
(29)	Upon expiration of the period referred to in Clause (27) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police cause the removal of the child’s name from the Watchlist.  
(30)	Either parent is permitted to remove the child from the Commonwealth of Australia for the purpose of holiday travel after 30 September 2016.
(31)	In the event that any parent wishes to remove the child from the Commonwealth of Australia pursuant to Clause (30), that parent shall provide the other with no less than sixty (60) days notice of the intention to travel overseas and shall provide details of the proposed departure and arrival dates, destination and contact details whilst overseas.
(32)	No less than thirty (30) days before date of departure from the Commonwealth of Australia, the travelling parent shall provide to the other 
(a)	a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(b)	a copy of an itinerary which contains sufficient contact details to enable telephone communication between the non-travelling parent and the child to occur in the manner provided for in this Order. 
(33)	Until 28 May 2017, each parent is permitted to remove the child from the Commonwealth of Australia for holiday purposes on the proviso that the period of time during which he is outside the Commonwealth of Australia is no longer than 10 consecutive days and occurs during school holiday periods. 
(34)	After 28 May 2017, each parent is permitted to remove the child from the Commonwealth of Australia for holiday purposes on the proviso that the period of time during which he is outside the Commonwealth of Australia is no longer than 21 consecutive days and occurs during school holiday periods. 
(35)	Both parties will engage a therapist, a counsellor or psychologist (the person) nominated by the Independent Children’s Lawyer for the purpose of assisting the child to progress in the time with the father and, for this purpose, the parties will:
(a)	follow reasonable directions provided by the person as to the frequency at which the child should attend upon the person; and
(b)	ensure that the child continues to attend as reasonably directed by the person from time to time; and
(c)	be equally responsible for the costs associated with the child’s attendance upon the person; and
(d)	attend at all such reasonable times as the person may request with the attending party to be solely responsible for the costs of their own attendance upon the person. 
(36)	The Independent Children’s Lawyer and parties have leave to provide the following documents to the person upon whom the child attends pursuant to Clause (35) of this Order:
(a)	the Family Reports prepared by Ms D dated 25 August 2011, 13 July 2012, 1 May 2013, and 22 April 2014; and
(b)	a copy of this Order and the Reasons for Judgment delivered 17 July 2015.
(37)	The father has liberty to obtain a passport for the child and, to the extent necessary, the mother is to sign and return any document required for this purpose within seven (7) days of receiving a request to do so.
(38)	In the event that the mother fails to comply with a request to sign and return any document necessary to obtain a passport for the child, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the mother and to do all acts and things necessary to enable a passport to be obtained for the child.
(39)	The father shall be entitled to possession of the child’s passport. 
(40)	Upon the mother’s request, the father shall provide the child’s passport to the mother no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia. 
(41)	In the event the mother removes the child from the Commonwealth of Australia for the purpose of holiday travel, she shall return the passport to the father within seven (7) days of the child’s return to the Commonwealth of Australia. 
(42)	Upon compliance with the terms of Clauses (35) and (36) of this Order, the Independent Children’s Lawyer is discharged.
IT IS FURTHER ORDERED THAT
(43)	Pursuant to s 65DA(2) and s 62B of the Family Law Act (1975), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
AND IT IS FURTHER ORDERED THAT 
(44)	All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
(45)	After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and any exhibit shall be returned to the party by whom that exhibit was tendered.

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

FILE NUMBER: LEC 437 of 2010

Mr Arranzio 	
Applicant

And

Ms Moss 	
Respondent

And 

Independent Children’s Lawyer

REASONS FOR JUDGMENT
1.	I commence these Reasons with a sincere apology to the parties for the delay in finalising this matter. I assure them that I have had particular regard to the extensive contemporaneous notes taken by me during the hearing. I have, of course, revisited and reread these notes, the affidavit material, the exhibits, the various reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to the transcript of the proceedings. 
2.	These proceedings concern the child B. He is now six years of age, having been born in 2009 to an Italian born father and an Australian born mother. He and his mother live with his maternal grandparents, as they have done for all of his life. 
3.	His parents were in a relationship:
a)	according to the mother:  between May and June 2008 and between September 2008 and April 2009; or
b)	according to the father: from May 2008 until an unspecified time and from September 2008 until about April 2009 and from about December 2009 until March 2010.
4.	A resolution of this issue is unnecessary in the determination of those parenting orders which are now in the child’s best interests.
5.	The parties’ disagreements touch upon many aspects of the child’s life: for example, they disagree about whether he should be immunised or not; they disagree about what food he should eat; they disagree about whether he should be the subject of further testing for alleged allergies to food; they disagree about whether he should be baptised. These disagreements arise from their fundamental differences and approaches to parenting and their views about these issues. 
6.	There can be no conclusion other than that both parents are, in their own ways, devoted to the child. In so far as the father is concerned, an obvious demonstration of this devotion can be seen from his decision to move from Sydney to live at C Town in about May 2011. I accept this was so he could spend time with the child and be involved in his life.  That both parents live in the same town means that there are no practical difficulties and/or expenses associated with the child’s time with either of them which affects his right to maintain personal relations and direct contact with each of them on a regular basis.
7.	I accept Ms D’s assessment of the mother, after her first interview in August 2011, as a parent who is utterly dedicated to the child’s needs to the point of self-sacrifice. She has approached his parenting by implementing techniques and theories described by Ms D as attachment parenting: she and the child have consistently co-slept, he was breast fed on demand until he was about 4 years of age and did not attend kindergarten or any other form of outside the home care until then.
8.	A fuller appreciation of her approach to being one of the child’s parents can be garnered by looking at an extract of her email to the father on 10 December 2010. Whilst authored when the child was only 19 months of age, it provides a window into her attitude to the father, his parenting capacity and his wish to be fully involved in the child’s parenting. It contains:
a)	stipulations about the food to be fed to the child and assertions about allergies;
b)	the following list:
IMPORTANT EVERYDAY ISSUES
•	Keep his water with him always and offer it to him regularly every 20mins at the longest
•	He has day sleeps any time between 10am-2pm please let him sleep when he wants and needs to and as there was no cot at [Ms E’s], make sure wherever you put him it is clean and that he cant fall..check mattresses arent mouldy, usually they are if theres no ventilation underneath the mattress
•	make sure the room is well ventillated with fresh air when hes napping
•	Change his nappy every 2 hrs or before if really wet and straight away after hes done a poo. wash your hands before and after
•	Nappies I use for him at the moment are ‘Huggies’ brand Toddler 10-15kg
•	B weighs 10kg
•	most cakes, biscuits and some pastas and other foods contain eggs/egg products so please avoid the ones that do due to allergy
•	allergic to NEUROFEN (asprin based) and possibly penicillin but you cant give these anyway without my consent
•	never leave him alone
•	never take your eyes off him ever
•	please buy a barrier for the stairs!!!!!!!!!!!!
•	he still puts things in his mouth so make sure he only has access to larger toys/objects that cant fit into his mouth
•	Check any toys and musical books that contain batteries and smaller batteries (eg like from a watch) that they cant be dislodged from the toy and swallowed..theres a number of cases where brain damage occurs.
•	[B] loves to socialise, i take him to playgroup 1-2 times a week, i think it would be really good for both of you to go to a playgroup together;
•	dont hit him or yell at him..be gentle and loving always;
•	bring him back home at anytime before 3:30 if you want to!!!!! just call me first. I feel that 6hrs is far too long for [the child], i dont think or feel he could handle that being so young..if hes miserable and destraught i hope you can find it in yourself to recognise he probably just wants to come home to mum. Mr Arranzio i just want him safe and happy. Please do whatever it takes to make this happen.
•	when hes in the pram don’t let go of the handlebar, dont rely on the brake and keep firm grip of the handlebar around roads, hills, trainstations and especially rivers, dams and any body of water also dont let go of his hand around any of these environments.
•	if you take him to WET SIDE water park, take him to the toddler area and mostly you have to hold his hand as the other kids run around and knock the litter ones over and there are metal and cement objects all over the area
•	please be hygienic please
•	never ever ever leave him in the bath alone or with other kids, only bathe him if you ar there present 100% and watch him as our friends 1yr old fell in the bath and knocked some of her teeth out!!
•	carry him up and down stairs
•	at the beach keep him away from the rocks and boulders..and i often find broken glass there so watch where he walks.
•	dont let him get near dogs!!! puppies are ok but no dogs even if you think you know them, far too unpredictable
WHEN YOUR TOGETHER CALL ME ANY TIME AT HOME OR MOBILE PH IF YOU NEED ANYTHING OR ANY HELP ETC 
and when your not together call my mobile if you need any info re the child 
KEEP HIM SAFE.
(errors and omissions in original)
9.	Further evidence of the mother’s approach to the father’s parenting of the child can be garnered from the parties’ respective descriptions of an incident in January 2013. During the child’s time with his father, the parties’ local area flooded. As a consequence, the Contact Centre used for changeover was closed. The father tried to tell the mother this but she did not answer his calls. He sent her a text message telling her he would keep the child for the day because it was not safe to be on the roads. Despite this, the mother attended at his house in a ute with an unidentified and unknown man and removed the child from him. 
10.	The mother’s account to Ms D is that she was concerned the Contact Centre was closed and went to the father’s house to see the extent of the flooding. She said no roads were closed but, when she saw the extent of the flooding, she felt she had to get the child as she was concerned about the risk to him if he remained in the flooded area because she was not sure how fast the water was rising
11.	She said that, while the floodwaters were not at a “dangerous” level to drive through, her car could not have safely traversed them. Consequently, she stopped a stranger with a larger vehicle and persuaded him to drive back through the floodwaters to the father’s house so she could remove the child. She said she did this because she felt the child was at more risk being at the father’s house than travelling through floodwaters. I do not accept this to be the case.
12.	I record my significant concern that the mother was willing to remove the child from the safety of his father’s home and care to travel with him in circumstances where her own appreciation of the extent of the flood was that her car could not safely traverse the waters. I consider it more likely than not that her perceptions of the risk the child faced whilst in his father’s care – perceptions which I consider to be out of all proportion and unfounded – blinded her to the very real potential risk he faced when travelling with her in a stranger’s car through a flooded area.
13.	Given their diametrically opposed parenting views and their respective opposition to yielding to the views of the other (although the father seemed to me to have attempted to meet the mother’s suggestions, requirements and demands initially), the real difficulty in this case lies in determining the parenting regime which best meets the child’s needs on both a short and long term basis, taking into account the reality of the circumstances in which he finds himself as a result of being born to two people with these characteristics. 
An overview of the child’s time with his father
14.	When the child was about 16 months of age, his father sought orders that his parents have equal shared parental responsibility for major long term issues relating to him and that he live with each of his parents on a week about basis. The next month, orders were made by consent that the child live with his mother and spend supervised time with his father for a period of up to two hours per day on up to three days per week at a local Contact Centre. the child’s time with his father was to start as soon as the Centre could facilitate it.
15.	In December 2010, further orders were made. These provided that the child’s parents have equal shared parental responsibility for him. His time with his father was to occur in C Town from 9.30 am to 3.30 pm on any three days in a fortnight. No more than two of these days could be consecutive. The father had to give the mother seven days’ notice in writing of the nominated days. On 6 June 2011, it was ordered that the child spend time with his father every Friday and Saturday from 9.30 am to 3.30 pm. The local Contact Centre was to be used for changeovers.
16.	In August 2011, Ms D recommended that the child live with his mother and, for six months, spend time with his father from 9:30 am to 5:30 pm Friday and from 9:30 am Saturday until 9:30 am Sunday. She recommended that after this, his time with the father occur between 9:30 am Friday and 9:30 am Sunday each week.
17.	On 13 September 2011, it was ordered that the child spend time with his father every Friday from 9.30 am to 4.30 pm and every weekend from 9.30 am Saturday until 9.30 am Sunday. 
18.	In February 2012, a further order was made. It provided that, commencing on 29 May 2012 (when the child turned 3), his time with his father occur from 9.00 am on the first morning to 9.00 am on the third consecutive morning every week. If the parties could not agree specific days, the child was to spend time with his father from 9.00 am Friday until 9.00 am Sunday in each week. Changeover was to continue via the local Contact Centre. 
19.	In the period from 3 September 2012 until 2 November 2012, the child spent time with his father from 9.00 am Thursday until 9.00 am Sunday (extending to 5.00 pm on Sunday 23 September 2012) and from 9.00 am to 5.00 pm on each of Monday 17, Tuesday 18 and Wednesday 19 September 2012. During the week from Sunday 16 September 2012 to Sunday 23 September 2012 the father was permitted to spend time with the child on the Sunshine Coast (or other such location as agreed between the parties). This change to the terms of the February 2012 Order occurred to facilitate the child’s time with his elderly paternal grandparents, who had travelled from Italy to Australia.
