Cabrera & Enfield
[2023] FedCFamC2F 248
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cabrera & Enfield [2023] FedCFamC2F 248
File number(s): MLC 9691 of 2021 Judgment of: JUDGE GLASS Date of judgment: 15 March 2023 Catchwords: FAMILY LAW – PARENTING – where the mother’s capacity to provide for the child’s emotional needs is poor – where the parties have been unable to successfully communicate and co-parent after separation – where orders for sole parental responsibility and providing for the child to live primarily with the father are in the child’s best interests Legislation: Evidence Act 1995 (Cth), s 144
Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Cases cited: Boyle & Zahur & Anor (2017) FLC 93-814
Champness & Hanson (2009) FLC 93-407
Duarte & Anor & Morse (2019) FLC 93-902
Gosai & Gosai (2020) FLC 93-975
Hearne v Street (2008) 235 CLR 125
Kramer & Another & Ward (2017) FLC 93-817
Makita (Australia) Pty Ltd & Sprowles (2001) 52 NSWLR 705
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McGregor & McGregor (2012) FLC 93-507
Oberlin & Infeld (2021) FLC 94-071
Sahadi & Savva & Anor (2016) FLC 93-704
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 3 March 2023 Date of hearing: 1-3 March 2023 Place: Melbourne Counsel for the Applicant: Dr Ingleby Solicitor for the Applicant: Hartleys Lawyers Counsel for the Respondent: Ms Swann Solicitor for the Respondent: KCL Law ORDERS
MLC 9691 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CABRERA
Applicant
AND: MR ENFIELD
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
15 March 2023
THE COURT ORDERS THAT:
1.The Father have sole parental responsibility for X, born in 2017 (“X”) on the condition that the Father keep the Mother informed in relation to all matters concerning X’s education and health.
2.X live with the Father.
3.X spend time and communicate with the Mother as follows:
(a)During school terms, each alternate weekend from the conclusion of school on Friday or 3:30p.m. if not a school day until the beginning of school on Tuesday or 9:00a.m. if is not a school day.
(b)All school term holidays commencing 2023 as follows:
(i)In relation to Term 1 school holidays, as agreed between the parties in writing from time to time and/or in default of agreement as follows:
A.In the year 2023, for five (5) consecutive days commencing from the conclusion of school until 6:00p.m. on the sixth (6th) day;
B.In the year 2024, for six (6) consecutive nights from the last day of school until the seventh (7th) day at 6:00p.m; and
C.In the year 2025 and onwards, the Term 1 school holidays are to be shared equally between the parties with the child to spend the first week of the school term holidays with the Father in odd numbered years and with the Mother in even numbered years and IT BEING NOTED that the school term shall commence on the last day of school and conclude on the first day of Term 2 with changeover taking place on the second Saturday at 6:00p.m.
(ii)In relation to Term 2 school holidays, as agreed between the parties in writing from time to time and/or in default of agreement as follows:
A.In the year 2023, X spend the whole school term holidays with the Father;
B.In the year 2024 and each alternate year thereafter, X spend one week with the Mother and two weeks with the Father, with the Father exercising contact from the first two weeks being from the beginning of school to the third Saturday at 6:00p.m. and X shall be with the Mother from the third Saturday at 6:00p.m. to Monday in the week of the commencement of school at 9:00a.m. and if it is a non-school day then her contact is to conclude at 9:00a.m.; and
C.In the year 2025 and each alternate year thereafter, X shall spend two weeks with the Father and one week with the Mother with the Mother’s week commencing from the conclusion of school until the second Saturday at 6:00p.m. and X shall be with the Father from the second Saturday at 6:00p.m. to the commencement of school Term 3.
(iii)In relation to Term 3 school holidays, as agreed between the parties in writing from time to time and/or in default of agreement as follows:
A.In the year 2023, for five (5) consecutive days commencing from the conclusion of school until 6:00p.m. on the sixth (6th) day;
B.In the year 2024, for six (6) consecutive nights from the last day of school until the seventh (7th) day at 6:00p.m.; and
C.In the year 2025, the Term 3 school holidays are to be shared equally between the parties with X to spend the first week of the school term holidays with the Father in odd numbered years and with the Mother in even numbered years and IT BEING NOTED that the school term shall commence on the last day of school and conclude on the first day of Term 4 with changeover taking place on the second Saturday at 6:00p.m.
(iv)During the long summer holidays which are deemed to commence on the last day of school and conclude on the first school day in January each year to be exercised between the parties as follows:
A.In the year 2023 and each alternate year thereafter as follows:
(i)With the Mother for the first week for seven (7) consecutive nights;
(ii)With the Father from the second week for twenty-one (21) consecutive nights;
(iii)With the Mother for seven (7) consecutive nights; and
(iv)With the Father for the next seven (7) consecutive nights and to continue on a weekly basis until the commencement of school.
B.In the year 2024 and each alternate year thereafter:
(i)With the Father for the first week for seven (7) consecutive nights;
(ii)With the Mother from the second week for fourteen (14) consecutive nights;
(iii)With the Father for fourteen (14) consecutive nights for the third (3rd) and fourth (4th) week; and
(iv)With the Mother and Father for the balance the long summer vacation on the basis of X spending seven (7) consecutive nights with each parent.
4.In relation to Father’s Day and Mother’s Day, X spend time with the Father from 5:00p.m. on the Saturday preceding Father’s Day until the beginning of school on Monday and likewise X spend time with the Mother from 5:00p.m. on the Saturday preceding Mother’s Day until the beginning of school on Monday.
5.X spend time with each parent on their birthday on the basis that if the parent’s birthday falls on a school night, then X will spend time with that parent from afterschool until the beginning of school the following day and if the parent’s birthday falls on a weekend, then X will spend the day with the parent celebrating the birthday from 9:00a.m. to 7:00p.m.
6.X spend time with the Father for his brother B’s birthday if it falls on a weeknight when X is not residing with the Father, from afterschool until the beginning of school the following day or if it falls on a weekend or such time as to participate in B’s birthday, the Mother is to make X available for this period and in default of agreement, X will spend time with B and the Father on B’s birthday if his birthday falls on a weekend from 2:00p.m. to 7:00p.m.
7.In relation to any public holiday, X spend time with the parent with whom he would ordinarily be residing during that period.
8.On X’s birthday, if it occurs on a school day, X spend time with the parent in whose home he does not wake up from afterschool or 3:30p.m. until 7:00p.m. and if X’s birthday falls on a weekend, X spend time with the parent in whose home he does not wake up, from 2:00p.m. to 7:00p.m. PROVIDED HOWEVER that each parent is able to arrange a birthday party which invites X’s classmates on the basis that each parent is able to provide such invitations each alternate year with the Father to have the option in odd numbered years and the Mother to have the option in even numbered years.
9.In relation to Easter, X spend time with the parent with whom he is living or spending time in accordance with the Term 1 school holidays.
10.In relation to the Christmas period, X spend time with the parent with whom he is ordinarily living with in accordance with the provisions as set out in paragraph 3(b)(iv) herein.
