Becker & Waterman
[2022] FedCFamC2F 1611
Federal Circuit and Family Court of Australia
(DIVISION 2)
Becker & Waterman [2022] FedCFamC2F 1611
File number(s): MLC 10632 of 2020 Judgment of: JUDGE GLASS Date of judgment: 28 November 2022 Catchwords: FAMILY LAW – PARENTING – allocation of parental responsibility – where parties have been unable to make joint decisions in relation to the child – whether child should hold a foreign passport in circumstances where the child is a Country B citizen – competing proposals for young child’s time with father Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 61DA, 65DAA, 65DAC Cases cited: Boyle & Zahur & Anor (2017) FLC 93-814; [2017] FamCAFC 263
Lennon & Lennon [2011] FamCA 571
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
Mazorski & Albright (2007) 37 Fam LR 518
MCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 8 November 2022 Date of hearing: 7-8 November 2022 Place: Melbourne Counsel for the Applicant: Mr Stavris Solicitor for the Applicant: James Harris Lawyers Counsel for the Respondent: Ms Swart Solicitor for the Respondent: Northcote Lawyers ORDERS
MLC 10632 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BECKER
Applicant
AND: MS WATERMAN
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
28 november 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged including the watch list order contained in Orders 1 & 2 of the Orders made 18 December 2020 AND IT IS REQUESTED THAT the Australian Federal Police remove the name of the child X born in 2019 (“X”) from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
Parental responsibility
2.The Mother have sole parental responsibility for decisions concerning major long term issues for X.
2022 Christmas travel
3.The Mother be permitted to travel internationally (specifically to Country B) with X in the period from Monday 12 December 2022 until Monday 9 January 2023.
4.The Father spend compensatory time with the child as follows:
(a)from 8.15am Thursday 8 December 2022 until 9.00am Monday 12 December 2022; and
(b)from 5.00pm Tuesday 10 January 2023 until 5.00pm Saturday 14 January 2023.
Parenting arrangements
5.X live with the Mother.
6.X spend time with the Father as follows:
(a)During school terms, from 9 November 2022 until 21 March 2023 on a fortnightly basis as follows:
(i)In Week One - from 8.15am on Friday until 5.00pm on Saturday; and
(ii)In Week Two - from 5.45pm on Thursday until 5.45pm on Friday.
(b)During school terms, from 22 March 2023 on a fortnightly basis as follows:
(i)In Week One - from 8.15am on Friday until 5.00pm on Sunday; and
(ii)In Week Two - from 5.45pm on Thursday until 5.45pm on Friday.
(c)During school terms, from 22 March 2024 until X commences school as follows:
(i)In Week One - from 5.45pm on Thursday until 5.00pm on Sunday; and
(ii)In Week Two - from 5.45pm on Thursday until 5.45pm on Friday.
(d)During school terms, from start of X’s schooling in 2025 and each year thereafter on a fortnightly basis as follows:
(i)In week one – from the conclusion of school on Friday until the commencement of school on Monday (in case Monday is a public holiday, commencement of school on Tuesday); and
(ii)In week two – from the conclusion of school on Thursday until the commencement of school on Friday.
(e)Otherwise as agreed by the parties in writing.
School holidays/special occasions
7.Notwithstanding anything to the contrary in these Orders, and unless otherwise agreed between the parties in writing, X shall spend time with the Father as follows:
(a)In 2022 in the school term holidays, in Week One of the regular term rotation, from 8.15am on Friday until 9.00am on Tuesday;
(b)In 2023 in the school term holidays, in Week One of the regular term rotation, from 8.15am on Friday until 9.00am Wednesday;
(c)Commencing in 2024 for one half of the school term holidays, in the first week of the holidays commencing at 5.45pm from childcare or at the conclusion of school Friday and being 8 nights concluding at 5.00pm Saturday, save that if X is spending Easter with the Father and Easter falls in the term holidays, the Father shall have the half of the holidays which includes Easter Sunday and if X is spending Easter with the Mother, the Father shall have the half which does not include Easter Sunday;
(d)Easter in 2022 and each alternate year, from 5.45pm or the conclusion of school on Holy Thursday until 5.00pm on Easter Monday (and such time shall be included in holiday time where Easter falls in school holidays).
(e)Christmas,
(i)in 2023 and each alternate year thereafter from 8.45am on 24 December until 8.45am on 28 December; and
(ii)in 2024 and each alternate year thereafter from 8.45am on 28 December until 5.00pm on 1 January.
(f)During the long/summer school holidays:
(i)In 2023, from 8.45am Friday 6 January until 9.00am Wednesday and each alternate fortnight thereafter;
(ii)Commencing 2024 and each year thereafter, for half of the holidays unless otherwise agreed, being alternate week about, commencing after the Christmas arrangements conclude at 5.00pm on 1 January and upon X turning 8 years old, a block of half the holidays calculated as commencing at 5.00pm on 1 January each year.
(g)On X’s birthday:
(i)If on a childcare/school day from 3.30pm until 6.00pm if not otherwise in the care of the Father overnight that day;
(ii)If on a non-child care/school day from 8.45am until 1.00pm if not otherwise in the care of the Father overnight that day.
(h)On the Father’s birthday if X is not otherwise in his care on the birthday:
(i)If on a childcare/school day from 3.30pm until 6.00pm;
(ii)If on a non-childcare/school day from 8.45am until 1.00pm.
(i)On Father’s Day from 8.45am until 5:00pm; and
(j)Such other or further times as agreed in writing.
Suspension
8.For the avoidance of doubt, the regular term time in Week One and Week Two that X is to spend with the Father pursuant to Order 6 hereof shall be suspended during the Victorian Government Gazetted school term and long summer school holidays and shall resume in the same cycle as if the relevant holiday period had not intervened.
9.X time with the Father is suspended on special days with the Mother as follows:
(a)For Easter in 2023 and each alternate year, from 4.15pm or the conclusion of school on Holy Thursday until 5.00pm on Easter Monday (and such time shall be included in holiday time where Easter falls in school holidays).
(b)For Christmas:
(i)in 2022 and each alternate year thereafter from 8.45am on 24 December until 8.45am on 28 December;
(ii)in 2023 and each alternate year thereafter from 8.45am on 28 December until 5.00pm on 1 January.
(c)On X’s birthday:
(i)If on a school day from 3.30pm until 6.00pm if X is otherwise in the care of the Father for overnight time;
(ii)If on a non-school day from 8.45am until 1.00pm if X is otherwise in the care of the Father for overnight time on his birthday.
(d)On the Mother’s birthdays if X is not otherwise in her care:
(i)If on a school day from 3.30pm until 6.00pm;
(ii)If on a non-school day from 8.45am until 1.00pm.
(e)On Mother’s Day from 8.45am until 5:00pm; and
(f)Such further or other times as agreed in writing.
