BALFOUR & PARDUE

[2020] FCCA 181

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALFOUR & PARDUE [2020] FCCA 181

Catchwords:
FAMILY LAW – Final Hearing – parenting – equal shared parental responsibility – substantial and significant time – assertions of risk by both parents – assertions of family violence by both parents.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC, 61DA, 65DAA, 69ZX

Applicant: MS BALFOUR

Respondent: MR PARDUE

File Number: SYC 4387 of 2015

Judgment of: Judge Morley

Hearing date: 28 August 2019

Date of Last Submission: 30 August 2019

Delivered at: Sydney

Delivered on: 30 March 2020

REPRESENTATION

Solicitors for the Applicant: Ms Temelkovska of Legal Aid NSW Sydney Central Family Law

Solicitors for the Respondent: Mr Reeve of Marsdens Law Group

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitors for the Independent Children's Lawyer: John Spence & Associates

ORDERS

1. That the parties have equal shared parental responsibility for their child X born in 2014 (‘the child’).

2. That the child live with his Mother.

3. That the child spend time with his Father as follows:

   (a)Until the end of Term 2 in 2020, during school term time:

   (i)Each alternate weekend from the end of school (or 3:00PM if not a school day) on Friday until the start of school (or 9:00AM if not a school day) on Monday, the first such occasion to commence on the Friday next after the making of these orders; and

   (ii)Each alternate week from after school (or 3:00PM if not a school day) on Thursday until the start of school (or 9:00AM if not a school day) on Friday, the first occasion to commence on the Thursday second after the making of these orders;

   (b)Thereafter and until the end of Term 4 in 2020, during school term time:

   (i)Each alternate weekend from the end of school (or 3:00PM if not a school day) on Thursday until the start of school (or 9:00AM if not a school day) on Monday, the first such occasion to commence on the Thursday first after the end of the school holidays; and

   (ii)Each alternate week from after school (or 3:00PM if not a school day) on Thursday until the start of school (or 9:00AM if not a school day) on Friday the first such occasion to commence on the Thursday second after the end of the school holidays;

   (c)From the start of the school Term 1 in 2021, during school term time:

   (i)Each alternate week from the end of school (or 3:00PM if not a school day) on Wednesday until the start of school (or 9:00AM if not a school day) on Monday, the first occasion to commence on the first Wednesday of the school term; and

   (ii)Each alternate week from after school (or 3:00PM if not a school day) on Thursday until the start of school (or 9:00AM if not a school day) on Friday, the first such occasion to commence on the Thursday second after the end of the school holidays;

   (d)During the school holidays at the end of Terms 1, 2 and 3 in 2020 for five successive nights at times agreed between the parties and failing agreement from 9:00AM on the first Monday of the school holidays until 12:00PM noon on the following Saturday;

   (e)During the Christmas school holidays at the end of Term 4 in 2020 on a week about basis with the Father having the first week of the school holidays and each alternate week thereafter, and during the Christmas school holidays at the end of Term 4 in 2021 on a week about basis with the Father having the second week of the school holidays and each alternate week thereafter;

   (f)From 2021 and each alternate year thereafter for the second half of the school holidays at the end of terms 1, 2 and 3 and from 2022 and each alternate year thereafter for the first half of the school holidays at the end of Terms 1, 2 and 3;

   (g)From 2022 and each alternate year thereafter for the first half of the Christmas school holidays and from 2023 and each alternate year thereafter for the second half of the Christmas school holidays;

   (h)Notwithstanding anything else in these orders, in odd-numbered years from 10:00AM on 25 December until 10:00AM on 26 December, and in even-numbered years from 9:00PM on 24 December until 6:00PM on 25 December;

   (i)In the event that the child will not otherwise be in his Father’s care on Father’s Day, from 10:00AM until 5:00PM on Father’s Day;

   (j)On the child’s birthday, if not otherwise in his Father’s care:

   (i)If a school day, for up to two hours as agreed between the parties and failing agreement from the end of school until 5:30PM;

   (ii)If is not a school day, for a period of no less than three hours as agreed between the parties and failing agreement from 9:00AM until 1:00PM;

   (k)On the Father’s birthday, if on a school day from the end of school until 7:00PM and if on a non-school day from 10:00AM until 5:00PM.

4. That notwithstanding any other order herein, the child is to be in his Mother’s care:

   (a)in the event that the child will not be otherwise in his Mother’s care on Mother’s Day, from 10:00AM until 5:00PM on Mother’s Day;

   (b)On the child’s birthday, if not otherwise in his Mother’s care;

   (i)If a school day, for up to two hours as agreed between the parties and failing agreement from the end of school until 5:30PM;

   (ii)If not a school day, for a period of no less than three hours as agreed between the parties and failing agreement from 9:00AM until 1:00PM;

   (c)On the Mother’s birthday, if on a school day from the end of school until 7:00PM, and if on a non-school day 10:00AM until 5:00PM.

5. That during school holiday periods each parent make the child available for telephone contact with the other parent each Wednesday at some time between 6:00PM and 7:00PM with the telephone call to be initiated by the parent who does not have care of the child.

6. That for the purposes of these orders, school holidays, including Christmas school holidays, commence at the time that the child finishes school at the end of term and end when the child commences school attendance for a new term.

7. That the Mother and Father are to keep each other advised of the following:

   (a)Their residential address, and any change to that address within 48 hours of such change occurring;

   (b)Particulars of any other person or persons residing in the parent’s home with the child whilst in that parent’s care;

   (c)Their telephone contact number and any change to that telephone contact number within 48 hours of such change occurring;

   (d)Their email address and any change to that email address within 48 hours of such change occurring;

   (e)Full details of any significant medical problem or illness suffered by the child whilst in their care and any attendance upon a GP or medical practice because of any illness or medical problem;

   (f)Full details of any occasion that the child has been hospitalised or is due to be hospitalised as soon as the parent becomes aware of this; and

   (g)Full details (including dosage and required course) of any medication that has been prescribed for the child from time to time.

8. That each of the parties is to advise the other parent of any occasion that the child attends a GP or medical practice and is to:

   (a)Provide the name and address of the GP or medical practice attended by the child;

   (b)Tell the other parent why the child had to attend the GP or medical practice;

   (c)Provide the other parent with information about any outcome of the child’s attendance at the GP or medical practice; and

   (d)If requested by the other parent, authorise the other parent to receive full information from GP or medical practice attended by the child.

9. That each of the parents is to keep the other parent advised of any appointment made for the child and any ongoing treatment for the child with any health professional (including but not limited to medical specialist, psychiatrist, counsellor, psychologist, occupational therapist and speech therapist), and each of the parents will do all things necessary to authorise the other parent to obtain information ordinarily provided to parents in relation to any such appointment or treatment and to be provided with copies of any assessments or reports consequent upon any such appointment or treatment.

10. That each of the parties is entitled to attend all events involving the child, including but not limited to:

    (a)School functions or events that ordinarily allow parental attendance or participation;

    (b)Sporting functions; and

    (c)Extracurricular activities or events that ordinarily allow parental attendance or participation, and the parent who has the child in his or her care on the day of such activity will be responsible for the child’s day-to-day care at such event, including the child’s transportation to and from the event, unless otherwise agreed between the parents in writing, and each of the parties is to provide to the other party information about the child sporting or extracurricular activities on an ongoing basis so that the other parent can attend or participate in such events.

11. That neither parent may arrange sporting or extracurricular activities that are to take place during the other parent’s time with the child without the written consent of the other parent.

12. That each of the parties shall do all things necessary to authorise the other parent to receive from the child’s school the following:

    (a)A copy of school newsletters;

    (b)Information usually provided to parents by the school;

    (c)Information about the child’s progress at school;

    (d)A copy of the child’s school reports; and

    (e)School photos (to be at the expense of each parent receiving the school photos);

    and each of the parties will do all things necessary to ensure that the other parent is authorised to access the school website to obtain information available to parents.

13. That each of the parties is restrained from making critical, disparaging or derogatory comments about the other parent, any member of the other parent’s household, or any member of the other parent’s family in the presence of or within the hearing of the child.

14. That each of the parties is restrained from allowing the child to remain in the presence of, or within the child’s hearing of, any other person who is making critical, disparaging or derogatory comments about the other parent, any member of the other parent household, or any member of the other parent’s family.

15. That from the start of 2023 each of the parties is at liberty to elect a two-week block (that does not occur over the Christmas period 24 December to 26 December) once each calendar year to travel with the child, with any time with the non-travelling parent for that period to be suspended, but the parties should try as far as possible to arrange any such two week block travel within their own time with the child.

16. That in the event that either party seeks to travel outside Australia with the child, he or she must give written notice to the other parent at least four weeks prior to the proposed travel of the dates for departure and return and a basic itinerary that includes all of the countries that will be visited by the child during the trip. The travelling parent must provide to the other parent no later than two weeks prior to the date of proposed departure for the travel a copy of the child’s travel tickets, including return ticket, a copy of the child’s travel itinerary, and details of the place names, telephone contact numbers and addresses of where it is intended the child will stay during the travel. Having complied with the requirements of this order the travelling parent may take the child X born in 2014 outside Australia for the purpose of the travel as notified.

17. That the child’s passport or passports be held by his Mother and be provided by his Mother to his Father no later than one week after she receives notice from the Father of a proposed trip with the child outside Australia, and be returned by the Father to Mother no later than three days after return from a trip with the child outside Australia.

18. That during any travel by the child outside Australia the parent who is travelling with the child facilitate telephone or FaceTime calls between the child and the other parent at least once each week between the hours of 8:00AM and 8:00PM Australian Eastern Standard Time.

IT IS NOTED that publication of this judgment under the pseudonym Balfour & Pardue is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4387 of 2015

MS BALFOUR

Applicant

And

MR PARDUE

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Balfour and Mr Pardue are the loving parents of five year old X. They had a brief relationship and separated when X was about one year old. They have not been able to decide between themselves what parenting arrangements should be made for X’s future and so the Court’s task is to determine what orders, dealing with the whole range of X’s future parenting arrangements, are proper, with X’s best interests as the paramount consideration.

2. Proceedings were commenced by Ms Balfour, the Applicant Mother (‘the Mother’) when she filed an Initiating Application on 11 May 2016. The Respondent Father, Mr Pardue (‘the Father’) filed a Response on 13 May 2016 and, unfortunately for the parents and their child, it took three years and three months for the matter to come on for a final Hearing.

