Bobal & Bobal
[2021] FCCA 1851
•11 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bobal & Bobal [2021] FCCA 1851
File number(s): BRC 14871 of 2018 Judgment of: JUDGE SPELLEKEN Date of judgment: 11 August 2021 Catchwords: FAMILY LAW – parenting – final hearing – one child of the marriage – both parents seek an order for sole parental responsibility and for the child to live with them – allegations of family violence towards mother perpetrated by father – overseas travel – best interests Legislation: Family Law Act 1975, ss.4AB, 60B, 60CC, 61DA, 65DAA Cases cited: Carlson & Fluvium [2012] FamCA 32
MRR v GR (2010) HCA 4
Number of paragraphs: 91 Date of last submission/s: 4 December 2020 Date of hearing: 1 – 3 July and 3 & 4 December 2020 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Ms Minnery Solicitor for the Respondent: Stone Group Lawyers ORDERS
BRC 14871 of 2018 BETWEEN: MR BOBAL
Applicant
AND: MS BOBAL
Respondent
ORDER MADE BY:
JUDGE SPELLEKEN
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS:
1.That all previous Parenting Plans and Orders be discharged.
Parental Responsibilities
2.The mother have sole parental responsibility for the child X born in 2015 (“the child”).
3.The mother shall:
(a)Consult with the father by email in respect to all “major long-term issues”, as that expression is defined in the Family Law Act 1975 for the child;
(b)Seek and consider the father's opinion in respect of the major long-term issues in question. The father is to respond to the mother by email within seven (7) days of receipt of the mother's communication advising whether he agrees with the mother's proposal or puts forward an alternate proposal and if so the reasons for his alternate position; and
(c)Inform the father of the outcome of her decision in respect of the major long-term issue in question.
4.That if no agreement can be reached between the parents in respect of a “major long-term issue” then the mother is to make the final decision.
Live with and spend time with arrangements
5.That the child live with the mother.
6.That the child spend time with the father as follows:
(a)Each alternate weekend from after school Friday until the commencement of school on Monday;
(b)During the Queensland gazetted school holiday periods as follows:
(i)In 2021:
A.September/October school holiday period for five (5) nights being the last five (5) nights of the school holiday period concluding at 5.00pm on the day before school recommences; and
B.December/January school holiday period for five (5) nights in the first, third and fifth weeks of the school holiday period.
(ii)From 2022 and thereafter, for the Term 1, 2. 3 and 4 school holiday periods:
A.The child will spend half of each school holiday with the Father. being the first half of each period with the Father in even numbered years and the second half in odd numbered years: and
B.The child will spend half of each school holiday with the Mother, being the first half of each period with the Mother in odd numbered years and the second half in even numbered years.
Telephone Communication
7.That the child is to communicate with the father by telephone each Wednesday between 6:00pm and 6:30pm when the child is in the mother’s care, with the father to initiate the communication to a phone number provided by the mother in writing.
8.The child is to communicate with the mother by telephone each Saturday between 6:00pm and 6:30pm when the child is in the father's care, with the mother to initiate the communication to a phone number provided by the father in writing.
9.Each parent shall:
(a)Ensure that the child is available to receive the telephone call;
(b)Arrange for the child to return the telephone call to the other parent on the following night if, for any unforeseen reason, the communication is missed; and
(c)Ensure that the child has privacy during the conversation and that the conversation not occur on speakerphone and neither parent shall record the conversations.
Special days
Indian religious, traditional celebrations and festivals - Diwali, Navratri and Janmashtami
10.For the Indian religious, traditional celebrations and festivals being Diwali, Navratri and Janmashtami, the child's birthday, the mother's birthday and the father's birthday the child shall spend time with the parents as follows:
(a)Should the day fall on the weekend or a non-school day, the child shall spend time with the parent with whom he does not wake up with between 12:00pm and 6:00pm on that day; and
(b)Should the day fall on a school day, the child shall spend time with the parent with whom he does not wake up with between 3:00pm and 6:00pm on that day.
Father’s Day
11.For Father's Day, should Father's Day not fall during a period in which the child is spending time with the father pursuant to the terms of this Order, then the child is to spend time with the father on Father's Day from 9.00am until the commencement of school on the Monday after Father's Day
Mother's Day
12.For Mother's Day should Mother's Day not fall during a period in which the child is living with the Mother pursuant to the terms of this Order, then the child is spend time with the Mother on Mother's Day from 9.00am until the commencement of school on the Monday after Mother's Day
Changeovers
13.Changeover shall take place at the child's school on the days the child attends. If the child is not attending school changeover is to take place at the McDonalds Family Restaurant located at B Street, Suburb C.
Overseas travel, passport and Overseas Citizen of India card/document
14.Within seven (7) days of the date of these Orders the father shall do all acts and things including signing all documents so as to cause his solicitors Simonidis Steel Lawyers to release and provide the child's passport to the mother.
15.Within seven (7) days of the date of these Orders the father shall do all acts and things including signing all documents so as to cause his solicitors Simonidis Steel Lawyers to release and provide the child's Overseas Citizen of India card/document to the mother.
16.That pursuant to Section 11b(b)(i) of the Australian Passports Act 2005 (Cth), the child X born in 2015, is permitted to travel internationally.
17.The mother MS BOBAL if necessary is authorised to apply for an Australian passport for the child X born in 2015.
18.The mother is to be responsible for the safe custody of the child's passports (save for when the child is permitted to travel pursuant to these Orders) and the father is to do all things to return the child’s passports to the mother forthwith and within twenty-four (24) hours of the child’s return to Australia following any travel.
Child’s overseas travel with the mother and father
19.Before the mother or father are allowed to remove the child from the Commonwealth of Australia to any country which is a signatory to The Hague Convention or India the parents are to apply to have this Order resealed in India and first await the outcome of that application. Each parent is to bear their own costs of that application.
20.The mother and father are at liberty to take the child out of Australia for holidays and other short periods of time subject to the following and not before 2022:
(a)Unless otherwise agreed in writing between the parents the mother and father are not permitted to travel with the child to any country which is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction except for India:
(b)Unless otherwise agreed in writing between the parents:
(i)The duration of any overseas trip will not exceed one (1) week in the case of the Term 1. 2 and 3 school holiday periods and three (3) weeks in the Term 4 school holiday period.