20.	Unfortunately for the child, an order was necessary to ensure he had this opportunity to spend additional time with his paternal grandparents while they were in Australia. That this was so is a further demonstration of the difficulties these parents have experienced in reaching agreement about the time the child should spend with each of them.
21.	Save for the occasions leading up to the most recent Family Report interviews in late March 2014, the child has generally spent time with his father in accordance with the terms of the February 2012 Order. 
The proposals
22.	The father initially propose the child live primarily with him and spend time with his mother from after school Thursday to before school Monday each fortnight and for half of the school holiday periods. During the Christmas school holiday period, this time is to occur in no more than fortnightly blocks. He also proposed that he have sole parental responsibility for the child and that the mother have the opportunity to provide her opinion about any decision to be made. 
23.	If his primary proposal is not adopted, he accepts that the mother should have sole parental responsibility for the child and seeks to spend time with him in the same way as his primary proposal provides for the mother. 
24.	Irrespective of the orders which provide for the time the child spends with each of his parents, the father also wants to be able to take him overseas for holidays:
a)	in the period from January 2015 until May 2017: for two weeks in each calendar year; and
b)	from May 2017: for a period not longer than four consecutive weeks during school holidays or at such other time, provided the child does not miss more than 10 school days as a result.
25.	He propose the child’s name is removed from the airport watchlist. The mother opposed this. 
26.	The father also seeks to restrain each party from relocating the child’s residence more than 50 km from the C Town centre without the other’s written consent. This order is sought, I suspect, out of a legitimate concern that the mother may relocate with the child to some other town or city. This possibility has certainly been adverted to at some stage.
27.	The mother proposes the child continue to live primarily with her and that she have sole parental responsibility for him. She advances that his time with his father be conditional upon:
a)	him (B) being assessed by a child counsellor “to assess the extent, and the cause, of distress that he suffers in relation to spending time with the father”; and
b)	the father undertaking any assessment or treatment recommended by that child counsellor. 
28.	She also proposes that the child’s time with his father revert to supervised time (albeit for two hours per day on a number of days each week) at the local Contact Centre until this assessment and treatment process takes place. She says that once this assessment and treatment process is complete – presumably, to her satisfaction – the child should spend time with his father each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday. His holiday time with his father should not commence until next year, when he is seven years of age, and should then only be for two consecutive nights in each week. 
29.	A perusal of some of the specific orders and injunctive relief sought by the mother provides a further clear insight into her parenting of the child and her view of and attitude toward the father’s parenting of him. By way of example only, she proposes that:
a)	if, when the child is in his care, the father travels more than 300 km from her residence, the child is to be returned to her care – in essence, a prohibition on the father taking the child more than 300 kms from her home;  and
b)	the father be restrained from allowing the child to undergo any surgery without her written authorisation and her physical presence during the surgery (with her passport), unless such surgery is deemed urgent by the medical practitioner performing the surgery and that the child remain in her sole care for the later of three weeks, or any medically recommended period of convalescence, following any such surgery; and
c)	neither parent or agent administer any medication to the child’s penis, or permit any other procedure involving retracting his foreskin or interfering otherwise with his penis, except where advised and performed by his treating doctor or a doctor to whom he is referred by his treating doctor, without the written authorisation of both parents and without the mother physically present with her passport identification;
d)	the child not be administered any medication unless such medication is prescribed by his treating doctor and she has given her consent to the prescribing practitioner to give the prescription; and
e)	the child remain in her care if he suffers from a “serious infection” as confirmed by his treating doctor; and
f)	she be permitted to enrol the child in a hospital based food elimination trial during which time his time with his father occur only at a Contact Centre;
g)	the child’s time with his father be conditional upon the father not physically disciplining him. 
30.	The Independent Children’s Lawyer proposes that the child live with the father and spend time with his mother for five nights per fortnight (from after school Friday until before school Monday in the first week and from after school Wednesday to Friday in the second week). She supports the father’s position that he have sole parental responsibility for the child. She also advances that it is in the child’s best interests to attend on a child psychologist recommended by his treating doctor to assist him in dealing with any separation anxiety which may arise from the implementation of a decision that he live primarily with his father.
31.	There is no doubt that orders in the terms proposed by either the father or the Independent Children’s Lawyer would involve significant change for the child. His time with this mother – the parent who has been his primary carer since birth – would be reduced from ten nights per fortnight to either four or five nights per fortnight and to half of the school holiday periods. 
32.	The significance of this impact was openly acknowledged by Counsel for the father. She nevertheless submitted that if the child remained in his mother’s primary care, he would be at an unacceptable risk of physical, psychological and emotional harm arising from what she submitted had been and would likely remain in the future:
a)	constant unnecessary medical testing and treatments; and
b)	non-vaccination; and 
c)	exposure to the mother’s negative, unsupportive and undermining approach to the facilitation and encouragement of a relationship between the child and his father.
33.	These submissions fall to be considered in circumstances where, on the father’s proposal, the child will continue to spend substantial and significant time with his mother.
principles 
34.	In these proceedings, being proceedings for a parenting order in relation to the child, I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Act, make such parenting order as I think proper. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.
Is there a benefit to the child of a meaningful relationship with both parents?
35.	The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.
36.	In McCall & Clark, the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach.  That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that that child has a meaningful relationship with both of that child’s parents.  Thus, the Court must consider and determine whether there is a benefit to the child in having a meaningful relationship with each of his parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with his parents. If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect him from physical or psychological harm. 
37.	The mother submitted that there was no proper evidence of a loving relationship between the child and the father. She relied on the child’s assertions to Ms D in March 2014 that he would not miss his father as “hardly evidence of a loving relationship”. I am not persuaded by the child’s comments to Ms D on that occasion that he does not have a loving relationship with his father or that this relationship is not beneficial for him. Further, I consider the mother’s submission to stand in stark contrast to the child’s numerous positive interactions with his father and Ms D’s reports of her observation of the child’s delight and comfort in his interactions with him during all of her interviews but the most recent.
38.	When analysed, the mother’s evidence really amounts to the contention that, such are the father’s failings as a parent, the child does not obtain any benefit from spending time with him. Whilst she at one point said that her wish was for the child to have a loving relationship with his father and that this was all she had ever wanted, she also said she did not have any confidence in the father’s capacity to engage appropriately (as she determines that term should be interpreted) with the child.
39.	Such a view ignores the unambiguous and consistent observations of the interactions between the child and his father in the time prior to about February/March 2014. However, its expression by the mother provides a clear insight into the reality of her purported support for the child’s ongoing relationship with his father. The rigidity, totality and emphatic nature of her opinion that there is nothing the child can gain from the opportunity to spend time with his father provides a clear basis for the father’s concern that, if the child continues to live primarily with her, the likelihood of him receiving true support for an ongoing relationship with him (his father) is slight indeed.
40.	Despite the fact that, in the months leading up to the Family Report interviews in March 2014, the child verbalised an unwillingness, on occasions, to leave the Contact Centre with his father at the start of their time together, he did not actually continue to refuse to see him - a point emphasised by Ms D.
41.	His refusals and recorded comments and behaviours must also be seen in the context of earlier observations of his interactions with his father, as discussed elsewhere.
42.	The benefits for the child of the opportunity of a meaningful relationship with his father include exposure to a way of interacting with the world that is significantly different to that to which he is exposed when in his mother’s care and the opportunity to explore fully his Italian heritage and all that is associated with it. I am confident in concluding that the child will benefit from the opportunity to have a meaningful relationship with his father.
43.	The father’s proposal that the child spend substantial and significant time with his mother must, logically, reflect (in part at least) his opinion that the opportunity to continue to spend significant time with her will be beneficial for the child. 
Is the child at an unacceptable risk of harm in the care of either parent?
44.	The mother does not directly assert that the child is at an unacceptable risk of physical harm in his father’s care provided that the father’s parenting of him occur under the strictures which would be imposed if orders are made completely in terms she proposes. 
45.	However, it is implicit that in seeking such prescriptive orders, she considers the father likely to make decisions (including having the child vaccinated and feeding him certain foods) during his parenting of the child which would expose the child to a level of risk she considers unacceptable. 
46.	Whilst there is evidence from the Contact Centre of what supervisors have viewed as anger management issues for the father, the weight to be accorded to such opinions from persons who were not witnesses in the proceedings can only be limited. Additionally, a consideration of the contents of the Centre records should properly take into account: 
a)	the many occasions on which the father’s behaviour at changeovers was unremarkable; and
b)	his understandable frustration at the limitations imposed on him by the Centre: that is, on occasions he was not afforded the opportunity to interact with the child to see if he could settle him but was simply told the child was refusing to see him and the attempted transition would be recorded as a “refusal”. 
47.	Given Ms D’s assessment of his capacity to settle the child when he was distressed, it is, I think understandable that the father felt unfairly restricted in his desire to attend to and comfort the child when he exhibited distress at these times.
48.	I have concluded that there have been occasions on which the father has deliberately flouted some of the practices imposed by the Contact Centre as part of its provision of services. For example, on a number of occasions – like 20 May 2014 and 27 May 2014 – the father did not return the child the required 10 minutes before the changeover time but, rather, delivered him at the exact time. I accept he tried to engage with the child’s mother in front of the Contact Centre on occasion and that, despite it being explained that the staggered changeover process was designed to eliminate the prospect of parental conflict in front of the child, he failed to return him 10 minutes early as required. These seem clear examples of the father’s determination not to be told what to do in relation to his parenting of the child. They do not, however, amount to behaviours which persuade of a conclusion that unsupervised time with the father would put the child at risk of suffering harm. 
Health/hygiene issues
49.	In 2013, the mother told Ms D she had concerns about the father’s hygiene practices. She linked these to him having been diagnosed with Hepatitis C. I accept that the father has sought out treatment for this condition. Evidence tendered in his case suggests the virus is no longer present in his system. There is nothing in the evidence to suggest that he will not continue to manage his health appropriately. 
50.	In an affidavit filed in November 2010, the mother said she had seen  or had been told that the father:
a)	cleaned his own faeces from a pair of jeans that he was wearing using a dish cloth and retuned the cloth to the sink; and
b)	cleaned a dinner bowl by flushing the toilet and letting the toilet water rinse a bowl; and
c)	smoked, drank coffee, talked on the phone and “pick[ed] at himself” all at the same time; picked at his arms and put his fingers in his mouth; compulsively picked at sores on his body; and
d)	did not wash his hands after using the toilet or before handling food; and 
e)	urinated in the shower cubicle. 
51.	Noting that the mother’s cross-examination of the father did not include specific reference to these alleged behaviours, I am not persuaded that it is likely the father would deliberately expose the child - his only child – to any risk of infection. Whilst he clearly may have smoked a cigarette whilst he drank coffee and may even have engaged in behaviours the mother evocatively describes as “picking sores”, there is nothing in the evidence other than these bald assertions to persuade me that it is more likely than not that the father would consciously and deliberately engage in behaviours likely to expose the child to any risk of harm.
Alcohol consumption and smoking
52.	The mother proposes that the child’s time with his father be conditional upon the father not consuming alcohol or smoking. The father is agreeable to an order restraining the parties from ‘exposing’ the child to cigarette smoke. He is agreeable to an order which prohibits excessive alcohol consumption whilst the child is in his care. He objects to any order which imposes a complete prohibition on his consumption of alcohol when the child is in his care.
53.	The mother says that, during the time in late 2009 and early 2010 when the father was intermittently staying with her and her parents, he would become heavily intoxicated. This, she said, made her increasingly concerned. She did not detail any particular behaviour which occurred as a result of this alleged intoxication.   
54.	The mother points to notes from the F Clinic, at which the father attended treatment for his Hepatitis C, which indicated he was then drinking three to four schooners per day. The father accepts that, prior to this treatment, he was drinking (“but always in a safe way”). I accept his evidence to the effect that, since then, he has become more conscious of the risks to his health associated with drinking to excess and now only drinks a glass of wine with dinner, including when the child is in his care. 
55.	The mother also said the father has three drink driving offences that she is aware of and has had his driver’s licence disqualified multiple times due to this. There are no documents before me from any relevant authority to substantiate these assertions. I accept the father’s evidence about his most recent interaction with the police and that this was not related to drink driving. In any event, whatever the father’s past issues involving alcohol and the use of motor vehicles, I am confident that he will not transport the child in a motor vehicle at any time if he is not lawfully able to drive the same.
56.	I am not persuaded that the father’s consumption of alcohol to an extent that would not prevent him from lawfully operating a motor vehicle is something which would place the child at an unacceptable risk of harm.   