3. The final Hearing took place from 28 to 30 August 2019. The Mother was represented by her solicitor advocate, Ms Temelkovska. The Father was represented by his solicitor advocate, Mr Reeve. An Independent Children’s Lawyer, Ms Court, was represented by Mr Ladopoulos of Counsel.

Issues for determination

1. The issues for determination were, in brief:

   a)How parental responsibility for X should be allocated between the parties;

   b)Whether X should live with his Mother and spend time with his Father on an increasing basis going to substantial and significant time after some years, as sought by the Mother; or

   c)Whether X should live with his parents in an equal care arrangement on a week-about basis, as sought by the Father;

   d)What orders should be made in relation to X spending time with each of his parents for special occasions such as the Christmas period, the Easter period, parent and child birthdays, and during school holidays; and

   e)Whether provision should be made in relation to X’s passport or passports and overseas travel with his parents.

The material relied upon at Hearing

1. The Mother relied upon the following documents:

   a)An Amended Initiating Application, filed 31 May 2019;

   b)A Notice of Risk, filed 11 May 2016;

   c)The Affidavit of the Mother sworn 12 July 2019 and filed that day;

   d)The Affidavit of the Mother sworn 10 May 2016, only as to paragraphs 13 to 29 inclusive, but not including paragraphs 17(g) or 19(a);

   e)The Affidavit of Ms A, the Mother’s sister, sworn 12 July 2019 and filed that day;

   f)A Case outline document for the Applicant Mother including comprehensive chronology; and

   g)The Mother’s Minute of Orders sought on final Hearing.

2. The Father relied on the following documents:

   a)An Amended Response to Initiating Application filed, 14 June 2019;

   b)The Affidavit of the Father, sworn 12 July 2019 and filed 15 July 2019;

   c)The Affidavit of Ms B, the Father’s partner, sworn 9 July 2019 and filed 12 July 2019; and

   d)A Case outline for the Respondent Father.

3. The following documents were relied upon by the Independent Child’s Lawyer:

   a)An Outline of Case document prepared by Mr Ladopoulos of Counsel;

   b)A Family Report prepared by Regulation 7 Family Consultant Ms C, dated 14 December 2017 and marked as exhibit ICL2;

   c)An addendum to the Family Report prepared by Ms C, dated 2 February 2018 and marked as exhibit ICL3; and

   d)A Child Dispute Conference Memorandum to Court prepared by Family Consultant Ms D, dated 1 June 2016 and marked as exhibit ICL4.

4. In addition to the above-mentioned exhibits, the following documents were tendered and admitted into evidence and marked as exhibits:

   a)Exhibit A2: a statement made by the Father to NSW Police on 25 August 2016 in relation to an incident occurring that day;

   b)Exhibit A3: pages 18 to 34 of the transcript of proceedings in the Suburb E Local Court on 16 September 2016, being a Hearing of one count of common assault against the Mother, and being pages 18 to 34 therein being a transcript of the Mother’s evidence in-chief, cross-examination and re-examination;

   c)Exhibit A4: all of the materials produced on subpoena by Ms F, psychologist, on 1 August 2016 and 14 June 2019;

   d)Exhibit R1: the whole of the transcript of the proceedings on 16 September 2016 in the Suburb E Local Court, being the Hearing of a charge of common assault against the Mother (the same as referred to in (b));

   e)Exhibit R2: an entry dated 20 June 2019 in the notes forming part of the materials produced on subpoena by Ms F, psychologist and covering two pages;

   f)Exhibit R3: a tender bundle tendered on behalf of the Father and consisting of prints of text messages and some emails between the Father and the Mother over various periods of time, some of which were put to the Mother in cross-examination. The tender of the document and its admission into evidence as an exhibit was confined to the pages bearing material put to the Mother in cross-examination and detailed in handwriting on the front of the exhibit; and

   g)Exhibit R4: pages 3, 7, and 9 in the Suburb E Local Court transcript referred to above.

The evidence

1. The parents began living together in either October 2013, as the Mother, says or in November 2013, as the Father says. Nothing turns on that difference.

2. The parents did not marry, and they separated on a final basis on either 24 June 2015, as asserted by the Mother, or 25 April 2016, as asserted by the Father. The Father concedes that there was a separation of the parties, that they lived in different places for the period from 24 June 2015 to sometime in August 2015, but they then reconciled and lived together until 25 April 2016. Both agree that events occurring on 25 April 2016 led to a definite end to any consideration of a reconciliation by either party.

3. X was born in 2014. He was 10 months of age when his parents separated on 24 June 2015. His Father was not a member of his household again until September 2015. The parties’ separation came about, and it is only mentioned here as it has some bearing on the further evidence in the matter, after the Mother found out about an infidelity on the part of the Father. As far as the Mother was concerned, the parties never resumed their relationship as a couple living together, with a view to a future. The Mother concedes that she entered into a “commitment ceremony” with the Father in 2015 as a way of:

   …committing to growing as individuals for X, and to be the best parents we could be for him. We were not in a relationship at the time.[1]

   [1] Affidavit of Mother filed 12 July 2019, [11].

4. The Father’s view of the commitment ceremony was different. He asserts that the “commitment ceremony” was symbolic of the parents’ commitment to a future together, as a couple.

5. Competing allegations of family violence were made by the parties, each asserting that the other perpetrated physical family violence during their cohabitation. The Mother asserts that the Father perpetrated coercive and controlling family violence throughout the relationship. The Father alleges that in early December 2013, the parties were arguing on the balcony of their second-storey residential unit and that, during the argument, the Mother climbed over the brick railing so that her body and legs were hanging off the balcony, her face looking into the balcony over the ledge of the brick railing, supporting herself on her arms. The Father says that he grabbed the Mother’s arms and pulled her back over the ledge. The Mother denies that she ever made any show of attempting to jump off the balcony or hang from the balcony, but rather, being used to living in extremely high-rise buildings in Country G where she grew up, she was used to sitting on the brick balcony railing ledge and looking at the stars at night.

1. On New Year’s Eve 2013 when the Mother was about five weeks pregnant, the parties attended a New Year’s Eve celebration on the rooftop of the unit block. At about five minutes before midnight the Mother went looking for the Father, probably in anticipation of the midnight festivities, and not finding him on the rooftop she went downstairs and found him snorting cocaine and in possession of a small bag of white powder, also cocaine. The Mother simply said to the Father, “Unbelievable,” and went back to the rooftop party. The Father agrees with all of the Mother’s evidence in relation to this event. After the guests at the rooftop party had left, the parents began arguing in their apartment. The Mother says that during the argument she tried to leave the apartment, but that the Father blocked her exit and used his chest to push her back into the room and then stood blocking the door so that she could not get out of the apartment. The Mother again tried to exit the apartment through the door and the Father took hold of her by the wrists and that:

   After struggling against him and shouting, I freed myself from his grip and ran downstairs. [2]

   [2] Affidavit of Mother filed 12 July 2019, [15].

2. The Mother says that she ran across the street to her car and that she was pursued by the Father, who:

   …slammed my body against the car. Mr Pardue pinned me down, with his forearm pressing onto the front of my throat and he pushed his body very hard against me. At this point I was still crying but I could not scream as my throat was restricted by Mr Pardue’s arm. Mr Pardue did not let me go until a car that was driving down the street stopped next to us. [3]

   [3] Affidavit of Mother filed 12 July 2019, [16].

3. The Mother got into her car, left, and stayed at her brother-in-law’s home for the night. In an interview with the Family Consultant for the Family Report, the Mother referred to this incident and she told the Family Consultant that:

   …Mr Pardue “got physical” with her, that she screamed and ran away out of the apartment, and that Mr Pardue chased her. She stated that Mr Pardue “slammed” her against the car, and “hammered” her against the car, pressing his forearm into her throat. Ms Balfour said she managed to break free from Mr Pardue’s grasp, got into her car and drove away.[4]

   [4] Family Report prepared by Ms C on 14 December 2017, [46].

4. In the version given by the Father of the event following the rooftop party, he said that the Mother ran out of their apartment and that he chased her out of concern and grabbed her by the “collar” to stop her. In cross-examination, he indicated it may have been her collar or it may have been a scarf that he grabbed, and that the Mother began making sounds that indicated to him that she was choking, so he let her go. The Father asserted that he grabbed her to stop her running across the street through traffic. He asserts that on letting her go, the Mother ran across the road and he returned inside the apartment.

5. For reasons I will elaborate when discussing the credibility of the evidence given by each of the parties, I prefer the Mother’s evidence in relation to the events of 31 December 2013/1 January 2014. Further, the Father had, by his own admission, been using cocaine at five minutes to midnight. There is no assertion that the Mother was affected by any substance, including alcohol, and noting that she was five weeks pregnant at the time, I find that it is more likely that the Mother’s memory was clearer in relation to this incident than that of the Father.

6. The Father used cocaine for a period of two or three years, from the age of 30, once a month. During the parties’ cohabitative relationship, the Father admits to using cocaine on three or four occasions, the last occasion being the 31 January 2015. He says that the Mother also used cocaine and that on the last occasion, being 31 January 2015, the Mother sourced and purchased the cocaine. I accept that the Father used cocaine, as he openly admitted this fact in both his affidavit evidence and in cross-examination. I do not make a finding that the Mother used cocaine.

7. The next significant incident involving violence occurred on either 22 or 24 June 2015. The Father says that on 22 June 2015, he told the Mother that he had had a “fling” with another woman, and that the Mother lashed out at him, hit him, and kneed him in the face, chipping his front tooth and causing his nose to bleed. He asserts that he did not retaliate in any way.

8. The Mother says that on 24 June 2015 the parties argued after she had found out that he had been unfaithful to her with another woman, and that during the argument the Father grabbed her wrists. The Mother asserts that she struggled free and hit the Father in the face. She then tried to leave the apartment, but the Father stood in her way and wrapped his arms around her, pinning her arms to her body. She struggled, and in the struggle, her knee hit the Father on his chin or in his face. In cross-examination she conceded that she was aware that her knee had connected with his face, but she was not aware, at that time, of him having a chipped tooth or of him having a bleeding nose. The Mother did admit that she left a message, written on the bathroom window of their bathroom mirror of their apartment, written in lipstick, saying:

   U r a cunt[5]

   [5] Affidavit of Father filed 15 July 2019, [145].

