Briggs & Briggs
[2022] FedCFamC2F 1356
Federal Circuit and Family Court of Australia
(DIVISION 2)
Briggs & Briggs [2022] FedCFamC2F 1356
File number: ADC 3140 of 2018 Judgment of: JUDGE TURNBULL Date of judgment: 7 October 2022 Catchwords: FAMILY LAW – CHILDREN – equal shared parental responsibility agreed by all parties – child to live with mother – nature and progression of time with father – father’s engagement in psychological counselling with respect to alcohol use, family violence, and/or impulse control – whether counselling should be a condition attaching to the child’s time with the father – additional consideration of whether a ‘positive report’ from the father’s treating psychologist should condition the father’s time – where the father currently spends time subject to supervised changeover and breathalyser tests at a police station – restrictions upon father’s time reduced – whether s 68B injunction should remain effective on final basis Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61C, 61DA, 65D, 65DAC, 68B
Evidence Act 1995 (Cth) s 140
Cases cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Boyce & Boyce [2015] FamCAFC 60
Briginshaw v Briginshaw (1938) 60 CLR 336
Dundas & Blake [2013] FamCAFC 133
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Koyroyshs & Koyroyshs [2020] FamCA 626
M v M (1998) 166 CLR 69
MRR & GR (2010) 240 CLR 461
Murphy & Murphy [2007] FamCA 795
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Withers & Russell [2016] FamCA 793
Division: Division 2 Family Law Number of paragraphs: 202 Date of hearing: 23–25 March, 14–15 June, 27 June, and 29 June 2022 Place: Hobart Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Calderwood Atkinson Counsel for the Respondent: Mr Childs Solicitor for the Respondent: SE Lawyers Counsel for the Independent Children's Lawyer: Mr Boehm Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 3140 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRIGGS
Applicant
AND: MS BRIGGS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE TURNBULL
DATE OF ORDER:
7 OCTOBER 2022
THE COURT ORDERS THAT:
1.All extant orders, including the order appointing the Independent Children’s Lawyer, be discharged.
Parental responsibility
2.The parents, MR BRIGGS (‘the Father’) and MS BRIGGS (‘the Mother’), have equal shared parental responsibility for X born in 2015 (‘X’).
3.To effect order 2 above, both parents shall do all acts and things to ensure that both of them receive information relevant to X’s education, health, and any other matter which may give rise to a major long-term issue concerning X, including to:
(a)receive, directly from X’s school, all school reports, notices, photographs (both of X and her class), newsletters, and any other information relevant to X’s education and school events;
(b)receive, directly from the organising entity or individual, all details as to X’s extra-curricular activities or events including, but not limited to, any information as to X’s dance classes or dance concerts;
(c)be listed as emergency contacts at X’s school (or any other institution or organisation which requires emergency contacts to be listed), with the Mother to be listed first and the Father to be listed second;
(d)be permitted to access and receive medical information about X from X’s treating general practitioner or from any other medical practitioner upon which X attends, either on one occasion or on a continuing basis; and
(e)be permitted to access and receive details of X’s attendance at any medical specialist, with both parents at liberty to contact such medical specialist for any details pertaining to X’s attendance thereupon; and
(f)any and all other information relevant to X’s education, health, extracurricular activities.
X’s living arrangements
4.X live with the Mother.
X’s regular alternate weekend time with the Father
5.X spend time with the Father:
(a)each alternate weekend from 4:00pm Saturday until 4:00pm Sunday, to commence on the same weekend upon which X would next have spent time with the Father pursuant to the orders of 1 September 2020, subject to the following terms:
(i)changeover at the commencement and conclusion of X’s time with the Father shall occur at the car park of the McDonald’s restaurant at Suburb C, or other such location as is agreed by the parents in writing;
(ii)for the first four (4) instances of X’s time with the Father pursuant to order 5(a), the overnight portion of each instance of time (between 7:00pm until 7:00am) shall occur in the substantial presence of any, or either, of X’s paternal grandparents, Ms D, or Ms E;
(b)following six (6) occasions of time pursuant to order 5(a), each alternate weekend from 10:00am Saturday until 4:00pm Sunday, subject to the following terms:
(i)changeover at the commencement and conclusion of X’s time with the Father shall occur at the car park of the McDonald’s restaurant at Suburb C, or other such location as is agreed by the parents in writing;
(c)following six (6) occasions of time pursuant to order 5(b), each alternate weekend from the conclusion of school on the preceding Friday (or 4:00pm on Friday if the Friday is a non-school day) until 4:00pm on Sunday, subject to the following terms:
(i)changeover at the commencement of X’s time with the Father shall occur at X’s school if the Friday is a school day;
(ii)changeover at the commencement of X’s time with the Father shall occur at the car park of the McDonald’s restaurant at Suburb C if the Friday is a non-school day; and
(iii)changeover at the conclusion of X’s time with the Father shall occur at the car park of the McDonald’s restaurant at Suburb C;
noting that the parents may agree in writing to vary the changeover location to somewhere other than the locations listed at order 5(c)(i)–(iii);
(d)following six (6) occasions of time pursuant to order 5(c), each alternate weekend from the conclusion of school on the preceding Friday (or 4:00pm on Friday if the Friday is a non-school day) until the commencement of school on the succeeding Monday (or until the commencement of school on the succeeding Tuesday if the Monday is a non-school day).
Changeovers
6.For the purpose of orders 5(d) above, and orders 7, 8, 9, and 10 below, any changeover at the commencement and conclusion of X’s time with the Father shall occur at:
(a)X’s school, if the Father’s time commences or concludes on a school day;
(b)the car park of the McDonald’s restaurant at Suburb C, if the Father’s time commences or concludes on a non-school day; or
(c)such other location as agreed by the parents in writing.
Time during school holidays
7.For the school holiday period between term 1 and term 2 in 2023 (in April 2023), X’s regular alternate weekend time with the Father pursuant to order 5(c) above shall be extended to occur from the conclusion of school on the preceding Friday (or 4:00pm on Friday if the Friday is a non-school day) until 4:00pm on the succeeding Wednesday.
8.For the school holiday period between term 2 and term 3 in 2023 (in July 2023), X’s regular alternate weekend time with the Father pursuant to order 5(d) above shall be extended to occur from the conclusion of school on the preceding Friday (or 4:00pm on Friday if the Friday is a non-school day) until 4:00pm on the succeeding Wednesday.
9.As and from the school holiday period between term 3 and term 4 in 2023 (in September/October 2023), and for each school holiday period between school terms thereafter, X’s regular alternate weekend time with the Father pursuant to order 5(d) above shall be extended to occur from the conclusion of school on the preceding Friday (or 4:00pm on Friday if the Friday is a non-school day) until 4:00pm the following Friday, with the intention being that X spend week-about time with her parents during school holidays as of and from the school holiday period between terms 3 and 4 in 2023.
Time on special days
10.As of the date of these orders, X shall spend time:
(a)on her birthday in each year:
(i)with the Father from 3:30pm until 6:00pm if X is not otherwise in the Father’s care; and
(ii)with the Mother from 3:30pm until 6:00pm if X is not otherwise in the Mother’s care;
(b)at Christmas time in each year as follows:
(i)in 2022 and each alternate year thereafter:
A.with the Mother from 5:00pm in Christmas Eve until 3:00pm on Christmas Day; and
B.with the Father from 3:00pm on Christmas Day until 5:00pm on 26 December;
(ii)in 2023 and each alternate year thereafter:
A.with the Father from 5:00pm in Christmas Eve until 3:00pm on Christmas Day; and
B.with the Mother from 3:00pm on Christmas Day until 5:00pm on 26 December;
(c)on Father’s Day with the Father (the first Sunday in September) in each year from 10:00am until 5:00pm,
(d)on Mother’s Day with the Mother (the second Sunday in May) in each year from 10:00am until 5:00pm; and
(e)on such other special dates or occasions as agreed between the parents in writing.
Therapeutic counselling
11.The Father shall forthwith, and for a period of at least six (6) months from the date of these order, engage in therapeutic counselling with Mr F, clinical psychologist (‘Mr F’), and to this end shall:
(a)within seven (7) days of the date of these orders, provide to Mr F a copy of these orders and the accompanying Reasons dated 7 October 2022;
(b)attend at least eight (8) sessions with Mr F during the six-month minimum treatment period, with such sessions to occur approximately once every three weeks;
(c)solely meet the cost of any sessions with Mr F and the report produced pursuant to order 15 below.
12.It is a condition of the Father’s time in orders 5(a), 5(b), and 9(b) above that he engage in therapy with Mr F in accordance with order 11 above.
13.The Mother shall attend at least one (1) session with Mr F, in which she may provide her perspective on the issues listed at order 14 below, with any individual sessions attended by the Mother to be at her sole cost.
14.The Father’s therapeutic counselling with Mr F pursuant to order 11 shall focus on the following issues:
(a)alcohol addiction;
(b)family violence; and
(c)impulse control.
15.At the conclusion of the minimum of eight (8) sessions of therapeutic counselling over the course of six (6) months pursuant to order 11, the Father shall obtain, at his sole cost, a written report from Mr F.
16.Mr F’s written report, obtained by the Father pursuant to order 15, must separately address the following matters with respect to each issue listed in order 14:
(a)the Father’s level of openness and insight;
(b)any goal or goals of the Father’s therapy; and
(c)the degree to which the Father has satisfactorily addressed his goal or goals of therapy;
and, specifically with respect to the issue of alcohol addiction listed in order 13(a):
(d)the Father’s level of openness and insight into his positive breathalyser readings on 20 December 2020 (0.026% BAC) and 17 January 2021 (0.032% BAC), and his admitted alcohol consumption on 25 September 2020, for which no BAC reading was obtained at the time, which the Father had not previously disclosed to Mr F, and which constitute breaches of the injunction made by consent on 1 September 2020 that the Father be restrained from consuming alcohol for twenty-four (24) hours prior to and during X’s time with him.
17.Mr F may request that either the Father or the Mother attend further sessions beyond the minimum number of sessions as ordered at 11(b) and 13 above and, if Mr F so requests, the Father and/or the Mother shall attend those further sessions as requested at their own cost.
Communication between X and the Father
18.When X is not spending time with the Father, she shall communicate with the Father using FaceTime (or other such means as agreed between the parents in writing) each Friday (or another day as agreed between the parents in writing).
19.To effect order 18, the Father shall initiate the FaceTime call between 5:00pm and 5:15pm.
The parents’ communication and joint attendances
20.The parents shall communicate using AppClose or any other co-parenting app as they may agree in writing from time to time or, in situations of emergency, the parents may contact each other over the telephone.
21.The parents shall keep each other informed of their current mobile telephone number and, if a parent’s mobile telephone number changes, that parent must inform the other of their new number within twenty-four (24) hours of the number being changed.
22.The parents are at liberty to attend all school functions and events which parents would ordinarily be allowed to attend, noting that both parents shall receive information from X’s school as to the dates and times of such functions and events.
23.The parents are at liberty to attend all extra-curricular activities or events which parents would ordinarily attend (including, in particular, X’s dance performances), noting that both parents shall receive information as to dates, times, performances, and events in relation to X’s extra-curricular activities.
24.If X is involved in a medical emergency, the parent with care of X at that time shall inform the other parent of the emergency and the nature of X’s involvement therein as soon as is practicable, with both parents being at liberty to attend any clinic or hospital at which X may receive treatment for the duration of such treatment.
Injunctions
25.The Father be and is hereby restrained, pursuant to s 68B(1) of the Family Law Act1975 (Cth), from consuming alcohol during, or within the twenty-four (24) hours prior to, any time X spends with him or in his care.
