Anuja & Danhri
[2024] FedCFamC2F 323
•15 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anuja & Danhri [2024] FedCFamC2F 323
File number(s): MLC 6189 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 15 March 2024 Catchwords: FAMILY LAW – parenting –family violence – where the mother seeks time between the father and the child be decreased – where the father seeks for an increase in time with the child – where the parties cannot agree on special days – the mother seeks to travel overseas with the child - airport watchlist order sought Legislation: Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 64 , 65D, 67Z, 68Q Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 15 and 16 February 2024 Place: Melbourne Solicitor for the Applicant: Mr Lakshman of TFA Legal Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: Altona Legal ORDERS
MLC 6189 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ANUJA
Applicant
AND: MR DANHRI
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
15 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting orders and interim watchlist order are discharged.
2.For the purpose of these orders until X starts school, school holidays referred to in the orders will be defined in accordance with the Victorian Government’s gazetted school term and holiday dates. Once the child commences school, school holidays will be defined in accordance with that school’s calendar year.
3.The parties have equal shared parental responsibility for the child X born in 2020.
4.The child live with the mother.
5.The child spend time with the father as follows:
(a)Until the child commences school:
(i)In week 1, Friday from 3.30pm until 9.00am Monday; and
(ii)In week 2, Thursday from 3.30pm until 9.00am Friday.
(b)When the child commences school, from the first weekend of second term when the child commences school:
(i)In week 1, Thursday from the conclusion of school or 3.30pm if not a school day to Friday morning at the commencement of the school day or 9.00am if a non-school day; and
(ii)In week 2, Thursday from the conclusion of school or 3.30pm if a non‑school day to the commencement of school on Monday or 9.00am if a non-school day.
(c)From September 2024 until the child commences school the father spend time with the child in accordance with the Victorian gazetted school term holiday schedule for a five night block of time commencing on the first Saturday of the holidays at noon and concluding Thursday at 9.00am and in the long summer vacation for two five night blocks of time commencing 26 December 2024 and 11 January 2025.
(d)Upon the child commencing school and from the conclusion of first term the child spend time with the father in school term holidays for the first week commencing at 12 noon on the first Saturday and concluding at 12 noon on the middle Saturday and on a week about basis during the long summer vacation commencing the first Saturday of the school holidays at 12 noon.
(e)Following term holidays and the long summer holidays, the weekly school term arrangements will resume in the same pattern that would have occurred had the fortnightly arrangements continued throughout the holiday periods.
(f)On special occasions at times to be agreed between the parties in writing, and failing agreement as follows:
(i)On Father's Day weekend, if the child is not otherwise spending time with the father that weekend, with the father from the conclusion of school/ creche or childcare on Friday (or 4.00pm) until the commencement of school / creche or childcare on Monday (or 9am).
(ii)On Mother's Day weekend, if the child is not otherwise spending time with the mother that weekend, the fathers time be suspended from the conclusion of school/ creche or childcare on Friday (or 4.00pm) until the commencement of school / creche or childcare on Monday (or 9am).
(iii)On the child’s birthday in even numbered years:
A.With the father from the conclusion of school / childcare or creche (or 9 am if a non-school day) on the day prior to the birthday until the conclusion of school / childcare or creche (or 12 noon) on the day of the birthday.
B.With the mother from the conclusion of school / childcare or creche (or 12 noon) on the birthday to the start of school / childcare or creche (or 9 am) on the day after the birthday.
(iv)For the child’s birthday in odd numbered years:
A.With the mother from the conclusion of school / childcare or creche (or 9 am if a non-school day) on the day prior to the birthday until the conclusion of school / childcare or creche (or 12 noon) on the day of the birthday.
B.With the father from the conclusion of school / childcare or creche (or 12 noon) on the birthday to the start of school / childcare or creche (or 9 am) on the day after the birthday.
(v)For the father’s birthday, if the child is not otherwise spending time with the father that day, from the conclusion of school/childcare or creche (or 9 am) until the start of school /childcare or creche (or 9 am) the following day.
(vi)For the mother’s birthday, if the child is not otherwise spending time with the mother that day, from the conclusion of school/childcare or creche (or 9 am) until the start of school /childcare or creche (or 9 am) the following day.
(vii)For one half of the religious holidays in even numbered years:
A.For Diwali and another religious festival with the father from 5 pm on the day before the holiday until 9am on the day following the holiday.
B.For other religious festivals with the mother from 5 pm on the day before the holiday until 9am on the day following the holiday.
(viii)For one half of the religious holidays in odd numbered years:
A.For Diwali and another religious festival with the mother from 5 pm on the day before the holiday until 9am on the day following the holiday.
B.For other religious festivals with the father from 5 pm on the day before the holiday until 9am on the day following the holiday.
6.If the mother cancels the father’s time with X due to illness, the mother is to obtain a medical certificate within 48 hours and provide a copy to the father.
7.If the father is unable to spend time with X in accordance with these orders due to X being unwell, the father is to have makeup time with X in the following week.
