Adderley & Wiley
[2022] FedCFamC2F 1034
Federal Circuit and Family Court of Australia
(DIVISION 2)
Adderley & Wiley [2022] FedCFamC2F 1034
File number(s): NCC 593 of 2020 Judgment of: JUDGE KEARNEY Date of judgment: 8 August 2022 Catchwords: FAMILY LAW – parenting – parental responsibility for 10 year old child – whether to change week-about time regime - where no previous regularised communication when child with other parent – exposure to parental conflict and knowledge of Court proceedings – poor communication between the parties – sole parental responsibility and live with mother appropriate – regular time with father - regularised communication when child living with other parent – alternate weeks only in school holidays – meaningful relationships will be promoted - best interests of child to also meet emotional needs Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton [2009] FamCAFC 229 at [75]
Mazorski & Albright [2007] FamCA 520
Division: Division 2 Family Law Number of paragraphs: 129 Date of hearing: 20-21 June 2022 Place: Newcastle Counsel for the Applicant: Mr W Tregilgas Solicitor for the Applicant: Arnold Lawyers Solicitor for the Respondent: Self represented litigant ORDERS
NCC 593 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ADDERLEY
Applicant
AND: MR WILEY
Respondent
order made by:
JUDGE KEARNEY
DATE OF ORDER:
8 August 2022
THE COURT ORDERS THAT:
1.The applicant, Ms Adderley (‘the mother’) shall have sole parental responsibility for the child X born in 2011 (‘X’).
2.X shall live with the mother.
3.X shall spend time with the respondent, Mr Wiley (‘the father’) as agreed in writing between the parties but failing agreement as follows:
(a)Each alternate weekend, including school holidays, from after school or 3:00pm Friday until before school or 9:00am Monday, commencing on Friday 12 August 2022;
(b)Each alternate Wednesday, except during school holidays, from after school or 3:00pm until before school or 9:00am Thursday, commencing on Wednesday 17 August 2022;
(c)During the school holidays, continuing on from the conclusion of the weekend in clause 3(a) above for the following week until 3:00pm on the following Friday.
4.When X is not in the care of a party, X shall communicate with that party via telephone or audio-visual means as agreed in writing between the parties but failing agreement as follows:
(a)With the father each Tuesday and Thursday between 7:00pm and 7:30pm with the father to contact X via the telephone number/electronic link provided by the mother; and
(b)With the mother every two days between 7:00pm and 7:30pm with the mother to contact X via the telephone number/electronic link provided by the father.
NOTING THAT to avoid any confusion “two days” means for example that if X is spending a weekend with the father starting on a Friday, that a phone call should occur on the Sunday.
5.To facilitate Order 4, the mother and the father shall ensure that:
(a)X is available to receive the telephone call; and
(b)X has privacy during his communication with the other party.
6.Notwithstanding any other orders, X shall spend time with each party on special occasions as set out below:
(a)Father’s Day - With the father on Father’s Day, being a Sunday, from 9:00am until before school or 9:00 am Monday;
(b)X’s birthday –
(i)With the father, in 2022 and each following alternate year, from 3:00pm on the day before X’s birthday until 9:30am on X’s birthday and in 2023 and each following alternate year, from 9:30am to 3:00pm on X’s birthday.
(ii)With the mother, in 2022 and each following alternate year, from 9:30am to 3:00pm on X’s birthday and in 2023 and each following alternate year, from 3:00pm on the day before X’s birthday until 9.30am on X’s birthday;
(c)Christmas –
(i)With the father, in 2022 and each following alternate year, from 2:00pm Christmas Eve until 2:00pm Christmas Day and 2023 and each following alternate year, from 2:00pm Christmas Day until 2:00pm Boxing Day; and
(ii)With the mother, in 2022 and each following alternate year, from 2:00pm Christmas Day until 2:00pm Boxing Day and in 2023 and each following alternate year, from 2:00pm Christmas Eve until 2:00pm Christmas Day.
(d)Mother’s Day - With the mother on Mother’s Day, being a Sunday, from 9:00am until before school or 9:00am Monday
7.To facilitate Orders 2, 3 and 6, changeovers shall occur as specified below:
(a)Wherever possible, at X’s school whether by bus or other school transport or by the parties collecting X from school at the commencement of their time with him and returning X to school at the conclusion of their time with him;
(b)If not possible by the parties collecting X as per Order 7(a), THEN from the McDonald’s Restaurant at Suburb B at the commencement of their time with X and returning X to the McDonald’s restaurant at Suburb B at the conclusion of their time with X; and
(c)in the event that either party anticipates that they will be in excess of fifteen (15) minutes late for changeover for whatever reason, they will advise the other party either by telephoning the other party or forwarding a SMS text message to the other party’s mobile telephone.
8.The mother and the father shall keep each other informed in writing of their residential address and contact telephone number (either a land line, mobile telephone or both if parents have both connected) and shall advise the other party in writing within seven (7) days prior to any change occurring.
9.The mother and the father shall keep each other informed of any significant events in X’s life and any sport/dance/extra-curricular activities/clubs/association X attends from time to time, in writing.
10.The mother and the father shall administer any medication and follow any treatment plan for X as directed by X’s doctor or medical professional and for that purpose each party shall keep other informed in writing of any medications or treatment plan pertaining to X.
11.No later than 22 August 2022, the mother and the father shall provide to each other, a list of the professional care providers for X and will advise the other in writing within twenty-four (24) hours of any changes to this list.
12.The mother and the father shall notify each other immediately in the case of an emergency concerning X whilst X is in their care and should X be hospitalised, both parents are at liberty to attend the hospital.
13.This order operates as an authority for any professional care provider for X (whether a day care, school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of X to both parties.