11.X spend time with the Father on the three main Jewish holidays being the days and/or nights which celebrate Pesah, Roshashana and Chanukah on the days which these celebrations fall, such that if they fall on a weekday from after school or 3:30pm until the following day at school or 9:00a.m. and if the special day falls on a weekend when X is not in the Father’s care then from 9:00a.m. on the weekend day until the following day at 9:00a.m.
12.On Halloween namely 31 October, X spend time with each parent on alternating years with the Father in odd numbered years and the Mother in even numbered years. The contact to be exercised as follows:
(a)If Halloween 31 October falls during a school night, then the parent with whom X is to spend time is to collect X from school and deliver him to school the following morning and if it is not a school day then until 10:00a.m.; and
(b)If the day falls on a weekend, then X shall spend time with the parent who shall be exercising the time pursuant to these Orders from 3:00p.m. on 31 October until the following day at 10:00a.m.
13.There be any other contact as agreed from time to time between the parents in writing.
14.The fortnightly contact arrangements as set out in paragraph 3(a) herein shall resume in the same cycle as if the school term holidays and/or long summer vacation has not taken place.
15.For the purposes of changeover which is not at X’s school, then changeover shall take place at the Suburb C Police Station.
Communications
16.The Mother be permitted to contact X by FaceTime or any other like electronic service between the hours of 7:00p.m. and 7:30p.m. on the Wednesday of the week she is not spending time with X pursuant to the fortnightly arrangements.
17.The parties shall communicate through the Our Family Wizard App and ensure that they respond to each other within forty-eight (48) hours of receiving any notification.
18.The parties shall keep the other advised of their current residential address, mobile telephone number and email address and notify the other in writing no less than 14 days prior to any change of residential address and within 48 hours of any change of their mobile telephone number.
Other
19.Both parents keep the other advised of any serious illness or injury to X as soon as practicable and not more than twenty-four (24) hours later and immediately in the case of hospitalisation of X.
20.Both parents keep the other advised of any medical practitioner and/or any other like health practitioner treating X.
21.Both parents be permitted to liaise with any medical or like practitioner treating X to obtain any information ordinarily available to parents (at their own expense) and that this Order shall act as authority for the same.
22.The parties shall be at liberty to attend any significant school or extra-curricular activity to which parents are ordinarily invited, including but not limited to school concerts, sporting events and parent teacher interviews and the like regardless of whether X is in the other party’s care.
23.The parties shall be permitted to liaise with X's kindergarten and school to obtain information about X's progress and obtain copies of reports, photographs, newsletters and all other documents usually provided to parents (at their own expense).
24.Both parents, their servants and/or agents be and are hereby restrained by injunction from:
(a)Discussing these proceedings with or in the presence and/or hearing of X; and
(b)Denigrating, abusing, belittling, or rebutting the other parent or the other parent’s family members and/or friends with or in the presence and/or hearing of X.
Interstate and Overseas Travel
25.The Father be the sole parent permitted to obtain an Australian Passport in the name of X with the Department of Foreign Affairs and/or Trade and ensure that he always maintains a current Australian Passport for X, at his cost and expense and/or further in the alternative the Mother sign all such documents and do all such things necessary for X to be issued with an Australian Passport.
26.The parents each sign whatever other documents are necessary for X to be able to enter any country in which the parties each propose to travel respectively for holidays with X.
27.The parents be permitted to travel with X including outside of the Commonwealth of Australia subject to X remaining always in the primary care of the party seeking to travel, during the travel period.
28.In the event that the parents seek to travel with X outside the Commonwealth of Australia for more than a period for which X is in his or her care, the travelling party may request for an additional period of two weeks unless otherwise agreed to in writing by the parties such that the overseas travel be no more than five weeks and in the event that X travels an additional period of up to two weeks over and above the time that X is spending time ordinarily with that parent in accordance with these Orders, then make up time shall be provided to the other parent.
29.The party intending to travel overseas must provide to the other party no later than 28 (twenty-eight) days prior to the intended date of departure with written confirmation as to the following:
(a)The places and/or countries and the intended itinerary as far as practicable to which X will travel;
(b)The intended airline and booking flights upon which X will travel;
(c)The date upon which X will depart from and return to the Commonwealth of Australia;
(d)The addresses and accommodation bookings at which X shall reside;
(e)Telephone number upon which the other party can communicate with X during the travel period once per week; and
(f)Confirmation that X is covered for comprehensive medical travel insurance.
30.In the event that it is proposed that X travel outside the time with whom X is ordinarily living with or spending time with, then the following shall apply:
(a)The party who has received the request for the other parent to travel with X outside the time in circumstances when this paragraph shall apply, shall advise the proposed travelling parent of any reasonable objection within 14 days of receipt of the written notice pursuant to the preceding paragraph to the party intending to travel and such objection will not be unreasonably made; and
(b)In the event that no objection is received, the party who has received the travel request is deemed to have consented to the travel.
31.In the event that the Mother or Father are travelling overseas and the other parent does not respond to a message within forty-eight (48) hours of the message being sent in relation to communication with X, then that parent be at liberty to communicate with either the maternal and/or paternal grandparents in order to seek a response.
32.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cabrera & Enfield has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
The proceedings concern X, born in 2017. X his now 5 years old. His parents ceased living at the same residence in July or August 2021, following which time he lived on a week about basis with each of his parents.
Pursuant to interim Orders made 13 September 2021, X thereafter lived with his father, Mr Enfield, and spent time with his mother, Ms Cabrera each alternate weekend for five nights. Currently, in accordance with interim Orders made 1 December 2021, X lives with his father and spends time with his mother for four nights each alternate weekend.
Mr Enfield proposes a continuation of the existing arrangements for X, whereas Ms Cabrera proposes a return to the week about arrangement. Mr Enfield proposes that he have sole parental responsibility for X whereas Ms Cabrera proposes the parties equally share parental responsibility for him. The particulars of their competing proposals are contained in their Amended Initiating Application dated 24 February 2023 and Amended Response dated 27 February 2023, respectively.
STATUTORY FRAMEWORK
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth) (“the Act”). I am guided by the objects of that Part and the principles underlying those objects.[1] X’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him.[3] The presumption does not apply if there are reasonable grounds to believe either of X’s parents have engaged in child abuse or family violence. The presumption may be rebutted by evidence that satisfies me it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
[3] Family Law Act 1975 (Cth), s 61DA.
If I determine that X’s parents should have equal shared parental responsibility for him, I am required to consider whether X spending equal or substantial and significant time with each of his parents is in his best interests and reasonably practicable.[4]
[4] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
PRIMARY CONSIDERATIONS
The benefit to X of having a meaningful relationship with both of his parents
Ms Cabrera contends that the arrangements proposed by Mr Enfield for X to spend time with her are “not sufficient for X and the Mother to have a meaningful relationship”.[5] That contention suggests that there is a measure by which the sufficiency of the relationship can be assessed. If it be suggested that such a measure is merely a question of the amount of time X spends with his father, so much would be contrary to authority. Meaningful in this context is a qualitative adjective and not a strictly quantitative one.[6]
[5] Ms Cabrera’s Outline of Case filed 28 February 2023, page 3.