9. Following the events of 22 and/or 24 June 2015, the Mother travelled to the Region H in Queensland to stay with some family friends. The Father gives evidence that for the next five days he did not know where the Mother and child were, but that on 29 June 2015, he heard from the Mother and she invited him to visit X on the Region H. The Father took the Mother up on the offer and travelled to the Region H and spent three hours, on the Father’s version, or six hours, on the Mother’s version, with X.

10. The Mother and X stayed in Queensland until early August 2015, at which time they returned to live at the apartment at Suburb J. The Father did not live at that apartment with them from the time of their return until sometime in September of 2015, when he returned to live there but, on the Mother’s telling, slept on a couch in the front room of the apartment, which he used as his work studio.

11. Just before travelling to the Region H to spend some time with X, the Father had engaged solicitors and had initiated proceedings in the Federal Circuit Court of Australia by filing an urgent Initiating Application seeking an order for X to be placed on the Family Law Watch List at all points of entry and departure to and from Australia. The Father says he took this action in response to statements made by the Mother to him to the effect of, “I’m going to Country G. You will never see X again,”[6] after the Mother had found out about the Father’s infidelity. On 18 September 2015, the Father discontinued those proceedings.

    [6] Affidavit of Father filed 15 July 2019, [142].

12. On 25 April 2016 a major incident took place between the parties that led to a charge of common assault being laid against the Mother by New South Wales police. It was Anzac Day 2016 and the parties and X were at Suburb J. The Father advised the Mother that he intended to go down to a local pub to play two-up with some friends, and revealed that one of those friends would be an ex-girlfriend, Ms K.

13. The Mother then advised the Father that she intended to take X down to Melbourne for a few days in response to which the Father picked up X and walked off with him. The Mother says that she followed the Father and when he stopped walking she put her hands out for X to come to her and that as X was leaning in towards her the Father pulled him away and elbowed her in the side of the head and then walked away. The Father simply says that he picked up X following the exchange of words detailed above and walked home. Shortly thereafter, the Mother went home.

14. After putting X down for his afternoon sleep the parties agreed to discuss their differences with the assistance of a friend to mediate between them by being on a mobile telephone loud speaker. The parties began their discussion, mediated by their friend on the telephone, on the balcony of the apartment. During the discussion, the Father left the balcony and went into the kitchen. The Mother followed him, carrying the mobile phone with the friend still on the open line. The Mother says that she was then subjected to an assertion by the Father to the effect of, “You have mental issues, you need help and medication.” [7]

    [7] Affidavit of Mother filed 12 July 2019, [35].

15. The Father also said:

    You have issues and cannot trust what you think. You think you know things, but you don’t.[8]

    [8] Affidavit of Mother filed 12 July 2019, [37].

16. The Mother then began to tell the Father to “Get out of my house”[9] and when repeating that command several times did not produce the desired result the Mother began to tell him to:

    Get the fuck out of my house! [10]

    [9] Affidavit of Mother filed 12 July 2019, [38].

    [10] Affidavit of Mother filed 12 July 2019, [39].

17. The Father’s version is that, in the kitchen the Mother:

    …began waving her hands and flicking her hands in my face. She was not touching me, but her hands were getting close enough to my face that it was causing me to flinch.[11]

    The Father’s version goes on that he grabbed the Mother’s wrists and held them down in front of her to stop her. The Mother started kicking him in the legs and then bit his chest and bit his wrist. The Mother was pushing her body against him so he let go of her wrists. The Mother was close to the kitchen bench and stumbled backwards, hitting her back against the corner of the bench. The Mother then walked towards the sink, picked up a knife and started walking toward him. He yelled at her, “Drop the knife,”[12] and backed out of the room and went outside the unit.

    [11] Affidavit of Father filed 15 July 2019, [177].

    [12] Affidavit of Father filed 15 July 2019, [180].

18. The Mother’s version is that she was in the kitchen near the sink and the Father was near the doorway to the kitchen when she told him to get out of her house, and that the Father then moved from the door towards her and started using his chest to push her body into the back of the kitchen and up against the bench. The Father applied pressure from his chest against her body and she could not move out of the kitchen or around the Father. The Father was holding her hands behind her back and pushing his torso onto her back as she lay face down and “immobilised on the bench.”[13] She managed to turn her head and bit the Father on the forearm. This caused the Father to let go of her for a moment and she turned around to face him at which time he grabbed her wrists again. The Mother then bit the Father on the chest under his left nipple. The Father let go of her and moved back toward the kitchen door. She followed and tried to slide the door shut so that he could not re-enter the kitchen, but he put his foot in the opening at the bottom of the door to stop it sliding closed and then stepped back into the kitchen toward her. The Mother moved back to the rear of the kitchen against the bench near the kitchen sink. Next to the sink on the bench was a chopping board with a knife on it. The Mother picked up the knife and said to the Father words to the effect of:

    Get the fuck out of my house.[14]

    [13] Affidavit of Mother filed 12 July 2019, [40].

    [14] Affidavit of Mother filed 12 July 2019, [41].

19. The Father then said:

    Put the knife down.[15]

    [15] Affidavit of Mother filed 12 July 2019, [42].

20. At this point, the Mother placed the knife into the kitchen sink. The Father moved out of the kitchen through the doorway and the Mother moved forward to slide the kitchen door shut. In sliding the door shut, it became stuck and through the gap she saw the Father walk toward the front door and she then heard the front door close as the Father left the apartment.

21. Apparently, a neighbour had heard the Father’s words, either “Drop the knife”[16] (the Father’s version) or “Put the knife down”[17] (the Mother’s version) and telephoned the police. That neighbour provided a statement to police that forms part of exhibit A2, and the neighbour asserts that the relevant words were, “Put the knife down.”

    [16] Affidavit of Father filed 15 July 2019, [180].

    [17] Affidavit of Mother filed 12 July 2019, [42].

22. The result of the police intervention was that the Mother was arrested and conveyed to the police station in Suburb E and she was charged with common assault. A provisional AVO was issued by an authorised police officer for the protection of the Father from the Mother.

23. The common assault charge went to Hearing at Suburb E Court on 16 September 2016 and I have had the advantage of the full transcript of those proceedings from commencement to conclusion (exhibit A5)[18]. After full Hearing, the charge of common assault against the Mother was dismissed.

    [18]

24. The Mother asserts in her evidence that, during their relationship, at least once per month, there would be a verbal argument during which the Father would hold the Mother by the wrists to restrain her from leaving the scene of the argument, or he would use his body and chest to block her exit, to restrain her from leaving the apartment. The Father denies this evidence.

25. The Mother says that, on 22 April 2016, just before the major incident on ANZAC day detailed above, she took X to see the Father at the car park near Suburb J and that an argument developed between the parents outside the car while X was in the car. The Mother tried to get into her car to leave, but the Father blocked the door and restrained her by holding her wrists. She yelled out until the Father let go of her and moved out of her way. The Mother also details an incident on Australia Day 2014, when she was a few months pregnant with X. The Father went to meet some friends at Suburb L Park for an Australia Day celebration, and she went to join them at about 5:00pm. When the Mother arrived, she noticed that the Father was visibly affected by alcohol, swaying and behaving loudly and being obnoxious. When she approached the Father, he began to abuse her, and, following a brief argument, he told her to “just fuck off.”[19]

    [19] Affidavit of Mother filed 12 July 2019, [68].

26. The Mother says that, from February 2014 to August 2014, while she was pregnant with X, the Father was very controlling of the food she ate, forbidding her to eat certain types of food, such as chips. She says that after X was born, the Father was extremely controlling about food, meals and nutrition for both X and herself.

27. The Mother asserts that she was subjected to financial control by the Father in that, whilst he was working and she was not in employment, he gave her a maximum of $20 per week for her personal spending and expenses, whilst he paid for all the parties’ living expenses.

28. For his part, the Father makes several assertions of occasions of family violence perpetrated by the Mother, other than those referred to above.

29. The Father says that, between January and April 2016, there were three occasions on which the Mother pushed him, causing him to hold her wrist down in front of her to stop her, an action that he now regrets. The Father says that, on 28 March 2016, the Mother threw plates at him. He dodged the plates and they smashed on the floor, damaging the lino. X did not witness this incident as he was asleep in bed.

30. The Father says that, on 6 April 2016, the Mother ripped up paperwork belonging to him and threw it around the kitchen. She then punched the glass face of a photo frame, cutting herself and spilling blood on the floor of the apartment. Once again, X did not witness the incident but was asleep in bed at the time. In both her affidavit and during cross-examination, the Mother denied all three of these allegations. The Mother says that she dropped plates while washing up and that they broke, that she opened a bag containing the Father’s papers on the bench in the kitchen, and that during an argument later that day, the papers were spread on the floor, and that, on the occasion the Father refers to, she was taking a photograph of the Father and herself, out of the photo frame, to make the point that the relationship was over, and the glass broke as she was pushing the front of the picture to get the photo out, cutting her hand.

31. The Mother says that in November 2014, the Father was giving her herbs and remedies for her hormones. The Father told her that she had post-natal depression and suggested that she see a psychologist. As a result, the Mother eventually began to think there may be something wrong with her and agreed to see a psychologist, on condition that the Father also went to see one, to which the Father agreed. The Mother did begin consultation with a psychologist, Ms F, but the Father reneged on his agreement and did not consult a psychologist.

32. From the time of X’s birth in 2014, the Mother was his primary carer, a fact conceded by the Father. He says that the Mother attended to the majority of X’s day-to-day needs following his birth because he was working full-time. The Father described himself as a “hands-on dad”,[20] giving the Mother assistance with X’s care after work.

    [20] Affidavit of Father filed on 15 July 2019, [23].

33. The Father ceased paid employment in 2015 to pursue his career as a self-employed health care worker. In 2015, the Mother started full-time work, commencing with a four-night residential course away from home. During the four nights the Mother was away, X was cared for by his Father. The Mother then completed a 10-week course in the city and during the days while she was at work, X was cared for by his Father and by nannies engaged by the parties for this purpose.

34. On Mondays, Tuesdays and Fridays, the Father worked from the front room of the parties’ home as a health care worker and the nanny looked after X during the day. On Wednesdays and Thursdays, the Father worked away from home and the nanny looked after X. The Mother ceased her employment in 2015.

35. Following the incident on 25 April 2016 that led to the Mother’s arrest and charge with common assault, the Mother returned home and had a discussion with the Father about the future care arrangements for X. On the next day, the parents began to put their agreed arrangement into practice and X was with his Father from 7:30AM until 9:00AM, and then from 5:00PM until 6:00PM. He was with his Mother between 9:00AM and 5:00PM.

