Aubert & Cranmore (No 2)
[2024] FedCFamC1F 586
•4 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aubert & Cranmore (No 2) [2024] FedCFamC1F 586
File number: SYC 6363 of 2019 Judgment of: MCGUIRE J Date of judgment: 4 September 2024 Catchwords: FAMILY LAW – PARENTING – where there is one child aged seven years – where the primary parties are two mothers and the second respondent is the biological father – where ultimately “the live-with” despite is whether the child lives with one mother for five or seven nights per fortnight – where the second respondent seeks time-with – issues of capacity – matter highlighted by high level of conflict and mutual criticism between the mothers – whether the biological father is aligned with one mother – issues of parental responsibility – order for equal shared responsibility in the mothers and week about live-with regime Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Briginshaw v Briginshaw (1938) 60 CLR 336
Goode & Goode (2006) FLC 93–286; [2006] FamCA 1346
M & S [2006] FamCA 1408; (2007) FLC 93-313.
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 171 Date of last submissions: 31 May 2024 Date of hearing: 12, 13, 14, 15, 16, 19, 20, 21 February 2024 and 30 May 2024 Place: Parramatta; Delivered Hobart Counsel for the Applicant: Mr Cummings SC with Ms Kennedy Solicitor for the Applicant: Landers & Rogers Counsel for the First Respondent: Ms Mooney SC Solicitor for the First Respondent: Broun Abrahams Burreket Counsel for the Second Respondent: Ms Seric Solicitor for the Second Respondent: De Saxe O’Neill Family Lawyers Counsel for the Independent Children’s Lawyer: Mr Holmes Solicitor for the Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 6363 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AUBERT
Applicant
AND: MS CRANMORE
First Respondent
MR F
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
4 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All extant parenting orders in respect of the child X born 2017 (“X”) be discharged.
2.The applicant, Ms Aubert, and the first respondent, Ms Cranmore, (“the mothers”) have equal shared parental responsibility for X.
3.These orders impose an obligation on the mothers to communicate in a child focused manner in respect of all important decisions to be made in relation to X including but not limited to medical and educational issues.
4.Insofar as is practicable the mothers consult with the second respondent father, Mr F (“Mr F”), in respect of any important decisions to be made in relation to X and to prudently keep Mr F advised of such decisions made.
5.Specifically, the mothers are to follow any and all recommendations made by X’s medical practitioners or other health practitioners.
Live with
6.From the commencement of the long summer school holidays in 2024/25 X is to live in a week about arrangement between his mothers, but subject to these orders, such to continue during both school holidays and school terms but again subject to these orders.
7.Until the commencement of the long summer school holidays 2024/25 X live with Ms Aubert:
(a)in week one from the conclusion of school on Thursday until the commencement of school on the following Monday; and
(b)in week two from the conclusion of school on Thursday until the commencement of school on Friday.
8.Until the commencement of the long summer holidays 2024/25 X otherwise live with Ms Cranmore during school term.
9.During the Term 3 school holidays 2024 X live equally between his mothers, being with Ms Cranmore for the first half of such holidays and with Ms Aubert for the second half of such holidays with time to commence on the last Friday of term and the changeovers to occur on the second Saturday at 12 noon; and the time to conclude on the last Sunday of such holiday at 5.00pm.
10.The changeovers for X’s week about live with time between his mothers take place on Mondays at the commencement of school or if not a school day at 9.00am on the Monday.
11.From the commencement of the long summer school holiday at the end of X’s school Year 6 then the summer holidays for X between his mothers, but subject to these orders, be divided equally between his mothers with X to spend the first half of such holidays with Ms Cranmore in the year of the completion of X’s Year 6 and the second half of such holidays with Ms Aubert and in each alternate year thereafter and in the summer holidays at the completion of X’s year 7 with Ms Aubert for the first half of such holidays and with Ms Cranmore for the second half of such holidays and in each alternate year thereafter.
12.The changeovers for the purposes of these orders that do not occur at school take place by the mother having care of X (or the mother’s agent) leading into the changeover delivering X to the other mother (or the other mother’s agent).
13.Notwithstanding the above orders and in any event X is to spend time with Ms Cranmore:
(a)in 2024 and each alternate year thereafter from 3.00pm Christmas Eve until 4.00pm Christmas Day; and
(b)in 2025 and in each alternate year thereafter from 4.00pm Christmas Day until 5.00pm Boxing Day.
14.Notwithstanding these orders and in any event X is to spend time with Ms Aubert:
(a)in 2024 and each alternate year thereafter from 4.00pm Christmas Day until 5.00pm on Boxing Day; and
(b)in 2025 and each alternate year thereafter from 3.00pm Christmas Eve until 4.00pm on Christmas Day.
15.Notwithstanding any orders above, X is to spend time as follows:
(a)with Ms Cranmore on her birthday each year from the conclusion of school or 12.00pm if a non-school day until the commencement of school or 5.00pm if a non-school day on the following day; and
(b)on Ms Aubert’s birthday from the conclusion of school or 12.00pm if a non‑school day until the commencement of school or 5.00pm if a non-school day, on the following day.
16.X be permitted to communicate at any reasonable time by telephone, FaceTime or any other available medium with the mother other than with whom he is then living but in any event, X communicate with the mother with whom he is not then living on Tuesdays and Fridays between 6:30pm and 7.00pm with communication to be initiated for X by the mother with whom he his living and for X then to be given appropriate privacy to carry on such communications.
17.X be permitted to communicate with Mr F on one (1) occasion each week on a Wednesday at an appropriate time for both X and Mr F with the relevant mother to initiate such communication for X and to give X appropriate privacy for the communication.
18.Each of the mothers and Mr F be enabled by these orders to attend at any extracurricular sport or class engaged in by X regardless of which mother X is living with at the time.
19.Each of the mothers be permitted to travel with X out of the Commonwealth of Australia during any time that X is in that mothers care but provided:
(a)not less than twenty eight (28) days notice is given prior in writing to the other mother;
(b)that a full itinerary be provided by the travelling mother to the other mother not later twenty eight (28) days prior to the intended travel; and
(c)that the travelling mother provide relevant contact details to the other mother not later than twenty eight (28) days prior to travelling and in insofar as is practicable the above orders for communication by X with the other mother continue.
20.X’s passport be made available to the travelling mother not later than ten (10) days before the advised travel date and for these purposes Ms Cranmore will hold X’s passport for the calendar year 1 January 2024 – 31 December 2024, and in each alternate year thereafter and Ms Aubert will hold X’s passport for the calendar year 1 January 2025 – 31 December 2025 and in each alternate year thereafter and for these purposes and in respect of these orders X’s passport be provided to Mr F as is appropriate.
21.Should either of the mothers travel with X interstate during their allocated time with X then that parent is to advise the other not later than two (2) days prior to such travel of the intended venue(s) of travel and residential and contact details during such travel.
22.Should either of the mothers be unavailable or unable to care for X for two consecutive nights during any relevant period then the other mother be given the first option to care for X during such period(s).
23.X spend such further time with either of his mothers or variations of the dates and times above as may be agreed between the mothers from time to time in writing.
MR F
24.X shall spend time with Mr F as agreed in writing between Mr F and the parent in whose care X would otherwise be at the time and failing agreement as follows:
Term time
(a)From the conclusion of school or 9.00am if X does not attend school on Friday until the commencement of school or 5.00pm if X does not attend school on Monday (or 9.00am Tuesday if Monday is a public holiday) on up to four occasions per annum provided:
(i)Mr F provides at least eight weeks prior written notice to both mothers of his intention to exercise such time-with;
(ii)the time does not occur during times for Ms Aubert or Ms Cranmore on more than two occasions each per annum unless agreed in writing with that parent; and
(iii)the time does not occur on any special occasion time for Ms Aubert and/or Ms Cranmore unless agreed in writing with that parent.
School holiday time
(b)During the Term 2 school holiday periods as published by X’s school as follows:
(i)in 2025 from 5.00pm on Sunday 6 July to 5.00pm on Monday 14 July 2025 (eight nights); and
(ii)from 2026 onwards, from 5.00pm on day nine of the holiday period to 5.00pm on day 17 of the holiday period (eight nights).
(c)During the Term 4 school holiday periods:
(i)for 2024/2025 for a period of seven consecutive nights from 5.00pm on 1 January 2025 to 5.00pm on 8 January 2025;
(ii)for 2025/2026 from 5.00pm on 30 December 2025 to 5.00pm on 9 January 2026 (10 nights); and
(iii)for 2026/2027 onwards from 5.00pm on day 29 of the holiday period to 5.00pm 15 days later (14 nights).
(d)provided that Mr F give no less than eight weeks notice to both mothers of his intention to exercise each such period failing which the mothers be at liberty to assume such time will not be exercised and to make alternative arrangements for X accordingly.