8.All changeovers that do not occur at the child’s daycare, kinder or school are to occur at the Suburb B McDonalds or such other location as agreed between the parties in writing.
9.Neither party will be allowed to take the child overseas until the child turns 7 years or unless agreed between the parties in writing and upon the child turning 7 years each party will be at liberty to take the child out of Australia for holiday during the child's time with them, provided:
(a)The child is not taken to an overseas destination where the Australian government warning for that destination is 'Reconsider Travel' or 'Do Not Travel' or equivalent warning
(b)The party taking the child overseas shall provide the other party with no less than 30 days' notice in writing of the planned travel.
(c)The travelling parent provides the other party with a detailed travel itinerary and contact details for the child while they are overseas including copies of return tickets
(d)The travelling parent ensures at all times they provide a phone number for the other parent to contact the child each day and they facilitate such call.
10.Each party will do all things necessary to renew the child’s passport and citizenship documents, this includes the completion of necessary administrative documents in a timely manner.
11.When the child is not travelling overseas, the mother will hold the child's passport and the father will hold the child’s citizenship documents.
12.Until the child is 7 years of age, the mother MS ANUJA born in 1991 and the father MR DANHRI born in 1990 and their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child X born in 2020 from the Commonwealth of Australia.
13.It is requested that the Australian Federal Police give effect to this order by placing the name of the child on the 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 the child reaches 7 years of age.
14.The father’s application for costs reserved on 19 December 2022 be dismissed.
15.All extant applications are dismissed.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
X does not remember a time when his parents were not in conflict. He was one year old when his parents separated. They were living with the father’s family at the time. X was born in 2020. He is nearly four years old.
The mother is aged 32 and the father is aged 33. Both parties were born in Country C. The father became an Australian Citizen in 2016. The mother travelled to Australia once in 2018 prior to the parties’ marriage. The parties married in Country C in 2019. The mother relocated to Australia in early 2019 on a temporary visitor visa and eventually a partner visa. In mid‑2020 there was an alleged incident of family violence perpetrated by the father which resulted in a limited Family Violence Intervention Order (‘FVIO’) and a safe contact order put in place. The mother then relocated to an apartment the father rented. It is not clear when the father moved into that apartment. Neither party identifies this as the date of final separation in their respective trial affidavits. The parties both claim in their respective trial affidavits that they separated in November 2021. The father alleges the parties separated on 13 November 2021. Nothing turns on this.
The mother filed her trial affidavit late, three days prior to the commencement of the trial. As a result, the father did not have time to file an affidavit in reply in accordance with the orders of 5 December 2023. However, his Counsel did not seek to give oral evidence in chief replying to the mother’s trial affidavit.
It also became apparent during the trial that the property application was still on foot as only interim orders had been made for a superannuation splitting order. The parties had different solicitors at that time. It is unusual for an interim splitting order to be made. Fortunately, the parties were able to resolve the issue of property and sought to make final orders that were largely the same as the interim orders made on 9 February 2023 which provided for a superannuation split in the mother’s favour of $30,000.
The father also sought the mother pay his costs reserved on 19 December 2022. At the end of the trial his Counsel conceded there was no evidence about what occurred on 19 December 2022 and given the mother’s financial position, a costs order would impact on X. I will make an order dismissing the father’s application that the mother pay the father’s costs reserved on 19 December 2022.
THE PARTIES’ POSITIONS
The parties agree that they should exercise equal shared parental responsibility and that X should remain living with the mother. Since orders made on 9 February 2023, the father has been spending Tuesday afternoons and one overnight each week with X. The father relies on the Family Report and seeks to progress overnight time to four nights a fortnight. The mother stresses the comments made in the Child Impact Report about the need to progress time slowly and not disrupt X’s routine. The father says the interim orders made on 9 February 2023 provides for graduated progression of the father’s time.
Changeovers are stressful for the parties and problematic for X. The family report writer recommends that changeover between the parties be avoided where possible. Both parties complain about the changeover. I will make orders that minimise the direct handovers between the parties.
Both parties provided minutes of orders sought during the trial. The mother’s proposal at trial in accordance with her minute provided at the commencement of the trial was that the father have a single block of time with X from alternate Friday afternoons to Monday mornings. When she was cross-examined, she said she preferred for the block to be alternate Monday to Wednesday. Both scenarios result in changeovers taking place at daycare and kinder, but do not allow for the fact that at X’s age this would be a long gap between seeing his father. The mother’s proposal also would not give the father any weekend time which was the same problem in reverse with the father’s initial proposal where he sought to have X every weekend. The mother was unable to concede the importance of this in cross-examination. I have some concerns about the mother’s attitudes towards the father and X’s relationship. Though she says the right things, her proposals and evidence reflect her antipathy towards the father and do not reflect the developmental needs of a young child and lack child focus.