36. On 27 April 2016, the Father collected X from the Mother at 7:20am on an understanding between them that he would once again be bringing him home that day to the Mother. However, in the event, the Father kept X in his care until the first return date of these proceedings in the Court on 16 May 2016. During that time, X spent time with his Mother on only one occasion, on 29 April 2016 for about 30 minutes by the side of the road opposite the Suburb E Police Station.

37. The Mother was able to have occasions of FaceTime communication with X during that period from 27 April until 16 May 2016. She did not spend any time with X on Mother’s Day, the Father’s terms for facilitating any time between Mother and child being that such time had to be supervised. The Mother did not take up that offer.

38. In the Father’s trial affidavit he said:

    X was happy and content during the period he was not spending time with Ms Balfour.[21]

    [21] Affidavit of Father flied 15 July 2019 , [196].

39. He also said:

    I can appreciate now that she, Ms Balfour, was not a risk of harm to X. However, at the time I believe that she was.[22]

    [22] Affidavit of Father flied 15 July 2019 , [199].

40. The Father’s requirement that any time between Mother and child be under supervision was to prevail:

    …until she had medical treatment to support her mental health. [23]

    [23] Affidavit of Father flied 15 July 2019 , [196].

41. There is no evidence presented to the Court that the Mother was in need of medical treatment to support her mental health or, indeed, that she was suffering from any mental health issue at that or any other time that would have caused any concern that she presented a risk to X.

1. The evidence is that from the time of his birth up until 27 April 2016 the Mother had been X’s primary carer and principal attachment. The Father’s action in withholding X from his Mother for the three weeks between 27 April and 16 May 2016 showed a lack of regard on the Father’s part for X’s best interests, a lack of child focus on his part, based on a pretext that, on reflection, not even he can sustain.

2. Further than that, as the Family Report writer notes in paragraph 60 of the Family Report:

   An email purportedly sent from Mr Pardue to Ms Balfour dated 1 May 2016 proposed a parenting plan for X where Mr Pardue would care for X 40 per cent of the time, and Ms Balfour would care for X 60 per cent of the time. Missing from this email, however, is any reference to X’s safety and welfare in the care of Ms Balfour, just six days after Mr Pardue removed X from his Mother’s primary care, allegedly due to safety and risk issues.

   There is no information in this email that indicates that Mr Pardue believed that X was unsafe or at risk of harm in the care of his Mother and, conversely, he proposes an arrangement where X spends the majority of his time with his Mother. There is no information provided in this email that indicates what factors Mr Pardue was relying on in determining that Ms Balfour no longer needed supervised visits with X, a decision he had made just six days previously.[24]

   [24] Family Report prepared by Ms C on 14 December 2017, [46].

3. On 11 May 2016, the Mother commenced these proceedings by filing her Initiating Application with the Court seeking urgent interim consideration and the making of a recovery order.

4. The email referred to by the Family Consultant is in Annexure “Y” to the Father’s trial affidavit. The strong inference drawn from all of the evidence relating to the conduct of the Father in withholding X from the Mother between 27 April and 16 May 2016 was that he was withholding X as a ‘bargaining chip’ to establish a parenting plan arrangement that suited him, at his dictation.

5. The day before the first return date, 15 May 2006, the Mother chanced upon the Father and X at a café in Suburb M. When X saw his Mother, he shouted “Mumma”[25] and started running to her. The Father told the Mother that she was not allowed in the café under the terms of the restraining order, and the Mother countered that the AVO provided that she was not allowed to harass or abuse him, but did not prevent her being in the same café as him. The Father pulled X from the Mother’s arms and demanded that she leave. The Mother left.

   [25] Affidavit of Mother filed 12 July 2019, [113].

6. On 16 May 2016, the matter was before the Court for first return, and orders were made by her Honour Judge Boyle on an interim basis that X live with his Mother and spend time with his Father from 7:00AM to 9:00AM on Tuesday, Wednesday, Friday and Saturday, and from 9:00AM am to 5:00PM on both Monday and Sunday. Changeover was to occur at a café at Suburb J. The matter was set down for an interim Hearing on 14 June 2016 and the parties were ordered to attend a Child Dispute Conference with a Family Consultant at 2:00PM on 1 June 2016.

7. The Child Dispute Conference resulted in a Memorandum to Court being prepared by the Family Consultant, who noted X’s warm relationship with both his parents and their agreement at the conference in relation to X commencing day care, and recommended that X begin spending overnight time with his Father.

8. At the interim Hearing on 14 June 2016, the parties did not need the coercion of the Court, but were able to enter into their own consent orders, leaving in place the interim order that X live with his Mother, and providing that he spend time with his Father from 9:00am on Sundays until 5:00pm on Mondays, and from 7:00am until 9:00am on Wednesdays and Fridays. The Father was to have Skype communication with X at 6:30pm on Tuesday, Wednesday, Thursday, Friday and Saturday, and with his Mother at 6:30PM on Sunday. An order was made by consent for appointment of an Independent Child’s Lawyer.

9. On 15 December 2016, an order was made for preparation of a Family Report. The Family Report was prepared by Family Consultant Ms C and released on 20 December 2017. Spend time with orders were slightly varied, providing that X still spend time with his Father from 9:00AM Sunday until 5:00PM on Monday, and that he spend time with his Father from 7:00AM to 9:00AM on Tuesdays, Wednesdays and each alternate Friday, and from 7:00AM to 8:00AM on each alternate Thursday.

10. In paragraph 63 of the Family Report, the Family Report writer notes in relation to this period:

    Ms Balfour reported that, following Court when she was permitted to collect X and take him home, she found out that Mr Pardue had “dumped him with a complete stranger”, a woman he had paid to babysit X while they attended Court. Ms Balfour advised that she was informed by the babysitter that X had cried inconsolably “for four hours straight. He was distressed. He hadn’t seen his mum in three and a half weeks… He fell asleep in her arms, bawling his eyes out.” [26]

    [26] Family Report prepared by Ms C on 14 December 2017, [63].

11. The Family Report writer writes:

    Regardless of Mr Pardue’s motivation for withholding X from his Mother’s care, this experience is highly likely to have been a distressing and confusing time for a two year old child. Mr Pardue claims that X was “happy and well”, as evidenced by unchanged eating and sleeping patterns, seems implausible. Indeed, withholding a two year old child from the primary attachment figure is a significantly emotionally traumatic act. Not only did this likely cause X to suffer emotional harm, but the apparent lack of willingness or demonstrated ability of Mr Pardue to facilitate visits between X and his Mother indicates a concerning lack of insight into his child’s needs and limited capacity to respond to his child’s needs. [27]

    [27] Family Report prepared by Ms C on 14 December 2017, [82].

12. The parties attended a mediation in July 2018 which led to an agreement setting the pattern of the Father spending time with X that prevailed from August 2018 up to the Hearing:

    a)In Week 1 from 7:00AM Monday until 9:00AM Wednesday;

    b)In Week 2 from 9:00AM Sunday until 9:00AM Monday, and from 7:00AM to 9:00AM on Tuesday and Wednesday;

    c)In Week 3 from 7:00AM Monday until 9:00AM on Wednesday; and

    d)In Week 4 from 1:30PM on Saturday until 9:00AM on Monday and from 7:00AM to 9:00AM on Tuesday and Wednesday.

13. This regime of time between the Father and X meant that they had five nights together in each four week period, with four occasions from 7:00AM to 9:00AM.

14. In late 2017, X was enrolled in N Kindy at Suburb O, changing from his previous kindergarten, Suburb J Kindy, that had become no longer suitable, having converted to a ‘drop-in’ style centre. The Mother says that she tried to discuss a change of kindergarten with the Father and that when she proposed the ‘N Kindy’ at Suburb O, the Father indicated that he would only agree to X attending ‘N Kindy’ if the Mother agreed to an equal shared parental responsibility order being made.

15. Ultimately, the parents did not reach an agreement and the Mother took the unilateral step of enrolling ‘X in N Kindy’ at Suburb O and commencing him there. The Mother says that she took that step because the Father failed to respond to her in the attempted discussions. The Father says that he responded to the Mother’s emails discussing the issue, ultimately advising her by email on 19 January 2018 that he did not consent to X attending ‘N Kindy’ as no agreement had been made for replacement time to make up for time he would miss with X on Mondays.

16. Ultimately, X was enrolled at ‘N Kindy’ as there was nowhere else available and it was imperative for the parents that he commence day care from 25 January 2018 to accommodate their work schedules. In October 2018, the parties reached a mutual agreement that X change to P Kindergarten at Suburb J.

17. In January 2019, the Mother had a friend from Country Q, Ms R, staying with her. On 3 January 2019 Ms R conveyed some information to the Mother about some concerning behaviour by X in following Ms R into the bathroom when she was showering and indulging in what may be described as sexualised behaviour. This was, very properly, immediately discussed between the Mother and the Father and as it seemed to be an isolated incident, it assumes no further importance in these proceedings other than it is referred to by the Mother as an occasion when the Father was dismissive of the episode in verbal conversation with the Mother, whilst at the same time expressing deep concern about the episode in emails that may be viewed by other persons. The episode does not give rise to an assertion of risk in relation to either parent.

18. In July 2017 the Father met Ms B, who is now his partner. They moved in together in 2017. The Mother complains that the Father did not tell her that he had begun living with Ms B and that as a consequence, she would be a bigger part of X’s life while with his Father, but that she only found out on pressing the question with the Father. The Father for his part indicates that X and Ms B (whom X refers to as Ms B) met in around 2016 and that Ms B and X very quickly developed a good relationship.

19. The Mother also complains that in 2019, X’s paternal Grandmother passed away and that X accompanied his Father to his Grandmother’s funeral. The Mother’s complaint is that the Father should have advised her of the circumstances so that she could appropriately assist X to deal with grieving and his understanding of the concepts that arose from his first experience of a close relative’s death. The Father agrees, in his evidence, that he should have told the Mother that he was taking X to the funeral.

20. Each of the parents present other minor complaints about the other:

    a)The Mother complains that the Father did not inform her about the S application, for information on X’s kindy progress at P Kindy;

    b)The Mother complains that X learned inappropriate swear words from his Father, a fact that is denied by the Father;

    c)The Mother complains that the Father smokes in X’s presence, a fact that is denied by the Father;

    d)The Father complains that the Mother is denigrating Ms B and other members of his family to X, a fact that is denied by the Mother.

