CADDELL & TAGGARD
[2020] FCCA 872
•21 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CADDELL & TAGGARD | [2020] FCCA 872 |
| Catchwords: FAMILY LAW – Parenting – child has a good and close relationship with both parents – difficult co-parenting relationship which is not assisted by the Father’s engagement with Father’s Rights Groups and his zealous and obsessive pursuit of increased time with his daughter – Mother suffers anxiety and is supported by the Maternal Grandparents – practitioners are reminded of their duty to the Court – Orders for sole parental responsibility, the child to live with the Mother and spend graduated time with the Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2) and (3)(a) – (m), 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 Giannarelli v Wraith (1988) 165 CLR 543 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 Vontek & Vontek [2017] FamCAFC 28 Ceremonial Sitting to welcome the Hon. Chief Justice Anthony Murray Gleeson AC, [1998] HCATrans 230 (19 June 1998) |
| Applicant: | MR CADDELL |
| Respondent: | MS TAGGARD |
| File Number: | CAC 677 of 2018 |
| Judgment of: | Judge WJ Neville |
| Hearing date: | 19 November 2019 |
| Date of Last Submission: | 23 December 2019 |
| Delivered at: | Canberra |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
Unless otherwise agreed in writing between the parties;
Parental responsibility
The Mother have sole parental responsibility for the child X (born in 2017) ("X").
Prior to making any long-term decision affecting X, the Mother will:
(a)Contact the Father in writing to advise him of the upcoming decision and her preference;
(b)The Father will provide his opinion via the Divvito App (or in writing);
(c)The Mother will give the Father's opinion due consideration and will answer any questions raised by the Father about the proposal;
(d)Where possible, the parties will then reach joint agreement about the decision;
(e)If agreement is not reached within 21 days of the Mother's contact with the Father pursuant to the above Order, the Mother may make the decision; and
(f)The Mother shall advise the Father via the Divvito App (or in writing) of the decision within 48 hours of it being made together with the information about steps taken by her to implement the decision.
Change of X's surname
The name of the child X (born in 2017) is changed to X TAGGARD-CADDELL.
The Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.
The Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory is ordered to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.
Living arrangements
X live with the Mother.
X spend time with her Father in accordance with the following Orders.
From the date of these Orders until 30 June 2020:
From:
(a)9:30am to 5:00pm each Saturday; and
(b)9:30am to 4:30pm each Wednesday.
From 1 July 2020 until 31 December 2020:
In Week One, from:
(a)9:30am to 4:30pm on Wednesday; and
(b)9:30am on Saturday until 12:00pm on Sunday;
In Week Two, from:
(a)9:30am to 4:30pm on Wednesday; and
(b)9:30am to 4:30pm on Friday;
During the Christmas period in 2020 the following shall apply:
(a)The "Christmas period" is defined to commence at 9:30am on 23 December 2020 and conclude at 12noon on 31 December 2020;
(b)During the Christmas period the normal Week One and Week Two time is suspended.
(c)During the Christmas period X will spend time with the Father as follows:
(i)From 9:30am on 23 December until 3:00pm on 24 December; and
(ii)From 9:30am on 30 December until 3:00pm on 31 December;
(d)After the Christmas period has concluded, time will recommence as if it were Week One.
From 1 January 2021 until 31 December 2021:
In Week One, from:
(a)9:30am to 4:30pm on Wednesday; and
(b)9:30am on Saturday until 3:00pm on Sunday;
In Week Two, from:
(a)9:30am to 4:30pm on Wednesday; and
(b)After day care/preschool on Thursday until before day care/preschool on Friday.
During the 2021 Easter period (and the 2022 Easter period if X is not yet at school):
(a)The "Easter period" is defined to commence at 9:30am on Holy Thursday and conclude at 12noon on Easter Monday;
(b)During the Easter period the normal Week One and Week Two time is suspended;
(c)During the Easter period X will spend time with the Father from:
(i)9:30am on Holy Thursday until 12noon on Good Friday;
(ii)9:30am on Easter Sunday until 12noon on Easter Monday;
(d)After the Easter period has concluded, time will recommence as if it were Week One.
During the Christmas period in 2021 the following shall apply:
(a)The "Christmas period" is defined to commence at 9:30am on 23 December 2021 and conclude at 3:00pm on 31 December 2021;
(b)During the Christmas period the normal Week One and Week Two time is suspended;
(c)During the Christmas period X will spend time with the Father in 2021 as follows, from:
(i)9:30am on Christmas Eve until 4:00pm on Christmas Day;
(ii)9:30am on Boxing Day until 3:00pm on 28 December;
(iii)9:30am on 30 December until 3:00pm on 31 December;
(d)During the Christmas period in 2022 (this Order applies if X is not yet at school) as follows, from:
(i)9.30am on 23 December until 12:00pm on 24 December;
(ii)9.30am on 30 December until 3:00pm on 31 December;
(iii)After the Christmas period has concluded, time will recommence as if it were Week One.
From 1 January 2022 until the end of Term 2 in 2022:
During the school term as follows:
(a)In Week One, from after school on Friday until 4:00pm the following Sunday; and
(b)In Week Two from after school on Thursday until before school the following Friday.
During the school holiday periods Order 16 is suspended and the following provisions apply:
(a)In the Terms 1, 2 and 3 school holidays, X will spend a block of three nights with the Father as agreed between the parties and failing agreement from 10:00am on the middle Friday until 3:00pm on the following Monday; and
(b)In the long Christmas/January holiday period, in addition to the special occasion Christmas time provided for below, for three blocks of three consecutive nights (that is, not six or nine nights consecutively) as agreed between the parties and failing agreement, from:
(i)10:00am on the first Friday following the conclusion of the school term until 3:00pm the following Monday;
(ii)10:00am on the first Friday in January until 3:00pm the following Monday; and
(iii)10:00am on the third Friday in January until 3:00pm the following Monday.
From X's first year of school the following shall apply with respect to the Christmas period:
(a)The “Christmas period” is defined as beginning at 12noon on 24 December and ending at 12noon on 26 December each year;
(b)During the Christmas period the normal holiday time is suspended;
(c)In even-numbered years, X shall spend time with her Mother during Christmas period; and
(d)In odd-numbered years, X shall spend time with her Father during Christmas period.
From X's first year of school the following shall apply with respect to the Easter period:
(a)The “Easter period” is defined as beginning at 10:00am on Good Friday and ending at 10:00am on Easter Monday;
(b)In even-numbered years, X shall spend time with her Father during the Easter period;
(c)In odd-numbered years, X shall spend time with her Mother during the Easter period; and
(d)In the event the Easter period falls during the school holidays and X is to spend time with her Father during the Easter period, the Easter period will be included in the time that X is to spend with her father in accordance with Order 19.1 above (and will not be additional to that time);
From the commencement of Term 3 in 2022:
During the school term as follows:
(a)In Week One from after-school on Friday until before school on Monday (or Tuesday, if the Monday is a public holiday); and
(b)In Week Two from after school on Thursday until before school on Friday.
During the school holiday periods Order 20 is suspended and the following provisions apply:
(a)In the Terms 1, 2 and 3 school holidays, in a block of four nights as agreed between the parties and failing agreement from 10:00am on the middle Friday until 3:00pm on the following Tuesday;
(b)In the long Christmas/January holiday period, for three blocks of four nights (that is, not eight or twelve nights consecutively) as agreed between the parties and failing agreement, from:
(i)10:00am on the first Friday following the conclusion of the school term until 3:00pm the following Tuesday;
(ii)10:00am on the first Friday in January until 3:00pm the following Tuesday; and
(iii)10:00am on the third Friday in January until 3:00pm the following Tuesday.
Each year thereafter, X's holiday time with her Father shall increase by one night each year until it reaches a blocks of seven nights, so that:
(a)In Year 3, X's holiday time with her Father is in a five night block (to occur at times as agreed between the parties and failing agreement commencing at 10:00am on the first Saturday of the holiday period);
(b)In Year 4, X's holiday time with her Father is in a six night block (to occur at times as agreed between the parties and failing agreement commencing at 10:00am on the first Saturday of the holiday period);
(c)In Year 5, X's holiday time with her Father occurs for half of each school holiday period, such that:
(i)During school term holiday periods (Terms 1, 2 and 3) X spends equal time with her Father during the holiday periods as agreed between the parties, and failing agreement as follows:
A.In even-numbered years, X will spend the first half of term school holiday periods with the Father;
B.In odd numbered years, X will spend the first half of term school holiday periods with the Mother;
C.The “first half” is defined as commencing from the last day of the school term, and concluding at 5:00pm on the middle Sunday of the holiday period; and
D.The “second half” is defined as commencing from 5:00pm on the middle Sunday of the holiday period, and concluding on the first day of the school term.
(ii)During the long Christmas/January holiday period X spends time with her parents equally as agreed between them, and failing agreement in rotating blocks of seven nights as follows:
A.In even-numbered years, X will spend the first block of nights with her Father;
B.In odd-numbered years, X will spend the first block of nights with her Mother; and
C.The rotating blocks are suspended during the Christmas period.
With respect to the Christmas period:
(a)The “Christmas period” is defined as beginning at 12noon on 24 December and ending at l2noon on 28 December each year;
(b)During the Christmas period the normal holiday time is suspended;
(c)In even-numbered years, X shall spend time with her Mother during the Christmas period;
(d)In odd-numbered years, X shall spend time with her Father during the Christmas period.
With respect to the Easter period:
(a)The “Easter period” is defined as beginning at 10:00am on Good Friday until 10:00am on Easter Monday;
(b)In even-numbered years, X shall spend time with her Father during the Easter period.
(c)In odd-numbered years, X shall spend time with her Mother during the Easter period;
(d)In the event the Easter period falls during the school holidays, the Easter period will be included in the time that X is to spend with her Father in accordance with Order 22 above (and will not be additional to that time).
Special occasion time:
Notwithstanding the above Orders:
(a)X will spend time with her Father on Father's Day as follows:
(i)In 2020 and 2021, from 4:30pm on the Saturday before Father's Day until 4:30pm Sunday (Father's Day);
(ii)Once X commences primary school, from after school on the Friday before Father's Day until 3:00pm Sunday (Father's Day);
(iii)Once X is in Year 2, from after school on the Friday before Father’s Day until before school the following Monday.
(b)X will spend the Mother's Day weekend with her Mother, and if Mother's Day falls during a weekend that X would otherwise have been spending with her Father that time will be suspended.
(c)On X's birthday, X will spend time with the parent who does not otherwise have her care as follows:
(i)If on a weekday, from 3:30pm until 6:00pm; and
(ii)If on a weekend, from 11:00am until 4:30pm.