Changeover
10.Save for where changeover takes place at school, all changeover to occur at McDonald’s C Street, Suburb D, or as otherwise agreed between the parents in writing.
11.In the event either parent is unable to facilitate changeover directly, such parent shall notify the other, as soon as practicable by text message, of the person they have nominated to collect/deliver X on their behalf.
12.The Father is not to follow the Mother and X to their car once changeover has occurred.
Communication
13.Unless otherwise expressly agreed between them in writing, the parties shall communicate with one another as follows:
(a)All non-urgent communication about X’s care, welfare and development by using the parenting application ‘My Family Wizard’ only and no more than one entry per week unless an emergency or an urgent matter has arisen and each parent may in addition provide a single entry in response to a direct request for information from the other parent in their entry;
(b)Any urgent communication about X’s care, welfare and development by text message or telephone if no response to text message;
(c)The parties shall communicate via SMS if they are running late and/or are unable to make the changeover due to traffic/illness etc; and
(d)At all times all communication shall be polite, courteous and respectful.
Education
14.Unless otherwise agreed by the parties in writing, X complete 3 and 4 year old kindergarten at Suburb C Learning Centre.
15.The Mother be at liberty to have X attend the Country B-speaking playgroup “F Centre” located at G Street, Suburb H each Saturday morning he is in the Mother’s care at her expense.
16.Unless otherwise agreed by the parties in writing, in 2025 X shall attend at J School in Suburb E if a place is available and if a place is not available, at K School for his primary education commencing in 2025 and each parent do all things to support an application to each school.
17.The Mother is at liberty to have X attend at the Mother's expense “L School” Country B School program located at M Street, Suburb N for 3 hours each Wednesday from 2.00pm until 5.00pm, and the Mother is at liberty to collect X from school early to facilitate his attendance.
18.Each parent is authorised to:
(a)Request and receive from any childcare, kindergarten or school attended by X copies of all school reports, notices, newsletters, information, photographs, invitations and other documents relating to X’s education at the expense of the requesting party;
(b)Attend all childcare, kindergarten or school events or extra-curricular childcare, kindergarten or school activities for X (whether or not X is living or spending time with that parent) including, but not limited to, school assemblies, concerts, separate parent/teacher interviews, lessons and presentations and the like as are normally attended by parents; and
(c)Be at liberty to provide a copy of these Orders to any childcare, kindergarten or school at which X may attend.
Medical
19.The parents shall forthwith advise the other and keep the other advised as to the name and address of any health professionals (medical, allied or otherwise) that X attends and authorises the other to obtain information and attend upon such practitioner to obtain information about X.
20.Each parent notify the other of any specialist medical, any specialist dental or any counselling referral for X together with details of the proposed specialist and the appointment time and date and each parent be at liberty to consult with such specialist but not to attend the appointment organised by the other unless agreed in writing.
21.The parents be, and are hereby authorised to confer with, attend upon and obtain information about X from any medical practitioner, allied health or other practitioner attended upon by X to obtain information about X’s health.
22.The parents shall:
(a)At the first reasonable opportunity inform the other of any serious illness or injury sustained by X whilst in their care and, further, provide particulars of any treatment received by X together with the location and contact details at which X is a patient.
(b)At the first reasonable opportunity inform the other of any significant health or medical issues suffered by X whilst in their care and provide the other with details as to any medication prescribed (if any);
(c)Each make available to the other any medication prescribed for X to enable the other to administer such medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the parent caring for X at any given time; and
(d)Be at liberty to provide a copy of this Order to any medical or other professional involved with X.
Telephone/Video Communication
23.Unless otherwise agreed in writing, commencing upon X’s attending primary school, X communicate with the Father by telephone each week during school terms from 6.45pm to 7.00pm on Tuesdays with the Father to make the call and the Mother to facilitate X taking the call and having privacy (suitable for his age) to take the call, and upon X attending secondary school, he communicate with the Father in accordance with X’s wishes.
24.If travelling overseas with either parent, X communicate with the other parent by telephone or video call/Facetime each Saturday morning at 11.00am (local time for X) or at other times agreed in writing.
Passports
25.Upon the request of one parent to the other in writing, the parents shall, within 21 days of such written request having been made, do all such acts and sign all documents as may be required to apply for an Australian and Country B Passport for X with the parent who makes the request to be responsible for the payment of any fees.
26.The parents shall thereafter do all such acts and things and sign all such documents as may be required to renew or reapply for X’s passport/s with the parent who makes the request to be responsible for the payment of any fees and if neither party makes the request the passport/s shall lapse.
27.X’s passport/s shall be retained by the Mother save for the periods when the Father is travelling with X outside of the Commonwealth of Australia and for that purpose:
(a)The Mother must provide the child’s passport/s to the Father not less than 14 days prior to the date of departure; and
(b)The Father must return X’s passport/s to the Mother not more than 14 days after the date of return to the Commonwealth of Australia.
28.In the event X’s passport/s is lost, stolen or damaged, then the party who held the passport/s at that time is responsible for replacing the passport in a timely manner and payment of any costs associated with same.
Interstate Travel
29.Each parent shall be permitted to travel interstate with X during any period in which X is in their care, subject to these Orders and subject to compliance at all times with all directions given by the State and Federal Governments (as the case may be) with respect to travel.
30.In the event a parent intends to travel interstate with X, they shall provide written notice to the other as soon as practicable, and where possible not less than 7 days prior to the intended interstate travel and provide an itinerary of the travel including:
(a)The State/s to which X will be travelling;
(b)The method of travel and airlines/ships (including flight/ship details) upon which X is to travel;
(c)The primary address(es) at which X will reside while interstate, including the name, address and telephone number of any hotel/motel/Airbnb;
(d)The date X will depart from and return to the State of Victoria; and
(e)A copy of X’s return ticket (if applicable) not less than 48 hours prior to travel.
31.Commencing 2027, in any year that the Mother has not given notice that she is travelling to Country B with X in the Australian summer holidays and is therefore seeking additional holiday time in that holiday period, the Father shall be permitted to travel to Queensland with X for three weeks each Christmas/long summer holidays (and the Mother shall receive make up time during the next school holiday period), and such time may include Christmas Day by agreement if the child would be otherwise in the care of the Father for that Christmas period, with the Mother to have 4 consecutive nights prior to travel in lieu of the normal Christmas arrangements.
International Travel
32.Each parent shall be permitted to travel internationally with X, subject to these Orders, and subject to compliance at all times with all directions given by the State and Federal Governments, including the Australian Government’s Smart Traveller website, and provided that return travel to Australia is possible and permitted at the time of proposed departure from Australia.