(e)from the conclusion of school or 9.00am if X does not attend school on the Friday before Father’s Day (as celebrated in Australia) to the commencement of school or 5.00pm if X does not attend school the day after Father’s Day in the event that Mr F is in Australia.
(f)such further times or variations of the above as may be agreed between the parties from time to time in writing.
CHANGEOVER
25.For the purposes of changeover for X’s time with Mr F, changeover will take place at either:
(a)X’s school on a day that X is in school pursuant to these orders;
(b)the mother’s home X is resident in immediately prior to the commencement of X’s time with Mr F unless otherwise agreed with that mother;
(c)the mother’s home whose care X is due to be resident in at the conclusion of X’s time with Mr F unless otherwise agreed with that mother;
(d)Sydney Airport if nominated by Mr F or such other airport location as agreed with the mother facilitating the time, for the purposes of facilitating travel in line with these orders, including orders 34 and 35 herein; and/or
(e)as otherwise agreed between Mr F and the parent in whose care X is in immediately prior to the commencement of X’s time with Mr F, as may apply.
COMMUNICATION
26.Until X is 12 years of age Mr F will facilitate telephone/FaceTime calls between X and his mothers during periods of time X spends with him each alternate day as agreed between Mr F and each of the mothers, and failing agreement:
(a)with Ms Aubert on the first night between 6.00pm and 6.30pm (according to X’s local time) and each alternate night thereafter; and
(b)with Ms Cranmore on the second night between 6.00pm and 6.30pm (according to X’s local time) and each alternate night thereafter.
27.X be otherwise at liberty to telephone either mother at any reasonable time, and Mr F will do all acts and things necessary to facilitate such requests by X.
SCHOOLING AND ACTIVITIES
28.These orders permit Mr F to:
(a)attend any of X’s school events and activities that parents are invited to or welcome to attend, notwithstanding that X may be in another parent’s care; and
(b)obtain a copy of school reports, newsletters, school pictures and other notifications typically provided to parents/carers by the school, upon Mr F’s request.
29.If there is any medical emergency involving X, including but not limited to serious illness, accident, or hospitalisation (“the incident”):
(a)the parent with the care of X is to contact Mr F within 24 hours via his personal mobile telephone to advise him of same; and
(b)the parent with the care of X is to provide Mr F with all documents and information in their possession regarding the incident within 24 hours of the parent having possession of the documentation and/or information.
30.Ms Aubert and Ms Cranmore shall advise Mr F of any medication/treatment prescribed for X during the time that X is due to spend time with Mr F pursuant to these orders and shall provide the medication/treatment and any appropriate instructions for its administration prior to or at the time of changeover.
31.Mr F be at liberty to obtain all relevant medical records and consult X’s treating practitioners(s) to obtain any information and this order is sufficient authority for that purpose.
MISCELLANEOUS
32.Each parent shall use their best endeavours to promote X’s understanding that he has three parents being Ms Aubert, Ms Cranmore and Mr F.
INTERNATIONAL TRAVEL
33.Commencing in the Term 2 school holiday period in 2025, Mr F shall be permitted to take X out of the Commonwealth of Australia for a holiday provided the following conditions are met:
(a)the travel occurs during the time X is spending time with Mr F pursuant to these orders unless otherwise agreed between Mr F and the parent in whose care X would otherwise be in; and
(b)Mr F provides both Ms Aubert and Ms Cranmore with 42 days written notice of his intention for X to travel internationally including country/ies to be visited and the following information no later than 28 days prior to the scheduled travel:
(i)a copy of the itinerary; and
(ii)contact details for X for the duration of the trip.
34.Until the commencement of order 35 herein (when X is permitted to travel as an unaccompanied minor), transport to and from the country that X will be travelling to shall occur with X to travel accompanied by Mr F or Mr LL (or Ms Cranmore or Ms Aubert if agreed by either).
35.Unless otherwise agreed in writing between the parents, from the time that X is 12 years of age the parents will do all acts and things and sign all documents to enable X to travel as an unaccompanied minor for air travel.
36.The parent with possession of X’s passport shall make X’s passport available to ensure X is able to travel with/to Mr F in accordance with these orders.
37.Mr F shall ensure that X’s passport is returned to the parent with the care of X immediately following the scheduled travel period.
38.For the purpose of s 11 of the Australian Passports Act 2005 (Cth), these orders allow for X to travel outside of the Commonwealth of Australia.
39.Mr F shall be responsible for the costs of X’s flights, accommodation and other incidental travel expenses during X’s time with him.
40.X spend such further or other time with Mr F or variations of the above as may be agreed by all three parents from time to time in writing.
41.The parties or any of them are restrained from abusing, insulting belittling, rebuking or otherwise denigrating any other party to, or in the presence or hearing of X and from permitting any other person to do so.
42.The costs of the Independent Children’s Lawyer and any Court Expert in this matter be paid equally between the three parents Ms Aubert, Ms Cranmore and Mr F.
43.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Aubert & Cranmore (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
INTRODUCTION
These are parenting proceedings in respect of one child, X (“X”) born 2017 and hence being just seven years of age.
X is in many ways a very fortunate young man. He has two mothers, Ms Aubert and Ms Cranmore, both of whom love him very much. His biological father Mr F is also committed to a relationship with X and they have established such a relationship despite X living in Sydney and Mr F living in City MM.
X attends a reputable school, NN School. He has travelled widely. Each of the parties here seem to be financially comfortable and X wants for nothing in way of the tangible benefits of life.
Yet despite this ostensibly perfect young life experience for X, there are undercurrents of conflict, criticism, blame and alignments between the three important adults in X’s life which serve to threaten the contentment of his childhood and his adolescence unless addressed.
It is proper to observe that the genesis of the dispute in this lengthy litigation has little to do with X directly but where he is, in my view, sadly the object to allow this Court to be a forum for the ongoing residual animosities and alignments between the three adults but primarily between X’s mothers. Mr F appears to have taken a position partisan to Ms Cranmore where he has previously been the friend of Ms Aubert.
The Family Law Act 1975 (Cth) (“the Act”) unambiguously offers a piece of legislation and a Court forum where the focus is on the child and the best interests of the child. Nowhere in the Act is there a mention of the rights of parents. It is only to “obligation” and “responsibility” to which the Act refers in respect of parents. Any reading of the legislation sees it directed towards a resolution of parenting issues by negotiation and compromise aimed at a meaningful and successful relationship for child and parents. In my view it is only by default and legitimate dispute as to matters concerning a child that a judicial determination should be required. Yet experience in this Court all too often sees parents in witness boxes, supported by their legal representatives, mouthing the clichéd words “in the child’s best interests, your Honour” where it is transparently clear that the Courts are simply being used as a soap-box by those parents to continue historical personal disputes and to give voice to mutual criticism and complaint, all of which is more often than not, and as is the case in the matter now before me, of little interest to the Court and of minimal probative value to the job of these Courts being to make prospective orders working into the future for the best interests of the child.
Sadly, these observations above are often accentuated and continued where the parents have sufficient means such that they can afford to use the facilities of these Courts as a forum for those ongoing residual and personal disputes.
Where interim orders from 2019 and 2021 saw X living primarily with Ms Cranmore and five nights per fortnight with Ms Aubert on a regime of 2:2:1, the dispute between these mothers has become entrenched such that Ms Aubert now seeks orders for equal time for X between the mothers on a week about basis and Ms Cranmore came to this Court proposing a reduction in X’s time with Ms Aubert to 4 nights per fortnight albeit with a block of three nights over each alternate weekend.
Almost ironically, and despite the personal animosities between these mothers, X is seen by everyone as a highly settled, secure and happy seven year old progressing well both academically and socially. Nevertheless, the mothers, and vicariously X, entered into a court case, ostensibly with a limited and discrete ambit of dispute, which occupied some 10 days of court time. The cost notices provided before the taking evidence showed that these three parents had expended a total of $3.7 million for an anticipated five day trial. Where the trial was double its estimated time, I can only assume that the parties’ costs well exceeded $4 million.
The evidence of the parties in their lengthy affidavits was mostly historical, often critical and blaming of the other party(s) and ultimately, therefore, in much of the content of limited probative assistance to this Court given its mandate to produce orders for X of a prospective nature.
Each of the mothers adduced evidence on affidavit from numerous supporters where none were eventually called or required for cross-examination (with one exception) and where the contents of those affidavits add little or no probity being in the main exercises in subjective and gratuitous comment and transparent partisanship amounting to little more than character references. Should it have been intended to impress or influence the Court by adducing evidence from such witnesses then the exercise was sadly amiss in its intent and disappoints as to content particularly where the authors of these references claim, in one example, historical prominence as a legal professional and another as a former Judicial Officer.
