Apuzzo & Apuzzo (No 2)
[2022] FedCFamC1F 1052
Federal Circuit and Family Court of Australia
(division 1)
Apuzzo & Apuzzo (No 2) [2022] FedCFamC1F 1052
File number(s): BRC 9896 of 2018 Judgment of: JARRETT J Date of judgment: 22 December 2022 Catchwords: FAMILY LAW – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – parenting orders – incidence of parental responsibility – five nights per fortnight or four nights per fortnight – assessment of competing proposals Legislation: Family Law Act 1975 (Cth) ss, 60CA, 60CC, 60CC(2)(b), 60CC(2A), 60CC(3), 61DA Cases cited: Apuzzo & Apuzzo [2019] FCCA 1974 Division: Division 1 First Instance Number of paragraphs: 107 Date of last submission/s: 24 October 2022 Date of hearing: 21, 22 and 23 September 2022 Place: Brisbane Counsel for the Applicant: Mr Baston Solicitor for the Applicant: Advance Family Law Counsel for the Respondent: Mr K Wilson KC with Ms Dart Solicitor for the Respondent: Corney & Lind Lawyers ORDERS
BRC 9896 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR APUZZO
Applicant
AND: MS APUZZO
Respondent
order made by:
JUSTICE JARRETT
DATE OF ORDER:
22 December 2022
THE COURT ORDERS THAT:
1.All previous orders, including the recovery order made on 4 April, 2022 be discharged.
2.The respondent have sole parental responsibility for decisions concerning the major long-term issues for the children Y born 2007, Z born 2009, and X born 2010.
3.Y shall live with, spend time and otherwise communicate with the applicant in accordance with her wishes and, save for order 4, all other orders for the children to live with, spend time with or communicate with the applicant set out hereunder are, in respect of Y alone, subject to this order.
4.The applicant shall be at liberty to send cards, gifts, letters, photographs and other items to Y and the respondent must ensure that they are received by her.
5.The children shall live with the respondent when they are not otherwise living with the applicant.
6.X and Z shall live with and spend time with the applicant at all times as agreed between the parties, and failing agreement:
(a)during term time from the conclusion of school or 3.00 pm (if it is a non-school day) on Thursday until:
(i)the commencement of school or 9.00 am (if it is a school day but the child or children are not attending school) on Monday each alternate week; or
(ii)should the Monday be a public holiday or otherwise a non-school day (eg a pupil free day), the children shall remain in the care of the applicant until the commencement of the school or if not attending school, 9.00am on the immediately following Tuesday.
(b)during each of the children’s school holidays:
(i)during the half, being the first or second half, of the Easter school holidays in which the most number of days of the Easter long weekend fall in even numbered years.
(ii)during the half, being the first or second half, of the Easter school holidays in which the least number of days of the Easter long weekend falls in even numbered years
(iii)for the first half of their June/July/Term 2, September/Term 3 and Christmas school holiday periods in all even numbered years; and
(iv)the second half of their June/July Term 2, September/Term 3 and Christmas school holiday periods in all odd numbered years.
7.In the event the Easter public holiday days fall outside of the Term 1 school holiday period, X and Z shall live with:
(a)the applicant from 4:00 pm on the Thursday immediately preceding Easter Friday to 4:00 pm Easter Monday in even years;
(b)with the respondent from 4:00 pm on the Thursday immediately preceding Easter Friday to 4:00 pm Easter Monday in odd years;
8.For the purposes of these orders, school holiday time shall commence and conclude as follows:
(a)with respect to the first half of the school holidays, the period shall commence with the conclusion of school on the last day of the school term and shall conclude at 4.00pm on the day calculated to be half of the holidays;
(b)with respect to the second half of the school holidays, the period shall commence at 4.00pm on the day calculated to be half of the holidays and shall conclude at 9.00am on the day school term commences.
(c)the school holidays shall be deemed to commence with the conclusion of school on the last day the school term and conclude at 9.00am on the day school term commences and the number of nights in the school holiday period is used to calculate one half of the holiday period and if there is an uneven number of nights then the additional night shall be spent in the applicant’s care.
(d)the dates for the school holidays are as per the gazetted Queensland School holiday calendar produced by Education Queensland.
9.All children shall spend time with the parties on the following special occasions as agreed between the parents and failing agreement as follows:
(a)for Christmas:
(i)from 4.00pm Christmas Eve until 4.00pm Boxing Day in even numbered years with the respondent and in odd numbered years with the applicant; and
(ii)the parent in whose care the children are for Christmas Day shall facilitate a telephone call from the children (and each of them) to the other parent on Christmas Day at a time as agreed between the parents in writing or failing agreement at 10.00am.
(b)on each of the children’s birthdays, the children shall spend time with the party they are not with on the day:
(i)if a school day, from after school until 7:00pm;
(ii)if a non-school day, from 9am until 2pm;
with the party that the children are not living with on the day to be responsible to collect and return the children to the changeover location specified in Order 4.
(c)with the applicant on Father’s Day from 9.00am until before school or 9.00am on the immediately following day and to facilitate same if the children are otherwise with the respondent then they shall be returned to the applicant at 9.00am on Father’s Day;
(d)with the respondent on Mother’s Day from 9.00am until before school or 9.00am on the immediately following day and to facilitate same if the children are otherwise with the applicant then they shall be returned to the respondent at 9.00am on Mother’s Day.
(e)on the birthdays of the parties, if the children are not in the care of the party whose birthday it is, the other party shall facilitate a telephone call from the children to the birthday party at a time as agreed between the parties or failing agreement 6.00pm.
10.The children shall communicate with the party they are not with by telephone on Friday evenings with the party they are not with to initiate the call between 6pm and 7pm, and the party the children are with shall:
(a)ensure that the children are available to receive the telephone call;
(b)arrange for the children to telephone the other party on the following night at the same time if, for any unforeseen circumstance, the children miss the telephone call from that party; and
(c)ensure that the children have privacy during the conversation.