33.In the event either parent intends to travel internationally with X, they shall provide written notice to the other not less than 60 days prior to the intended date of departure and provide an itinerary of the travel including:
(a)The country or countries to which X will be travelling;
(b)The airlines/ships (including flight/ship details) upon which X is to travel;
(c)The primary address(es) at which X will reside while overseas, including the name, address and telephone number of any hotel/motel/Airbnb and a telephone / skype / FaceTime number on which the other parent can communicate with X;
(d)The date X will depart from and return to the Commonwealth of Australia; and
(e)A copy of X’s return ticket not less than 14 days prior to travel.
34.In addition to travel within the time X spends with the Mother pursuant to these Orders, the Mother may notify the Father 60 days in advance of her intention to travel with X for the purposes of visiting her family in Country B for up to five weeks each year (and for this purpose, Christmas travel shall be counted as in the calendar year in which she departs), and for that purpose –
(a)Each alternate year (noting the Father may nominate to travel to Queensland with X for three weeks pursuant to these Orders), the Mother may nominate to travel in the Australian summer school holidays provided that:
(i)The travel is for no more than 5 weeks;
(ii)The travel does not include 24 to 28 December if X is spending Christmas with his Father pursuant to these Orders;
(iii)If the travel includes 28 December to 1 January, the mother provide four consecutive nights makeup time to the Father prior to travel; and
(iv)There is make up time with the Father as agreed, and in default of agreement, in the following March/April school holiday periods, whereby X spends time in both weeks with the Father irrespective of the regular Easter arrangements.
(b)The Mother may nominate to travel in the school term holidays and for that purpose may remove X from childcare/kindergarten for the purpose of travel or from school for up to 10 days of school term, provided that –
(i)The travel is for no more than 5 weeks; and
(ii)There is make up time with the Father as agreed or failing agreement, in the next occurring school holiday period.
35.In the event that the Mother seeks to travel to Country B on an urgent basis for family reasons, she notify the Father and provide details to him as soon as practicable and the Father not unreasonably withhold his consent to X travelling with the Mother.
Other
36.The parties shall keep each other informed of their current residential addresses, telephone numbers and email addresses and where possible provide not less than 14 days prior written notice of any intended change to those particulars.
Non-denigration
37.The parties, their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, rebuking, belittling or otherwise denigrating each other or any member of the other parent’s household to or in the presence or hearing of X and/or from permitting any other person to do so; and/or
(b)Discussing these proceedings in the presence or hearing of X and/or permitting any other person to do so.
Counselling
38.Each parent attend counselling and parenting orders program as recommended by Ms O in the Family Report dated 20 December 2021 and for that purpose each parent is authorised to provide a copy of the Family Report to their treating counsellor and confirmation of enrolment or commencing attendance be provided to the other parent within 30 days of commencement.
39.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Becker & Waterman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, born in 2019. X is now three and half years old.
X’s parents separated in the month following his birth, in 2019, although they subsequently attempted to reconcile their relationship for a few months. Since that separation, X has lived with his mother, Ms Waterman, and spent time with his father, Mr Becker, as agreed between the parties. Currently, X spends time with Mr Becker for one night each week.
It is agreed that X will remain living primarily with Ms Waterman.
Mr Becker now proposes that the parties have equal shared parental responsibility for X and that X now spend time with him for four nights per fortnight, increasing to five nights per fortnight when he commences school in 2025. He seeks to restrain Ms Waterman by injunction from obtaining a Country B passport for X. The other particulars of his application are contained in his Amended Initiating Application filed 3 November 2022.
Ms Waterman now proposes that she have sole parental responsibility for X and that X spend gradually increasing time with his father from two nights per fortnight now, to three nights per fortnight from March next year, and four nights per fortnight from March 2024. She seeks to be at liberty to obtain a Country B passport for X. The other particulars of her application are contained in her Amended Response filed 28 October 2022.
Statutory framework
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth) (“the Act”). I am guided by the objects of that Part and the principles underlying those objects.[1] X’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him.[3] The presumption does not apply if there are reasonable grounds to believe either of his parents have engaged in child abuse or family violence. It may be rebutted by evidence that satisfies me that it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
[3] Family Law Act 1975 (Cth), s 61DA.
If I am satisfied that X’s parents should have equal shared parental responsibility for him, I am required to consider whether X spending equal or substantial and significant time with each of his parents is in his best interests and reasonably practicable.[4]
[4] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
Primary considerations
The benefit to X of having a meaningful relationship with both of his parents
It is agreed that X will live primarily with Ms Waterman and spend increasing time with Mr Becker. At issue is essentially whether X should now spend four nights per fortnight with his father, increasing to five in 2025, or three nights per fortnight from March next year, increasing to four from March 2024.
It is well-established that meaningful in this context is a qualitative adjective and not a strictly quantitative one.[5] On both parties’ proposals, upon X commencing school, he will have the benefit of spending alternate weekends with his father from after school Friday until before school Monday morning. In the other week, Mr Becker proposes that X spend time with him from after school Thursday until 8:15am Saturday morning whereas Ms Waterman proposes the time occur from after school Thursday until before school Friday morning.
[5] Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-405 at [115].
I am not satisfied that the extra Friday night until very early Saturday morning on alternate weekends will significantly impact the quality of the relationship between X and his father. I am also not satisfied that a more rapid increase in X’s time with his father to four nights immediately will have such an effect.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is not either party’s case that X is at unacceptable risk of exposure to harm in the relevant sense in either party’s care, even if Ms Waterman makes disputed allegations of family violence against Mr Becker to which I will return.
Additional Considerations
Any views expressed by X and any factors (such as his maturity or level of understanding) that are relevant to the weight to be given to his views
X is three and a half years old. It is not suggested that he has expressed any views which should be given weight.
The nature of X’s relationships with each of his parents and other people, including any grandparent or other relative
Ms Waterman was observed by Consultant Ms O to be child focused, attentive and appropriate in her interactions with X. Consultant Ms O opines that X has formed a secure attachment with his mother, with that parental relationship being emotionally significant to him.
Consultant Ms O observed interactions between X and Mr Becker that were positive. His responses to X were considered to be child focused, attentive and appropriate with no evident concerns. Consultant Ms O opines that X is familiar with his father and generally enjoys their time together. She considers that X’s attachment to his father is likely to be developing and strengthening, which will be “aided by planned, consistent and age appropriate paternal arrangements.”[6]
[6] Family Report dated 21 December 2021 (“Family Report”), paragraph 47.
Consultant Ms O’s observations and opinions in those respects were not challenged by either party and I accept her opinions as to the nature of X’s relationship with each of the parties. Consistent with those opinions, Ms Waterman agreed that X and Mr Becker love each other and that X enjoys spending time with his father.
X’s paternal grandparents live in Queensland and have had the opportunity to spend time with him on occasions when X has travelled to Queensland with his father and when they have travelled to Victoria.