26.Both the Mother and the Father be and are hereby restrained, pursuant to s 68B(1) of the Family Law Act, from:
(a)denigrating each other to X, or in X’s hearing or presence,
(b)allowing any third party to denigrate either of X’s parents to X, or in X’s hearing or presence;
(c)discussing allegations (proved or otherwise) made in these proceedings with X, or in X’s hearing or presence,
(d)allowing any third party to discuss allegations (proved or otherwise) made in these proceedings with X, or in X’s hearing or presence; or
(e)publishing on any social media, either totally or partially, these orders, the judgment delivered 7 October 2022, or any document filed in these proceedings.
Travel
27.The Mother be at liberty to travel to New Zealand with X for the purposes of a holiday for no more than three weeks in each twelve (12) month period as and from the date of these orders.
28.The Father shall take all steps necessary to sign any documents and provide any authority to enable X to travel with the Mother pursuant to order 27 subject to the following conditions:
(a)the travel to New Zealand shall not overlap with either Christmas Day or X’s birthday unless otherwise agreed by the parents in writing;
(b)the Mother shall provide an itinerary to the Father one month prior to the departure date, or at such other time as agreed by the parents in writing;
(c)the Mother shall provide the Father with compensatory time for any time, as ordered, which is lost by the Father as a result of the Mother’s travel to New Zealand, with such make-up time to occur no later than six (6) weeks following the Mother and X’s return to Australia.
Other
29.All outstanding 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 Briggs & Briggs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Turnbull
Overview
These proceedings concern X born in 2015 (‘X’). X is currently seven years of age and is in grade 2 at G School. She is a bright, enthusiastic, and friendly child who loves mathematics, dancing, and small fluffy animals such as cats and bunnies. It is my hope that, throughout her childhood, X’s personality can flourish and develop in a happy, loving, and understanding family environment. It is towards this hope that I direct my efforts in these Reasons and, under the final orders, X’s parents must do the same.
Mr Briggs (‘the Father’) initiated parenting proceedings against Ms Briggs (‘the Mother’) on 3 August 2018 — nearly four years ago. The Father, born in 1974, is 48 years of age. He lives in Suburb H and ordinarily works as a tradesman. The Mother, born in 1979, is 43 years of age. She was born in New Zealand and moved to Australia in 2001. She has ordinarily lived in Australia ever since. Her usual occupation, as stated in her trial affidavit, is as a post-graduate student studying allied health care, although she also says she is a full-time homemaker who works from home as an allied health worker during school hours. She currently lives in the Region J of Adelaide.
X has spent much (if not all) of her living memory as a child subject to family law litigation. She is already acutely aware of the issues in these proceedings and the underlying conflict between her parents.[1]
[1] Family Report, Family Consultant Ms K, 23 November 2021 (‘Family Report’), [59].
The parents agree that cohabitation commenced in 2012 and that they were married in 2015. The parties lived in Suburb H for the duration of their relationship, residing in the family home, which the Father retained following separation. He continues to live in that property.[2] I am satisfied that the parents separated on a final basis on or about 31 January 2018 or, at the very latest, May 2018.[3]
[2] Affidavit, Mr Briggs, 17 March 2022 (‘Affidavit (Father)’) [44].
[3] The Mother says that final separation occurred on 31 January 2018, and the Father says in his affidavit that separation occurred on 19 May 2018. The Father conceded under cross-examination that the Mother moved out of the Suburb H home on 31 January 2018. It appears, however, that they attended counselling between January and May 2018 in an attempt to salvage their relationship. In any event their relationship, since commencement of cohabitation in 2012, was one of approximately six years.
X has lived with the Mother since final separation. The Father does not seek that X’s living arrangements change. Further, as of 27 June 2022, all parties are in agreement that there should be an order for equal shared parental responsibility. I will further detail the parties’ proposals commencing at paragraph 64 of these Reasons.
The Father has four other children from a previous relationship — Ms D, Ms E, Ms L, and Ms M — the youngest was 17 and the eldest was 26 when the Father swore his affidavit. Ms D, Ms E, Ms L and Ms M are not subject to these proceedings. They are all involved in X’s life and she has formed connections with Ms D and Ms E in particular.[4]
[4] Family Report (n 1) [70].
Prior to initiating proceedings the parents executed a parenting plan with respect to X pursuant to pt 7 div 4 of the Family Law Act 1975 (Cth) (‘the Act’) on 19 April 2018.[5] The terms of that parenting plan are extracted at paragraph 178 of these Reasons.
[5] Affidavit (Father) (n 2) [40]; Affidavit, Ms Briggs, 9 March 2022 (‘Affidavit (Mother)’), [51].
On 19 November 2018, Judge Mead (as her Honour then was) ordered supervised time between X and the Father at the Suburb N Children’s Contact Service. There were six visits pursuant to that order between May and August 2019.[6]
[6] Affidavit (Mother) (n 5) [68], [78]–[79].
X’s time with the Father has grown throughout these proceedings. As of mid-2019, she has spent semi-supervised time with the Father, for which he has had to meet certain substance testing and mental health treatment obligations. The Father has been ordered to provide two psychological reports since May 2019.[7] The Mother has also been obliged, albeit to a lesser extent, to seek mental health treatment and share information with the Father.[8]
[7] Orders dated 9 May 2019, requiring the Father to file a report from Mr O, and order dated 30 April 2020, requiring the Father to obtain a referral to and report from Mr F, and order dated 1 September 2020, requiring the Father to continue engagement with Mr F, who was to produce and file a report.
[8] The orders since 19 November 2018 show an increase in time, a decrease in supervision requirements, and a continuing obligation for the Father to engage in treatment for his mental health, undergo drug and alcohol testing, and provide reports as to these issues. The order of 9 May 2019 introduced the alternate Sunday time (following six visits at a contact centre) from 9:00am until 12:00 noon, which continued to be in effect until the order of 1 September 2020. The Mother has been required to share certain information about X’s school, extra-curricular activities, and health since the orders of 13 August 2020, made by consent.
X currently spends time with the Father in accordance with the orders dated 1 September 2020, as subsequently incorporated into the orders of 29 June 2022. Those orders provide time on alternate Sundays between 9:00am and 3:00pm, subject to supervision and alcohol breath testing at changeover.
The Independent Children’s Lawyer — instructing Mr Boehm of Counsel throughout the trial — was appointed relatively late in the litigation.[9]
[9] Orders dated 27 January 2022.
The trial commenced on 23 March 2022 in Hobart, with all parties, solicitors, Counsel, and witnesses participating via Microsoft Teams. The first day was, for the most part, consumed by evidentiary objections. The Court allocated further days beyond the initial estimate of one day, taking place on 24-25 March and continuing onto 14, 15, and 27 June, with the matter concluding on 29 June 2022. It is difficult to imagine how the breadth of issues and evidence, as existed at the outset of the trial, could have been heard in a single day.
The final days of trial significantly narrowed the issues. On 29 June 2022 — the final day of the hearing — the parties settled many of the issues in dispute. Those orders, in essence, require the Mother to provide the Father with X’s school reports, information about school events and extra-curricular activities, and advise the Father of medical attendances, and provide the Father with interim time with X. Both parties, under those orders, are at liberty to attend school events, extra-curricular events, and any clinic or hospital at which X receives treatment. The Father is restrained from consuming alcohol 24 prior to or during his time with X, and the Mother is restrained from bringing X into contact with Mr P and his step son Q. I will revisit these injunctions — orders 6 and 17 of the 29 June 2022 orders — later in these Reasons. The orders also provided that, in the interim, the parents communicate through AppClose and keep each other informed of their telephone numbers.
The interim orders of 29 June 2022 were made on the understanding that it be incorporated into the final parenting orders, save for where the order incorporates the interim time arrangements and conditions thereupon as first ordered on 1 September 2020, and further save for order 17 therein. I will therefore incorporate orders 3, 6–16 inclusive, and 18 into the orders made on a final basis.
Matters for determination
The remaining issues to be determined are:
(1)the nature and progression of X’s time with the Father during school terms and school holidays;
(2)the time arrangements for Christmas 2022;
(3)the time arrangements for Father’s Day and Mother’s Day in each year;
(4)the degree to which, if at all, the Father should engage in counselling with Mr F, his clinical psychologist, with respect to alcohol addiction, family violence, and/or impulse control;
(5)whether the progression of the Father’s time with X should be conditional upon obtaining a ‘positive report’ from Mr F, as sought by the Mother;
(6)whether, and if so for how long, the Father must take a breathalyser test prior to spending time with X, with the Mother at liberty to terminate the scheduled time if the Father returns a positive blood alcohol reading;
(7)whether, and if so for how long, the Father’s time with X should be wholly or partly supervised;
(8)the time at which changeover should no longer occur inside the Suburb R Police Station;
(9)the nature and quantum of time which X and the Mother may spend in New Zealand (or any other overseas jurisdiction) each year, and any conditions associated with such time including make-up time, notice periods, and information to be provided to the Father; and
(10)whether the injunction restraining the Mother from bringing X into contact with her former partner, Mr P, and his step-son Q should be made on a final basis and, if so, the proper form of the injunction.
With respect to the key issues of time, counselling, psychological reporting, alcohol breathalyser testing, changeover, supervision, and injunctions, the parents have made a number of allegations against each other. Where the truth of any relevant allegation is in issue between the parties I will determine on the evidence, if I can, that fact in issue on the balance of probabilities.[10]
[10] Briginshaw v Briginshaw (1938) 60 CLR 336, 361–362 (Dixon J); Evidence Act 1995 (Cth) s 140.
Chronology
As stated above, the parents commenced cohabitation in 2012. They agree that the Father’s other children would spend every other weekend and half of all school holidays at their home while they remained subject to parenting orders to that effect. This continued to some extent throughout their relationship, during which time X formed connections with her half-sisters. The Mother says that she cared for all of the children while they stayed at the family home in Suburb H and, save for Ms L, developed good relationships with the Father’s other children. With respect to Ms L, the Mother raised some concerns about her past substance use and mental health issues, but ultimately did not pursue any injunction preventing X from being in her presence.[11] The Father does not approve of Ms L’s abuse of the Mother in 2018 and is, in any event, confident that such behaviour will not reoccur.[12] It appears as though Ms D, Ms E, Ms L, and Ms M have all been formative influences in X’s life to one extent or another, and will continue to be present as X grows up.
[11] Affidavit (Mother) (n 5) [15]–[16], noting Ms L’s mental health and substance use issues from 2015 and the Mother’s confrontation with Ms L in 2018 about an inappropriate Facebook post about X.
[12] Affidavit (Father) (n 2) [57].
This matter involves several allegations of family violence, abuse, and other unsavoury conduct. In essence, the Mother alleges that the Father was physically and verbally abusive throughout their relationship, and that much of his behaviour in this respect was fuelled by alcohol consumption. She says that, from the outset of their relationship, he was abusive and highly critical of her. The verbal abuse, in her account, occurred on a weekly basis whether or not the Father was intoxicated. The Father, on the other hand, asserts that the Mother was — and to some extent remains — manipulative and controlling from late 2016 onwards, and that she was physically violent towards him. He says that she was at times psychologically unstable, causing her to ‘blow up’ unexpectedly.
Another key issue throughout this chronology is substance abuse — specifically, the Father’s alcohol abuse. The parents agree that, in 2012, they both used methamphetamine on at least one occasion. They did this with Mr P, who the parents agree has presently been charged with armed robbery. It is for this reason, together with the allegation that X was left alone with Mr P’s 15-year-old stepson Q in 2018, that the Father sought an injunction preventing the Mother from bringing X into contact with Mr P or Q. The Mother says that this one occasion in 2012 is the only instance in which she has used illicit drugs — an ‘absolute one off’. The Mother alleges that the Father used drugs on four to five occasions in the first year of their relationship, but the Father says that neither he nor the Mother have used drugs since that one instance with Mr P. These Reasons, commencing at paragraph 113, set out the Father’s alcohol-related convictions from prior to and during the relationship.