14.Should either party seek any documentation in relation to X (including but not limited to school notices, school reports, and school photograph order forms), the requesting party shall be at liberty to do so PROVIDED THAT the requesting party is responsible for any expenses involved.
15.The mother and the father shall be at liberty to attend parent-teacher interviews involving X and all other activities involving X to which parents would ordinarily attend including at the school/day care, other extra-curricular or other sporting activities.
16.The mother and the father shall ensure that all belongings of X taken to their respective residences while X is living or spending time with them are to be returned with X when they return X to the other party’s care.
17.The mother and the father are restrained from communicating with one another, except solely in relation to X and matters relating to the performance of these Orders.
18.During the time X is with either party, that parent shall:
(a)respect the privacy of the other party and not question X about the personal life of the other party;
(b)speak respectfully of the other party;
(c)not denigrate or insult the other party in the presence or hearing of X and shall immediately remove X from the presence or hearing of any third party doing so;
(d)not discuss with X any issues in dispute between the parties and shall immediately remove X from the presence or hearing of any third party doing so.
19.The parties shall be permitted to travel with X outside the Commonwealth of Australia during periods of time when he is living or spending time with either party and the following shall apply in respect of such travel:
(a)The parties shall do all acts and sign all necessary documents to ensure that at all times X has a valid passport;
(b)Otherwise than as required under these Orders, the mother shall have the possession of X’s passport at all times;
(c)The party intending to travel overseas with X shall give to the other party at least eight (8) weeks’ notice in writing of their intention to travel overseas with X including providing the party with a detailed itinerary, the dates and times of the intended travel and a contact telephone number for the party to communicate with X by telephone during the overseas holiday;
(d)Upon receipt of such notice in writing the second party shall deliver the passport to the first party;
(e)Upon a party providing to the other party the said notice in writing referred to in this Order; that party shall be permitted to remove X from the Commonwealth of Australia for the purpose of such overseas holiday;
(f)The travelling party shall return X to the Commonwealth of Australia at the conclusion of such overseas travel;
(g)Upon returning to the Commonwealth of Australia, the father shall deliver X’s passport to the mother within 48 hours of X returning to Australia.
20.In the event that the father allows X to ride on a motorcycle, the father shall ensure that X is dressed from head to toe in protective motorcycle gear including helmet, gloves, pants and jacket and with impact protectors for the shoulders, elbows, hips and knees.
21.All outstanding applications are otherwise dismissed.
22.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Adderley & Wiley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
Introduction
About seven years ago, the parents of a three-year-old boy separated and at the time, agreed that the boy should live week-about with each of them. Now the mother says I should change the boy’s lived experience so that he lives primarily with her and spends time with the father. In essence, the father says nothing should change. The Court has to decide what is best – change or continuity?
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth)[1] between the Applicant, MS ADDERLEY (‘the mother’) and the Respondent MR WILEY (‘the father’).
[1] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
Out of respect for each person’s gender and social status, other than the parties and the child, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns.
There is one child the subject of the dispute namely, X (‘X’) who is ten (10) years of age.
Noting there was consensus about a large majority of other orders, the main issues to be determined by the Court were:-
(a)The allocation of parental responsibility; and
(b)Whether, during school terms, X should live with his mother and spend four nights a fortnight with the father; or alternatively, that X should live equally with each party from Friday to Friday.
For the reasons that follow and by way of summary, I will order that:
(a)The mother shall have sole parental responsibility for X;
(b)X shall live with the mother;
(c)During school terms, X shall spend time with the father each fortnight from after school Friday to before school Monday and in the other week, from after school Wednesday to before school Thursday (‘term-time’).;
(d)For half school holidays on a week-about arrangement that flows from the weekend term-time; and
(e)Regularised telephone communication between X and the party with whom he is not spending time with; and
(f)Various orders to support X travelling overseas, the father having access to information about X and to otherwise protect X from various circumstances.
THE APPLICABLE LAW – Parenting Proceedings
In these proceedings, the parties invite me to make a ‘parenting order’ (s 64B) which I can, provided I think it is ‘proper’ (s 65D) to do so in light of the objects of the Family Law Act 1975 (Cth) and the underpinning principles of those objects (s 60B).
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and ss 60CC (2) and (3) set out the matters to which I must have regard to in doing so.
In Aldridge & Keaton [2009] FamCAFC 229 at [75], the Full Court said this –
75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
• the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
• the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
• that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child's best interests.
The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
In Mazorski & Albright [2007] FamCA 520 Brown J had to determine an interstate relocation case where the subject child was just over two years of age. At paragraph [26], Her Honour said this –
26. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
(my emphasis)
Put another way, s 60CC(2)(a) does not invite a Court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in that child’s best interests. It may be that to do so would simply increase the child’s potential (if not real) exposure to parental conflict between two people they may love and for whom the child would have adverse feelings including sadness, distress or anger by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings. Conversely, a reduction to time does not necessarily mean a reduction in the meaningful relationship between a child and a parent.
The other paramount consideration (which takes precedence over the benefit to the child arising from a meaningful relationship with parents) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). I have not explored this any further because –
·no submission was made that either party posed a risk of harm from those factors; and/or
·the evidence did not support it.
Whenever the Court is asked to make a parenting order (even in circumstances where there is no contest about the allocation of parental responsibility), the Court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility: s 61DA. Section 61B defines “parental responsibility” as encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example, instances of child abuse and family violence (s 61DA(2)). If the Court finds that it is not in a child’s best interests for the parents to have equal shared parental responsibility then the presumption can be rebutted: s 61DA(4).
If I allocate equal shared parental responsibility I am mandated to consider whether the child should live equally with each parent because I am satisfied that it is –
(a)Firstly, in the best interests of the child; and
(b)Secondly, it is reasonably practicable to do so.