X’s maternal grandparents live in Country B and have had limited opportunity to spend time with X. I consider X will benefit from having regular opportunities to travel to spend time with them.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to him, to spend time with him, and to communicate with him
Ms Waterman gives evidence that it was suggested to Mr Becker in Court in December 2020 that X spend time with his father each weekend from Friday morning at 8:30am until Saturday afternoon at 5:00pm. She gives evidence that Mr Becker rejected that proposal, saying that once per fortnight was enough time. Ms Waterman’s evidence was not challenged and I accept it. Mr Becker thereby failed to take the opportunity to participate in X’s life each week for longer overnight visits.
Ms Waterman also gives evidence that Mr Becker declined the opportunity to spend time with X each Saturday as he changed his mind about the changeover location, contrary to his earlier agreement to it occurring at the Suburb P Police Station. As a result, X missed out on spending time with his father for half a year. That evidence was also unchallenged and I accept it. Again, Mr Becker failed to take the opportunity to spend weekly time with X.
Mr Becker made no attempt to reconcile his actions in bringing Court proceedings seeking more time with X and declining opportunities that were offered to him to do so. Understandably, Ms Waterman gave evidence that she could not understand why the parties were in Court in those circumstances.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain him
Mr Becker repeatedly gave evidence that he has always paid his child support obligations. However, he was assessed to pay child support from 1 November 2021 to 3 July 2022 at a rate of $8,663 based on his provisional income of $86,187. In fact, his taxable income for the Financial Year ending 30 June 2021 was $387,057. The net result was that his child support for the relevant period was re-assessed at the rate of $20,465 in July 2022.
The increase in Mr Becker’s income during the Financial Year ending 30 June 2021 was the result of his successful online trading. It was his evidence that it never crossed his mind that it might be helpful for Ms Waterman to have the increased child support in real time, that is, at the time Mr Becker was in receipt of substantially increased income. Whilst Mr Becker may have paid child support in accordance with his legal obligations, that it did not occur to him that the mother of his child might benefit from sharing in his substantially increased income at the time he was receiving it, reflects poorly on him.
The likely effect of any changes in X’s circumstances, including the likely effect on him of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom he has been living
X has been living with Ms Waterman since the parties’ separation the month following his birth. Consultant Ms O opines that he is accustomed to primary maternal care. No change to that circumstance is proposed. The parties agree that X’s time with his father should gradually increase.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis
The parties live in neighbouring suburbs in metropolitan Melbourne. It is not suggested there is any practical difficulty or expense associated with X spending time or communicating with his parents.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X to provide for his needs, including emotional and intellectual needs
X presented to Consultant Ms O as well-cared for and nurtured. So much generally reflects well on both parties’ capacities to provide for his needs.
In August 2022, X broke his arm whilst in Mr Becker’s care. He required treatment over several days at the Q Hospital. Mr Becker considered his conduct on the occasion is a “very good example” of how the parties reached agreement and was demonstrative of how his proposed order for equal shared parental responsibility would work. I am not so satisfied, and for reasons that follow, I find that Mr Becker’s conduct reflects very poorly on his capacity to provide for his son’s emotional needs.
X’s time with his father on Friday 5 August was due to cease at 6:00pm. He had taken X to hospital at around 4:30pm or 5:00pm. Ms Waterman arrived at 6:15pm. Mr Becker was then with X. Ms Waterman was not permitted to see X because only one parent was authorised by hospital policy to be with him. Rather than make arrangements to leave X in order for his mother to take over his care, Mr Becker gave evidence that he called her and suggested she try to ask another nurse to let him up to the ward. That suggestion was inconsistent with hospital policy. Ultimately, it was not until 8:00pm that Ms Waterman was able to see X after Mr Becker negotiated with a doctor to breach hospital policy to allow both X’s parents to be with him.
Mr Becker sought to justify his conduct on the occasion by reference to his three year old son that he did not want his father to leave. He gave no evidence of doing anything to assuage his son’s concerns by telling him his mother would be arriving shortly, or asking a nurse to keep an eye on him while the parents changed over. So much was inconsistent with his evidence that he had done everything to accommodate Ms Waterman. His attempts to blame the outcome on the hospital were inconsistent with him taking responsibility not only for complying with hospital policy, but also complying with the Court’s Orders for his time to cease at 6:00pm. That he continued to seek dispensation with compliance with hospital policy reflects poorly on him.
Upon Ms Waterman being allowed into X’s room, she gives evidence of Mr Becker remaining for almost another hour “against the instruction of the hospital and my wishes”. Mr Becker denied that he remained contrary to Ms Waterman’s wishes. However, he did not challenge Ms Waterman’s evidence through his Counsel. I find no basis to generally reject Ms Waterman’s evidence which was given in a straightforward and consistent manner. By contrast, Mr Becker was generally evasive in giving his evidence and repeatedly failed to answer questions asked of him despite multiple directions to do so. I accept Ms Waterman’s evidence.
Ms Waterman gives the following evidence in relation to the interaction between the parties at X’s bedside:
Initially [Mr Becker] was talking about [X] and how the accident happened but eventually the conversation turned into him asking me about my family which made me feel uncomfortable. The conversation then progressed into the upcoming mediation and how he wanted to settle it. [Mr Becker] stated that I "should agree to it as well" as the "lawyers get richer and richer" and I should solve it with him at mediation. [Mr Becker] also disclosed how much his legal fees were. I did not respond to any mediation questions and just said repeatedly, that "it is not appropriate to speak about these topics in front of [X]" and that he should "stop please". Despite my requests, [Mr Becker] continued to discuss our family law matters in the hospital room with [X] present.[7]
[7] Ms Waterman’s Affidavit filed 28 October 2022, paragraph 39(c).
It was not suggested to Ms Waterman that she was mistaken in her recollection. It was put to her that the hospital notes do not record she had been uncomfortable with what happened on that occasion or that Ms Waterman spoke to the social worker about Mr Becker having raised mediation. I am not satisfied that the absence of such a note is inconsistent with her evidence. Mr Becker relies on what he says is an inconsistency between Ms Waterman subsequently stating to a social worker that she is concerned Mr Becker will use a future opportunity to discuss mediation and the fact that he had previously done so. I find no such inconsistency. Further, other hospital notes refer to the “father attempting to discuss parents’ mediation matters at child’s bedside”.[8]
[8] Exhibit A2, page 40.
Mr Becker denied there was then any discussion of family law matters. For reasons to which I have already referred, I generally prefer Ms Waterman’s evidence, and find that Mr Becker did discuss the family law dispute with Ms Waterman at X’s bedside on 5 August 2022. His persistence in doing so despite Ms Waterman’s requests to cease, reflects very poorly on his capacity to provide for his son’s emotional needs at a time when he was hospitalised.