Where relativity and proportionality are all too often lost in the forest in family law litigation, these Reasons will endeavour to return focus on the future best interests of young X.
BACKGROUND
The mothers, Ms Aubert and Ms Cranmore, were in a relationship from 2013. They married overseas in 2016. The relationship broke down in September 2019 when Ms Cranmore moved from the parties’ home at Suburb BB to Suburb DD.
Where the mothers mutually decided on having a child, they agreed that the donor should be a person known to them and be willing to be a father figure to the child. Mr F was then a friend of Ms Aubert and was approached and he agreed. Mr F was then and continues to live the United States of America and currently in City MM.
X currently attends NN School in Sydney. He does so fortunately with the agreement of both mothers. An example, however, of the entrenched conflict and mistrust of these mothers was shown when Ms Cranmore had considered an alternative but equally highly regarded school. The response of Ms Aubert was to instruct her solicitor to write what can only be described as reprehensible and threatening letter to the principal of that school. Fortunately, that firm of solicitors no longer acts in this matter. I raise this unsavoury issue only to demonstrate the propensity of each of these ostensibly good mothers to engage and arm lawyers at the first hint of dispute and one can only wonder here as to whether solicitors such as these understand their dual role of both taking instructions and the giving of advice.
X’s school fees at NN School are prepaid by Ms Aubert’s father until the completion of X’s Year 12 at the school.
Ms Aubert has the benefit of ownership of a number of properties, both in New South Wales and Victoria. Her current primary residence is at Suburb OO being less than 5km from NN School and just 10 minutes drive from Ms Cranmore’s home. Not surprisingly, changes of primary residence by Ms Aubert, often for reasons of medical and mobility needs, have been the subject of criticism by Ms Cranmore.
Ms Aubert is 53 years of age. She does not currently engage in, and seemingly has no need for, remunerative employment. She is financially stable. She is a former sportsperson and has held a number of prominent Board positions . She was a consultant and senior adviser at a financial services firm. I cite this impressive resume only to emphasise that Ms Aubert has much to offer X by way of experience and aptitude. She has, however, relinquished most, if not all, of these positions due to some recent serious medical issues and her desire and commitment to be available to care for X consistent with the orders that she now seeks and, I suspect, as a response to the criticism of Ms Cranmore as to her availability and not having always taken up opportunities to spend time with X.
Ms Cranmore is 47 years of age. She too has much to offer X by way of her experience and aptitude. She is the Managing Director of a high-level business. There is no evidence that Ms Cranmore is otherwise than in good health. She has taken the primary responsibility for the care of X since birth. Ms Cranmore lives in stable accommodation at Suburb DD and in close proximity to both NN School and Ms Aubert’s home. She is financially independent and stable and has provided well for and suffers no criticism as to her commitment to X and the provision of his needs and benefits such as travel and extracurricular interests. The evidence suggests that she enjoys strong family support.
Mr F lives in City MM where he works as a professional. He is in a stable relationship with Mr LL. Both mothers say that X has a positive relationship with Mr F and with Mr LL. X identifies Mr F as his father. There has been regular contact, both directly and through media.
Where Mr F was once a close friend of Ms Aubert, there seems to have been a falling out during a visit to the United States. Mr F is now transparently aligned to Ms Cranmore and supportive of her position in this litigation as she is of his. He readily joins Ms Cranmore in criticism of Ms Aubert despite claiming to be neutral and describing himself on occasion as “Switzerland”.
Interim parenting orders were initially made in November 2019. They were amended by further order of 25 February 2021 which, not surprisingly for these parties, provide comprehensively in detail as to X’s parenting and living arrangements. Inter alia, however, the orders provide that X live with Ms Cranmore and spend time with Ms Aubert:
(a)until shortly after X’s birthday in 2020 for four nights per fortnight, as two single nights and one block of two nights;
(b)from shortly after X’s birthday in 2022 for five nights per fortnight being one single night and two blocks of two nights;
(c)block school holiday time as follows:
(i)one period of three nights until X’s birthday in 2021;
(ii)three periods of four nights between X’s birthday in 2021 and X’s birthday in 2022; and
(iii)three periods of five nights between X’s birthday in 2022 and X’s birthday in 2023.
MS AUBERT’S CASE
Ms Aubert is the applicant. She has consistently sought orders which provide essentially for a week about shared care arrangement on a live with/live with basis. She proposes an order for equal shared parental responsibility. She argues that X spend time with Mr F on four weekends per year during school terms plus or including Father’s Day weekend together with seven night blocks during each of the Term 2 and Term 4 school holidays. She prefers that such time initially occur in Australia but later permitting accompanied international travel.
Consistent with the obsessive and micromanaged approach by both mothers to this matter, the orders in detail sought by Ms Aubert occupy some fourteen pages of her case outline.
Where I attempt to abridge Ms Aubert’s argument to a summary, it appears to be generally that orders for equal time for X would be in his best interest because of, rather than despite, the competitive and negative positions litigated by each of the mothers. That is, she argues that only a “level playing field” can reduce the potential for ongoing conflict and reflect what each mother actually says about the other in their evidence in Court being an acknowledgement of X’s established relationship with each, the capacity of each, the skills of each, the facilities of each, and the commitment of each.
Ms Aubert argues the X is an empathetic child and sensitive to any dispute between the mothers despite their claims of not exposing him to their conflict. Ms Aubert says that X’s sensitivity is such that he would understand some difference between his mothers by reason of spending more or less time with either and would be prone to blaming himself for the conflict underlying those differences.
Ms Aubert argues for an order for equal shared parental responsibility given that it sits more comfortably with her proposed “live-with” regime and where she says there is no warrant for granting sole parental responsibility therefore to one or other of the mothers. Ms Aubert identifies the benefits for X in him understanding the contributions by each of his mothers to long-term decision making for him. Ms Aubert acknowledges the historical entrenched conflict and poor communication between she and Ms Cranmore and volunteers from the witness box a wish to rectify that situation.
Counsel for Ms Aubert points to some positives, including during the course of this trial, arguing towards an order for equal shared parental responsibility even against the background of mistrust and poor communication. Specifically, each of these intelligent and articulate mothers volunteered in their evidence a desire to “get on” and to parent more cooperatively with the other. There is evidence of the mothers being able to reach agreement in respect of potentially flammable issues such as a commitment to NN School and the selection of medical practitioners. Further, it is a theme of Ms Aubert’s argument before this Court that Ms Cranmore claims some parental, biological or maternal superiority by reason of being X’s birth mother where the reality for X should be that he has two mothers equal in their commitment and ability to care for him.
Ms Aubert seeks orders in extraordinary detail and relies on two affidavits which together comprise some 95 pages (without annexures or exhibits), and 397 paragraphs.
MS CRANMORE’S CASE
Ms Cranmore came to this trial with a position of reducing X’s time with Ms Aubert from five nights per fortnight but such time being in a block and over alternate weekends to three nights per fortnight but increasing to four nights. A primary rationale of this position was apparently to reduce changeovers for X between the parents’ homes which ostensibly has merit given that X now attends school, the conflict between the two mothers, and the high number of changeovers per fortnight on the interim orders. This was the position taken and argued by Ms Cranmore throughout the case of the applicant, Ms Aubert and where Ms Aubert was cross‑examined against a background of that position.
Prior to the opening of Ms Cranmore's case, the Court and counsel for the other parties and the Independent Children’s Lawyer were told of an amended position taken by Ms Cranmore being that X continues to spend five nights per fortnight that Ms Aubert but being primarily in a block also alleviating the numerous changeovers. If there be any criticism of Ms Cranmore for such a late change of position, then I do not accept such criticism where a change of position would be entirely appropriate given that Ms Cranmore had the advantage of hearing her counsel cross‑examine Ms Aubert. The position now taken by Ms Cranmore is in respect of school terms only where she has also moved to a position of equal time for X between the mothers during school holidays subject to time also for X with Mr F.
Ms Cranmore argues for orders for equal shared parental responsibility generally but with she to have the ultimate decision-making power should the parents be unable to agree on medical issues. It is clear that this position is taken by reason generally of the conflict and poor communication between the parties and also specifically referencing some historical issues in relation to medical matters such as X’s vaccinations.
Ms Cranmore also supports time for X with Mr F but where, not surprisingly, there are some differences between the mothers in the details.
Similarly, the mothers disagree as to the nature of the role of Mr F in long term decision making for X and probably consistent with the current status of Mr F’s relationship with each of the mothers. Ms Cranmore prefers orders which obligate input from Mr F whereas Ms Aubert prefers more general notification.
Ms Cranmore argues that her revised position serves to reduce potential conflict between the mothers by reducing changeovers for X and allowing X time to settle into each of their homes.
Ms Cranmore relies on and emphasises that neither the ICL nor the Court Child Expert, Dr G, advocate an immediate move for X to an equal time arrangement.