(c)The travelling parent is provide to the other parent, in writing, with the following at least three (3) months prior to the first intended day of travel (and where less than three (3) months’ notice is given, only if the non-travelling parent is agreeable), with such notice to include:
(i)A draft itinerary showing the departure and return dates, the country or countries to which the travelling parent and child will travel and the approximate dates on which the child will arrive and depart each country;
(ii)Details of the proposed flights;
(iii)A phone number and address at which the travelling parent and the child can be contacted in each country.
(d)At least thirty (30) days prior to the child’s travel out of Australia with the travelling parent, that parent pay sixty thousand dollars ($60,000) surety into the bank account nominated by the non-travelling parent. The surety held in the non-travelling parent’s bank account is to be released to the other parent upon the child's return to Australia and the return of the child's passports to the mother.
21.The travelling parent is to provide to the other parent a copy of the airline tickets and full travel itinerary for the child not less than fourteen (14) days prior to departing Australia.
22.The travelling parent is to advise the other parent forthwith and within twenty-four (24) hours of any changes to the details in Order 21.
23.The travelling parent is to ensure that the child is able to contact the other parent as reasonably requested by the child.
24.The non-travelling parent is at liberty to communicate with the child by phone, Skype, FaceTime or similar means, on at least two (2) occasions per week during the period of travel and the travelling parent is to ensure the child is available to receive the call.
25.If both parents have arranged overseas trips for the child for the same period then, unless the parents agree otherwise, each parent can only travel with the child when he is due to be with them pursuant to this Order. The parent who provides the notice in accordance to Order 20 to the other parent first will be permitted to travel with the child overseas for the relevant period.
26.In the event the child fails to return to Australia following his travel with the travelling parent on or before the date provided in the authenticated consent, the non-travelling parent is hereby entitled to use the surety to cover any airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the non-travelling parent to have the child returned to Australia.
Authenticated consent
27.Upon the mother and father’s compliance with:
(a)Order 20 and 21 of these Orders, the mother and father are to do all such acts and things to provide to the Australian Federal Police, their authenticated consent and for such purpose the following shall apply:
(i)The authenticated consent must be in writing;
(ii)It must state clearly the date upon which the child is to depart Australia and the date upon which the child is to return to Australia:
(iii)That the travelling parent has complied with the conditions set out in these Orders;
(iv)It must be signed by both the mother and the father;
(v)The mother and father’s signatures must be witnessed by a Justice of the Peace (Qualified) or Australian Legal Practitioner who is to confirm on the authenticated consent that they have viewed either a valid, unexpired Australian Passport or valid Australian driver's license for each of the mother and father upon them each signing the document;
(vi)Once signed, the authenticated consent must be provided to the Australian Federal Police forthwith by email ([email protected] and copied to both parents) or such other means as directed by the Australian Federal Police; and
(vii)Thereafter, if required, the parents are to do all acts and things and sign all documents as directed by the Australian Federal Police and co-operate with the Australian Federal Police, to ensure the said child's name is temporarily lifted from the Family Law Watchlist to enable the travel to take place.
Family Law Watchlist
28.That:
(a)Until further Order, or in the absence of any further Order subject to the authenticated consent (as defined in Order 27 of these Orders) of all parents required to provide consent by Part VII of the Family Law Act 1975, each party MR BOBAL born in 1981 and MS BOBAL born in 1987 and their servants and agents be and are hereby restrained by injunction, (other than with the authenticated consent of these Orders), from removing or attempting to remove or causing or permitting the removal of X born in 2015 from the Commonwealth of Australia until the said child is eighteen (18) years of age;
(b)Other than with authenticated consent in accordance with the Orders, X born in 2015 be and is hereby restrained from leaving the Commonwealth of Australia;
(c)AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
Exchange of information
29.The father is to keep the mother informed at all times of his address, mobile telephone number and email address and is to inform the mother in writing (by text message or email) of any change within twenty-fours (24) hours of any change.
30.The mother is to keep the father informed at all times of her mobile telephone number and email address and is to inform the father in writing (by text message or email) of any change within twenty-fours (24) hours of any change.
Medical issues
31.That the parents inform the other immediately by telephone or text message should the child suffer an illness (other than minor childhood ailments), be hospitalise or should any major injury occur while the child is in their care with such notification to include the name and details of any relevant medical practitioner or institution.
32.That each parent will keep the other informed of the names and addresses of any treating medical or other health practitioner/s who treat/s the child. The father is to use the General Practitioner and/or other health practitioners the mother uses for the child. The mother is to keep the father informed in the writing of such health practitioners.
33.That this paragraph is an Authority for either parent to obtain from any treating medical practitioner, hospital and/or healthcare professional any information concerning the health of the child, at the expense of the parent requesting such information and/or documents.
Parties’ communication
34.The parents use their best endeavours to personally communicate with one another by email in relation to all parenting issues, inclusive of the child's social events except in the event of any urgent circumstances surrounding the child, in which case the parents may contact each other by SMS text message or telephone. The mother and father's communication is to be in a civil manner.
Authority education and extra-curricular activities
35.This paragraph shall be sufficient authority for any educational institution or extra- curricular organisation attended by the child, to provide both parents with information about the child's educational progress and other school related activities, copies of school reports, school photographs, school correspondence, school newsletters, certificates and awards obtained by the child at the requesting parent's cost.
Extra-curricular activities
36.Neither parent is to enrol the child into extra-curricular activities that fall during the time the child is in the care of the other parent unless otherwise agreed in writing between the parents.
37.As to the agreed extra-curricular activity that the child is enrolled in, the parent who is caring for the child when the extra-curricular activity is to occur is take the child to his activity so that the child can attend and continue to participate.
38.Unless otherwise agreed to in writing by the mother and father, only the parent who is caring for the child when the extra-curricular activity or school event to which parents are invited to attend is to take the child and to attend the activity.
Injunctions and restraints
Video recording the Mother
39.The father is prohibited from video recording or engaging another person to video record the mother.
Foreign/overseas parenting applications
40.That the mother and father are restrained and an injunction is issued restraining the mother and father from filing any application for any parenting matters in any foreign/overseas courts.
Non-denigration
41.The parents whilst in the hearing or presence of the child:
(a)Not speak disrespectfully of the other parent:
(b)Not speak in a manner that denigrates or insults the other parent: and
(c)Use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the hearing or presence of the child.
42.The parents whilst in each other's presence or while facilitating telephone communication involving the child or between themselves:
(a)Shall speak to each other respectfully:
(b)Shall treat each other in a civil and courteous manner: and
(c)Shall not discuss proposed arrangements with the child prior to discussing them with the other parent where the issue requires the consent of or notice of the other parent.