If I am not satisfied to do so, then I am mandated to consider the child living with one parent and spending ‘substantial and significant’ time with the other - provided that the same findings referred to above have this time been made out.
‘Substantial and significant time’ includes not only weekends and holidays but also at other times so as, taking a holistic approach, the parent can participate in occasions and events that are of particular significance to the child and vice versa: s 65DAA(3)
If after considering and rejecting firstly equal time and then ‘substantial and significant’ time, then the allocation of less than ‘substantial and significant’ time to one parent is ‘at large’.
The evidence
The mother read and/or relied upon the following documents:-
(a)Affidavit of Ms Adderley filed 16 July 2021;[2]
(b)Affidavit of Mr C filed 16 July 2021; [3]
(c)The mother’s Outline of Case document filed on 12 August 2021 – marked Exhibit ‘M1’;
(d)The mother’s proposed order #20 to be read in lieu of order #20 contained within the minute of order set out with her Outline of Case document – marked Exhibit ‘M2’.
[2] Referred to as ‘’ with numbered paragraphs and alpha-annexures identified in square brackets
[3] Referred to as ‘’ with numbered paragraphs identified in square brackets
The father read and/or relied upon the following documents:-
(a)Affidavit of Mr Wiley filed 21 September 2021;[4]
(b)Affidavit of Ms D filed 21 September 2021;[5]
(c)The father’s Outline of Case document filed 16 June 2022 – marked Exhibit ‘F1’;
(d)The father’s proposed minute of order – marked Exhibit ‘F2’;
(e)Various exhibits marked ‘F3’ to ‘F5’.
[4] Referred to as ‘’ with numbered paragraphs identified in square brackets
[5] Referred to as “” with numbered paragraphs identified in square brackets
In addition, I was asked to read the family report dated 27 November 2020 - marked Exhibit ‘A’[6]; which was prepared by regulation 7 family consultant Mr E (as he then was and to whom I will now refer to as ‘the child expert’).
[6] Referred to as ‘FR’ with numbered paragraphs identified in square brackets
My observation of the parties was that they both did their best to give honest and accurate accounts when giving their evidence. Where I was not satisfied that their evidence was credible or otherwise should not be preferred over another version or document, I will do so and explain the reason why.
I found the child expert to give measured and thorough evidence with the basis of their opinion clearly expressed. On that basis, unless I make a finding or express a reservation to the contrary, wherever there were inconsistencies between the evidence of a party/witness and the child expert, I preferred the evidence of the child expert.
Before setting out a chronology of the parties’ circumstances I will canvass their proposals.
PARTIES’ PROPOSALS
Taking a broad brush approach, the mother’s proposal (as articulated within Exhibit ‘M1’) was that:
(a)The mother have sole parental responsibility for X;
(b)X live with her;
(c)X spend time with the father during school terms for four nights each fortnight consisting of three nights in one week (Friday to Monday) and one night in the alternate week (overnight Wednesday);
(d)X spend time with each party in school holidays in a week-about regime;
(e)X spend time with one or other of the parties (as may be applicable) on special occasions including Father’s Day, Mother’s Day, during Christmas time and on his birthday;
(f)X communicate with the mother not more than once every second day that he is spending time with the father with various restraints imposed to ensure the calls occur and are not monitored;
(g)Changeovers occur at X’s school or failing that at the McDonald’s Restaurant at Suburb B;
(h)Various orders to support the flow of information between the parties notwithstanding the allocation of sole parental responsibility to the mother and to otherwise limit any prospect of X being exposed to parental conflict;
(i)X being able to secure an Australian passport;
(j)X wearing specified protective clothing at all times when he is travelling on a motorcycle; and
(k)Ancillary orders to support the overall parenting regime.
Exhibit ‘F2’ is the father’s proposed minute of order which in summary sought that –
(a)The parties have equal shared parental responsibility for X;
(b)X live week-about with each party (Friday to Friday) during school terms and during school holidays unless during school holidays, an event is proposed that would alter that regime and which is then accepted by the other party;
(c)Orders that largely adopted the mother’s position as outlined above except to better clarify how international travel would be facilitated between the parties. Notably the father did not seek to regularise communication between X and the parent with whom is not spending time with but did make reference to how such communication could be facilitated.
During the course of submissions, the parties agreed to adopt the father’s proposal for international travel and the mother’s revised proposal about what protective measures needed to be taken by the father when X is travelling on a motorcycle. In addition, and although not articulated as an alternate position within his formal proposal[7], in submissions, the father said that if I was minded to change the existing arrangement, such that X were to live with the mother, the father submitted that X spending five (5) nights with him each fortnight would be better than four (4).
[7] See Exhibit ‘F2’
In order to consider the various applications, it is necessary for me to set out a chronology of the parties’ circumstances.
Statements of facts set out below shall constitute findings of fact unless otherwise expressed. Despite all the evidence not being set out below, I have read all the evidence and carefully considered the questions and answers given, but if the evidence was not relevant to the issues and/or I was unable to make a clear finding because there was a contest, then I have not included that evidence.
Chronology
In 1980 the mother was born and she is aged 42 years.
In 1984 the father was born and he is aged 38 years.
In either 2010 or 2011 the parties commenced cohabitation.
X was born in 2011.
The parties separated in either 2013 or 2015 when X was either less than two (2) or over three (3) years of age.[8] At the time the mother and X moved out of the family home at Suburb F. The father says that the parties mutually agreed to X living week-about arrangement at the time (‘equal time regime’), being Friday to Friday. The mother told the Court that at the time she did not “totally agree…I felt like he should have been more with me.”
[8] FR[8]
It was common ground that during and after their relationship there was no physical family violence between the parties.
In 2015 the father and Ms D (‘MS D’) commenced a relationship. MS D is an Country G citizen.
In 2015 the father and MS D commenced cohabitation.