Discipline 
57.	The mother claims the father uses physical discipline to manage the child’s behaviour. 
58.	I accept that on 20 April 2014, the child told his mother that his father had smacked him on his bottom because he (the child) had accidentally jumped on his (the father’s) stomach. The mother said that, when she asked the child on or about 7 May 2014 why he did not want to go to his father’s, he said that his father was mean to him and smacks him. 
59.	I accept the father’s account of what occurred on the occasion he smacked the child on his bottom: namely that, after the child jumped on his stomach and testicles during their time at the beach together, he gave the child a very light tap on the bottom and reprimanded him for doing so. I accept his evidence that the child was not physically hurt by his actions. I accept his evidence that the child did not cry at the time. I accept his rejection of the mother’s suggestion that he has otherwise used physical discipline toward the child.
60.	I also accept that this is the only occasion on which the father has ever physically disciplined the child. I also accept that he has otherwise used the ‘time out’ technique to discipline the child if needed. 
Text to the mother
61.	In October 2013, during a disagreement about the appropriate treatment for an infection to the child’s penis, the father sent the mother a text message in which he told her to stop kissing the child’s doodle. Given he told Ms D he sent this out of frustration and not because he was concerned the mother was sexually abusing the child, there is no evidence to suggest that the mother has behaved toward the child in the manner suggested in the text. That the father sent this text – even out of what he described as frustration – does him no credit at all and demonstrates the depths to which the relationship between the child’s parents has, on occasion, fallen. 
Conclusions about unacceptable risk 
62.	I am confident in concluding that the father does not present a danger to the child. I have no hesitation in concluding that the child is not at an unacceptable risk of harm when with his father. I also have no hesitation in concluding that the father is devoted to the child’s care and attentive in his parenting of him. 
Additional considerations
63.	Part of the mother’s case that the orders sought by her are in the child’s best interests rests upon his distress and comments at changeovers in the lead up to the March 2014 Family Report interview, his comments and behaviours during this interview and his comments and behaviours at changeovers after the interview. In order to assess the child’s observed distress and his comments properly, it is important to have a clear appreciation of his previous observed interactions with his father.
The child’s attachments, relationship and interactions with his parents
64.	Ms D has seen the child’s interaction with each of his parents on 3 August 2011, 2 July 2012, 8 April 2013 and 25 March 2014.
65.	In 2011, the child was just over two years of age. He appeared happy, even tempered and “remarkably calm” throughout the sessions conducted by Ms D. When he saw his father, he jumped slightly with excitement, gave a big smile and said “Papa”. He sought out interaction with the father. He showed no anxiety about being left in the father’s sole care and appeared very pleased to be with him. I accept Ms D’s opinion that her observations of the father’s interaction with the child suggested a mutually warm and loving relationship then existed. I also accept her conclusion that, whilst the mother was the child’s primary attachment, he was “very welcoming” of a relationship with his father. She considered the foundation of a bond between them was present. She assessed the child as “evidently enjoying his father’s company, and appeared to feel safe and trust his father.” She also noted he demonstrated no anxiety in being separated from his mother. Ms D considered the child was in a phase of consolidating attachments; he was understandably more confident and self – assured in his mother’s presence.
66.	During her 2012 interview, Ms D saw the child demonstrate a degree of clinginess with his mother – he became anxious and clingy, buried himself in his mother’s chest, started crying and said several times with genuine distress: “I don’t want daddy to take me away”.  However, despite these comments and observed distress whilst in his mother’s care, the child immediately ran to his father when he saw him, jumped in his lap and cuddled him.  He was still crying and distressed and repeating he did not “want to go”. When Ms D told his father what had happened before the child came into his care, the father responded appropriately by consoling him and reassuring him that he (the father) was not taking him anywhere. 
67.	The child then settled very quickly – in fact, after about 30 seconds of distress, he settled cheerfully in his father’s company. He stayed in his father’s lap for the duration of the session. Ms D concluded the child felt comfortable being with his father and enjoyed his company.  
68.	Towards the end of the session, the child appeared to remember his mother’s presence outside the consultation room. He became teary, insisted on seeing her, ran to see her and was clingy with her. 
69.	Ms D considered the child was in the process of growing his developing bond with his father. Further, whilst there was an evident bond between them and very clear signs of a warm and loving relationship, she thought the “foundational trust” between them needed time to develop further. Given the child’s exposure to what Ms D regarded as attachment parenting in the mother’s house and the father’s absence from that residence, this was to be expected. She concluded that the father presented as strongly capable of managing the child’s emotions: he was “enormously comforting” with him, and “capably integrated activity, attention, conversation and affection” to soothe the child and redirect him gently from his initial state of distress.
70.	Ms D also concluded that the child’s demeanour demonstrated his readiness for an increase in overnight time with his father. She thought that, while there might be some high emotion at changeover, the father’s capacity to readily pacify the child meant this was unlikely to have any damaging, long-term effects and was likely to be only short lived. 
71.	In April 2013, the child ran down the hall to his father, smiling and excited to see him. He asked “Is dad taking me?” He was calm and turned to his mother and waved. Although he asked where his mother was going, he did not exhibit distress. 
72.	B was observed to be very comfortable and relaxed with his father: he immediately started playing and was responsive to the father’s initiated affection. Again, Ms D considered the father skilful in managing the child. the child appeared respectful of his authority. Although the child asked where his mother was about ten minutes into the observation, he was not distressed but merely inquisitive. When the father responded “are you okay with papa?”, he smiled and agreed. 
73.	Ms D concluded the child presented as a socially confident child, who was not clingy, trusted his father and was relaxed and happy in his company. 
74.	When the mother attempted to correct the child’s behaviour during their session together, he threw a tantrum, hid underneath the chair and then smacked her in the face. She remained quiet and did not say anything about his outburst. Within five minutes, the child apologised for hitting her - she accepted his apology and they continued to play. When the child hit his head on the desk he loudly cursed: “fuck”. The mother told him he could not say that word. 
75.	When, later, the child had another tantrum and ran down the corridor, the mother gave chase, bringing him back to the room. She ignored his behaviour. She did not impose any discipline. the child escaped from the room several more times, yelling down the hall and refusing to return: he became verbally aggressive and “grizzled’ loudly. The mother permitted him to do whatever he wanted: she explained to Ms D that her parenting approach was not to “force” the child to do anything but, rather, afford him opportunities to make his own decisions. 
76.	In her 2013 report, Ms D expressed concerns about the mother’s lack of discipline of the child. She considered that, from a long-term perspective, a lack of discipline and failure to impose boundaries would be likely to cause difficulties for him. She thought the stark differences between the child’s behaviour during observations with his mother and father demonstrated “seeds of problems occurring in the child’s behaviour”. If these behaviours continued, Ms D considered the child likely to experience social problems which would affect his education, peer integration and, potentially, limit his long-term opportunities.
77.	In 2013, the vast majority of changeovers at the Contact Centre occurred without issue. Whilst when the child was unwell on one occasion he was unwilling to go to his father, Ms D thought this a typical reaction for a sick child: namely, to seek out his primary attachment for comfort. 
78.	The mother details numerous occasions on which the child has allegedly refused to spend time with his father, intensifying from late November 2013 until the trial. During these refusals, the child is alleged to have:
a)	told the father directly that he did not want to go with him; and
b)	begged the mother to stay with her; and
c)	asked to go home and cried; and
d)	asked why no one was listening to him; and 
e)	physically run away. 
79.	The notes from the Contact Centre establish the following occurred in the lead up to Ms D’s 25 March 2014 interview:
a)	on 12 January 2013 (which I assume – given its place in Exhibit 2 – is intended to read “2014”) during changeover, the child returned from his father’s care showing signs of distress and anger; he did not talk to his father and did not want to say goodbye when it was time for him to leave. He appeared anxious to return to his mother;
b)	on 14 February 2014, the child was hesitant to go into his father’s care. When reassured, he did go into his father’s care but cried and asked staff if he could remain at the Centre with his father;
c)	on 14 March 2014 (11 days before the interview with Ms D), the child refused to spend time with his father. Despite encouragement and the use of different strategies to facilitate changeover, he hid under a chair and cried. After twenty minutes, he remained inconsolable and continued to refuse to go to his father. At this point, the father demanded the Centre telephone the mother and make other arrangements;
d)	on 15 March 2014, the child transitioned quickly into his father’s care: other children were also moving between parents. That he did suggests a capacity to do so as long as the process is not protracted or focused too much on him. He became upset when he told his father he did not want to stay the night; 
e)	on 21 March 2014 (four days before the interview with Ms D), the Centre recorded a “child refusal”. the child screamed and cried and became very distraught. He repeated “no, no I am not going to [Mr Arranzio’s]; he does not listen to me”. The notes record their author’s conclusion that the father “displayed aggressive mannerisms towards staff”, who had to discourage him from denigrating the mother.
80.	Ms D interviewed the parties and, for the first time, the child, on 25 March 2014. He was not yet five years of age.  
81.	I accept Ms D’s evidence, as contained in her April 2014 report, about the manner in which her interview with the child progressed, the comments he made to her and the manner in which they were made. It follows that I accept that, in March 2014, the child told Ms D that:
a)	sometimes every day he wanted to cry because he spent lots of nights with “[Mr Arranzio]”; and
b)	staying with “[Mr Arranzio]” was “not good”; and
c)	it felt like he was with “daddy” lots of days and it was really bad and he wanted to be with his mother forever; and
d)	he hates going to spend time at “[Mr Arranzio’s]”; and
e)	there was nothing he liked about going to spend time at the father’s place; and
f)	it was boring to go to “[Mr Arranzio’s]” house; and
g)	there was “nothing, not one thing” that he liked at his father’s house; and
h)	when he is at his father’s, it feels like he will never go back to his mother’s; and
i)	he wanted to know what he could do to stop going to “[Mr Arranzio’s]”; and
j)	he was scared that someone was going to take him away; and
k)	he would be “so, so sad” if he had to stay at his father’s house; and
l)	he did not want to see his father and would not miss him – “only mummy”; and
m)	“no one listens to me”.
82.	These comments are consistent with his refusal to spend time with his father in the two weeks preceding the interview. His resistance to time in the lead up to interview is, on the father’s case, a reflection of the mother’s deliberate undermining of the relationship between father and son. 
83.	B’s presentation to Ms D was inconsistent with the father’s reported observations – which I accept - of the child on the previous day at kindergarten where he was said to be smiling and happy to see him (the father). It is also, I think, inconsistent with the fact that the child and his father communicated regularly via Skype during his father’s time in Italy in about February/March 2014.
84.	The father said this Skype communication went well and the child demonstrated no concerns about talking to him. Whilst the mother disputed this and indicated she had to “exert significant effort” to have the child Skype with his father after the first couple of occasions, even her evidence establishes that, with her support and influence, the child did in fact communicate with his father.
85.	I accept Ms D’s evidence to the effect that, in sitting across the table from his father during their session together, the child’s presentation was notably different from Ms D’s previous observations – when he had embraced his father and/or sought out physical contact. Whilst the child pulled away from the father’s attempts to kiss him, he sat contentedly on his father’s lap. I accept Ms D’s assessment that the child appeared to enjoy the affection bestowed on him by his father and leaned into him. I also accept that when, toward the end of the session, the child asked where his mother was, he did not appear bothered when told she was not far away and he would see her shortly. 
86.	I accept Ms D’s conclusion that, in so far as she observed greater emotional distance between the child and his father and his intermittent rejection of his father’s affection, there had been a noticeable shift in the dynamic between them during this joint session when compared to her three previous opportunities to observe them together.
87.	I accept Ms D’s evidence to the effect that the child’s presentation was “most unusual” for a child of his age.  I accept her evidence that, despite expressing views to the contrary, the child welcomed contact with his father during her observations. I accept Ms D’s assessment that the child did not demonstrate an unambivalent rejection of his father. I also accept her assessment of the child’s expressed reasons for not wanting to spend time with his father – namely, being bored and not having a friend around - as “trivial”. Additionally, I accept that the child’s statement he missed his mother needed to be weighed with the fact that he had not apparently displayed separation anxiety at kindergarten. 
88.	I accept Ms D’s evidence to the effect that, whilst observations of the child’s interaction with his father did not indicate a troubled relationship, it appeared he was pushing his father away and rejecting the affection his father had consistently provided to him. 
89.	Against the background of his earlier observed interactions with his father:
a)	the content of the child’s comments to Ms D; and
b)	his demeanour during his interaction with her; and
c)	the manner in which he conveyed those comments to her,
persuades me to conclude it is more likely than not that the child has been significantly influenced or encouraged (or, as the father would have it, “coached”) to tell Ms D the things she records. 
90.	If needed, further support for this conclusion is found in the child’s comment to his father during the most proximate visit to Ms D’s interview: he said “Papa I just want supervised visits with you”. Such comment is, obviously, a mirror of, and consistent with, the mother’s underlying view that the child needs to be protected from the consequences of what she considers his father’s parenting deficiencies. 