Ms Cranmore grounds her position on X’s current circumstances being just seven years of age and embarking on his first years of school whilst establishing relationships with peers and adults and where routine and stability are of considerable importance in his development.
Despite concessions in her evidence and in the position that she now takes, Ms Cranmore through her counsel’s final submissions, does not retreat from what she herself identifies in her Case Outline as a “litany of criticism” of Ms Aubert and where her counsel asks the Court to:
consider the volume of [Ms Cranmore’s] worries and concerns, because if generally accepted they must indicate a worrisome and exhausting co-parenting dynamic that does not support an equal time arrangement.
Ms Cranmore’s “worrisome” complaints range from Ms Aubert’s historical alcohol consumption; her lack of commitment to time with X; Ms Aubert’s mental health issues; Ms Aubert’s “frequent, intentional, and unrelenting attacks on [Ms Cranmore]”; Ms Aubert instructing her senior counsel to cross-examine Ms Cranmore in an “aggressive and intimidating” way.
Ms Cranmore questions the bona fides of Ms Aubert’s claim that she wants to improve the co‑parenting relationship. Her counsel in closing submissions describes Ms Aubert as “combative, controlling, and/or competitive” in her approach to parenting of X. She accuses Ms Aubert of “incessant harassment” by various media.
The maintaining of these criticisms of Ms Aubert appears to give Ms Cranmore her rationale for seeking an order for her to have the ultimate right to make medical decisions for X despite her general concession otherwise as to equal shared parental responsibility.
Ms Cranmore argues that the making of orders in the terms sought by Ms Aubert would be simply to appease Ms Aubert’s own insecurities about her relationship with X and are not X focused. She argues generally the a child can have a close, loving, and meaningful relationship with a parent without an “equal time” regime. She says that Ms Aubert’s focus on equal time is reflective of Ms Aubert’s “athletes’ need to win”.
Generally, Ms Cranmore argues that the pre-requisites for an equal time regime being communication, co-operation, flexibility and trust are not evident in Ms Aubert and in the relationship between the mothers.
Ms Cranmore seeks orders that occupy some 15 pages. She relies on an affidavit which comprises 885 paragraphs (without annexures or exhibits).
MR F’S CASE
Mr F was present at Court and cross-examined on his affidavit. His evidence confirmed him to be partisan to the case of Ms Cranmore where notably he oddly and surreptitiously filmed/photographed Ms Aubert giving her evidence and apparently sent same to his partner, Mr LL, in City MM. His rationale in doing so escapes me. Secondly, Mr F was highly critical of Ms Aubert in his interview with Dr G, the Court Child Expert, suggesting that Ms Aubert suffered some form of personality disorder apparently gleaned from his own City MM psychotherapist. The professionalism of the psychotherapist in giving such a “diagnosis” and the motive of Mr F in conveying such an opinion are both questionable.
Generally, Mr F presented as an interested and important adult in X’s life albeit one unfortunately invested in the dispute between the primary mothers.
Mr F adduced evidence from Mr LL in an affidavit sworn 16 November 2023. He was not required for cross-examination. His evidence was unremarkable save for deposing to himself having established a relationship with X.
THE ICL’S CASE
Mr Holmes, the ICL, brought a balance and dose of reality to this litigation. He readily identified the discrete nature of the dispute between the parties being primarily as to whether X spends five or seven nights with Ms Aubert together with some limited parental responsibility issues.
Mr Holmes was both explicitly and impliedly critical of the mothers in the extent of and focus of their litigation. Mr Holmes’ cross-examination of each of the mothers and Mr F was balanced and with emphasis on the prospective best interests for X and provided some relief for the Court from the historical and critical content of the affidavits of the mothers.
Mr Holmes clearly placed some store on the observations and insight of the Court Child Expert, Dr G, in emphasising that, despite the entrenched conflict of the mothers, X has an established and loving relationship with each. Mr Holmes emphasised X’s progress socially and academically.
Similar to Dr G, in his equivocacy as to recommendations, Mr Holmes suggests a move to “[X] spending six nights with [Ms Aubert] and eight nights per fortnight with [Ms Cranmore] as from 2025 during school terms but was open to a 7/7 order perhaps “when the child commences high school”.
Mr Holmes appeared to find some merit in the “level playing field argument” espoused by counsel for Ms Aubert and noting again Dr G’s observation that X’s empathy and sensitivities might lead to him self-blaming should there be any discrepancy in his time between his mothers.
Essentially, Mr Holmes took the position that X should spend greater time with Ms Aubert than he spends now with emphasis on the established relationship for X with each of the mothers and their commensurate capacities.
ISSUES FOR DETERMINATION
Where there are superficially a plethora of credit and disputed facts between the parties, the issues for my determination remain limited and discrete and can be isolated as follows:
(i)Does X live during school terms in an equal–time arrangement week about arrangement between the mothers or for nine nights with Ms Cranmore and five nights per fortnight with Ms Aubert;
(ii)whether Ms Cranmore should effectively have sole parental responsibility for X’s medical issues; and
(iii)where the mothers agree that X should spend time with Mr F, the configuration of such time.
THE EVIDENCE
MS AUBERT
Ms Aubert relied upon two affidavits sworn 3 November and 4 December 2023. She gave evidence was cross-examined over three days.
Ms Aubert’s material details her view of a close, bonded and loving relationship between she and X.
Ms Aubert references statements from X to her which indicate Ms Cranmore’s involvement of X in the dispute and some denigration of Ms Aubert such as “[Ms Cranmore] doesn’t like it when I call you mum”, and “fake mum”.
Ms Aubert’s affidavit takes the form of a narrative but contains identifiable criticisms of Ms Cranmore and specifically as to encouraging X to differentiate between his two mothers such with statements to Ms Aubert such as “mum I love you but I love [Ms Cranmore] a little bit more because she is my real mum”.
Ms Aubert’s affidavit gives a number of such examples where she claims Ms Cranmore attempts to minimise or belittle her role as X’s mother including statements referencing herself as being “the biological mother”. Ms Aubert references the communication problems between the mothers but suggests that she has been proactive in resolving these issues.
Ms Aubert’s second affidavit of 4 December 2023 is 47 pages in length and responds to Ms Cranmore’s trial affidavit where Ms Aubert says at [4]:
It is difficult to know how to respond to what feels like an avalanche of accusations, allegations and concerns about me in [Ms Cranmore’s] affidavit, without filing an Affidavit of the same or greater length. I do not believe that doing so will be helpful to the Court or constructive for [Ms Cranmore’s] and my ongoing co-parenting relationship of [X]. I have therefore largely limited my response to matters that, in my view, may assist this Honourable Court in its determination of these proceedings. My lack of response to each and every allegation made, and concern raised, by [Ms Cranmore] does not amount to an admission or concession.
Ms Aubert’s cross-examination over three days exposed her as a strong and determined personality. She presented as cosmopolitan and successful in broad aspects of her life. I observed her as devoted to her relationship with X as evidenced by her relinquishing of Board positions but also infiltrated by a deep mistrust of Ms Cranmore and a propensity for some criticism. Her responses in what was a vigorous, and at times intrusive cross-examination were direct and consistent with her personality. Generally, I saw Ms Aubert to be an honest and candid witness but one child focused rather than the “competitor” painted of her by Ms Cranmore.
It is not difficult to infer, however, that Ms Aubert’s strong personality would be a contributing factor to conflict between the mothers. Ms Aubert’s tendency to “lawyer up” as demonstrated by the misguided letter from her solicitors to a private school principal does her no credit. Similarly, as with Ms Cranmore, an inclination to engage the police on relatively innocuous disputes is not child focused.
MS CRANMORE
Ms Cranmore also presented as an intelligent, articulate, worldly and successful woman who is clearly devoted to X. Ms Cranmore’s personal bitterness towards Ms Aubert throughout her affidavits and in her evidence in Court was, however, palpable.
Any reader of Ms Cranmore’s affidavits could not escape the entirely critical and negative composition of that document. Frankly, her own admission to the document being a “litany of grievances,” and regardless of any attempt to mitigate this statement, best explains the tenor of her evidence. Any reader of Ms Cranmore’s affidavits would be perplexed in rationalising such an incarnation with the orders she now seeks which would have X living in block periods of five days per fortnight and during school term in seven days per fortnight in school holidays with Ms Aubert. The Court is left inevitably with the sense of this being a crusade of personal and bitter malice and, if so, then a complete antithesis to the ambitions of these Courts in respect of parenting proceedings. I emphasise, however, that such comments and observations can also be made in respect of Ms Aubert.
The theme of negativities was continued in Ms Cranmore’s evidence in Court and throughout her cross-examination. If cornered in cross-examination to a positive concession in respect of Ms Aubert then Ms Cranmore’s tendency was one of immediate deflection to further criticism.