The first allegation of family violence concerns the events of 11 November 2014. The Mother says that the Father, while intoxicated, pushed her against a gyprock wall with both of his outstretched hands after being denied sexual intercourse. The Father characterised the incident differently in that he says the Mother, the aggressor in these circumstances, threw ‘tantrums’ when she did not get her way and would not let him go to bed, leading him to call the police. He denied requesting sex, getting angry, shoving her in the chest, and all other aspects of the Mother’s allegations of violence. Further, with respect to his alcohol intake, he said that he had consumed ‘a few’ drinks but was not intoxicated. The parents agree that it was the Father who called the police at this time, which is slightly strange in the Mother’s narrative, but this aspect of the event was not addressed in detail under cross-examination. The Mother says that the police attended, escorted her outside, and spoke with her about her life and with whom she wanted to spend it. The parents also agree that the Mother and X spent the following three nights at Mr P’s home. Mr Childs, for the Mother, referred to the Mother’s diary entry account of this incident:
[Mr Briggs] was so drunk.
The police suggested I really look at who I’m [sharing] my life with.
[Mr Briggs] & I were fighting and he pushed me through the wall that it made a large body print in it.
He called the police & I was advised to go for safety.
… Stayed @ S’s
Police called. [13]
[13] Mother’s tender bundle (stated as annexures to affidavit) annex -2, 8.
The Mother says that, from 11 November 2014 onwards, she tried to record all instances of violence or abuse in her personal diary. Her affidavit also describes a seemingly earlier incident in which the Father ‘shoved his fingers up [her] vagina’ and accused her of cheating on him with Mr P.[14] There is no date given for this allegation and the Father did not specifically address it during his evidence.
[14] Affidavit (Mother) (n 5) [22].
The parents married in 2015 and shortly afterwards, in 2015, X was born. The Mother says that, when she became pregnant, she asked the Father to reduce his alcohol consumption. The Father agrees that the Mother asked him to do so, and agreed that he did not cease or reduce his intake at this time, saying that he did not think he needed to stop drinking during the Mother’s pregnancy or after X’s birth. The parents agree that the Mother was X’s primary carer throughout their relationship, but disagree as to the extent of the Father’s contributions to her X’s care outside of his paid employment commitments. The extent to which each parent has fulfilled their parental obligations to maintain X, or their attitudes towards X and the responsibilities of parenthood, was not in issue at the trial. It is relevant, however, to note the Mother’s allegation that the Father was often intoxicated or hungover on weekends, and that she would have to pay Ms M or Ms E to babysit X. Even then, in the Mother’s account, X would often be in her work room while she was trying to work.
The following dot points, spanning from July 2015 until May 2016, particularise the Mother’s allegations of violence from this period of time:[15]
·On 3 July 2015, the Father allegedly grabbed the Mother by her triceps and pushed her against a wall. The Mother says that the Father would often grab her by the triceps, and that this incident left bruises which her sister observed while visiting from New Zealand. The Mother says that, after her sister noticed the bruises, she told her that the Father had grabbed and pushed her. The Father denied this allegation and, further, denied that he would regularly grab the Mother by the triceps when they were arguing.
·On 17 July 2015, the Father allegedly grabbed the Mother by the triceps and shoved her against a door, allegedly because he was intoxicated and she asked him to turn down the music he was playing with his friends, yelling ‘you wanted this baby and now you are complaining’. The Mother says that X was three months old at the time, and that she was breastfeeding her twice per night. The Father denied being intoxicated (although he had six beers upon arriving home from work), grabbing the Mother, or shoving her against a door. He agreed that he was upset about the Mother being rude in front of his friends, and that he said — and did not yell — that the Mother was complaining about the baby she said she wanted. The Father said that the Mother had changed since going through the in vitro fertilisation (IVF) process to conceive X. The Mother slept in X’s bedroom that night.
·On 26 December 2015, the Father was allegedly under the influence of alcohol and cocaine, and would not let the Mother go to sleep, calling her a ‘bitch’, ‘slut’, and ‘whore’. The Father admitted to calling the Mother a bitch, and said that X was in bed at this time. He said that this incident took place with others present and that the Mother, in front of the others, said something to the effect that the Father needed to stop drinking. This, in the Father’s account, embarrassed him in front of the others present. He denied using cocaine, but said that he had likely consumed six beers by this time. He clarified, however, that he tolerates alcohol well and his behaviour would not have changed at this level of consumption. Again, the Father rationalised his actions by reference to the Mother having become a controlling person ‘up and down’ around whom he ‘stepped on eggshells’. He said that it was not nice to call her a bitch in front of the others and that, in fairness, she should not have ‘attacked’ him in front of them either. He characterised his response as justified but said that he was not proud of it. The Mother says that she and X spent the following four nights at Mr P’s residence, and returned after the Father apologised and convinced them to come back to the family home.
·On 3 May 2016, the Father allegedly roughly grabbed the Mother by her triceps and pushed her against a wall, allegedly leaving bruises. The Father denied grabbing the Mother and pushing her against the wall, although he agreed that they were arguing at this time.
[15] Ibid [30]–[33].
As foreshadowed above, the Father alleges that the Mother perpetrated family violence against him in the form of physical violence and coercive and controlling conduct. While his affidavit states that the Mother’s controlling behaviour started ‘from around late 2016’,[16] his answers during cross-examination as to the allegations of July 2015 to May 2016 indicate that his position may be that this behaviour started earlier than late 2016. He said that her controlling and abusive behaviour escalated when he began working for himself, because his income became irregular, and that she had become a ‘different person’ since undergoing in vitro fertilisation. Further, with respect to instances of physical violence, he said that called the police on several occasions but that once they arrived the Mother would have calmed down. There is no evidence before me that the Mother has ever been charged with, or convicted of, offences involving physical violence against the Father. It is the Father’s position that, from late 2016 onwards, the Mother would take X to Mr P’s house without his consent whenever they argued, usually for about two nights.[17]
[16] Affidavit (Father) (n 2) [15].
[17] Ibid [17]–[20].
In December 2016, the Father was charged with driving a motor vehicle with a blood alcohol content of 0.095%. He was convicted of driving with a blood alcohol content above the legal limit (which was 0.08% at that time in South Australia) on 1 March 2017. He was disqualified from driving for a total of six months and was fined $1,300.00, noting impounding costs for one month totalling $1,900.00. The Father confirmed that he was previously disqualified from driving for three years between 2010 and 2013 and that, as a result, an alcohol interlock had been fitted to his motor vehicle until early 2016. I will address the Father’s evidence in relation to this incident, and his alcohol consumption generally, later in these Reasons.
The Mother raises two allegations against the Father from 2017:
·On 19 March 2017, the Father allegedly came home intoxicated at around 1:00am, woke up the Mother, and verbally and physically abused her. She says that he verbally abused her at first, and then grabbed her by the wrists, raised his right fist, and pointed at her head. The Mother says that, at this time, she said ‘come on do it, so I can leave you’. She says that the Father then shoved her to the floor and threw his wedding ring out the door. The Father denies all aspects of this incident save for that they were arguing and that he threw his wedding ring. X and the Mother left and stayed in a hotel for the night.
·On 22 July 2017, the Father allegedly grabbed the Mother by the throat, bruising and scratching her neck. The Father denied this allegation. The Mother says that she reported the incident over a year later, on 12 August 2018, but Mr Childs did not refer to any police reports referring to this incident. Exhibit M14, which purports to show the Mother’s injuries from this event (revealing two scratches to her neck) as at 24 July 2017,[18] was shown to the Father at trial. He maintained his denial when confronted with the photograph.
[18] M13 (received 14 June 2022), showing that the image titled ‘IMG_8482’ was taken on 24 July 2017 at 6:36pm.
In 2017 the parents went to New Zealand for two weeks with X for a holiday. The Father says that, upon their return, the Mother took up her allied health studies and became even more stressed and bad-tempered. Further, from November 2017, the Father alleges that the Mother was increasingly angry and distant and that, on occasion, he had to leave their home to avoid the Mother screaming at him.[19] He also says that around this time the Mother left X in the car and, seemingly on a separate occasion, had a car accident while X was in the car, which she later denied to him.[20] Mr Roberts did not refer to these alleged incidents in final submissions as indicators that the Mother does not create a safe environment for X.
[19] Affidavit (Father) (n 2) [23].
[20] Ibid [20]–[28].
There were two notable incidents in January 2018 leading up to final separation. The first occurred on 19 January and the second on 30 January.
The Mother alleges that, on 19 January 2018, the Father was being verbally abusive, leading to an altercation in which he tried to stop her from leaving their home with X. She says that she placed X in the car, which was parked in the garage, with the intention of driving away. The Father allegedly chased her around the car, turned off the roller door, and attempted to lift X out of the car. The Mother says that X was scared and grabbed onto her, and that she managed to lock X inside the car. After that, she says that the Father tried to grab the car keys from her, injuring her arm — exhibit M15 purports to show this injury as at 22 January 2018, three days after the alleged assault.[21] The Mother says that she ultimately locked herself in the car, called the police from inside the car, opened the roller door with the remote, and drove away. She says she attempted to return a few hours later, but that the Father looked agitated and angry, causing her to request the assistance of police in collecting some items for herself and X. The Mother says they spent three nights away from the family home (one with a friend, Ms T, and two with the Father’s oldest daughter Ms D), after which time the Father apologised and promised to attend counselling with the Mother. The Father denied that he was verbally abusive, instead saying that they were arguing, and further denied that he chased the Mother around the motor vehicle, attempted to grab the car keys or garage remote, or in any way caused the injury shown in exhibit M15. He agreed that the Mother put X in the car, turned off the roller door (at the door itself), and at one point attempted to lift X out of the car. He says that he was worried about X’s safety in the car due to the Mother’s alleged car accident at approximately that time. His position was that he told the Mother that she herself could leave, but that she could not take X with her. He could not recall who ultimately called the police, nor could he recall the Mother returning with police to recover some items. Further, with respect to his apology and promise to go to counselling, he said that this was more to keep the peace with the Mother. Mr Childs asked the Father whether he had ever experienced anger issues, to which the Father responded in the negative. The Father further denied that his apology to the Mother was, in any way, an admission to assaulting her in the manner alleged.
[21] M13 (n 18), showing that the image titled ‘IMG_9542’ was taken on 22 January 2018 at 7:04pm.
Final separation appears to have been imminent as of 30 January 2018. The Mother says that she had been sleeping in the spare room for about three weeks due to the Father’s escalating alcohol use, subsequent arguments, and the Father had by this time reneged on his agreement to undertake counselling. The Mother’s account is that she suspected that the Father was secretly recording her and, once she picked up his phone, he lunged at her and she ran outside. She says that he grabbed her, held her arm behind her back, bent her over the trampoline, and held her face down with his body while removing his phone from her hand. She says that he then took a video recording of her and locked her outside the house. X was allegedly crying inside the house, and the Mother says she was only allowed back in when the Father accused her of deleting all of the data on his phone, since he then asked her to reset it. The Father also allegedly advised the Mother at this time that he called the police but, once they came, he told them everything was fine and they left without speaking to her. This incident was the final incident described by the Mother, and is the point at which she realised she ‘had to leave the relationship for the welfare of [herself] and X’, with the Mother packing up and leaving on 31 January 2018. The Mother and X stayed with Mr P until they moved into a rental property in Suburb U on 9 February 2018.