91.	Given the child’s age, the most compelling conclusion is that, at the very least, he has been exposed to his mother’s view about how his time with his father should occur. Given her clear focus upon the child and her attention to detail about every aspect of his parenting, I do not accept that such exposure is likely to have been inadvertent. Exposure to such a view – namely that supervision is necessary to protect him whilst in his father’s care – is more likely than not to undermine his confidence in his father as a person from whom he can expect support and protection in the future. It also serves to reinforce that his mother is the only parent capable of meeting his needs.
92.	Given Ms D’s observations of the father’s interaction with the child and her assessment of his parenting skills, I consider it highly unlikely that there is any experiential basis upon which the child relied to make the statements he did to Ms D. 
93.	Rather, I consider his comments are highly likely to reflect exposure to his mother’s views that time with his father is not good for him. I consider it more likely than not that, at the very least, the mother has deliberately refrained from reassuring the child when he expressed sentiments like it was boring at his father’s and that there was nothing he liked about his time there.
94.	I accept Ms D’s evidence that allowing the child to call his father “Mr Arranzio” could facilitate him distancing himself from his father. I further accept that it is very undermining of the relationship between the child and his father to allow this distinction in the manner by which he refers to each parent and that it is disrespectful to permit a child to refer to one of his or her parents using a name other than that selected by that parent. I do not accept the mother’s evidence to the effect that she has played no part in the child using ‘Mr Arranzio’ rather than ‘Pappa’ to refer to his father. Given her significant involvement with the child, I have no difficulty in concluding that if she wanted him to call his father only ‘Pappa’ she could so easily have ensured that this was the case.
95.	Given the child’s earlier observed positive interactions with his father, I consider it much more likely than not that his behaviour and comments to Ms D in March 2014 reveals that very little is truly being done by his mother to support him in his relationship with his father. 
96.	Whilst the child’s comments to Ms D may well have appeared to have been “genuinely felt”, his age (not yet five) and my conclusions about the highly likely significant influence of his mother mitigate against any such “views” being accorded weight in the overall determination of those parenting orders which are in his short and long-term best interests.
97.	The notes from the Contact Centre establish the following occurred after missing McDonald’s last interviews: 
a)	on 28 March 2014, the Centre recorded a “child refusal”. the child screamed and cried in a very distraught manner. Contact Centre staff refused to have input because they thought he was emotionally overloaded; 
b)	on 4 April 2014, during changeover, the child started screaming “I don’t want to go to Papas; I don’t want to go.” The mother was observed to attempt to encourage him by telling him he would have a nice time but he continued to say he did not want to go. Centre staff intervened and determined that this amounted to a “child refusal” – the mother was permitted to leave with the child; 
c)	on 11 April 2014 (about two and a half weeks after the Family Report interview), the child went into his father’s care after much observed encouragement from his mother. He asked Centre staff if he could just spend time with the father that day; he also asked if they could have the father promise to return him that day. When the child asked his father to only visit for the day and his father replied that he could come and sleep over, the child insisted his father promise that he would be returned that day. His father made that promise but later called the Centre and told them he would not return the child but, instead, would return him on Sunday in accordance with the terms of the operative Order; 
d)	on 10 May 2014 the child refused to go to his father: his mother was observed talking to him and, when staff attempted to talk to him and tell him that the father was waiting for him, he clung to her, wrapped his arms around her neck and his legs around her waist and said he did not want to go to his father and was not going. When Centre staff tried to encourage him to go to his father, he said he did not want to see him ‘now or anytime’, that he hated him, that his father smacked him on the bottom, did not listen to him, lied all the time and did not do what he (B,) asked him to do; 
e)	on 11 May 2014, the child’s grandmother took him to the Centre for changeover: when he was greeted by Centre staff, he immediately said “I just want to talk, I just want you to listen to me, I do not want to go with Papa”. Whilst his grandmother tried to encourage him to see his father,   his behaviours deteriorated into a tantrum: he screamed, flung his arms about, banged into a door and yelled in his grandmother’s face that he was ‘not going’.
98.	During her cross-examination, the mother accepted that, before these occasions in 2014, the child transitioned into his father’s care on a weekly basis via the Centre without significant issue on all but one occasion.
99.	I accept Ms D’s evidence that the child’s 2014 refusals at the Centre are starkly inconsistent with his previous presentations to her at interview. I accept that they are also inconsistent with his presentations at kindergarten. I further accept that his demonstrated level of distress is inconsistent with his reporting of why he did not want to spend time with his father.  
100.	Given the mother’s response to the child asking her during the 2013 interview with Ms D whether she liked the father, I am not confident that, whatever the mother’s observed verbal responses to the child, she was truly supportive and encouraging of him going to his father. Additionally, given the manner by which she managed his oppositional behaviour during Ms D’s 2014 observations, I think it unlikely that she would not have been able to prevent the child’s behaviour escalating as it did at the Centre on various occasions if she had truly wanted to ensure that he remained calm and/or that his complaints about his time with his father were assessed in a manner other than one which began with an underlying assumption that the child would be better off without any paternal interaction at all.
101.	Whilst it is, I suspect, highly likely that as the child has grown older he has become more aware of the significant differences in the parenting styles of each of his parents and their different approaches to dealing with issues relation to him, I do not accept the mother’s implicit contention that his refusal on occasion to spend time with his father is because, having become more aware, he has chosen her parenting style as the better or superior one. Even if this was the case, his age mitigates against according to him the responsibility for determining which of his parents’ parenting approaches best meets his best interests. I also do not accept her belief and/or contention that the child’s behaviour at the Centre when refusing on occasion to interact with his father has occurred because he has had “a gutful” (of time with his father). I have little difficulty, however, in concluding that she has had a ‘gutful’ of having to accept the father’s ongoing presence in the child’s life.
Parental capacity 
102.	I accept Ms D’s assessment of the father as very child focused and as having an understanding of the child’s emotional and physical needs. I accept her observations that he has demonstrated awareness of the child’s needs and reactivity to his mood. I accept that he has also demonstrated the capacity to stimulate the child intellectually, physically and emotionally. I accept Ms D’s assessment of the father as a parent who has demonstrated very strong skills in nurturing the child’s physical, emotional and intellectual development. 
103.	Whilst the mother may well feel that the father has failed adequately to address  those allergies and sensitivities she asserts the child experiences - and so has acted in a manner she thinks detrimental to his health - there is no credible expert evidence which persuades me that the child in fact suffers now from such asserted allergies and/or sensitivities. The mother’s belief that the father does not appropriately manage the child’s health is another reason for her belief, as asserted to Ms D, that less contact between the child and his father will be beneficial for the child because it will reduce his exposure to foods she believes cause him ill health.
104.	I do not accept that the father is in denial about any asserted symptoms of alleged allergies the mother believes the child to have because he has the ‘illusion’ that any form of food sensitivity or intolerance is a sign of weakness. After all, the mother herself did not assert to Dr G that the father had fed the child egg or egg products after they became aware of his initial allergy to it. 
105.	The mother further criticises the father’s parenting capacity and/or approach by asserting that he is “project[ing] on the child the food and the self-indulgent culture with which he is himself familiar and sees fitting for the son of an Italian man.”  To the extent that this may be true, I record that there can be no doubt whatsoever that, in a similar fashion, the mother is ‘projecting’ onto the child the food, culture and beliefs with which she is familiar and which she clearly believes are ‘fitting’ for him.
106.	I do not accept that the father has neglected the child’s health or that the evidence suggests he is likely in the future to act in a manner likely to hinder the child’s long term health and development. He clearly sought expert advice in relation to whether the child suffered from any allergies and he has continued to take expert advice about this issue via his engagement with Dr G. That the mother asserts that he has and would is, I consider, a reflection of the chasm between these parents’ respective approaches to health and medical issues and a demonstration of the lack of trust the mother has in the father.
107.	I accept Ms D’s 2011 description of the mother as a parent dedicated to and focused on responding to the child’s needs as he defined them and as a highly effective and child directed parent who focused on nurturing the child’s emotional and intellectual development in the manner she considered appropriate.
108.	After her 2013 observation, Ms D expressed the opinion that, if the child continued to live primarily with his mother, she would anticipate further behavioural problems as a consequence of lack of discipline. However, her 2014 observations resulted in Ms D outlining that she had seen the mother demonstrate calm and capable parenting.
109.	The father raised his concerns that the child may be negatively affected by exposure to what he described as the mother’s ‘insular’ lifestyle – by which he meant she had few friends, lived with her mother, did not have a driver’s licence and was not in paid employment. However, there is nothing to suggest that, even if what the father asserted was entirely accepted, any of these matters are likely to impact particularity negatively upon the child: they are, it seems me simply further reflections of the vast differences in the way in which each of his parents approaches life.
Each parents’ attitude to the child’s relationship with the other
110.	During her first interview with Ms D in August 2011, the mother mimicked the father’s accent in describing conversations between the parties. She outlined her view that he had “sociopathic traits”: she said he was a “compulsive liar and user who didn’t care about other people, had a parasitic and manipulative personality.” Such criticisms seem, to me, to strike at the very core of the father as a person.
111.	I accept Ms D’s evidence to the effect that, in her interview in 2011, the mother’s presentation suggested she had difficulty contemplating the child’s needs in a relationship with the father: rather, she considered she could comprehensively attend to all of his needs through her own role.
112.	I accept Ms D’s conclusion in August 2011, that the relationship dynamics which existed between the mother and the father skewed the mother’s perception of the child’s needs in relation to his father and his culture. I accept her conclusion that, when combined with the hostile relationship between the parents, the “attachment parenting” approach implemented by the mother posed a barrier to the child’s relationship with his father.
113.	The mother told Ms D in July 2012 that she had observed the child closing his eyes on the journey to spend time with his father - she believed this could be a sign he was unhappy about spending time with the father. She also noted changes in the child’s behaviour in mid-June 2012 when he was fretting about going to spend time with his father on a day when he would not otherwise have been spending time, reporting that he said he did not want to go. She subsequently attended on Dr I to report her concerns about these matters, saying that the child would close his eyes and cry and say he did not want to go. She also outlined that he did not want to speak with his father on the telephone.  At this stage, the child was a little over three years of age.
114.	The first of the reports to Ms D seems to me to be a clear demonstration of the mother’s willingness to draw adverse conclusions about  the child’s relationship with his father from the slightest thing. The second report suggests simply that the child may have struggled to accommodate a change to plans. Accepting this as accurate, the fact that the child, at three years of age, may not have wanted to speak with his father over the telephone does not seem to me to suggest any particular issue with their relationship. 
115.	During Ms D’s observations of the child and his mother in 2013, he asked her (his mother) whether she liked the father. The mother responded: “I guess so?” I accept that, at this time, Ms D’s noted a very clear non-verbal expression by the mother that she did not. I also accept Ms D’s assessment that the mother was making it clear to the child that she did not like the father. 
116.	I accept Ms D’s view, expressed in 2013, that, at that time, the mother had become more “accepting” (in a fatalistic sense) of the father’s increased involvement in the child’s life but continued to reject the prospect of him being a decision maker and playing a significant part in the child’s life. I also accept as highly likely her conclusion that the mother’s resistance to the father’s involvement in the child’s life was less about his parenting skills and more about her perception of his challenge to her dominancy in the child’s life.  In doing so, I accept her evidence that she had never seen the father perform as anything but a highly capable and loving father. 
117.	After the 2013 interview and observation process, Ms D outlined her opinion that the mother did not appear to foster or promote the relationship between the child and his father. I do not accept the mother’s refutation of this assertion. Even if she has never verbally discouraged the child from spending time with or seeing his father, Ms D’s observations of her very clear non-verbal expression during the joint session with the child suggest that she is quite capable of conveying her opposition to his time with his father in that manner.
118.	Given that the mother behaved as Ms D noted during a Family Report interview process when her behaviour was being observed and assessed, it is highly likely that any ostensible attempts she has made positively to encourage the child’s relationship with his father (for example, by reminding him of fun things they might do when they are together or by encouraging him to transition to his father’s care when observed at the Contact Centre) are similarly accompanied by the same subtle, non-verbal opposition observed by Ms McGregor during the 2013 interview.
119.	A striking example of the mother’s inability to shield the child from exposure to her view of the father’s parenting of him can be found in the evidence about the contents of a telephone conversation between the child and his father in July 2013. I accept that during this, the child told his father that his mother had said he (the father) was a monster and wanted to make him (B) sick. The mother explained this comment by saying that the child had ‘misreported’ a comment she made when she did not realise he was within hearing distance.  However, a comparison of her comment (as she outlined it) and the child’s recounting of it to his father aptly demonstrates, I think, that he very accurately interpreted the gist of what she was saying about his father: after all, her comment was: “what kind of a monster takes a kid swimming in winter when they’ve got a temperature?” 