21. In terms of the amount of time that the Mother proposes the Father should spend with X in her proposed orders, and in terms of the Father proposing that the parents have equal care of X, none of these complaints need have any bearing on the ultimate decision relating to what are the proper orders to be made for X’s future parenting in his best interest.

22. The Mother gives evidence of occasions in late 2018 and early 2019, when the Father attended outside her home to collect X and X showed reluctance to go with the Father, resulting in the Father driving off without X. This then involved the parents meeting later at an agreed café to effect the changeover. The Mother characterises the Father’s actions on these occasions as inappropriate behaviour leading to distress for X, whilst the Father indicates that his actions on these occasions were taken to avoid causing distress to X, and to allow him a period during which he can settle down and then transition quietly and peacefully between them at a café.

23. On one of these occasions, 27 March 2019, the Mother alleges that the Father drove off and left X alone outside her home, obviously an inappropriate risk for a then four year old child. However, the Father’s version has X returning inside the building before the Father drove away. The events were not resolved in the course of cross examination of either party. It would seem that the real solution on any such occasion is that both parents get on and parent X and complete the changeover, rather than leaving it to X himself and then making such events an occasion for cross-accusations and blame.

24. The Mother is currently employed at Employer T, having commenced there in 2016. At the time of the Hearing, the Mother was on unpaid leave and considering pursuing other employment options, but was aware that her position with Employer T remained open for her return at any time. The Father is a self-employed health care worker and works from Tuesday to Saturday, and as a self-employed person can presumably adjust his working hours to suit X’s needs when in his care.

25. X commences school in 2020 and the parents reached agreement in early 2019 that he will attend Suburb J Kindy for kindergarten. Happily, X, together with his Mother and his Father and Ms B, attended the orientation day at Suburb J School on 19 June 2019.

26. In paragraph 57 of his trial affidavit the Father says:

    On 4 December 2018, I received an email from Ms Balfour in which she advised that X’s nurse wanted me to attend his final vaccination appointment, as I was able to keep him calm while he received the vaccination.[28]

    [28] Affidavit of Father flied 15 July 2019 , [57].

27. He annexes at “C" to his affidavit copies of email exchanges between himself and the Mother about this occasion. On reading that email exchange we find the following included, in sequence, Mother to Father:

    X has asked that both myself and you attend his last shot and Ms U [the nurse] has requested that you hold X during the shot. [29]

    [29] Affidavit of Father flied 15 July 2019 , Annexure “C”, page 2.

28. Father to Mother:

    I am happy to support him if you wish to take him. I do not think it is in anyone’s best interest, especially X’s, that we both be there. Please let me know if you would prefer to take X or if you rather I take him.[30]

    [30] Affidavit of Father flied 15 July 2019 , Annexure “C”, page 1.

29. Mother to Father:

    X asked me again that I go with him to his last vax, however Ms U won’t do the shot with me, as I’m not strong enough to hold X still during the jab. Seeing as Ms U has requested, it’s best you take him. [31]

    [31] Affidavit of Father flied 15 July 2019 , Annexure “C”, page 1.

30. Father to Mother:

    That’s fine, I’ll arrange X’s next appointment with Ms U and let you know the details. I talked to X about it again yesterday and he’s asked that I take him. [32]

    [32] Affidavit of Father flied 15 July 2019 , Annexure “C”, page 1.

31. The discussion in the email makes it obvious that the request from the nurse was that the Father attend the vaccination as he was strong enough to hold X during the injection, as opposed to expressing an opinion that the Father:

    …was able to keep him calm while he received the vaccination.[33]

    [33] Affidavit of Father flied 15 July 2019 , [57].

32. It may seem a minor point, but I give this detail as I consider it illustrative of the ‘flavour’ of the Father’s evidence as being not so much always factual as, on occasions, styled toward the Father’s advantage and the Mother’s detriment as parents for X.

33. For instance, above paragraph 209 of his trial affidavit, the Father has the heading:

    Other concerns about Ms Balfour’s mental health[34]

    [34] Affidavit of Father flied 15 July 2019 , [209].

34. This is followed by the balcony ledge story from December 2013, and an assertion that when the Mother was four or five months pregnant and the parties were arguing, the Mother held a knife to her belly and said words to the effect of:

    I’m going to cut it out.[35]

    [35] Affidavit of Father flied 15 July 2019 , [210].

35. The Mother denies making this comment.

36. In relation to the balcony incident, the Father in the prior paragraph says:

    I did not think she was attempting to harm herself. I considered her actions a cry for help. [36]

    [36] Affidavit of Father flied 15 July 2019 , [209].

37. Despite the heading referring to “Other concerns” about mental health, the rest of the affidavit does not contain evidence that raises concerns about the Mother’s mental health.

38. At Hearing, the Mother relied on an affidavit by her sister, Ms A, whose evidence went mainly to supporting the Mother’s parenting capacity.

39. The Father relied (properly in a live-with/live-with matter) on an affidavit by his partner, Ms B. The main thrust of her evidence also being to support the Father’s parenting capacity. On the evidence she provides, Ms B has not only an appropriate, but a commendable, approach to step-parenting X and supporting at all times the relationship between Mother and child.

40. During cross-examination of the Mother by Mr Reeve, a number of SMS message exchanges over the period of the 13 months leading up to Hearing were put to the Mother as illustrative of the parents’ ability to discuss issues relating to X’s parenting in a polite, respectful and constructive manner. The Mother agreed that the exchanges put to her were examples of the parents’ ability to cooperate and co-parent X, but expressed that the occasions related to short-term day-to-day issues and that, when their exchanges, particularly by email, related to larger and more long-term issues, the co-parenting was not so cooperative and that it usually ended with her capitulating to the Father’s proposals.

41. The following exchange occurred between the Mother and myself during her cross-examination. The Court:

    In the time since you say you separated, has your joint ability to make decisions for X, big or small, improved?

42. Mother:

    Yes, it has.

43. The Court:

    Though there have been some difficulties and protracted negotiations over big things, such as school and so forth, in the end, the two of you have got there, haven’t you?

44. Mother:

    There are a lot of things that aren’t being talked about that have been an issue. And there’s a lot of little things that I don’t make a big deal out of because it takes a lot more energy to make a big deal than not, which has not been talked about.

45. Mr Reeve asked the Mother if she thought the Family Report writer got it right when she said in paragraph 87 of the Family Report:

    It is unlikely that Mr Pardue and Ms Balfour would ever be able to effectively and cooperatively co-parent X.[37]

    [37] Family Report prepared by Ms C on 14 December 2017, [87].

46. The Mother replied that, in relation to small things, they can effectively and cooperatively co-parent X, but the bigger issues are more difficult.

47. When pressed by Mr Reeve in cross-examination, it was conceded by the Mother that she and the Father have been able to effectively exercise shared parenting responsibility for X in his best interest on all the issues that had arisen, except for deciding the appropriate care arrangement for his future; the essential issue in these proceedings.

48. Various parts of the transcript of proceedings before the Suburb E Local Court on 16 September 2016 in relation to the Hearing of the common assault charge against the Mother arising from the 25 April 2016 event were tendered into evidence, and ultimately, the whole of that transcript was tendered into evidence on behalf of the Mother and marked as exhibit A5. It was submitted to me on behalf of the Mother that I should adopt the findings of the learned Magistrate in relation to the Father’s credibility in that Hearing. Pursuant to section 69ZX(3)(a) of the Family Law Act 1975 (Cth) (‘the Act’), the Court is entitled to receive into evidence that transcript of evidence from those proceedings, to draw any conclusion of fact from that transcript that the Court thinks proper, and to adopt any recommendation, finding, decision or judgment of that Court.

49. However, I do not find that it is appropriate for me to simply adopt the findings of the learned Magistrate in relation to the Father’s credit, not having had the benefit of Hearing the Father give that evidence and seeing the Father give that evidence. This is on the basis that some of the evidence of the Father so referred to was presented to that Court by playing the Father’s recorded statement to police about the incident made at the parties’ apartment on the day of the incident. On reading the transcript of that interview, which is in evidence in these proceedings as exhibit A2, it seems to me that the Father was, immediately after the incident, attempting to downplay the incident and to some extent, excuse the Mother. That may have had some effect on the learned Magistrate’s findings.

1. All of the records produced by Ms F, psychologist, in relation to her therapy with the Mother between 24 July 2015 and 24 June 2019 was tendered into evidence on behalf of the Mother and marked as exhibit A4. I have read the whole of that material and I find nothing therein indicative of mental health issues affecting the Mother that would raise any concern in this matter in relation to her care of X, let alone amounting to any element of risk.

The Family Report

1. The interviews for the Family Report took place on 23 June 2017 and Family Consultant Ms C had the advantage of reading all of the documents filed in the proceedings up to that time, of interviews with each of the parents and with Ms B, and of observing X with his Mother, with his Father and Ms B, and, only in consequence of X’s reluctance to separate from his Mother for the observation session, for a short time with his Mother, his Father and Ms B.

2. The proposals for X’s care outlined by each of the parties to the Family Consultant correspond with their applications before the Court on Hearing.

3. I note particularly the following extracts from the Family Report.

4. In paragraph 24, which reports on a discussion between the Family Consultant and the Mother in relation to her proposals for X’s care, the Family Consultant reports:

   Ms Balfour considered that, if X wanted to and it worked for him, she would have no issue facilitating an equal shared time arrangement with Mr Pardue in the future.

   However, she stated that she would not like to be “locked in” to such an arrangement before she knew how X would respond to this, and would like the flexibility to modify X’s routine according to his needs, rather than an inflexible Court order.[38]

   [38] Family Report prepared by Ms C on 14 December 2017, [24].

5. That expression of the Mother’s view indicates to me that she has no real concerns about the appropriateness of the Father’s care for X, his parenting capacity, or his attitude to the responsibilities and duties of parenthood, but that her main concern is as to how X will cope from time to time with whatever parenting arrangements are in place.

6. In paragraph 26, the Family Consultant reports that during her interview with the Father he:

   …conceded difficulty being able to remember, and being able to distinguish between, different events that from his evidence were significant incidents in his relationship with Ms Balfour.[39]

   [39] Family Report prepared by Ms C on 14 December 2017, [26].