Further complications arose during X’s hospital stay. The following morning, at 6:53am, Mr Becker wrote a text message to Ms Waterman including “Tell X daddy waddy will be coming to visit this morning.”[9] By this time, Mr Becker was well aware of the hospital’s one parent policy. He was also aware of the fact that it was X’s time with his mother pursuant to Court Orders. His assumption that he could visit X without his mother’s agreement reflects poorly on him. Despite Ms Waterman’s consent not having been procured to visit X, he nevertheless attended the hospital requiring staff to decline him entry.
[9] Ms Waterman’s Affidavit filed 28 October 2022, page 149.
On Sunday 7 August, Mr Becker texted Ms Waterman including the following: “I will be coming to visit X at 7pm tonight, as per the parent protocol (and just for 10 minutes).” [10] Mr Becker arrived at 7:30pm to see X while Ms Waterman was in another room. Within two minutes of his arrival, Mr Becker called and texted Ms Waterman, saying that she should come back to X and that he “wants mummy and daddy here”.[11] Rather than focusing on caring for his son, Mr Becker was initially focused on orchestrating a situation whereby both of X’s parents were present in the same room as him. Having used the previous opportunity on Friday night to seek to negotiate parental matters, that focus also reflects poorly on his capacity to provide for his son’s needs.
[10] Ms Waterman’s Affidavit filed 28 October 2022, page 163.
[11] Ms Waterman’s Affidavit filed 28 October 2022, page 165.
Despite Mr Becker’s proposed time frame for the visit, he did not depart within the allocated time. On Ms Waterman’s unchallenged evidence, he stayed until 8:30pm. The hospital’s records reveal that at 8:00pm he was procrastinating leaving. It is recorded at 8:10pm that:
… asked Father directly to leave as he has had his agreed time and more. Father wanting to know specific location of certain toys he had given [X]. Ward staff do not have the toys nor know the location. Father wanted us to ask Mother – was informed we will not engage in conversation about this between him and Mother.
Father followed myself to ward exit, continuously asking about the toys. Was informed he needed to leave. Father refusing, asking to speak with hospital manager. Father was asked to stay in foyer while phone call made. Father refused to exit and stayed on ward.
…
Advised by Nursing Manager not to provide any further updates if Father calls the ward, and to inform Father that ward staff will call him if there are any changes
If Father represents, a code grey should be called
Mother visibly shaken and teary. Reported that while Father was present with [X], he was repeatedly texting her to come to the room. Father had also gone through and unpacked all Mothers belongings from suitcase and bags and put them on the parent bed. Mother would like to see Social Work before [X] is d/c.[12]
[12] Exhibit R1, page 92.
A further file note of the hospital at 1:19am is in the following terms:
Early on the shift, dad had visited [X] on the ward this evening at 1925. Initially planned for a 10 min visit, stretched out to 50mins. Writer had prompted dad to leave the ward as his 10 minute scheduled was up. Dad mentioned that he did not agree to a 10 minute visit. Persistently asking why mum was not in the room, thus explained that only one parent is allowed by the bedside. He requested that writer contact mum to ask her to come back to the room. Again reminded him that only one parent can be by the bedside. Dad was then asking about toys. He mentioned that there was a missing toy, and eventually refused to leave until writer have called mum and asked her about the toy. Writer reported this to the Nurse in charge, and no longer felt comfortable talking to him as he seemed passive aggressive.
Nurse in charge [Ms R] resolved situation with bed manager [Ms S].[13]
[13] Exhibit R1, page 93.
Mr Becker’s oral evidence on the topic focused on what he perceived as a wrong done to him of his bag having been taken. He had previously delivered a bag of items for X which he could not locate. He describes the incident as a misunderstanding in his affidavit, but it clearly became something on which he was fixated at a time when he had an agreed opportunity to meet his son’s emotional needs whilst he was in hospital. Clearly he became incapable of doing so as a result.
Mr Becker maintained in oral evidence that he did not touch anyone’s belongings whilst in the room with X. Ms Waterman gives unchallenged evidence that when she returned to the room, Mr Becker had spread out the contents of her bag, which had been in the room, all over the parents’ bed in the room. He gave no alternate explanation of how that had occurred while he was in X’s room. I find that Mr Becker did go through Ms Waterman’s belongings and laid them out on the bed. Again, this was done at a time when he was to be caring for X.
I find no basis to impugn Ms Waterman’s capacity to provide for X’s needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other relevant characteristics of X
Consultant Ms O considered that X presented well on the day of his interviews and recorded his parents describing him as being in general good health and achieving expected developmental milestones consistent with his age.
If X is an Aboriginal child or a Torres Strait Islander child, his right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents
Mr Becker opposes the issuing of a Country B passport for X. He gave evidence that it is something on which he is “non-negotiable”. It is common ground that X will travel to Country B to visit his maternal family as he has done previously.
When Mr Becker was asked why he opposed the issuing of a Country B passport to X, he answered “if he had a Country B passport, he couldn’t be the Prime Minister of Australia.” He subsequently gave evidence that, whilst he had not read the recent High Court cases on section 44 of the Constitution, he had obtained legal advice to support his conclusion that the issuing of a passport to X would cause him to be in trouble if he wanted to be a member of Federal Parliament.
Mr Becker’s position, said to be informed by legal advice, is fanciful. X is a Country B citizen by virtue of having been born to a Country B mother, and had that citizenship on the day he was born in accordance with Country B law. Mr Becker himself gave earlier evidence to this Court that:
35.In a recent High Court decision it was determined the meaning of the words 'citizen of a foreign power' in section 44(1) of the Constitution. This provision disqualifies people from running for Parliament in two circumstances:
1. First, where that person is, through their own actions, under any acknowledgment of allegiance, obedience or adherence to a foreign power.
2. Second, where under the laws of another country, they are a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.
36. The High Court of Australia has ruled decisively and definitively on this issue of dual citizenship by clearly stating that, "a person will be disqualified under s 44(1) for holding dual citizenship, even if that person had no knowledge of it.”[14]
[14] Mr Becker’s Affidavit filed 16 March 2022, paragraphs 35 and 36.
On Mr Becker’s own evidence of his understanding of the law, X is disqualified from being a member of Federal Parliament as a result of being a Country B citizen by virtue of Country B law. His “non-negotiable” opposition to the issuing of a Country B passport for X is not even rationally based on his own understanding of the operation of Australian law.
Mr Becker also gave oral evidence that a number of senators had to renounce their dual passports to remain in Parliament. On his own evidence, X could similarly himself do so and nevertheless be the Prime Minister of Australia. Mr Becker’s own evidence directly contradicts his other evidence that if a passport is issued to X, he could not be the Prime Minister of Australia. The complete inconsistency between Mr Becker’s own evidence and his “non-negotiable” position reflects very poorly on his attitude to the responsibilities of parenthood.