The Father’s account of 30 January 2018 is, again, markedly different. He said under cross-examination that she was the violent and abusive actor in the relationship, and that he was just responding to her behaviour. He denied lunging at the Mother, grabbing her, holding her arm behind her back, bending her over, or holding her down on the trampoline. He agreed, however, that he took a video of the Mother and locked her outside the house, saying that he agreed to let her back inside when she calmed down. His position is that, since the Mother was the abusive person in the relationship, she controlled his technology and wiped his phone, meaning he had to go to the neighbours’ place to call the police. Indeed he said that, even more recently, he has struggled to rebuild his business because the Mother had ‘retained all of his computers with all of his work contacts’ and that, as a result, he could not pick up much work.[22] The Mother allegedly deleted the video he recorded of her while she was outside, which he asked her to recover. He further agreed that the police attended their home and that the Mother and X moved out the following day.
[22] I am unsure of the veracity of this allegation as the Mother did not address it at trial, and the Father’s evidence about it was in the context of his capacity to take up paid employment and, therefore, pay child support.
In February 2018, immediately following final separation, X spent time with the Father at the Mother’s residence twice per week. X then spent weekend time with the Father, which was sometimes unsupervised and other times in the Mother’s presence, although the Mother was concerned at this time that the Father was affected by alcohol during these visits. The Father denies that he had alcohol on his breath, that his eyes were glazed over, or that his friends had to confiscate his motorbike due to him riding it while intoxicated. The Mother also alleges that, on 13 April 2018, the Father retained X without her consent after a visit at the Father’s home (formerly the family home). She says that he was intoxicated and that they were arguing and, while the Father denies being intoxicated at that time, he agrees that there was an argument. The Father agreed that he prevented the Mother from accessing his home because he was concerned for the Mother’s mental health. Further, he said that they agreed for X to stay the weekend, and that he intended to return her to the Mother on Monday morning. It appears that the Mother instead wished for X’s return on Sunday night.[23] This led to the parents negotiating and executing the parenting plan dated 19 April 2018, setting down X’s time with the Father on alternate weekends from Friday afternoon until Sunday afternoon. The text of the parenting plan is set out in full at paragraph 178 of these Reasons. Throughout this period the parents were trying to settle elements of their parenting relationship and financial affairs. The Father alleges that, because of his refusal to sign certain documentation, the Mother withheld X from him at this time. The Mother denies this allegation.
[23] Affidavit (Mother) (n 5) [48]–[50].
X spent time with the Father pursuant to the parenting plan on 18 May 2018. The Mother alleges that, on this date, she was staying overnight with X at the Father’s home, and that he became verbally and physically abusive. She say that the Father, heavily intoxicated, verbally abused her about the end of their marriage, punched her in the sternum, and then yelled at her: ‘you don’t know what I have in store for you, you are a slut and you always will be a slut’. Further, the Mother says that X witnessed this incident and started crying, and that she picked X up, left in her car at about 11:00pm, and never stayed at the Father’s residence again. The Father, on the other hand, alleges that the Mother yelled at him and threatened to take X to live in New Zealand. He denies that he abused her, that he was intoxicated, and that he told her she ‘didn’t know what was in store’ for her. He did, however, concede that this was the one and only occasion upon which he called the Mother a ‘slut’. He says that the Mother moved towards X’s bedroom, but that he did not wish to wake X, so the Mother ran towards him and raised a knee, attempting to hit him in the testicles. The Father says that, in response, he raised his arms in front of himself as self-protection, and the Mother ran into his hands resulting in her being pushed away. He denies that he hit her in the sternum. He agreed that the Mother left his home, never to stay again, and that X was crying. Further he said that, on 19 May 2018, he made a police report about this incident,[24] but Mr Roberts did not refer to any evidence of such report from the subpoenaed material or elsewhere.
[24] Affidavit (Father) (n 2) [33].
X spent further overnight time with the Father pursuant to the parenting plan on the weekends of 26 May 2018 and 8 June 2018. Following the 8 June 2018 time, the Mother started receiving family violence counselling and ceased all of X’s weekend time with the Father pursuant to the parenting plan.[25] The Mother did, however, maintain FaceTime contact between X and the Father.[26] The parents did, even at this difficult time, manage to cooperate and take X to Event W in 2018 as a birthday present. The Father collected the Mother and X and, together with Ms M, they went to the performance and the Father returned the Mother and X to their home. Their efforts to attend Event W together with X at this time are commendable. From this point, as foreshadowed above, the Father says that X was being withheld from him because he did not sign certain documentation. Mr Roberts referred to an annexure containing an email sent by the Mother on 3 July 2018 in which she referenced the 18 May 2018 incident and wrote that she would retain X until further notice, because ‘[his] inability to follow your own agreement in the stat dec is anough [sic] to let me know that You cannot be trusted’.[27] It appears that, by 7 July 2018, the parents were able to arrange time between X and the Father at the Mother’s home. The Mother alleges that, upon his arrival, he was affected by alcohol, and yelled about Q allegedly looking after X. The Father denies that he was affected by alcohol, and clarified that he did not yell the question about Mr P and Q. The Mother told the Father that if he did not leave she would call the police. The Mother had two clients at her home at the time, and recorded her account of the incident in her personal diary:
> he was still in bed
Facetimed [Mr Briggs] … at 8:45am. [X] said [Q] was going to play with her today at 9. [Mr Briggs] knocked at the door, he still appeared under the influence. He said [X hadn’t seen Q] or had any sort of relationship with him to look after her and she should be with him as it was his weekend. I said you need to leave and that I’d call the police. I called and gave all my details and his and she advised to say to him “I’m not comfortable with you being here without prior arrangement and please leave”. If he didn’t then the police would have come. He was probably afraid he would get breath tested and left straight away. [X] didn’t even know he was here thank goodness. It would have upset her.[28]
[25] Affidavit (Mother) (n 5) [53]–[55].
[26] Ibid [58].
[27] Affidavit (Father) (n 2) annex -02.
[28] M16 (received 14 June 2022).
The parents’ AppClose communications also reveal their messages to each other on that platform on 7 July 2018:
Mother:
[7/7/2018, 9:26:11 AM]
Im not comfortable for ur being here without prior arrangements and if u come bk then police will intervene
Father:
[7/7/2018, 10:00:32 AM]
A 15 year old boy that has not been part of [X]’s life should not be in a room babysitting our 3 year old while you have 2 clients at your house as it was my weekend to care for her[29]
[29] Affidavit (Father) (n 2) annex -02.
Around April–August 2018 the Father uploaded several Facebook posts eluding to the Mother and lamenting his lack of time with X.[30] The Mother referred to a number of posts to support her allegation that the Father has a vindictive nature at times. The Father agreed that he did in these posts call the Mother pure evil, weak, controlling, narcissistic, cruel, deceitful, and abusive. These posts are from when the Mother did not permit the Father to see X — one post in particular, from August 2018, includes an image shared by the Father which reads: ‘the real deadbeat is the woman who keeps her child from a loving father’. The Father agreed that he made these posts because he was frustrated about the Mother keeping X from him. This much is indicated by a post from 5 July 2018:
To my baby girl this is just a post that in this new age world where records that are saved in a phone for when you need to know the truth your daddy and your sisters will always be hear [sic] and love you mummy may keep you from us for a bit as people are saying the wrong things to her but always know we will never stop fighting with the law on our side and when you are old enough to ask about the truth you family will show you we miss you every minute of the day xx ❤
[30] Mother’s tender bundle (n 13) annex -16.
The Father said under cross-examination that he regrets saying that he was keeping records to show X ‘the truth’ — that he and her sisters loved her, but were kept from her by the Mother. He conceded that his posts were unfortunate and inappropriate. The parties have consented to a final non-denigration order, including a restraint against publishing anything in relation to these proceedings on social media. I accept that the Father made these posts out of frustration and I am confident he will not repeat this behaviour.
It appears that, since mid-2018, the parents have struggled to communicate in their co-parenting relationship. Their communications through AppClose were referred to by Mr Roberts to demonstrate the Mother’s purported interrogation of, and reluctance to cooperate with, the Father. The Father says that the Mother does not encourage in person or FaceTime contact, noting in particular his allegation that the Mother does not pick up his calls unless he calls exactly on time. The Mother, in turn, alleges that the Father was at times intoxicated during FaceTime contact, and that he would try to bribe X with toys. The Father denies these allegations. He is also suspicious of the time he has missed due to X’s health problems since, from his perspective, these instances may have just been an excuse for the Mother not to facilitate X’s time with the Father. He referred to a number of AppClose messages, of which I have extracted relevant parts below:
Mother:
[5/6/2018, 11:43 PM]
Hi [Mr Briggs], I have been and will continue to following court orders for phone calls at 5pm (your late calls for the past 3 weeks have not been answered) and visits every 2nd Sunday as per your compliance to alco tests.
…
Father:
[6/7/2018, 5:21:31 PM]
[Ms M] has just got hear [sic] can she ft [FaceTime] X please
Mother:
[6/7/2018, 6:04:24 PM]
I will ask again to keep ur emotions to urself when u r facetiming [X]. And pls dont entice [X] by saying things like [Ms M] will be hear [sic] soon or that she wld like to see [X]. This is the last time i will ask u to keep this in check.
…
[8/7/2018, 4:42:49 PM]
I hve left it up to u today to facetime [X] and will continue to do so after ur not answering twice this morning
…
Father:
[12/7/2018, 10:59:37 AM]
It is not fair on [X] that you keep hanging up when I say that daddy and sisters love and miss you please think of [X]
…[31]
[31] Affidavit (Father) (n 2) annex -02.
As set out at the beginning of these Reasons, the Father commenced parenting proceedings on 3 August 2018.
A welfare check was conducted by police at the Mother’s home on 1 October 2018, during the period in which the Father was not spending any in-person time with X. The police’s entry of this is contained in exhibit M11:
… Police called by suspect, … regarding concerns for his 3 yr old daughter … He stated that the child told him earlier that morning whilst on a ‘FaceTime” call, that the victim, [Ms BRIGGS] (MOTHER), leaves the child home unattended whilst she allegedly goes out to work as an escort. Attended the premises and upon speaking with the victim, would suggest the allegations made by [BRIGGS] to be completely false. Child was asleep, but sighted and no concerns. House tidy and clean and victim presented well. Victim states that her and the suspect have ongoing custody matters which are now due before a judge in November. She stated that [BRIGGS] is clutching at straws due to prev reports of DV regarding [BRIGGS] which are going to be made known to the court. Victim also alleged prev stalking type behaviour by the suspect where he would show up to the park near her home/local playgroup etc. Advice given regarding any further incidents of such behaviour in the future. Victim stated that the stalking type incidents had not occurred since April 2018. Suggest that behaviour of the suspect may escalate/eventuate to similar behaviour again as victim is considering ceasing phone contact due to today’s events/ongoing psychological/emotional abuse by the susp, which is also affecting her daughter. Victim is linked in with support serv[i]ces. For information.