7. I make further comment in relation to this when considering the issue of the parties’ credit below.

8. In paragraph 37:

   Overall, there was nothing about Ms Balfour’s presentation on the day of the interviews, or obtained from the information provided in Affidavit, to indicate that there are concerns for Ms Balfour’s mental health or wellbeing that would interfere with her parenting capacity. It is difficult to reconcile the information available regarding Ms Balfour with the statements Mr Pardue has made about Ms Balfour’s mental health.[40]

   [40] Family Report prepared by Ms C on 14 December 2017, [37].

9. This accords with the view I have formed from the whole of the evidence presented in the Hearing.

10. Some comment is made in paragraphs 38 to 43 of the Family Report about the issues of drugs and alcohol consumption by either parent. No issue was raised in relation to the Mother’s conduct in this regard, but the Mother reports her concern that on occasions the Father will consume alcohol to excess to the point where he becomes “blackout drunk”[41] on a couple of occasions per year. Based on the Father’s self-report of alcohol consumption, the Family Consultant notes that, according to the Australian alcohol guidelines, he is at the edge of high-risk drinking. On all of the evidence presented on the Hearing, I find that there is no risk to X in relation to misuse of alcohol by the Father and, whilst bearing in mind the evidence relating to the Father’s earlier use of cocaine, I also find that there is no risk to X in relation to misuse of illicit drugs by either parent.

    [41] Family Report prepared by Ms C on 14 December 2017, [39].

11. The Family Consultant refers to the mutual allegations about family violence made by each of the parties and notes that the allegations made by Ms Balfour in relation to the Father would be best characterised as the Father having perpetrated a coercive and controlling form of family violence upon the Mother. This is denied by the Father. The allegations made by the Father in relation to family violence by the Mother would, on the whole, be best characterised as the Mother having perpetrated a reactive, conflict-instigated form of family violence.

12. In relation to discussing the 25 April 2016 family violence incident with the parties, the Family Consultant asked the Father, “Why he had not walked away from Ms Balfour when she was, allegedly, beginning to ‘lash out’ at him.”[42] Mr Pardue stated that it was a matter of:

    Standing up for yourself…if she approached me, I wouldn’t step back, but I wouldn’t step forward. [43]

    [42] Family Report prepared by Ms C on 14 December 2017, [54].

    [43] Family Report prepared by Ms C on 14 December 2017, [54].

13. And:

    He said that Ms Balfour was ‘triggered easy’ and that he was ‘just defending myself’ through continuing to attempt to have a conversation with Ms Balfour when she was, from Mr Pardue’s evidence, highly distressed. [44]

    [44] Family Report prepared by Ms C on 14 December 2017, [54].

14. In paragraph 58, the Family Consultant reports:

    Mr Pardue expressed frustration over Ms Balfour’s refusal to accept his authority over X’s nutrition and diet. Mr Pardue believes that he should be in charge of all decisions relating to X’s diet and nutrition, due to his greater knowledge of the subject. [45]

    [45] Family Report prepared by Ms C on 14 December 2017, [58].

15. Later in the Family Report, in paragraph 82, the Family Consultant records:

    Mr Pardue’s claims that he has superior knowledge to Ms Balfour about X’s nutritional needs was not supported by any evidence available during the assessment. Indeed, his statements in this regards are at odds with his argument that it is Ms Balfour, and not himself, that has control issues concerning X’s diet. [46]

    [46] Family Report prepared by Ms C on 14 December 2017, [82].

16. The Family Consultant then gives opinion that:

    Mr Pardue might like to seek therapeutic support for himself in order to increase his understanding of his own behaviour and his empathic capacity.

    In this case, it would be prudent for Mr Pardue to consult with a skilled professional, such as a psychologist or mental health-accredited social worker, who operates in accordance with a code of ethics and evidence base to inform their practice. [47]

    [47] Family Report prepared by Ms C on 14 December 2017, [82].

17. I note the following extracts from the Family Report, at paragraph 74:

    X, Ms Balfour, Mr Pardue and Ms B were observed together later in the day. Ms Balfour attempted to wait in the waiting room as X was brought into the family observation room with Mr Pardue and Ms B. X was not happy with this arrangement, however, and asked to see “mummy” within a minute or two of being alone with Mr Pardue and Ms B. X was allowed to return to his Mother, and they hugged, and Ms Balfour then encouraged X to return to the playroom with “daddy and Ms B” so she could do some “work” on her mobile phone. X refused to leave Ms Balfour, and so she was brought back to the playroom where she was asked to sit on a chair quietly inside the playroom for Mr Pardue’s observation. Ms Balfour seemed willing to do this and expressed no concern being near Mr Pardue on this occasion. X was then happy to play with Mr Pardue and Ms B, though he continued to check in with Ms Balfour through visual and physical contact. After five or so minutes of this arrangement, Ms Balfour was asked to move her chair into the hallway to be out of visual contact with X, Mr Pardue and Ms B, which she did. X did not object to this, although he did return to her one or two times whilst then returning to play with Mr Pardue and Ms B. [48]

    [48] Family Report prepared by Ms C on 14 December 2017, [74].

18. In paragraph 69, in commenting upon X’s need for reassurance that his Mother was still present during his observation with his Father and Ms B, the Family Consultant records:

    As discussed in the section titled ‘Observations of Interactions’, X displayed some signs of clingy, anxious behaviour with his Mother. He wanted her, and sought her out when he could not see her. This was the case when he was with his Father and Ms B in the observation room, but not when he was alone with the childcare worker in the childcare rooms. The childcare worker reported that X did not become upset, and did not ask for his Mother in the approximately 90 minutes that Ms Balfour underwent her individual interview. [49]

    [49] Family Report prepared by Ms C on 14 December 2017, [69].

19. Further, in paragraph 82, the Family Consultant records:

    X’s continued need to check in with Ms Balfour whilst in the play and observation room with Mr Pardue and Ms B is possible evidence that X continues to feel the effects of being withheld from his Mother, and that he continues to need reassurance that she is still “there” and not going to “leave” him (as such a situation might be experienced by a toddler). [50]

    [50] Family Report prepared by Ms C on 14 December 2017, [82].

20. At paragraph 75:

    Observations between X, Mr Pardue and Ms B revealed a loving, affectionate and playful relationship. [51]

    [51] Family Report prepared by Ms C on 14 December 2017, [75].

21. At paragraph 73:

    Ms Balfour and X were observed to have a playful and loving relationship. [52]

    [52] Family Report prepared by Ms C on 14 December 2017, [73].

22. At paragraph 81:

    Based on this assessment, Ms Balfour presented as a parent who is child-focused and attuned to her child’s emotional state. When discussing the period of separation between herself and X, she was only able to think of the distress and confusion X must have felt, and the impact the event must have had on her did not rate a mention in her narrative.[53]

    [53] Family Report prepared by Ms C on 14 December 2017, [81].

23. And:

    In relation to protecting X from future family violence, Ms Balfour [sic] willingness to acknowledge her own behaviour, her insight into her behaviour, her demonstrated willingness to access support services, and her articulated personal commitment to self-improvement and growth indicates a pretty good capacity to protect X from future possible family violence. If Mr Pardue’s allegations of Ms Balfour’s erratic emotional state and behaviour are accepted by the Court, then it might indicate that Ms Balfour’s capacity to protect X from emotional mood swings in the future might be compromised. [54]

    [54] Family Report prepared by Ms C on 14 December 2017, [81].

24. I find that on the whole of the evidence in the Hearing, the Mother is not subject to “erratic emotional state and behaviour” or “emotional mood swings” and does not present any risk to X in this regard.

25. At paragraph 82:

    Based on this assessment, Mr Pardue presented as a parent who has limited capacity to be child-focused, or as having a capacity to be empathic or to understand other people’s needs and feelings if they are different to his own. Mr Pardue inappropriately withheld X from his primary carer and primary attachment figure, his Mother, for a period of approximately three weeks, during a sensitive time of X’s development. [55]

    [55] Family Report prepared by Ms C on 14 December 2017, [82].

26. At paragraph 80:

    Mr Pardue’s only counter in the interview is that he has, on more than one occasion, restrained and prevented Ms Balfour from leaving situations where she was distressed, has chased her to continue “discussions” with her despite her distressed state, and has himself refused to leave highly escalated situations of conflict when asked to do so. This indicates that Mr Pardue might lack insight into his own behaviour, the possible effects it might have on other people and seems to indicate that he has limited empathy and understanding of other people’s emotional experiences. Mr Pardue appeared to attempt to pathologise Ms Balfour’s emotional reactions during all situations discussed. When discussing the incident on Australia Day 2014[56] he is able to recognise his own feelings of being upset, whilst at the same time, seeming to believe that Ms Balfour’s feelings of being upset were unreasonable, irrational and evidence of a mental health condition. [57]

    [56] Revealed on the evidence to be an erroneous reference, the occasion being referred to being ANZAC Day 2016 instead.

    [57] Family Report prepared by Ms C on 14 December 2017, [80].

27. At paragraph 85:

    The benefit of an arrangement where X spend time with his Father each alternate weekend would be that X remains in the care of his primary caregiver, in a situation where he is accustomed to this. This arrangement would also ensure X’s safety, welfare and wellbeing, through limiting his exposure to possible family violence and/or conflict between their parents. Ms Balfour and Mr Pardue, for the most part, seem to share similar ideas and values around raising children in that they are both committed to natural or alternative healthcare, and so the type of care provided by Ms Balfour would not be a significant deviation from the type of care Mr Pardue himself might provide to X. The disadvantages of an arrangement were X lives with his Mother and spends each alternate weekend with his Father, would be the loss X might feel once he commences primary school from the reduction in the days per week he spends with his Father.[58]

    [58] Family Report prepared by Ms C on 14 December 2017, [85].

28. At paragraph 86:

    Mr Pardue’s proposal is that X’s time with him would gradually increase during the next two years until X lives equally with himself and Ms Balfour in a shared time arrangement. The benefits of this arrangement would be that X would be able to continue developing a relationship with his Father, that he would continue to spend a significant amount of time in the care of his Mother. The disadvantages of this arrangement would be the loss X might feel from a reduction in time spent with his Mother. X already appears to feel insecure in the permanency of his relationship with his Mother, and so a reduction in time spent with her could threaten X’s sense of safety. Although Mr Pardue was able to articulate wanting an amicable co-parenting relationship with Ms Balfour, and he demonstrated some understanding that Ms Balfour is important to X, he appears to have rigid beliefs and to behave in rigid and inflexible ways. These factors suggest that X would be at high risk of experiencing future conflict, and possible violence, in the future if his parents were required to undertake a parenting plan involving an equal shared time arrangement.[59]

    [59] Family Report prepared by Ms C on 14 December 2017, [86]

29. On release of the Family Report, the Father sought and obtained from Judge Harper (as His Honour then was) leave to submit 15 questions to the Family Report writer in accordance with rule 15.65 of the Family Law Rules 2004 (Cth) (“the Rules”) such questions to be limited to only issues of clarification of matters recorded in or opinions expressed in the Family Report. The Respondent did submit further questions and the Family Consultant prepared an addendum to the Family Report dated 2 February 2018, in which she responded to each of those questions.