Changeover:
Where changeover does not occur at X's day-care/school, it shall occur as follows:
(a)The Mother and Father will not come into direct contact at changeover;
(b)The Paternal Grandmother, Ms A, and the Mother will attend Suburb B McDonald’s for changeover (or at another location as agreed between the Mother and Ms A); and
(c)The Mother may arrange for any other person to attend changeover on her behalf.
General orders:
Unless in the case of an emergency, the parties continue to communicate via the DIVVITO App for all communication.
The Mother and the Father are permitted to attend any school attended by X and to attend any school event or occasion which parents are invited to.
The parents authorise in writing the school attended by X to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to carnivals, sporting or social functions, notices of and any invitations to parent-teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copies of these Orders will be sufficient to discharge this Order.
The Mother and the Father advise each other as soon as possible by the DIVVITO App (or by telephone call in the event of the emergency situations below) in the event of the following occurring:
(a)X being injured or falling seriously ill;
(b)X requiring urgent medical treatment by a doctor or ambulance crew;
(c)X being admitted to Hospital; and
(d)X obtaining an appointment to attend upon a general practitioner.
The Mother and the Father be at liberty to obtain all medical records and to consult with X's medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose and in the event that these Orders are not accepted as authority, both parties will do all things necessary to authorise the obtaining of such information.
The Mother and the Father will not denigrate each other or the other parents' family in X's presence nor allow another person to do so.
The Mother and the Father attend and complete a Circle of Security Course, which are offered at various community health and family health service centres in the ACT (as well as C Family Services).
In the event a dispute arises in relation to the interpretation of these Orders, or any other parenting issue concerning X not covered by these Orders, then pursuant to Section 13C(l)(b) of the Family Law Act 1975, the parties are required to attend· family dispute resolution with a family dispute resolution practitioner to help them resolve their disputes with each other, such Family Dispute Resolution to occur at either Relationships Australia or any other agreed practitioner.
International Travel:
In the event that either parent intends to travel outside of the Commonwealth of Australia for a holiday with X, then such parent (hereinafter referred to as the "travelling parent") must provide to the other parent (hereinafter referred to as the "remaining parent") not less than six (6) weeks from the intended date of departure:
(a)A written notice to the remaining parent which will state that they intend to travel outside of the Commonwealth of Australia with X as provided by these Orders; and
(b)A full itinerary of their travel plans, including but not limited to the intended overseas residential address or addresses of the travelling parent and X and the overseas contact telephone, email address and facsimile applicable at that intended address or addresses.
The remaining parent must inform the travelling parent in writing within fourteen (14) days of receipt of the written notice and itinerary referred to above whether or not he or she consents to the travelling parents' proposal to travel out of the Commonwealth of Australia with X.
For the purpose of Order 36 above:
(a)Neither parent will unreasonably withhold their consent to the proposed travel; and
(b)Both parties will use their best endeavours to agree upon and facilitate make-up time to reflect the time that the other parent did not spend with X during the international travel.
The travelling parent shall deliver to the remaining parent not less than twenty-one (21) days prior to the intended date of departure a copy of the airline/sea craft tickets (or written confirmation from the airline or travel agent) for both the travelling parent and X for their departure from and return to the Commonwealth of Australia.
X's passport is to be held by the Mother, and shall be returned to the Mother within 3 days of the Father returning from any international travel with X.
All extant Applications be dismissed, the matter finalised and removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Caddell & Taggard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 677 of 2018
| MR CADDELL |
Applicant
And
| MS TAGGARD |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter involves relatively young parents and a young child, X, now aged 3 years. X was born in 2017. The Father is aged 25 years, and the Mother 23 years. The parties were in a relationship for just over 2 years, and lived together for approximately 10 months.
There are essentially only two issues in the matter which, in theory, should be relatively straight-forward to resolve: (a) parental responsibility; and (b) the Father’s time with X. Regrettably, there was little that was straight-forward in this matter, both during the trial and after its conclusion.
The self-represented Applicant Father, who works as a security officer, was and remains extremely earnest in his pursuit of spending more time with his daughter.
The Mother, who is a stay-at-home Mother and part-time student, is strongly supported by her parents (presumably and understandably this extends to covering the Mother’s legal expenses). She is extremely anxious about the progression in X’s time with her Father being too fast. She deposed in her Affidavit material how concerned she is about the Father effectively harassing her about spending more time with X.
The proceeding consumed significant Court resources leading up to, and including, a hearing in November 2019. It has continued to consume extra resources of the Court, and those of the Mother’s lawyers and the Independent Children’s Lawyer (“ICL”), because the Father has filed significant amounts of material, post the hearing. In his view, he was simply keeping the Court up-to-date with the preventative and restrictive actions of the Mother (and her lawyers) about X spending time with him (and his extended family).
In this regard, the Father filed an Application in a Case on 16th December 2019, together with 5 supporting Affidavits. The Application sought Orders for X to spend time with her Father over the Christmas period.
On 20th January 2020, the Father filed a further Affidavit in which he stated (par.2): “This affidavit will update the Court on the events of the Christmas period 2019, more specifically Ms Taggard’s [the Mother] concerning hypocritical and contradictive behaviour that is also controlling and coercive.” This comment was, somewhat curiously quite at odds with his submissions following the final hearing (set out in full later in these reasons) where the Father said: “I would like to make it known … that my actions (past and present) do not reflect a hate, ill attitude or critical or negative view of Ms Taggard herself…”
Following unsurprisingly urgent correspondence from the Mother’s lawyers objecting to the Father’s Application and further filed material, the Court advised the Father in writing on 22nd January 2020 that once a matter had been heard on a final basis, absent any Application to re-open the litigation, judgment was reserved and no further evidence could be considered by the Court. Such matters had been noted at the end of the hearing. The Father was also advised that the material he had filed in support of his Application would not be read, pending submissions by all parties. Ultimately, the Application was listed for directions and formally dismissed on 2nd February 2020.
Unfortunately, the Father’s actions were unrestrained and lacking in insight. The same assessment was true of his conduct for a significant period of time, up to and including the trial, in his attempts to obtain more time with his young daughter. Indeed, so concerned was I during the trial about his evidence that I cautioned him and counselled him to speak with the Duty Lawyer. I also indicated to him (and everyone else in the proceeding) that I was so alarmed at his evidence – notably its unrestrained nature in almost every respect – that I was considering whether I should conduct the hearing on the basis that he had to relevantly “show cause”, meaning he would need to show why I should not make Orders as sought by the Mother.
The litigation itself was, in almost every respect, a very uneven, as well as a disproportionate, if not lop-sided, affair. By this I mean that the Father suffered from almost all of the usual difficulties that regularly beset self-represented litigants (e.g. lack of knowledge of court process, and ill-informed understandings about the limits on the provision of evidence). These were often magnified in the Father’s case here because of his regular inability to control his zeal, and not a few other things, which clearly regularly overwhelmed the Mother. The Mother obviously finds it very difficult to cope with his persistent attempts to try to spend more, and more regular, time with his daughter. In certain respects, so too does the maternal Grandmother in her regular dealings with the Father in relation to X.
At the same time, for reasons explained later, the more detailed evaluation of the Mother’s evidence (including her difficulties in dealing with the Father) did not occur because: (a) she had one of the most experienced family law advocates in Canberra acting for her and therefore she was shielded from much scrutiny in a way that was not possible for the Father; (b) the Father (for reasons explained later) ultimately decided not to cross-examine the Mother; and (c) the ICL took a decidedly strong stance in favour of the Mother, which further shielded the Mother from scrutiny.[1]
[1] I simply note that at the outset of the hearing, the ICL indicated that, at an earlier point in time, she had worked for a family law firm that provided legal advice to the Father in his family law dispute. Properly, she had raised this with the Father and with the Mother’s lawyers. Neither party took objection to her remaining as the ICL.
Part of the scrutiny that would have assisted the Court would have related to the Mother’s experience and knowledge of the Father’s energetic and persistent personality during their relationship. This is, in part, to say that, to some degree at least, presumably the Mother was reasonably well aware of the Father’s personality and attributes, and that his current behaviour has not come as a complete surprise. There is, unfortunately, no evidence to support such a supposition or proposition. Like almost all else regarding the Mother’s case, regrettably there was very little examination or testing of it, even by the ICL. More’s the pity.
In the circumstances of this matter, the course or stance not to examine the Mother’s evidence perhaps exacerbated the perceptions by the Father that “the system” and “the lawyers” were conspiring against him. Other matters are noted later in these reasons.
In this regard, I note the following comments by former Chief Justice of the High Court on the occasion of his official welcome in Sydney on 19th June 1998. At the outset of his remarks, Gleeson CJ said (emphasis added):[2]
In my case, a welcome from the New South Wales legal profession is more of a symbolic event than a practical opportunity to meet the local practitioners. Most of us here know one another very well. But the symbolism is important, because it reflects the relationship between the Court and the practising profession. That is a relationship that is often criticised and leads to a measure of suspicion and distrust on the part of some who see themselves as outsiders. We need to be sensitive to such perceptions.
[2] Ceremonial Sitting to welcome the Hon. Chief Justice Anthony Murray Gleeson, [1998] HCATrans 230 (19 June 1998).
Regrettably, regularly during the trial, the very obvious and understandable jocularity, exchanges and other tête-à-têtes even during the hearing, and easy familiarity between local legal colleagues – the Mother’s lawyers and the ICL – clearly made the Father feel even more isolated and, as he stated in cross-examination, “under attack”. These easy and friendly exchanges, with nothing obviously untoward arising from them by or in themselves, but in the context of this matter, what everyone else in the Court room could see – the Father in particular – the lawyers could not. Not surprisingly, he did not respond well to this perceived “conspiracy” by lawyers and “the system” to oppose in unison and (in his view) to subvert his claims to what he thought, and held strongly, to be his entitlement to spend regular, increased time with his daughter.
Further to this, the Father’s cross-examination was an exercise where, in my strong view, it would have been better served by application of the old adage that “less is more.” To put it more bluntly, when a nail has been hammered into the floor, it serves little purpose other than to inflict needless damage to drive it through the floor. Moreover, the Father inflicted much damage to his case from his own conduct over the course of the proceedings, and at times during the trial. Put another way, the Father kicked many “own goals.” The Father’s material, his mis-guided almost desperate zeal and much else, effectively made him, in colloquial parlance, a “sitting duck.” The cross-examination of the Father should have been much shorter than it was.