11.Unless otherwise agreed between the parties in writing, changeovers shall occur as follows:
(a)changeovers occurring at commencement or completion of school shall occur at the children’s schools;
(b)all other changeovers (including a changeover which occurs on a school day but where the child is not at school for any reason) shall occur at the residences of the parties, with the party whom the children’s time is to commence to collect the children from the party with whom the children’s time is concluding; and
(c)the party collecting the children is to wait in their vehicle in the driveway or visitor bay of the other parent’s residence.
12.Each party is at liberty to take the children out of the Commonwealth of Australia during the children’s holiday time with that party pursuant to these orders and for that purpose:
(a)at least one (1) month prior to any intended overseas travel with the children, the travelling party shall provide to the other party written notice of the intended travel, together with the following information:
(i)a copy or copies of return airfare tickets for the children;
(ii)a brief itinerary as to where the children will be travelling while overseas and details of the children’s departure and arrival times in other countries while overseas;
(iii)contact telephone numbers for the children at each location the children will be staying while overseas.
(b)during any overseas travel with the children pursuant to these orders, the travelling party shall facilitate at least one (1) telephone/facetime call from the children each week, to the parent remaining in Australia.
13.The respondent shall retain any passport for the children.
14.The respondent shall release the passports for the children to the applicant within seven (7) days of the applicant’s travel with the children pursuant to order 12 hereof, with the applicant to return the passports for the children to the respondent within 48 hours of the children’s return to Australia.
15.Each party will forthwith sign and return to the travelling party within seven (7) days of receipt, any passport application, passport renewal application or visa application presented to them from time to time.
16.It shall be sufficient service of the passport application, passport renewal application or visa application on a party by the other party forwarding same to that party at his or her address with a request that the document be signed and returned.
17.Notwithstanding order 2 hereof, both parties shall:
(a)keep the other party informed at all times of their residential address, a contact email address, a postal address and a contact telephone number and notify the other party forthwith of any changes to these details;
(b)keep the other party informed of the names and addresses of any treating medical or other allied health practitioners who treat the child/ren;
(c)keep the other party informed of the names and addresses of any professional care provider, extra-curricular provider or school contact details;
(d)inform the other party as soon as reasonably practicable of any medical emergency or serious injury or significant health issue or significant illness suffered by the child/ren.
18.The parties shall communicate by text message or telephone only in the case of an emergency regarding the children.
19.For the purposes of communicating and sharing information regarding the children the parties will use the services of Our Children Australia Pty Ltd ( and shall:
(a)ensure that a subscription is maintained at all times;
(b)each party shall pay half of the costs of the website;
(c)the respondent will provide the Our Children email address to each child’s professional health care providers, schools, day care facilities or other care providers;
(d)each party will ensure that messages on the Communications wall will be short, polite and used for the purposes of communicating in relation to matters pertaining to the children and not for any other purpose
(e)each party will ensure that the following information in relation to the child is included and up to date on the Information Bank page:
(i)copies of school reports;
(ii)copies of correspondence from the school;
(iii)contact details of schools, day care, carers, extracurricular activities providers, medical and allied health practitioners, counsellors, psychologists and dentists;
(iv)copies of any special dietary or medical treatment information or plans; and
(v)any other information that ought to be shared between the parties in relation to parenting matters for the children.
20.This order operates as an authority for any care provider of the children (whether a school, doctor, hospital, extra-curricular provider or otherwise) to release any information concerning the care, welfare and development of the children to all parties, provided that they should not release any information to the applicant that may identify or tend to identify the address of the respondent or the children. Should either party seek any documentation in relation to the children (including school notices, school reports and school photograph order forms), that each parent shall be at liberty to do so with the parent seeking any documentation to be responsible for any expense involved.
21.Both parties be at liberty to attend all school events and/or extra-curricular activities which parents would ordinarily attend including but not limited to sports days, parent/teacher interviews, graduations, concerts, fetes.
22.Notwithstanding order 2 hereof, each party shall ensure the children attend all current and future jointly agreed sporting, musical, hobby events, practices and rehearsals when the children are with that party unless there is a compelling reason not to do so.
23.Both parties are restrained and an injunction hereby issues restraining the parties and each of them by themselves, their servants or agents:
(a)from physically disciplining the children; and
(b)from changing the surname of the children, enrolling or referring to the children by any name other than that which appears on their birth certificate.
24.Pursuant to s 121 of the Family Law Act 1975 (Cth), the parties are granted leave to provide to:
(a)their treating psychologists and the children’s treating psychologists, if any, a copy of:
(i)all family reports of Mr C dated 23 August, 2020; and
(ii)these orders and the reasons for judgment associated with them.
25.Otherwise all outstanding 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 the pseudonym Apuzzo & Apuzzo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This case concerns the parenting arrangements for three children, Y, currently aged 15, Z, currently aged 13 and X, currently aged 12 and the intractable conflict that exists between their parents. Their father is the applicant and their mother is the respondent.
Presently Y spends no time with her father and Z and X spend time with their father for four nights per fortnight and for half of the school holidays in accordance with the interim orders made on 12 June, 2019.
I initially heard this trial for three days in August, 2020 sitting as a judge of the Federal Circuit Court of Australia (as it was then known). At the conclusion of the trial I reserved my decision. The parties remained in dispute about various matters and there were applications made by both parties for various relief pending judgment. One of the applications was by the respondent for the reopening of her case and for the production of a further family report in the matter. On that application, I permitted the respondent to reopen her case, ordered a further family report and made some directions for a further hearing. The hearing dates needed to be adjourned (for COVID related reasons) and the reopening took place in September, 2022. By that time the application had been transferred to the Federal Circuit and Family Court of Australia (Division 1). The parties agreed with that course.
At the close of the August hearing, at its core, the issue for determination was whether the respondent had the capacity to properly foster, encourage and facilitate the children’s relationships with the applicant, or whether through her conduct concerning the children’s relationship with the father she had exposed them, and will continue to expose them to emotional harm such that it is appropriate for them to reside with him rather than her. However, by the time of the commencement of the second day of the resumed hearing, the issues has changed somewhat because the orders sought by the applicant had considerably changed.