The father’s proposal at trial was to keep his alternate weekend time commencing on a Saturday and extend each Tuesday dinner to overnight and then when X started school for the weekend time to commence on a Friday. The difficulty with his first proposal is that it still involves changeovers between the parties. After exploring a different option during closing submissions, the parties agreed that in the event I find that it is in X’s best interests for his time to progress to four nights a fortnight with the father, the best configuration would be Friday to Monday on alternate weekends and overnight on Thursday in the intervening week. The mother prefers Thursday nights as the pickup will be from kinder rather than daycare. The father also preferred Thursday as to minimise the gap between the time X sees him. The father seeks that this arrangement increase to five nights a fortnight after the first term of school by having X every Thursday night. This will mean he will have a block of four nights and a single overnight every fortnight during school term.
The father also seeks to have block periods with X during school holidays and proposes that this time initially be in a block of five nights progressing to a week about arrangement. The mother disagrees with this. She seeks for the same arrangement to continue throughout the year. Her minute of orders do not propose any increase in the father’s time beyond three nights a fortnight. The father seeks to introduce the holiday block periods even though X has not currently commenced school. It is sensible to increase longer block periods before X starts school. It gives the father the opportunity to do more things with X including short trips. I do not know if X’s daycare and kinder run through those holidays but if they do, it is reasonable for X not to attend for a couple of days if the father has plans.
The mother sought an order that the parties pay medical and educational expenses equally, however, child support is not a matter before the Court. The father is paying child support as assessed.
The parties agree that there should be time on special days but disagree on how they should be configured.
The mother also included an order that the father be in substantial attendance during his time with X between 6.00pm and 6.00am. A Senior Judicial Registrar made an order in these terms on 9 February 2023. The father was not cross-examined about this. There is no evidence justifying this order. It reflects the mother’s dislike and distrust of the father.
EVIDENCE RELIED ON
The mother relied on the following documents:
(a)Second Amended Initiating Application filed 8 February 2024;
(b)Trial Affidavit filed 27 January 2024;
(c)Outline of Case filed 8 February 2024;
(d)Notice of Child Abuse and Risk filed 9 June 2022; and
(e)Minute of Orders provided to chambers 15 February 2024.
The mother filed an application in a proceeding on 30 November 2023 and an amended application in a proceeding on 22 December 2023. Both applications sought the same orders seeking the immediate release of X’s passport, and that the mother be permitted to travel overseas with X for a month in late 2023 for her to receive urgent medical care and to attend a family event. The parties wrote to chambers seeking an urgent Interim Hearing prior to the trial date. Given the time of year, it was not possible to list that application before Christmas and it was listed to the trial. This application has been superseded by the time of the trial but technically remains on foot. I will dismiss the application in a proceeding filed 22 December 2023. The mother seeks to travel to Country C. The father opposes this. Although the application in a proceeding and supporting affidavit were included in the case outline, the mother did not rely on these. I will address this later in my reasons.
The mother also sought to rely on her previous affidavit filed 5 October 2022. However, at the commencement of the trial, her solicitor advocate indicated she only sought to rely on her trial affidavit for the final hearing.
The father sought to rely on the following:
(a)Further Amended Response filed 3 December 2023;
(b)Trial Affidavit filed 13 February 2024;
(c)Outline of Case filed 13 February 2024;
(d)Affidavit of the Contact Supervisor, Ms D filed 1 August 2022; and
(e)Minute of Orders provided to chambers 15 February 2024.
In addition to the documents listed above, both parties sought to rely on the Child Impact Report by Ms E dated 21 December 2022 and the Family Report by Ms F dated 16 October 2023. The parties have had the benefit of a Child Impact Report and a full Family Report. The family report writer was not required for cross-examination, therefore the family report is unchallenged.
ISSUES IN DISPUTE
The issues in dispute I must determine are:
(a)The nature and extent of family violence experienced by the family;
(b)Whether the father’s time with X should be decreased as sought by the mother or increased as sought by the father;
(c)What time X spends with the father during term and long summer holidays;
(d)What time X spends with the father during special days;
(e)Where the parties should have changeovers;
(f)Whether or not international travel should be allowed; and
(g)Whether or not an airport watchlist order should be made.
Before discussing the evidence and issues in dispute, I will discuss the applicable legal principles.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence being mindful always that the best interests of the child is paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent. Neither parent seeks an order for equal time. Given X’s age and the conflict between the parties this is appropriate. The father’s proposal does provide for X to spend substantial and significant time increasing further once X starts school.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
CHILD IMPACT REPORT – 21 DECEMBER 2022
Both parties sought to rely on the Child Impact Report of Ms E dated 21 December 2022. At the time of the Child Impact Report, X was spending time with the father each Tuesday and Friday from 12.00pm to 5.00pm.
The mother described the parenting arrangements as disruptive and raised concerns that X was not coping well with the current spend time arrangements. She described him as a “usually happy boy” but that he was returning from the time with his father “cranky, clingy, tired and difficult to settle”. The mother also attributed recent health concerns to the increased spend time with the father. She also raised concerns about X’s safety in the father’s care and other paternal family members. She alleged that family violence was present in the relationship and that the father and paternal family were very controlling.