Put another way, and to borrow from the pen of Sir Arthur Conan Doyle and his famous characters, Sherlock Holmes and Dr John Watson: Holmes regularly chided Watson for seeing what he, Sherlock saw, but nonetheless did not properly “observe”. Just so here: everyone in the litigation and especially in the Court-room saw the same thing, relevantly a self-represented litigant who was flailing and raging against an array of forces that he perceived to be marshalled against him. But a more careful observation showed that there were many other forces at work, not least that the Father lacked the relevant matériel to comprehend the nature of the litigation and that, for example, his own conduct – in- and outside Court – was a crucially determinative factor. Regrettably, he could not, or chose not to, see how significant and damaging his conduct was. The lawyers seemed often, with no malice at all, focussed on driving all nails, so to speak, through the evidentiary floor rather than take a more restrained approach against a largely defenceless adversary.
Indeed, as it was nearing its end, the Court reminded the learned advocate for the Mother, not for the first time, that the Court was looking for assistance rather than, in effect, ongoing “damage” to the witness. To this, clearly with no offence intended, the advocate stated that she still had some time that was allocated and that she had a right to put her client’s case. Respectfully, such a response was not appropriate.
This was a case where a self-represented litigant had chosen, in part because of a suggestion by the Court (plus whatever counsel he obtained from the Duty Lawyer during a break in the proceedings) not to cross-examine the Mother thereby saving her potential further distress. It showed some insight on the Father’s part. Further, put very simply, there was a huge disparity in the evidence and the matériel generally that favoured one side (the Mother) so immeasurably more than the other. The assistance that the Court was looking for, and should have been able to have neatly presented by the Mother’s legal team and the ICL, was not as forthcoming, in my respectful view, as it should have been.
Such a view is perhaps best recorded by noting that the Mother’s Orders sought run to approximately 11 pages and 42 Orders (many with a number of sub-parts).[3] They might all be necessary. On the other hand, on the evidence at trial, they are likely to be akin to “trip wires” that will not assist or to facilitate genuine co-parenting between the parties but, regrettably, will more likely further frustrate the Father. Indeed, they will more likely to be seen to be like the innumerable restraints that were used by the Lilliputians to restrain Gulliver. How such young, relatively inexperienced and strained parents will function on a day-to-day basis with such a large set of Orders is difficult to fathom. They might need a further set of explanatory rules to guide them through the labyrinth of Orders. Unless there is some radical change in one or both of them, past history suggests that they (and X) will, regrettably, be embroiled in litigation for a large part of her life and their lives at significant personal, emotional cost, and likely on-going financial cost to the Mother’s parents.
[3] The Father’s Orders sought were also very detailed; they comprised a proposed 51 Orders. Brevity was not a hallmark of any side of the contest. It is hard to imagine either party having a copy of the Orders conveniently located, for example, on the door of the refrigerator; they are so voluminous that they would not fit on such a location as a ready and easy point of reference.
Moreover, an advocate’s primary duty is to the Court.[4] Any professed “right” to put a client’s case must not take precedence over the primary duty to assist the Court. Further, when a Judge tells an advocate that, in effect, the utility of proceeding with the cross-examination is unnecessary or unhelpful, is usually more than enough “guidance” from the Bench that nothing further is required. Such was the indication here, which was unfortunately unheeded on this occasion.
[4] There are innumerable references to such a duty both by the High Court and related professional Rules. As to the former, see Giannarelli v Wraith (1988) 165 CLR 543 at 555-556 (Mason CJ – such duty described as “paramount” and “over-riding”). His Honour said further that: “The duty to the Court is paramount and must be performed, even if the client gives instructions to the contrary.” His Honour emphasised the essential need for “an independent discretion or judgment in the conduct and management of a case which … has an eye, not only to the client’s success, but also to the speedy and efficient management of justice.” (Emphases added.) As to the latter, see (among many places) Law Council of Australia Model Rules of Professional Conduct and Practice 2015 (Rule 3.1) and Australian Bar Association, Barristers’ Rules 2015 (Rule 5).
As well, because the Father had elected not to cross-examine the Mother, in large measure the Mother and her legal team were pushing against an open door, so to speak. This only made the form of almost bludgeoning of an unprotected witness, who already had expressed his concern about family lawyers acting against the interests of Fathers generally, all the more needless, and in certain respects, dangerous and certainly unhelpful. In short, the experienced lawyers should have known better. As Gleeson CJ said: “We need to be sensitive to such perceptions.”
Orders sought by the Applicant
The Applicant filed an Amended Case Outline on 12th November 2019, which contained his Orders sought, as follows:
Parental responsibility
1. That the parents have equal shared parental responsibility for X;
2. That prior to making any long-term decisions affecting X the parents will:
a. Contact each other in writing to advise each other of the upcoming decision to be made; and
b. The parents will be at liberty to provide their opinions with respect to the proposal via the Divvito App; and
c. The parents will give each other’s opinion due consideration, respect and will answer any questions raised about the proposal in a constructive, productive, positive, respectful and forward moving manner; and
d. Where possible, the parties will then reach a joint agreement about the decision; and
e. If joint agreement is not reached within 21 days of initial contact with the other parent pursuant to the above order, the parent that made initial contact may make the decision; and
f. The parent that makes a decision shall advise the other parent in writing of the decision within 48 hours of it being made along with the information about steps taken by them to implement the decision.
3. Day to day decisions affecting X will be at the discretion of the parent X is with at the time of the decision;
4. That both parties be restrained from removing X from attending her day-care, childcare or school without the written consent of the other parent, unless specified in another order within this document.
Living arrangements
4. That X lives in an equal (50/50) time share with each of her parents;
5. That X spends time with each parent 50% of the time;
6. That if a 50/50 routine (2-2-3) is not immediately adopted, the following incremental routine is adopted in its place, eventuating to 50/50 at the latest by X’s 5th birthday;
7. If, for whatever reason, X misses out on seeing either parent the time must be made up within fourteen (14) days of the missed day.
8. The parent X is currently with (hereinafter referred to as the “calling parent”) will ensure X is available to video call the other parent between 1800 and 1900 for at least fifteen (15) uninterrupted minutes. It is the other parent’s (hereinafter referred to as the “receiving parent”) responsibility to call during the allocated time.
9. If X is not to be looked after by the parent she is with (or any immediate blood-related family member) the parent shall inform the other parent, in writing, of the following;
a. Whom is looking after X
b. Qualifications held by them e.g. First Aid etc.
c. Contact details for them e.g. their mobile number and the company number if via a babysitting company
d. Duration of care
e. Where X will be during the time
f. Any other information reasonably requested by the other parent
From now until X’s 3rd birthday
4. In week 1:
a. Tuesday 1500 or end of school until Wednesday 1700; and
b. Saturday 0900 until 1700
5. In week 2:
a. Wednesday 0900 until 1700; and
b. Saturday 0900 until Sunday 1700
For a period of six (6) months from X’s 3rd birthday
6. In week 1:
a. Tuesday 1500 or end of school until Wednesday 1700; and
b. Saturday 0900 until 1700
7. In week 2:
a. Wednesday 0900 until 1700; and
b. Friday 1500 or end of school until Sunday 1700
For a further period of six (6) months from 2020 / 2021/X’s 4th Birthday)
8. In week 1:
a. Tuesday 1500 or end of school until Thursday 1300 or the start of school; and
9. In week 2:
a. Monday 0900 until 1700; and
b. Wednesday 0900 until 1700; and
c. Friday 1500 or end of school until Sunday 1700
For a further period of six (6) months from X’s 4th Birthday 2021
10. In week 1:
a. Tuesday 1500 or end of school until Thursday 1300 or the start of school; and
11. In week 2:
a. Monday 0900 until Tuesday 1300 or the start of school; and
b. Wednesday 0900-1700; and
c. Friday 1500 or end of school until Sunday 1700
For a final period of six (6) months from 2021 (X’s 5th birthday / 2022)
12. In week 1:
a. Tuesday 1500 or end of school until Thursday 1300 or the start of school; and
13. In week 2:
a. Monday 0900 until Wednesday 1700 or the start of school; and
b. Friday 1500 or end of school until Sunday 1700
From X’s 5th Birthday/ 2022
14. In week 1:
a. Tuesday 1500 or end of school until Thursday 1500 or the start of school; and
15. In week 2:
a. Sunday 1600 until Tuesday 1500 or the start of school; and
b. Thursday 1500 or end of school until Sunday 1600
16. That on a day X is attending day-care or school etc. it is considered “the day” of the parent that is due to collect X, not the parent that dropped X off.
Special Occasion time
14. That notwithstanding the above orders;
a. X will spend time with her Father over Father’s Day equal to that as what she spent with her Mother over Mother’s Day;
i.X will spend the Father’s Day weekend (Friday 1500 or end of school until Monday 1500 or start of school) with her Father, and if Father’s Day falls on a weekend that X would otherwise would have been spending with her Mother that time will be made up either on the weekend before or weekend after Father’s Day; and
ii.X will spend the Mother’s Day weekend (Friday 1500 or end of school until Monday 1500 or start of school) with her Mother, and if Mother’s Day falls on a weekend that X would otherwise would have been spending with her Father that time will be made up either on the weekend before or weekend after Mother’s Day;
15. X will spend from 1500 29th December until 1200 31st December with her father for his birthday in odd-numbered years; and
In even-number years, where X is not already spending time with her father on December 30th as per the applicable order above (4 through 15), X is to be made available for a period no less than eight (8) hours during the course of December 30th as agreed between the parties and failing agreement;
1200 until 2000
16. From 1200 31st December in odd number years until 1600 1st of January the following year with her father to celebrate the New Year; and
17. That following shall apply with respect to the Christmas period:
a. The Christmas period be defined as beginning at 1100 on 24th December and ending at 1600 on 26th December each year; and
b. In even-numbered years, X spend time with the mother during the Christmas period; and
c. In odd-numbered years, X spend time with the father during the Christmas period;
18. That the following shall apply with respect to the Easter Period:
a. The Easter period be defined as beginning at 1500 or end of school Thursday before Good Friday until 1500 or start of school the Tuesday after Easter Monday;
b. In odd-numbered years, X spend time with her mother during the Easter period from 1500 Thursday till 1500 Sunday and time with her father from 1500 Sunday till 1500 Tuesday; and
c. In even-numbered years, X spend time with her father during the Easter period from 1500 Thursday till 1500 Sunday and time with her mother from 1500 Sunday till 1500 Tuesday;
19. On X’s birthday each year, X will spend time with the parent who does not otherwise have her care as follow;
a. If on a weekday from 1400 (or end of school) until 1930; or
b. If on a weekend, from 1100 until 1630
20. That both parent’s take all care and necessary steps to make X available for any other special occasions including but not limited to family member’s birthdays.
a. A minimum of 2 days’ notice is to be given for such events; and
b. X’s attendance is not to be unreasonable refused; and
c. Since these are often “dinner time events” X will stay with the parent whose family is having the special occasion and return to the other parent by 1200 the next day; and
d. If X is to be with the parent whose family has the special occasion the day after the special occasion, she will remain in the care of that parent until the next “normal” or scheduled changeover.