The applicant’s proposals
The final orders sought by the applicant changed during the course of the final hearing. In his case outline filed on 3 August, 2020 he sought for an order for equal shared care, week about, with changeover to occur at school on a Monday. However, Annexure “A” to the same document purported to set out his “Final orders sought”. In that document his primary position was that the children live with him and spend no time nor communicate with the respondent for a period of six months commencing as at the date of the orders and that following completion of a six month moratorium that the children spend time with the respondent from 5pm Thursday until the commencement of school Monday in alternate weeks and for half of the school holidays. He also sought an order for sole parental responsibility. Alternatively, he sought that there be a week about arrangement and equal shared parental responsibility.
His position changed again in cross-examination.
A proposed minute of final orders sought by the applicant was subsequently tendered by the applicant’s counsel (see Exhibit 2). According to Exhibit 2, the applicant no longer sought orders in the alternative. His only position was that the children live with him, that there be a moratorium on time with the respondent and that thereafter the children spend time with the respondent from 5pm Thursday until 9am Monday each alternate weekend and for half school holidays.
At the re-opened hearing on 23 September, 2022 the applicant’s counsel handed up a further set of orders contended for by the applicant. Those proposed orders were marked as Exhibit 3 in the proceedings. Those orders represented a wholesale change to his position. He now contends that the orders in the children’s best interests would see Y living with the respondent and spending time with the applicant in accordance with her wishes. They would see the younger two children living with the respondent and spending time with the applicant each alternate weekend from after school Wednesday until before school Monday (or Tuesday if Monday is a non-school day). He now argues that there should be an order for equal shared parental responsibility for all of the children.
The orders promoted by the applicant contain a raft of other orders, including certain injunctions against the respondent, the issue of a recovery order to lie in the Registry, the continuation of certain counselling and the appointment of a “parenting co-ordinator”.
The respondent’s proposal
The orders proposed by the respondent at the hearing of August, 2020 are set out in Exhibit 4. They are in effect the existing interim orders. They are a combination of orders made on 14 June, 2019 and those remaining from the orders made earlier on 29 October, 2018 with some amendments to take account of the recommendations made by Mr C in his updated family report and some other minor changes. She seeks an order for sole parental responsibility for the children.
At the commencement of the reopened hearing on 23 September, 2022 Senior Counsel for the respondent handed a further set of orders for which the respondent now contends. They are, by and large, in the same terms as the orders set out in Exhibit 4 with various amendments to some of the ancillary orders she seeks.
The outcomes in dispute
Thus, the outcomes that remain in dispute are as follows:
(a)the applicant seeks equal shared parental responsibility for all children whereas the respondent seeks that she be granted sole parental responsibility for them;
(b)whilst the parties are agreed that the two younger children (Z & X) should live with the respondent and spend time with the applicant, they remain in disagreement about the amount of that time during the term. The applicant seeks the children spend five nights per fortnight with him whereas the respondent contends it should be four nights per fortnight;
(c)whilst the parties are agreed that the two younger children should spend half school holidays with each parent, they remain in disagreement about the form of that order. The respondent seeks the time be on a week-about basis whereas the applicant contends for longer blocks of either four weeks or two weeks;
(d)the applicant seeks an order for a parenting orders co-ordinator and continued family therapy with a new therapist. The respondent seeks that if family therapy continues, it be with the same therapist;
(e)the applicant seeks that the current recovery order remain in force. The respondent seeks that the recovery order be cancelled.
BACKGROUND
The applicant is aged 43 years and is employed as a professional on a part-time basis. The respondent is aged 41 years and is presently out of employment and attending to home duties. She also co-produces and participates in a form of online media. There is no evidence about the amount of time that takes out of the respondent’s day.
The parties’ commenced cohabitation in 2002 and married in 2005. They separated on a final basis in April, 2018. The applicant moved out of the former matrimonial home on 8 June, 2018.
The respondent has re-partnered with Mr F who has a daughter from a previous relationship, G. The respondent and Mr F commenced living together sometime in 2021.
The applicant has re-partnered with Ms J. They are now married and have a daughter H.
The respondent and the children had been living in the former matrimonial home up until mid‑2019 when it was sold. They moved to rental accommodation until the respondent purchased a residence sometime in 2021.
Following the parties’ separation, the children had day time visits with the applicant and one overnight visit. When the applicant secured rental accommodation, the children lived with the parties in a flexible arrangement with the children spending regular and frequent time with each parent. The applicant secured permanent, full time-employment in mid-2018 and was thereafter reliant upon after-school care facilities during the children’s time in his care. The respondent took issue with the applicant’s use of after-school care and sought to re-negotiate the children’s care requirements.
At that point things appear to have fallen apart. Despite what the applicant says was an agreement for the children live with the respondent and spend five nights per fortnight in the applicant’s care, that did not occur and the children spent no time with the applicant from about mid-2018 to late 2018. The respondent filed an Application for a Protection Order in the Brisbane Magistrates Court in mid-2018.
The applicant commenced proceedings in relation to parenting matters on 29 August, 2018. The respondent filed material in response on 25 October, 2018 seeking orders both in relation to parenting and property matters.
Orders were made by consent on 29 October, 2018 for the applicant to communicate with the children by telephone on Mondays and Thursdays between 6pm and 7pm. There was a contest about the time the children should spend with the applicant. That was resolved by the Court and orders provided for the children to live with the respondent and spend supervised time with the applicant at K Family Services each weekend for two hours.
The parties attended interviews with Dr L, a psychiatrist, in early 2019 and interviews with Mr C, a consultant social worker and a family consultant appointed as such pursuant to the Family Law Regulations 1994 (Cth) for the preparation of a family report.
Mr C reported in March, 2019 and made the following recommendations:
(a)the children live with the respondent;
(b)the children spend gradually increasing weekend time with the applicant during school terms, starting with one night on alternate weekends and increasing holiday time progressing toward an arrangement whereby they are with the applicant in alternate weeks from after school on Thursday until before school on Monday and half of school holidays;
(c)the parents be at liberty to interact with the children’s service providers and that they be at liberty to attend any function or event for the children;
(d)the parents communicate in writing about issues relating to the children and ensure that the children are not exposed to adult issues.