[6] McCall & Clark (2009) FLC 93-405 at [115, 121] adopting Mazorski & Albright (2007) 37 Fam LR 518 at [26].
Whilst “meaningful” in this context is a legal construct and not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship,[7] the quoted contention of insufficiency finds no support in the evidence of the single expert witness, Dr D.
[7] Champness & Hanson (2009) FLC 93-407 at [191].
Dr D’s recommendation is that X’s time with his parents continue in the existing configuration. Of course it is well established that I am not obliged to act on that recommendation, but my failure to follow it would require explanation.[8] By reference to the well-known dicta from Makita (Australia) Pty Ltd & Sprowles,[9] Ms Cabrera suggested to Dr D that she had failed to disclose the steps by which she had come to her reasoning in her reports. I will address how that challenge was particularised by Ms Cabrera.
[8] Vigano & Desmond (2012) FLC 93-509 at [79, 87] and the cases there cited.
[9] (2001) 52 NSWLR 705.
Ms Cabrera suggested to Dr D that she did not set out the “data on the scales” or “the numbers the scales produce” for the psychometric testing undertaken by the parties in her report. Dr D observed that she had provided some of the numbers on the scales in her report. She understood her ethical obligations to require her to provide a detailed understanding of the data in a way the reader can understand and that it is her job to interpret the data. She gave evidence that the data is in her report in terms of the conclusions that can be drawn from it. By way of example, she gives the following evidence in her first report:
… [Ms Cabrera]’s PSI profile showed that the overall level of stress in the parent-child system was relatively low (17th percentile) as were her scores on the Child domain (34th percentile) and Parent domain (6th percentile). Indeed, the score for Demandingness (<1st percentile) is particularly low which suggests a 3-year-old child who is independent and never unreasonably attempts to gain parent attention. It is improbable for a 3-year-old child to be presenting in such a manner and suggests problems in attachment and possible neglect or, alternatively, is representative of socially desirable responding. [Ms Cabrera]’s score on the Parenting Competence (<1st percentile) subscale is similarly surprising as it suggests a mother whose parenting prowess is exemplary in every aspect, or again, socially desirable responding. Notably, [Ms Cabrera] identified experiencing stressors outside the parent-child relationship that are exceptionally high (98th percentile). This score typically represents a parent whose attention is diverted from their child-rearing responsibilities and their energy drained adding to the parent’s burden and increasing the likelihood of dysfunctional parenting. This score is again inconsistent with the profile provided by [Ms Cabrera] and suggests an effortful distortion of her self-representation as a parent.[10]
[10] Affidavit of Dr D filed 24 February 2023, Annexure 3 (“First Family Report”), paragraph 41.
Dr D denied that the raw data did not appear in her report, giving evidence that the data in the report is listed in terms of percentile ranks and comprises a summary of what is produced on the scales. She also gave evidence that she had given the profile on the scale in a prose form. It was her evidence that copyright and ethical obligations prevent her from disclosing individual responses to a question or any graphs produced from the testing instruments. She readily accepted that the raw data could be made accessible to another suitably qualified clinical psychologist for interpretation. Although Ms Cabrera had sought the raw data from Dr D, no request was made by another qualified psychologist for access to it.
I do not accept that Dr D has failed to disclose the steps in her reasoning process by failing to produce the “data on the scales” or the “numbers the scales produce”. Consistent with her professional obligations, she has expressed opinions based on her administration of psycho-metric testing. Her qualification to do so was not challenged, and no application was made for that data to be interpreted by another qualified professional. Put another way, the “data on the scales” or the “numbers the scales produce” could only have been interpreted by a qualified expert. Their disclosure simpliciter would have provided no assistance in determining what weight to give to Dr D’s opinion. Further, as Dr D observed, the psychometric testing was but one of multiple data sources on which her opinions were based.
Ms Cabrera challenged Dr D’s evidence that there “is clear evidence that Ms Cabrera has attempted to pervert the course of justice in her applications for intervention orders against Mr Enfield.”[11] Dr D gave evidence that she used the phrase in a lay sense, but accepted that, on reflection, she should avoid using legal terms given she is not a lawyer. Dr D referred both in her written and oral evidence to the matters that caused her to express the quoted opinion, which underlying facts were unchallenged. I am not satisfied that the use of the impugned phrase generally detracts from Dr D’s opinion.
[11] First Family Report, paragraph 88.
Ms Cabrera challenged Dr D’s evidence that Ms Cabrera’s “lack of empathy, histrionic and impulsive behaviour in response to perceived slights, manipulative and transactional approach to interpersonal relationships and jealous and paranoid ideation about Mr Enfield as well as her grandiose sense of self and sense of entitlement is most parsimoniously understood as narcissistic personality disorder.”[12] Is was suggested to Dr D that she had not explained the observations that establish the existence of those individual traits. Dr D accepted that she had not given her evidence in a way where individual behaviours were correlated with the individual traits quoted. She gave the following oral evidence:
… this is summary information around, there is not a particular one thing that says ok well that’s what points to that, it’s all of the information together in terms of all the historical detail, all of the affidavit material that’s put together, all of the responses that I’ve got from the parents, that points to those sorts of traits..
… they’re the traits that are existing… there is examples of those types of behaviours that have been presented to me in all of the affidavit material and the information that’s been given to me.
[12] First Family Report, paragraph 91.
Ms Cabrera’s challenge in cross-examination to the absence of detail to the conclusions reached by Dr D was confined to the passage quoted in the previous paragraph. Notably, Dr D does not diagnose Ms Cabrera with narcissistic personality disorder. Significantly, it was not suggested to Dr D that other fundamental aspects of her report lacked adequate foundation. By way of example, it was not suggested that the path of reasoning to the following conclusion was inadequately explained:
… the convergent evidence points to [Ms Cabrera] having struggles with perceived criticism from others, paranoid ideation about the intentions of others, a focus on retribution, and struggles to manage her anger. [Ms Cabrera] has limited capacity to focus on the needs of her son in a sustained and emotionally nurturing way. [Ms Cabrera]’s focus on her own tumultuous internal states and her own desires and needs leaves her unable to perceive the impacts of her behaviour on others, and particularly on her son.[13] (emphasis added)
[13] First Family Report, paragraph 88.
Ms Cabrera submitted that there was inadequate particularisation of the facts underlying the following observations of Dr D:
[Ms Cabrera] was observed to give [X] a number of new toys and to demonstrate some level of frustration if [X] did not show positive emotions towards her efforts. Although [X] was observed to be an extremely independent child and often objected to [Ms Cabrera]’s offers of assistance (“I can do it”). Limited proximity-seeking was observed between [Ms Cabrera] and [X] and the interaction was more like a child carer one rather than a mother-child interaction.[14]
I reject the submission. The absence of more granular detail does not deprive the Court of the facts underlying the observations. Other parts of Dr D’s report record more detailed and specific observations of matters upon which Dr D placed particular weight.
[14] First Family Report, paragraph 72.