120.	In the absence of the other matters already discussed, a single comment by a parent, perhaps frustrated with the other parent’s approach to parenting, overheard by a child of the child’s age would not assume particular significance. In this case, however, this comment provides an example of the mother’s attitude to the father’s parenting of the child and the way this is likely to be expressed in her household.
121.	Given Ms D’s evidence in the fourth Family Report in 2014 that the child was highly responsive to his mother’s discipline (such that her use of the simple phrase “remember what we talked about” was sufficient to have an immediate effect on his behaviour), I accept that she has an “enormous influence” on him. She also has the demonstrated ability to almost instantaneously effect his behaviour. 
122.	The mother’s evidence is that her approach to parenting the child sees her negotiate with him when he resists doing something he does not wish to do. I accept the submission made by Counsel for the Independent Children’s Lawyer to the effect that, if the child mentioned that he did not want to see his father or go with him or stay overnight with him, there is little likelihood that the mother would positively encourage him to do so. Such a conclusion fits with the mother’s position that, in essence, it is the father’s primary responsibility if he wishes to have a positive relationship with the child and there is little she can do to promote such a relationship. 
123.	A further indication of the subtle influences to which it is highly likely the child is exposed in the mother’s care can be found when regard is had to her approach to the occasion on which four year old the child required his father to promise that he would return him to his mother’s care that afternoon rather than stay overnight. The mother outlined her view of this event as that the child felt “let down” and that his trust had been taken advantage of when his father later decided to follow the terms of the operative order and keep the child in his care overnight. She also felt the father’s primary focus ought to be on keeping promises he had made to the child.
124.	I consider it highly likely that the mother’s attitude to the father’s continued presence in the child’s life may well be based significantly in the hostility she feels toward him – and the challenge his presence poses to the exclusive nature of her parenting interactions with the child.
125.	Even with the benefit of Ms D’s positive assessment of the father’s observed interactions with the child and her recounting of the child’s happy and previously welcoming interactions with his father, the mother conceded during cross-examination that she did not completely trust the father, did not have much confidence in him as a father and did not trust him as a parent. 
126.	When asked directly by Counsel for the Independent Children’s Lawyer, she struggled to name any positives about the father’s parenting: 
I want to answer, you know, in the best way that I can. Give a clear response. But – I guess I’m relieved. I am relieved when the child goes to his father without an issue, and I’m relieved when he comes home and he is – and there is no issues. I’m relieved and I’m happy. So I guess, yes, there is some – there are – I do have some hope. But it is minimal. I don’t know if that answers the question. 
127.	During his interview with Ms D in August 2011, the father was at pains to emphasise his view of the mother as an attentive and “beautiful mother”. He also described her as a good person. Whilst there could be little doubt that his view of her has changed significantly since then because of, amongst other things, his conclusion about her lack of support for the child’s relationship with him, I accept Ms D’s assessment in 2013 that he appeared more likely to promote a relationship between the child and the mother than the mother was to be likely to promote a relationship between the child and him.
128.	I also accept his evidence during cross-examination to the effect that if the child lived primarily with him and expressed a wish to see his mother, he would facilitate this.
Effect on the child of changes to his parenting regime
129.	In August 2011, the mother told Ms D she considered the child surprisingly adaptable to situations – a personality feature which she said “impresses” her. She reported he loved to interact, even with strangers. Despite her own identification of adaptability as a character strength, the mother submits that the child would not adapt to living primarily with his father. 
130.	In 2013, Ms D expressed her opinion that she would expect that, if the child lived with his father, he would encourage him to flourish toward independence and social development. She also expressed her opinion that, whilst the child’s father would be better placed in the long term to serve his (B’s) needs, the transition to this care regime would be fraught with anguish for the child and his mother, whose anguish would ultimately have an impact on the child.
131.	In her most recent report, Ms D’s opinion was that, whilst either parent was capable of caring primarily for the child, a change which saw the father as his  primary residential parent would be ‘counter-productive’ for him. In arriving at this conclusion, she relied significantly on her assessment that such a change would be significantly stressful for the child because of his strong attachment to his mother.
132.	I accept Ms D’s assessment that the child has an extremely strong attachment to his mother and that the bond between them is very strong. I also accept that, during her 2014 interaction with him, he continued to use his mother as a reference point and sought to know where she was and how long it was until he saw her. This behaviour, however, appears to be a regression from Ms D’s earlier observations wherein, whilst checking in about his mother, the child did not seek out the reassurance Ms D observed in her most recent observation. 
133.	I have no doubt that the child’s expressed desire to continue to live with his mother is something genuinely felt by him. However, as I have already noted, such expression of wish is hardly surprising given the significant influence his mother has had upon his life to date.
134.	There can be little doubt that changing the child’s primary care regime in the manner sought by the father initially or the Independent Children’s Lawyer through submission is highly likely to cause him significant short-term distress and upset. However, I note that Ms D has consistently assessed the father as having the capacity to soothe the child and address and manage feelings of distress and upset. There is nothing to suggest that his skills in this respect have, in any way, deteriorated and it is relevant to note that, for the majority of the time since the 2012 Orders were made, he has cared for the child for two full days and two nights each week. 
135.	In 2014, Ms D considered the child was at a developmental stage at which he was unable to sustain rejection of his father when having positive experiences with him. So much was established by the nature of his interaction with his father during their session together, despite his comments and presentation during his interview with Ms D. However, this situation is, I think, less likely to remain the case as the child grows older, especially as any sign by him of ‘rejection’ of his father is likely to find significant support in his mother’s household. It is not hard to envisage that relatively minor reactions may be interpreted by her as ‘rejection’ given her previous concern in 2012 that, in closing his eyes on the way to spend time with his father, the child could have been signalling that he was unhappy spending time with him.
136.	Given the mother’s interpretation of the child’s 2014 occasional refusal to spend time with his father as being that he has had ‘a gutful’ (presumably of his father and spending time with him – matters contraindicated by Ms D’s earlier observations) and that this refusal is simply a natural progression, there is a very real and significant risk that the child’s opportunity to continue in his positive relationship with his father will be seriously diminished and undermined if he is not afforded the opportunity to spend significantly more time in his father’s care than will occur via a continuation of orders which see him spend two nights each week there. 
137.	Whilst perhaps too obvious to require expression, the significant diminution in the time between the child and his father which would occur if orders were made in the terms sought by his mother would, in my view, be the death-knell to any ongoing relationship between the child and his father.
138.	I accept that included within the long term consequences for the child of a cessation of his relationship with his father would inevitably be his loss of any positive memories of his father and extended paternal family. I accept that this ‘alienation’ of the child from the positives of his previous interactions with his father can result in him suffering low self-esteem, depression and an increased risk of problematic drug and alcohol issues into his adult life. I also accept that such ‘alienation’ has associated additional risks, including difficulties with trust and social problems, which may include difficulty in developing peer relationships. 
Domestic violence/intimidation 
139.	There is no evidence of physical violence between the parties. An application for a protection order filed by the mother was withdrawn before orders were made. 
140.	The mother told Ms D consistently that she feels bullied, threatened and intimidated by the father. Ms D accepted that the father may have a volatile manner of communicating. Despite this, she considered it unlikely he would expose the child to this, given how protective of the child he is. I accept her evidence in this respect.
141.	In advancing her assertion that the father’s behaviour is aggressive, intimidatory and threatening, the mother raised an incident said to have occurred between the father and a former business partner which led to a complaint being made to the New South Wales Police. She said the father sent threatening text messages to this former business partner and that these messages included a threat to kill that person and cut out the heart of his  daughter and eat it. In responding, the father said he did not recall ever leaving the alleged voicemail messages. He also said his association with this former business partner had come to an end. 
Particular aspects of the child’s parenting
142.	B’s parents have significantly different approaches to his education. Whilst the mother has consistently expressed her preference that the child be home schooled or attend a community, Montessori or similar ‘democratic’ school, his father has expressed his preference that he attend a local private school. In fact, when the mother did not respond to his invitation to discuss this possibility via email, he enrolled the child at the school.
143.	The parties have been unable to agree about an appropriate regime of medical treatment for the child for any identified issue. Each approaches his health in a vastly different manner. Neither accepts the substance of the medical opinions offered by those upon whom the other has attended. Whilst the father appears to have initially accepted the mother’s approach to the child’s health to some extent, the mother is unable to accept that any explanation other than one she favours may exist for any of the child’s presentations.
144.	The extent of the parties’ disagreements about issues relating to the child’s health and the management of the same is such that injunctive orders have been made on a number of occasions to deal with this: 6 June 2011, 25 March 2013 and 25 November 2013. Both parties have breached these orders. Each has, on occasion, taken the child to appointments with various medical professionals without the other’s consent or knowledge. 
145.	The parties initially disagreed about the appropriate treatment for the inflammation to the child’s penis. However, having taken him to specialists, the father now accepts that the treatment he had thought appropriate is not the approach generally adopted in Australia.
146.	Another aspect of the child’s parenting that was the subject of an order was the management of his previously diagnosed mild allergy to egg – the order made on 27 July 2012 required each parent to ensure that the child’s diet was appropriately attended to and that he was not exposed to eggs or egg products or any other products as agreed between the parties. 
147.	Yet another example of the parties’ divergence in their approach to parenting the child can be found in the fact that they do not now agree whether the child suffers from any food allergy or intolerance. The mother asserts the child is allergic to egg and egg based products and has various other intolerances or sensitivities.  The father does not accept this and, whilst he accepted the child had previously been diagnosed as having a low positive result for allergy to egg, his position is that this condition no longer persists.  
148.	In order to avoid unnecessary repetition of the evidence, regard should also be had, where necessary, to the more extensive consideration of the medical evidence about the issue of the existence or otherwise of food allergy or intolerance and the issue of vaccination I have undertaken elsewhere in these Reasons.
149.	The father’s scepticism about the existence of food intolerances as suggested by the mother seems to me to have substance when regard is had to the differences in those items identified by a naturopath after hair sample testing in about September 2010 (marked by underlining those items to which the child was considered by the naturopath to have reacted: namely, cow’s milk, chocolate, mango and peach, which foods were subsequently avoided) and the amended and annotated version of this document provided by the mother (in which she circled further items) and, having done so, instructed the father that, as the child had tested as allergic to all of those she identified, he was not to feed them to the child or expose him to them. I am not at all persuaded that there was proper expert evidence to establish that the child was allergic to any of the items circled by the mother at the time she did this. I am not persuaded that there was any evidence that the child was intolerant to items identified by the mother and in respect of which she instructed the father not to feed him.
150.	I accept that in about January 2011, the father sought the advice of Dr H “so that he can be appropriately advised in terms of which food to avoid giving the child on medical grounds rather than on mere wishes of the child’s mother”. The referral contained clear information to the effect that the father wanted to avoid providing the child with foods which would trigger an allergic response. This can hardly be seen as a neglectful or dismissive approach to the management of the child’s health. A blood test performed in about April 2011 showed the child had a low positive allergy to egg white. No other allergy was recorded. 
151.	I accept the evidence given by Dr G, a specialist allergist, as outlined in his September 2012 report. I accept his evidence that hair sample testing was not considered a reliable form of establishing allergies. Dr G administered a RAST screen test to the child. This showed only a minor reaction to egg white. None of the standard allergy skin prick testing - for cheese, milk, egg white, wheat, peanut, soybean, mango and oats, as well as dust mite, dog, cat, couch and paspalum pollens, acacia, alternaria and aspergillus- provided a positive result. I accept Dr G’s opinion that the child had ‘lost’ his egg allergy. I also record Dr G noted that  about 60 per cent of children naturally outgrow egg allergy between the ages of three and five years of age. I accept Dr G’s opinion that he does not consider the child requires any food restrictions.
152.	I also accept that, despite asserting to Dr G that she believed the father did not abide her dietary recommendations and gave the child foods (other than egg) to which she said he reacted, the mother had conceded to him that the eczema from which she said the child suffered on returning from the father’s care to hers was not isolated to only those times when he returned from the father’s care: she detailed at least one incident where the child developed eczema on his feet when he (the child) and his mother were walking on the beach.
153.	I further accept Dr G’s evidence that tests (namely, the IgG antibody test and hair follicle test) performed at the direction of practitioner/s upon whom the mother attended with the child to determine the existence or otherwise of allergies to food, are not accepted tests and are not capable of identifying sensitivities to the same. 
154.	Whilst the notes of a joint session with the child’s general practitioner (Dr I) on 7 November 2013 contains the information that the father did want to stop giving the child dairy and wheat etc and the doctor’s conclusion that the father did not seem to understand that different food groups could trigger ill health, these matters and his position must be seen in the context of the evidence outlined above. Given the father’s accepted approach in avoiding providing the child with eggs or egg products after he was originally found to be allergic to the same, he appears to have embraced the proposition – as expressed by Dr I – that anything that causes an allergy response should be avoided. 