The Court Child Expert described the mother as often pathologising X, particularly describing common health concerns for a child his age. She described that during observations the mother said that X had an upset stomach and was not feeling well but this was not observed in him. She says that if the pathologising continues, there is a risk that this could manifest within X and affect spend time arrangements. She describes the mother’s anxieties as affecting the co‑parenting relationship and that she may find it difficult to differentiate the father’s role as a father and him being an ex-partner and a co-parent. These concerns are well founded and are reflective in many of the exchanges between the parties. A bundle of correspondence between the parties was tendered by the father and marked as Exhibit 1. There are numerous examples of the mother cancelling the father’s visits because of X having a mild ailment.
The father described the time between himself and X as going well and that he had not experienced any adverse behaviour or health concerns. He explained that X would have his daily nap during his time but that he would fall asleep in the car when returning to the mother which the father attributes to him waking up and being unsettled when returning to the mother’s care. He denied all allegations of family violence but acknowledged a high level of conflict between them which would result in verbal arguments and the parties’ parents. He said he was undertaking a Men’s Behavioural Change Program and demonstrated awareness on how the conflict between the parties could impact on their co-parenting relationship.
The Court Child Expert reported that she observed parallels between the parties’ parenting during their observations with X. She said that X transitioned well between the mother and the father with no fear or worry, and that they both remained child focused and were warm, affectionate, and attentive to X’s needs. She said that X remained happy throughout the observations. The Court Child Expert noted that the mother was anxious at the changeover period, but that X remained unaware of his mother’s anxiety. She described X as not presenting with any traits that suggest he has been impacted by ongoing exposure to family violence. However, indicated that the ongoing parental conflict would likely have an impact on X in the future which could be mitigated through limited communication and interactions between the parties.
The Court Child Expert concluded that there appeared to be no risks associated in an increase in time between X and the father and that the time could progress to an overnight. However, she recommended that this be a slow and gradual progression for X to develop familiarity with this routine and that the spend time arrangements be structured around his routine. She says that there would be a risk to X being drawn into the parental dispute if the mother is unable to manage her emotional responses at changeover and following spend time. The Court Child Expert recommended she engage with counselling and that the parties complete a Parenting After Separation Course and Tuning Into Kids program.
FAMILY REPORT – 16 OCTOBER 2023
The Family Report Writer was not required for cross-examination therefore her report is unchallenged. At the time of the family report X was spending time with the father each Tuesday from 12.00pm to 5.00pm, and each Friday from 12.00pm until Saturday at 5.00pm.
An interpreter was present throughout the mother’s interview, however, the Family Report Writer noted that she mostly responded in English. The mother described X as a cheeky boy who listens attentively, is developing well and is learning to regulate his emotions. She says X has a positive relationship with his maternal grandparents and extended family. The mother advised the Family Report Writer that she had sought a referral for a Paediatrician from her General Practitioner as X was having difficulty sleeping and that the Paediatrician emphasised the importance of X having a consistent routine. She also reported X’s daycare saying he was exhibiting “demoralised behaviour” but did not give examples. The email correspondence the father tendered from the educator raises a possible issue about anxiety. Transitions can be difficult for young children particularly when the mother is anxious. X picks up on this. The mother criticised the amount of screentime and the amount of takeaway X eats at the father’s house. She was also concerned he was mimicking smoking cigarettes due to the father smoking in front of him.
She often emphasised that changeovers were not going well and that the spend time arrangements were disruptive as they disturbed X’s attendance at daycare and her ability to work. This included emphasising that X would often fall asleep in the car on the way back from changeover which would disrupt his sleep schedule. The mother also said she felt unsupported in the co-parenting relationship referring to how the father would not change a changeover location to one closer due to her having an injury. The mother was critical of the father and expressed frustration that he did not know X’s daycare name or location and believed he caused unnecessary delay when it took the father nine days to consent to a change of daycare. The mother was also critical of the father refusing to attend her home for changeover whist she was injured. This is unreasonable in circumstances where there is a Family Violence Intervention Order (‘FVIO’) in place. This and her position seeking equal shared parental responsibility is inconsistent with her being fearful of the father.
The Family Report Writer described the mother at times becoming visibly upset when discussing her current issues and would occasionally go off topic and require re-direction. She says the mother’s attitude towards the father was somewhat negative when reflecting on his parental role, describing it as “fairly superficial” with an example that it was “just play time”. The Family Report Writer described the mother as loving, protective, and a committed parent who was seeking to maintain a consistent routine for X and foster a relationship between him and his father. The mother’s discomfort and anxiety around changeover was apparent during the observations and consistent with her reports. Given this ongoing challenge, it is in X’s interest to reduce the number of direct changeovers between the parents.