I do not accept that Dr D has specifically or generally failed to explicitly state the facts and assumptions upon which her opinion is based. I will return to other aspects of her evidence that provides ample support for the conclusions she reaches. I reject Ms Cabrera’s submission that Dr D’s report is not proper expert evidence and the suggestion that it should be given limited weight.
To the extent that the benefit to X of having a meaningful relationship with his mother involves an assessment of the current relationship between them and a prospective consideration of the future benefit to X of having a meaningful relationship with the mother,[15] it is necessary to consider the nature of their existing relationship and Ms Cabrera’s capacity to provide for his needs. Both are additional considerations to which I will return.
[15] Gosai & Gosai (2020) FLC 93-975 per Watts J at [102].
It is uncontroversial that X will live with his father at least half of the time. I infer that it is common ground that he will continue to derive a prospective benefit from a meaningful relationship with his father.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parties make allegations of family violence against each other. Both parties also accuse the other of illicit substance abuse. Nevertheless, both parties propose that X spend substantial overnight time with both of his parents on an unsupervised basis. Those proposals are inconsistent with any assertion that X is at unacceptable risk of harm in either parents’ care as a result of his exposure to family violence or illicit drug abuse. I also find no basis to conclude that X spending four or seven nights per fortnight with Ms Cabrera, or seven or ten nights per fortnight with Mr Enfield will expose him to greater or lesser risk of harm in the relevant sense.
Ms Cabrera gave oral evidence that Mr Enfield used drugs until early 2021. Despite that, she shortly thereafter consented to arrangements for X to live with each of his parents on a week about basis. When that inconsistency was raised with her in cross-examination, she claimed that she felt under pressure to agree to such arrangement. The basis for any such pressure was not articulated by her. Indeed, the assertion appears contrary to her written evidence wherein she deposes to agreeing to the week about arrangement in July 2021 “on the basis of wanting to remain amicable, and being reassured that [Mr Enfield’s] family will assist in the care of X.”[16] The evidence does not satisfy me that Ms Cabrera was then under pressure to agree to a week about arrangement.
[16] Affidavit of Ms Cabrera filed 24 February 2023, paragraph 103.
I am accordingly left with the question of whether Ms Cabrera agreed for her then three year old child to live seven nights each fortnight with a parent who had recently been abusing drugs, or whether she is exaggerating when it is that Mr Enfield last used illicit substances. Whilst I will return to concerns about Ms Cabrera’s parenting capacity, I am not satisfied they are such as to support the first alternative. Rather, I find that Ms Cabrera has exaggerated when it is that Mr Enfield last used drugs. The oral evidence she gave was conclusory and not supported by facts which might enable me to be satisfied of the conclusion.[17] Ms Cabrera frankly admitted that there was no evidence to support her assertion that she had seen him using drugs before she left the home in early 2021. Further, the manner in which she gave her oral evidence was prone to exaggeration and inconsistency. She required repeated direction to answer the questions posed to her. I am not satisfied Mr Enfield was abusing illicit substances in early 2021. Mr Enfield has completed hair follicle testing which demonstrates his abstinence from illicit substance use during the course of these proceedings.
[17] Kramer & Another & Ward (2017) FLC 93-817 at [10].
I am not satisfied that X is at unacceptable risk of harm in the relevant sense in his parents’ unsupervised, overnight care. Such a conclusion is consistent with the parties’ proposals.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as his maturity or level of understanding) that are relevant to the weight to be given to his views
X is now five years old. It is Dr D’s opinion that “X is not of a developmental age of sufficient maturity to understand the ramifications of any wish he may make about his care arrangements.”[18] I accept that unchallenged evidence.
[18] Affidavit of Dr D filed 24 February 2023, Annexure 4 (“Second Family Report”), paragraph 75.
I place limited weight on Ms Cabrera’s evidence that she believes that X is saying that he just wants his Mummy and Daddy. The basis of that belief was not articulated. How such a belief might impact on what living arrangements are in X’s best interests was also not articulated.
The nature of X’s relationships with each of X’s parents and other people, including any grandparent or other relative
Dr D first assessed the family in October 2021. She then met with both parents and observed interactions between X and each of them. From those observations, she opined that X is “clearly attached to both parents”.[19] She also opined that “X was observed to have a more emotionally secure attachment and greater frequency of warm, nurturing interactions with his father”.[20] Those opinions were not the subject of direct challenge.
[19] First Family Report, paragraph 103.
[20] First Family Report, paragraph 103.
Dr D’s conclusions are supported by the following recorded observations between X and Ms Cabrera during the assessment:
[Ms Cabrera] was observed to give [X] a number of new toys and to demonstrate some level of frustration if [X] did not show positive emotions towards her efforts… Limited proximity-seeking was observed between [Ms Cabrera] and [X] and the interaction was more like a child carer one rather than a mother-child interaction. [Ms Cabrera] was observed to be positive towards [X] when he was positive towards her efforts, but she disengaged and was somewhat despondent when [X] was non-compliant or disinterested (at one point turning the camera to attempt to conceal that she was having a cup of coffee). [Ms Cabrera]’s facial and vocal expressiveness was limited to when she was giving [X] praise. [Ms Cabrera] was highly focussed on making the play interaction an opportunity for learning, but she often missed cues for child-initiated play and connection with [X].[21] (emphasis added)
[Ms Cabrera] was heard bribing [X] that they needed to read books for me “and then I’ll buy you another toy”. [X] initially refused to engage in reading and [Ms Cabrera] picked up her phone and checked her messages. She persists with another request with a promise: “we have one more thing to do and then we are going to see your friends”. [X] tantrumed and [Ms Cabrera] tells [X] that “it is ok. We don’t have to read”. This pattern was repeated and ultimately [Ms Cabrera] started to read a nursery rhyme book on the other side of the table from [X]. [X] engaged briefly to turn the pages and then disengaged.[22] (emphasis added)
[21] First Family Report, paragraph 72.
[22] First Family Report, paragraph 73.
Whilst Ms Cabrera specifically gives evidence in response to Dr D’s reports, she gives no evidence that those observations were inaccurately recorded by Dr D. She also did not challenge Dr D’s account of those observations. I am satisfied that X and Ms Cabrera interacted with each other during their observation sessions with Dr D in October 2021 as reported.
Those observations contrasted with those of the interactions between X and Mr Enfield. Dr D observed Mr Enfield following X’s lead, both working co-operatively, and she observed their interactions to have been very comfortable and warm. Again, no challenge was made to Dr D’s evidence in relation to those observations. I accept her evidence.
Dr D was engaged to prepare an updated family report in October 2022. Only Mr Enfield and X participated in that assessment. Ms Cabrera failed to attend on each of the three appointments that were scheduled for her. I will return to those failures when considering Ms Cabrera’s capacity to provide for X’s needs. However, the consequence of those failures is that Dr D was unable to reassess X’s attachment with Ms Cabrera. Ms Cabrera did not propose any other expert assessment of X’s relationship with her.
Dr D was able to re-assess X’s relationship with his father, and based on the material then available to her, opined that X has a “secure attachment with Mr Enfield”.[23] She observed their interactions to be “relaxed, comfortable, with lots of laughter, proximity-seeking and warmth between them”.[24] Again, no challenge was made to the observations underlying that opinion, nor to the expressed opinion itself.