In this sense, Ms Cranmore was not a good witness. I have little doubt, however, that in other ways she offers much to X as a parent. She presents as skilled and focused in attending to X’s needs. Considering Ms Cranmore’s evidence overall, both in her affidavit and in cross‑examination, the Court gleaned a sense of superiority in Ms Cranmore over and above the role of Ms Aubert and therefore gives some corroboration to Ms Aubert’s own evidence that Ms Cranmore considers her status as biological parent of X to give her some hierarchical right over Ms Aubert.
Cross-examination of Ms Cranmore also exposed in her a tendency to be selective, unbalanced and at times perhaps untruthful in her evidence and in her criticisms of Ms Aubert. For example statements made by Ms Cranmore to the Court Child Expert, Dr G, suggesting criticism of Ms Aubert from NN School were not substantiated in Dr G’s telephone conversation with the school.
Ms Cranmore’s evidence and presentation was perplexing. Despite admirable and proper concessions thereby limiting the ambit of the dispute to a discrete one, Ms Cranmore remained determined and intractable in her criticisms of Ms Aubert.
MR F
Mr F was cross-examined. His evidence confirmed him to be partisan to the case of Ms Cranmore notable in his filming/photographing of Ms Aubert giving her evidence and apparently forwarding same to his partner, Mr LL, in City MM. Mr F presented as an interested and involved parent for X and as informed, and committed to a relationship with X. Where he desires only frequency and regularity of time–with X, his alignment with Ms Cranmore is unfortunate and, in my view, contributes to the ongoing conflict between the mothers.
COURT CHILD EXPERT – DR G
Dr G provided his report and assessment only on 12 February 2024 having completed a previous report in November 2020.
I am unable to decipher any precise recommendations in Dr G’s report as to time for X between the mothers or with Mr F.
Dr G’s interviews with the parties mirrored my own observations of each of them in Court. Ms Aubert was more objective and child focused than Ms Cranmore who was more inclined to personal criticism of Ms Aubert. Dr G identified the alignment between Mr F and Ms Cranmore noting some concern as to Mr F enlisting uninformed opinion from his own psychotherapist in City MM as to the mental health of Ms Aubert.
Dr G’s interview with X disclosed some corroboration of Ms Aubert’s concerns as to Ms Cranmore’s involvement of X in the adult issues and some denigration of Ms Aubert.
Dr G’s observations of X with each mother were similarly warm, familiar and comfortable.
Ms Aubert reported her primary concerns of Ms Cranmore as being personal criticism of Ms Aubert and subtle involvement of X eliciting comments from the child such as “fake mum” and “you’re not my biological mum” which, of course, Ms Aubert attributes to Ms Cranmore.
Ms Cranmore is reported as being critical of Ms Aubert’s parenting of X consistent with the plethora of criticisms set out in her affidavit material. Ms Cranmore reported to Dr G as receiving support in her criticisms from X’s school but such comments were not substantiated upon Dr G contacting the school and again giving some corroboration to Ms Aubert’s claims of selective and opportunistic interpretations by Ms Cranmore. Where there were instances of Ms Cranmore been complimentary of Ms Aubert’s parenting of X, her comments were couched with ambiguously implied criticisms such as she being “a very fun parent”. I noted in Ms Cranmore’s affidavit similar ostensible positive comments but with implied criticism.
Dr G’s contact with X’s school confirmed him to be progressing well academically and socially.
Generally, Dr G noted that children can be sensitive to inter-parental relationships and that X would be expected to be aware of such conflict between his mothers and where he is described as an empathetic and sensitive child, there is a consequent risk of him feeling responsible for any discord.
Dr G opines that where X has developed a secure relationship to both of his mothers then “it is likely to be on the cusp of being able to manage extended periods of time over several days away from either parent”.
Relevantly, Dr G observes at lines 945-959:
More important, in my opinion, is whether the parenting [X] receives with [Ms Aubert] and [Ms Cranmore] is sufficiently qualitatively different (and thus better for [X]) to warrant a move to three days per fortnight, moving back up to four days (in the term-time as per [Ms Cranmore’s] proposals). [X] is likely at his age, to struggle to understand why this has happened as developmentally there is nothing to suggest he would not understand such proposed arrangements equate to less time with [Ms Aubert]. Although [Ms Cranmore] advised she felt [X] would be relieved, it is likely his reaction would include confusion, and of more concern is that [X] may himself feel in some way responsible for such a reduction. [Ms Cranmore] opined that [Ms Aubert] might effectively cause [X] to feel this way, yet what this view is based on is unclear and [Ms Cranmore] was reminded, when discussing this issue, that [X] has been observed to be vulnerable for taking on responsibility for perceived harm to others. If [X] has been observed to be concerned for peers’ welfare, then it is reasonable, in my opinion to assume he would have similar feelings about the relationship with the parents, and [Ms Aubert] in this instance. The impact of such a potential response for [X] raises concerns that he feels he has done something wrong to warrant less with [Ms Aubert], and it is not unreasonable to assume that any such feelings could interfere with his relationship with both parents and extend to peers and school.
Insightfully, Dr G observes at line 1061 and following of his report:
[Ms Cranmore], more than [Ms Aubert], appears to struggle with this issue [the willingness and ability of [X’s] parents to facilitate and encourage a close and continuing relationship between [X] and the other parent]. She referred to [Ms Aubert] as more the “fun parent” and opined that increased time for [X] would be more appropriate during school holidays as “That’s what they’re for”. She also referred to [X] being relieved were he to have time with [Ms Aubert] in line with her proposals. Arguably, [Ms Cranmore] would be as relieved as [X] should this eventuate. [Ms Cranmore] also mentioned a preference for both her and [X] to know where they are going. On this basis, [Ms Cranmore] believes (sic) appears to believe that the parenting experience she offers, being one that [X] should have more of in terms of time arrangements, is better for him overall. It is my experience the parent who hold such views can struggle to encourage a close and continuing relationship for the child with the other parent/s. That said, [X] appears to relate to [Ms Aubert] as his mother, calls her “mum” and whatever misgivings [Ms Cranmore] may have about [Ms Aubert’s] parenting, she has probably managed to shield [X] from the same to the degree that they do not actively interfere with [X’s] relationship with [Ms Aubert] at present.
Dr G’s reports and observations were generally repeated in his evidence in Court.
MS P
Ms P provided an affidavit in support of Ms Cranmore’s case and affirmed 4 December 2023. She was cross-examined.
Ms P deposed to having been employed since early 2018 to assist with X’s care. She has a healthcare background. As such, she was first employed during the relationship between the mothers but has since moved to the employ of Ms Cranmore on a part-time basis.
Ms P was complimentary of Ms Cranmore’s parenting. She echoes a number of Ms Cranmore’s criticisms of Ms Aubert and therefore gives some corroboration to Ms Cranmore’s case. She says that she observed Ms Cranmore to be “more responsive and present with [X], both in terms of her engagement with [X] and attunement to his emotional and physical needs”.
Ms P references Ms Aubert’s work schedule to be onerous and perhaps incompatible with a commitment to caring for X.
At [18] of her affidavit Ms P states:
…To my observation [Ms Aubert’s] needs, preferences and commitments often came ahead of [X’s] routine, needs and stability. …
At [28] Ms P deposes to being present in Ms Cranmore’s home on occasions for X enjoying FaceTime calls with Ms Aubert. Contrary to other evidence and prominently that of the Court Child Expert, Ms P is critical of X’s relationship with Ms Aubert and says that X is generally uninterested in speaking to Ms Aubert and often does not want to talk to her, tries to hang up on her, or leaves the room.
To the contrary, Ms P is completely complimentary of the parenting of her employer, Ms Cranmore.
At [43] and following, Ms P relates a number of comments attributed to X and apparently denigrating of Ms Cranmore.
Ms P was cross-examined and I found her evidence to be of little assistance. Her affidavit is unbalanced, she presented as partisan and supportive of her employer and where her evidence conflicts with that of more independent and objective evidence, such as from Dr G, I prefer the latter.
OTHER EVIDENCE
Ms Aubert relied on the following evidence by way affidavits from the deponents none of whom were required for cross-examination:
(a)Affidavit of Ms PP filed 3 November 2023;
(b)Affidavit of Ms QQ filed 3 November 2023;
(c)Affidavit of Mr RR filed 3 November 2023;
(d)Affidavit of Ms SS filed 3 November 2023;
(e)Affidavit of Mr TT filed 3 November 2023;
(f)Affidavit of Mr UU filed 4 December 2023;
(g)Affidavit of Mr VV filed 7 September 2022;
(h)Affidavit of Mr WW filed 11 August 2020;
(i)Affidavit of Mr N filed 13 August 2020;
(j)Affidavit of Ms J filed 2 August 2020;
(k)Affidavit of Ms L filed 30 June 2020; and
(l)Affidavit of Mr K filed 6 August 2020.