Dr L, consultant psychiatrist, was commissioned to undertake a psychiatric assessment of both the respondent and the applicant. Dr L’s opinions, rendered on 7 May, 2019 are in evidence.
Dr L assessed the applicant as suffering from a “mood disorder which is best understood as constituting Recurrent Major Depression against a background of chronic dysthymia”. Dr L thought that the applicant’s conditions were in remission and very amenable to treatment. Dr L did not think that the applicant showed any vulnerabilities in his personality that would impact on his capacity to be an effective parent.
As for the respondent, Dr L assessed her as possibly having endured “periods of dysthymia which have presented with somatic symptoms” and “intermittent episodes of anxiety” and what she described as “panic attacks”. Dr L did not think that the respondent’s anxiety was disabling and she did not have any Generalised Anxiety Disorder. He thought that she had a vulnerable personality but not a personality disorder. Dr L identified the respondent’s capacity and willingness to foster the relationship between the children and their father as an issue. He opined that if the Court concluded that the incident that occurred between the applicant and Y in 2018 (the subject, in part, of my reasons in Apuzzo & Apuzzo [2019] FCCA 1974) was less serious than the view taken by the respondent then “I would understand the mother’s focus on this issue as probably arising from certain aspects of personality namely related to personal insecurity and self-esteem such that she sees the applicant as being a threat to her own relationship with the children in that the children may prefer him.”
At that point in the life of these proceedings, the respondent’s case was that the children were at an unacceptable risk of physical or psychological harm by reason of being exposed to family violence in the applicant’s care. That issue was determined by me as a separate issue in June, 2019. The order for the separate determination of that issue was made upon the respondent indicating that in the event that the Court found that the applicant was not an unacceptable risk to the children, she adopted the recommendations made by Mr C in his report.
The separate issue was determined by a judgment that I delivered on 12 June, 2019 (Apuzzo & Apuzzo [2019] FCCA 1974). I found there was no unacceptable risk of physical or psychological harm to the children presented by their father. Those findings of fact bind the parties and I have had regard to them and my reasons for judgment for the purposes of these reasons. Where it is suggested by the applicant in his written submissions that I should reach a different conclusion to those already expressed by me, I reject his argument.
Interim parenting orders were made, some by consent and some following argument on 14 June, 2019. They provide the following:
(a)the children to live with the respondent;
(b)the children to spend time with the applicant at all reasonable times as agreed between the parents and failing agreement in a gradually increasing way such that, commencing 24 April 2020, the children were to spend from after school Thursday until the commencement of school Monday each alternate weekend with the applicant and for one half of the school holidays .
(c)time on special days such as the children’s birthdays , Mother’s Day and Father’s Day;
(d)telephone contact on Wednesdays between 6-7pm ;
(e)changeovers to occur before and after school at the children’s schools and all other changeovers to occur at the Suburb M ; and
(f)The applicant to continue to attend upon his psychologist Ms N as directed by her for as long as therapeutically indicated to assist him:
(i)in managing anger;
(ii)with psycho education regarding parenting skills, asserting authority when emotionally triggered, developing different strategies to manage children’s behaviour and to develop empathy and a sense of emotional control; and
(iii)with his mood disorder .
(g)the applicant to enrol in and complete a PPP Parenting Course, Circle of Security Parenting Course and/or an AHA! Parenting Course. The parties were ordered to complete a parenting orders program;
(h)the parties to provide to their treating psychologists as soon as possible a copy of the family report, the psychiatric assessment of Dr L and the orders and Reasons for Judgment delivered by Judge Jarrett on 12 June 2019. Leave was also provided for the family report and Reasons for Judgment to be provided to the children’s treating psychologists;
(i)the interim orders also provided that the parents shall not physically discipline the children and were to use their best endeavours to ensure others do not do so.
Some obligations remained on the parties by reason of earlier interim orders made on 29 October, 2018.
Insofar as the younger children are concerned, the evidence seems to suggest that the time has been progressing well. Y is a different story however. Generally speaking there have been issues in relation to her spending time with her father.
The parties have also been involved in domestic violence proceedings. As I understand the submissions made to me, there was a commonality of factual issues between the foundation for the assertion of unacceptable risk of harm and the basis for the making of a protection order. The respondent’s Application for a Protection Order was heard over a series of days. Her application was ultimately dismissed on 7 February, 2020 following a “no case to answer” submission.
SOME PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) provides the relevant statutory framework within which the Court must determine what parenting orders to make in contested proceedings. The Court must have regard to the best interests of the children as the paramount consideration in determining what parenting orders ought to be made: s 60CA of the Act.
The best interests’ principle informs each of the orders that a court might be called upon to make concerning parenting, including orders concerning the incidence of parental responsibility, where children should live and with whom they should spend their time and communicate.
As to the issue of parental responsibility, s 61DA of the Act provides that when making a parenting order, a court must apply a presumption that it is in the best interests of the child or children concerned for their parents to have equal shared parental responsibility for them. That presumption will not apply if there are reasonable grounds to believe that a parent of the child or children concerned either has engaged in abuse of a child who, at the time, was a member of the parent’s family or has engaged in family violence.
I can pass over the question of the presumption of equal shared parental responsibility in this case because first, it clearly does not apply on the basis of the findings I made in my earlier reasons for judgment. I am satisfied that there has been family violence between these parties and s 61DA(2) is engaged. I have said a little more about that later in these reasons. Second, no party seeks an order for equal shared parental responsibility on the basis that the presumption applies. Whilst the applicant seeks an order for equal shared parental responsibility, he is recorded as expressing to Mr C significant misgivings about whether such an order would work
In determining what orders are in the best interests of children, the Court must have regard to primary and additional considerations as set out in s 60CC of the Act. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court must give greater weight to the primary considerations. Of the two primary considerations, the Court must give greater weight to that set out in s 60CC(2)(b) and s 60CC(2A). The additional considerations are those set out in s 60CC(3) that are relevant to the matter at hand.
Consideration
The orders sought by each of the parties are underpinned by an unspoken assumption that each of these children will derive a benefit from a meaningful relationship with each of their parents. The same assumption underscores the opinions of Mr C.