Resealing Order in India and Jurisdiction
43.The mother and father do all acts and things including signing all documents so as to apply for a copy of this Order to be resealed in India in the Family Courts of India. Each parent is to bear their own costs and incidentals to such application.
Finalising matter
44.That all outstanding applications be dismissed.
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 under the pseudonym Bobal & Bobal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE SPELLEKEN
INTRODUCTION
I am asked to decide the living arrangements for a little boy, X who turned six this year, he was born in 2015. X’s parents also ask that I decide which of them should have sole parental responsibility given neither propose an order for equal shared parental responsibility.
The applicant father’s proposal to summarise is as follows:
(a)X live with him;
(b)He have sole parental responsibility for X;
(c)That X spend time with his mother during the school term from after school Friday until before school Tuesday each alternate week, for half the school holidays and on special occasions such as birthdays and Mother’s Day;
(d)The he and the mother be restrained from removing X from Australia.
The mother’s proposal, again to summarise, is as follows:
(a)That X live with her and that she have sole parental responsibility for him;
(b)That he spend time with his father now that he has commenced school each alternate weekend from after school Friday until before school Monday;
(c)During the school holidays until 2022 (now that the April and June/July school holidays have passed), X spend time with his father in the September/October and Christmas school holidays for five nights and then commencing in 2022, half the school holidays;
(d)She also proposes time on special occasions such as Father’s Day and religious celebrations and festivals;
(e)The mother does propose that from 2022 she and the father be permitted to holiday with X overseas but with more stringent conditions attached to the father’s overseas travel with X.
BACKGROUND
The father was born in 1981 and is now 40 and the mother was born in 1987 and is now 33. Both parents were born in India.
The mother and father married in India in 2013. Shortly thereafter the father returned to Australia while the mother remained living in India with the father’s parents. The mother came to Australia on two occasion, the first being between 2013 and 2014 and then again from 2014 until 2015. Upon returning to Australia in 2015 she obtained a temporary residence visa. She has remained living in Australia since that time and was granted permanent residency in 2017.
The father’s parents arrived in Australia in 2015 just prior to X’s birth and remained in Australia for some time after the birth.
Before X turned one he was attending at D Early Learning Centre in Suburb C three to four days per week. In November 2016 his daycare was changed to F Early Learning Centre still at Suburb C where he attended five days per week. After separation his daycare changed again to G Day Care Centre at Suburb H. X commenced at J School for Prep at the commencement of this year.
The mother and father separated on or around 12 December 2018 when the mother moved to a women’s refuge. She then made contact with Women’s Legal Service for advice including arrangements for X’s time and communication with the father. On 17 December 2018 a solicitor from that service provided the father with a contact number for him to have telephone communication with X every Tuesday and Thursday between 6:00pm and 6:30pm although it is the mother’s case that the father did not take advantage of that opportunity.
The father commenced these proceedings on 19 December 2018 a week after separation seeking a recovery order and for X to live with him. That application was served on the mother on 20 December 2018 and on that same day the mother filed an application and was successful in obtaining a variation to a protection order made without admission prior to separation on 13 February 2018.
The mother through her then representatives made an offer to the father that he spend supervised time with X for two hours per week at a contact centre. Although the father registered at that contact centre, I understand that supervised time did not occur.
The father was served with an unsealed copy of the mother’s response, notice of risk and affidavit on 14 March 2019 and those documents were filed on 20 March 2019.
The father’s application first came before Judge Jarrett on 15 March 2019. At that hearing both the mother and father were represented and interim orders were made by consent that provided for the mother and father to have equal shared parental responsibility and for X’s time with his father to progressively increase such that by late April 2019 he would be spending equal time with the father and mother. By May 2019, X was spending equal time with the father by that order on a four-three-three-four arrangement each alternate week.
The mother then filed an application in a case on 18 June 2019 seeking in part to suspend the orders for equal time and instead to make orders that X spend time with the father three nights per fortnight. That application in a case was listed for mention before me on 19 June 2019 when I heard argument from both the mother and father’s counsel as to whether I should vary the March 2019 orders that day. I decided to not vary the orders but did make an order for the preparation of a family report by Ms K and listed the matter for an interim hearing to decide the mother’s application on 21 October 2019.
Ms K’s first report was released on 9 September 2019 and recommended, to summarise:
(a)The mother and father complete a face to face post-separation program;
(b)They use a parenting coordination service;
(c)They use a parenting app to communicate in relation to X;
(d)They undertake counselling that focused on comments and assessments made in the report;
(e)Changeover occur at a public place or at a contact centre;
(f)In relation to time she recommended that I consider reducing X’s time with the father given her concerns that the 15 March 2019 orders advanced X’s time with his father too quickly.
On 21 October 2019 I again heard from both the mother and father’s counsel and made an order for the father to reactivate the mobile number … and to transfer that number to the mother. I reserved my judgment in relation to X’s time with the father and delivered my decision on 17 December 2019 when I ordered as follows:
(a)X spend time with the father from after daycare Friday until 5:00pm Sunday in week one and from after daycare Tuesday to before daycare Wednesday in week two. That order in effect reduced X’s time with his father from seven nights a fortnight to three nights a fortnight;
(b)That the mother and father complete a face to face post-separation parenting program;
(c)That they communicate via email and text message;
(d)That they attend counselling to address the comments and assessments made in Ms K’s family report.
The matter was then listed for trial for three days on 1, 2 and 3 July 2020 and then a fourth day on 3 December 2020. Having reviewed the material relied on by the parties and their witnesses, transcripts of the hearing and submissions made by counsel before preparing these reasons, it is my view that there are two significant issues that arise from that evidence in deciding whether X should live with his mother and she have parental responsibility for him or with his father and he have parental responsibility for him. Those issues include the mother’s allegations of domestic violence by the father towards her, both before and after separation and its impact on her capacity to co-parent X with the father and the father’s capacity to provide a safe environment for X. The second issue, of equal importance to the first, is the father’s concern that the mother is not willing, able or has the capacity to support X’s relationship with him moving forward and the impact this will have on X’s relationship with him.