30. Nothing arises from the questions or the Family Consultant’s responses that impacts upon the information or opinions in the Family Report reported above.

The parties’ competing proposals

1. In summary, the Mother proposed the following for X’s future parenting arrangements:

   a)That she have sole parental responsibility for X;

   b)That in relation to parental responsibility matters, the Mother consult with the Father and take any opinions expressed by the Father into account in her considerations before making a decision;

   c)That X live with her;

   d)That X spend time with his Father on the following basis:

   i)Continuing the same pattern as agreed between the parties at the mediation in July 2018 for a period of two months;

   ii)Then for a period of two years to be each alternate weekend from the end of school on Friday until the start of school on Monday, and each alternate other week from the end of school on Thursday until the start of school on Friday (four nights per fortnight);

   iii)From the beginning of Term 4 in 2021, each alternate weekend from the end of school on Friday until the start of school on Tuesday, and each alternate other week from the end of school on Thursday until the start of school on Friday( five nights per fortnight);

   iv)Commencing in 2020 (X’s first year at school), during school holidays at the end of Terms 1, 2 and 3, for a period of four nights from 9:00AM Monday to 12:00PM Friday, and during the end of Term 4 Christmas school holidays for five nights beginning in the second week of the school holidays from 9:00AM on Monday to 12:00PM on Saturday and alternating each week thereafter; and

   v)Commencing in 2022, during school holidays at the end of Terms 1, 2 and 3 for a period of five nights from 9:00AM Monday to 12:00PM Saturday, and during the end of Term 4 Christmas school holidays for five nights beginning in the second week of the school holidays from 9:00AM on Monday to 12:00PM on Saturday and alternating each week thereafter.

   e)That during school holidays, each parent make X available for telephone communication with the other parent between 6:00PM and 7:00PM each Wednesday;

   f)That for the purpose of all school holidays, the alternate weekend and alternate Thursday night time is suspended;

   g)That X spent three hours with each parent on his birthday;

   h)That X spend time with Father on Father’s Day from 10:00AM to 5:00PM and with his Mother on Mother’s Day from 10:00AM to 5:00PM;

   i)That X be in the care of his Mother from 9:00AM to 6:00PM on Easter Sunday in even-numbered years and in the care of his Father from 9:00AM to 6:00PM on Easter Sunday on odd-numbered years;

   j)That X be with his Mother from 10:00AM on Christmas Eve to 10:00AM on Christmas Day each year;

   k)That X spend time with his Father from 10:00AM on Christmas Day to 10:00AM on Boxing Day each year;

   l)That X’s name be removed from the Family Law Watch List from all points of arrival and departure for the Commonwealth of Australia, and that if either parent wishes to travel outside Australia with X, the consent of the other parent is to be sought at least four weeks before the proposed travel, and the other parent will not unreasonably refuse such travel. At least two weeks prior to any proposed travel, the traveling parent is to provide the other parent with a copy of X’s travel tickets, and travel itinerary, and details of names, telephone contact numbers and addresses and where it is intended X would be staying; and

   m)That X’s passports be retained by his Mother, and that she be able to apply for both an Australian and a Country V passport for X and that if the Father refuses to provide necessary consents, the passport be issued without the requirement of his consent.

2. The Father sought the following orders:

   a)That the parents have equal shared parental responsibility for X;

   b)That X attend Suburb J School for primary school (this is not in dispute between the parties on Hearing);

   c)That for the balance of 2019, X spend time with his Father each alternate week from 3:00PM Monday until start of day care on Tuesday and from 3:00PM Friday until the start of day care the following Monday, and in the other alternate week from 3:00PM Thursday to the commencement of day care on Friday, being five nights per fortnight, and that he live with his Mother at all other times;

   d)That from the end of 2019, X live with his parents on a week about basis with changeover occurring at the end of school (or 3:00PM on non-school days) on Fridays and if changeover is not occurring at school, the Father deliver X to his Mother’s residence at the conclusion of his time and the Mother deliver X to the Father’s residence at the conclusion of her time;

   e)That there will be no special arrangement for school holidays and that the parents continue X’s care on a week about basis through school holidays;

   f)That X be with his Father on Father’s Day from 10:00AM to 5:00PM and with his Mother on Mother’s Day from 10:00AM to 5:00PM.

   g)That X be with his Father on his Father’s birthday from the end of school to 7:00PM if a school day, and from 10:00AM to 5:00PM if not a school day;

   h)That X be with his Mother on her birthday from the end of school to 7:00PM if a school day and from 10:00AM to 5:00PM if not a school day;

   i)That on X’s birthday he spend time with the parent that does not have care of him from the end of school until 5:30PM (or for two hours as agreed) if a school day and from 9:00AM until 1:00PM (or for three hours as agreed) if a non-school day;

   j)That X spend time between his parents at Christmas on a four-year cycle as follows:

   i)In year 1 with his Mother from 10:00am Christmas Eve to 10:00AM Christmas Day and with his Father from 10:00AM Christmas Day to 10:00AM Boxing Day;

   ii)In year 2 with his Mother from 10:00AM Christmas Eve to 9:00PM Christmas Eve and with his Father from 9:00PM Christmas Eve to 6:00PM Christmas Day and with his Mother from 6:00PM Christmas Day to 10:00AM Boxing Day;

   iii)In year 3 the Father be at liberty to elect a two week block over the Christmas period to travel with X, but if that travel doesn’t occur to be the same as in (i);

   iv)In year 4 the Mother is at liberty to elect a two-week block over the Christmas period to travel with X but if the travel does not occur then (ii) above will apply.

   k)That each parent is at liberty to elect a two-week block period that does not fall over the Christmas period once in each calendar year to travel with X, provided the travelling parent provides the non-travelling parent with notice of no less than four weeks for domestic travel, no less than six weeks for international travel, and no less than 14 days prior to the start of travel, provides copies of itinerary, return airline tickets in X’s name and contact numbers for the non-travelling parent to contact X during the period of travel.

   l)That each parent is at liberty to elect a two week block period once each calendar year to travel without X, with X to spend time with the non-travelling parent for that period;

   m)That each parent do all things needed to obtain an Australian passport for X and that such passport be held by the Father, and provided by the Father to the Mother for the purpose of travel and returned by the Mother to the Father at the end of travel;

   n)That the Mother be restrained from obtaining a Country V passport for X until he reaches 13 years of age;

   o)Various other orders for the exchange of information and in relation to non-denigration of each other that are basically agreed between the parties.

1. Rather, I find that it is more appropriate that orders be made whereby he lives with his Mother and spends substantial and significant time with his Father, with that time being reached an immediate step to four nights a fortnight, then a step to five nights a fortnight and, finally, to six nights per fortnight, and to start the Father’s school holiday time with X at five-night blocks in the term holidays during 2020, and equal time on a week-about basis during the Christmas school holidays at the end of 2020, with an equal sharing of the term school holidays from 2021, and the Christmas school holidays being divided between the parents equally in one block each from the 2022 Christmas school holidays.

Parental responsibility

1. Section 61DA of the Act provides that:

   (1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   (2) The presumption does not apply 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:

   (a) 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

   (b) family violence

   …

   (4) The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[63]

   [63] Family Law Act 1975 (Cth) s61DA.

2. In this matter, there has been family violence. Leaving aside whom on each occasion was the perpetrator and whom the victim, there is no doubt that several of the incidents detailed in the evidence amount clearly to family violence in the nature of an assault. Accordingly, pursuant to section 61DA(2) the presumption in favour of equal shared parental responsibility does not apply.

3. Nevertheless, the issue of parental responsibility must be decided. The Father seeks an order that the parents have equal shared parental responsibility for X. The Mother seeks an order that she have sole parental responsibility for X, that she inform the Father of any decision that needs to be made in relation to X’s long-term care, welfare or development and outline her proposal and give him all relevant information, allow him seven days to consider the decision that should be made and then, on receiving his opinion, take that opinion into consideration in making her decision.

4. If the matter were falling for decision at the time these proceedings were commenced and first came before the Court in June 2016, it may well have been that the Court would not have found that the parents had the ability to comply with the obligations that an order for equal shared parental responsibility imposes under the Act. That is, that decisions in relation to major long-term issues for X are required to be made jointly by the parents, with each parent being required to consult the other parent in relation to the decision to be made about that issue, and that they make a genuine effort to come to a joint decision about that issue.

5. Happily, of more recent times, as the evidence shows, the parents have moved on past their initial difficulties in communicating and consulting and have demonstrated an ability to communicate, to consult, to discuss, albeit by SMS and email exchanges, and to reach agreement in relation to both short-term and long-term issues.

6. Though the presumption of equal shared parental responsibility in section 61DA of the Act does not apply for the reason given, there is nothing in the evidence now to show that either parent is disentitled to take part in consultations and decision-making relating to X’s long-term issues. There is nothing in the evidence to show that going through the process of consulting, discussing and, hopefully, reaching a decision, is beyond the capacity of these parents by reason of an inability to communicate or due to any unfair burden being placed on one or the other by reason of their lived experience of their relationship.

7. Accordingly, I find that it is appropriate to make an order that X’s Mother and Father have equal shared parental responsibility for making decisions about major long-term issues for X.

8. Having found that it is appropriate to make an order that the parents have equal shared parental responsibility for X, I must consider the matters set out in section 65DAA of the Act.

Is it in X’s best interests to spend equal time with each of his parents and is it reasonably practicable for X to spend equal time with each of his parents?

1. On the basis of the findings I made earlier in these reasons as to what time it is appropriate that X spend with each of his parents, I find that it is not in X’s best interests to spend equal time with each of his parents.

2. X has been in the primary care of his Mother since the time of his birth. He has been living with his Mother and spending gradually increasing time with his Father since 16 May 2019 when he went back into his Mother’s full-time care on the first return date of these proceedings, and that time with his Father has been on a gradually increasing basis to the current state of that time being three nights out of 14 in one fortnight and two nights out of 14 in the next fortnight in each four-week cycle, with several two-hour occasions between 7:00AM and 9:00AM on weekdays being included.