[23] Second Family Report, paragraph 71.
[24] Second Family Report, paragraph 54.
I accept Dr D’s evidence that X is attached to both his parents, but has a more emotionally secure attachment with more warm and nurturing interactions, with his father.
X has a close and loving relationship with his half-brother B who is 14 years old. They live together with Mr Enfield each alternate week.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to X, to spend time with him, and to communicate with him
I am satisfied that both parents have generally availed themselves of opportunities to spend time with X. Although they have often been unsuccessful at making joint decisions about major long terms issues for X, both have sought to participate in such decision-making.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain X
Despite being assessed to do so, Ms Cabrera pays no child support for X. She gave evidence that she assumed because she did not receive phone calls or correspondence from the child support agency, her obligation to pay had been cancelled. She accepted that she had received no correspondence to that effect. Ms Cabrera has failed to fulfil her obligations to maintain X, even if Mr Enfield has not recently pursued the recovery of child support from her.
The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom he has been living
Mr Enfield proposes no change to X’s current living arrangements. Ms Cabrera proposes that X’s living arrangements shift such that he spend three less nights per fortnight with his father. I am not satisfied that such a change is significant in the sense that it will involve any separation from the people with whom X has been living, notably Mr Enfield and B (albeit B lives with Mr Enfield only on a week about basis).
Ms Cabrera suggests that in the event Mr Enfield relapsed into drug use and Ms Cabrera was required to take up full time care of X, the change would be less dramatic in the event X now lives week about with his parents rather than continuing to live for ten nights each fortnight with his father and four with his mother. When that proposition was put to Dr D, she gave the following evidence:
I don’t believe that that’s necessarily the case, because if this child were cared about, cared for on a week about basis the level of instability, actually for this child, in terms of my concerns about [Ms Cabrera], with her emotional instability, and her hostility towards [Mr Enfield], would create a situation where the child is not developing that sort of level of social, emotional resilience to cope with any change.
The only challenge to that evidence was put on the basis that Dr D did not see Mr Enfield as hostile, to which Dr D opined that apart from a particular text message to which she had been taken, Mr Enfield has been able to demonstrate that he is not currently hostile towards Ms Cabrera. I am not satisfied the evidence supports a conclusion that X’s best interests are now met by living equally between his parents to minimise the likely effect on him of potentially having to live primarily with Ms Cabrera in the event Mr Enfield relapses.
Ms Cabrera sought to establish that Mr Enfield has an increased risk of relapse into drug use. In October 2021, Dr D opined that while “Mr Enfield has reportedly remained abstinent from drugs for the past two years, the duration and extent of his drug use and addiction in the past suggests that a conservative approach to parenting orders in this matter should be applied”.[25] Dr D gave oral evidence that “the risk of relapse is much greater within that first two year period”. Ms Cabrera suggested to Dr D that a lack of taking responsibility for one’s actions increases the risk of relapse. Dr D gave the following evidence:
There are numerous factors that would increase the risk of relapse, but in [Mr Enfield]’s case he doesn’t blame other people for his, for what’s happening for him. He doesn’t have an external locus of control. [Ms Cabrera] has, but [Mr Enfield] hasn’t.
[25] First Family Report, paragraph 87.
Ms Cabrera put to Dr D that Mr Enfield’s evidence that “[d]ue to the stress and pressures that I felt that I was being subjected to by [Ms Cabrera] in 2019, I, again, commenced to use the illicit drug cocaine”[26] is consistent with an external locus of control. Dr D opined that:
No, I would disagree. That’s consistent with someone, and I’ve described this in my report, who struggles to, at times, he has a poor coping ability and he has struggled with that across time. And so the stressors that he’s referring to there happen to be [Ms Cabrera], it could be other stressors. But that’s not blaming her for that.
[26] Affidavit of Mr Enfield filed 27 February 2023, paragraph 20.
Dr D also subsequently gave evidence that the chance of relapse as time goes by becomes less and less. The absence of evidence from a drug and alcohol counsellor does not permit any inference to be drawn contrary to the evidence before the Court. Even if I were satisfied that the risk of Mr Enfield relapsing into illicit drug abuse is heightened in the future, that still does not establish that a week about arrangement is now in X’s best interests. That proposition is contrary to the oral evidence of Dr D, and no sufficient basis was advanced to reject that evidence.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis
It is not suggested that any practical difficulties or expenses attend X spending time or communicating with either parent. His parents currently live in the same suburb.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for his needs, including emotional and intellectual needs
Dr D raises significant concerns in relation to Ms Cabrera’s capacity to provide for X’s needs. She opines as follows:
[Ms Cabrera]’s capacity for emotion regulation, effective and honest communication, and genuine connections in relationships is poor… the convergent evidence points to her having struggles with perceived criticism from others, paranoid ideation about the intentions of others, a focus on retribution, and struggles to manage her anger. [Ms Cabrera] has limited capacity to focus on the needs of her son in a sustained and emotionally nurturing way. [Ms Cabrera]’s focus on her own tumultuous internal states and her own desires and needs leaves her unable to perceive the impacts of her behaviour on others, and particularly on her son. The convergent evidence suggests that [Ms Cabrera] has some personality pathology (i.e., narcissistic and borderline traits) that may meet criteria for diagnosis.[27] (emphasis added)
…the information in this assessment suggests that [Ms Cabrera] has engaged in a level of emotional dysregulation (e.g., threats, yelling, impulsivity, behaviour directed towards retribution) and physical abuse (e.g., scratching, animal cruelty) that is suggestive of significant personality pathology…. Her lack of empathy, histrionic and impulsive behaviour in response to perceived slights, manipulative and transactional approach to interpersonal relationships and jealous and paranoid ideation about [Mr Enfield] as well as her grandiose sense of self and sense of entitlement is most parsimoniously understood as narcissistic personality disorder. Children of narcissistic parents struggle to have their emotional needs met and are typically enrolled in a cycle of emotional manipulation whereby the child is reinforced for behaviour consistent with adoration of the parent and punished or neglected if the parent’s needs (emotional and instrumental) are unmet. Additionally, children in these circumstances are faced with erratic and unstable behavioural outbursts of the parent to which the child is unable to predict nor prepare, contributing to significant anxiety.[28]
[27] First Family Report, paragraph 88.
[28] First Family Report, paragraph 91.
Dr D also gave oral evidence that:
… my concerns were about emotional dysregulation and [Ms Cabrera’s] difficulties subverting her needs for those of her son, so when, in a highly emotive state about something that she felt slighted about, that she wasn’t able to re-direct her attention to what was required for her son.
For reasons I have already given, I find no warrant to reject Dr D’s evidence either generally or specifically.
That Ms Cabrera’s limited capacity to provide for her son’s emotional needs has a pathological origin, is supported by a diagnosis made of her by a psychiatrist, Dr E in July 2022. It was his opinion that Ms Cabrera suffers from a Delusional Disorder of Persecutory type, elements of PTSD and has some obsessive features to her personality structure.[29] Ms Cabrera rejected Dr E’s recommendation that she take pharmacological treatment.