The mother’s allegations of family violence cover 28 pages of her trial affidavit and she relies on affidavits of seven witnesses. The father also makes many allegations and raises many concerns in relation to the mother to support his case that she has not, and will not, support X’s relationship with him moving forward. As mentioned earlier the trial of this matter was heard over four days. I do not intend nor is it necessary in my view to make findings about each and every allegation made by the mother and her witnesses against the father and the father against the mother and in that regard I rely on Kent’s J’s comments in Carlson & Fluvium [2012] FamCA 32 where he said this:
[6] Equally, in circumstances where long-held and long-propounded highly negative views of each parent of the other, fuelled by allegation and counter-allegation have been given voice over the lengthy period of this litigation, there is considerable scope for the Court to be distracted from its task of now determining parenting Orders in the child’s best interests. It is simply impossible, plainly unproductive and starkly contrary to the principles for conducting child-related proceedings enunciated in Div 12A of the Act (and the duties and powers therein expressed) for the Court to indulge each and every of the multiple issues and issues within issues that the parties have chosen to raise in one form or another over the course of this litigation.
[7] Neither this Court, nor these proceedings, are a forum for the adjudication of claims of either parent against the other in respect of past or present perceived injustices; nor are parenting Orders to be formulated with any view of redressing perceived injustice or to reward or punish either parent. Parental conduct is relevant only to the extent that it informs the assessment of parenting capacity or otherwise has weight in the determination of parenting Orders in the child’s best interests.
[8] The central task of determining parenting Orders in this child’s best interests is not an exercise in searching for disqualifying factors in either parent. Recognising that each person is unique, inevitably with strengths and weaknesses both as a person and as a parent, the enquiry is essentially to determine parenting Orders that will positively promote the child’s interests in the context of that child’s actual circumstances, including any perceived parenting weakness of either or both of the child’s parents.
[9] Unfortunately, where parties to parenting proceedings advance a litany of highly negative criticisms or propositions about each other (legitimately or otherwise) to advance their own parenting proposal or to diminish the proposal of the other, the focus on the positive aspect of the enquiry may be blurred by the extent to which it is necessary for the Court to expose and resolve those criticisms or propositions.
[10] Moreover, it must be understood that some matters of factual dispute historically, which may have assumed prominence for the parties or either of them then or since, may not be capable of clear or legitimate resolution, whether because of the state of the evidence on those issues which is advanced; or having regard to issues of credit; or otherwise may not in any event be especially relevant now to the disposition of the case.
[12] I do not see any purpose being served in otherwise listing or referring to each and every other issue of disputed fact between the parties.
MOTHER’S ALLEGATIONS OF FAMILY VIOLENCE
Family violence is defined at section 4AB of the Family Law Act 1975 (“the Act”) as follow:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
As mentioned earlier, the mother’s allegations of family violence fill 28 pages of her trial affidavit. She argues that she was subjected to family violence from the father from very early on in their relationship from November 2014 until they ultimately separated on 11 December 2018. It is her case that this occurred, if not daily, then weekly, in various forms which are detailed at paragraph 24(a) through to 24(u) of her affidavit filed 5 June 2020, and included:
(a)verbal abuse and denigration;
(b)threats that she would be sent back to India;
(c)belittling comments referring to her education or lack thereof;
(d)social isolation from family and friends;
(e)criticism of her as a wife and mother;
(f)threats to harm himself if she did not act appropriately around him; and
(g)financial abuse.
The mother then goes on from paragraph 25(a) through to 25(y) referring to specific incidents of family violence prior to the protection order made on 13 February 2018 and then from paragraph 26(a) through to 26(nn) incidents of violence post the making of the protection order. From 27(a) through to 27(ff) and paragraph 28 she provides evidence of family violence after her making an application to vary the protection order on 20 December 2018 and the final protection order which was made on 20 June 2019.
In relation to the impact on the mother of her ability and capacity to co-parent with the father, Ms K at paragraph 8.4 commented that her account of violence described in her affidavit and during her interview with Ms K was significant and in her view would undoubtedly impact upon her ability and capacity to co-parent. She also opined in that same report that the mother’s ability in the short term and capacity in the long term to feel safe will be essential to whether or not the parties have any chance at a functional co-parenting relationship in the future.
The father denies the mother’s allegations of family violence and argues that he never committed an act of domestic towards her either prior to or after separation. In response to the mother’s allegations it is his case that she has created an environment of high conflict and disagreement to use his counsel’s words to ‘stone-wall’ his attempts at co-parenting and communicating with her, including making numerous hurtful and untrue allegations against him particularly in relation to family violence and his parenting of X. The father argues in this regard that the mother’s actions have been litigation-induced, insincere and disingenuous.
At paragraph 8.4 of her first report after interviewing the father for the preparation of that report, Ms K expressed a view that the father does not accept or acknowledge that he perpetrated violence during the relationship and that during that interview he consistently minimised his role in any of the incidents reported to police. He tended to deflect and shift focus when the topic was raised, preferring to be future and/or child-focused rather than admitting or denying whether the reports of violence were true. She went on to comment in that paragraph that unfortunately, Mr Bobal's position around these issues will undoubtedly impede improvement in the co-parenting relationship.
In relation to the father’s denials of family violence, it is important in deciding this issue to note that it is not in dispute that a domestic violence order was made in favour of the mother prior to separation and varied after separation. The police applied for a protection order naming the mother as the aggrieved on 13 February 2018 after she called DV Connect following an altercation between her and the father. On that occasions the mother alleges that when she was attempting to leave their home with X to allow the father to ‘cool down’ from a ‘heated’ argument with her, he grabbed her by the arm and pulled her away from the door. She says that the father then pushed her to the floor and began to strangle her with his right hand around her throat while she was still holding X. She alleges that he eventually let her go after grabbing X out of her arms and locked himself in their bedroom.
She says X was terrified and crying during this incident and when she tried to follow the father into the bedroom and take X from him, he twisted her right arm, pushed her on the bed, sat over her thighs and put pressure on her chest with his right hand. The mother says she was eventually able to push the father off but then he left their home with X and threatened that she would never see him again.
After the mother’s telephone call to DV Connect the police attended at their home and removed the father from the home taking him to the police station and then immediately applied on her behalf for a protection order. That order included the two standard terms and was made by consent without admission for five years so that it is not due to expire until 13 February 2023.
As mentioned previously, it is the mother’s case that despite being served with the protection order on 13 February 2018, the father continued to commit acts of family violence towards her.
As mentioned in the background of these reasons, after separation on 20 December 2018, the mother filed an application to vary the domestic violence protection order to prohibit the father from contacting her and including X as a named person to the order. That application was listed for a final hearing on 20 June 2019 when an order was made by consent but not made on a without admission basis. That order provides protection for the mother and X until X attains the age of 12 and has eight conditions. It is not due to expire until 8 August 2027 and includes eight others as named persons including the mother’s father and mother, her brother, her cousin’s husband, a friend, an uncle, a former employee.