21. That other “normal” public holidays (Australia day, Canberra day etc.) be split in a manner that it equates to a 1:1 ratio over the year, without including the above mentioned public holidays (Christmas, Easter and New Year’s day) in that ratio.
22. Each parent have reasonable opportunity to take X to other Special events (Sky fire, Halloween trick or treating etc.) or festivals (Canberra show, Multi-cultural festival);
23. That Term 1, 2 and 3 school holidays follow the normal routine;
24. That the Christmas or Summer school holidays follow other necessary orders until New Year’s Day and then either of the following until school returns;
a. Follow the normal routine; or
b. Week about to allow travel; or
c. 2-week block/s with each parent to allow extended travel.
d. 24B and 24C only applicable if travel plans have been organised pursuant to orders regarding travel.
25. When X gets invited to a birthday party, both parents are to do all things to ensure X can attend the party. This means that if X is invited to a party from a paternal friend and she is with the mother, the mother will do all things to ensure X can attend the party be it by swapping days with the father or making sure X is available so that the father to take X to the party and return X at the conclusion of the party.
Known Special Occasions coming up
26. There are a few dates we already have special and important family events;
a. Mr D’s wedding in 2020
i.This is in Town E NSW. We plan to leave Canberra no later than 1300 Friday and return Sunday evening (this is in line with my progressive time increase above.) I will provide further details as per travel orders once they are organised.
b. F’s baptism Sunday (1 day)
c. Sunday
d. Make up time from Saturday 21st September
e. Wiggles (Tickets purchased)
f. Christmas Party Sunday
Changeover
24. That where changeover does not occur at X’s day-care/school, they shall occur as follow:
a. At the Suburb B McDonald’s or in the event Suburb B McDonald’s is inaccessible; then
b. Suburb G McDonald’s or in the event Suburb G McDonald’s is inaccessible; then
c. Any other reasonable location agreed in writing by the parties. The parents cannot unreasonably refuse the location. But failing such agreement the parties will meet at Suburb H Police station;
d. A reasonable location be defined as being a public location easily accessible by both parties. Preferably, but not necessarily, located in between the parties homes (Suburb J, Suburb H, Suburb G etc.)
25. Both parties are permitted to ask their any immediate family member (parents, brothers or sister) to attend changeover with X in their place. The parent not attending is to inform the other parent whom is to dropping off or picking up X.
26. Any person in attendance at changeover shall comply with these orders and show respect to the other party. This respect will be reciprocated and shown back to the person in place of the parent.
General orders
26. X be baptised.
27. That unless in the case of an emergency, the parties continue to communicate via the DIVVITO app.
28. That the Mother and the Father are permitted to freely attend any school attended by X and to attend any school event or occasion which parents are invited to or involved with;
29. That the Mother and The Father are permitted to freely attend any extracurricular activity undertaken by X to which parents normally attend;
30. That the parents authorise in writing the school attended by X to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to carnivals, sporting or social functions, notices of and any invitations to parent-teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copies of these Orders will be sufficient to discharge this Order and in the event that these Orders are not accepted as authority, both parties will do all things necessary to authorise the obtaining of such information..
31. That the Mother and the Father advise each other by phone call at the time and as soon as possible after in writing in the event of the following occurring;
a. X being injured or falling seriously ill; or
b. X requiring urgent medical treatment by a doctor or ambulance crew; or
c. X being admitted to hospital; or
d. X obtaining an appointment to attend upon a general practitioner or specialist.
e. Both parents are permitted to attend such hospital admissions etc.
32. That the Mother and the Father be at liberty to obtain all medical records and to consult with X’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose and in the event that these Orders are not accepted as authority, both parties will do all things necessary to authorise the obtaining of such information.
33. That the Mother and the Father will not denigrate each other or the other parents’ family in X’s presence nor allow another person to do so.
34. That the parties will advise each other 24 hours prior if they intend to take X outside of the ACT but not further than a 50km radius (from Suburb J).
35. If the parties wish to travel further than a 50km radius (from Suburb J) from the ACT (but not outside of Australia) with X, 1 weeks’ notice and an in-depth itinerary must be provided. Itinerary must include;
a. Dates of travel; and
b. All Mode/s of travel; and
c. All Location of hotels or places where X will be staying; and
d. All contact information (phone, email, fax) for all hotels or places where X will be staying;
e. All other members in the travel party; and
f. Proof of return tickets for at least X and the parent taking her (if traveling by means other than car); and
g. Proof of travel insurance for at least X (if going out of Australia); and
h. Any other reasonable information requested by the other parent
36. That the parties be restrained, and an injunction be granted restraining them both from, relocating X’s residence outside of the Canberra/City K metropolitan area without the prior written consent of the other.
37. That the Mother and the Father attend and complete the Circle of Security Course at an appropriate provider.
38. In the event that X wishes to speak with the party with whom she is not currently living with or spending time with, the other party is to facilitate that call.
39. Both parties be and are restrained from discussing these proceedings with or in the presence of X.
40. The parties shall keep the other informed of:
a. The name and contact details for each of X's doctors, healthcare and other treatment providers;
b. Any medical condition, significant illness or other significant health condition suffered by X;
c. Any school, educational facility or extracurricular activity provider for X;
d. The means by which the other parent might purchase or obtain any school or extra-curricular activity photographs or awards; and
e. The address at which X will reside when in their care and a contact telephone number and each party shall notify the other party at least 7 days prior to relocating X's residence beyond a 20-kilometre radius from where they currently reside.
41. In the event a dispute arises in relation to the interpretation of these orders, or any other parenting issue concerning X not covered by these orders, then pursuant to section 13C(1b) of the FLA, the parties are required to attend family dispute resolution with a family dispute resolution practitioner to help them resolve their disputes with each other.
International orders
41. In the event that either parent intends to travel outside of the commonwealth of Australia with X, then such parent (hereinafter referred to as the “travelling parent”) must provide to the other parent (hereinafter referred to as the “remaining parent”) not less than six (6) months from the intended date of departure;
42. A written notice to the remaining parent which will state that they intend to travel outside of the commonwealth of Australia with X as provided by these orders;
43. A full itinerary of their travel plans;
a. Dates of travel; and
b. All Mode/s of travel; and
c. All Location of hotels or places where X will be staying; and
d. All contact information (phone, email, fax) for all hotels or places where X will be staying;
e. All other members in the travel party; and
f. Proof of return tickets for at least X and the parent taking her (if traveling by means other than car); and
g. Proof of travel insurance for at least X (if going out of Australia); and
h. Any other reasonable information requested by the other parent.
44. The remaining parent must inform the travelling parent in writing within fourteen (14) days of receipt of the written notice and itinerary referred to in 42b of these orders whether they consent to the travelling parent’s proposal to travel outside of Australia with X.
45. For the purpose of Order 44;
a. Neither parent will unreasonably withhold their consent to the proposed travel; and
b. The traveling parent will make up any time X missed with the remaining parent either prior to departure or upon return, at the earliest convenience of the remaining parent; and
c. The travelling parent shall deliver to the remaining parent not less than twenty-one (21) days prior to the intended date of departure a copy of the airline/sea craft return tickets for both the travelling parent and X for their departure from and return to Australia.
46. That the remaining parent hold copies (certified if needed) of the travelling parent and X’s passport, airfares, hotel bookings and any other information recommended to keep a copy of in case of loss or theft;
47. X’s passport storage location (once a passport is actually necessary) follows;
a. A safe deposit box at a bank (approx.. $125 per year) that both parties must be present to access; and
b. X’s passport shall be accessed no earlier than seven (7) days prior to departure from Canberra; and
c. X’s passport shall be returned no later than seven (7) days after arrival back into Australia.
Co-Parent relationship
48. To assist with a positive co-parent relationship, for X’s best interests, the parties shall attend a form of formal “couples” counselling together at minimum every six (6) months;
a. If parties attend separately they shall see the same counsellor;
49. The parties shall work towards having “coffee meetings” to discuss issues or other important things in person. Depending the topic and X’s age at the time she may or may not be present.
50. In general, for X’s best interests and a positive co-parent relationship, both parties will show respect towards the other. They will encourage X’s relationship with the other.
51. Prior to a new partner meeting X and becoming active or involved in her life the following shall occur;
a. The party and the new partner have been dating in a serious relationship for a minimum of six (6) months;
b. The new partner be made aware of these orders and if they breach them they and the other parent will be liable;
c. The new partner meet with the other parent;
d. The parties discuss boundaries with the new partner
e. The new partner understands their “place” and does not or will not try to overstep the line. They are not replacing the true parent in any capacity. They are dating the parent – that is all.
Orders sought for the Respondent
The Respondent’s Orders sought were contained in her Amended Case Outline, filed on 31st October 2019. These were as follows:
MINUTE OF ORDERS SOUGHT
Parental responsibility
1. That the mother have sole parental responsibility for the child X (born in 2017) ("X").
2. That prior to making any long-term decision affecting X, the mother will:
a. Contact the father in writing to advise him of the upcoming decision and her preference;
b. The father will provide his opinion via the Divvito App (or in writing);
c. The mother will give the father's opinion due consideration and will answer any questions raised by the father about the proposal;
d. Where possible, the parties will then reach joint agreement about the decision;
e. If agreement is not reached within 21 days of the mother's contact with the father pursuant to the above order, the mother may make the decision; and
f. The mother shall advise the father via the Divvito App (or in writing) of the decision within 48 hours of it being made together with the information about steps taken by her to implement the decision.
Change of X's surname
3. The name of the child X CADDELL born in 2017 is changed to X TAGGARD-CADDELL.
4. The mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.
5. The Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory is ordered to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.