The issuing of a Country B passport for X is not a matter of mere convenience when Ms Waterman travels with him to Country B. She called expert evidence from a Country B lawyer in the following relevant terms:
In the case a [Country B] citizen travels to [Country B] but does not hold a [Country B] passportand/or is unable to present it at the border, there will be a fine of up to EUR 5,000 according to Section 25, Paragraph 3, No. 2 PassG. There are no exemptions for [Country B] children. [15]
[15] Affidavit of Dr T filed 3 March 2022, Annexure .
Mr Becker sought to challenge that evidence on the basis that Dr T produced a draft report and was asked to omit various aspects in his final report. I find nothing inappropriate in the instructions and exchanges between Dr T and Ms Waterman’s representatives. The opinion was also challenged on the basis that Dr T does not practice in immigration law and that he was not provided with the expert code of conduct. Dr T gave evidence that he is a general solicitor and has familiarity with the matters on which he offered an opinion. Crucially, it was not suggested to him that his reading of the relevant statutory provision was inaccurate. I am not satisfied that the circumstances in which Dr T’s opinion was obtained or that his absence of a specialised practice in immigration law lead to the conclusion that his opinion is inaccurate. I am also not satisfied that minimal weight should be given to it, particularly in light of the absence of qualified contradictory evidence.
Mr Becker gave oral evidence he had obtained his own legal advice in relation to the issue, but adduced no such evidence before the Court. His own evidence was inconsistent, variously asserting there is a “grey area” and otherwise relying on the fact that Ms Waterman had previously travelled to Country B with X and not been fined, in support of his position. He admitted that the Country B consulate’s advice was not that X did not need a Country B passport.
Mr Becker’s opposition to the issuing of a Country B passport for X leaves his mother in the position of breaching Country B law each time she travels to Country B with him as is agreed between the parties. That fact is not remedied by Mr Becker’s offer to pay any fine that issues or write a letter to explain the position.
Mr Becker’s “non-negotiable” proposal to restrain Ms Waterman from obtaining a Country B passport for X is not only unsupported by his own evidence, but it has the effect of requiring Ms Waterman to break the law of the country of which she is a citizen. So much reflects very poorly on his attitude to the responsibilities of parenthood.
Mr Becker has travelled on three occasions to Queensland with X, without advising Ms Waterman in advance. So much also reflects poorly on his attitude to the responsibilities of parenthood by depriving X’s mother of information as to his whereabouts. The same conclusion is reached with respect to the lie Mr Becker told Ms Waterman about why his attendance at X’s child care had been denied.
Mr Becker criticised Ms Waterman for sending X to child care instead of allowing him to be cared for by his father during COVID-19 lockdowns. Ms Waterman gave evidence that she considered it was preferable to do so for X’s structure, stability and routines, and the avoidance of ad hoc changes to his arrangements. In circumstances where X was spending time with his father in accordance with Court Orders, I do not consider that Ms Waterman’s adherence to those Orders demonstrates a poor attitude to the responsibilities of parenthood.
I do not join in Mr Becker’s criticism of Ms Waterman failing to agree to participate in multiple mediations proposed by him. She participated in Family Dispute Resolution prior to the commencement of the proceedings and mediation approximately three months prior to the final hearing.
Ms Waterman gave oral evidence of having lengthy discussions with Police in relation to whether Mr Becker should be charged with breaching the Intervention Order by sending messages to her. I do not consider her decision to proceed with the report reflects poorly on her attitude to the responsibilities of parenthood, given the advice she received from Police.
I am also not critical of Ms Waterman nominating a friend as X’s next of kin. She gave evidence that the notion was foreign to her and she thought the question asked for someone other than X’s father to be nominated in the event Ms Waterman was late and could not be contacted for some reason.
It is to Ms Waterman’s credit that after Mr Becker was banned from attending X’s child care, she made arrangements to collect X from childcare and transport him to the changeover location approximately ten minutes later on alternate Fridays to facilitate X’s time with his father.
Any family violence involving X or a member of his family
Mr Becker accepted that in October 2018, he became overly upset over incidental things resulting in numerous arguments. Although Mr Becker denied it, Ms Waterman’s evidence that he subjected her to daily insults was not challenged. Her evidence that she found Mr Becker’s behaviour towards her controlling and difficult to cope with was also unchallenged, as was her evidence that there have been many occasions where she felt intimidated and scared at changeover. I accept Ms Waterman’s evidence, even if Mr Becker gave oral evidence that he considered she was pretending to be afraid of him.
Ms Waterman gave oral evidence that she was scared by Mr Becker’s behaviour at X’s bedside at the Q Hospital on 5 August 2022. She was scared by his repetitive questions of her, that he did not stop and that he did not leave. Ms Waterman also gave evidence that she was really worried and scared when Mr Becker failed to leave within the 10 minutes he had proposed to see X in the evening of 6 August 2022 and tried to call her. That evidence was not challenged by Mr Becker and I accept it. I have already referred to the hospital’s records recording Ms Waterman being visibly shaken and teary. Mr Becker’s behaviour caused Ms Waterman fear and accordingly meets the statutory definition of family violence.[16]
If a family violence order applies, or has applied, to X or a member of X’s family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
[16] Family Law Act 1975 (Cth), s 4AB.
In March 2020, Ms Waterman successfully applied for an Intervention Order protecting herself and X from Mr Becker. Mr Becker breached the Order on two occasions by sending messages to Ms Waterman. His criminal charges for doing so were resolved by way of a Diversion.
Mr Becker himself applied for an Intervention Order against Ms Waterman which was struck out. The application itself recorded Mr Becker thought “equal measures and conditions need to be placed” on both parties.[17] Mr Becker subsequently gave oral evidence that he took out the Intervention Order because Ms Waterman did not tell him the first day X started childcare. Both stated aims for his application reflect poorly on Mr Becker.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
[17] Mr Becker’s Affidavit filed 11 October 2022, page 16.
For reasons upon which I will expand, I consider the likelihood of further litigation to be increased in the event an order for equal shared parental responsibility is made. I am otherwise not satisfied that other orders proposed will significantly impact upon the likelihood of further proceedings.
Any other relevant fact or circumstance
Not relevant.
Parental responsibility
Mr Becker proposes that the parties have equal shared parental responsibility for X. I am to apply a presumption that such an order is in X’s best interests.[18] However, the presumption is rebutted by evidence that satisfies me that it is not in X’s best interests for his parents to have equal shared parental responsibility for him.[19]
[18] Family Law Act 1975 (Cth), ss 61DA(1).
[19] Family Law Act 1975 (Cth), ss 61DA(4).