I also note in relation to this issue that whilst the father acknowledges and accepts most of what the mother detailed in her affidavit of the incident between he and the mother on 13 February 2018, he does denies that he strangled her. He also explains that in the lead up to that incident he had been most distressed at hearing his brother was diagnosed with cancer and also that the mother did not support him in an argument with friends that occurred in Town L just prior to this incident.
It was his case that after the protection order was made life between he and the mother settled for a period of five months but then the mother, despite them residing under the one roof, stopped communicating with him other than through text.
At paragraph 83 of his trial affidavit he describes apologising to the mother for his actions on the night of 13 February 2018 and that he suggested counselling. Within a short time however on 30 November 2018 the police came to their home for the second time after the mother had made an allegation that he had allegedly gone through her phone. The father explained to police that the mother had told him her phone was not working and that he had provided her with an old phone and taken her phone to be repaired, although after being told that the repairs would cost the same if not more of the value of the phone, he decided it would not be worthwhile having the phone repaired.
He then describes that on 8 December 2018, two police attended at his home and told him that the mother had alleged he had hidden her and X’s passports. He explained to the police where the passports were held and that the mother had access to the safe and passwords and codes for the safe. He also describes that after the police attended at their home on 30 November 2018 and 8 December 2018, they did not return to his home or question him further.
Under cross-examination from Ms Minnery the father acknowledged that the particulars of the mother’s allegations referred to in her trial affidavit were not new allegations and that they had also been detailed in her application to vary the domestic violence order. He also repeated his belief, as mentioned earlier, that her allegations were litigation-induced, insincere, disingenuous and not genuine. When asked specifically “And you’re saying that you don’t accept for a minute that you’ve perpetrated a single act of domestic violence, aren’t you?” His response was “Yes”. When asked if it was a complete lie, again his response was “Yes”.
When asked when he refers in his affidavit to the incident on 13 February 2018 and acknowledges that he pushed the mother and was asked whether that was an act of domestic violence, his response was:
As far as I know the evidence hasn’t been actually tested. … I have to say, essentially, they’re allegations. So it hasn’t been proved yet that there is an act of domestic violence.
He then went on again to suggest that until a judge decided that he had committed domestic violence he does not accept that he was ever violent towards the mother.
In response to the father’s denials of domestic violence towards the mother, I note that at the hearing for the final protection order on 20 June 2019 that the father informed the magistrate that he had completed a Men’s Behavioural Change course over 16 weeks. This evidence however was not included in his trial affidavit in these proceedings. In that regard I accept the submission made on behalf of the mother that it is open for me to draw an inference from his failure to include that evidence that he did not wish to acknowledge his attendance at that course in circumstances wherein the proceedings before me he denies any act of family violence towards the mother.
The father in his trial affidavit other than providing his version of events of the altercation between him and the mother on 13 February 2018 did not respond to many if not most of the specific allegations made by the mother in her trial affidavit. At paragraph 21 through to and including 28 of his affidavit filed 3 June 2020 the father claims that the mother’s allegations of family violence both prior to and after separation were fabrications. The case advanced on behalf of the father was that the mother regretted agreeing to the order for equal time arrangement in March 2019 so then decided to make false allegations of family violence to convince me in response to her application in a case to vary the orders and reduce X’s time with him.
To support this argument he refers to the mother’s first affidavit filed in these proceedings sworn 13 March 2019 where although she makes some allegations of domestic violence there are very few complaints of him or his parenting. Similarly in her notice of risk he asks me to note that the mother does not depose to any acts of family violence, abuse or other risks to X in his care. It was only after the interim orders were made on 15 March 2019 when the father claims the mother began to mount what he refers to as relentless, frequent and numerous allegations of violence.
Again in support of his case in this regard he refers to his solicitors being inundated with correspondence from her new solicitors levelling allegations of violence towards him, stone-walling his attempts to improve their co-parenting relationship and communication and constantly threatening to report him to police. This, he argues, is opposed to fewer allegations against him after she received a favourable result to her application in a case by my orders of 17 December 2019. He also argues that not only did the allegations against him markedly reduce but that the volume of correspondence also significantly reduced and that after my orders he barely heard from the mother.
As a result of the conflict the mother designed and created, the father says that they are now in the unfortunate position where they simply do not communicate but more than that he alleges that the mother refuses to engage with him. This he says is not a response to her being fearful of him but again in an effort to support her case that she cannot co-parent with him, that she should have sole parental responsibility for X and that X should live with her and spend very limited time with him.
Another example of what the father refers to as the mother stone-walling is her refusal to communicate via a children’s app and/or to attend some form of counselling to address their communication and co-parenting issues, again not out of fear of communicating but rather to convince not only Ms K but also the court that the orders she seeks in relation to X are in his best interests.
Mr Bunning for the father argued that despite the mother in discussions with Ms K in the preparation of her reports and in answer to questions from him telling the court she wanted to improve communication but did not feel safe doing so without some restrictions there was no evidence before me that the father, since separation, was contacting the mother, attending at her home or what he referred to as “anything of that ilk”. On that basis he argued that any suggestion that the father had been violent towards the mother since separation must be rejected.
In support of his client’s case that the relationship between the mother and the father was not as the mother describes, he referred to the mother’s visa application signed by both her and father. Mr Bunning when cross-examining the mother, repeatedly asked her whether what was contained in the document she signed was correct or not. I note that her response to that question was that it was not wrong. Given her response Mr Bunning argued that I should accept the father’s case that although there were problems later in the mother and his client’s relationship, it could not be said that the father was controlling of the mother or violent towards her as the mother claimed.
The submission made on behalf of the mother however in relation the visa application in my view is more compelling. She argued and I accept that I should take into account that the visa application was a document written for the purpose of obtaining a visa for the mother to stay in Australia with her child and then husband and that in those circumstances she had no other option but to agree with what was contained in that document. In this regard Ms Minnery also pointed to other evidence from the mother that she was threatened by the father that he would send her back to India if she did not sign the application and that this was not the platform by which she could raise her grievances, not only about the father but also his family.