[29] Affidavit of Ms Cabrera filed 24 February 2023, Annexure 10.
Ms Cabrera deposes to obtaining psychological treatment to “assist [her] through issues relating to the separation, day to day stress and the parenting arrangements with the Father.”[30] She deposes to learning “techniques to deal with distress tolerance, emotional regulation and relaxation such as mindfulness and controlled breathing to deal with anxiety responses”.[31] Her psychologist’s report records her presenting to address anxiety and depressive symptoms “due to her situational circumstances”.[32] Her psychologist reports that they “have addressed automatic concerning thoughts and ideas in relation to the recommendations of the consultant psychiatrist Dr E.”[33] Neither Ms Cabrera’s psychiatrist nor psychologist were made available for cross-examination, limiting my assessment of the weight to be given to their reports.
[30] Affidavit of Ms Cabrera filed 24 February 2023, paragraph 256.
[31] Affidavit of Ms Cabrera filed 24 February 2023, paragraph 258.
[32] Affidavit of Ms Cabrera filed 24 February 2023, Annexure 9, page 66.
[33] Affidavit of Ms Cabrera filed 24 February 2023, Annexure 9, page 68.
Critically, any improvement to Ms Cabrera’s parenting capacity was unable to be assessed by Dr D due to Ms Cabrera’s failure to attend upon her for the preparation of an updated report in October 2022. The circumstances surrounding that failure raise real concerns about the extent to which Ms Cabrera has addressed any of the mental health issues raised by Dr D.
On the day of the third scheduled appointment for Ms Cabrera to attend upon Dr D for assessment, she failed to attend. She did attend at the F Hospital that day. She deposes to the following:
I was so anxious at the thought of being [at the Family Report assessments] that I had chest pains and heart palpitations.[34]
I could not attend upon [Dr D] because the thought made me experience a physical reaction.[35]
[34] Affidavit of Ms Cabrera filed 24 February 2023, paragraph 269.
[35] Affidavit of Ms Cabrera filed 24 February 2023, paragraph 270.
On her own evidence, Ms Cabrera’s mental health was such that in October 2022 she was unable to attend upon a Court ordered assessment with Dr D. So much calls into question the efficacy of her prior psychological treatment.
Also in October 2022, Ms Cabrera made complaint to the Australian Health Practitioner Regulation Agency in relation to Dr D. She confirmed in oral evidence that the contents of her complaint were accurate. That complaint includes the following statements:
I am experiencing significant distress stemming from a variety of causes, not the least of which relates to the alleged mistreatment, misconduct by [Dr D] (An appointed clinical psychologist). [Dr D]'s prejudicial assessment and unsafe practices towards me has caused me significant anxiety, stress, and a compromised declined health status. (emphasis added)
…
As a result from the significant stress I am currently experiencing caused by [Dr D’s] assigned assessment towards me. [sic] I had to undergo unpaid stress leave. Not only did I receive an eviction notice but my physical emotional health and wellbeing is now compromised due to the practitioner’s bias assessment and unsafe practices. It is highly concerning [Dr D] is not practicing her profession safely. Ultimately putting me in a position where I no longer feel safe, comfortable around her and placing my health status significantly at risk. The stress she caused me is impacting my ability to function, work the way I did prior to the stress caused by the practitioner. (emphasis added)
Post discharge from hospital and with follow up on the treatment of care for my new diagnosis caused by the stress the practitioner has imposed. My family GP [Dr G] had written to my Clinical psychologist [Ms H] a referral letter to focus on stress management treatment. I was also referred to a heart specialist for the management of chest pains, palpitations that is stress related. I am now taking medications in relation to my heart problems since discharge from hospital.[36] (emphasis added)
[36] Exhibit R3.
Ms Cabrera accordingly gives evidence that her anxiety and stress have significantly impacted upon her functioning both in ordered forensic processes in this Court and in her employment. That comprises a significant deterioration in her mental health since her initial assessment by Dr D. Ms Cabrera failed to attend upon any group therapy program to develop skills in emotional regulation as recommended by Dr D in October 2021.
In the absence of oral evidence from Ms Cabrera’s assessing psychiatrist and treating psychologist, I am unable to reach any firm conclusions with respect to any mental health diagnosis. However, it is ultimately Ms Cabrera’s capacity to provide for X’s needs that is central to this determination. Dr D’s observations of that capacity was not challenged, nor were her conclusions about Ms Cabrera’s limited capacity to focus on X’s needs. I am satisfied that the facts underlying those observations are adequately recorded and the observations support the conclusions.
Ms Cabrera has failed to attend upon a Parenting After Separation and Positive Parenting Program as recommended by Dr D in October 2021. That she is now planning to attend such programs does not demonstrate any improvement in her capacity to provide for X’s needs.
Dr D gave oral evidence that X’s “social and emotional development is best served by having majority care with Mr Enfield and having more limited time with Ms Cabrera in the absence of her addressing the concerns that we have”. She had previously opined that “Ms Cabrera has not demonstrated a capacity to co-parent effectively and flexibly for the best interests of X”.[37] That evidence was not successfully impugned and I accept it.
[37] Second Family Report, paragraph 64.
Ms Cabrera drew significant forensic attention to a text message sent to her by Mr Enfield on 26 February 2022 in the following terms:
Your [sic] a fucking idiot, are you staring [sic] to understand how the system works, poor [Country J] women vs wealthy Jewish family. Go fuck yourself![38]
Mr Enfield gave oral evidence that he was very upset when he sent the message, he regretted sending it, and described it as both silly and a heated comment sent in the moment.
[38] Affidavit of Ms Cabrera filed 24 February 2023, paragraph 165.
Dr D opined that the text message is angry and hostile, but considered the context of the message to be important. It was sent at a time when Ms Cabrera had changed her mind about agreeing to X attending a Bar-Mitzvah with Mr Enfield’s family. Despite Mr Enfield’s insistence on her compliance with the parties’ previous agreement, she enlisted the support of Police to resolve the dispute. That resulted in the Police calling Mr Enfield during speeches at the event. Dr D was asked about the implications of the message for Mr Enfield’s parenting capacity. She gave evidence:
Parenting capacity relates to the whole picture that the person’s capacity to actually meet the child’s educational, emotional, physical needs. Alright. All parents get angry at times, and the information that’s available to me is that that was a once off, within the context of being very angry about a change in circumstance, and that [Mr Enfield] expressed to me regret that he had sent that and committed to doing better. In fact, he recognised that that was actually not an appropriate message to send.
Dr D considered that sending the message was consistent with her written opinion that “Mr Enfield presents as a ‘down to earth’, uncomplicated man who is genuinely concerned for the welfare of his son”.[39] She described the text message as an error and a mistake, and reiterated that her main concerns about the parties’ parenting capacity related to Ms Cabrera.
[39] Second Family Report, paragraph 60.