Living arrangements
6. That X live with the mother.
7. That X spend time with her father in accordance with the following orders.
From the date of these Orders until X's third birthday in 2020:
8. Each:
8.1 Saturday from 9.30am to 4.30pm; and
8.2 Wednesday from 9.30am to 4.30pm.
9 During the Christmas period in 2019:
9.1 From 9.30am to 4.30pm on Monday 23 December 2019;
9.2 From 9:30am to 4:30pm on Christmas Day (Wednesday 25 December 2019)
9.3 From 9.30am to 4.30pm on Boxing Day (Thursday 26 December 2019):
9.4 From 9.30am to 4.30pm on Monday 30 December 2019; and
From 2020 (X's 3rd birthday) until 2021 (X's 4th birthday):
10. In Week One:
10.1 From 9.30am to 4.30pm Wednesday;
10.2 From 9.30am Saturday until 9.30am Sunday;
11. In Week Two:
11.1 From 9.30am to 4.30pm Wednesday;
11.2 From 9.30am to 4.30pm Friday;
12. During the Easter period in 2020 the following shall apply:
12.1 The "Easter period" is defined to commence 9.30am Holy Thursday and conclude 12noon Easter Monday;
12.2 During the Easter period the normal Week One and Week Two time is suspended;
12.3 During the Easter period X will spend time with the father:
12.3.1 From 9.30am on Holy Thursday until 12noon Good Friday;
12.3.2 From 9.30am Easter Sunday until 12noon Easter Monday; and
12.3.3 After the Easter period has concluded, time will recommence as if it were Week One.
13. During the Christmas period in 2020 the following shall apply:
13.1 The "Christmas period" is defined to commence 9.30am 23 December 2020 and conclude 12noon 31 December 2020;
13.2 During the Christmas period the normal Week One and Week Two time is suspended.
13.3 During the Christmas period X will spend time with the father as follows:
13.3.1 From 9.30am 23 December until 12noon 24 December; and
13.3.2 From 9.30am 30 December until 12noon 31 December;
13.4 After the Christmas period has concluded, time will recommence as if it were Week One.
From March 2021 until Term 2 of X's first year at school:
14. In Week One:
14.1 From 9.30am to 4.30pm Wednesday; and
14.2 From 9.30am Saturday until 12noon Sunday;
15. In Week Two:
15.1 From 9.30am to 4.30pm Wednesday; and
15.2 From after day care/preschool Thursday until before day care/preschool Friday.
16. During the 2021 Easter period (and the 2022 Easter period if X is not yet at school):
16.1 The "Easter period" is defined to commence 9.30am Holy Thursday and conclude 12noon Easter Monday;
16.2 During the Easter period the normal Week One and Week Two time 1s suspended;
16.3 During the Easter period X will spend time with the father:
16.3.1 From 9.30am on Holy Thursday until 12noon Good Friday;
16.3.2 From 9.30am Easter Sunday until 12noon Easter Monday;
16.4 After the Easter period has concluded, time will recommence as if it were Week One.
17. During the Christmas period in 2021 the following shall apply:
17.1 The "Christmas period" is defined to commence 9.30am 23 December 2021 and conclude 3pm 31 December 2021;
17.2 During the Christmas period the normal Week One and Week Two time is suspended;
17.3 During the Christmas period X will spend time with the father in 2021 as follows:
17.3.1 From 9:30am Christmas Eve until 3pm Christmas Day;
17.3.2 From 9.30am Boxing Day until 3pm 28 December;
17.3.3 From 9.30am 30 December until 3pm 31 December;
17.4 During the Christmas period in 2022 (this Order applies if X is not yet at school) as follows:
17.4.1 From 9.30am 23 December until 12noon 24 December;
17.4.2 From 9.30am 30 December until 3pm 31 December;
17.5 After the Christmas period has concluded, time will recommence as if it were Week One.
From Term 2 of X's first year of school until the commencement of Year 2:
18. During the school term as follows:
18.1 In Week One:
18.1.1 From after school Friday until 3pm the following Sunday;
18.2 In Week Two:
18.2.1 From after school Thursday until before school the following Friday.
19. During the school holiday periods Order 18 is suspended and the following provisions apply:
19.1 In the Terms 1, 2 and 3 school holidays, X will spend a block of three nights with the father as agreed between the parties and failing agreement from 10am on the middle Friday until 3pm on the following Monday; and
19.2 In the long Christmas/January holiday period, in addition to the special occasion Christmas time provided for in Order 20 below, for three blocks of three consecutive nights (that is, not six or nine nights consecutively) as agreed between the parties and failing agreement:
19.2.1 From 10am on the first Friday following the conclusion of the school term until 3pm the following Monday;
19.2.2 From 10am on the first Friday in January until 3pm the following Monday; and
19.2.3 From 10am on the third Friday in January until 3pm the following Monday.
20. That from X's first year of school the following shall apply with respect to the Christmas period:
20.1 The Christmas period is defined as beginning at 12noon on 24 December and ending at 12noon on 26 December each year;
20.2 During the Christmas period the normal holiday time is suspended;
20.3 In even-numbered years, X shall spend time with her mother during Christmas period;
20.4 In odd-numbered years, X shall spend time with her father during Christmas period.
21. That from X's first year of school the following shall apply with respect to the Easter period:
21.1 The Easter period is defined as beginning at 10am Good Friday and ending 10am Easter Monday;
21.2 In even-numbered years, X shall spend time with her father during the Easter period.
21.3 In odd-numbered years, X shall spend time with her mother during the Easter period;
21.4 In the event the Easter period falls during the school holidays and X is to spend time with her father during the Easter period, the Easter period will be included in the time that X is to spend with her father in accordance with Order 19.1 above (and will not be additional to that time);
From the commencement of Year 2:
22. During the school term as follows:
22.1 In Week One:
22.1.1 From after-school Friday until before school Monday (or Tuesday, if the Monday is a public holiday);
22.2 In Week Two:
22.2.1 From after school Thursday until before school Friday.
23. During the school holiday periods Order 22 is suspended and the following provisions apply:
23.1 In the Terms 1, 2 and 3 school holidays, in a block of four nights as agreed between the parties and failing agreement from 10am on the middle Friday until 3pm on the following Tuesday;
23.2 In the long Christmas/January holiday period, for three blocks of four nights (that is, not eight or twelve nights consecutively) as agreed between the parties and failing agreement:
From 10am on the first Friday following the conclusion of the school term until 3pm the following Tuesday;
From 10am on the first Friday in January until 3pm the following Tuesday; and
From 10am on the third Friday in January until 3pm the following Tuesday.
24. That each year thereafter, X's holiday time with her father shall increase by one night each year until it reaches a block of seven nights, so that:
24.1 In Year 3, X's holiday time with her father is in a five night block (to occur at times as agreed between the parties and failing agreement commencing at 10am on the first Saturday of the holiday period);
24.2 In Year 4, X's holiday time with her father is in a six night block (to occur at times as agreed between the parties and failing agreement commencing at 10am on the first Saturday of the holiday period);
24.3 In Year 5, X's holiday time with her father occurs for half of each school holiday period, such that:
24.3.1 During school term holiday periods (Terms 1, 2 and 3) X spends equal time with her father during the holiday periods as agreed between the parties, and failing agreement as follows:
a) In even-numbered years, X will spend the first half of term school holiday periods with the father;
b) In odd numbered years, X will spend the first half of term school holiday periods with the mother;
c) The “first half” is defined as commencing from the last day of the school term, and concluding at 5pm on the middle Sunday of the holiday period; and
d) The “second half” is defined as commencing from 5pm on the middle Sunday of the holiday period, and concluding on the first day of the school term.
24.3.2 During the long Christmas/January holiday period X spends time with her parents equally as agreed between them, and failing agreement in rotating blocks of seven nights as follows:
a) In even-numbered years, X will spend the first block of nights with her father;
b) In odd-numbered years, X will spend the first block of nights with her mother; and
c) The rotating blocks is suspended during the Christmas period (as set out in Order 25 below).
25. With respect to the Christmas period:
25.1 The Christmas period is defined as beginning at 12noon on 24 December and ending at l2noon on 28 December each year;
25.2 During the Christmas period the normal holiday time provided for in Order 24 is suspended ;
25.3 In even-numbered years, X shall spend time with her mother during the Christmas period;
25.4 In odd-numbered years, X shall spend time with her father during the Christmas period.
26. With respect to the Easter period:
26.1 The Easter period is defined as beginning at 10am Good Friday until 10am Easter Monday;
26.2 In even-numbered years, X shall spend time with her father during the Easter period.
26.3 In odd-numbered years, X shall spend time with her mother during the Easter period;
26.4 In the event the Easter period falls during the school holidays, the Easter period will be included in the time that X is to spend with her father in accordance with Order 23 above (and will not be additional to that time).
Special occasion time
27. That notwithstanding the above Orders:
27.1 X will spend time with her father on Father's Day as follows:
27.1.1 In 2019 from 9.30am to 4.30pm;
27.1.2 In 2020 and 2021, from 4.30pm on the Saturday before Father's Day until 4.30pm Sunday (Father's Day);
27.1.3 Qnce X commences primary school, from after school on the Friday before Father's Day until 3pm Sunday (Father's Day);
27.1.4 Once X is in Year 2, from after school Friday until before school the following Monday during the Father's Day weekend.
27.2 X will spend the Mother's Day weekend with her mother, and if Mother's Day falls during a weekend that X would otherwise have been spending with her father that time will be suspended.
27.3 On X's birthday, X will spend time with the parent who does not otherwise have her care as follows:
27.3.1 If on a weekday, from 3.30pm until 6pm; and
27.3.2 If on a weekend, from 11am until 4.30pm.
Changeover
28. That where changeover does not occur at X's day-care/school, it shall occur as follows:
28.1 The mother and father will not come into direct contact at changeover
28.2 The paternal grandmother, Ms A, and the mother will attend Suburb B McDonalds for changeover ( or at another location as agreed between the mother and Ms A);
28.3 The mother may arrange for any other person to attend changeover on her behalf.
28.4
At the supervised facility at C Family Services, or when C Family Services is unavailable, then28.5
At the McDonalds, Suburb B.29. Both parties are permitted to ask their mothers only (Ms L and Ms A) to attend changeover with X as their agent, and in the event the parents themselves attend they will ensure that X enters into the care of the other parent and will thereafter promptly leave the changeover location.General orders
30. That unless in the case of an emergency, the parties continue to communicate via the DIVVITO App for all communication.
31. That the Mother and the Father are permitted to attend any school attended by X and to attend any school event or occasion which parents are invited to.
32. That the parents authorise in writing the school attended by X to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to carnivals, sporting or social functions, notices of and any invitations to parent-teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copies of these Orders will be sufficient to discharge this Order.
33. That the Mother and the Father advise each other as soon as possible by the DIVVITO App (or by telephone call in the event of the emergency situations listed at 34.1, 34.2 and 34.3 below) in the event of the following occurring:
33.1 X being injured or falling seriously ill;
33.2 X requiring urgent medical treatment by a doctor or ambulance crew; or
33.3 X being admitted to Hospital.
33.4 X obtaining an appointment to attend upon a general practitioner.
34. That the Mother and the Father be at liberty to obtain all medical records and to consult with X's medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose and in the event that these Orders are not accepted as authority, both parties will do all things necessary to authorise the obtaining of such information.
35. That the Mother and the Father will not denigrate each other or the other parents' family in X's presence nor allow another person to do so.
36. That the Mother and the Father attend and complete a Circle of Security Course, which are offered at various community health and family health service centres in the ACT (as well as C Family Services).
37. In the event a dispute arises in relation to the interpretation of these Orders, or any other parenting issue concerning X not covered by these Orders, then pursuant to Section 13C(l)(b) of the Family Law Act 1975, the parties are required to attend· family dispute resolution with a family dispute resolution practitioner to help them resolve their disputes with each other, such Family Dispute Resolution to occur at either Relationships Australia ("RA") or any other agreed practitioner.