I am satisfied on the evidence that the applicant genuinely believes that there would be a benefit for these children if they had a relationship with each of their parents.
The respondent made submissions that were consistent with the proposition that the children would benefit from a relationship with each of their parents, although counsel for the respondent argued that the assumption may not be as confidently made insofar as Y was concerned. Initially I thought that there was real reason to think that the respondent had no conviction that any of the children will benefit from a meaningful relationship with the applicant. Thus, when asked to identify what those benefits for the children might be from a relationship with the applicant, she was unable to identify any. She could mention no positive things about the applicant or any type of positive benefit that he would bring to them aside from making general motherhood statements, for example “that they – that he is the dad and he can do dad things with them”. However, the evidence shows that she has facilitated Y spending time with the applicant in 2021 and 2022. That is inconsistent with an attitude on her part that time with the applicant is of no benefit for the children.
I do not consider the evidence permits of a finding that these children will not benefit from a meaningful relationship with the applicant. The evidence clearly is that the two younger children have a good relationship with the applicant and as I say, the position of each of the parties is underscored by the assumption that they will benefit from an ongoing relationship with him. Y will also benefit from a meaningful relationship with the applicant. The evidence does not satisfy me that the applicant has such a character or personality that it could be said that the children will not obtain some benefit from a meaningful relationship with him. I so find.
I have dealt with the question of unacceptable risk in my reasons delivered on 12 June, 2019. I have nothing more to add to those reasons other than my acceptance of the submission made by counsel for the applicant that the allegations raised by the respondent arise exclusively in the post-separation context, however, relate to conduct that will was allegedly committed during the relationship. It is the applicant’s position that the passage of time that lapsed between the incident that occurred in late 2017 and her reporting of the incident to the police after separation and, importantly, after the co-parenting relationship had broken down is demonstrative of the respondent’s ulterior motive and attempt to fabricate evidence as a means to leverage her case against the applicant in these proceedings.
I am not persuaded that these children are at an unacceptable risk of harm by reason of being exposed to abuse, neglect of family violence in the household of either parent. In any event, the present proposals of each party must carry with them an acknowledgment that no unacceptable risk exists on the evidence before the court.
Y is now 15 years of age. The evidence shows that she has been expressing clear views. It was both parties’ evidence that Y is an articulate, highly intelligent young woman. The applicant considers that her views are nothing more than the product of the respondent’s negative influence on her and a sign that the respondent’s undermining of the applicant’s relationship between the children and the applicant has been successful. However, I reject that argument.
In my view the evidence leads inexorably to the conclusion that Y’s views have been formed as a result of her experiences with her father. On all of the evidence Y is an intelligent and articulate child. Mr C thought that she had some capacity to understand the consequences of the disconnection from her father, particularly that she faces the loss of an opportunity to have him more robustly involved in her care and support at this stage of her childhood.
Y has not spent overnight time with her father since May, 2020. She has spent sporadic time with him including for Father’s Day 2022. The evidence shows that there had been issues prior to this of her refusing to spend time with him, her running away from the changeover location and her engaging in self-harming behaviours. According to Mr C, Y’s “narrative” over the last 12-14 months is presented in a somewhat “binary fashion” as a series of negative events and experiences in the applicant’s care which have caused cumulative harm.
Indeed, the evidence bears this out. There have been a series of events which have led to Y not feeling safe in her father’s household. I accept the submission that it is probable that Y’s experiences have contributed to her feeling unsafe and not wanting to spend time with her father. The late 2017 incident dealt with in my earlier reasons was the low point but there have been other occasions of aggressive behaviour by the applicant towards Y in the past.
The police were called to the applicant’s home for a welfare check on the children in mid‑2019. The applicant conceded that there was a conversation in which he suggested to Y that she had called her Mum on the phone and that, in effect, Y was responsible for or to blame for the police attending. It is uncontroversial that Y has experienced the applicant making physical threats to her.
It is significant, I think, that the applicant invaded Y’s privacy and sense of personal safety when Y spent unsupervised time at his home. I am satisfied that there were security cameras facing into her bedroom. The cameras were recording not only video images but also audio. As a consequence, Y felt she had to hide in the cupboard to call the respondent. The applicant accepted that she had done this.
The applicant gave evidence that he checks the children’s phones regularly. Whilst he suggested doing so was consistent with some recommendations made on some government website, no independent evidence of such recommendations was provided. I accept the submissions made for the respondent that this behaviour could be seen as intrusive and an invasion of the girls’ privacy. It is clear that Y found the applicant’s conduct in that regard intrusive.
There are many other examples conceded by the applicant in cross-examination.
The point of all these incidents in the present context is that they satisfy me that Y’s desire to not spend any time with the applicant unless it is on her own terms has its foundations in her experiences of him, rather than in any undermining behaviour of the respondent. Y’s views are, I find, her own views formed as a result of her experiences.
More recently, it seems that the applicant has come to accept that Y’s views are her own such that he now accepts that an order that she spends time with him according to her wishes is appropriate. I agree.
Initially, Z and X thought that more time with the applicant would be appropriate. They were not adverse to a week about arrangement. However, in his earlier reports Mr C did think that their views about this were undermined by a strong sense of loss posed by a disconnection from the respondent who has been their predominant caregiver for a long time.
For the purposes of the most recent family report, X told Mr C that she was not worried about the amount of time she was then spending with her father. She said “I don't really want it to change. I think it's a good amount of time that we spend [with our father]." She also said that she liked spending time with her half sibling H and also likes spending time with Y. She did say to Mr C that she would not mind living with her father “as such”. Mr C records (when talking about X):
191.When asked about three wishes for her family she replied, “we all went to Daddy's and we all came back. I wish [G] would be with us. I get to see her more often. Other than that, I wouldn't change anything."
Z made it clear to Mr C during her interview for the purposes of his latest report that she did not wish to live with her father. Mr C records her as saying:
208.If the current arrangement stayed the same, she said, matter-of-factly, "then nothing much would change." She prefers spending shorter holidays between her parents, because she misses her mother and would prefer to spend more of the holiday time with her.