An order for equal shared parental responsibility is taken to require decisions about major long term issues to be made jointly, and to require each of X’s parents to consult each other in relation to the issue and make a genuine effort to come to a joint decision about it.[20] Implicit in the making of an order for equal shared parental responsibility is a finding that the parties can or will comply with those mandatory requirements.[21]
[20] Family Law Act 1975 (Cth), ss 65DAC.
[21] Boyle & Zahur & Anor (2017) FLC 93-814 at [22].
Mr Becker submits that the parties have agreed on which school X should attend, including high school. That submission is inconsistent with the parties’ competing proposals for X to attend different high schools. Mr Becker further submits there have been considerable discussions in relation to high school. Notably, those considerable discussions have not resulted in agreement. Importantly, Mr Becker’s submission is consistent with Ms Waterman’s unchallenged evidence that the parties cannot make joint decisions about X without assistance from legal practitioners, even for simple care arrangements.
Mr Becker further submits that aside from the issues of the allocation of parental responsibility and the issuing of a Country B passport, the parties would have been able to reach agreement about other disputed areas had they attended mediation. That submission is inconsistent with the parties’ previous attendances upon Family Dispute Resolution and Court-ordered mediation in August this year. There is no evidence any agreement was reached on those occasions. Mr Becker also submits that the parties have been through the litigation process, they know their mediation responsibilities and are most likely to resolve issues. The evidence does not support the drawing of such an inference.
Mr Becker gave evidence that a very good example of the parties sharing parental responsibility is when they reached agreement with respect to X’s broken arm. He also considered that he thought they, as X’s parents, had handled the situation pretty well. His view is contradicted by the findings I have already made with respect to his conduct during the time X was hospitalised.
The evidence before me is that after extensive negotiations at Court on the days allocated for a final hearing in January 2022, only issues relating to the allocation of parental responsibility, whether a Country B passport be obtained for X and the duration of his annual travel to Country B were anticipated to be outstanding. For that reason, the matter was fixed for a half day hearing in March. Mr Becker subsequently resiled from other agreements reached, with the consequence that the trial was vacated and re-listed for a full two days. Mr Becker submits that is not sufficient for me to be concerned that these parties will not reach agreement in the future. Respectfully, that is “not a satisfactory substitute for the rational synthesis of the findings about the parties’ intractable and probably enduring conflict with their consequent legal obligations under section 65DAC”.[22]
[22] Manifold & Alderton (2021) FLC 94-015 per Austin J at [109].
Consultant Ms O opines that the parties’ communication remains difficult, remains stressful and appears now to be fairly entrenched, which presents challenges when decisions need to be made. Ms Waterman gives the following evidence:
I have no confidence that [[Mr Becker]] and I will be able to effectively communicate about any decisions regarding [X] as any suggestion or proposal I make is always firmly rejected by [[Mr Becker]]. In the event that [[Mr Becker]] and I continue to share equal parental responsibility, I fear that we will continue being in and out of mediation or Court.[23]
[23] Ms Waterman’s Affidavit filed 28 October 2022, paragraph 32.
I am satisfied that the history of the parties’ intractable and enduring conflict, amply establishes her fear and lack of confidence. Mr Becker has failed to engage in the specific counselling recommended by Consultant Ms O to assist him in developing more of an understanding of the impact of his communication on others. His “non-negotiable” position of requiring Ms Waterman to break Country B law when travelling to Country B with X supports Ms Waterman’s evidence that he fails to accept views besides his own.
Consultant Ms O observed that communication between the parties was limited and caused the parties anxiety and stress. She opines that the communication she has seen could very well have an emotional impact upon Ms Waterman. She gave the following oral evidence:
I think what has been demonstrated both at the time I saw the parties but continuing this year, is this constant challenge even to make simple decisions about changes to practical arrangements. The bigger decisions are equally, it appears to me, difficult and emotionally challenging for the mother, and I am not sure… I don’t have confidence that the father understands that the style of his communication can be perceived as fairly challenging in nature.
It is not in X’s best interests for his parents to continue to be embroiled in ongoing disputes about major long term issues affecting him. Consultant Ms O opines that X will benefit from a lack of exposure to parental conflict. I have no confidence parental disputes could be resolved between the parties, even with mediation. As Mr Becker himself submits, an order for equal shared parental responsibility will lead to a likelihood that the parties will end up back in court and it will give them fuel to do so. That likelihood is not in X’s best interests and contrary to the mandatory consideration prescribed by paragraph 60CC(3)(l) of the Act.
I conclude that an order for equal shared parental responsibility is not in X’s best interests. The statutory presumption is accordingly rebutted.
I accept that to exclude Mr Becker from decision-making in relation to major long-term issues affecting X is a very significant step and a serious interference with fundamental rights.[24] However, to leave both parties with parental responsibility would continue to expose X to the risk of further disputation and litigation in relation to decisions for him. I consider that risk justifies the relevant interference.
[24] Lennon & Lennon [2011] FamCA 571 at [108].
Mr Becker submits that an order for sole parental responsibility will invite further litigation because Ms Waterman has been totally inflexible in facilitating reasonable time between X and his father. However, it is not suggested that Ms Waterman has failed to comply with interim parenting orders that have been in operation since October 2020. Rather, her purported total inflexibility is said to be demonstrated by her failure to agree to X being cared for by his father in lieu of attending child care during periods of COVID-19 pandemic restrictions. I do not accept that her ongoing compliance with Orders of the Court, intended to quell the interim disputes between the parties as to X’s time with his father, leads to the conclusion that an order for sole parental responsibility will invite further litigation.
Mr Becker does not contend that Ms Waterman will exercise parental responsibility adversely to X’s best interests. I am satisfied that she will make decisions in those interests. I determine it is in X’s bests interests for sole parental responsibility for him to be vested in Ms Waterman.
Ms Waterman submits it is strictly unnecessary to make the orders she proposes in relation to X’s schooling. That may be so, but I consider the parties should be held to their agreed position with respect to the choice of kinder and primary school at this stage. Given there is no such agreement in relation to high school, I consider X’s best interests are met by no order being made at this stage in relation to it.
Ms Waterman proposes that X attend the L School, Country B School program for three hours each Wednesday afternoon from 2:00pm until 5:00pm. She anticipates X will miss two classes in the afternoon from his usual school to attend the program. Mr Becker opposes X attending the program. He ultimately did agree that he would facilitate X’s attendance at a Country B speaking playgroup on Saturday mornings. However, it remained Ms Waterman’s position that X ought to attend a more formal Country B school program.
Consultant Ms O gave evidence that she had no particular negative view of Ms Waterman’s proposal. She considered it more important that the parties agree on the primary school X is to attend. She did consider that if there was an option for X to attend a Saturday Country B school that would be a more reasonable proposition from Year 1 onwards. There is no evidence before me that such an option is available. The Saturday Country B program proposed by Ms Waterman is only a playgroup for three and four year olds. It is not akin to the L school program which is focused on reading, writing, spelling and grammar taught by qualified Country B speaking teachers.