In unchallenged evidence the mother’s affidavit records that since 2016, X asked to spend more time with her, rather than return to his father on the Friday as per the equal time regime.
In 2017 the mother and Mr C (‘MR C’) commenced a relationship.
In June 2018 the mother and MR C commenced cohabitation. MR C has three adult children arising from a past relationship (either biological or step-).
In mid-2018, the mother says that the father unilaterally had X’s hair cut. The mother was unhappy with the result and when she expressed this unhappiness, the father said that if she changed it he would ”shave it all off”. In support of her concerns the mother sought a restraint. However I am unwilling to make a finding and as a result I do not intend to make the restraint as sought. This because of the passage of time since (with no further issues deposed to) and the lack of any cross-examination about this point (perhaps rightfully so because of the outdated nature of the evidence).
The child expert observed in the family report that the mother had growing concerns about X’s emotional wellbeing since about 2019.[9] The father told the Court that he was unaware of any such concerns until he was served with the mother’s initiating application and supporting material in early 2020. This evidence appears inconsistent with the s 60I certificate prepared by Mr H (and filed by the mother when commencing the proceedings) which recorded that the parties had attended family dispute resolution (‘the FDR’) in June 2019, but had failed to resolve their issues in dispute.
[9] FR[64]
In May 2019, the mother says that a discussion occurred between her and X during which the child was stuttering. The flavour of the conversation was that X was aware of the Court proceedings and that the father had told him that the mother was trying to take him off the father. The father denied having such a conversation and denied that X currently stutters in his care. This evidence is incongruent with the mother’s evidence insofar as she says that to this day, when X returns from the father’s home his stutter is more noticeable[10], something that was not challenged when the mother was cross-examined.
[10] [49]
In September 2019 the parties were in conflict because the mother withheld X in her care whilst the father and MS D were overseas (City J, Country G). The father’s flight was late coming in and this intruded upon the start of the equal time regime in the father’s household. The father preferred that X stay with the paternal grandmother, but the mother said that X had not wanted to go, preferring to wait until the father returned. Following his return to Australia, the father collected X from MR C at the front of the mother’s home. The two men said harsh words to each other and regrettably X was present. The father agreed that he would have said words to the effect of “this is none of your business” and that he was tired after the long flight and upset about the mother’s decision to withhold X. The father was unsure whether X had heard all of the conversation between him and MR C. During the family report interview, X described his experience as “like a disaster” and that he had wanted to stay with the mother and not go to the paternal grandmother’s home.[11] The impact of this exposure upon X resonated with me given that he was able to describe it in such a manner in November 2020 (over a year after it happened).
[11] FR [87]
When cross-examining the mother about why she would not let X spend time with the paternal grandmother (in his absence), the father emphasised that the time was “my week” and accused her of withholding X from him. In my view, this demonstrated the father’s rigid and inflexible approach to the implementation of the equal time regime. In response and quite properly in my view, the mother said she didn’t accept that proposition because the father wasn’t there – he was overseas.
In early 2020, MS D had moved out of his home citing that their “patterns of living” (relating to his night-shift work, her working commitments and the care of X) meant that she and the father had not spent a great deal of time together as a couple. The father was clear to say in cross-examination that since about October 2020, MS D had resumed living with him for half the time (when X was with them) and that they remained in a committed relationship. At paragraph 1 of her affidavit, MS D gave evidence that in August 2021, the de facto relationship had been reinstated.
In February 2020 the mother commenced these proceedings and it is common ground that at the time, the parties’ ability to communicate deteriorated with the mother saying that communication “wasn’t great” but it was better before the proceedings started.
In March 2020 the father filed his material in response to the mother’s application. That same month, the mother records X being aware of his aunt Ms K seeing the mother’s affidavit (and showing it to him) and described the father and his aunt as being “pissed off” with the mother. The father denied showing X the affidavit but agreed that Ms K had read the affidavit and that he (the father) had been “annoyed” about its content.
On 31 March 2020, interlocutory orders were made restraining the parties from denigrating each other in the presence of X and discussing the proceedings with him or showing him any documents related to the proceedings. Otherwise no other parenting orders were made to disrupt the equal time regime.
On 2 April 2020 the mother saw her general physician, Dr L and the medical note[12] records the mother feeling stressed and experiencing emotional abuse that no one can see. The mother sought counselling support so that she could learn strategies to cope. The mother also thought it would be helpful for X to be able to talk to someone and let his feelings out. In cross‑examination the mother said that a mental health care plan[13] (‘MHCP’) was secured for X which identified X having generalised anxiety. The mother said that she had tried to secure an appointment but that no one would see X because of the ongoing litigation.
[12] Exhibit ‘F3’
[13] Exhibit ‘F4’
Later that same month, the mother said that X told her that he had stayed with the paternal grandmother whilst his father had to go to Court and said that when his father returned, he told him “We won mate” and high-fived him.[14] In cross-examination the father agreed he told X that he was going to Court, denied the phrase X had used, but did say to X that things were “staying the same”. The father then denied in cross-examination that he talked to X about the proceedings, which was completely unsatisfactory given his just-made concession about doing so.
[14] [33(d)]
In about September 2020, the mother said that X reported to her that he had heard his father use “the f-word” and call MS D a “bitch and a coward” and that MS D had cried in front of him.[15] In cross-examination the father denied these events and asserted the mother had coached X to say these things or that X had made them up. MS D also denied the allegations.
[15] [28]
On 19 November 2020 the family participated in the family report process and on 30 November 2020 the family report was released. The mother rejected the father’s proposition that X was too young to understand what was happening when he was being interviewed, saying that X had told the truth.