I have read and considered the contents of each of the above affidavits. They add little by way of probative evidence and are otherwise unremarkable.
Ms Cranmore relied upon the following further affidavits, the deponents of which were not required for cross-examination:
(a)Affidavit of Mr XX filed 3 November 2023;
(b)Affidavit of Ms YY filed the 3 November 2023;
(c)Affidavit of Ms ZZ filed 3 November 2023;
(d)Affidavit of Mr Q filed 2 September 2020;
(e)Affidavit of Mr R filed 2 September 2020;
(f)Affidavit of Mr T filed 2 September 2020;
(g)Affidavit of Mr S filed 2 September 2020; and
(h)Affidavit of Ms V filed 4 September 2020.
Similar to the supporting affidavits for Ms Aubert, I find these affidavits to be of little or no probative assistance to my determination.
Mr F relied on an affidavit of his partner, Mr LL, sworn 16 November 2023. References are made above to Mr LL and his relationship with X.
RELEVANT LAW
This matter was considered with reference to Part VII of the Act in its form prior to the most recent amendments.
Section 60CA of the Act mandates that the Court is to have the child’s best interests as is paramount consideration.
In determining X’s best interests the Court is to reference the probative evidence and the parties’ proposals to the mandatory considerations set out at sections 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation at s 60B.
Section 60B recognises the objects and principles of the legislation thus:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA of the Act offers a presumption that, when making a parenting order, it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
That presumption does not apply, however, if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family), or family violence.
Alternatively, the presumption of equal shared parental responsibility may be rebutted as being contrary to the child’s best interests.
Where each of the mothers here argues for an order for equal shared parental responsibility for X, albeit conditionally on the part of Ms Cranmore, a pathway of statutory and intellectual consideration towards X’s best interests is mandated in the Act where at this s 65DAA the Court is to consider whether the child spending, first equal time or secondly, substantial and significant time with each parent is both in the child’s best interests and reasonably practicable.
To this end s 65DAA(1) provides:
Subject to subsection (6), if a parenting order provides (or is to provide) that the child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or include a provision in the order) for the child to spend equal time with each of the parents.[1]
[1] Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.
If, upon that consideration, the Court is not persuaded to make an order for equal time for the child between the parents then the Court turns to consider whether it be in the child’s best interest for the child to spend “substantial and significant time” with each of the parents.
Section 65DAA(3) gives a definition of “substantial and significant time” as:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parents.
The consideration here must reference both the child’s best interests and reasonable practicability.[2]
[2] MRR v GR (2010) 240 CLR 461; [2010] HCA 4
The process of consideration involves the Court identifying the competing proposals of the parties and identifying the issues in dispute together with any agreed or uncontroversial facts and then to make findings accordingly with reference to s 60CC of the Act. The consideration requires an active intellectual process on the part of the Judge to give a proper, genuine and realistic consideration.[3]
[3] Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8.
Where the Court is required to make findings of fact it does so on a standard of on the balance of probabilities consistent with the well-known decision of the High Court in Briginshaw v-Bringinshaw[4] and now enshrined in the Evidence Act 1995 (Cth) thus:
[4] (1938) 60 CLR 336.
140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
In this matter where each of the parties argues for an order for equal shared parental responsibility, it is relevant to note that Ms Aubert seeks an order consistent with the first consideration at s 65DAA of the Act, being that X live in an equal time arrangement. Ms Cranmore argues for orders consistent with X spending “substantial and significant time” between his mothers.
Given the material facts set out above, issues of practicability are not relevant to my determination.
The s 60CC factors are divided into “primary” considerations at ss (2) being:
(a)The benefit of the child 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.
Subsection (3) offers numerous additional considerations that are not considered hierarchically inferior to the primary considerations. They are, however, more pragmatic factors such as the views of the child; the effect on the child of any changes in circumstances; the practical difficulty and expense of the child spending time and communicating with the parent; the capacity of each of the parents etcetera.
THE SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Each of the mothers concedes that X enjoys a bonded, attached and loving relationship with the other. Similarly, they both concede that X has an attachment to Mr F albeit not a similar understanding of Mr F being a primary attachment for X as he has with the each of the mothers.
Importantly, given the focus of the participants in this matter, this consideration as to a meaningful relationship is both prospective and qualitative[5]. That is, the Court is to consider the benefits for the child in such a relationship into the future. Consequently, and whilst the process obviously must take into account current circumstances and evidence, little assistance is gained from a litany of mutual past personal criticism. Equally, importantly, and as emphasised by Ms Cranmore’s argument, the focus for the Court is on the quality of relationships for X and not just some mathematical division of his time.
[5] McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405.
The term “meaningful” is not defined in the Act but synonyms such as “significant” and “important”, are often understood.[6]
[6] Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518.
Consequently, and in respect of Mr F, the Courts have observed that meaningful relationships can be achieved circumstantially and including where there is less frequent direct contact or that the relationship is a “long-distance” one.[7]
[7] M & S [2006] FamCA 1408; (2007) FLC 93-313.
Importantly for X, who from infancy has had the benefit of establishing meaningful relationships with each of his mothers, and where each of those mothers brings much to X, the orders of the Courts should not compromise his understanding of those relationships by considering any of Ms Aubert, Ms Cranmore or Mr F to be superior or inferior to any other.
Section 60CC(2)(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 risk to X and as identified by the Court Child Expert is that X may become imbued with the conflict between his mothers and, given his empathy and sensitivity, may take on some responsibility for this conflict himself.
Ms Cranmore’s affidavit, her evidence, and the theme continued by her counsel in final submissions suggests a risk for X in the care of Ms Aubert. She identifies Ms Aubert’s historical alcohol use. She identifies a lack of commitment by Ms Aubert together with a lack of consistency in taking up time with X. She identifies harassment of herself by Ms Aubert. She identifies through her senior counsel’s final submissions a form of family violence perpetrated by Ms Aubert in:
… instructing her senior counsel to engage with [Ms Cranmore] in cross-examination in the manner in which she did, which could reasonably be viewed as aggressive and intimidating, particularly occasions when senior council yelled at [Ms Cranmore] and spoke in a forceful and aggressive tone and manner, including when [Ms Cranmore] was visibly upset by the same.
[Ms Aubert] has now instructed her senior counsel to further chastise [Ms Cranmore] in his written submissions, calling her affidavits poisonous, irrelevant and offensive'.
Taken at face value, these accusations could fit the broad definition of family violence. Nevertheless, having had the advantage of seeing and hearing senior counsel for Ms Aubert cross-examine Ms Cranmore, I find no merit whatsoever in these latter assertions or accusations and where my observations of senior counsel for Ms Aubert were entirely of proper cross-examination and challenge to the material presented by Ms Cranmore. If such assertions are directed personally to senior counsel for Ms Aubert then, in my view, they are made without proper basis or due regard to the traditions of the Bar and, in my view, more reflect Ms Cranmore’s response to proper criticism and challenge of her case.
Further, Ms Cranmore, asserts behaviour in Ms Aubert that might fit within the definition of family violence and comprising of “combative, controlling and/or competitive approach to parenting”.
Ms Cranmore maintains her assertions of “incessant harassment” of her by Ms Aubert through telephone, text, email and Our Family Wizard.
Ms Cranmore accuses Ms Aubert of “drunken and abusive behaviour in [Ms Cranmore’s] post‑partem period.”
Ms Aubert accuses Ms Cranmore of involving X in the adult conflict evidenced by various statements made by X to Ms Aubert.
Whilst the allegations and assertions made by each mother against the other are serious and potentially detrimental to X, the relevance and weight to be given to each must be considered within the context of the limited ambit of dispute here where Ms Cranmore proposes that X spend five nights per fortnight during school terms with Ms Aubert and seven nights with Ms Aubert during school holidays.
Importantly, this factor requires consideration of the need to protect X from harm into the future. It is to be hoped that the endurance of this ten day trial has brought some insight for each of these mothers of the need to protect X from exposure to their conflict where a continuation of such conflict is likely to bring risk of serious emotional harm to X.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X if of an age where he would be unable to properly rationalise his own best interests.
X is, however, described as empathetic and sensitive and any attempt to influence his views may bring the negative impact identified by Dr G of X feeling responsible for both conflict between his mothers and any changes in time with either of his mothers.
At his young age, X appears to understand that he has two mothers and a father and is not confused in his identity accordingly.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
All parties agree that X has developed close and loving relationships with each of his mothers, Mr F, and Mr LL. It is assumed that X similarly has developed relationships with members of his extended families and all of which is ultimately to his benefit.