155.	I consider that support for the conclusion that the father has been willing on occasion to embrace some of the mother’s proposals for addressing the issue of the child’s health can be found in the fact that, on 15 June 2012, Federal Magistrate Demack noted that (save for the food tolerance testing – which remained under discussion as to how it would be undertaken), the parties had agreed that the child have the testing otherwise determined by Dr J.
156.	Ultimately, however, the parties disagreed about whether Dr J’s recommendations, including those for further testing of the child, should be implemented. 
157.	Given my acceptance of Dr G’s evidence and that I prefer it to the evidence given by Dr J where these conflict (for reasons expressed elsewhere), I am not persuaded that there is a need for the child to be enrolled in a hospital based food elimination trial or that requiring him to be admitted to hospital for this purpose is something that is beneficial for him.
The parties’ communication 
158.	Even if, as the mother says, she went beyond what was required of her by the terms of the June 2011 Order in telling the father about the child’s medical appointments before they occurred, the parties’ overall communication has been fraught with miscommunication, denigratory tone, expressions of frustration and clear examples of interactions between two people who do not really understand each other and who approach their assessment of the world and what is in the child’s interests from fundamentally different points of view.
159.	Each has, on occasion, been completely non-responsive to the other’s reasonable request for information. For example, the father simply failed to respond to the mother’s request for an explanation about how the child suffered a bruised eye whilst in his care, saying that he would tell her what happened when communication between them improved. In fact, the mother first learned that the child had suffered this injury whilst on a water-slide during her cross-examination of the father. 
160.	Whilst the father accepted responsibility for his response and said it was a mistake to have not simply answered the mother’s question (explaining that he was frustrated with the mother’s approach) this incident provides a good example of the childish ‘tit for tat’ approach adopted by these parents in their dealing with each other.
161.	I accept that neither parent really knows how to ‘deal with’ the other and accept that this, too, is reflective of their inability to communicate meaningfully with each other on a consistent basis. I have no doubt in concluding that the mother perceives the father’s verbal communication as intense and dominant and that the father perceives her approach as either avoidant or, alternatively, dictatorial and rigid.
Parental responsibility 
162.	Having regard to the above, it could not seriously be thought that these parents are capable of reaching decisions jointly about major long term issues relating to the child in the manner required when an order for equal shared parental responsibility is made. 
163.	In case there is any doubt whatsoever about the parents incapacity to make decisions about the child jointly, regard need only be had to Ms D’s assessment, as long ago as 2011, when she concluded that they generally do not have “any communication at all”. Even then, the father acknowledged the reality of the circumstances, noting that there was practically no communication between them. Despite this, he then presented to Ms D as keen to co-parent the child and negotiate with the mother about decisions to be made in relation to him.
164.	However, even at this stage, both literally parties had made specialist medical appointments about matters relating to the child without involving the other. They appeared to have engaged in what can be descried as a “tit-for-tat “approach to decision making in respect of major long term issues: for example, the father told Ms D he wanted the child baptised as Catholic but the mother had withdrawn her support for this when he continue to pursue the issue of the child’s immunisation. 
165.	I accept Ms D’s assessment of the mother’s presentation in 2013 as:
a)	very rigid in her thinking and strongly committed to her philosophical and lifestyle framework involving principles of natural medicine and organic food and an “attachment parenting” approach; and
b)	perceiving she was bullied and intimidated by the father and frustrated – I conclude, by his very presence - in her ability to parent as she wanted to.
166.	I accept Ms D’s assessment that neither parent is able to accommodate views held by the other which fall outside their own dogmatic parenting approaches. 
167.	Ms D’s third Family Report recommended that the parent with whom the child primarily lived be accorded sole parental responsibility for him. Whilst her recommendation in her most recent Family Report is that the mother have sole parental responsibility for all major decisions except vaccination with the father to have sole parental responsibility in relation to this major long-term issue, I accept that the father’s alternative proposal (namely, that if the child continues to live primarily with his mother, an order for sole parental responsibility should be made in her favour and if he lives primarily with him an order for sole parental responsibility should be made in his favour) is sensible in all of the particular circumstances of this case.
What time with each parent is in the child’s best interests?
168.	There is no doubt that the mother is devoted to the child. However, her inability or unwillingness to accept that he does not suffer from allergies and does not suffer from any food intolerances at all or of such significance as to warrant restricting his ability to experience different foods (a conclusion I have reached for reasons outlined within the totality of these Reasons), her attitude to his relationship with his father, her unwillingness truly to support the child in that relationship and her clear and unwavering belief that the child obtains nothing from an ongoing relationship with his father persuades me to the conclusion that there is a significant risk to the child’s long term physical and psychological health if he is not afforded the opportunity to spend significantly greater time in his father’s care.
169.	I note Ms D’s evidence to the effect that, given matters like the open hostility between the parties, it would be to the child’s detriment if his time with his father was increased from the current regime of four nights per fortnight. However, the mother’s attitude to the father’s ongoing presence in the child’s life is such that I am not persuaded the hostility will cease if the current parenting regime is maintained. I am not persuaded that it will cease if his time is reduced as she suggests.
170.	The mother’s overwhelmingly dismissive attitude toward the father and her steadfast view that he presents a risk to the child for many reasons is unwarranted on the evidence when this is assessed objectively. I consider the father has much to offer the child and that the child has much to gain from an ongoing opportunity to spend time with him. 
171.	The loss of the relationship between the child and his father would, I consider, be significantly detrimental for the child and something that could not be regarded as being in any way in his best interests. However, this very loss and this very detriment is, I think, more likely than not to occur in the future if the child continues to live primarily with his mother. This conclusion rests significantly upon her evidence that the child’s more recent distress and upset as seen at changoevers in the lead up to the March 2014 Family Report interviews is an expression by then not quite five year old the child that he has had a ‘gutful’ of spending time with his father and that this was a ‘natural progression’ for him.
172.	I do not underestimate the significant distress and upset the child is likely to experience in moving to live primarily with his father. Absent what I have concluded is the mother’s clear determination to ensure that the child’s relationship with the  father does not persist into the future and her willingness to expose him to testing which does not seem necessary on the medical evidence I have accepted, I would have been unlikely to have been persuaded to consider such a significant change to the child’s care arrangements.
173.	However, having regard to the matters discussed above, I have reached the conclusion that it is in the child’s best interests that he be afforded the opportunity to live primarily with his father. Clearly, the implementation of such a regime will have a significant impact upon him. It will also have a significant impact upon his mother. However, the combined impact on his long-term functioning of her management of his health and her attitude toward his ongoing and developing relationship with his father persuades me that the likely significant impact on him of such a change is less detrimental in the long term than a continuation of his current parenting arrangements in which his mother is his primary care provider.
174.	In arriving at this decision, I have taken into account the father’s demonstrated capacity to care for the child and Ms D’s assessment of him as the parent more likely to support him in his relationship with his mother. I have also taken into account that he will continue to spend significant time in his mother’s care during school terms and holiday periods.
175.	Whilst Ms D did not support orders in terms of those which I have concluded are more likely to be in the child’s best interests than a continuation of the existing parenting regime, the very real risk of the extinction of the child’s relationship with his father – as a consequence of what I consider to be the mother’s highly developed and subtle ability to exert influence and/or pressure over the child in this regard – is so significant as to warrant this change, particularly when I am satisfied that the child can continue to maintain his relationship with his mother whilst living primarily with his father.
176.	Whilst the child’s time with his mother will be reduced, he will continue to have the opportunity to spend time with her from Thursday after school until Monday morning and for half of each school holiday period. 
177.	I am cognisant that an order in these terms does not accord with the recommendations made during the course of submissions by Counsel for the Independent Children’s Lawyer and as subsequently adopted by the father. However, I am concerned that, for the child, transitioning between his parents fundamentally different households each week may simply be too much for him – to require him to continue to adapt on a weekly basis (now, and into the future, during the school week) to the significant and fundamental differences in the way in which he is parented by each of his parents is unlikely to be beneficial for him. By solidifying his time with his mother into a block of time each alternate weekend, the child will, I hope, have  the opportunity to settle into the household of each of his parents. 
178.	Having accepted Ms D’s evidence that a hiatus in the child’s time with his mother would be very traumatic for him, I am not persuaded that this is in his best interests.
Other specific parenting orders
179.	Each party proposed a number of specific orders related to specific issues which have arisen in relation to the child’s parenting.
Changeovers
180.	In 2011, Ms D considered that, although there was no clear domestic violence between the parties, the mother’s perceived intimidation from the father would suggest that changeovers ought to continue at the Contact Centre to prevent the child from being exposed to tensions between the parties. In 2012, the mother continued to report feeling intimidated by the father and needed contact to occur at a Contact Centre. She proposes this continue into the future.
181.	The father strongly resists the use of the Contact Centre for changeovers and proposes they occur at a local McDonald’s Restaurant. 
182.	I accept Ms D’s evidence to the effect that there appeared to have been something of a  fracturing of the relationship between, the child, his parents and the Contact Centre and that attending at the Contact Centre had become somewhat of a negative experience for him. She considered it ideal that the Contact Centre be removed from the role of supervising changeovers.
183.	Now that the child is in Prep, the school provides a convenient forum for changeovers. This will reduce the number of occasions on which his parents are both required to be present at the same location. Given this reduction – to occasions during school holidays – continued use of the Contact Centre as opposed to a public place such as McDonald’s Restaurant (where surveillance occurs) seems unnecessary and unlikely to be in the child’s best interests. 
184.	Moving changeover away from the Contact Centre may also provide something of the circuit-breaker spoken of by Ms D: it is hoped it may signal to the child that there is no longer any need for his time to start at a Contact Centre and under observation as opposed to simply occurring at the end of his school day. It is also hoped that transitioning via school will provide the child with something of a buffer as he moves between his parents diametrically opposed households.
185.	I record that Ms D said there was an ongoing need for changeovers to be supervised into the future and suggested using a private supervisor to facilitate this. However, I am not persuaded that the parties have the financial capacity to implement this on an ongoing basis and, equally importantly, I am not persuaded that this is necessary given the reduced number of occasions per year during which the child’s parents will be required to facilitate his transition between them. 
186.	In order to further manage any difficulties which may continue to arise with the child’s transitioning between his parents, I intend to provide each of them with an opportunity to arrange for another person to attend at the changeovers on their respective behalves provided that such person is known to the child.
Telephone communication
187.	The mother seeks an order that each parent ensure the child is free to speak by telephone with the other at any time on any day where reasonably practical. Whilst certainly an ideal and possible in many cases, the difficulties these parents have in communicating with each other persuades me that it is more likely than not that such an order is ripe with the potential for further disagreement. I consider an order which provides for the child to have telephone communication with the parent with whom he is not then living at a specific time each week is one which is more likely to lead to less disagreement into the future. Of course, it is always open to each parent to facilitate the child communicating with the other at any time he is in their respective care.
International travel
188.	The mother has numerous objections to the father being able to take the child out of Australia for holidays. These include that the father would fail to return the child to Australia (because all of his family continue to live in Italy) and that he would fail to adequately supervise the child such that he may be abducted whilst overseas.  I am not persuaded that this is the case. 
189.	Such was the mother’s anxiety about the child being removed from her care and from Australia, that, despite arrangements to the contrary, she withheld him from the father prior to the father’s departure for Italy in 2010. She was also concerned the father may be able to obtain an Italian passport for the child without her signature or consent. She says this concern arises significantly because of research she has done on the internet which suggested that it may be possible for a parent to obtain a passport with only one parent’s signature with the consent of the Italian Consul General. 
190.	I am confident in reaching the conclusion that affording the child the opportunity to travel overseas with either parent is something that can only be beneficial for him. 
Counselling for the child 
191.	Whilst the father outlined his belief that the child’s emotional robustness would obviate the necessity for this support, he also accepted that he would implement the terms of any order which required him to facilitate the child’s participation in such counselling. As I accept Ms D’s evidence to the effect that the child will benefit from counselling to support his transition to living primarily with his father, I intend to make an order for this to occur.
Order restraining either parent from moving the child’s residence without notice
192.	The father sought that the parties be restrained from relocating with the child more than 50 km from C Town. As already noted, I suspect that such order arose out of the mother’s indication to Ms D in 2014 that she would like to relocate from C Town in the near future. 
193.	Whilst the orders made about the child’s future parenting regime will see him live primarily with his father (in whom sole parental responsibility will vest) and there is no evidence to suggest that the father has any intention of relocating from C Town, it is, I think in the child’s best interests that neither parent be permitted to relocate his residence more than 50 kms from the C Town Central Business District without first giving the other at least 60 days notice in writing of an intention to do so. In this way, the child will remain in familiar surrounds at a time when his life is subject to other very significant changes.