The father agreed that he told the child expert he wanted what X wanted.[16]
[16] FR [16]
When X was interviewed he was recorded as saying things like –
·His father was “mostly angry” and “has annoying bad jokes” (like tricking him into eating a chilli when X was led to believe it was a capsicum and after he became distressed, the father sent him to his room)[17];
·His father would denigrate the mother and MR C but the mother had not done the reverse to the father or MS D[18];
·If he had a magic wand to make his life better he would like “dad not to be so angry and aggressive, and then me and dad could have a happy life”[19];
·His father had called MS D a “coward” and that MS D had often cried. He said in comparison, his mother and MR C get on “much better”.[20]
[17] FR [83]
[18] FR [85]
[19] FR [89]
[20] FR [91]
In cross-examination X’s recorded expressions were put to the father who denied them, or said – in the case of the bad joke incident – that it could possibly have happened but he would not have sent him to his room. Overall, the father’s view was that X was making things up or had been influenced by the mother (with whom he was living during the week of the interviews). The father’s dismissive attitude about X’s reported views (from an independent source) struck me as ironic given the father agreed that the decision he wanted me to make was what X wanted.
Overall, X’s reporting of life in his mother’s household painted a picture of a calm happy life which he poignantly described as “kinder”.[21] The child expert said that by the manner in which X described his relationship with the mother (including what they do together), it was apparent to the child expert that X is more engaged with the mother than the father.
[21] FR [86]
X appeared to acknowledge the fairness to his parents and him in maintaining the equal time regime, but after acknowledging that his father has yelled at his mother, said that he would like to spend more time with his mother.[22]
[22] FR [86] & [88]
At paragraphs 43 and 97 of the family report, the child expert wrote this –
43.What remains overtly clear to the Family Consultant is that [X] has a clear view of his experiences with each of his parents and is able to differentiate that to the point where he was able to express to the Family Consultant that he would like to spend more time with his mother. Both parents need to note X’s comments.
97.Whilst [Mr Wiley]’s desire to be a committed parent remains strong and current, particularly given that he has a view that his own father has not been a consistent feature in his life, it remains imperative that [Mr Wiley] recognises the significance of [X]’s comments and does not lay blame for this upon the mother. He must accept responsibility for [X]’s stated beliefs and observations and it is thus incumbent upon the father to ensure that he becomes more acquainted with young children’s needs in a manner which will be more nurturing for [X] and make it more attractive for [X] to continue spending time with him, particularly during his puberty and adolescent years.
(my emphasis)
During cross-examination, the child expert maintained that X’s expressions to him were X’s view and that X’s presentation and answers did not suggest that he had been coached by either party.
In support of this oral evidence, the child expert was taken to paragraphs 81 to 91 of the family report which recorded the interview with X. The child expert said that X’s responses were “insightful” and not “superficial”. The child expert told the Court that some weight should be given to X’s views because of the mature and frank manner in which he was able to reflect upon his circumstances when speaking to the child expert. The child expert acknowledged that he did not know X’s current views, given their only meeting occurred in November 2020.
Through cross-examination by the father, the child expert’s recommendations for X to spend time with the father for four (4) consecutive nights a fortnight and dinner one night in the other week were explored. The child expert did not resile from his recommendations saying this would be the “ideal” arrangement for X.
The child expert told the Court that from his observations and reading of the material before him, the mother was and would remain supportive of X having a relationship with the father.
The child expert was informed of the mother’s proposal for X to spend time with the father four (4) nights a fortnight. When asked whether X had the emotional capacity to manage this change to his lived circumstances, the child expert answered by saying that as the mother would support X’s relationship with the father, he considered X would be able to manage.
In submissions, the father said that the family report was outdated and no longer reflected the current situation (or views of X).
Following the release of the report, it was common ground that the mother withheld X. The mother said that that X was scared of what his father would think about what he had told the child expert and she sent the father a text message telling him of her decision.
It was common ground that up until 2021, the mother had never had X in her care on Mother’s Day, with the father saying either she had never asked or (in the text messages annexed to the mother’s affidavit) he had offered her time but until 2021 she had never asked. Nonetheless, in 2021 the mother did ask on the Tuesday before Mother’s Day, but the father decided not to respond until after X came into his care on the Friday beforehand (implying he needed X’s input). At that time the father texted back suggesting a morning arrangement would be suitable but by then, the mother said she had organised something in the afternoon. The father queried why X had been given a mobile phone saying that –
…Surely the supply of a mobile phone to a 9yr old would be discussed between parents before procedure was commenced.
The father then sent a further message saying he had been unable to re-arrange the afternoon, apologising for the inconvenience and leaving open the offer of a morning visit. Further text messages ensued with the father’s messages being somewhat clipped and almost dismissive of the mother’s desire to simply spend time with X, implying that X would miss out on his preference (a sports lesson) because of the re-scheduling that has occurred to accommodate time with the mother. From the face of the text messages, the mobile phone issue remained unresolved and in tandem, the parties’ discourse on the issue of Mother’s Day and the mobile phone amply fitted MR C’s description of a cold text war (see MR C’s affidavit at paragraph 13).
In his affidavit of September 2021, the father says at paragraph 37(g) that in the past year, he has improved/changed the way he addresses messages to the mother. If that is so, then I have to wonder about the father’s insight into the appropriateness of his communication to the mother about Mother’s Day 2021. This unsatisfactory evidence was only compounded in cross-examination when the father rejected the assertion that he simply should have made a decision rather than seeking X’s input three days later on the Friday. The father said that MS D and the paternal grandmother were important to X as well.
The father submitted that I look carefully at X’s 2021 semester one school report card[23] which I did. The report card demonstrates that at least in that semester X was a kind, enthusiastic and self-disciplined student who was consistently able to develop positive relationships with his peers. It is also worth noting that in order to give context to Exhibit ‘F5’, I have also had regard to all of the other school reports that were annexed to the mother’s affidavit.