In essence the Father called the police, allegedly said that the Mother was an escort, and raised concerns about X being supervised by Q, who was 15 years old at the time. It is sufficient to say, without going into the matter too deeply, that the Father’s answers in response to Mr Childs’ and Mr Boehm’s questions about this incident were contradictory and unsatisfactory. He said that, during a call with X, she informed him that she had been left alone. He at first denied calling the Mother an escort, and implied that X told him something to that effect, but ultimately admitted that X (three years old at the time) did not know the word ‘escort’ (or the meaning thereof) and that he did use the word ‘escort’ when reporting his concerns to police. He said that the Mother had told him that she worked as an escort prior to their relationship. In fact, in response to Mr Boehm’s proposition that the Father just wanted to cause trouble, the Father said that he wanted the police to attend the home. He therefore conceded, in a way, that he was not so much concerned with X’s safety around Mr P or Q, but instead wished to inconvenience or put pressure upon the Mother. Given the Father’s concessions about this incident, together with the contents of the police report extracted above, I am not satisfied that the Father’s genuine concern for X’s safety motivated him to initiate the welfare check on 1 October 2018. Further, I am also not willing to accept that he did not recall telling the police that the Mother was working as an escort — he admitted as much when he said he was concerned about ‘getting into trouble’ by saying too much about this incident. It was only after I directed him to answer questions on this topic that he made any concession.
Pursuant to the order of 19 November 2018 the Father attended upon Mr O, a clinical psychologist, on 18 January 2019. Mr O’s report dated 28 June 2019 (filed on 7 August 2019) paints a somewhat grim picture of the Father’s presentation. I note, however, that the Father only attended one session with Mr O, and that Mr O is not the Father’s current treating psychologist. The Mother expressed concern that the Father did not continue to see Mr O at this time given the contents of the report. The Father said that, when he met with Mr O, he had not seen X in several months. As a result, he told Mr O that there was nothing wrong with him and that, in wishing to see X, he would prove his ‘innocence’ against the Mother’s allegations. By 6 May 2019, and for another six visits until 3 August 2019, the Father was spending time with X each alternate Sunday for three hours at the Suburb N Children’s Contact Centre, using that facility’s unsupervised service.
The Father first attended upon Mr F on 17 February 2020. Mr F produced two reports for the Court in 2020 — the first dated 17 April 2020,[32] after five appointments, and the second dated 16 July 2020,[33] after a further four appointments. Mr F’s first report raised what were, in the Mother’s words, ‘alarming’ observations.[34] In particular, she was concerned about the Father’s reported lack of insight as to his alcohol use and his apparent reluctance to change these behaviours. Mr F agreed that, as of writing the April 2020 report, the Father lacked insight to a considerable degree and did not believe he required therapy at all.
[32] Affidavit, Mr F, 22 March 2022 (‘Affidavit (Mr F)’) annex -02, 4.
[33] Ibid annex -03, 11.
[34] Affidavit (Mother) (n 5) [97].
The order of Her Honour Judge Kari (as she then was) dated 18 December 2019 was in place as of X’s fifth birthday in 2020. This means that, pursuant to paragraph 2(c) of those orders, it was anticipated that X would spend between 3:30pm and 6:00pm with the Father on her birthday in 2020. The Father did not attend for that time to occur. He said that his lawyers did not inform him that he could spend that time with X and, as a result, he was not aware of the time as ordered. The Mother said that the Father’s non-attendance was ‘very disappointing’ for X. X was also reportedly upset on 5 July 2020 because she did not want to go to the Father’s home. Instead, she purportedly expressed a wish to spend time with him at the contact centre because she was afraid of being teased at the Father’s home. Further, on 6 August 2020, the Father did not telephone in accordance with the arrangements at that time. The Mother said that X felt let down as a result.
Mr F’s second report, dated 16 July 2020, indicates that the Father had started to meaningfully engage in therapy with respect to co-parenting, alcohol use, communication, and parental conflict. The Father said during cross-examination that he ceased consuming alcohol for two periods of time in early to mid-2020, after his first few sessions with Mr F. It is the case that Mr F, in his July report, says that the Father denied any alcohol use at that time. I will return to the Father’s evidence about his alcohol consumption during this period later in these Reasons. While the July report showed some improvement the Mother remained sceptical, stating that she had ‘no confidence whatsoever that the Father would acknowledge to [Mr] F his long term abuse of alcohol and the impact of the same upon his behaviour’.[35] Mr F’s evidence at trial indicated that the Mother was, at least to an extent, correct to apprehend that the Father would withhold relevant information from Mr F.
[35] Ibid [106].
The parents attended a family dispute resolution conference on 20 July 2020 and, as a result, interim consent orders were finalised on 13 August 2020. Those orders required the Father to undertake alcohol breath tests at the police station at the commencement and conclusion of his time with X, which he found to be controlling at the time. The Mother said that she could not agree to any time beyond the time in the 13 August 2020 orders without ensuring that the Father’s alcohol consumption was under control. She was suspicious that, on a few occasions, the Father was driven to changeover because he had been drinking, although I can make no finding in this respect. The Mother says that the Father did not telephone X on 10 and 22 September 2020 in accordance with paragraph 2 of those orders and, further, insinuated that the Father was negatively influencing X. The Mother raised matters concerning X’s behaviour from August 2020, namely her false allegations of inappropriate touching at school (because she was ‘tricking’) and saying to the Mother that she was ‘going to punch her head in’.
Further interim orders were made on 1 September 2020, which remained operational until the date of the trial. Their communication as to the ongoing arrangements appear to have been strained around this time since, on 30 November 2020, the Mother did not pick up the Father’s call to X because he rang late. The Mother says that he aggressively asked why she did not answer, to which she responded that X was already in the bath. The Father, on the other hand, says that the Mother was being inflexible by not answering his call. Further, and more pertinently, the Mother sets out three occasions upon which the Father allegedly breached the injunction against consuming alcohol, as at paragraph 3 of the 1 September 2020 orders.
The first alleged breach occurred on 25 September 2020. The Mother suspected that the Father had consumed alcohol since he ‘forgot’ his breathalyser at the point of changeover. She says that the Father arrived with Ms E, who took X out to the Father’s car. Then the Father told the Mother that he left his breathalyser in his car, and that he would retrieve it and return to the police station. The Mother said that, once he got to his motor vehicle, he left swiftly with X, without undertaking the breath test as ordered. The Father conceded under cross-examination that he lied to the Mother and had, in fact, left his breathalyser at home because he wanted to spend time with X. I therefore accept that the Father breached the injunction on this occasion.
The second alleged breach occurred on 20 December 2020. The Father attended a wedding the night before and, while he asked the Mother to reschedule X’s time with him to account for this, his time remained scheduled for 20 December. He consumed beer and wine at the wedding, went to bed at 11:00pm, and returned a reading of 0.026% blood alcohol content at 9:00am. The Father confirmed that he attended changeover despite breaching the injunction restraining him from consuming alcohol within 24 hours of scheduled time with X. He further confirmed that he had done the wrong thing and that the Mother did not facilitate time on this date. I accept that the Father breached the injunction on this occasion.
The third alleged breach occurred on 17 January 2021. The Father attended a birthday party the night before, and had again attempted to reschedule his time to no avail. He said that he consumed beer at the party and was home by 11:00pm. The Mother says that, like on 25 September 2020, the Father arrived at changeover saying that he had lost his breathalyser and attempted to leave with X. The Father used a police breathalyser and returned a reading of 0.032% blood alcohol content. He said that, by consuming alcohol within 24 hours before his scheduled time with X, he knowingly breached the injunction and, due to his wrong decision, he did not get to see his daughter. I accept that the Father breached the injunction on this occasion. The AppClose records also indicate that the breach occurred in the manner alleged:
Mother:
[17/1/2021, 9:31 PM]
The horrible situation today of you stating you had lost your breath machine and holding [X] when I said sorry then [X] will not be going with you as orders state above, you left with [X] against these orders and tried to put her in the car. This is unacceptable for [X]'s emotional and psychological wellbeing. It is alarming that you are unable to control yourself and your drinking to comply with the orders and still attempt to traumatize [X] by using her as shield to breach orders placing [X] in a vulnerable position of confusion, hurt and fear. You told me you were going to purchase a new breath machine at 11am when the shops open but at 1038am you sent me your zero reading on your do [sic] called lost device. I agreed for the police officer to perform a breath test today as an attempt for [X] to still visit in line with orders but the result showed 0.032 resulting in the police officer informing you that due to orders stating no alcohol within 24 hours of [X]’s visit the visit was not to go ahead. Today was just another attempt to manipulate the situation by using you holding [X] as a way to breach the court order. This is not healthy for [X] [Mr Briggs] and I will be speaking with my lawyer on current handover procedures which are not working to maintain smooth and healthy handovers for [X].
Father:
[1/18/2021, 9:29 AM]
I agree and this will not happen again[36]
[36] Affidavit (Father) (n 2) annex -03, 12.
I have found that, on three occasions, the Father breached the injunction prohibiting alcohol consumption within 24 hours prior to or during X’s time with him. I will discuss the Father’s alcohol consumption in more detail later in these Reasons. For now, however, these three breaches indicate that the Father, at least at that time, prioritised consuming alcohol ahead of spending time with X. I note also Ms K’s account of her interview with X in which she reports that X knows her parents do not get along:
… She knew this because ‘when Dad lost his blower at the Police Station they had a fight and Dad got angry and screamed at Mum and they took me and it was against the law’. She added, ‘I knew that without his blower he couldn’t take me, Mum told me’.[37]
[37] Family Report (n 1) [67].
The Mother also suspects that the Father had been drinking on 14 March and 23 May 2021 since, on both occasions, he attempted to arrange for family members to pick X up for him at the start of his time. He said on 14 March that his car had broken down, and on 23 May that he had gastro, but the Mother suspected that he was trying to avoid attending changeover himself, knowing he would return a positive result. Of course, the Mother cannot account for what was in the Father’s mind at those times, and as such I can make no finding. The Mother refused the Father’s request on both occasions. I note that the text of the order, at paragraph 2(a), does not allow for alternative changeover arrangements to be made even with both parents’ consent.
Mr F provided an updated report on 11 March 2021. The Father attended upon him four times since the July 2020 report — 28 September 2020, 7 October 2020, 19 October 2020, and 11 February 2021. In light of the Father’s conduct with respect to alcohol consumption between September 2020 and January 2021, Mr F’s March 2021 report provides a suspiciously glowing account of the Father’s progress:
To [Ms Y] Date of letter: 11/3/21
Re: [Mr Briggs]
Since the last report on 16/7/20, [Mr Briggs] has gained significant insights into his behaviour and its impact upon others.
He understands the necessities and strategies required for co-parenting and in observing healthy boundaries between himself and his ex-partner.
He is aware of the need to always be aware and competent while in the company of children or while responsible for children and to my knowledge he has been observing this while caring for his other daughter.
He is aware of the necessity of maintaining a respectful attitude towards his ex-partner and to ensure that he always maintains this respect while in the company of his child and or his ex-partner.
[Mr Briggs] has developed insight into any behavioural flaws and he has demonstrated that he is able to accept, acknowledge and change any problematic behaviours.
At this point, it is my expert opinion as the treating clinical psychologist for [Mr Briggs], that there are no barriers, that I am aware of, to him having extended and unsupervised access to his daughter [X].
The Father’s evidence in respect of his therapeutic engagement left much to be desired. He said that he told Mr F that he breached the injunctive order and that, in response, Mr F told him that if he does it again he will not be able to see his daughter. Mr F, on the other hand, was firm under cross-examination that the Father never informed him that he breached the order by consuming alcohol prior to his scheduled time. It is for this reason that Mr Childs submitted that Mr F’s reports are flawed — he was not told about something which would have informed his clinical assessment of the Father.
X appears to have been a little unsettled in the first half of 2021, at least from the Mother’s account. She says that X cried after a phone call and because she did not want to go to the Father’s home, and that she told the Mother that ‘daddy lies’ and that she ‘doesn’t want to go there anymore’.[38] X cried after the Father, again, did not attend the police station for her time with him on her sixth birthday in 2021. This was, according to the Mother, very disappointing for X. Further the Mother says that, when X asked the Father over the phone the next day why he did not attend, he replied that the Mother did not tell him, which she says was misleading as the orders clearly provide for time on X’s birthday.[39] X also apparently said that she did not feel safe to cry at the Father’s house, and that he lies to her, but did express a wish to see him at the contact centre.