The Family Report Writer suggests this breakdown in communication may suggest the mother struggles to separate some adult issues and prioritise X’s need for protection from conflict. The mother was able to reflect on the difficulties of being a first-time parent and was proactive in seeking professional supports through counselling and a parenting program. The Family Report Writer identified the mother’s central difficulty in supporting X’s and the father’s relationship was her attitude towards coparenting and feeling unsupported. The mother was cautious about overnight time which could create a barrier for X and undue pressure on him in the future. The mother however did recognise that overnight time did have some benefits and reported some support for this to continue. The mother’s continuing criticisms and negativity towards the father is of concern. The mother is too ready to assume that an illness is due to the father’s care, and the difficulty X has with transitioning is because of something the father did or failed to do. It is counterproductive given the mother’s concern about stability and consistency in routines.
The father described X as a happy and healthy boy, and described their time together positively and that their time together was amazing but “not enough”. When discussing current and future parental arrangements, the father was “highly motivated” to continue the overnight time and was very adamant that he was providing a safe, and good quality of care for X. He claimed X slept well at his home and that he supports the mother directly by communicating support for her to X prior to the end of their time together. He did acknowledge that as he was a first-time parent, it is still a work in progress when setting boundaries such as screen time for X which he was attempting to reduce. The father described X using profanity at times which he said he had implemented a strategy to address this behaviour but advised that X’s tantrums had reduced. The father also said X has a relationship with the paternal family and would share FaceTime calls with them.
The father’s attitude towards the co-parenting relationship was of dysfunction and frustration and reflected on the view of “solving the issues versus winning the argument”. He says that the mother does not provide him with pertinent information in relation to X’s daycare or his daily routine which creates a barrier for him to help provide a similar structure for X when he is in his care. He referred their failed attempt at recording information in a shared diary and particularly referred to the mother writing irrelevant information in it which contributed to tension between the parties.
The Family Report Writer described the father as presenting as a loving father who was highly committed to meeting X’s needs. She described the father as settled and was mostly clear and provided detailed descriptions and forthright in his narrations and opinions. He identified being prepared for potential difficulties when X commenced overnights but that he was prepared for these. The Family Report Writer indicated the father was willing to take on professional guidance from external parties by saying he was waiting to complete a Roadworthy for Dads program. She reported the father did not raise specific concerns in regards to the mother’s parenting that could impact on the wellbeing or safety of X. His primary concern was the parties’ communication breakdown and its affect in creating predictability and routine for X in both households. The father continued to emphasise that the overnight and spend time was good for X and emphasising its positive progression and his hope for its continuation. The father presented as willing to accept the Court’s decision in relation to long-term arrangements for X.
Both parties acknowledged with the Family Report Writer that they had both contributed to many arguments across the relationship. They also had concerns about X’s exposure to their dynamic at changeovers. The Family Report Writer also referred to s67Z material received from the Department of Families Fairness and Housing (‘DFFH’) which noted two incident reports that progressed to protective intervention. The first investigation between mid-2020 and late 2020 identified the father as responsible for harm. The second investigation between late 2021 and early 2022 identified concerns that the mother was being verbally abusive to the father and threatening to harm X. DFFH assessed both parties as responsible for harm.
The Family Report Writer confirmed that allegations of family violence underpinned some of the parties’ dispute. The parties gave conflicting accounts as to who was responsible for violence and the nature of it. The parties somewhat agree that pre-separation their home environment including extended family members was high verbal conflict and tense.
This conflict between the parents has appeared to continue when the parties lived together and post separation. The Family Report Writer indicated that this type of environment could have serious long-term effects on X’s ability to form healthy relationships and communication skills. The Family Report Writer indicated if the mother’s allegations of family violence are accepted, then the mother’s actions of supervising contact between the father and X and facilitating professionally supervised time could be seen as protective measures. However, she says if the father’s account is accepted, then the mother’s actions may be seen as controlling rather than protective and her alleged threats to harm herself and X be seen as acts of family violence.
The Family Report Writer described X as a healthy, happy, animated, and cheerful boy who had good sociability and language development. During observations he engaged in imaginary play including roleplay cooking and was able to identify food names with the kitchen toys. She said that X had a warm and affable cheekiness to him with emerging independence and that engaging with him was a delightful experience. X regularly sought to engage others in the playroom with direct eye contact and smiling. The Family Report Writer reported that both parties demonstrated a willingness to engage and guide X’s play with X taking initiative to direct the activities. The observation identified the importance of responsive parenting which balances guidance with respecting a child’s preferences and choices. X did not show any problematic behaviours.
The Family Report Writer acknowledged that during the changeover after the father’s time with X, the parties did not recognise each other and that this could send mixed signals to X and shape his understanding of interpersonal relationships and model inappropriate and ineffective communication patterns. She emphasised that maintaining an amicable attitude was optimal for X’s development and wellbeing. When X became distressed after separating from his father the mother required assistance to facilitate a swift transition to minimise X’s distress. The Family Report Writer identified this as serving as a reminder of the struggles parents can face with managing their emotions whilst prioritising their child’s. My concern is that the mother appears to assume that any difficulties in this respect are something the father has or has not done. She does not factor in the fact that it is developmentally normal for X to find transitions difficult, particularly when picking up on the mother’s stress and anxiety. X is attuned to how the mother is feeling as she is his primary care giver and he is reliant on her. X attends a combination of kinder and daycare five days a week. It is common knowledge that children often contract minor ailments that are passed around.