[23] Exhibit ‘F5’
The father contended that the above report demonstrated how well X was going at school and that I could safely infer that this could be translated into his current lived experience. The point of the submission was that to change X’s lived experience would risk adverse outcomes for X. I have taken on-board the father’s submissions but they are of limited weight given that another year has passed (with no updating school records put before me) and no one is suggesting that X will be moved from his current school.
A summary of the evidence shows that on both X’s academic and social progress at school, both parties agree that their son has come a long way since 2017. Sadly both parties’ evidence suggests that they blame each other for why X has not been able to regularly communicate with the other party with whom he has not been living with that week.
In his trial affidavit at paragraph 43(d), the father challenged the mother’s parental values when saying that she wants to instil the beliefs of the catholic curriculum and school’s teachings in X. The father recited one of the core teachings of the Catholic faith to be the sanctity of marriage and then sets out three examples of intimate relationships the mother has had (including her current relationship with MR C) that he says exemplify her failure to uphold that core teaching. In the interests of not further stoking the parental conflict, I do not intend to particularise the father’s allegations against the mother, save to say that the father is clearly passionate about the mother’s perceived moral failure.
In interview, MR C reported the father calling him a paedophile and a drunk[24]. When this allegation was put to the father in cross-examination he was evasive in his response saying that he had seen beer cans everywhere and that MR C enjoyed drinking a lot of beer. Even if I have it wrong and the father did categorically deny saying those things about MR C, I was left with the impression that, in tandem with paragraph 43(d) of his trial affidavit, the father holds a level of antipathy towards the mother’s partner which may well feed into the parties’ declining communication since at least the commencement of these proceedings.
[24] FR [76]
The mother told the Court that currently the parties don’t talk and their communication is “poor”.
X is in year 5 at M School at City N. The mother agreed that X responds better to male role models and the manner in which she gave evidence about his experience of male teachers at school demonstrated good insight on her part about the needs of her son. The mother told the Court that X is unhappy and is in an emotional state because (she says) the father keeps talking to X about the proceedings and X tells the mother that he thinks that she is trying to take the father away from him. When asked by the father how X would respond to a change in his living arrangements (as sought by her), the mother said that –
“He might be upset for a little while of course, but he will be better”.
When speaking of X, the father described him “as a bit of crowd pleaser” and that over the last 12 months his views have become much stronger, saying his son has no problems speaking his mind and that in summary X has said nothing to him to suggest his unhappiness with the equal time regime. The family report records the mother calling X a “people pleaser” and in her affidavit she says he has told her he wants to spend more time with her.
In that context, and given the ongoing dispute between the parties about what time X should spend with each of them (and his knowledge of this, at least insofar as what the father acknowledged telling him and his interview with the child expert); it is unsurprising to me that X’s presentation in each household is in stark contrast to what the other household experiences. In other words, I accept that X likely does present as content in each of their household whilst at the same time telling them adverse information about the other. He wants to please both of them whilst internally he may be experiencing anxiety at the loyalty demands being placed upon him because he knows about the Court proceedings and that his parents are in dispute about him.
The father and MS D are expecting their first child together in 2022.
ANALYSIS
The primary considerations
Section 60CC(2)(a) & (b)
Section 60CC(2)(a) mandates that I consider the benefit of X having a meaningful relationship with both his parents.
It is uncontested that X currently has and will benefit from a meaningful relationship with both his parents and that there are no risk issues in this case insofar as paramount considerations are concerned.
Additional considerations
Section 60CC(3)
I have had regard to all the additional considerations but have decided to focus only on those that I considered to be significant in my decision-making.
Section 60CC(3)(a)
X is ten (10) years of age. Both parties agree his personality is skewed towards wanting to please others and his school reports suggest a kind child. Both parties tell me that X presents in their households in a way that is consistent with their partisan views about what X’s future living arrangements should look like. There is no doubt that X is aware of those competing views given –
(a)the father told him in April 2020 that he had been to Court and nothing was going to change;
(b)X spoke candidly to the child expert in November 2020 about his lived experience in both households, which in summary was that whilst he knew it was fairer to keep the equal time regime, he wanted to live more of the time with his mother;
(c)X was then withheld by the mother for a period of time following the release of the family report because she said that X was worried about how his father would react to what X told the family report writer.
I have had careful regard to X’s age and stage of development when he expressed the views recorded previously in this judgment (and more comprehensively in the family report). At that time, the child expert was impressed with the maturity and frank manner in which X spoke and I accept his assessment that X’s answers did not suggest any coaching from either party.
Given my earlier comments about X’s natural inclination to please those around him, I do not intend to rely on anything either party has said about X’s current views.
I have given some weight to X’s views from November 2020 as well as noting the child expert’s view of the closer engagement that X was observed to have with the mother.
Section 60CC(3)(b)
I have already commented on the nature of X’s relationships with the parties. There was no persuasive evidence against me finding that X has a good relationship with both MS D and MR C. I acknowledge that X will have a new half-sibling in the father’s household from December 2022 but in the circumstances, I cannot speculate any further on this aspect.
Section 60CC(3)(d)
The child expert was clear to say that X has a capacity to navigate the change of circumstances proposed by the mother because of his view that the mother will continue to support X’s relationship with the father.
I recognise that the father holds concerns about the impacts for X from any change, but note his submission that if it has to happen then the more time he can spend with his son the better. I will return to the “qualitative” aspect of that decision later in my decision.
I had the benefit of reading the mother’s evidence and seeing her in the witness box being personally cross-examined by the father. She did not present as anything other than exhausted by the ongoing conflict between the parties that has arisen in recent times. I did not apprehend there to be any malice in the decisions she has taken (for example in withholding X after the family report was released in November 2020 nor when the father was overdue on his return to Australia in September 2019). There was nothing to suggest that she has coached X to think badly of his father.