In relation to any insight that the father displayed in interview for the second family report and after attending at various courses including a Triple P parenting course, a parenting order program and counselling with Ms E, Ms K said this at paragraph 7.12 of the second family report:
7.12 While Mr Bobal demonstrated a sound understanding of the theory behind the courses he has undertaken, the afore-mentioned behaviour suggests that he has not necessarily been successful in linking the theory to meaningful insight. Mr Bobal was keen to demonstrate to the writer what a child-focused father he is. Time will tell if this desire translates into a sound ability to respectfully co-parent with Ms Bobal. I note that a key learning from POP for Mr Bobal was that children have a right to spend time equally with their parents. What he ought to he learnt was that parents have a responsibility to parent in a functional child-focused manner. Mr Bobal’s unwavering emphasis on X spending so-called equal time in detracting from the correct information-X has a right to have an equally loving relationship with both parents. It is hoped that someone can explain this to Mr Bobal in such a manner that he can feel less burdened by his quest and become more focused on more salient matters.
I accept as submitted on behalf of the mother that it is concerning taking into account:
(a)the efforts the father argues he has made to assist his communication with the mother and co-parent with her;
(b)in circumstances where the father consented to an eight year protection order with eight conditions including no contact conditions where X and eight other named persons are included in the order;
(c)That the protection order was on an admission basis;
(d)where he admits in his own evidence to pushing the mother,
that the father continues to maintain that he did not perpetrate a single act of domestic violence against the mother but rather argues that she has fabricated evidence against him and stone-walled any attempts at improving communication to convince the court she is unable to co-parent X and does not feel safe communicating with the father.
Ms K, in my view, made it quite clear both in her reports and in her answers under cross-examination that for the mother to co-parent with the father and before it would be in X’s best interests to make an order that he spend more time with the father, including equal time, or live with his father, the mother would need to feel safe. In this regard she was repeatedly challenged by Mr Bunning not only as to the benefits to X of spending much more time with the father including equal time but also living with him. I will not refer to all her answers to Mr Bunning’s questions but I accept Ms Minnery’s summary of her response was as follows:
(a)That the father feels that the mother’s concerns about safety were not factors in co-parenting;
(b)There was no acknowledgement by the father as to why the mother may not want to communicate which is supported by his affidavit material confirmed under cross-examination that the mother was disingenuous and litigation-induced and her concerns not genuine;
(c)That the father, despite the various courses that he has undertaken that he does not make the fundamental connection between family violence and the mother wanting to set appropriate boundaries in terms of communication between her and the father;
(d)The fact that the father does not accept there was violence between him and the mother should not give the court any confidence that his attitude will change in the future or that the mother will feel safe communicating with the father;
(e)It is a pre-condition to communication that the mother feels safe in communicating with the father and once she feels safe then she can become open to good communication.
THE FATHER’S CASE THAT THE MOTHER DOES NOT SUPPORT THE RELATIONSHIP
In support of the father’s case that X live with him, he argued that he has been the victim of parental alienation at the hands of the mother, that she has a very negative view and perception of him as a person and a parent and has made numerous hurtful allegations against him throughout these proceedings and she maintains those allegations. It is his concern that no matter what I might find in relation to those allegations, even if I find in favour of him and accept there was no violence during the relationship, that the mother will continue to hold onto her very negative view of him and not accept my decision in that respect. He has serious concerns that the mother’s view of him has already affected and will continue to affect her willingness and capacity to foster and promote X’s relationship with him. It is his case that the mother will refuse to demonstrate any goodwill or flexibility or make any concessions as to the parenting arrangements for X moving forward even if they were in X’s best interests, that she has and will continue to denigrate him to X and expose him to her strongly held negative views and hatred of him and this dispute.
As opposed to the mother, he says that he has and will continue to encourage and promote a relationship between X and the mother and that this attitude coupled with his case that he was X’s primary carer during the relationship should result in an order that X live with him. I pause here to note that as argued on behalf of the mother that the evidence before me including from X’s daycare do not support the father’s case that he was X’s primary carer prior to separation.
To support the father’s case in this regard he relies on a series of events or responses from the mother starting on the date of separation on 11 December 2018 when she made a unilateral decision not only to separate but to remove X from the parties’ home and not inform him of their whereabouts until much later that evening, then to not cooperate with him and make arrangements for X’s time with him and then later when she made an application to the court to reduce his court ordered time with X.
After separation and before these proceedings commenced the father says that when he asked to spend time with X the mother instructed a solicitor to write to him proposing supervised time and whilst he argues he saw no need for supervision, he reluctantly agreed so that he could see his son. He then put arrangements in place by registering at the contact centre. In response it is his case that there was then nothing further from the mother to progress any supervised time and it was not until he commenced these proceedings and the matter came before Judge Jarrett on 15 March that there was an order for time.
The father asks that I note that the orders of Judge Jarrett were made with the mother’s consent and would see X by May 2019 spending equal time between his and the mother’s home. At around the same time however that X should be spending equal time with the father, the mother, with new lawyers, claimed that whilst she was represented at the hearing on 15 March 2019 by Ms McKenzie, she felt coerced in some way to agreeing to those orders. Mr Bunning submits that despite the mother’s case of coercion she did not call Ms McKenzie to give any evidence in the proceedings.
The father also argues that the mother has interfered with X’s relationship with him in other ways by what he refers to as stone-walling any efforts to develop and/or improve a co-parenting relationship with him. He refers me to a comment made by the mother in Ms K’s first family report when she said this “I know that for an equal time arrangement to work, we have to have good communication”. It was argued that the mother was therefore well versed in the factors I would take into account including good communication between parents and a co-parenting relationship before making an order for X to spend equal time between his parents. That stone-walling, as Mr Bunning referred to it, includes any effort on the mother’s part to improve communication. To take up the recommendations of Ms K for counselling or to use a communication app and her rejecting his suggestion that she have weekly communication with him in relation to X preferring that all communication should be through lawyers.
I was also referred by Mr Bunning to cross-examination of the mother in relation to communication when she indicated she and the father cannot email each other about X but rather the father can only email her when X is with him. The mother’s answer in that regard Mr Bunning argued indicated that her reluctance to communicate with the father is not linked to issues of family violence because she is prepared to accept communication from the father when X is with him but not otherwise. This attitude Mr Bunning says is another example which supports the father’s case that the mother has essentially done everything she can to not improve communication with the father so she could argue in these proceedings that their communication is not robust or constructive enough to support an order for equal time.
In relation to this issue the father also refers me to other occasions when the mother made unilateral decisions for X including his commencement at kindergarten when he alleges she completed and lodged the enrolment forms without him and did not consult him as to the start date for X’s attendance.