Order restraining the parties from taking the child to medical practitioners
194.	As outlined above, previous orders have regulated the party’s ability to have the child attend on medical practitioners of their choosing. It can only be in his best interests that, save for emergency situations, the child attend at the same medical practitioner whilst in the care of either parent. Orders will be made to give effect to this conclusion.
195.	Given the mother’s past approach to the investigation of the child’s health and what I regard as the very real potential that unnecessary attendance on medical practitioners may, in some way, influence the child to think – wrongly - that he has some particular medical condition or affliction, his best interests will be served by an order restricting the mother’s ability to present him to medical and associated health practitioners for further investigations in the future. 
196.	I am confident that, by ensuring that the child attend on the same medical practitioner when needed, any appropriate testing and/or investigation of any future medical condition will be able to occur appropriately.
Other specific orders sought by the mother
197.	Whilst the mother also seeks a number of specific orders, no specific evidence (apart from the mother’s complaints about the father’s failure to contribute equally to the cost of the child’s dental appointments) addressed these. In so far as the orders are directed to ensuring that the parties are equally responsible for any school fees, educational costs and medical and dental expenses, these matters are, I think, more properly considered via the child support system.
The vaccination issue
198.	When the trial commenced, the mother submitted that the issue of the child’s vaccination should be regarded as a ‘medical procedure’ as understood within Part 4.2.3 of the Family Law Rules (2004), severed from the proceedings and considered separately.
199.	In later advancing her argument, the mother relied upon Mains & Redden, an appeal against a decision of Federal Magistrate Dunkley (as His Honour then was) determined by Coleman J. In that case, the father had sought orders from the Court to facilitate the vaccination of a child.
200.	In this case, no party has sought that the Court make an order that the child be vaccinated. There is no extant Medical Procedure Application requiring determination and, therefore, Division 4.2.3 of Part 4.2 of the Rules has no application.
201.	The only orders sought by any party in respect of the issue of the child’s vaccination are those sought by the mother. The primary injunctive order sought is to restrain the father from having the child vaccinated without her written authorisation.
202.	The mother accepted under cross-examination that, irrespective of any scientific evidence put before her, she will never consent to the child being vaccinated. Her position is consistent with that which she has maintained since very soon after the child was born: she says she has a conscientious objection to vaccination on the basis of her research and her comparison of risk. 
203.	Given that she will never consent to the child being vaccinated, she will never provide the father with written authorisation for this to occur. In such circumstances, the form of her proposed injunction is entirely misleading and illusory – what she really seeks is an order prohibiting the father from having the child immunised. Such an order may be made if, having had regard to the child’s best interests as the paramount consideration, it is considered appropriate for his welfare.
204.	The mother relied upon the evidence of Dr K and was not required for cross-examination, and Dr J, from whom a number of affidavits were filed. Dr K has never seen or examined the child. Any purported assessment by her rests entirely upon information provided to her by the mother who is vehemently opposed to vaccination.
205.	Dr J’s evidence advanced, amongst other things, the proposition that the child has alleged underlying health issues which it is asserted place him at a higher risk of sustaining an adverse reaction from vaccinations.
206.	The father relied on the evidence of Dr G, a consultant physician in allergic diseases, who originally trained as a general physician before specialling in allergy and immunology via further study at the Mayo Clinic, which he described as having an extremely high reputation in the medical field. 
207.	Dr J has previously given evidence in other matters about vaccination: in one case, she provided evidence about immunisation and in another it seems the evidence was in support of a modified vaccination schedule after appropriate preparations for that process: by that, she meant a modified vaccination schedule with monitoring to ensure that the child in that case maintained good health.
208.	Despite the fact that she is not a specialist immunologist, allergist or paediatrician and that her registration with the medical regulator is as a general practitioner, Dr J has lectured “predominantly on children’s disorders; children’s immune disorders; gastrointestinal disorders; autism and patterns of modern illness.” Her approach to clinical practice is to use complementary therapies with what she described as a standard medical approach. She practices bioenergetics which she accepted may be understood as ‘energy flowing through bodily systems.’ None of her primary areas of practice involve immunology. She accepted that standard medical opinion is in favour of the vaccination of children.
209.	In 2012, Dr J gave a presentation in Melbourne during which she relied upon a discredited research paper which purported to link the MMR vaccine to autism. When questioned, she explained that staff had inadvertently handed out a paper which had been prepared before this purported research was refuted – she accepted it had been a mistake to provide the paper because it relied upon previous research which had been discredited at the time of her presentation. 
210.	Dr J also accepted she had previously been involved in an anti-vaccination video presentation. Whilst she explained that:
a)	this document had been prepared 20 years earlier; and
b)	she had not been involved in its propagation; and
d)	she had changed her opinion to become more concerned about the issue of choosing which child was appropriate for what; and 
e)	her current views were different and modified to those anti-vaccination views she had previously expressed in the video,
specific details of her involvement in this earlier presentation came to light only during cross-examination by Counsel for the father. Even accepting entirely Dr J’s explanation that her views have changed over time, her failure to openly acknowledge the existence of her previously held anti-vaccination views casts significant doubt upon her impartiality or independence in the sense in which that term is understood when referring to those purporting to hold expert qualifications.
211.	She explained that, as a general rule, she was not opposed to the vaccination of children but was concerned this needed to be seen as a medical procedure about which a risk-benefit analysis should be undertaken. She personally vaccinated children a couple of times of year, explaining that she is not regarded by her patients as a general practitioner but rather as an “environmental consultant”. She said she did not advocate against immunisation but, rather, proposed “safe” immunisation: by this she explained her view that if a child has a history of what she described as “immune dysfunction”, that child may need a modified vaccination schedule in conjunction with diet and health interventions. 
212.	Dr J made it clear that her client group does not involve children who are not breastfed or who are in day care: given this, she clearly provides a service to a specific subset of parents who, it seems, are likely to engage in fairly similar approaches to parenting and, inferentially, are likely to share fairly similar views about matters such as vaccination.
213.	Dr J had a telephone consultation with the mother and maternal grandmother on 9 March 2012. She did not see the child personally but relied upon the history and information provided by the mother and maternal grandmother to make recommendations in relation to him. 
214.	It is clear from her answers during cross-examination that, as well as the history they provided (namely, that the child had cradle cap and an oral egg allergy at 12 months, eczema and rashes, frequent skin and middle ear infections and a sore throat and recurrent colds) she relied very significantly on the mother and maternal grandmother’s account that the mother had had adverse effects from vaccination (my emphasis) when she was a child. 
215.	The symptoms reported by the mother (namely, aching in her joints which worsened, muscle pain, cramping and muscle spasms in her neck, oral thrush, asthma from when she was six years of age, “recurrent” colds and flu as a child and teen and glandular fever in her late teens) resulted in Dr J concluding that the mother had “probable” subtle immune dysfunction - which she (Dr J) said arose in response to vaccination.
216.	When asked to explain how she arrived at this last conclusion, Dr J immediately asserted that she was not the one who said that the mother had had a vaccine reaction because she did not know that she (the mother) had had such a reaction. Rather, she had simply accepted the “correlation” made by the mother and maternal grandmother (my emphasis) between the mother’s receipt of vaccination and described symptoms and built upon this in formulating her recommendations in relation to the child.
217.	The fatal flaw in Dr J’s reasoning process is, I think, adequately explained by simply recording that, in essence, she simply accepted the mother had herself suffered some sort of adverse effect from vaccination because she (the mother) said she had and concluded that, as a consequence, there was “the possibility” the child already had a “subtle level of immune dysfunction” which she considered needed to be “healed” before he received any vaccination.
218.	If they are needed, additional reasons for my conclusion that no weight can sensibly be accorded to Dr J’s opinions can be found in that she was prepared to provide an opinion to the mother in April 2012 - in which she outlined that the child had an “underlying immune shift” - in circumstances where she had not even seen him personally at that time but, again, relied on the history provided by the mother and on the mother’s assertion that she (the mother) had suffered consequences caused by her vaccination as a child as the basis for her “diagnosis”. 
219.	Additionally, whilst Dr J relied on the results of pathology tests done on 29 April 2011 as the basis for her conclusion that the child had iron deficiencies,  the results of pathology tests undertaken on 19 May 2011 at the request of Dr L (B’s paediatrician) led that specialist to report that, as the child was mildly unwell when the test was done, his iron studies were a little confusing but “best interpreted as being normal [and] certainly, his blood film does not support a diagnosis of iron deficiency.”
220.	There is a certain irony in Dr J’s refutation of and critical response to Dr G’s evidence because he was the very specialist to whom she had referred the child in December 2012 for allergy testing, because she wanted expertise in relation to allergy and immunology.
221.	Counsel for the father referred Dr J to the Code of Conduct issued by the Medical Board of Australia which provides that, in providing good care a medical practitioner is to assess a patient and undertake an appropriate physical examination. However, Dr J had not examined the child until November 2012 – after she had recommended the treatment she did. She in fact saw him for the second time on 20 September 2013. 
222.	Whilst Dr J attempted to deal with this criticism by outlining that she was not then in fact treating the child (but, rather had provided an opinion about what “we need to do” or what had to be done), she clearly :
a)	made dietary recommendations from test results at hand; and
b)	determined that further tests were required; and
c)	prepared referrals for this further testing.
223.	All of these actions persuade me that Dr J did in fact treat or prescribe treatment for the child before she had even seen him, assessed him and/or performed any physical examination of him at all. I also consider it more likely than not that she was well aware from her first consultation with the mother that the child’s father did not want her to see the child and that she wrote a referral for the child after speaking with his father in June 2012 in circumstances where I think it more likely than not that he voiced his view that he did not want the child to undergo these tests.
224.	Dr J said that she supported vaccination if a child was in long day care, was not breastfeeding and was exposed to cigarette smoke because such children fell within a category for whom it could be argued that the benefit of vaccination outweighed any risk of the same. the child is now due to be at school – which, in one sense, approximates ‘long daycare.
225.	I consider one of the most telling aspects of Dr J’s cross-examination arose when she was pressed by Counsel for the father to express an opinion about whether, if the child did not have those issues she had identified him as having, she would support him being vaccinated. Dr J said that, if that was the case, it was about assessing the risks of disease sought to be protected against so as to determine whether vaccination was necessary: she asserted that there remained the need to assess the side effects in a “risk v benefits” analysis. I have concluded that her hesitance to accept the clear proposition put by Counsel for the father and the conditions she attached to her response is indicative of an underlying opinion inherently adverse to the vaccination of children generally.
226.	Dr J accepted Dr G’s confirmation that the child does not have any food allergy now and that the only allergy he had ever been diagnosed with was a mild positive to egg. She said he may still have a food intolerance and relied on the results of IgG testing as the basis for this conclusion. Whilst agreeing that the position paper endorsed by the relevant peak body (as provided by Dr G) made it clear that IgG testing was an inappropriate test for the presence of food allergy, she maintained it was an appropriate test for food sensitivity/intolerance.
227.	Dr J accepted that there is nothing in the literature to suggest that a food intolerance/sensitivity can be life threatening. She also accepted that the existence of a food intolerance/sensitivity does not indicate that a child should not be immunised: her view was that it indicated a pre-existing immune system mild dysfunction which should be fixed before the child received vaccine and it did not indicate per se that a child should not be immunised: her position was that the “pre-existing immune system mild dysfunction” should be addressed before vaccination was administered so that a child could be safely immunised and not have a significant immune system trigger as a consequence of the administration of vaccine. She agreed that issues with food did not directly affect immunisation but asserted that there was this indirect impact.
228.	Dr G’s evidence was really to the effect that he disagreed fundamentally with almost all of Dr J’s evidence. He took great issue with a lot of the statements contained within Dr K’s evidence. He said he had seen lots and lots of children whose allergies were far more severe that that previously experienced by the child. He maintained his view that the child was quite well: he had very mild eczema and there was no evidence that any allergy was making this worse. When he consulted with the child, he found no evidence that the child had any food intolerance – whilst he had earlier had a problem with egg yolks, the more recent testing was negative for egg and there was no evidence at all of any egg and/or wheat allergy. Dr G expressed the opinion that Dr J was ‘creating’ problems that the child did not experience.
229.	He refuted Dr J’s assertion that paracetamol was a cause of, or related to, allergic problems, saying that he had never seen this in his almost 40 years of practice. In fact, he thought this aspect, and many others, of Dr J’s evidence was “total nonsense”: for example, he expressed his opinion that the testing Dr Cosgrove relied upon had been investigated over a decade and shown to be useless in determining food reactivity or allergy; he described IgG testing as ‘totally unreliable’ ; testing for “dybiosis” as absolute nonsense and vega testing as total nonsense, saying that it had been investigated many times, had been shown to be absolute nonsense and had no place in diagnosing hypersensitivity to foods or environmental allergens. He said that there is no evidence that paracetamol makes people at a higher risk of an allergic response to anything.