[38] Affidavit (Mother) (n 5) [139]–[140].
[39] Ibid [144].
Mr F prepared an updated report dated 17 November 2021. The Father attended upon him three further times — 11 March, 7 September, and 5 October 2021 — between the March 2021 report and the November 2021 report. Mr F reported that he did not consider that the Father required any further treatment and that the consults since March occurred on a ‘monitoring basis’. Again, as of the November 2021 report, Mr F was unaware that the Father breached the injunction against alcohol consumption three times. The Mother’s position is that the report is inaccurate on this basis. Mr F clarified his position under cross-examination, which I shall detail when I set out the evidence provided by Mr F at trial.
Ms K, in the family report dated 23 November 2021, recommends that X’s time with the Father build to overnight time on alternate weekends between 5:00pm Saturday and 5:00pm Sunday in three months’ time. Then, in another three months, she recommends time build to alternate weekends between 10:00am Saturday and 5:00pm Sunday. From twelve months since overnight time commences Ms K recommended that time again build to alternate weekends between 4:00pm Friday and 5:00pm Sunday, plus additional time in school holidays and on special occasions. This is, of course, on the proviso that the Father continues to undertake breathalyser testing and comply with orders restraining him from consuming alcohol, and that any future report from Mr F does not raise any issues.[40] The Mother, as with Mr F’s 2021 reports, says that Ms K’s recommendations are flawed because they do not account for the Father’s breaches of the order, or his attempt to ‘abscond’ with X on 17 January 2021.[41] The Mother also says that X has given accounts of the Father drinking alcohol in her presence. X told Ms K of the same,[42] but the Father alleges that the Mother has coached X to report these claims. The Father fervently denied that he consumed alcohol or smoked in X’s presence and, in any event, there is no positive breath test result to corroborate the Mother’s claim. This does not, however, exclude the possibility that X may have seen others at the Father’s home consuming alcohol or smoking.
[40] Family Report (n 1) [91].
[41] Ibid [157].
[42] Ibid [88].
The parents are, by this point in the litigation, clearly at odds about what they believe to be best for X. They also still struggle to communicate with one another — the Father continues to have misgivings about the Mother’s psychological state and methods of communication, and the Mother lacks trust in the Father after he thrice breached the injunction against consuming alcohol and, further, failed to raise these breaches with Mr F. The Father says that the Mother bullies, harasses, and micromanages him over AppClose, although he did not press for an order that the Mother undergo a psychological assessment. This is despite his evidence that the Mother would have ‘episodes’ in which she would ‘blow up’ in stressful situations, become verbally and physically aggressive, only calming down and returning to ‘normal’ if he would apologise. He also expressed concerns that the Mother overinflates his statements into ‘lies’. For example, the Father told X he might ‘one day’ get a rabbit, which the Mother says was a lie to gain X’s favour. Further the Mother has, on occasion, allegedly told the Father that he has no right to have anything to do with X. Some extracts from the AppClose communications and emails between the parents reflect these concerns to an extent, noting that these extracts date from the immediate aftermath of final separation:
Mother:
[30/06/2018, 8:11:19 AM]
I advised u Tuesday that when the care plan is in place and when I talk to my lawyer u will see [X]. As nothing is legally in place [X]’s safety is paramount. U hve broken a stat dec agreement on property settlement and broken once again my trust in what u agree to. Ur lies are mounting up. As u hve threatened to with hold [X] previously I can not trust u to uphold ur agreements to the care of [X] will b determined with the help of legal aid. If u r unable to maintain ft [FaceTime] with [X] where u r not making promises that can not be kept or blaming me for u not seeing [X] then for [X]’s emotional wellbeing ft [FaceTime] with her will have to cease until appropriate care orders are in place. U hve clear indication now of [X]’s care and safety so pls stop sending me txt messages as we hve nothing further to discuss or it becomes harassment.
Father:
[30/06/2018, 8:30:55 AM]
I did not keep her and I don’t plan to I am waiting to sort that legally stopping her seeing me is only hurting [X] which you have claimed is your main concern please stop using [X] as a weapon[43]
…
Mother:
[by email dated 3 July 2018]
…
Your inability to follow your own agreement in the stat dec is anough [sic] to let me know that you cannot be trusted.
In regards to [X]’s care arrangements that was agreed in a separate stat dec there is no reason for you to honor your word in that either.
…ased on the continued drinking problem that plagued our relationship that inevitably has led to the breakdown of our relationship with the discontinuation of counselling as an atempt [sic] to resolve things and the incident on the 18th May where I ended up leaving at 11pm taking [X] with me. The safety of [X] is always my priority and since on the 18th of May and nearing the end of our relationship closer to our separation where the police responded to the house at [AF Street] I will be keep [X] in my care until further notice. These are supported grounds for withholding [X] from your care as advised by my lawyer. She has let me know that legal aid proceedings are underway and may be a couple of months off she can not tell unless you or I begin court proceedings.
I will seek further legal advise [sic] to ensure that I am best informed in all area’s [sic] and I suggest you do the same.[44]
[43] Affidavit (Father) (n 2) annex -02, 9.
[44] Ibid 10.
More recent AppClose messages reveal the lingering communication difficulties between the Mother and the Father. The Father referred to some of these messages to support his proposition that the Mother is overbearing and dictatorial, that she sends an unmanageable volume of information, and that she does not confine their conversations to co-parenting matters concerning X.[45] I understand the Father’s position in this respect. The Mother has, since mid-2018, maintained a degree of vigilance and rigidity which is at times disproportionate to the matters at hand. The following extracts, as annexed to the Father’s affidavit, evidence occasions of her somewhat overbearing demeanour as recently as early 2022:
[45] Ibid annex -03, 13 (message of 2 January 2021 concerning sunscreen), 17 (message of 18 July 2021 concerning X’s cough and diet), 19 (message of 26 September 2021 concerning X’s cough, runny nose, and diet), 22 (message of 26 February 2022 concerning X’s diet and immune system), 23 (message of 13 March 2022 concerning X’s behaviour and diet).
Mother:
[26/09/2021, 9:02 AM]
Hi [Mr Briggs], [X] has been off school since Thursday with a runny nose, cough and this morning she had a bit of a sore stomach. Please make sure she eats healthy (fruits, berries of course, she likes small cucumbers and cherry tomatoes). Eating healthy will ensure she recovers quickly and does not get worse. As i have said previously refined sugar shuts down the immune system and renders a person vulnerable to sickness so please no sweets today and lots of water. She has been at home the whole time resting with me but if she ran to her room this causes her to cough so please no running around too much. [X]'s health is the priority here and i appreciate your assistance on maintaining her health while in your care. Thanks. [Ms Briggs][46]
[46] Ibid annex -03, 19.
…
Mother:
[26/02/2022, 3:31 PM]
Hi [Mr Briggs], on the 21 & 22 a student in [X]'s class was at school with COVID-19. [X] developed symptoms on Thursday of a sore throat and stayed home Friday from school. She tested negative for COVID Friday but in going to the doctor today they have prescribed her antibiotics for a sinusitis. She has rested all day Friday and today. I would like her to still take it easy tomorrow too so her immune system can recover. I have said she can go in the pool for a couple of hours (2) but because being in the pool really uses up alot of energy i am asking for you to please have her taking it easy for the rest of the day and not to overload her with sugar which will not help her immune system at all. Vitamin C based fruits will strengthen her system. Can you please respond to this message in agreement with my request so that [X] is able to visit and i am in confidence that you will help her to strengthen her immune system with healthy foods, the 2 hours in the pool and taking it easy please? Thank you [Ms Briggs]
[26/02/2022, 6:17 PM]
[Mr Briggs] i am waiting for your response to confirm you agreement for [X]'s health. When i receive your response it will also confirm [X]'s visit tomorrow.
Father:
[26/02/2022, 6:27 PM]
Yes [Ms Briggs] I totally agree
Mother:
[26/02/2022, 6:39 PM]
Thank you. We will see you in the morning[47]
…
Mother:
[13/03/2022, 7:46 PM]
Hi [Mr Briggs], I would like to remind you about having healthy eating options for [X] when she is visiting you. She has had a very erratic behavior after being at your house and became very emotional. I suspected it was a sugar high and asked her what sweets she had today and she told me she had 2 ice-blocks, chocolate, lollies and Macdonalds. I have messaged you previously of the effect of sugar on a child’s immune system, and find i must remind you again that too much sugar shuts down the immune system rendering children vulnerable to sickness. As a parent you are responsible for [X]'s health and under current circumstances you are being irresponsible in promoting healthy eating and immune system. [X] has 11 children left in her class due the rest being in isolation with COVID and strengthening her immune system is a major priority. Please make sure you maintain healthy eating for [X]. I have said she is allowed 2 sweets so if you can do the same it would support [X]’s health. You are still required to have a supervisor with you whilst [X] is in your care and that includes when going out for macdonalds which [X] said [Ms E] and [Mr AB] went and got whilst you and [X] stayed at the house. This is a breach of order again. Please follow correct orders. Can you please respond to confirm your acknowledgement and agreement of this message. Thanks [Ms Briggs]
Father:
[13/03/2022, 8:09 PM]
Hi [Ms Briggs], thank you for your feedback. Do you think that her "behavioural issues" may have something to do with the fact she is confused, wondering why she can't spend more time with people that love her and want nothing more than the best for her? I love her as much as you do, I want nothing more than for her to be a happy person. There's a saying I've heard lately that I think is kinda appropriate, it is, "A child's shoulders are not broad enough to carry the burdens of an adult." Do you ever wonder if you are doing more harm than good? You knew when we reversed the vasectomy to have her that she would never, ever want for love because she is surrounded by it. I guess that what makes it hard when you say "follow orders." I have her for one meal a fortnight, which is 1 out of 42, hardly a health risk, particularly when I want nothing more than for her to be healthy, well adjusted child just like you do. As a father of 5 girls, I reckon I've got this covered.
Thanks, [Mr Briggs].[48]
[47] Ibid 22.
[48] Ibid 23.
I also accept that the Father has made conscious efforts to interact with the Mother in a manner that is calm and respectful, so as to provide X with cooperative parenting arrangements. Although he has at times been frustrated that his time with X has not advanced as he may have wanted, he has largely complied with the restrictions upon his time. Mr F opined that his compliance and patience shows that the Father is more mature, and that he more fully understands the need to slowly increase the time arrangements so as to build trust with the Mother. This, together with Mr F’s evidence as a whole, gives me confidence that the Father will continue to improve his attitude towards the Mother and parenting generally. I agree with Mr F, however, that a further six months of counselling (including no less than eight sessions) will assist the Father and ultimately X. The Father will also benefit from the further support such counselling will provide as X’s time with him increases. The Mother also places great faith in Mr F, and further counselling will assist her to manage her own anxiety in relation to X’s time in the Father's care.