In response to the father’s concern however I accept the submissions made on behalf of the mother that under cross-examination the father conceded the following:
(a)On 14 August 2019, the mother through her solicitors sent to the father's solicitors the offer of enrolment from J Preschool and sought his consent for X to attend. Both documents stated that kindergarten was to commence on 28 January 2020;
(b)The mother responded to correspondence from the father’s lawyers proposing three other possible kindergartens that X could attend in 2020;
(c)On 29 August 2019, a letter was sent from the mother’s solicitors to the father’s advising that X had been offered a five day per fortnight place in the Wednesday to Friday group but that the mother was happy to move X to the Monday to Wednesday group if the father would prefer that arrangement;
(d)There was no response from the father other than to confirm that he agreed for X to attend J Preschool;
(e)That the mother proposed times that the father could meet the Director of the kindergarten and inspect the kindergarten;
(f)It was open to the father to read the enrolment material and/or google the kindergarten’s website or contact the kindergarten office to determine the start date for kindergarten;
(g)The night before X was to be delivered by the father to the kindergarten the mother sent a text to the father reminding him of the drop off times.
It is also clear in my view from the evidence now before me that the father chose to make decisions for example about changing X’s day care for his own needs rather than X’s. In this regard he admitted under cross-examination that he did not like that the mother was close to the educators at D Early Learning Centre and did not like that they knew about the existence of the first Protection Order dated 13 February 2018.
In this regard I also adopt and include here written submissions on behalf of the mother that the mother’s evidence was:
(a)It was the father that required X to move from D Early Learning Centre in March 2018;
(b)It was the father who had insisted that both parties sign the enrolment form to F Day Care where X commenced on 21 March 2018 by not disclosing on the form the existence of the Protection Order;
(c)The father prohibited the mother from telling F Day Care about the existence of the Protection Order.
The father also criticised the mother for arranging X’s four year old immunisations. He argued that despite the order for equal shared parental responsibility for X’s health, the mother did not consult him with respect to those immunisations. He conceded under cross-examination however that he and the mother had agreed to vaccinate X and that he received his first vaccination within minutes of birth. He also conceded that X had all other scheduled vaccinations and that the four year old vaccination was simply the next injection in the schedule.
In my view despite the father’s concerns about the mother, there are examples of him making unilateral decisions for X, the most concerning being his decision to subject him to a blood test for what seemed to be no real medical reason. It is also clear from the fathers’ response to questions from Ms Minnery that rather than discussing the matter openly with the mother he choose to involve the kindergarten as an intermediary who appropriately declined to take on that role. As a result the mother was left to find out information about why a blood test was necessary through kindergarten staff and making her own appointment with the doctor who issued the pathology request to find out why the test had been ordered rather than some direct communication from the father.
It was also the father’s case that the blood test was for COVID-19 however again after hearing from the father under cross-examination it seems that the real purpose of the test was to check that X was getting sufficient nutrition in the mother’s care because he was concerned that as a vegetarian, there was something wrong with the mother’s parenting of X and that his health was compromised. Therefore not only did the father fail to discuss the issue with the mother he was not truthful with either the mother or the court as to the reason for the test.
I also have some concerns as did Ms K about the father’s decision to purchase toy guns for X when he is very aware of the mother’s views in this regard. From the father’s cross-examination and comments made in Ms K’s report it seems that the father has attempted to bribe X with toys and pets to form attachments in his household evoking a comparison between households with the mother the losing parent in this area. The choice to continue to send bigger guns with X to the mother’s house at changeover and to bring X with a gun to the family report interviews on 26 May 2020 is in my view another example of the father’s attempt to bribe X.
Ms K in her second report rejects the father’s claims that the mother has alienated, or is attempting to alienate, X from him. At paragraph 7.3 she says this:
7.3 In his most recent amended initiating application, Mr Bobal seeks primary care of X (although in the interviews he said he seeks equal time). During interviews, Mr Bobal expressed his frustration around the writer’s inability to see that Ms Bobal had alienated him from X. Presumably this belief has prompted Mr Bobal to seeks primary care of X. There are several factors which underpin my view that X has not been alienated from his father:
7.3.1 Most obviously, X enjoys a close and loving relationship with his father. Their engagement was warm and positive and he showed no signs of apprehension around his father. He is happy to spend time with Mr Bobal.
7.3.2 When discussing the relationship difficulties between his parents, X clearly articulated his understanding that his father does not like his mother; his father tells him this and tells his father not to be mean to mummy. He said nothing about his mother sending him negative messages about his father.
7.3.3 X did not express any negative views about his father, nor did he relay information that sounded as though it originated from his mother.
THE LEGISLATIVE PATHWAY
The Family Law Act 1975 (“the Act”) requires me to make final parenting orders that are in the best interests of X, and sets out the legislative pathway I must follow to achieve this.
This pathway, guided by the objects and principles in s.60B, has its starting point with my consideration of the matters set out in s.60CC(2) and s.60CC(3) (the primary and additional considerations).
I must then consider parental responsibility. The law presumes that it is in the best interests of X for his parents to have equal shared parental responsibility: s.61DA. However, this presumption is rebuttable, and might not be applied in the context of my findings of family violence or abuse: s.61DA(2).
If the presumption is rebutted, I am bound to frame orders in the best interests of X, subject to the factual matrix of the case. If the presumption applies, I must determine whether it is in X’s best interests and is reasonably practical (considering the factors set out in s.65DAA(5)) to: first, make an order for equal time; or, if that fails; second, make an order for substantial and significant time: s.65DAA and MRR v GR (2010) HCA 4).
THE LAW APPLIED TO THE FACTS
The “Primary” considerations
As outlined, above, in determining the best interests of X, and the orders I should make, I must first take account of the primary considerations contained in s.60CC(2).
Section 60CC(2)(a) recognises the need for X to have a meaningful relationship with both of his parents and section 60CC(2)(b) recognises the need for X to be protected from physical or psychological harm potentially arising out of abuse, neglect or family violence
It is clear both from the evidence of the mother and father but also Ms K that X enjoys a close and loving relationship with each of his parents and that it is important for him to have a meaningful relationship with both his mother and father.
It is my view for reasons already explained however that the father did perpetrate acts of domestic violence towards the mother both prior to and after separation and that this has made the mother feel unsafe and impacted on her ability to communicate and co-parent with the father. It is also my view that X is at risk of exposure to family violence particularly if I was to make an order that X live with the father or spend equal time with him. My concern in this regard is not that the father would be violent in any way toward X but that he may be exposed to the father’s violence towards the mother.