The Court Child Expert identifies, and the evidence in the Court confirms, that the parenting styles of the mothers may differ. Rather than being a detriment, this is generally understood to be of a benefit to a child in giving a breadth of parenting roles and models. Importantly, however, mutual criticism of the other parent’s parenting style can easily bring conflict and complaint.
Ms Cranmore seems to argue a case that she has been X’s primary parent since birth and she sees that role continuing with Ms Aubert having been and continuing to be the “fun parent” for X. Such an approach indicates a fundamental belief of different relationships for X with each of his mothers and denoting different commitment and role where, for example, Ms Cranmore argues that X would benefit from a stable home from which to attend school at least on the majority of his school days.
Ms Aubert argues that each of the mothers have similar commitment to the parenting of X.
X’s relationship with Mr F will always differ from his relationship with his mothers. By reasons of geography, Mr F will visit X or X will visit Mr F with the visits otherwise punctuated by media contact.
Whilst the function of the Court is to make orders prospective in their nature, the existing relationships between child and parent will nevertheless be relevant in making that determination of best interests.[8]
[8] McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405.
There was some minor dispute between the mothers as to whether or not each should have first option to care for X if the other was unavailable. This is not an unusual dispute but one often entrenching conflict and highlighting the “possessory” nature of relationships between a parent and child particularly after separation.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the children; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Ms Cranmore argues that Ms Aubert has frequently failed to take her opportunity to spend time with X. She cites some seventy separate occasions when Ms Aubert has been unavailable or unwilling to spend time with X. She cites occasions when X has been returned early from Ms Aubert or asked for Court ordered times to be rearranged.
Nevertheless, circumstantially it is apparent that Ms Aubert has previously had, but has now relinquished, onerous Board commitments, often interstate. She has suffered a serious injury requiring surgery and consequent mobility issues. These issues are also essentially resolved.
Ms Aubert now comes to this Court espousing a complete commitment to the orders that she seeks in respect of X being on a week about arrangements. No issue is now taken with her health. She has relinquished her external commitments. Where Ms Cranmore now offers a regime of five nights per fortnight for X with Ms Aubert, it is difficult to understand that she should maintain any concerns as to Ms Aubert’s commitment.
Each of the mothers is financially stable and has, and is able, to contribute to X’s financial requirements. Notably, in addition, a Family Trust has been established through Ms Aubert’s father so as to meet the costs of X’s education at NN School through to the completion of year 12.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Dr G, the Court Child Expert, places some emphasis on this consideration. Again, he identifies X as empathetic and susceptible to placing blame on himself should he understand that he was to have less time with Ms Aubert. That same argument may extend to X’s response should he grow to understand some inequality in the time spent between his mothers.
Where both mothers now propose a move for X to block periods of time with Ms Aubert then Dr G sees this as a positive in bringing settling and routine to X in Ms Aubert’s home. Dr G opines that X is of an age where he would be able to or will soon be of an age where he would be able to, manage extended periods of time away from our either mother.
Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Each of the mothers is financially independent. They live in close proximity to each other and to X’s school.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Ms Cranmore’s evidence, both on affidavit and in Court, challenges the capacity of Ms Aubert to care for X. Nevertheless, in cross-examination she concedes that each of the mothers has the facilities and skills to care for X. Where she challenges Ms Aubert’s commitment, Ms Aubert has responded by relinquishing her Board commitments so as to make herself available to care for X.
Each of the mothers is able to provide for X’s physical needs to a high level. They provide for X’s education with substantial financial commitment from Ms Aubert’s father. The capacities of these mothers to care for X is compromised perhaps only in their failure to resolve their residual personal animosities for fear that X will suffer emotional damage by exposure to such conflict.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
In most all respects X is offered a lifestyle not enjoyed by most of his peers. He has considerable advantages from each of Ms Aubert, Ms Cranmore, and Mr F. X will have the opportunity to fully explore and develop his potential. X is currently just seven years of age. He is fortunate in that, despite their separation, he has developed, loving, attached and frequent relationships with each of his mothers. His relationship with Mr F is a testament to Mr F’s commitment. Nevertheless, Dr G identifies a risk in X, as he becomes more mature, in being imbued with and taking responsibility for any continuing conflict between his parents.
Where X has what should be seen as the benefit of two mothers and one father, X should be made comfortable within that family structure so that he can positively endure any responses that might be forthcoming in his adolescence.
Section 60CC(3)(h) if the child is a Aboriginal children or Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this matter.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Ms Cranmore criticises Ms Aubert’s lack of commitment to spending time with X. She asserts that she herself was the victim of harassment at the hands of Ms Aubert. She says that Ms Aubert pursues this litigation in respect of X as a symptom of her athletes’ competitive nature and does so with a view to “winning” rather than a focus on X’s best interests.
She says further that the Ms Aubert’s pursuit of equal time orders in respect of X is a factor of Ms Aubert’s own personal insecurity in her relationship with X and again not an objective focus on X’s best interests. She says that Ms Aubert’s attitude is one of combat, control and/or, competition.
Ms Aubert says that Ms Cranmore’s approach to these proceedings is “possessory and superior” in her view of the relative relationships of the mothers with X. Ms Aubert says that Ms Cranmore presents a case that is almost entirely personally negative and critical of her. She says that Ms Cranmore has a sense of superiority as a parent by reason of being the biological parent.
Mr F’s attitude to the responsibilities of his parenting of X is compromised perhaps only by his need to align with one of the mothers against the other.
Section 60CC(3)(J) any family violence involving the child or a member of the child’s family; and
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no evidence of either party taking out family violence orders against the other. In other respects family violence has been dealt with above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The tenor of these Reasons is that X is a very fortunate young man. He is deeply loved. He will want for nothing. He will travel broadly. He will be educated at a renowned school. He will have the benefit of two intelligent, successful and cosmopolitan mothers. He will have the added benefit of a father as a male role model and fortunately one who is committed to maintaining a relationship with him. Ideally this matter should not have come to Court where the ambit of the dispute is limited; where the parties are intelligent; where the parties claim to be child focused; and where none of the usual issues frequently agitated before this Court, such as family violence, substance abuse and mental illness are prominent. Nevertheless, and despite this recipe, X is at risk of suffering emotional harm should the conflict between his mothers continue and he almost inevitably becomes aware of such conflict and feels inclined to take the side of one or other of his mothers. Such would be a travesty. Such would likely lead these overly litigious mothers back to this Court. For X that would be a tragedy.
FINDINGS AND CONCLUSIONS
On the balance of probabilities and on consideration of the evidence summarised above I find:
(1)that X has established and meaningful relationships with each of his mothers and with Mr F;
(2)that X is progressing well both academically and socially;
(3)in the main X has been protected and quarantined from the entrenched and bitter conflict between his two mothers and where Mr F has aligned with Ms Cranmore;
(4)I find on the balance of probabilities, however, that should such conflict continue then it would be inevitable that X will become aware of and be exposed to that conflict and, equally inevitably, be at risk of emotional harm as identified by Dr G,
(5)I find that Ms Cranmore has a demonstrated capacity to attend to X’s physical and intellectual needs. I find, however, that her capacity to attend to X’s emotional needs is compromised by her entrenched negativity and criticism of Ms Aubert manifested in the case prosecuted by her in this Court and where, should he be exposed to such negativity and criticism of Ms Aubert, X’s current stable relationship with both of his mothers will be challenged;
(6)I accept that the specific criticisms made by Ms Cranmore of Ms Aubert have factual basis including criticisms as to alcohol abuse, lack of consistent spending time with X/availability; and antagonistic attitude towards Ms Cranmore. Nevertheless, I find these matters to be historical and on the evidence given to this Court and with the advantage of seeing and hearing Ms Aubert give her evidence, I am persuaded that she has addressed those deficiencies;
(7)Consequently, I find that Ms Aubert equally has the capacity, commitment, skills and facilities to attend to X’s physical needs;
(8)I find on the balance of probabilities that the Ms Aubert is more attuned to, and committed to, resolving the conflict with Ms Cranmore than is Ms Cranmore;
(9)I find on the balance of probabilities that Ms Cranmore has involved X in the adult dispute and conflict to an extent where I accept that X has made the comments of a derogatory type to Ms Aubert and that such comments emanate from Ms Cranmore;
(10)I find on the balance of probabilities that Ms Cranmore does hold a sense of superiority over Ms Aubert in her parenting of X and evidenced by comments such as those made to Dr G that Ms Aubert is “more the fun parent”. Similarly I find that many of the positive comments from Ms Cranmore in her evidence in respect of Ms Aubert are couched in condescending terms or with ambiguous implications again evidencing Ms Cranmore’s sense of superiority;
(11)I accept generally the evidence of Dr G that X is or would become sensitive and empathetic to any understanding of inequality between his mothers;
(12)I give credit to Ms Cranmore in amending her position positively towards more time for X with Ms Aubert at the conclusion of Ms Aubert’s case and before the opening of Ms Cranmore’s case. If any criticism of this timing of amendment is given then I reject that criticism; and
(13)I reject any criticism made by senior counsel for Ms Cranmore in her final submissions of senior counsel for Ms Aubert and should such assertions be made against the professionalism of senior counsel for Ms Aubert then I reject the assertions made in the final submissions of the senior counsel for Ms Cranmore that senior counsel for Ms Aubert in cross-examination of Ms Cranmore was:
(a)aggressive and intimidating;
(b)forceful and aggressive in tone and manner; and
(c)improperly or without reason called Ms Cranmore's affidavits “poisonous, irrelevant and offensive”.