On that basis I accept the child expert’s view about X’s resilience and that whilst, as the mother says, X will be “upset for a little while”, he will improve such that I am satisfied that there will be no ongoing adverse impacts to X’s relationships with the parties (and with other members of the parties’ household) if there was a change in the equal time regime.
Section 60CC(3)(f)
It is uncontroversial that X is a sensitive child who wants to please everyone. With these personality traits in mind, the father’s capacity to meet the emotional needs of X was of some weight in this matter.
In uncontested evidence, as early as September 2019 the evidence demonstrates that the father came over to the mother’s home to collect X and was unable to regulate his emotions meaning that X was exposed to the parental conflict. That conflict clearly had a lasting impact on X when over a year later he was able to recall the events, describing them “as a disaster”.
Focusing on that event, the father continues to maintain an inflexible attitude that the mother was wrong in withholding X not because of anything to do with X, but simply because it was “his week”. The reality was that for reasons outside of the control of X and the mother, the father was overseas when his week was to start and understandably, the mother decided not to send X to the paternal grandmother when the father was still overseas, and X had expressed a desire to stay with her until his father returned home.
Then in March 2020 it appears (whether deliberately or otherwise), X was further exposed to the conflict because he was able to recount to the mother that his paternal aunt had shown him the mother’s affidavit and that both she and his father were unhappy with the mother. The father disputes any of this occurring but acknowledges that his sister was shown the affidavit and that he was “annoyed” with the mother. The observations made by X could only have occurred in the father’s household and it is far too coincidental for me to simply ignore the similarities in the circumstances between what the father says happened and what X reported to his mother.
Early in April 2020 X was diagnosed with generalised anxiety although to be fair to the father, it was unclear whether he was informed of this diagnosis which is something that should have occurred if these parties had a good co-parenting relationship. The mother should have told the father about the steps she had taken so that both of them could work with any future therapist to help X when he was staying in their respective households. As it turned out X never got the benefit of such therapy despite the mother’s efforts.
Later in that month, the father decided it was a good idea to tell X he had been to Court and what the outcome had been when this would only have reinforced to X the parental conflict between two people he loves. The father saw no difficulty in doing so and then gave inconsistent evidence about talking to X about the proceedings when clearly he had.
When describing his circumstances to the child expert, X described the mother’s household as much “kinder”. He gave specific examples to the child expert which the child expert described as “insightful”. The father either denied the events described by X or minimised them. I accept the child expert’s view that X had not displayed signs of being coached and that X had good reasons for saying his mother’s household was “kinder”. The manner in which the father presented his evidence did not suggest he had reflected on his son’s lived experience, he simply took the view that X was making it up or had been influenced by the mother.
This lack of insight into X’s emotional needs was then reinforced by the father’s attitude towards Mother’s Day 2021. In circumstances where it is uncontroversial that X has a loving relationship with the mother, it was illogical for the father to think he needed to hear from X before deciding what time X should spend with his mother on Mother’s Day. By leaving it until X came into his care and then asking him about it, he –
·placed X in an unenviable position of having to tell his father that he preferred seeing his mother over activities that he would have known his father had planned for him (which demonstrably would have cut across X’s “people pleaser” personality); and
·would have known that the delay would leave the mother unable to make any plans until he got back to her. At its best the evidence suggests that the father’s attitude towards the importance of Mother’s Day was minimalised and at its worst, his behaviour could be seen as a blatant attempt to assert power and control over the mother.
Either way I have had regard to the circumstances around Mother’s Day 2021 when considering the father’s ability to meet X’s emotional needs rather than putting his own needs first.
The child expert urged the father to reflect on what X reported to him and not to lay blame on the mother. Having read the family report and having over 18 months to reflect upon it, it was telling that overall, the father could not accept the statements were X’s lived experience.
Finally, the mother complained that the father would not permit regularised communication between X and her when the child was in the father’s household. Last year, the father queried why the mother had given X a mobile phone. Exhibit ‘F2’ palpably demonstrates the father’s view insofar as he does not seek to regularise communication between X and the parent with whom he is not spending time.
I found the father’s proposal disconcerting given that the father also proposed that the equal time regime continue throughout the year meaning that for seven nights in each alternate week, X essentially lives in a vacuum divorced of any regularised interaction with the other parent whom he undoubtedly loves.
What this means is that, for example, when X has a good or bad experience at school, he cannot readily share that information with both parents and this disrupts his ability to receive from both parents timely praise and/or support for the emotional experience he may be going through contemporaneously with when he has these emotions. In my view, the father’s proposal prioritises his needs for uninterrupted time with X, over his son’s emotional needs to have access to both parents no matter where he may be living at the time. Conversely the mother’s proposal specifies regularised communication for X to have with each party.
For the reasons above, I am satisfied that the father’s capacity to meet X’s emotional needs is limited by the desire to put his own priorities first which has caused emotional distress for X who only wants to please everyone and does not need to be exposed to the parental conflict. I accept the child expert’s view that the mother is far more attuned to her son’s emotional needs and is able to appropriately support them.
Section 60CC(3)(i)
For co-parenting to work parties need to trust each other and communicate openly and honestly, putting their children’s needs first. This co-operative approach to parenting needs parties to be “on the same page” insofar as their attitudes towards parenting are concerned.
It was not clear to me why the father would say that the first he knew that the mother had a problem with the equal time regime was when he was served with the mother’s initiating application and supporting documents. The parties had already been to FDR months earlier. I am not going to make any finding on this apparent inconsistency because it was not addressed in cross-examination, but taking a holistic view of the father’s evidence, it lends some weight to the poor communication the parties must have had some three years ago - if the first he knew that the mother had a problem with the equal time regime was when the proceedings were commenced some seven months after FDR.