209.In discussing these feeling she made it clear that she is invested in seeing and spending time with her father, [Ms J], [H] and their pet cat.
The evidence demonstrates, and I find, that Z and X have good relationships with both parents and their partners. Y’s relationship with her mother is well-established. As I have discussed above, her relationship with her father is poor.
Neither parties’ proposal would carry any particular benefits for Y or X having regard to their expressed wishes. I am satisfied from Mr C’s evidence that Y would be equally comfortable with either proposal. Z, however may be more resistant to more time with the applicant having regard to her comments to Mr C (particularly at [204] of his most recent report) and Y’s comments to him about Z’s attitude toward spending time at his house.
It is not suggested by either parent that either parent has failed to take every opportunity to spend time or communicate with the children. Further, they have both sought to participate in decision making. That is a credit to each parent.
The financial burden of meeting the children’s needs falls upon the respondent in large measure. The applicant is in arrears of child support and it is not without hesitation that he contributes to the children’s private school fees. The respondent took the issue of school fees up with the Child Support Agency. The evidence is that the applicant does not contribute towards the children’s extra-curricular activities despite them having engaged in those activities for some years. The engagement by the children in those activities causes conflict between the parents and does not appear to be supported by the applicant.
I accept that there would be little change in the children’s circumstances if orders were made as sought by the respondent. Effectively those orders would see a continuation of the children’s current arrangements. The applicant argues that a continuation of the current regime would continue to expose the children to the respondent’s undermining behaviour and that will lead to a termination of their relationships with him. However, I do not accept that argument. The relationships with the younger two children have not deteriorated significantly, or at all over time, and they enjoy their time with the applicant and his family. That is consistent with the respondent not undermining or attempting to undermine the children’s relationships with the applicant. It is consistent with the deterioration of Y’s relationship being due to the applicant’s treatment of her and an incapacity on his part to empathise with her and manage her behaviour.
Conversely, the orders initially sought by the applicant would see a change in the children’s circumstances. Mr C dealt with the advantages and disadvantages of the applicant’s various proposals in his reports and oral evidence. As to the latest proposal, Mr C thought that it would allow the children to be more exposed to the applicant’s household, to draw upon his household for support with homework and be exposed to different social and emotional differences. Against that, however, Mr C saw the following disadvantages:
(a)the arrangement was tending towards shared time which opens up the parents to practical and logistical issues. They would be managing the school week across two households and there would be greater communication required in relation to daily needs, in circumstances where there are likely to be substantial difficulties with the parents managing that along the way;
(b)the more children are exposed to parental conflict and mistrust, then generally the poorer the outcome across different domains; and
(c)the children are content with the arrangement as it stands and are reluctant to do much changing in their arrangements.
Mr C thought that, balancing all the factors, he did not support time increasing to a five nights per fortnight because the current arrangement is one that the children are content with and it allows for broad ranging time. He thought that moving to five nights a fortnight would likely be something that would unsettle Z and X. I accept Mr C’s evidence about this. It is apparent that the respondent’s proposals carry more benefit than that of the applicant’s in terms of the school term time for the children.
Both parents have the capacity to meet the children’s physical needs. I consider that the respondent has the capacity to meet the children’s emotional needs. I do not consider that the applicant’s capacity to manage and meet the children’s emotional needs is as developed or effective as the respondent’s.
Whilst the respondent has anxiety issues, I do not consider that those issues unreasonably impede her capacity to meet the emotional needs of the children. She has reason to be anxious about the applicant and his behaviour on occasions towards the children. The evidence shows that the respondent has been attending upon Mr O for the purposes of receiving support since mid-2019. Mr O authored a report dated 3 August, 2020 in which he recorded that that the respondent has made progress in relation to her trauma and her anxiety and that her anxiety vacillates in response to the reported difficulties she encounters with the applicant.
Although he had the opportunity to do so, the applicant did not call Mr O to give evidence. I infer that is because he would not have added anything useful to the debate and nothing useful to the applicant’s case.
Conversely, the evidence clearly demonstrates that the applicant can behave with impulsive aggression in response to challenging behaviour from the children and in particular Y. I need not recount that evidence. Such a response to challenging behaviour from the children is unhelpful and damaging. The evidence demonstrates an inability on his part to manage her behaviour. I am satisfied that the applicant’s responses to Y provide some explanation for the current state of her relationship with him.
Further to that, the evidence is replete with decisions made by the applicant concerning the children that seem to have as their focus, not the children, but him and his desire to control what is going on with them. Although now historical, they are still relevant. These decisions include insisting that the children change out of the clothes they have worn to his house and that they change back into clothes they arrived in, before returning to their mother’s care, insisting that the children talk to him for 20 minutes each on the telephone in their bedrooms alone, taking the children’s smart watches and phones off them when they arrive at his home and not allowing them to call the respondent when they wish despite orders providing for them to do so, installing security cameras inside his unit including outside of Y’s bedroom which record not only visual images but also audio.
In addition to these matters is the lack of insight and empathy demonstrated by the applicant’s stance in these proceedings and the orders that he has sought from time to time. The evidence is replete with other examples adumbrated by the respondent in her written submissions at [86] – [88]. These matters and the others catalogued in the submissions for the respondent and demonstrated in the evidence show poor decision making by the applicant and a focus upon his own needs. His capacity to meet the emotional needs of the children is compromised.
Conclusions
Parental responsibility
The presumption of equal shared parental responsibility does not apply in this case. I am satisfied that there has been family violence perpetrated by the applicant towards at the very least Y. I repeat the findings made by me in my earlier determination.
Nonetheless, I might still make an order for parental responsibility if I conclude that it is in the best interests of the children to do so. I accept the applicant’s submission that there is no doubt that both parents are intelligent and high functioning. I also accept that there is no doubt that it would be good for the Y, Z and X if their parents could effectively exercise equal shared parental responsibility.
The applicant conceded that should an order for equal shared parental responsibility not be made, sole parental responsibility should lie with one of the parents. Logic would dictate that it should be the parent with whom the children primarily live. In this case that is the respondent.