International Travel
38. In the event that either parent intends to travel outside of the Commonwealth of Australia for a holiday with X, then such parent (hereinafter referred to as the "travelling parent") must provide to the other parent (hereinafter referred to as the "remaining parent") not less than six (6) weeks from the intended date of departure:
38.1 A written notice to the remaining parent which will state that they intend to travel outside of the Commonwealth of Australia with X as provided by these Orders; and
38.2 A full itinerary of their travel plans, including but not limited to the intended overseas residential address or addresses of the travelling parent and X and the overseas contact telephone, email address and facsimile applicable at that intended address or addresses.
39. The remaining parent must inform the travelling parent in writing within fourteen (14) days of receipt of the written notice and itinerary referred to in the immediately preceding order whether or not he or she consents to the travelling parents' proposal to travel out of the Commonwealth of Australia with X.
40. For the purpose of Order 41 above:
40.1 Neither parent will unreasonably withhold their consent to the proposed travel; and
40.2 Both parties will use their best endeavours to agree upon and facilitate make-up time to reflect the time that the other parent did not spend with X during the international travel.
41. The travelling parent shall deliver to the remaining parent not less than twenty-one (21) days prior to the intended date of departure a copy of the airline/sea craft tickets (or written confirmation from the airline or travel agent) for both the travelling parent and X for their departure from and return to the Commonwealth of Australia.
42. X's passport is to be held by the mother, and shall be returned to the mother within 3 days of the father returning from any international travel with X.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer filed written submissions on 23rd December 2019 in which she recommended that the Orders as proposed by the Mother be made in their entirety.
Oral evidence of the Applicant Father
The Father’s oral evidence was long and somewhat repetitious, in part because he had arrayed against him (as earlier observed) two experienced family lawyers. There was some unfortunate overlap in the questioning. What follows is very much a summary of matters rather than a detailed “blow by blow” account.
At the outset the Father was asked by the Court if he maintained his claim that the Mother’s Affidavit evidence was “fabricated”. He said, in many more words than are recorded here, that it was. He said that he regularly feels “left out” of matters involving X, and that he always gets “the bare minimum” of time with her. He readily acknowledged that his relationship with the Mother is “strained.” I took his claim that the Mother’s evidence was “fabricated” was an example of hyperbole, and ongoing, severe disgruntlement more so than the Mother actually fabricating claims against the Father.
The Father said that in order to improve the communication between the parties it was necessary to work out what the “underlying issues” are. He said that he tried to organise mediation but it did not occur. He said that “consistent counselling” will help. On each of these matters, in theory I do not see too many problems. However, at a practical level that takes proper account of the hugely strained relationship between these parents, it is difficult seeing anything much changing anytime soon – regrettably.
The Father said that X has a strong relationship with both parents. He also acknowledged that the Mother feels anxious and distressed in dealing with him. He said that he was not sure what he could do to assist in relation to these matters. He said that, in his view, the Mother’s “mental health” issues was creating a “false perception” of what was actually going on and what was best for X and her relationship with the Father. The Father acknowledged that he and the Mother are “vastly different characters”, in the sense of their very different personalities.
The Father said that he acknowledged that the Mother loves and cares for X, and is doing a good job in these matters. He said that the physical care of X by the Mother is very good. In his view, both parents were shielding X from the parental conflict. Likewise, in his view, he did not see there to be any relevant risks to X at the present.
The Father acknowledged that the maternal Grandmother has played an important and positive role in X’s life. He also acknowledged, in my view, somewhat reluctantly and with limited understanding that he needed to work on the “tone” of his many questions and queries to the Mother. He said that he needed to change what often presented as an “angry tone” in communication.
In the Father’s view, (a) the choice of X’s school – obviously in a few years’ time – could and should be able to be worked out logically, and (b) he largely agreed with the Family Consultant’s recommendation that there could be a change for X to spend six nights per fortnight with the Father in the not too distant future. The Father quite strongly held the view that the Mother was “playing on” her mental health issues so as to gain the upper hand in the litigation.
He also said that, in his view, both parents needed to change. In his case, the Father said that he needed to “ease up” on the volume and tone of his communication with the Mother, and that he needed to work on how he “handled” situations of potential conflict. Again he acknowledged that the Mother was fearful and concerned in her dealings with him. Similarly, he acknowledged that the maternal Grandmother has had a degree of difficulty in engaging with him.
In the Father’s view, he said that while the Mother was “playing the victim”, X was the real “victim” in the contest between the parents.
The Father was taken through some incident outlined in the Mother’s trial Affidavit where she alleged there was domestic or family violence perpetrated by the Father. I need not elaborate on these more historical matters because, in my view, they have been overtaken by more recent events, noted below.
The Father agreed with the Court’s inquiry whether it would be fair to characterise him as “persistent, dedicated and determined.”
It is apposite here to note that regularly throughout his evidence the Father characterised his response as being “frustrated” and “annoyed” but not “angry.” This was his regular characterisation of his actions towards or in response to the Mother and or to the maternal Grandmother.[5] For all practical purposes, in my view, this was a distinction without a difference. Indeed, on one view, “frustration” and “annoyance” could be said to be causes that ultimately lead to the Father being “angry.” Moreover, as noted later in these reasons, the Father’s social media posts confirm, in his own words, that he was often very angry and “infuriated.” Thus, his claims in cross-examination of not being “angry” were and are completely undercut by his very candid, publicly stated social media confirmation of his anger at the limitations that he sees being placed on his time with X by the Mother.
[5] See, for example, the Mother’s account of events at par.67 of her Affidavit, filed 19th June 2019.
Somewhat similarly, the Father characterised various and prolific SMS messages to the Mother not as “vile”; in his view, they were “extreme” rather than vile. One such occasion (outlined in the Mother’s Affidavit) related to when the Mother was seeking to take X to visit the Grandparents. In the circumstances, the distinction between “vile” and “extreme” is barely intelligible, especially from the Mother’s perspective.
The Father said that he could, “potentially”, see the connection between the barrage and nature of his messages to the Mother and her anxiety in dealing with him.
The Father was taken to a range of incidents recounted in the Mother’s Affidavit (filed 19th June 2019), notably those set out at the following paragraphs: 67, 88 – 89, 92 – 94. The incident recounted in these paragraphs included a detailed narration of a changeover at the M Park, where there was a dispute over the time of changeover; another occasion regarding the attendance at a friend’s wedding. Both occasions led to an unnecessarily escalated contest with the Father. The Father did not deny them, but quibbled with some of the detail given by the Mother.
More concerningly was an occasion when the Father forcibly took X from her Mother’s car (over the Mother’s protests). He said he did so because he was concerned about the mental state of the Mother. He said, therefore, he was “protecting X.” The Father kept X for 5 hours. After a little time, the Father acknowledged that the Mother would have been, and was, very stressed and upset by this incident, and of course in being separated from X. Almost bizarrely, in my view, the Father then said that although it was not his intention, the Mother’s distress mirrored his own, regularly felt, anguish in being deprived of spending more time with X.
In response to a number of the incidents recounted in these paragraphs, the Father said – again – that he was not angry but only “frustrated”. He did not accept the Mother’s account of them, and said that he in fact has “good insight.”
So wide off the mark, and generally unhelpful, were the Father’s responses to the questions being put to him, the Court issued a formal warning, primarily because his own evidence was so damaging to his case. The Court pointed out to him that the reference point was X’s best interests, and not the Father’s obvious sense of entitlement to time with his daughter. In my view, the Father consistently showed very significant lack of insight into what was in X’s best interests. In part this was due to his overwhelming and abjectly misinformed view about what a parent is “entitled” to regarding the time-with arrangements for his or her child.
The Father confirmed that the co-parenting relationship with the Mother was not good while they were together and since separation it has worsened.
In 2018 there was a birthday party, which X attended. It was held in a park. The maternal Grandmother arrived to collect X. A not insignificant contest ensued between the Grandmother and the Father. The Grandmother recorded the incident. The Father said that the Grandmother’s actions contributed to the difficulties on this occasion, which took place in front of X, and the other guests at the party.
The Father said, in my view quite simplistically, that the solution to this and almost all other problems was that he be able to spend more time with X. Among other things, the chief difficulty to this “solution” is that it amounts, in large measure, to a form of emotional and other “blackmail”. In other words, if the Father gets what he wants, there will be no further problems. Such a way of resolving disputes is both unprincipled and does not actually work. Moreover, there could never be any guarantee that, once one demand by the Father has been met, another demand would not be forthcoming.
Returning to the incident at the birthday party in the park, the Father acknowledged that the Grandmother sought assistance from one of the Father’s friends who was also in attendance. The assistance was sought because the Father was angry. Ultimately, the Father agreed that he was responsible for his own behaviour but he disagreed that his conduct was “frightening”. He agreed that his friend, Mr D, was urging him to hand over X to the Grandmother. Again he said that he was simply frustrated at the time.
The Father confirmed that he was involved with a number of “Father’s Groups”, and that he runs one of these groups, called “....” He said he is supported by these groups; they provided a positive forum for Fathers in similar circumstances to communicate and share their experiences. These experiences include sharing information about court cases. He said that he was always respectful about X’s Mother in these discussions. He said that he sometimes posted personal photographs on Facebook. The Father confirmed that for the purposes of the Group, he uses the name “Mr N.” I am not sure that the Father knows that “Mr N” in Latin means “happy” – thus his name would translate as “happy Mr N.” Clearly he is anything but happy.
The Father acknowledged that the social media posts cause the Mother some distress and anxiety. He also acknowledged that, at times, it is very difficult for him to keep his emotions and actions “in check.”
He said that the parenting courses he had done were not, in his view, a waste of time. He said he thought they were useful. From the Court’s perspective, in the light of the large amount of uncontested evidence, it was not immediately obvious what, if any, practical or tangible benefit had come from the Father doing these courses. Indeed, according to some of his social media posts, he has “called to arms” Fathers who have been disentitled by the Courts (and by Mothers) who have deprived them of time with their children.[6]
[6] Among other things, see Exhibit B, which is a series of screenshots of posts by the Father seeking “help” and support from the Group. It has various photographs of X. The posts were in late 2017 and early to mid-2018. They are replete with adverse references to the Mother, in strong, foul language. The Father admits in these posts to feeling “pretty fucken lost, very fucken angry and infuriated and incredibly sad.”
The Father confirmed that he is in arrears in his assessed payments of child support. Summarised, he said that part of the current dispute with the Mother relates to child support; he argued that if X’s time with him increased, his child support payments will decrease.[7] He also said that, in his view, the Mother was “abusing the Court system.” Given that he is in arrears in his child support payments, the Father’s claim in this regard is hardly a proper basis to increase X’s time with him.