I accept the evidence of Ms Cranmore elicited at the very commencement of her cross‑examination by senior counsel Mr Cummings as follows:
MR CUMMINGS: [Ms Cranmore], you – do you regard [Ms Aubert] as [X’s] parent? Yes
Do you regard [Ms Aubert] as [X’s] mum? Yes
But you regard her, don’t you, as an inferior mother to you? No
Not in any respect? Not in any respect
Right. So she’s – when we say not any respect – she’s as loving as you are? Yes
She is as capable as you are? Yes
She is as responsible as you are? Yes
She is as important – I will withdraw that. She is as committed to [X’s] welfare and development as you are? Yes
And she is no less important to [X] than you are? No less important.
…
You have a lot in common in terms of your parenting with [X] though, don’t you, and [Ms Aubert]? I am not sure what you are referring to ….
…
Okay, you both adore him? Yes
You would both do anything for him? Yes
You’re both committed to ensure that he gets a first-class education? Yes
You’re are both committed to ensure that he gets the best healthcare he can possibly get? Yes
You’re both committed to ensuring that [X], who in many respects if a very lucky and fortunate boy, has the ability to take up as many opportunities that come his way to broaden his world and enrich his life? Yes
…
Well, let me ask you this directly: in the past, you have regarded yourself as being a superior parent because you are [X’s] biological mother? Definitely not.
Do you say that he’s (sic) irrelevant, do you? I say that as a characteristic of me, being a biological parent, but it does not diminish [Ms Aubert’s] role as a mother.
Given the concessions and admissions made by Ms Cranmore in cross-examination, I continue to find it difficult to reconcile those concessions and admissions with Ms Cranmore’s continued and consistent criticisms, both personal and as to her capacity, of Ms Aubert and where such criticisms were maintained and emphasised in the final address of her senior counsel, with a position put now by Ms Cranmore that X should spend blocks of seven nights per fortnight during school holidays with Ms Aubert and five nights per fortnight during school term where such nights include school nights.
Whilst I applaud the admissions and concessions set out above and given by Ms Cranmore to senior counsel for Ms Aubert in cross-examination, I am not persuaded therefore that she does not still claim superiority of parenting over Ms Aubert.
CONCLUSION
After consideration and weighing of all of the evidence set out above, and where the statutory considerations obliges me to stop first at a consideration as to whether an equal time arrangement between his mothers be in X’s best interests and reasonably practicable, I am persuaded that X living in a week about arrangement between Ms Aubert and Ms Cranmore would be in X’s best interests.
I base my determination inter alia on the following:
(1)X has an established relationship with both mothers;
(2)I am persuaded that both mothers have the commitment, capacity, and facilities to enable a week about arrangement;
(3)The mothers live in close proximity to each other and to X’s school;
(4)Where there remain issues of conflict and communication between the mothers, such issues would likely be as prevalent on Ms Cranmore’s proposal of a five night-nine night arrangement as they are on a week about regime and notably where both mothers pronounce from the witness box a desire to impress their communication and cooperation.
(5)That a fact of and sense of parental equality will ultimately be for the benefit of X in respect of the matters discussed above;
(6)That a fact of and sense of parental equality may reduce the potential for ongoing conflict where I have found that Ms Cranmore carries views of superiority as a parent and a sense of “possession” of X over Ms Aubert;
(7)I accept that X by reason of his established relationships and his broadening social sphere, will adapt to a week about arrangement during his school term;
(8)Effectively I find no difference in the capacity of each of the parents to attend to X’s needs during school terms or school holidays but where X would benefit from an understanding of his mothers contributing equally to his school and non-school activities.
Where I find X’s relationship with Ms Aubert to be firmly established I do not accept generally the more conservative positions taken by the ICL and perhaps by Dr G in respect of X slowly assimilating into more time in Ms Aubert’s home. I accept, however, that the transition should take place during or coming out of a school holiday period. Where X would be experienced in spending seven day blocks with Ms Cranmore during the forthcoming summer school holidays, and perhaps in earlier holidays, I am of the view that the week-about arrangement should be operative as of the start of term one in 2025 thereby effectively commencing and continuing during the summer school holidays 2024/2025. Put another way, a continuation of the inequality in time will serve only to continue the issues referenced above.
I generally find the prescriptive and detailed orders sought by each of the mothers to be inconsistent with my findings as to each of their capacity and intelligence and equally contrary to the intention of the Act being that the parents should move on from litigation properly armed with the benefit of that litigation and the reasons of the Court so as to properly take the responsibility for parenting their child without such prescriptive detail. Nevertheless, where each of the mothers seeks orders of extraordinary detail, I will attend to those matters which I think are relevant and which ease their move forward from this litigation. I will do so with consideration of the orders that each of them seeks but with reference to the evidence given and adduced in this matter and ultimately on my view as to X’s best interests if this should require me formulating orders myself or varying from the proposals of the parties.
I am persuaded that an order for equal shared parental responsibility in Ms Aubert and Ms Cranmore is appropriate and in the best interests of X. I do not accept that there should be a default right in Ms Cranmore to make decisions in respect of X’s medical matters. Whilst I accept that there have previously been difficulties in communication between the mothers in respect of some medical issues, they have been able to agree other medical matters including the identity of X’s GP and Paediatrician. To make the orders sought by Ms Cranmore would effectively, in my view, give her sole parental responsibility in respect of X’s medical matters which would be contrary to my findings where I have found that it is generally not in X’s interest for there to be an understanding in him of inequality in his mothers’ contributions to his life. I am confident that these two intelligent and devoted mothers can quarantine any personal animosities so as to co-operatively make important decisions for X.
I am not persuaded that Mr F should carry equal shared parental responsibility with the mothers. Firstly, his relationship with X is of a different nature to that of X with each of his mothers and where Mr F is geographically distanced from X. Secondly, the tenor of Mr F’s evidence is that he was content to effectively delegate the long-term decisions to Ms Aubert and Ms Cranmore so long as he be fully informed. Thirdly, and relevantly, Mr F’s current alignment with Ms Cranmore would be problematic should each of the three have an equal “vote” on important decisions for X. Consequently, I prefer an order whereby Mr F is informed circumstantially prior to any decision being made for X or, at least, prudently post any more urgent decisions made in respect of X.
A remaining major issue for my determination is the regime of time for X with Mr F given that it must also accommodate X's time, particularly his school holiday time with each of the mothers.
Each of the parents gives me a proposal for X’s time with Mr F which are similar in intent but vary in detail. After consideration, I prefer the essentials of Ms Cranmore’s model for X’s time with Mr F if only for its relative simplicity and allowing for a two-week block of time for X and Mr F in the summer holidays from 2026/2027 and there will be orders accordingly. My orders will allow travel for X with Mr F but only as is sympathetic to his age and the logistics of overseas travel.
The orders I make both in respect X’s time with his mothers and X’s time with Mr F will inevitably require some communication, co-operation and probably some flexibility. The Act, the authorities, and this Court note that such productive communication and flexibility would ultimately be in X’s best interests and these orders are drawn with an eye to avoiding, rather than igniting, further conflict between these three adults.
There remains a dispute between the mothers as to whether one mother have first option to care for X if the “live-with” mother is unavailable. Ms Aubert prefers that the “other mother” have first option. Ms Cranmore prefers that the “live with” mother have the right to decide who the child is cared for by should the “live with” mother be unavailable and for example using grandparents or other persons. This dispute, of course, might lead to still further conflict and arguments as to the definition “unavailable”. I do not think the definition should not be too restrictive and believe “two successive nights of unavailability” would be the trigger. I favour the option of the “other mother” having first option where ultimately the responsibility of caring for X falls on parents. These are the primary relationships for X.
There is a remaining issue of the payment of expert reports and the costs of the ICL and specifically whether Mr F should contribute. Mr F was an active participant in these proceedings. He gave and adduced evidence. He participated in the Family Report. His position and his evidence were worthy of independent consideration. He sought specific orders. Importantly, he made an apparent concession as to his contributions. He is apparently a person of means. I am of the view that he should contribute equally to the mothers in those costs.
I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 4 September 2024
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