I do not consider that it is in the best interests of the children to make an order for equal shared parental responsibility. Sadly, on the evidence, I do not consider that these parents could effectively exercise parental responsibility.
I accept the respondent’s submission that the parties have a very limited ability to effectively communicate with each other. Whilst they use a written form of communication (a parenting application called “Our Children”), the evidence shows that even that medium is used as a means of arguing with each other. Their communication is fraught and very often ineffective. I accept that this has a real capacity to impact upon the children in a negative way. A significant example relates to Z and her health. X too has developed some minor health concerns. The evidence shows that without decision making resting in the hands of one parent alone, timely decisions are not likely to be made and decisions by one will countermanded by the other.
For example the applicant:
(a)withdrew his consent to Z having a medical procedure, the day before the procedure, despite having been present in the appointment with Dr P when the procedure was discussed, and despite ignoring the respondent’s messages to him. There were then lengthy conversations with him regarding the procedure;
(b)engaging Z’s school in the argument between the parents as to whether she should be attending study hall;
(c)forcing the respondent to take X to see a paediatric physiotherapist and, when that was not successful, encouraging the child to remove the shoe inserts that her treating physiotherapist had put in her shoes;
(d)arguing with the respondent about whether or not the children should have a flu shot;
(e)arguing over the safety plan for Y following her attempt to self-harm in late 2020.
I accept that the respondent gave unchallenged evidence about all of these matters.
Whilst to vest sole parental responsibility in one parent in a case such as this may exacerbate the parties’ conflict, I expect it would have the opposite result because it would reduce the scope for a power struggle between these parents. Indeed, the level of dispute between these parents’ means, I find, that they will not be able to effectively make decisions for the children jointly. Their actions concerning the involvement of the police demonstrate that each of them is willing to take up the time and attention of public authorities like the police over objectively trivial matters – advice from outside organisations notwithstanding. Neither parent is any better than the other on that score. That is concerning given that the applicant is a professional and the respondent’s mother is an experienced professional and she and the respondent provide information to the public at large through online media.
I accept the respondent’s submission that it is important that medical conditions and in particular, Z’s medical condition be treated appropriately and consistently. The applicant and the respondent have different views about Z’s ailments that have led to significant conflict between them that has necessarily involved Z. In that respect, I accept Mr C’s observation that the parents’ efforts to communicate and jointly attend medical appointments and manage Z’s medical issues across the households is a driver of parental conflict and mistrust.
Significantly, Mr C described the family dynamics as being at best akin to a parallel parenting structure whereby the children may have had their needs met in each household; where they may draw on the resources offered by each parent and where the parents are likely to share similar aspirations for them. The households are not co-operative and the parents have a fractious co-parenting relationship.
The applicant argues that the respondent has acted unilaterally in relation to many decisions involving the children. I accept that is so and one might have expected that a properly motivated parent with a desire to co-parent would have consulted the other parent about decision such as the engagement of psychologists for the children. I accept that the respondent is not so motivated and in the absence of a legal obligation to consult and make such decisions jointly she did not do so and is unlikely to do so. Her decisions in that regard were to the detriment of her children.
But making parenting orders is not an exercise in punishing poor parenting decisions or rewarding good parenting decisions. It is an exercise in divining an order that is in the best interests of the child or children concerned.
Regretfully, I have concluded that I am satisfied that one parent having sole parental responsibility for decisions about the children’s major-long term issues may offset some conflict between these particular parents and go some way towards ensuring that decisions are made without having to resort to ongoing legal proceedings. I say regretfully because these children deserve better than what each of their parents have given them and the result is now that they may not have the benefit of input into decision making for them by the applicant.
Finally, I think there is considerable merit in the respondent’s submission that it is telling that, although the applicant seeks an order for equal shared parental responsibility, he feels the need for a family therapist and a parenting orders co-ordinator to assist the parties in making decisions. I agree that such a position underscores the parties’ inability to communicate with each other and to jointly make decisions.
An order for the respondent to have sole parental responsibility for the children is in the children’s best interests. I so find.
Time with the younger children during school term
In my view, there is no support in the evidence for an increase in the time between the applicant and the children. Both Y and Z are content with the current arrangements for weekly time. To make an order that accords with their wishes is to deliver them something that their parents cannot – an arrangement that is predictable and comfortable for them.
Mr C’s evidence demonstrates that the children have a good and meaningful relationship with each of their parents under the current regime. They also have a good relationship with H and Ms J. There is no indication in the evidence that more time between the children and the applicant will improve those relationships, that the children are desirous of more time with him or that more time will deliver greater benefits to the children. Indeed more time would increase their exposure to the applicant’s compromised capacity to meet their emotional needs.
Mr C did not support an increase in time. His oral evidence did not deviate from his written opinion about this matter. Indeed, as the respondent points out, he considered an increase in time would likely put more pressure on the parties’ otherwise delicate co-parenting system.
Time with the younger children during holidays
The parties agree that school holidays should be spent by the children (Z and X) equally between their parents. The dispute concerns the end of the year holidays. The applicant proposes that time be in blocks (which would be in the order of 4 weeks). The mother proposes that time continue as it is currently spent, week about.
Mr C thought that unless there was a good reason such as an overseas trip, the time should continue as it is. He identified issues with sibling separation, intensity of changeovers, what the children are generally used to and suggested longer periods would made it more difficult for the children to make those transitions. Indeed, Z told Mr C that she prefers spending shorter holidays between her parents, because she misses her mother and would prefer to spend more holiday time with her.
However, I do not accept that it is in the children’s best interests for them to spend shorter periods of time with each of their parents over school holiday periods. Shorter holiday periods will compromise the children’s ability to spend extended time away from their regular homes with either parent should a parent wish to go away for an extended vacation (not necessarily overseas). There is nothing in the evidence to suggest that the children should be deprived of the opportunity to spend extended half-school holiday time in the household of either parent. It will also permit a greater opportunity for non-school week time with half siblings. Whilst I pay due regard to the evidence of Mr C on this point and I acknowledge the views of Z and X, it remains the case that the absence of long periods of time in both parents household (not just that of the applicant) over the long end-of-year holidays will deprive the children of the opportunity of a more fulsome experience with each of the parents. That longer period presents as an opportunity for the children’s relationship with the applicant to further solidify and improve through interaction that might not otherwise be available during the more restricted school term time.