[7] A copy of the Father’s formal objection to his latest Child Support Assessment became Exhibit E.
The ICL’s cross-examination of the Father canvassed a number of matters that, in my view, were unnecessary and did not assist the Court. This included things like the Father’s comments about X learning of, and possible reaction to, the Father’s critical social media comments about the Mother. Given X’s young age, I have difficulty seeing how such questions assisted the Court. Indeed, given the Father’s obvious sensitivity to the legal system and those who work in it, it was unsurprising that he commented in response to a range of questions from the ICL that he felt that he was being “persecuted” for being an “activist”. He said that Fathers were being oppressed, as were children in being denied time with their Fathers.
What was more relevant was the Father being asked about him sharing on social media, only 8 hours previously, a notice from a Father’s Rights Group in the United States. It was posted on the “parental alienation network.” He said that his purpose in sharing it was to “raise awareness.” He said that he considered himself to be a victim of parental alienation. He said that his sharing of this “information” was like a person who was vegan sharing a video about veganism. He said that he assumed that the Mother would not see this very recent (i.e. overnight) social media post. He said that the topic of parental alienation needed to be highlighted.[8] He said that he intended to keep the Dads Group running, although he had not done much with it recently.
[8] A screenshot of the [US] Father’s Rights Movement, shared on the Father’s Facebook page, became Exhibit F. Part of this “post” includes adverse comments towards judges generally who deprive a “willing and able parent” of time with a child. Such judges should thereby, according to this post, be charged with “child abuse.”
The Father confirmed that he has, at times, lobbied politicians. He also queried how X could properly experience her Country O heritage with his family given that she spends [only] 14 hours per week with the Father and his family.
The Father said that he generally “aligned” with the recommendations in the Family Report of Ms P. He said that he thought that, in time, he and the Mother could have “coffee dates” to discuss things regarding X, but on further reflection, perhaps such a course should not happen. He accepted that the Mother does not want any direct contact with him. He said he would agree to an Order that he not contact the Mother directly.
The Father said that he has “strong self-esteem”, and that his aim was to try to work “as a team” regarding parenting X. He also accepted that there was a difference between the quantity of time he spent with X and the quality of that time. It was particularly difficult, he said, to share appropriately or adequately the time he has with X with his wider family.
He said that his material filed was not intended to make the Mother more anxious, and he did not wish or seek to slander her. Indeed, the Father gave the example of his attempts to put a positive view of the Mother with X. This involved him taking X to pick out a Mother’s Day and birthday card and help her write it for the Mother.
There were a range of questions about things like X’s nap time, her lactose intolerance and other matters. I need not canvass them.
The Father noted that he was “third on the list” at X’s day-care to be notified. Clearly this grated on him. He also said that the Mother’s application to alter X’s surname was not really important, in his view.
Some comments on the Father’s evidence are apposite.
The Father was a poor witness. Regrettably, he was and remains, in my view, his own worst enemy. His evidence – oral and written - repeatedly showed significant lack of insight into (a) appropriate developmental progression and needs of his daughter, and (b) his own refusal to accept that he could ever be wrong, particularly regarding any matter concerning X.
Lest in not be clear, I regard the Father’s social media posts to be extremely concerning in every relevant respect.
I have already remarked on his distinction without a difference between being frustrated and being angry. His social media commentary confirms that he is often very angry and “infuriated” at what he sees as the Mother’s attempts to thwart his efforts to spend more time with X. I fear that if his conduct continues unabated and unrestrained into the future, as X gets older she will possibly become so tarnished by her Father’s conduct and attitude towards her Mother that it will likely damage the Father-daughter relationship. That would be a devastating outcome for all concerned. Unfortunately, I did not see much evidence to indicate that the Father appreciates how damaging his forceful, desperate behaviour is towards the Mother, and in turn, its very likely negative impact upon X.
I have not recorded earlier that the Father regularly took his pulse during the trial to check on his general well-being. In my view, his behaviour in the witness box, at times, bordered on the manic, so obsessed was he to show what a good and strong Father he is, and by way of contrast, how weak and inapt the Mother’s general conduct and attitude towards him is. He was, curiously, quite oblivious to how he presented as an almost obsessive character, certainly when it comes to all things concerning X. It was almost as if he was issuing a general warning to anyone who will listen of “woe betide anyone (including the Mother and her family) who gets in the way of the Father’s attempts to spend more time with his daughter.” Further, his social media posts to various “Fathers Groups” clearly present him, as he unashamedly sees himself, as a “crusader” for the rights of oppressed Fathers. He is their “champion”, just as he is X’s “champion”. He will go to any length to ensure that his rights as her Father will not be stopped or thwarted by the Mother or anyone else.
Oral evidence of the Respondent Mother
The very brief oral evidence of the Respondent Mother, via questions from the ICL, was as follows.
The Mother agreed that she could be more open with the Father in her communication, but would always need to be careful about the topics and content of such discussion.
She said that she would be open to a facilitated co-parenting meeting with the Father once X started school. She agreed with the Father’s general assessment that the co-parenting relationship has deteriorated.
The Mother said that changeovers with the paternal Grandmother would help re-build some trust. She said that she got on reasonably well and spoke relatively easily with the paternal Grandmother. She said that she remained concerned with the Father’s ongoing levels of frustration, and she remained concerned that X, as a young child, was likely to cause him further frustration.
Such was the extremely limited cross-examination of the Mother. As noted earlier in these reasons, the Father decided, after some discussion with the Bench and whatever advice he may have received from the Duty Lawyer, that he would spare the Mother any further anxiety and not cross-examine her.
The Family Report
The Family Report of Ms P, dated 4th June 2019, became Exhibit D. Its relevant parts were as follows.
After noting, at par.16 of the Report, the Mother’s contentions that during the relationship and following separation, the Father was “verbally abusive and controlling”, Ms P outlined the following matters as the issues in dispute (pars.20 and 21):
[20] The issues in dispute are:
* The time the children spend with each of their parents.
[21] Issues identified during the assessment:
* The parenting capacity of each of the parents.
* The nature of the children’s relationships with their parents.
* The nature of the dynamic between the parents, and their capacity to make decisions and communicate about X’s [sic: X’s] needs.
Ms P also noted that other issues included that the Mother’s anxiety was inhibiting her capacity to co-parent with the Father.
Very briefly stated, I note that at par.34 of her Report, Ms P recorded that the Father wanted to transition to a, equal time arrangement as soon as possible. In the Father’s view, such a move would not be a significant transition and that X could manage it, given her current stage of development.
Ms P also noted, at par.38, that the Mother was on medication to deal with her anxiety, and that she was seeing a psychologist for the same reason. At pars.41 and 42, Ms P recorded the Mother confirming that X was always happy to attend visits with her Father and was happy on her return. The Mother also stated that she thought the Father could be a great parent “if he takes her [i.e. the Mother’s] help on board.”
In the “evaluation” section of the Report, Ms P stated (pars.58 – 66):
[58] The priorities for X, based on her developmental level, are to have a safe living environment with a warm, attuned relationship with her primary caregiver and regular, positive contact with other family members. X will benefit from a stable, child-focused routine, and from opportunities to engage in both structured and unstructured play.
[59] X is by all accounts a happy, healthy two-year-old, who is meeting her developmental milestones, has a range of interests, and enjoys her time with both parents and at childcare. She appeared comfortable in the presence of both her parents, and turned to them for interaction, assistance and comfort during the observation sessions.
[60] Both parents appear capable of meeting X’s physical and emotional needs, have an understanding of appropriate behaviour management and child-centred routines, and have safe home environments with a high level of family support. Mr Caddell expressed some minor concerns about Ms Taggard’s care of X, including her bedtime and being dressed appropriately for the weather. It would appear that these concerns could be alleviated through improved communication between the parents. Ms Taggard’s concern that Mr Caddell has been giving X dairy and that this is causing health issues for X could similarly be resolved through improving communication between the parents.
[61] Mr Caddell reported concerns that Ms Taggard does not support the relationship between him and X, and worries that he is being alienated from X. He emphasised the importance of improving the dynamic between him and Ms Taggard, and believes they would benefit from participation in the ARCK program. Ms Taggard has been unwilling to have any direct contact with Mr Caddell due to her anxiety around him pressuring her to increase his time with X, or becoming verbally abusive. During the assessment, she reported that her anxiety has significantly decreased, and that this would further decrease with opportunities to see Mr Caddell interacting in an appropriate manner. Participating in a course such as the ARCK program could assist with this process.
[62] X currently spends two days each week with her father, three days with her mother, and two days in childcare. She spends all nights at home with her mother. While Mr Caddell is keen to increase his time with X, ideally this increase will occur in a way that does not disrupt her routine (in which she is thriving).
[63] Based on X’s current developmental stage, she will rely heavily on her attachment figures to help manage strong emotions, and is likely to find overnight time away from her attachment figures stressful. However, X has been spending frequent time with her father, appeared comfortable in his care, and turned to him for support and comfort during the observation session, and may view him as an attachment figure. Due to her young age, X will also need her caregivers to communicate about her needs, and to feel that her caregivers trust that she is safe in their care. Both X’s parents reported significant difficulty in the communication between them, and significant work is needed to improve to allow X’s physical and emotional needs to be met during overnight visits with her father.
[64] Ms Taggard is supportive of moving towards overnight visits for X with her father, but believes it would be best for this to occur once she is three years old, when she has a better understanding of timeframes and is more able to communicate her needs. While X may manage occasional overnight stays prior to this, regular overnight visits from the age of three appears to be a realistic option. The Court may consider whether it would be appropriate for X to spend occasional overnight time with Mr Caddell and her paternal family on special occasions (such as at Christmas time or for family birthdays) in the later part of this year.
[65] Mr Caddell stated he would like to be involved in X’s childcare, so beginning overnights to include collecting her from childcare could be beneficial. If X continues to attend childcare on Tuesdays and Thursdays, this may allow her to eventually spend two consecutive nights with her father each week, with pick up and drop off to childcare, avoiding the need for supervised handovers.
[66] Mr Caddell was confident that he and Ms Taggard would be able to manage shared decision-making for X into the future, providing that Ms Taggard was consistent in passing on information about X’s care. Ms Taggard does not believe that she and Mr Caddell could discuss and share decision-making for X, as she believes she would be harassed by Mr Caddell until she agreed with him. For this reason, she is seeking sole parental responsibility. However, Mr Caddell plays a significant role in X’s life, and it will be important for him to play a role in decisions around X’s care. Mr Caddell will need to work on understanding Ms Taggard’s concerns around his approach to communication with her (ideally through a program such as ARCK) so that they are about to communicate in a respectful, balanced manner.