The Family Report Writer concluded that the connectedness X has with both parties is safe and nurturing which will benefit X in many ways. She said the connection with the father and the progress of time currently reflects a degree of sustainability and suitability for ongoing overnight time and that the father and son bond was benefiting greatly. She concludes that the current changeover relationship was causing undue strain and was not a sustainable arrangement. The Family Report Writer recommends changeover occur at daycare or school to eliminate these concerns. She recommends that X continue to live with the mother and spend time with the father for two consecutive nights each week, and once he is of school age this time could increase to half the school holidays. I accept these recommendations. In order to reduce the number of changeovers that need to take place between the parties, I find it in X’s best interest to have a three-night block on alternate weekends and one overnight on a Thursday in the other week with the father. From the second term of school, the alternate weekend block will extend until Thursday during school term allowing for a four-night block on alternate weekends and a Thursday overnight in the other week.
The Family Report Writer also recommended the parents complete a Parenting After Orders program. The mother told the Family Report Writer that she was accessing her own supports and parenting program but does not give details. If the mother has not done this course, she should. X would benefit.
FAMILY VIOLENCE
The mother says she was subjected to family violence including physical intimidation, financial abuse, and emotional abuse. She says a significant incident took place in mid-2020. She says she called the police as the father was threatening to kill her and her parents in Country C in the presence of X. She does not provide details of what he allegedly said and how the incident arose. She called the police and a limited FVIO and a safe contact order was made. The limited FVIO expired in mid-2021.
In late 2021, the father obtained a FVIO against the mother saying that the mother threatened to hurt herself and X. The mother denies making threats and denies all other allegations of family violence the father made in that application. A limited order was made which allowed the mother to return to the Suburb G apartment. The father moved out of the Suburb G apartment and returned to his family’s house in Suburb H.
Up until the mid-2020 incident, the parties were living with the father’s brother and his partner. Since that time, the mother lived in an apartment the parties rented in Suburb G. The mother claims the father continued to be violent despite the FVIO being in place. The difficulty is that the mother makes generalised complaints but does not provide any detail in her trial material. Significantly, the father was only cross-examined about the existence of the intervention orders and not the alleged violence. It is also significant that the mother seeks to exercise equal shared parental responsibility with the father.
The mother also complains about being isolated by the father’s family but again does not provide any detail in her trial material. Certainly, the mother has been in Australia for a much shorter period than the father and would have been less familiar with the Australian legal and financial system but, both of the parties have family members in Australia. Both parties’ parents have also visited Australia.
The parties agree that there was tension and conflict during their short relationship and living in a crowded house in a new country with the father’s family would also have been stressful. I accept that living with the father’s family in a new country was difficult for the mother.
The parties discussed the existence of family violence in their relationship with the Family Report Writer. The parties particularly referred to a recent issue in mid-2023 which occurred during a changeover which prompted the mother to apply for an extension of the FVIO. The parties gave different versions of event.
The mother’s account of family violence includes psychological, emotional, sexual, and financial abuse. She also has made allegations the father has threatened to kill her and harm her allegedly in front of X. The mother claimed this violence continued despite the FVIO which included the father throwing items, banging walls, tables, doors, and physically intimidating her. The father alleges the mother threatened to harm herself and X at the time of separation. The Family Report Writer said his accounts described the mother as generally controlling and restrictive in relation to spend time with X. The father denied all allegations in respect of threatening to kill the mother or the maternal grandparents. He also denied ever throwing objects or being deliberately physically intimidating.
The Family Report writer stated the problematic behaviours between the parties can affect X negatively, and particularly, witnessing family violence is distressing for a young child and potential long-term consequences can be a disruption to X’s perceptions of safety and wellbeing.
The mother claims that the father abuses alcohol and says the paternal family do also abuse alcohol. Again, there is no detail in her trial material besides generalised statements and the mother simply saying that it happened every weekend. The father was not cross-examined about this. Interim consent orders were made on 11 October 2022 which included at order 20(b) that each of the parties be restrained without admission to necessity from consuming alcohol to excess 24 hours prior to and whilst X is in their care. The mother’s trial material nor her solicitor advocate made any reference to this order during the trial. As a result, I am unable to find that the father drinks alcohol to excess.
The mother says she took out a FVIO in mid-2022 due to “ongoing mental, sexual, emotional and financial abuse” This is not evidence. It is a conclusion. She does not provide any evidence in relation to it.
The interim FVIO was listed for contest in early 2024, after I had reserved judgment. I directed the parties to advise chambers jointly as to the outcome of that hearing and to provide any order made. This is necessary to check to see whether any orders I make are inconsistent with the FVIO and addressing the inconsistency in accordance with s68Q of the Family Law Act. The parties jointly wrote to chambers in early 2024 advising that the mother’s application had been struck out and that there is no FVIO in place.