The “Additional” Considerations
As well as the primary considerations, I must also consider the relevant “additional” considerations contained in s.60CC(3).
Section 60CC(3)(a) requires me to consider any views expressed by X in the context of his maturity and level of understanding
There is no evidence before me, particularly from Ms K’s report, that X has expressed any clear wish to live with either the mother or father and in any event given his age if he had expressed such a wish I would likely give little weight to it.
Section 60CC(3)(b) requires me to consider the nature of X’s relationship with each of his parents and other people in his life
I have already made a finding and accept Ms K’s clear evidence that X has a close relationship with each of his parents.
Section 60CC(3)(d) requires me to consider the likely effect of any change in X’s circumstances, or in his separation from one parent, or from any other child or person with whom he has been living
Ms K in her first report was of the view, which I accept, that the March 2019 orders for equal time by May 2019 moved X’s time with his father too far too soon. Ms K was clearly also of the view expressed in both her second report and under cross-examination that it is important for X at his age to have a stable environment and that X is settled in the primary care of his mother. It was also her view which I accept that it would be unsettling for X to make an order that X move to his father’s primary care or to live equally between his parents.
In relation to equal time I note paragraph 7.6 of Ms K’s second report where she opines that parental conflict leads to poorer outcomes for children and that she saw no sign that the mother and father could manage equal time in a way that would be in X’s best interests.
Section 60CC(3)(j) requires me to consider any family violence to X or a member of the his family
I have already made a finding in relation to family violence in this matter.
WHERE X SHOULD LIVE
Whilst there were questions put to Ms K about the benefits to X of spending equal time between his parents I understand the father’s position to be that he seeks an order for X to live with him. As referred to earlier the basis for that application was the father’s case that the mother has not and will not support X’s relationship with him moving forward and that this will, if it has not already, have an impact on X’s relationship with him. It is his view that the mother’s actions in these proceedings have been, as I indicated earlier, litigation-induced, insincere and disingenuous. I do not accept the father’s case in that regard nor do I accept that the mother has not supported or will not support X’s relationship with the father moving forward. I have also found that the mother’s allegations of family violence were not as the father claims false allegations to convince me to make the orders she seeks for X to live with her, but in fact a true reflection of her experience of the father’s violence towards her during the relationship and after separation.
Taking into account all of the evidence before me and the findings I have made in this matter, it is my view that it would be in X’s best interests to live with the mother.
PARENTAL RESPONSIBILTY
Neither the mother nor father propose an order for equal shared parental responsibility and given the findings that I have made of family violence in the relationship between the mother and father clearly the presumption of equal shared parental responsibility is rebutted. In relation to this issue, Mr Bunning on behalf for the father conceded that an order for equal shared parental responsibility is not maintainable on the facts of either party’s case including his client, the father.
Having made the decision that X should live with the mother, it is also in my view in X’s best interests for his mother to have sole parental responsibility for him but for her to consult the father in respect of major long-term issues, to seek and consider his opinion before making decisions and then to inform him of the outcome of her decision.
I understand that the father’s proposal summarised at the beginning of these reasons, did not include the orders that he sought for X’s time with him in the event I made an order that X live with his mother. Whilst I indicated earlier it was not the father proposal that X live equally between his parents, it is also my view that an order for equal time is not in X’s best interests.
My view in that regard was also supported by Ms K both in her report and under cross-examination. Again at paragraph 7.6 of her second report she referred to the conditions between parents that must be satisfied for an equal time arrangement to be successful. I accept that those conditions include mutual respect, good communication, logistical ease, compatible values around lifestyle and parenting, education and discipline, trust in the other’s ability to parent appropriately and a willingness to foster and nurture a warm relationship with the other parent. Whilst I accept that in this matter there are no practical reasons way an order for equal time could not work, all of the other factors in this family continue as Ms K says in that paragraph of her report, to be lacking.
Ms K supported the mother’s proposal for time in the school term to be from after school Friday to before school Monday and the mother’s proposal for school holiday time. Whilst I agree that the mother’s proposal for term time is in keeping with X’s best interests as is five nights in the shorter school holidays in 2021, I am not of the view that X’s Christmas school holiday time with the father in 2021 should not be limited to five nights. I therefore intend making an order that he spend three non-consecutive periods of five nights during those holidays, namely the first, third and fifth weeks of those school holidays.
OTHER ISSUES
Overseas travel
The father opposes any order for overseas travel for X until he is 18 years of age. The mother from 2022 does propose overseas travel on certain conditions but those conditions or orders she seeks with regards to the father’s overseas travel are more stringent than those she proposes for herself in particular the condition that prior to the father travelling overseas with X he pay a surety of $60,000.
In my view in circumstances where both the mother and father do not have family in Australia and all their family reside overseas, the mother’s predominantly in City M and the father’s predominantly in City N the conditions placed on both the mother and father’s travel with X should be the same.
I do not accept the father’s case that X should not be able to travel overseas until he is an adult, in my view given his extended family on both sides reside overseas, he should have the opportunity to travel to India and visit both sides of the family in India as a child.
I also accept that the conditions the mother asks to be put into place for overseas travel including notice, the provision of itineraries and copies of tickets, communication with the non-travelling parent with X while he is overseas, authenticated consent, sealing copies of orders in India and injunctions against filing proceedings in India are all appropriate.
Attendance at school events and sporting events of X
The order the mother proposes is that only the parent who has the care of X be the parent that attends at school events including parent/teacher interviews, sporting events, fetes, plays, concerts, social events and other extra-curricular activities. Given however my orders would only see X in his father’s care after school on Friday and before school on Monday each alternate week and that most school events would fall during the school week, if I make the order the mother proposes it will mean that the father will be unlikely to enjoy these events. There is also a protection order in place that does not expire for some time and in my view will provide the mother with sufficient protection from the father at least until it expires. For those reasons I do not intend making this order.
Most of the other orders the mother proposes including for time on special occasions, telephone communication and those specific issues are either not opposed by the father nor has he put any alternate proposal to the court. I do not intend therefore dealing in any way with those orders.
I accept as proposed by the mother that she not be required to provide the father with her residential address.
For those reasons above, I make the orders as set out at the beginning of these reasons.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Spelleken. Dated: 11 August 2021
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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Procedural Fairness
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