230.	During cross-examination, Dr G explained that he was a general physician with allergy as his general subspecialty and that, whilst he rarely administers vaccines himself, he had been asked to consult on many occasions when there is a reaction to the injection. When asked when was the last occasion on which he had been vaccinated, Dr G explained that he had travelled to Nepal on numerous occasions and had received numerous injections to prevent hepatitis and typhoid and cholera and had given his wife similar injections, all without experiencing a problem. He further explained that he saw many patients who presented thinking that they had an allergy but who, in fact, had a sensitivity rather than a true allergy to a particular thing.
231.	Dr G took issue with most of the evidence given by Dr K. He took particular issue with the summary Appendix A: ‘Why I question vaccines”. Whilst acknowledging that it was known and recognised that various vaccines can cause adverse effects, he described the assertion that the chicken pox vaccine caused shingles later in life as ‘bunkum’. He also took issue with the assertion that the measles had been eradicated, noting that a problem was being encountered as a result of groups of people who are not immunised: he gave the examples of a recent case of measles in Brisbane and an outbreak in a high school in the Sunshine Coast hinterland which had developed in patients who were not vaccinated. He described as nonsense the assertion that the United States of America ceased using the polio vaccine because it was in some way responsible for polio, outlining that the use of the oral form of the vaccine had ceased because it was ineffective and did not prevent polio in a lot of people.
232.	Dr G also expressed his opinion that:
a)	there is no evidence that vaccines cause cancer;
b)	the flu vaccine is very safe;
c)	whilst it had previously been thought that administering the diphtheria vaccine provided long term relief, it appeared that it provides only temporary control and, therefore, needed to be repeated as it loses effect over time;
d)	the idea that administering the pertussis vaccine resulted in pertussis remaining in the system was nonsense because the whole point of vaccination was to get rid of pertussis;
e)	the polio vaccine, which should be administered by injection, was extremely effective;
f)	while polio had been eradicated in India because virtually all people had been immunised, there had been major outbreaks of this disease in Pakistan because the government/administrators had curtailed the immunisation programme in that country;
g)	people like Drs J and K had forgotten history: namely, that in the early 1900s, it was well recognised that diphtheria and whooping cough and measles were very common causes of severe illness in children with quite high fatality rates and this was the very reason vaccination had been introduced in Australia, with the consequence that those diseases had been eradicated and/or eliminated;
h)	one of the weaknesses with Dr J’s approach and analysis was that, whilst a lot of unvaccinated children may have no problems because disease has been eradicated, an absence of vaccination will result in the return of these diseases; additionally, people travelling into Australia may introduce the diseases into the country and the community;
i)	he strongly objected to non-immunisation, at least on the basis that it is impossible to predict that a child will never get measles (which can be a major health issue) via exposure to a person who had introduced the disease into the community.
233.	Dr G outlined that the suffering of an allergic reaction to a vaccination was so rare that he had only had one or two people referred to him. He outlined that, as vaccines can contain other additives in the vaccine (including antibiotics), the recipient of the vaccine can have a reaction to it, but it is very rare for those types of reactions to be severe.
234.	Dr G was clear in outlining that he very strongly believed that the illnesses against which vaccination are intended to protect are far more serious and life-threatening than any adverse reaction from the injection by which the vaccines are administered, particularly given that any adverse reaction is so rarely significant. He gave the example of the horrible consequences attendant upon tetanus, emphasising that the diseases are dangerous and life threatening. He outlined that a friend had suffered measles as a baby and was legally blind as a result. He further emphasised that people are now far healthier than they ever were historically as a consequence of the eradication of diseases. He again emphasised that a lot of people currently had no experience of measles so they had forgotten the consequences of it.
235.	Dr G outlined, by way of overview, that the potential severity of contracting a disease against which vaccine will guard is far greater than the potential risk of any adverse reaction to the vaccine. He outlined clearly that the likelihood of a vaccine causing an adverse reaction was so low compared to the benefit obtained from the vaccination. He emphasised that he had no doubt that vaccination for infectious diseases was most effective in eradicating them and that he strongly believed vaccination was very safe.
236.	Dr G considered that there was no evidence to support the assertion that children who experience a “measles type” reaction (in circumstances where they do not record a positive test for the presence of measles) are exhibiting a reaction to the measles vaccination.
237.	Dr G noted that, when he had a patient who presented with an adverse reaction to vaccines he looked at the inserts provided by the manufacturers of the vaccine: sometimes an antibiotic or preservative might have caused the adverse reaction reported. He had concluded that there were some additives which may cause a reaction but said that these were unlikely to cause severe systemic responses in the recipient of the vaccine.
238.	Whilst Dr G accepted he had done very little particular research about the alleged adverse reactions allegedly caused by vaccination, his clinical experience and professional expertise is, I consider, such as to provide him with sufficient relevant expertise in relation to the likelihood of a child suffering an adverse reaction from the administration of vaccines.
239.	Dr G outlined that he was unaware of any procedure that could predict whether a potential recipient of the vaccine was going to react to it or not: he emphasised that doctors have given numerous vaccinations and that it is so rare for an adverse reaction to occur that when these do it comes as a surprise.
240.	He accepted that because measles had largely been eradicated a young child in Australia is at a fairly low risk of incurring the disease: he remained adamant that the measles vaccine will not cause measles to stay in the body, but rather will get rid of the virus.
241.	Dr G did not accept the contents of the frequencies of reactions in unvaccinated children to be as Dr K reported them to be. He said he held this view because he did not think studies had been done in Australia to assess that, noting that there is no reason for a vaccinated child to be more likely to develop measles – he emphasised that, in fact, the opposite is true.
242.	Dr G also outlined that the historical patterns of vaccination in relation to measles, mumps and diphtheria had been so successful that these diseases are very uncommon: the consequence of this is, he said, that it is highly likely that many unvaccinated children do not contract these diseases because they are not exposed to them. However, this “protection” afforded by the absence of the diseases in Australia (as a consequence of vaccination of the majority of the population) does not extend to protection against people travelling into Australia who may not have been vaccinated and who present a risk to the unvaccinated.
243.	Whilst Dr G accepted that he had not personally done any research in relation to unvaccinated children contracting and suffering an adverse effect from any of the diseases against which the standard vaccinations are intended to guard, he offered the opinion that the person who could answer that may be an infectious diseases expert. Neither Dr J nor Dr K have experience in that specialty. 
244.	Additionally, it does not appear that Dr J has personally undertaken any research in relation to unvaccinated children contracting and suffering an adverse effect from any of the diseases against which the standard vaccinations are intended to guard. Further, Dr K’s evidence appears to consist significantly of a literature review of articles in favour of anti-vaccination. That her affidavit contains not a single reference to any studies contrary to the suggestion that vaccination represents a risk to children undermines the quality of her evidence. She does not, for example, detail the results of studies which have suggested that vaccination has proven successful in protecting populations and outline her reasoning about why such research is flawed. Rather, it seems to me that she seeks to present only that research which she advances supports her ultimate conclusions. 
245.	Dr G agreed with Dr K’s assertion that different people have different immunological responses in that one patient might receive one injection and have a strong ongoing response (resisting the onset of the disease) whilst others may need a “top up”:  however, this did not mean that vaccination was useless. He continued to express his adamant opinion that vaccines, whilst not perfect, are very, very successful in controlling disease and have a low risk of adverse effects. He thought that what Dr K was speaking about was that some vaccines do not always give protection: he said it is a common feature of immunology that one person might be protected as a result of receiving a vaccine, while another person might need more of the same vaccine in order to receive the same protection: he outlined clearly that, for most patients, vaccines provide long-term suppression of the diseases against which they are intended to protect.
246.	Dr G reiterated that measles was largely eradicated because of the measles vaccination and that few people developed tetanus despite coming into contact with the bacteria because of successful immunisation.
247.	Dr G also noted that it is very risky for people not to be vaccinated when travelling overseas: he noted that diseases which have been successfully eradicated in Australia because of the administration of vaccines are so common overseas. He outlined his opinion that the mother was taking a big risk in not immunising the child.
248.	It is possible, in one sense, to infer that the particularised travel injunctions sought by the mother - which would prevent the child from travelling to any country located on the continents of Asia, Africa, Middle East or South America or to any country which is classified as a “developing country” - constitute a tacit acknowledgment of the risks associated with not vaccinating the child: especially given Dr G’s evidence that an unvaccinated person who travels to a third world country where the diseases against which vaccinations are prevalent would be at a high risk of developing the disease. 
249.	I accept that Dr G did not say that the child’s risk of getting diseases against which he can be immunised is extremely high. I conclude that this is the case because of the consequences of vaccination in Australia and its impact upon the eradication of the diseases in this country. 
250.	Dr G did not accept that the child’s risk of exhibiting an adverse outcome from the administration of vaccine was adversely high. He said the child was at no greater risk than anyone else and that there was no reason to think he was likely to react to vaccination more adversely than anyone else.
251.	Dr G said that, if the child is exposed to someone who is a carrier of the disease, he is at a high risk of contracting that disease. Whilst he accepted the child had a low risk of contracting disease in Australia, he emphasised that if he encountered measles, he was more likely to react to it than a child who had been vaccinated. Dr G was at pains to emphasise that the diseases against which vaccines protect are very dangerous and can cause very dangerous long-term effects: he emphasised that they are not trivial at all.
252.	Dr G continued to emphasise that the risk of any adverse reaction to the vaccine is extremely low. He said that, whilst the risk of contracting diseases against which vaccines protect is low in Australia, it is not zero – an unvaccinated child retains the risk of contracting those diseases if not vaccinated. That is, if exposed to the disease the risk of contraction is very high for an unvaccinated person.
253.	When asked his opinion about the impact of aluminium, Dr G said it was useful for controlling indigestion but there was no evidence to suggest that it had any use as a supplement to prevent allergy or the immune system. He rejected the contention that aluminium had a priming effect on an immune system. When asked why aluminium was present in vaccines, Dr G outlined that it had been shown it made vaccines work more effectively: it made the injections safer and better and, in that sense, he conceded it may be useful but there was no evidence and no reason to believe that aluminium supplements themselves stimulated the immune system.
254.	Dr G was sceptical about some of the data portrayed in graphs exhibited to Dr J’s affidavits. His points – which included that there is limited information about the meaning of terms such as “widespread vaccination introduce” or the basis relied upon for this summary term – seemed to me to be persuasive.
255.	Given my analysis of Dr J’s willingness to approach her involvement with the child on the basis of unquestioning acceptance of the mother’s assertion that she had suffered an adverse reaction from vaccination and Dr K’s similar willingness to proceed only on the basis of information provided by the mother and her catalytic reliance on her reported observations of the health issues encountered by her cat after receiving vaccine, I prefer the evidence of Dr G to that given by Drs J and K. 
256.	I consider his expertise and practical experience in treating children over about 40 years is significant : this timeframe enables him to speak with real authority about:
a)	the very significant potential risk and consequences to the child if he remains unvaccinated and is exposed to diseases which enter Australia as a consequence of an unvaccinated traveller coming into this country; and 
b)	the very minimal risks which receipt of vaccinations pose to the child.
257.	Whilst the mother submitted, amongst other things, that there is no necessity for the child to be immunised while he does not travel outside Australia or to any third world country, such submission ignores the reality of people travelling into Australia. 
258.	I consider that the consequences for the child of contracting a disease against which he may be vaccinated are so significant that they significantly weigh against the grant of an injunction prohibiting the administration of vaccine. Whilst it may be that the risk of the child contracting diseases against which he can be vaccinated is minimised (as a consequence of vaccines having been administered to other children in the Australian community), such risk is affected in an indeterminate way by the presence in this country of travellers from overseas. While ever the child remains un-vaccinated, he remains at risk of contracting these diseases; in contrast, if he is immunised, the presence of a person with such a disease in Australia will be entirely irrelevant to him.
259.	Having regard to the above, I am not persuaded that an order restraining the father from having the child vaccinated is appropriate for the child’s welfare or in his best interests.
260.	On the basis of my acceptance of and preference for Dr G’s evidence to that of Dr J, I am also unpersuaded that the additional tranche of mandatory injunctions sought by the mother are appropriate for the child’s welfare or in his best interests. I am not persuaded by Dr J’s evidence that such further testing is necessary for the child, who has been assessed by Dr G as healthy. To require that the child undergo a further regime of testing in such a circumstance cannot be considered to be in his best interests or something that is appropriate for his welfare.

I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 17 July 2015

Associate:  		

Date:  			17 July 2015