Given the state of the evidence I am unable to make a finding that the father committed family violence as the mother alleges.
WHETHER THE FATHER’S TIME WITH X SHOULD INCREASE OR DECREASE
The mother’s proposal represented a decrease in time with the father although the mother did not concede this. The mother referred to the Child Impact Report and the importance of X’s routine.
The mother then changed her proposal further during cross-examination and proposed that the father have a three-night block once a fortnight from Monday to Wednesday rather than the weekends so there is less opportunity for his family to manipulate X. In fact, this is only two nights a fortnight. The mother then changed her evidence again during cross-examination and said two nights could start now and a third night could be added to the block once X starts school. This was different to what was proposed by her solicitor advocate in opening submissions and outlined in her minute of proposed orders. The mother’s proposal would result in there being a 10-day gap between visits. The mother was also dismissive when I raised my concern about how her proposal for the father’s time with X being in one block between Monday to Wednesday a fortnight does not take into account X’s developmental needs.
When I raised that this was a long gap for a little boy not to see his father, she referred to his routine and again criticised the father and said he could instead provide support with X’s sports activities on Sundays. When the father’s Counsel asked the mother about the five hours on a Tuesday that X spends with the father, she said that this was disrupting his routine which is why she wants it fortnightly. The parents need to consult each other about X’s activities including sports so both can be involved.
PARENTING CAPACITY AND COMMUNICATION
The mother makes numerous complaints about the father being disinterested in X and putting his interests ahead of X’s. She complains about him not taking X to birthday parties and social events when X is in his care. She also attributes negative behaviour X displays as being attributable to the father. She uses concerns about X’s behaviour at daycare as an example. The mother somewhat begrudgingly acknowledges that X and the father have a good relationship and that it is important that X have a good relationship with his father. This is another example of the mother being unreasonable. Implicit in the mother’s answer is the assumption that X attending birthday functions and sports activities are more important than the time X spends with his father. These activities have a role and serve some function, but at times the father will have made pre-existing arrangements particularly when the notice is so short.
The mother was cross-examined about an incident she complained about where she gave the father two days’ notice about a birthday invitation for a friend of X’s, and she was critical of the father saying that he already had plans with X and therefore he could not take him. When cross-examined about this, the mother would not concede that two days is not a lot of notice and maintained her criticism of the father.
In her trial-affidavit, under the heading “issues with the father’s behaviour”, the mother makes various complaints including:
(a)She gave the father details of sports lessons she had enrolled and paid for X and that she gave the father “the opportunity” to take X but he never did.
(b)In mid-2023 a supervisor at X’s daycare raised concerns about X’s behaviour which the mother attributes to the times he was with his father.
(c)She complains about the father “isolating [X] socially” and refusing to take him to social events he has been invited to.
(d)She refers to an email from X’s daycare sent on 24 January 2023 concerned that he is using swear words which she again attributes that to the father.
The correspondence contained in Exhibit 1 is concerning. Several times the mother cancels the father’s time because X is unwell. This is a source of tension as she simply says the father can contact the doctor. It is a simple thing for the mother to provide the information particularly if she thinks it is serious enough to cancel the father’s time. The father raises the point that if it is a minor illness, there is no reason that the father cannot look after X. He should have the opportunity to do so. I am concerned that the mother sees the father’s time with X as an inconvenience and disruptive to X’s routine and therefore the mother too readily uses minor ailments as an excuse. During cross-examination the mother said she was willing to give the father a medical certificate if X is not able to spend time with the father due to illness. I will make that order. In addition, I propose to make an order enabling the father to have makeup time the following week. This will act as a disincentive for the mother in addition to requiring the medical certificate. The mother disagrees with the Court Child Expert’s comments about the mother pathologising X’s illness in the Child Impact Report, but it is clear that this was also a concern for the Family Report Writer as well which is not challenged. It can be impractical for the other parent to contact the doctor every time X has an appointment. General Practitioner clinics and schools can be in an awkward position being in the middle of high conflict parents.
At times the mother was hyper critical of the father. One example was her complaint that he returned X with sand in his ears creating more work for her. In early 2024, the father emailed the mother to let her know that he took X to the beach and that X was cranky when he was showering him so he could not shower X properly. He informed the mother of this and tells her he rinsed him with clean water and changed his clothes and asked the mother to give him a shower. When asked about this email the mother said she replied and thanked the father but found X’s ears were full of sand. When it was put to her that this is normal co-parenting, the mother responded that the father should take the time and complained that it created more work for her. I then asked the mother if it would have been better if he told her he was going to be late so he could properly clean X. The mother said no. This stance is unreasonable and lacks child-focus.
The parties agree they should exercise equal shared parental responsibility. This requires them to consult with each other and try and reach a decision together. If they cannot, the mother is not entitled to take unilateral action, for example, enrol X at a school. If they cannot agree they need to attend mediation. If they still cannot agree, then one needs to bring an application. The mother’s evidence was that she told the father about kinder enrolment and gave the kinder the father’s email. That is not complying with the order to give authority and is not exercising equal shared parental responsibility. Informing the father is not consulting.