Dr D opines that Mr Enfield is the “parent most capable of meeting the [sic] X’s emotional care needs now and into the future”.[40] She considers him able to “demonstrate the capacity to provide clear expectations and boundaries for X within a relaxed and warm family environment”.[41] She observed X to be compliant in his father’s care and responding “well to praise and encouragement as well as correction”.[42] I accept the opinion, adequately supported in my determination by underlying facts.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other relevant characteristics of X
[40] Second Family Report, paragraph 71.
[41] Second Family Report, paragraph 60.
[42] Second Family Report, paragraph 50.
Dr D observed that X is a developmentally typical and active child. His level of activity was observed to be age-appropriate albeit “he struggled with maintaining focussed attention”.[43] I accept that unchallenged opinion.
If X is an Aboriginal child or a Torres Strait Islander child, his right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
[43] Second Family Report, paragraph 50.
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of his parents
Both parties have, at various times, acted in ways that demonstrate a poor attitude to X and the responsibilities of parenthood.
In August 2021, Mr Enfield cancelled X’s child care enrolment without notice to Ms Cabrera. So much reflects poorly on him. As Dr D opined, it was an inappropriate course of action for him to take.
On 26 February 2022, Ms Cabrera enlisted the support of Police when X was in the care of Mr Enfield by prior agreement. Ms Cabrera had unilaterally resiled from the agreement and sought Police assistance to facilitate X’s return to her care. X was not at any risk in Mr Enfield’s care and it reflects poorly on Ms Cabrera’s attitude to the responsibilities of parenthood that she would involve the Police in that way.
Ms Cabrera accepted in oral evidence that she had not put her son’s interests first when she claimed to have tried to call him multiple times for Christmas in 2021 but then advised Mr Enfield she would provide details of the attempts to her lawyer. Her failure to seek to rectify any technical problem with Mr Enfield also reflects poorly on her attitude to the responsibilities of parenthood given X was expecting her call.
Any family violence involving X or a member of his family
Family violence is relevantly defined to be violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful.[44] That definition prescribes a number of relevant examples of behaviour that may constitute family violence, including assault, stalking, or intentionally causing injury to an animal.[45]
[44] Family Law Act 1975 (Cth), s 4AB.
[45] Family Law Act 1975 (Cth), s 4AB.
In May 2020, Ms Cabrera repeatedly hit the family dog with a vacuum cleaner head while the dog was cornered. She videoed the incident herself and sent it to Mr Enfield. The video reveals her hitting the dog on multiple occasions as it cowers in the corner.[46] Ms Cabrera was charged in relation to the incident and received an adjourned undertaking without conviction for 3 months. She accepted in cross-examination that she did not initially regret the incident because she thought she had done a good thing by disciplining the dog. She also accepted that she had taken time to settle X, move into a different room, and arrange herself with the vacuum and phone to record herself before repeatedly hitting the dog. So much reflects very poorly on her capacity for emotional regulation.
[46] Exhibit R5.
On Ms Cabrera’s complaint, Mr Enfield was charged with stalking her. The charges were withdrawn after Ms Cabrera was cross-examined for two days in the Magistrates Court. Whilst Ms Cabrera maintained in oral evidence that Mr Enfield has stalked her, the evidence does not satisfy me of the conclusion. There is an absence of particulars to the allegation before this Court, particularly during the period Ms Cabrera gave evidence that was relevant to the charge, namely 3 July 2021 to 25 August 2021.
On 25 August 2021, Ms Cabrera drove with X to Mr Enfield’s beach home. She was very upset, having been advised by X’s childcare that morning that Mr Enfield had cancelled his enrolment. She gave oral evidence she was also angry at the prospect that Mr Enfield’s current partner might have been caring for X. Ms Cabrera entered through a locked gate at the property and made her way to the door. Mr Enfield asked her to leave. Ms Cabrera deposes that Mr Enfield punched her to the left side of her head, causing her to fall on the gravel driveway and thereafter being punched by Mr Enfield twice while on the ground. That narrative is inconsistent with a Family Violence Safety Notice taken out by Police contemporaneously with the incident. Given the concerns I have expressed about the manner in which Ms Cabrera gave her evidence, I do not accept that she was punched repeatedly by Mr Enfield on 25 August 2021 in the presence of X. She did not challenge Mr Enfield’s inconsistent narrative in cross-examination.
Mr Enfield has sent messages to Ms Cabrera in breach of Intervention Orders. He has been fined in relation to some breaches. He is currently facing a further charge in relation to the text message sent on 26 February 2022 to which reference has already been made.
If a family violence order applies, or has applied, to X or a member of his family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
In August 2021, Police applied for an Intervention Order on behalf of Ms Cabrera against Mr Enfield. That application was subsequently withdrawn by Police. Later the same month, Mr Enfield applied for an Intervention Order against Ms Cabrera. An Interim Order in his favour was made on 1 September 2021. On 6 September 2021, Ms Cabrera applied for an Intervention Order against Mr Enfield. An Interim Order was granted in his absence on that day. On 8 February 2022, both parties consented without admissions to the making of final Intervention Orders for a period of 12 months to protect the other party.
On 6 February 2023, Ms Cabrera applied to extend the Intervention Order in her favour. On 24 February 2023, Mr Enfield consented to the extension of an Order with more limited conditions, with a denial of the allegations.
It is not suggested that any relevant inferences can be drawn from the making of the Intervention Orders in that manner.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
Given the conflict between the parties over matters such as travel and holiday arrangements, some of which have required specific determination during the course of the proceedings, I consider the making of an order for equal shared parental responsibility is likely to increase the risk of further proceedings in relation to X.
Any other relevant fact or circumstance
Ms Cabrera submits that the Court ought take judicial notice of a variety of propositions suggesting that X’s emotional needs require him to be aware of the privileged position he is in as a result of his paternal family’s wealth. No evidence supporting any such proposition was adduced. No such proposition was put to Dr D. Such suggestions are plainly reasonably open to question and accordingly do not fall within the category of matters about which proof is not required.[47]
[47] Evidence Act 1995 (Cth), s 144; McGregor & McGregor (2012) FLC 93-507 at [74 -75].
PARENTAL RESPONSIBILITY
Ms Cabrera proposes that the parties have equal shared parental responsibility for X. The presumption that such an order is in X’s best interests may be rebutted by evidence that satisfies me that it would not be in his best interests for his parents to have equal shared parental responsibility for him.[48]
[48] Family Law Act 1975 (Cth), ss 61DA(4).
The making of an order for equal shared parental responsibility imposes an obligation on decisions about major long-term issues in relation to X to be made jointly, to require his parents to consult each other in relation to such decisions, and to make a genuine effort to come to a joint decision about them.[49]
[49] Family Law Act 1975 (Cth), s 65DAC.