3. X started kindergarten at the start of 2020, and the first year of school, and particularly the first term of school, is a time of change, adaption and tiredness for any child. To change from spending something less than substantial and significant time with his Father to spending equal time between his parents with a transition period of only about four months, as proposed by the Father in the orders he seeks, would be a drastic change in X’s living arrangements and perhaps a change that could bring about a renewal of his anxieties on separation from his Mother, so evident to the Family Consultant during the observation sessions at the interviews for the Family Report.

4. During cross-examination, the Mother indicated that she was not opposed to an equal care arrangement for X once he had had a number of years of substantial and significant time, in her view, when he starts high school attendance. But even then, as she indicated in the interviews for the Family Report, she would prefer to see if such an arrangement worked for X, and see how he responded before such an arrangement was ‘locked in’.

5. I have found that the parents’ co-parenting relationship is currently such that they would certainly cope with the parental cooperation required to exercise equal shared parental responsibility. But I do not find that their relationship is such at the present time that they could cope with the very close and constant day-to-day cooperation that must occur between parents where a child or children is living between them on an equal shared basis.

6. I find that X spending equal time with each of his parents at the present time and for the next three of four years is not in his best interests.

7. X spending equal time with each of his parents is reasonably practicable as they live in such close proximity. However, as I have found that it is not in his best interests to spend equal time with his parents, I do not have to go on to consider making an order to provide for X to spend equal time with each of his parents.

Is it in X’s best interests to spend substantial and significant time with each of his parents?

1. Substantial and significant time occurs when a child spends time with a parent that includes both days that fall on weekends and holidays, and days that do not fall on weekends or holidays. It means time that allows a parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and allows the child to be involved in events that are of special significance to the parent.

2. As I found above upon consideration of the matters in section 60CC of the Act, I consider it is in X’s best interests to spend substantial and significant time with his Father and to live with his Mother. As the time that X has been spending with his Father up to date is the somewhat limited time that I have outlined above in considering equal time between the parents, it is in X’s best interest to approach him spending substantial and significant time on a graduating basis.

3. I find that the appropriate end point is an arrangement where X is spending six nights per fortnight in the care of his Father and eight nights per fortnight in the care of his Mother, with such point to be reached by the start of the school year in 2021.

4. In relation to school holiday time as a component of X spending substantial and significant time with his Father, I find that it is in X’s best interest to spend substantial and significant time with his Father that includes school holidays on a graduating basis as outlined in paragraph 179 of these reasons.

5. It is reasonably practicable for X to spend substantial and significant time with his Father and live with his Mother. The factors that the Court must consider in determining whether it is reasonably practicable for a child to spend substantial and significant time with a parent are set out in section 65DAA(5) of the Act.

6. I find that the parties live in close proximity to each other in the Suburb J area, so the time taken for X to get to and from school to the carer parent’s home on any particular day would be roughly the same. X can therefore move between his parents’ homes on any changeovers that do not occur at school without any travelling burden being involved.

7. I find on the basis of my consideration of the section 60CC factors that both of X’s parents have the capacity now and in the future to implement the arrangements necessary for X to spend substantial and significant time with his Father and the rest of his time with his Mother.

8. I find that the parents have a current and future capacity to communicate with each other and to resolve any difficulties that might arise in implementing an arrangement for substantial and significant time. I find that an arrangement for X having substantial and significant time with his Father would have minimal impact on X if the final goal I propose for that substantial and significant time, being six nights per fortnight with his Father, is approached by a couple of steps over a period of 12 months.

Other issues between the parties

1. In the orders sought in the proceedings by each of the parties there are some more minor differences in what they seek for special occasions, overseas travel and so forth that really amount to arbitrary proposals of time in hours without being grounded in any particular portion of the evidence or addressed specifically in submissions. Accordingly, I will make a determination in relation to each of those matters based upon what I consider to be in X’s best interests in view of the consideration I have made of the matters in section 60CC of the Act and on the totality of the evidence.

2. The parties are in agreement as to the order that should apply to X spending time with the applicable parent on Father’s Day and Mother’s Day, that is that he should be with that parent from 10:00AM to 5:00PM on the day.

3. In relation to X’s birthday, the Mother seeks that X spend at least three hours with each parent at times to be agreed, and failing agreement, he spend time with the parent with whom he is not living with on that day from after school, or 3:00PM, until 6:00PM. The Mother does not make a specific proposal that relates to a non-school day. The Father proposes that on X’s birthday he spend two hours with his non-carer parent after school if it is a school day, and no less than three hours with the non-carer parent at times agreed between the parties, and failing agreement from 9:00AM to 1:00PM if a non-school day.

4. I find the proposal of the Father to be in X’s best interest as it is sufficiently similar to the proposal of the Mother but is specific as to the time to be spent on school days and non-school days. The Mother does not seek any specific order in relation to X spending time with her on her birthday or with the Father on his birthday. The Father does, and I intend to make orders relating to the Father’s birthday and the Mother’s birthday as sought in his Application.

5. In relation to Christmas, the orders sought by the Mother provide that X be in her care from 10:00am on Christmas Eve until 10:00am on Christmas Day every year, and then in his Father’s care from 10:00am on Christmas Day until 10:00am on Boxing Day every year. This arrangement does not allow each parent to participate in the “Christmas morning” experience with X and I find that there is no basis upon which one parent should be preferred over the other in relation to any particular part of the Christmas period.

6. It is not in evidence that there is any particular reason why Christmas Eve to Christmas Day morning is the preferred time for the Mother. I note that the Father proposes that in each year of a two year cycle X would be with his Mother from 10:00am Christmas Eve until 9:00pm on Christmas Eve, one year continuing through to 10:00am on Christmas Day, the next year with a changeover to his Father at 9:00pm on Christmas Eve.

7. It may be that in the Mother’s Country V heritage she regards Christmas Eve as the most important time for family and it is on the basis that the orders proposed by the Father for sharing the Christmas period between the parents provide for the full Christmas Eve period with the Mother up to at least 9:00pm, but with an alternate year sharing of the Christmas morning between the parents that I find the Father’s proposal to be in X’s best interests.

8. The Father goes on to propose that in a four year cycle, years three and four provide an opportunity to each parent in turn to elect to have a two week block of travel with X rather than dividing Christmas between the parents. This proposal would mean that one parent did not have any part of the Christmas occasion with X, and on the basis that there was nothing in the evidence or by way of submissions to ground the proposal of the two week block travel period over Christmas, I find that it is in X’s best interest to make orders in accordance with the alternating year Christmas sharing cycle proposed by the Father, but without the two week block travel period over Christmas.

9. The Father proposes that each parent be at liberty to elect a two week block period that does not fall over Christmas once each calendar year to travel with X, during which time with the non-travelling parent would be suspended. This would give the opportunity for overseas travel by a parent with X where such overseas travel cannot reasonably be contained within a one week period during a term school holiday or being confined to time between X and the parent over the Christmas school holiday once it is divided equally between the parties in one block each.

10. As I do not intend to make an order that the Christmas school holiday period be divided equally between the parties in one block period each until Christmas holiday beginning at the end of 2022, there will not be an occasion where X is spending more than a full week with his Father until that time. As such, I intend to make the orders sought by the Father in relation to each parent being able to elect a two-week block period once each calendar year to travel with X, but to commence only from the beginning of 2023.

11. The Father seeks an order that each parent is at liberty to elect a two-week block period once each calendar year to travel without X, but that is a matter that can be negotiated between the parties should occasion arise. If, pursuant to orders, a parent is to be a carer for X at any particular time, but that parent makes travel arrangements over that period, then X will by arrangement between the parents, remain in the care of the non-travelling parent as a matter of practical reality.

12. The Mother seeks a number of orders relating to the parents keeping each other advised in relation to information concerning their residential addresses, mobile telephone numbers, email addresses and so forth, in relation to health matters concerning X and in relation to each parent being able to attend events and functions at X’s school, sporting functions, other curricular activities and each being entitled to receive all relevant information from X’s school. I find that it is proper to make those orders.

13. Both parties seek an order restraining the other parent from denigrating the parent or any members of the other parent’s family in the presence of X. I find that it is appropriate to make that order, not because I find or accept that such conduct is or has been occurring, but because the order is sought by each of the parents and I find that it is in X’s best interest that he not hear anything derogatory about either parent from the other parent.

14. The Father seeks an order restraining the Mother from obtaining a Country V passport for X until he reaches the age of 13. No evidence was provided in the Hearing to ground that order or to indicate that there is any risk to X or detriment to X or either of the parties in X having a Country V passport. I note the submissions made by Mr Ladopoulos on behalf of the Independent Child’s Lawyer, amongst his other very helpful submissions, that the Mother has not made out a case as to why X would need a Country V passport, as he is entitled to an Australian passport and an Australian passport would serve for all purposes to do with travel and identification.

15. Mr Ladopoulos points out that there is no evidence presented to indicate that unless a Country V passport is obtained for X by a certain age, he is disentitled to ever apply for one. Accordingly, there is no evidence on either hand to assist me in making an order that is proper in X’s best interest relating to having or not having a Country V passport. There is no evidence from the Mother as to why one is desirable or to X’s advantage or in his best interest. There is no evidence from the Father as to why a Country V passport is not desirable or is to X’s disadvantage or not in his best interest.

16. Accordingly, I decide the issue in line with the submissions made by Mr Ladopoulos on behalf of the Independent Child’s Lawyer. I decline to make the order sought by the Mother, enabling her to apply for a Country V passport for X as the sole applicant in the event that the Father’s consent is sought but refused. Similarly, I decline to make the injunctive order sought by the Father restraining the Mother from obtaining a Country V passport for X until he is 13 years of age.

Conclusion

1. X’s parents have come a long way in their co-parenting of X since the events occurring between 25 April and 16 May 2016. I will make orders for X’s future parenting on the basis that he lives with his Mother and spends increasing amounts of substantial and significant time with his Father, and that the parents have equal shared parental responsibility for him.

2. It will be immensely to X’s advantage as he grows through his childhood toward his adolescence, teens and manhood if his Mother and Father not only continue to cooperate in co-parenting him, but put behind them their differences that are the product of their joint and separate lived experience of their relationship and approach all things to do with X’s parenting with his interests, and only his interests, as the paramount consideration, with their own interests and the interests of others of importance in X’s life being a real but secondary consideration.

I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 30 March 2020