The mother seeks an order that X attend a kindergarten and school local to the mother. I will not make that order. This is a matter for the parties to exercise equal shared parental responsibility. A kindergarten or school closer to the mother’s home is not necessarily the best one for X. The parties will need to research various institutions and should do this well in advance so that each party has a good opportunity to consider the other’s proposal and make further enquiries.
SPECIAL DAYS
The parties agree that both parties should have time with X on special days including X’s birthday and religious holidays. With respect to Mother’s Day and Father’s Day, both propose that X have overnight time with the respective parent that weekend. The father’s proposal is preferable as it provides for X to spend time from after daycare, kinder or school on the Friday until before daycare, kinder or school on Monday, as this avoids changeovers between the parents. In some years X will already be scheduled to spend time with the mother on Mother’s Day and the father on Father’s Day. In other years it will result in one parent having an additional weekend. These will fall where they fall. There does not need to be makeup time as a result.
The mother proposes that the father has a few hours with X on the special religious and cultural days. This has been problematic in the past as shown by the correspondence in evidence. The father’s proposed orders propose these holidays be shared equally in a rotating pattern in odd and even years. This is preferable and should reduce disagreements.
During cross-examination the mother said that the festivals are not public holidays in Australia and that he should not miss out on school, even though she acknowledged these are important cultural events. She also acknowledged that it is limited to four days a year. Particularly whilst X is young, it will not be to his detriment to miss school for that purpose. This should be at the discretion of the parent who has X in their care at that time. I am not confident that the parents would reach agreement on their own.
Both parties in their minute of orders seek that X spent time with them on their respective birthdays from the conclusion of school or day care until the commencement of school or daycare the following day. The father’s Counsel proposed this to the mother who said that the father has not asked for this before. When asked to clarify, the mother agreed for this time to occur. I will make this order.
CHANGEOVER
There is a dispute between the parties about where changeovers should be when X is not at school or kinder. The interim orders provide for handovers to take place at Suburb J station. The father seeks for changeovers to be at Suburb B McDonalds which he says is halfway between the parties. The mother disagrees. The mother seeks changeovers to be close to her home. The father’s proposal is roughly halfway between Suburb H and Suburb J. The parties will only need to meet at a halfway point when X is not at school or kinder.
It is reasonable to meet at a halfway point when a changeover is not at school or kinder. I will order that changeover that does not take place at daycare, kinder or school, take place at Suburb B McDonalds or such other location as agreed between the parties in writing.
OVERSEAS TRAVEL
The mother says she needs to travel to Country C to undergo minor surgery. She says that she cannot afford to get this work done in Australia which will cost between $7,500 and $8,000. She claims the same work in Country C would cost her less than a $100. She does not provide supporting evidence with respect to either estimate. She says her parents have offered to help her with the cost of flights. The mother would stay with her parents in Country C whilst undergoing her treatment. In her trial affidavit, she says she would need to be in Country C briefly for this purpose and to visit her family. However, when cross-examined the mother claimed that she would have to be in Country C for about five weeks as there was more than one treatment. She also referred to seeing other family members whilst there. She does not provide any evidence to support her claim that she would need to be in Country C for that time period. The mother said she would not be able to leave X with her family members in Melbourne for that period as it would be too long for X to be separated from her. Whilst X is familiar and comfortable with his family in Melbourne, staying with them is a very different prospect. It was clear that she does not think X staying with the father during that period is an option.
When I raised concerns about X being separated from his father for five weeks, the mother said in an offhanded manner that she would provide a call once a week.
I find it troubling that the mother’s evidence about her length of stay in Country C was very different in her oral evidence to her trial affidavit which was only sworn on 12 February 2024.
The father is fearful that the mother will take X to Country C and not return. In his trial affidavit, he says the mother and her parents have made those threats, but his trial affidavit has the same deficiency as the mother’s as he does not provide any evidence about this beyond this bare assertion. However, when cross-examined about this the father said that on the last day they lived together, the mother made threats to him about taking X away to Country C in person and on a conference call with the parties’ parents. He says there is a dispute in Country C between the parties’ parents and that the mother’s parents continue to make threats. Country C is not a signatory to the Hague Convention or Civil Aspects of International Child Abduction.
Both parties have several family members living in Melbourne. They also have their parents and other family members living in Country C. I accept the mother’s submission that X cannot receive the same kind of exposure to his Country C culture in Australia as he can by travelling to Country C. Nonetheless, I am concerned that if the mother is allowed to travel to Country C with X, she will stay for a long period which would have a negative impact on X’s relationship with the father. The father seeks that an airport watchlist order be put in place until X is 10 years old. Having considered the evidence, I find that X should be on the watchlist until he is seven years old. By that time, X will be established at school and spending substantial and significant time with both parents.
CONCLUSION
For the reasons I have given, I am satisfied that the orders I make are in X’s best interests.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 15 March 2024
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