The Mother's attitude to parenting has also been scrutinised during these proceedings. The Father did not spend any time with X for the better part of one year. Notwithstanding my findings regarding family violence and the Father's alcohol use, it is difficult to understand how such a decision was child focused. Fortunately, this does not seem to have impacted upon X’s relationship with the Father. The Mother has also been slow to increase X’s time with the Father and, particularly in light of her forgiving view of Mr P, has maintained an overly restrictive view of the time X should spend with the Father. The Mother appears to have a somewhat blinkered outlook with respect to the Father's improved attitude. Although the Mother's concerns are genuinely held is incumbent upon her to adapt her thinking to changed circumstances, and Ms K’s observations and recommendations seem to have had little influence upon the Mother. This is reflected in the Mother’s proposal for time, which is too restrictive and ultimately would not develop and promote X’s relationship with the Father. That said, I have confidence that, if the report from Mr F is positive and the Father's time progresses without incident, the Mother's trust in him will grow. As I have commented, the Father's caring attitude towards the Mother following the death of her father showed great maturity on the Father's part, which one hopes is a sign of a better level of understanding and cooperation between the parents into the future.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
I have already made relevant findings in relation to family violence at paragraphs 117 and 122.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the 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; any other relevant matter.
The Father’s offender history summary report shows two domestic violence restraining orders for offences in 2007.[108] The specific terms of each order are unknown. Both orders were revoked upon being heard in the Magistrates’ Court of South Australia in Suburb R. It is unknown whether the orders were revoked upon application of the police, the person for whose benefit the order was made, or the Father himself. From issue to revocation, the first domestic violence restraining order was in two and a half months, and the second was in place for eight and a half months.
[108] M9 (n 57) 4–5; Family Law Act 1975 (n 72) s 4 (definition of ‘family violence order’); Domestic Violence Act 2004 (SA) s 4, as at 13 January 2002 and 4 September 2006.
I can infer that the 2007 order relates to the Father’s conduct with respect to Ms AD from 2007. I do not know any details of the events leading up to the 2002 order being imposed. As for the circumstances in which those orders were made, I have already discussed the Father’s periodically volatile past. Both orders are now a considerable expanse of time behind him and, given his behavioural improvements and ongoing course of counselling with Mr F, I need not address the domestic violence restraining orders further.
Section 60CC(3)(l): whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child
These proceedings were filed in 2018. X is seven years of age meaning that she has been the subject of family law litigation for the majority of her life. It is therefore imperative that X is not exposed to further conflict arising out of family law proceedings. I intend to make orders that will provide the best chance of achieving that outcome. In my view, the ICL’s proposal provides the greatest chance of realising this aim, in that it proposes a sensible increase of X’s time with the Father. That time will also occur at a pace that will enable the Mother to adapt to the change. Provided the Father adheres to the conditions of his time as foreshadowed, there is no reason to think that his relationship with X cannot develop and prosper, and that X will not enjoy the benefit of spending regular time with both of her parents. The ICL’s proposal also provides opportunity for the parents to develop a greater level of trust and alliance with each other. Mr F’s report, while not a precondition to tie progressing, will nonetheless assist their co-parenting relationship. The Mother holds confidence in Mr F’s clinical opinion and the Father indicated that he intends to meaningfully engage in therapy.
There is every prospect that, in future, the parents will not have to return to this Court to resolve issues concerning X. This depends on the parents working together, building their relationship of trust, maintaining respect, and improving their communication even further than the level already attained.
Parenting plans
The legislative pathway for determining parenting applications requires consideration of the parties’ most recent parenting plan, if any.[109]
[109] Family Law Act 1975 (n 72) s 65DAB.
The parents entered a parenting plan on 19 April 2018. A copy of the parenting plan is annexed to the Father’s affidavit and extracted in full on the following two pages of these Reasons. [110]
[110] Affidavit (Father) (n 2) annex -01.
Agreement of Child Parenting Plan
Between:
[Ms Briggs]
And
[Mr Briggs]
Parenting Plan to be in place until a formal agreement is reached through either mediation or legal aid assistance.
Parenting responsibility
1.The [Ms Briggs] is the Primary Carer of [X].
2.That [Mr Briggs] will have [X] every second weekend from Friday afternoon to Sunday afternoon.
3.That each parent will maintain contact with the other on behalf of [X] through Facetime when in their care as this has successfully enabled over-night stays with minimal disruption to [X]’s well-being.
4.Both parents agree to maintain sleep routines to keep a predictable and known routine for [X] that ensures her well-being.
5.Neither parent will with-hold [X] from the other at any point in time and return times are to be adhered to as per the arrangement in this document.
6.Requests for extra time need to be communicated with as much time as possible and more than 48 hours’ notice; is dependent on the parent with whom [X] is schedulable to be with at the time.
[X]’s birthday [2018]
1. [X] will have half the day with each parent
a.In the morning with [Ms Briggs] up until and including [X]’s morning sleep from 11am to around 1230-1pm.
b.[Mr Briggs] will have pick up [sic] [X] from [AE Street, Suburb U] for a 2pm event start time at [Mr Briggs]’s residence of [AF Street, Suburb H].
c.[X] will be picked up by [Ms Briggs] at the agreed time of 6pm where handover will take place at [AF Street, Suburb H] between [Mr Briggs] and [Ms Briggs] only. No other party is to be present during handover.
During these times the following list of expectations for the above:
1.There will be no negative speaking or conversations regarding either parent, the details of relationship issues, family opinions, and the incident with the Facebook video posted by [Ms L], or in relation to the parent’s attempts to resolve their differences or the nature of [X]’s place of residence in the presence of [X].
2.In respect to [X]’s care with [Mr Briggs], [X] is to be supervised by an adult 18 years and up when with [Ms L]. At no point will [Ms L] be with [X] unsupervised.
Moving forward
1.[Ms Briggs] has an appointment 23/04/18 with legal aid to ascertain the direction for organising a parental plan through the appropriate legally binding government agencies.
2.Upon sourcing information on appropriate sources of parenting plan, both parties have agreed to sign the parenting plans and property settlement as per the details agreed below
a.The [Motor Vehicle 1] will be paid out by [Mr Briggs] and be transferred in ownership to [Ms Briggs] without any cost or stamp duty as per a JP signed document detailing the transfer is to [Mr Briggs] [sic] wife [Ms Briggs].
b.At such time [Ms Briggs] [sic] name will be removed from the ANZ home loan on [AF Street, Suburb H].
c.[Ms Briggs] will maintain her superannuation in full.
d.All furniture and contents at each property will remain.
e.As [Mr Briggs] purchased a [motorbike] after [Ms Briggs] moved out of [AF Street, Suburb H] this remains his responsibility in full.
If the above agreement is not upheld for property settlement then the asset split will proceed along the normal line of division of all assets including the house at [AF Street, Suburb H].
This letter of intent is private and confidential between [Ms Briggs] and [Mr Briggs] and may not be shared with any other party unless the agreement has been breached and the intended party is law enforcing.
This agreement will be superseded by the legally binding agreement once it has been completed through the appropriate channels.
[signature] [signature]
[Ms Briggs] [Mr Briggs]
Date: 19/4/18 Date: 19/4/18
The Mother says that, when the parenting plan was signed, she was concerned about the Father’s alcohol consumption. She further noted that the parenting plan was subject to several conditions and that, going forward in the final orders, the Father’s time should not be subject to those onerous conditions. The Mother further clarified that, since they had both agreed to attend counselling at that time, the plan existed just in case they did not get back together. She says that the Father withholding X on 13 April 2018 motivated her to put the agreement into effect and to get it signed. She said that she stopped adhering to the parenting plan after two to three visits and thereafter withheld X for the better part of one year.
The parenting plan establishes that, at the time of separation, the Mother was prepared to allow the Father unrestricted alternate weekend time. This suggests that she may have had greater confidence in the Father at that point. It is clear, however, that the Mother's trust in the Father eroded shortly after the parenting plan was signed. There is also a question as to whether the terms of the plan were in X’s best interests, given my findings regarding family violence and the Father's alcohol consumption. Consequently, I give little weight to the terms of the parenting plan.
Parental responsibility
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[111] A parent does not have rights over their children — they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation, parents are not by virtue of their changed relationship with one another absolved from their responsibilities to maintain and care for their children.[112]
[111] Family Law Act 1975 (n 72), s 61B.
[112] Ibid s 61C.
Parental responsibility can, however, be apportioned to suit a post-separation life.[113] It is important that, wherever possible, separated parents cooperate to promote their child or children’s best interests, as well as to help each other with the responsibilities and challenges of parenting. Where equal shared parental responsibility is ordered the Act requires major long-term decisions be jointly made. I note, however, a possible anomaly within s 65DAC — namely, subsections (2) and (3)(b). The need to come to joint decisions is, from the language of the provision, is non-negotiable. Yet, the section also requires consultation in relation to the issue and the ‘genuine effort’ of all parties involved to come to a joint decision on that issue. It is entirely possible that all parties involved may make a ‘genuine effort’ to make a joint decision but nevertheless fail to do so. They may simultaneously comply with sub-section (3) and breach sub-section (2) — a problem for which s 65DAC appears to offer no resolution.
[113] Goode & Goode [2006] FamCA 1346, [39].
I note at this point that the presumption of equal shared parental responsibility does not apply by virtue of my findings of family violence at paragraphs 117 and 122.[114] I am satisfied on the balance of probabilities — over and above the standard of reasonable grounds of belief — that family violence took place. I am in these circumstances not required to make an order for equal shared parental responsibility.[115] I may nonetheless make such an order if I consider it to be in X’s best interests, as I remain bound under s 60CA to regard her best interests as a paramount consideration in making any parenting order.[116] If the evidence suggests that it is in X’s best interests for her parents to have equal shared parental responsibility for her, I can make that determination and craft an order accordingly. The question at this juncture is whether, having regard in particular to the parents’ level of communication, it is in X’s best interests for her parents to jointly exercise parental responsibility.
[114] Family Law Act 1975 (n 72) s 61DA(2).
[115] Koyroyshs & Koyroyshs [2020] FamCA 626, [84] (Harper J), at which his Honour cites Marvel & Marvel (No 2) [2009] FamCAFC 101 and states that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.
[116] Robertson & Sento [2009] FamCAFC 49, [41] (Warnick J): ‘[s 61DA(2)] does not say that, if there are reasonable grounds to believe one of the nominated circumstances exists, equal shared parental responsibility, qualified or unqualified, shall not be ordered, but merely that the presumption does not apply (at all)’. I have extracted His Honour’s reasoning because his assessment is consistent with the wording of s 61DA(2), and with the concept of the presumption as a legal mechanism which does not prevent an order being made in pursuance of s 60CA.
As outlined at the end of the chronology, and notwithstanding the parties’ consent as to equal shared parental responsibility, there lingers some apprehension about the parents’ capacity to meaningfully and respectfully communicate with each other. The Mother initially sought an order for sole parental responsibility obliging her to provide the Father with information particularly about X’s education and health. The parties have since agreed on an order for equal shared parental responsibility and, while their communication has improved significantly, it remains a little shaky in the face of big and perhaps difficult decisions. The parents struggled to communicate immediately following separation in 2018. Indeed, they did not verbally communicate at all for some months leading up to the final hearing, with their communications taking place purely through AppClose. Communication difficulties are predictable in the aftermath of relationship breakdown but, moving forward, and in light of the order for equal shared parental responsibility being agreed, I must satisfy myself that such arrangements will be functional. I have already concluded that, given their improvements (together with the proposed therapy, loose supervision, and injunction against alcohol consumption), it is likely that the parents will not return to the Court to re-ignite litigation about X. I must still assess whether, in the context of equal shared parental responsibility and s 65DAC, they are capable of fulfilling those obligations.