The father’s poor attitude towards the responsibilities of parenting were laid bare by his actions regarding Mother’s Day 2021 and I have already commented on the effect of him delaying communicating a decision to the mother when clearly this was a parental decision for him to make, not one that needed a discussion with his young son first.
The father seeks the parties have equal shared parental responsibility, which necessarily requires parties to be able to demonstrate insight and respect to the needs of their child and co‑operatively co-parent, making decisions in the child’s best interests (and not put their own interests or attitudes first).
Currently, the mother says that the parties’ communication is poor. MR C describes it as a cold text war and the father blames the proceedings for the decline but says that in the 12 months to September 2021 (when he filed his trial affidavit) he has sought to change how he communicates with the mother. I have already commented on my apprehensions about this given how he communicated with the mother over the Mother’s Day 2021 incident.
The state of the evidence does not permit me to make an adverse finding about whether either party has failed in their attitudes towards parenting when it comes to X’s stuttering. In one household the behaviour apparently continues, in the other it apparently does not. What does appear clear is that there is no current capacity for the parents to work together to address the issue, irrespective of which household the behaviour may be occurring in.
I was very concerned about the father’s attitude towards the mother more generally when he outlined what he called her parental values. The clear disdain he has for how she has conducted her intimate relationships does not suggest he has respect for her as a parent, let alone an ability to effectively and co-operatively co-parent about decisions regarding X. It would seem from his views that the two parties are “like chalk and cheese” on at least one core moral issue.
Other than the father’s criticisms of her, there was little in the evidence to criticise the mother’s attitude towards her role as a parent, noting that she should have told him about the MHCP for X but perhaps her failure to do so was sadly a reflection of the poor communication and parental relationship the parties shared at the time.
Overall, the father presented as having a disdain for the mother’s role in their son’s life and this reflects poorly on his attitude to the responsibilities of parenthood which include the ability to effectively and co-operatively communicate with the mother about X.
Section 60CC(3) (j) & (k)
There was insufficient evidence for me to make any findings that either household has ever or has the potential to expose X to family violence. I accept that X may have heard regrettable comments from the father about MS D, but this does not necessarily rise to a level of conduct satisfying the statutory definition of ‘family violence’.[25]
[25] See s 4AB
There was no evidence of any family violence orders applying to X or to members of his family.
CONCLUSION – PARENTING PROCEEDINGS
The parties have poor communication. The father does not respect the mother’s parental values. Despite what the father says has been a change to his communication with her, there is nothing to suggest that this has led to an overall improvement in their co-parenting relationship including their communication. There was little to suggest that the father has a capacity for meaningful change to his attitudes towards the mother and with that in mind, there is the potential for more parental conflict about long-term decisions about (for example) where X attends high school and/or whether he requires additional support to manage his stuttering.
For these reasons, I am satisfied that it is not in X’s best interests for the parties to have equal shared parental responsibility and the presumption is rebutted: s 61DA(4).
The person with whom X lives should have sole parental responsibility for decisions about him.
I have carefully weighed up the evidence and I am satisfied that retaining the equal time regime will not be in X’s best interests, particularly because of the more recent poor communication and (on at least two occasions in recent years) the inflexibility that has characterised the regime. These circumstances have exposed X to parental conflict which he remembers and perhaps informs how he presents to each of his parents in their respective households. In essence, it would seem that he is living a “double-life” each alternate week, one that is aimed at pleasing others first.
Having made that determination I am satisfied that X should live with the mother. This is because –
(a)The mother is more engaged in her relationship with X;
(b)The mother’s household is one that X has seen as being more nurturing;
(c)The mother has demonstrated a greater capacity to meet X’s emotional needs and not elevate her needs above those of her son’s; and
(d)There is less chance that X will be exposed to parental conflict in the mother’s household.
I want X to continue to have an important, significant and valuable relationship[26] with the father. This is not achieved simply by quantitively assessing time, but also involves looking at the quality of that time. A diminution of time does not necessarily affect the quality of the relationship, particularly when it still involves the parent in activities both in and out of school and regularised communication when the child is not living with them.
[26] See Mazorski & Albright
I have considered the mother’s proposal and the father’s late oral submission about what that time should look like. In doing so, I have reflected on all the evidence including but not limited to the lay evidence and the child expert’s evidence.
I have decided that X should spend time with his father each fortnight during school terms from Friday to Monday in week one and overnight on every other Wednesday, as well as X spending block periods of time with the father during school holidays and time on special occasions.
Save for the term-time regime, the parties were agreed on the majority of the ancillary and other “time” orders (with both parties agreeing to essentially halve holidays on a rotating weekly basis rather than for example, have a big block of time at the end of Term 4). I have relied heavily on the parties’ agreement but have re-drafted and/or re-organised the proposed terms to allow the Orders (as a whole) to be read more easily.
I have re-framed the proposed restraints aimed at reducing X’s exposure to parental conflict in such a way as to make it binding on the parties to remove him from the presence of others, rather than them using their “best endeavours” to stop others from doing so. In my view, the restraints I have made are more practical and less likely to lead to re-litigation between the parties. I have also omitted the proposed restraint on the parties not discussing “age‑appropriate” topics with X because the order is patently unclear and imprecise and again has the potential to re-open litigation between the parties whose communication is already poor. Finally, I have revised the father’s proposed international travel order to reflect the discussion between myself and the parties during closing submissions.
X should be able to have regular communication with each party no matter where he lives and this will support his meaningful relationship with the father.
I have already expressed my view about the mother’s proposed restraint regarding haircuts and I will not make that order. Where I have not made any other order sought by either party, it is because the evidence does not support it.
For the reasons above, I am satisfied that the orders I make are in the best interests of X.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 8 August 2022
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