Ms Waterman’s evidence that she would ensure X makes up for any work missed as a result of him attending L School was not challenged. Certainly she has the professional capacity as an educator herself to do so. Given Ms Waterman’s unchallenged evidence that she has respected Mr Becker’s opposition to her ideal of X attending the bilingual school where she currently works, I am satisfied that the alternative proposal for X to attend L School is in his best interests. I am fortified in that conclusion by Ms Waterman’s uncontradicted evidence of the advantages to X of more formal Country B instruction.
Conclusions
Country B law requires X to present at the Country B borders with a Country B passport. I am not satisfied his best interests are met by requiring Ms Waterman to break the law of her home country in order to travel to Country B as it is agreed she can do. I am not satisfied that the risk of X being retained in Country B contrary to Orders of this Court is unacceptably increased by a Country B passport issuing for him. Ms Waterman’s evidence that she has no intention of moving to Country B with X was not impugned. I consider it to be in X’s best interests for a Country B passport to issue and for his passports to be retained by Ms Waterman with whom he will primarily reside.
Somewhat curiously given the plethora of differences between the parties’ respective proposals, Mr Becker submits that all the other orders proposed by Ms Waterman are agreed apart from those relating to the issuing of a Country B passport and the question of sole parental responsibility. When that submission was explored, it became apparent that a multitude of other issues remained for determination and no part of Mr Becker’s inconsistent applications were abandoned. Nevertheless, no substantial submissions were made on Mr Becker’s behalf with respect to the other disputed issues. Despite the indication of his counsel, I assume that Mr Becker does not agree with the other orders proposed by Ms Waterman.
As has been observed, Ms Waterman proposes a more gradual introduction of X’s increased time with his father and Mr Becker proposes that X ultimately spend five nights per fortnight with him rather than the four proposed by Ms Waterman. Although Consultant Ms O had recommended an increase to five nights per fortnight in her report, she gave oral evidence that she did not have any particular dispute with Ms Waterman’s proposal. She gave evidence that she considered the 9:5 split initially proposed was not an unusual parenting arrangement once X starts primary school. Her evidence does not satisfy me there is any significant reason to prefer a five night per fortnight proposal over a four night per fortnight proposal.
The parties are in agreement that X ought spend alternate weekends with Mr Becker from Friday afternoon until Monday morning. Ms Waterman proposes that in the other week, X spend Thursday afternoon to Friday morning with Mr Becker. Mr Becker proposes that in the other week, X spend from Thursday afternoon until 8:15am Saturday with him. Consultant Ms O gave evidence that she was not supportive of a Saturday changeover, opining that both parents need a full weekend. I am not satisfied that it is in X’s best interests to be deprived of having a full weekend with his mother each alternate weekend. I accordingly prefer Ms Waterman’s proposal which will afford X the opportunity to spend time with both of his parents in a regime that satisfies the statutory definition of substantial and significant time.[25]
[25] Family Law Act 1975 (Cth), ss 65DAA(3).
Consultant Ms O recommended that X, from the age of three, have two nights with his father in one week and one night with his father in the other week. That recommendation was not challenged. It has not yet been implemented. Ms Waterman proposes that arrangement commence in March next year, whereas Mr Becker proposes that X immediately start spending three nights with him in one week of each fortnight and one night in the other. The evidence does not satisfy me that four nights per fortnight are now in X’s best interests contrary to the expert recommendation. Whilst it might otherwise have been desirable to implement the recommendation sooner, given X’s upcoming travel to Country B and alternative summer arrangements, I am satisfied that Ms Waterman’s proposal for the more gradual increase in X’s time with his father is in his best interests. As previously opined by Consultant Ms O, Mr Becker’s proposals are “more suitable for an older child rather than a young pre-schooler”.[26]
[26] Family Report, paragraph 48.
It is agreed that X will travel to Country B in the upcoming school holiday period from 12 December 2022 until 9 January 2023. Mr Becker proposes that he have compensatory time from 10 January 2023 until 26 January 2023. Ms Waterman proposes compensatory time occur from 8 December 2022 until 12 December 2022 and 10 January 2023 until 14 January 2023. Consultant Ms O recommends that “[t]ime during school holidays when X is a pre-schooler to be not more than a total of four overnights in a block period”.[27] That opinion was not challenged and I find no basis to reject it. I conclude that it would not be in X’s best interests to spend periods of time extending beyond 4 nights per fortnight with his father during the coming summer holiday period. Whilst Mr Becker indicated that he would be working on the days in December proposed by Ms Waterman, Ms Waterman also works during the week and I consider it would be in X’s best interests to have the opportunity to spend an extended block of time with his father prior to travelling to Country B. It is of course open to Mr Becker not to exercise that available time if that be his preference.
[27] Family Report, paragraph 52.
The other orders proposed by Ms Waterman for the incremental increase in X’s holiday time with his father are consistent with Consultant Ms O’s recommendations and I find them to be in his best interests. Both parties propose X spend very similar time with his parents on special occasions. I consider X’s best interests are met by being handed over at 8:45am on such days given changeover is agreed to be a location away from the parties’ residences. I prefer the orders proposed by Ms Waterman for X’s communication with his parents which precisely specify when it is to occur.
Mr Becker proposes that the parties generally communicate by email. Ms Waterman proposes that they use an Application to do so. Consultant Ms O recommended the use of such an Application which I consider will minimise future difficulties with communication between the parties and accordingly be in X’s best interests.
I find no warrant to limit Ms Waterman’s travel with X to Country B to alternate years. It is in X’s best interests to have the opportunity to spend extended time with his paternal family in the event he does not travel to Country B to see his maternal family as proposed by Ms Waterman. Both parties should be given advance notice if X is to be taken out of the State. I am not satisfied the order proposed by Mr Becker to have liberty to re-apply for an Airport Watch List Order is consistent with the making of final parenting orders.
It is unnecessary to make the first notation Ms Waterman proposes to define school holiday periods which are otherwise defined in the orders which I find to be in X’s best interests. Whilst it is desirable for X not to be exposed to parental conflict at changeover, I am not satisfied that it is in his best interests for his parents to be restrained from discussing any matters relating to him on that occasion as is proposed by Ms Waterman. Mr Becker made no submissions in support of the notations he sought be made to the Orders. I am not satisfied it is appropriate to note those matters which would have substantive effect.
It is in X’s best interests for his parents to attend upon counselling and complete a Parenting Orders Program as recommended by Consultant Ms O. Other differences between the parties’ respective proposals were very minor and not the subject of either submission or evidence by them. I otherwise prefer Ms Waterman’s proposals which are clearer and therefore less likely to lead to further conflict between the parties.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 28 November 2022
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