It is common ground that the parties’ communication is poor, with Ms Cabrera submitting that their parenting situation is not cooperative. She gave oral evidence that since interim Orders were made in September 2021, the parties’ conflict and communication problems have been constant and ongoing. There have been regular and consistent disputes between them in relation to changeovers, X’s time with each of them during every school holiday period, and travel arrangements. They have been unable to jointly make decisions in relation to X’s child care enrolment. Despite the existence of an interim Order for equal shared parental responsibility, Ms Cabrera enrolled X at an Early Learning Centre without prior notice to Mr Enfield. Despite multiple messages being exchanged between the parties on the topic, they have been unable to agree on any extra-curricular activities for X to be enrolled in. Ms Cabrera agreed there is no coordination between the parties in relation to that issue and no exchange of information within an appropriate timeframe. Dr D’s unchallenged opinion is that the parties’ inability to reach agreement “potentially placed X’s emotional welfare in peril”.[50]
[50] Second Family Report, paragraph 74.
Ms Cabrera nevertheless submits that it is in X’s best interests for his parents to have equal shared parental responsibility. I reject the submission. The parties have demonstrated over an extended period of time an inability to comply with the mandatory requirements of section 65DAC of the Act.[51] No evidence satisfies me that they will be able to in the future.
[51] Boyle & Zahur & Anor (2017) FLC 93-814 at [22].
Ms Cabrera suggests that, in the context of two flawed parents, a monopoly by one on decision-making to the exclusion of the other is not in X’s best interests. I reject the submission. For both to have decision-making responsibility, they need to be able to make joint decisions in X’s best interests, something which they have been unable to do to date. It is not in X’s best interests to have contradictory unilateral decisions being made by his parents or decisions being unable to be made at all due to his parents’ lack of cooperation.
I am satisfied that it would not be in X’s best interests for his parents to have equal shared parental responsibility for him with the result that the presumption is rebutted.
Mr Enfield does not propose that Ms Cabrera be entirely excluded from involvement in X’s health and education. He proposes that he be required to keep her appraised of such matters and that she be authorised to liaise with treatment providers. Given Mr Enfield’s greater capacity to provide for X’s needs, I find it to be in X’s best interests for Mr Enfield to have sole parental responsibility for X on the condition that he keeps Ms Cabrera informed of matters relating to his education and health.
CONCLUSIONS
Ms Cabrera effectively submits that X should spend equal time with each of his parents because they are both flawed and the Court should not afford significant weight to the report of Dr D. Even if I were to accept both of those submissions, I would not be satisfied that X’s best interests would be served by spending equal time with each of his parents. Certainly there is no evidence to support a conclusion that X would benefit from living equally with parents who are in a highly conflictual relationship which has involved the use of family violence. The submission also does not expressly engage with the mandatory considerations prescribed by section 60CC of the Act.
It is no answer to the concerns raised by Dr D relating to the nature of Ms Cabrera’s relationship with X and her lack of capacity to provide for his needs, to suggest that Mr Enfield is also flawed. As Dr D observes, Ms Cabrera has not adequately addressed those concerns and they have been unable to be re-assessed. I have also rejected the submission that there are inadequacies in Dr D’s report such that minimal weight ought be afforded to it.
On balance, I conclude that X’s best interests are now served by continuing to live primarily with the parent more capable of meeting his emotional needs, namely Mr Enfield. Whilst Ms Cabrera correctly submits I am not bound by the parties’ proposals,[52] no alternative proposals were advanced by either party during the course of the hearing. I conclude that it is in X’s best interests for the configuration of time he spends with Ms Cabrera during school terms to continue.
[52] Duarte & Another & Morse (2019) FLC 93-902 at [391, 405] and the cases there cited.
Ms Cabrera proposes that X spend equal time with his parents during school holidays. However, she did not challenge Dr D’s opinion that:
The time that [X] spends with each parent during school holiday periods will need to be considered carefully. There has been insufficient evidence provided to me in this assessment that more time with [Ms Cabrera] over the school holiday periods would be considered appropriate.[53]
She also failed to make any submissions with respect to the issue. Mr Enfield proposes a gradual increase in the time X spends with his mother during school holiday periods. Dr D opined orally that his proposal was reasonable. I find Mr Enfield’s proposal to be in X’s best interests, including specific provision for international travel for his paternal grandmother’s 70th birthday in 2023.
[53] Second Family Report, paragraph 73.
Ms Cabrera made no submissions with respect to an order sought by Mr Enfield permitting him to provide a copy of the Family Reports prepared in these proceedings to the Magistrates Court of Victoria in relation to proceedings for alleged breaches of Intervention Order. Those reports are now in evidence in these proceedings and I am accordingly not satisfied that any “implied undertaking” attaches to them.[54] In any event, no obligation of confidence arises in relation to family reports.[55] In the event leave is in fact required, I am satisfied that it is in the interests of justice for the Magistrates Court to have available to it all relevant material given the criminal charges before it. I will accordingly grant the relief sought by Mr Enfield.
[54] Hearne v Street (2008) 235 CLR 125 per Hayne, Heydon and Crennan JJ at [96-97].
[55] Sahadi & Savva & Anor (2016) FLC 93-704 at [66].
Neither party made any submissions with respect to the balance of the relief sought. In particular, Ms Cabrera made no submissions in support of her application for non-school day changeovers to move from the Suburb C Police Station to McDonald’s Suburb K. Whilst it is regrettable for changeovers to occur at Police Stations, given the history of Intervention Orders and alleged breaches of those Orders, I consider Mr Enfield’s proposal to be in X’s best interests to minimise the risk of further allegations being raised between his parents.
Both parties propose that X spend time with each of his parents on occasions of significance. I prefer Mr Enfield’s proposal. By maximising changeovers that occur at school where possible, it minimises the risks of the parties negatively interacting with each other at changeover. It provides for X’s changeover to occur at a more reasonable time on his birthday. It also provides for X to spend time with his half sibling on his birthday, as well as providing for time for secular, Christian and Jewish festivals.
I find it to be in X’s best interests to have regular communication with his mother in weeks he is not otherwise spending time with her, as proposed by Mr Enfield. Both parties claim to have lost previous messages passing between them. I accordingly consider it to be in X’s best interests for their communication to continue through the application they currently use, as is proposed by Mr Enfield.
Both parties propose that X’s parents be permitted to travel overseas with him. The orders proposed by Mr Enfield are more comprehensive and consistent with the order for him to have sole parental responsibility for X. I accordingly find them to be in X’s best interests.
Other orders proposed for the exchange of information, contact details, liberty to contact health and education providers appear to largely be agreed. I prefer the clarity afforded to those matters proposed by Ms Cabrera. Absent particularisation of the general practitioner proposed by Mr Enfield, I decline to require Ms Cabrera to take X to that practitioner. I am also not satisfied that any notation to orders proposed by Mr Enfield in relation to extra-curricular activity enrolments is enforceable and I accordingly decline to make it. I find no basis to conclude that X’s best interests are met by Ms Cabrera being generally permitted to contact the paternal grandparents in the event Mr Enfield fails to respond within 48 hours to a message from her. I will make such injunctive orders as are agreed absent any submission and minimal evidence in support of the others.
Mr Enfield proposes that both parties participate in various programs and Ms Cabrera engage in therapeutic programs. No submissions were directed to the relief sought. I consider such orders to likely be beyond power,[56] and for that reason I decline to make them.
[56] Oberlin & Infeld (2021) FLC 94-071 at [51-52] and the cases there cited.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 15 March 2023
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