The form of the orders
Each party proposed draft orders for my consideration. Some of the orders are uncontroversial but there are significant differences in respect of others. In respect of some of those, there has been no argument and so, doing the best that I can, I have fixed on a form of orders for the reasons set out hereunder.
The order for sole parental responsibility requires no further explanation save that I have included two injunctions that restrain the parties from physically disciplining the children and the other to restrain the respondent from changing the children’s names. Although there is no explicit evidence that she has a plan to change the children’s names, the view I formed of her generally is that cloaked with sole parental responsibility she may very well consider that it is appropriate to change the children’s names. Such a decision would not be in the best interests of these children.
The orders with respect to Y reflect the parties’ agreement that she should live with, spend time with and communicate with the applicant in accordance with her wishes. The only exception to that is an order for which provides for the applicant to be at liberty to send cards, gifts, letters, photographs and any other items to Y. That order, however, imposes upon the respondent an obligation to ensure that Y receives those items.
The mechanics of the school term time that the children spend with the applicant are uncontroversial except that I prefer a commencement time of 3pm rather than 5pm (as contended for by the respondent) and an extension of the weekend time between the children and the applicant in the event that Monday is a public holiday or a non-school day for the children. There are orders to that effect.
The orders for school holiday time reflect the parties’ broad agreement that one half of the school holidays should be spent in each of the parents’ household. To the extent that the term one school holidays may overlap with the Easter public holidays, I prefer the applicant’s form of orders for the children to spend time with the parties during those holidays and public holiday days. They are apt to lead to less disruption for the children over their school holiday period. I have explained above my preference for the orders I have made in respect of the Christmas school holidays.
There is a consequential order more or less agreed between the parties about the commencement and conclusion of the school holiday period. The orders proposed by the respondent provide that in the event that there is an odd number of nights in any school holiday period that is to be shared equally between the parties, that additional night is to be spent in her care. I have made the order so that that additional night is spent in the care of the applicant. I have done that to reflect the fact that the children spend significantly more time in the respondent’s household than the household of the applicant.
I prefer the applicant’s form of orders in respect of other special occasion time such as the children’s birthdays, Father’s Day and Mother’s Day for the same reason. Those events are important to the children and it is important that their opportunity to spend with each of their parents at those times is maximised. The orders proposed by the respondent for each of those special occasions tend to minimise the opportunity the children have to spend time with one or other of the parties (including her). I do not consider those orders are in the children’s best interests.
The respondent proposes a particular order with respect to block time in the event that either party wishes to travel away with the children during the Christmas school holiday period. The order proposed by her is unnecessary, however, given the form of order that I have made in respect of the Christmas school holidays.
There is a minor discrepancy between the parties’ orders with respect to telephone contact between the children and the parent with whom they are not living from time to time. The applicant contended that a telephone call to or from the parent with whom the children were not living on Wednesday night would be appropriate whereas the respondent contended for a different night. Given the time arrangements set out for the children generally, I have opted to make a telephone call on a Friday night for each of the parents in the event the children are not in their care. Those orders are otherwise, I consider, self-explanatory.
I prefer the orders for changeover promoted by the applicant. Those orders would see the children transition between their parents’ household at the conclusion or beginning of the school week during school term. Otherwise, the changeover should take place at the parties’ residences. These children have had to put up with significant disruption and poor behaviour from each of their parents since their parents’ separation. It is important, in my view, for these children to start to experience some normality of behaviour between their parents. Placing an obligation on their parents to behave in a reasonable way by collecting or dropping off the children from the residence of the other parent is one way to achieve that end and sends a strong message to the children that each parent values the relationship the children have with the other parent.
I prefer the applicant’s form of orders for overseas travel. They are far less complex than those promoted by the respondent and are more easily understood. They impose a modest obligation on each of the parents to inform the other about proposed travel and the overseas travel is limited to the time the children would spend with the travelling parent otherwise in accordance with the orders. The applicant’s form of orders are succinct and appropriate.
The applicant seeks orders for the appointment of a parenting orders co-ordinator and for ongoing family therapy. I decline to make either of those orders. I accept that there is no evidence that explains the role or function of a parenting orders co-ordinator. Nor do I consider that there will be any benefit from family therapy. It has been a source of friction in the past between the parents. What is needed here is some form of therapy between the parents that does not involve the children. Sadly, neither parent advocates for that. Moreover, it is difficult to see what the family therapy would likely achieve. X and Z have good relationships with the applicant, his partner and their child. Y is to be left to her own devices and Mr C’s report recites a softening of Y’s attitude towards the applicant. The involvement of the children in family therapy would be a constant reminder to the children of the conflict between their parents and, quite possibly, these proceedings. I consider it unnecessary and most likely a constant source of friction between these parents.
The applicant seeks for there to be a recovery order made and for that lie in the registry to be executed upon his request when he considers there is a need to do so. To have a recovery order made and for it to lie in the registry on an indefinite basis until the children turn 18 years of age in the circumstances of their living arrangements as they will be upon the making of these orders is an extraordinary proposition. It is, in my view wholly unnecessary. In the event of a contravention of the orders the parties will have recourse to the remedies ad sanctions available under the Family Law Act 1975 (Cth). The current recovery order should be discharged.
The applicant also seeks other orders that both parties be restrained from posting about these proceedings, the other parent, the partner of the other parent, or family members on social media. The applicant’s submissions in this respect are confined to paragraph 46 of his submissions, plus some reference to previous social media posts made by the respondent at paragraph 15. There is no sufficient justification advanced for the making of this order. I decline to make it.
The applicant also seeks that the applicant be restrained from taking the children to the Queensland Police Service for the purpose of making any report. It is clear that such an order is not appropriate and the applicant does not advance any good reason why it should be made. I decline to make it.
Disposition
I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Jarrett. Associate:
Dated: 22 December 2022
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