Both the Mother and the ICL support an order for equal shared parental responsibility, and do not specifically raise issues as to the parents’ capacity to reach joint decisions. The Father’s evidence raises some issues, including allegations that the Mother ‘parents’ him and micromanages his time with X through AppClose. The Father says that, at the moment, he would not be confident that he and the Mother could work out between them whether X could attend family weddings or other family or friends’ functions or events. He said that maybe one day they could, but not at the moment. The fact that the Father expressed hesitation at the possibility of negotiating one-off instances of whether X would attend certain events perhaps indicates that they cannot yet communicate effectively enough to jointly exercise parental responsibility. This is particularly concerning since the Mother said that, if her proposal is adopted by the Court, she recognises the possibility of more time beyond that proposed, to be arranged by negotiation between herself and the Father. This is her position despite her evidence that they have not again communicated at the impressive standard shown when her father passed away in early to mid-2022. She hopes, however, that continued therapy can improve their relationship as co-parents and their communication to this end. In particular, in light of the remaining restrictions upon X’s time with the Father, X will benefit if the Mother can develop more benevolent and positive approach towards the Father.
I am satisfied that the Mother and the Father are capable of genuinely consulting with each other to reach joint decisions about major long-term issues concerning X. The evidence confirms that they have, on one occasion, communicated in an exceptionally respectful and efficient manner in relation to X’s parenting arrangements. Notwithstanding his concerns about the Mother’s micromanagement the Father has consciously made efforts to communicate constructively, and not react in the way he would have a few years ago. He showed notable empathy when the Mother’s father died, and the parents amicably agreed upon time in New Zealand and compensatory time for any time lost with the Father. This was mature and child focused conduct from both parents. The Mother and the Father, in consenting to an order for equal shared parental responsibility, have manifested a wish for the other to be involved in big decisions affecting X’s life. The Father is excited to be more involved in X’s life after a period of absence (followed by relatively restricted arrangements). The Mother also confirmed under cross-examination that she wanted to consult the Father and jointly decide upon major long term issues. Further, with respect to X’s time with the Father, the Mother expressed a hope for more flexible arrangements in the future, indicating her faith in their developing co-parenting relationship. They will need to continue building trust in each other by, at least in part, both parents attending therapy as ordered and observing the conditions upon X’s time. It will also be a step in the right direction for the parents’ communication once they are free from the adversarial environment of family law litigation. Both parents are prepared to put in the effort for X’s sake and, as such, I am satisfied that it is in her best interests for there to be an order for equal shared parental responsibility.
Equal time or substantial and significant time?
As there will be an order for equal shared parental responsibility, I must consider whether there should be an order for an equal time arrangement or, alternatively, a substantial and significant time arrangement. As explained by the High Court in MRR & GR, either arrangement must be reasonably practicable and in X’s best interests if it is to be ordered.[117] If ordering equal time is in X’s best interests and otherwise reasonably practicable then I must consider making an order to provide her with equal time arrangements. If I do not order equal time I must consider whether X should spend substantial and significant time with one of her parents. I will undertake this assessment, again, with reference to X’s best interests and whether spending substantial and significant time with both parents is reasonably practicable.[118]
[117] MRR & GR (n 88), [37]; Family Law Act 1975 (n 72) s 65DAA.
[118] Family Law Act 1975 (n 72) ss 65DAA(2), 65DAA(5).
Assessment of whether an equal time arrangement is in X’s best interests and reasonably practicable
None of the parties sought an order for equal time, nor did Ms K recommend such an arrangement. Ms K instead recommended that the Father’s time build every three months culminating in three nights per fortnight during school terms and one half of school holidays. This is, of course, on the proviso that the Father observes the conditions included in the final orders.
An equal time arrangement would create a significantly different routine than the one to which X has become accustomed. Their communication has (and will continue to) improve, but a sense of mistrust lingers — this will take time to heal. The Mother is cautious about the amount of time that the Father spends with X in any block. She has misgivings about such time extending beyond two nights, even during X’s holidays. The Father maintains that the Mother’s proposal reflects her micromanagement and restrictive outlook but, even then, equal time goes beyond even the most daring of the parties’ proposals. It remains for the Father to develop his insight about his alcohol use and impact of his past behaviour, and for the parents to improve their communication skills. Importantly, it is not known how such a significant change would affect X even if the arrangements built to equal time. In these circumstances I find that it is neither in X’s best interests nor reasonably practicable for X to spend equal time with her parents during both school terms and school holidays.
Assessment of whether a substantial and significant time arrangement is in X’s best interests and reasonably practicable
All parties proposed some variation of substantial and significant time, which the Act defines as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
The Father and the ICL propose that X spend substantial and significant time with the Father far sooner than the Mother proposes the same. The alternate Friday to Monday arrangements (proposed by the Father to commence three months after the date of the final orders, and by the ICL to commence nine months after the date of the final orders) allow the Father weekend time, as well as time in X’s school routine in picking her up from school on Friday and getting her ready for school on Monday. The ICL’s proposal — three nights per fortnight and half of school holidays by December 2023 — is in line with Ms K’s recommendation of building time every three months and, in doing so, reducing the supervision over such time. The Mother (again, too restrictively) proposes two nights per fortnight during school terms by 18 months following the date of the final orders, with the option for three nights per fortnight in school holidays as of 21 months of the final orders being effective.
The difference between the competing proposals (once any period of building time expires) is one night per fortnight during school terms, plus an option for a further night during school terms if Monday is a non-school day. There is no evidence that one further night per fortnight will in any way detriment X, particularly if she has properly adapted to such arrangement over a number of months. Further, even though the parents are still building on their communication with each other, I have every confidence that they will facilitate the ultimate 3/11 arrangement (or 4/11 arrangement if Monday is a non-school day) and effectively co-parent while X is in the Father’s care. I am satisfied that it is in X’s best interests, and that it is reasonably practicable, for her to spend substantial and significant time with the Father for three nights per fortnight (or four nights if Monday is a non-school day), built up over a period of nine months.
The Father also seeks that, three months after the date of the final order, X spend half of all school holidays with him. The ICL proposes a week-about arrangement by December 2023 after a slow build to five nights per fortnight in October 2023. This was largely in line with Ms K’s recommendation. The Mother maintains that during X’s school holidays her time with the Father should only increase by one night, to a total of three nights per fortnight.
It is important for X to experience the Father during the more relaxed periods during weekends and holidays as well as the more stressful times associated with X’s school days. This is what makes X’s time even more substantial and significant — holidays and weekends are more relaxed, and allow children to connect with their parent’s friends and extended family, engage in extra-curricular activities or other hobbies, or to travel away with their parent. To be fully enjoyed, such activities usually require longer periods of holiday time. The Father’s evidence is that he wishes to build up his business again, allowing him flexibility to take time off work to take X to and from school, and to take time off during the school holidays to spend that time with X.
The Mother is, however, still concerned that the Father may be more inclined to consume alcohol during extended holiday periods. As previously concluded, I will impose an injunction against any alcohol consumption to mitigate this risk while X is in his care. With that restraint in place, and given the Father’s therapeutic counselling obligations as shall be ordered, I am satisfied that there is not an unacceptable risk of X being harmed as a result of the Father’s alcohol consumption and any resulting conduct.
I find merit in the ICL’s proposal to ultimately build to equal time during school holiday periods, although I am satisfied that equal time in this respect can be reached earlier than the ICL proposes. It will still be a gradual build alongside the Father’s growing time during school terms — at first extending to Wednesdays and then to the following Friday. This will allow X the time to adapt to a growing amount of time in the Father's care. I am satisfied that equal time during such periods as and from around September/October 2023 is in her best interests. It will allow X to build her relationship with the Father during those more relaxed periods whilst, at the same time, giving her time to adjust to the greater periods away from the Mother.
With respect to issues 2 and 3, it is also important for X to spend valuable time with the Father for Christmas this year (2022), and with each parent for Mother’s Day and Father’s Day in each year. The parties are not far apart on these issues.
For Christmas 2022, 24–25 December falls on a Saturday and a Sunday, and may therefore fall in the Father’s off-week. The Father will, by that time, be approaching the end of the first three-month stage of time, with X spending overnight time with him between 4:00pm on Saturday and 4:00pm on Sunday. Since the Father will already be spending unsupervised overnight time with X I am inclined to commence overnight time for Christmas in 2022. Those arrangements will continue on an alternating basis for each parent each year, as agreed by the parties for Christmas from 2023 onwards. X will have the opportunity to spend quality time with not only the Father, but with her step-sisters, on the afternoon of Christmas Day, overnight, and then on the morning of Boxing Day. I have, in coming to this conclusion, noted the Mother’s concern that the Father may be more likely to consume alcohol during holiday periods. The Father will, presumably, be in the presence of some or all of his relatives (some of whom will act as supervisors for X’s four visits), and will have by 25 December 2022 undertaken some further therapy sessions with Mr F. I am therefore satisfied that, while this is a bolder step than any of the parties’ proposals, X spending such time with the Father for Christmas 2022 will be safe and meaningful to her.
If X is not in the Father’s care for Father’s Day, or if she is not in the Mother’s care for Mother’s Day, I am of the view that she should in each year spend from 1:00pm on the Sunday until Monday morning before school with the relevant parent. This will allow a meaningful amount of time with each parent on the day, without disrupting X’s regular time arrangements during school terms.
Conclusion
With respect to each issue outlined at paragraph 15, I conclude that:
(1)X should spend substantial and significant time with the Father which, after a period of building time, culminates in three nights per fortnight (or four nights per fortnight if Monday is a non-school day), and half of school holidays (again, after a period of building holiday time);
(2)for Christmas Day in 2022, X should spend time with the Father between from 3:00pm on Christmas Day until 5:00pm on Boxing Day;
(3)for Father’s Day and Mother’s Day in each year, X should spend time with each parent (if not already in the relevant parent’s care) from 1:00pm on the Sunday until before school on Monday;
(4)the Father shall, as a condition of his time with X, undertake a course of therapy with Mr F for a minimum of eight sessions over the course of six months, noting also that the Mother shall attend at least one session with Mr F;
(5)the progression of the Father’s time, at any point during the building stages, shall not depend upon a ‘positive’ report from Mr F;
(6)the Father is no longer required to undertake alcohol breathalyser tests at the commencement and conclusion of X’s time with him, but he remains subject to an injunction restraining him from consuming any alcohol in the 24 hours prior to or during that time, with that injunction to remain in place until X attains the age of 18 years;
(7)for the first four instances of X’s time with the Father, the overnight portion of each instance of time shall occur in the substantial presence of any, or either, of X’s paternal grandparents, Ms D, or Ms E;
(8)changeover shall no longer occur at the Suburb R Police Station and, instead, shall occur either at the McDonald’s car park at Suburb C or at X’s school;
(9)X and the Mother will be permitted to travel to New Zealand for up to three weeks per year with the Father’s make-up time to occur within six weeks of the Mother and X’s return to Australia; and
(10)it is not necessary for there to be an injunction, on a final basis, restraining the Mother from bringing X into contact with Mr P or Mr P’s stepson Q.
Having considered the matters set out with respect to the s 60CC factors, and having followed the legislative pathway as described in MRR & GR, I am satisfied that it is X’s best interests to make the orders set out at the commencement of these Reasons. Those orders — providing substantial and significant time, a short but important period of building time, and safeguards to protect X and promote her time arrangements — will give X the opportunity to maintain and develop the meaningful relationships she has with both of her parents. The safeguards in the orders are therapy (primarily for the Father), a short period of loose supervision, and an injunction restraining the Father from consuming or being affected by alcohol during X’s time with him. I am satisfied that those measures are sufficient to ensure that X is kept safe and unlikely to be exposed to parental conflict.
X has been the subject of her parent’s litigation in this Court for much of her life. The Mother and Father can now end the ongoing conflict and create a future for X built on child focused collaboration, mutual respect, and trust. I have every confidence that, despite their differences in the past and currently, both parents will approach this new arrangement for X with such an outlook.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 7 October 2022
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