Written submissions by the Independent Children’s Lawyer
The Independent Children’s Lawyer filed their written submissions on 23rd December 2019, as follows:
WRITTEN SUBMISSIONS OF THE INDEPENDENT CHILDREN’S LAWYER
1. These proceedings relate to X born in 2017 (‘X’) who, at the time of hearing, was 2 years and 8 months of age.
2. The dispute between the parties is in relation to the allocation of parental responsibility for X, the time X should spend with her Father and how changeovers should occur, whether the Mother should be allowed to change X’s surname to include her own and whether X should have a passport.
The Father’s Position
3. The Father sought orders that the parties have equal shared parental responsibility for X.
4. The Father’s position is that X should immediately spend equal time with each party in a 2/2/3 arrangement.
5. In the event the court does not immediately make orders for equal shared care, the Father sets out in his Case Outline a complex and mathematically-based arrangement whereby an equal shared care arrangement would be reached by X’s 5th birthday.
6. The Father proposed various other orders in relation to communication between the parties and with X, changeovers, make-up time, special occasion time, how a passport should be held and the provision of information between the parties.
7. The Father opposes a change of X’s name to include the Mother’s surname.
8. The Independent Children’s Lawyer (‘ICL’) agrees with the Mother’s Counsel’s at paragraph 9 in her submissions that, overall, the Father’s approach was a ‘right-based’ approach with little appreciation of X’s needs.
9. In the context of allegations by the Mother of ongoing behaviour by the Father which would amount to family violence (and which the ICL submits should be accepted as being within the definition of family violence), the ICL submits the Court should be concerned by the degree to which the orders proposed by the Father;
a. Would require the Mother to engage with him directly (Orders 2c, 9f, 31d, 48 and 49 of the Father’s Case Outline);
b. Favours the Father in relation to special occasion time (Order 20 of the Father’s Case Outline); and
c. Requires the parties to provide each other with what the ICL submits is irrelevant or intrusive information (Orders 9, 35c and 48 – 51 of the Father’s Case Outline).
10. Although the Father appeared to resile somewhat from Orders 48 and 49 at trial, the ICL submits the Father’s Orders sought are, overall, indicative of his limited insight into his controlling and abusive behaviours and his limited insight into X’s needs.
The Mother’s Position
11. The Mother proposes she have sole parental responsibility for X. She proposes to include the Father in long-term decision making via communications on the Divvito Ap
12. The Mother proposes that X spend time with the Father during the day only until her 3rd birthday when one overnight stay a fortnight commences, increasing to two overnights from Term 2 of X’s first year of school and increasing to 4 nights each fortnight during term time and to week about in school holiday time when X reaches Year 5.
13. The Mother proposes X’s surname by change to Taggard-Caddell.
14. The Mother proposes various other orders in relation to changeovers, the issuing of a passport for X, special occasion time, and international travel.
The Father’s Evidence
15. Despite the affidavits on which the Father sought to rely being limited to those filed after May 2019, the ICL submits the volume of material filed by the Father in the proceedings to be excessive and demonstrative of the Father’s litigious approach to the dispute.
16. The ICL submits that the Father’s approach to the proceedings, in addition to being ‘rights-based’, also indicates the Father considers himself to have been wronged and treated unfairly to date. In his oral evidence, the Father described himself as a victim of paternal alienation by the Mother. Indeed, the Father informed the Court under cross-examination that he currently administers a Facebook page called ‘Dads’ on which he regularly ‘shares’ images association with paternal alienation, including a post he uploaded overnight during the final hearing and which was tendered by the ICL and marked Exhibit F.
17. Despite the Father stating both in his written and oral evidence that he wishes to ‘communicate effectively with the mother’ and ‘work as a team’, the ICL submits that his written and oral evidence indicates he is unlikely to be satisfied with, or agree to, arrangements for X that are not as he has proposed. By way of example, the ICL refers to the Father contacting the Mother numerous times [Annexure E of the Mother’s Affidavit] in relation to his request that X spend an evening with his family on or around Father’s Day 2019.
18. The communication that took place in relation to Father’s Day and using the Divvitto App and where both parties’ comments to the other were ‘flagged’ by the App as being comments they might wish to reconsider indicates, in the ICL’s submission, that the communication between the parties is likely to continue to be a significant issue. The ICL submits that agreement between the parties is very unlikely unless it is the Mother agreeing to the Father’s terms.
19. The ICL submits that the Court should find the Father has been and will likely continue to be highly critical of the Mother and members of her family. The Father was cross-examined on the numerous defects he attributes to the Mother, and did not appear to resile from them nor demonstrate any insight or understanding that his views of her might impede he and the Mother ‘working as a team’ for X’s benefit. The ICL notes the Father, in the final paragraph of page 10 of his submissions, persists in his belief the Mother and Maternal Grandmother have ‘stolen’ $22,000 from him. Whilst the Court is not asked to determine that issue, it appears in the ICL’s submission, to preoccupy that Father and be unlikely to assist any future co-parenting relationship.
20. Accepting that the Father’s witnesses were not cross-examined, the ICL submits it is likely that X will be exposed to the criticisms of the Father and his witnesses (who were predominantly his family members) and that that will have a detrimental impact on X. Where the Father maintains a belief that he has been wronged, and that the Mother has so many deficiencies, the ICL submits it is unlikely the Father will promote X’s relationship with her Mother, or that his family members will.
21. The ICL submits that the incident occurring at McDonalds in June 2019 and the Father’s behaviour at C Family Services (Exhibit A) should cause the Court considerable concern in relation to the Father’s level of insight into the effect his behaviour has on the Mother, whether the Father can take ‘no’ for an answer, and whether he has the ability to comply with rules and boundaries set for him by other people, including the Court.
22. Similarly, the ICL submits that the Fathers evidence in relation to continuing to provide X with foods containing lactose where the Mother says X suffers ill-effects from them should be of concern to the Court. The ICL submits that where the Father considers the Mother (or other people) to be ‘wrong’, he is unable to act in a manner that is best for X.
23. The ICL submits that the Fathers’ unwillingness or incapacity to parent consistently with the Mother is unlikely to be in X’s best interests. The ICL refers to the Father’s position on X’s lactose intolerance above, and to the Father’s position on X not requiring naps in his care as, in his view, she did not appear tired to him. The ICL submits the Court should be concerned that X is likely to be exposed to inconsistent parenting and that this is not in X’s best interests.
24. The ICL submits that the Court should accept that the Father has perpetrated family violence on both the Mother and Maternal Grandmother and adopts the Mother’s submission on that issue as set out at paragraph 20 of the Mother’s submissions.
25. The ICL submits the Court should find that the Father has an inability to manage his anger and that this results in behaviour from him that poses a risk to X. The ICL notes in particular the incidents occurring at the Z Club between the Father and the Mother, and at Suburb G Park between the Father and the Maternal Grandmother. In relation to the incident occurring at the Z Club, the ICL submits that the Father’s behaviour indicated he had little to no insight about the effect on X of his actions in withholding her, at age 9 months, from her Mother for 5 hours. The ICL notes in particular the Father’s response to a question about how the Mother might have felt at that time, saying words to the effect that it would be ‘100 times less than what I feel when I can’t see X’.
26. In relation to the incident occurring at Suburb G Park on 21 January 2018 [pages 45-55 of the Maternal Grandmother’s Affidavit], the Maternal Grandmother’s evidence was not challenged in relation to the event occurring on that date and at which X was present. Additionally, and although the recording was not put in evidence, the ICL informed the Court she had heard the recording, that the Maternal Grandmother’s transcription of what had occurred was correct, that third parties attempted to intervene to assist, that X could be heard becoming distressed, and that the Father could not be heard to be taking any steps to stop or change his behaviour at any stage.
27. Where the Father has made very few concessions about the inappropriateness of his behaviour during the above-mentioned two incidents, the ICL submits the Court must be concerned such incidents are likely to occur again.
28. The ICL submits that in addition to the court finding the Father has perpetrated family violence on the Mother and Maternal Grandmother, the Court should find that X has been exposed to that violence, and that she has, on at least one occasion, clearly been distressed. The ICL submits it is not in X’s best interests to be exposed to further incidents of family violence between the Father and the Mother or any members of her family.
The Mother’s Evidence
29. The ICL submits the Mother’s evidence was child-focussed and reasonable. In particular, the Mother’s willingness to continue to include the Father in long-term decision-making and to continue to offer him consistent time with X despite the remarks he has made about her and her family and despite the manner in which he has treated her and her family is, in the ICL’s submission, commendable.
30. The ICL submits that the Father’s decision not to cross-examine the Mother or the Maternal Grandmother so as to limit her discomfort demonstrates only limited insight given the nature of his questions to the Expert Witness, and the very few concessions he made as to his behaviour during incidents of family violence and more generally.
The Family Report Writer
31. The Family Report Writer was provided with the updated material of the parties prior to her oral evidence. Under cross-examination, the Family Report Writer expressed concern about the Father’s overall poor empathetic responses, his behaviour during certain events, particularly when they occurred in public and in X’s presence, where he appeared not to be able to manage his anger. The Family Report Writer conceded that the Mother’s gradual and cautious approach was sensible where the Father’s conduct is of concern. The Family Report Writer also accepted that where there appears to be real deficiencies in the Father’s level of insight, the ability to make decisions together is likely to be unworkable.
32. The ICL therefore submits that the Family Report Writer’s oral evidence differed from the recommendations made in her report and favoured the Mother’s position as to final orders.
Legislative Pathway
33. Proceedings for parenting orders are governed by Provisions of Part VII of the Family Law Act 1975 (‘the Act’). The Court must consider the best interests of the child as the paramount consideration.
34. Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects.
35. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC of the Act.
36. There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence.
37. The Court must also take into account those of the “additional considerations” that are relevant.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
38. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (section 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
39. In relation to equal shared parental responsibility, the ICL submits that:
a. The Court should find that the Father has perpetrated family violence on both the Mother and Maternal Grandmother;
b. The Father has behaved in a manner not in X’s best interest when he retained her after the Z Club incident and refused to return her for 5 hours and despite police intervention;
c. The Father has very limited insight into the effect his behaviour has had on the Mother, her family, and X;
d. The Father is unlikely or unable to accept decisions that are not in line with his position; and
e. The Expert Witness’s evidence was that direct decision-making on long term issues between the parties is unworkable.
40. For the above reasons, the ICL submits the ICL submits it is not in X’s best interests for the parties to have equal parental responsibility and that the Mother should have sole parental responsibility.
RELEVANT SECTION 60CC FACTORS
41. The benefit to the child of having a meaningful relationship with both parents (section 60CC (2) (a)):
a. The ICL submits that X will benefit from having a meaningful relationship with both parents.
42. The need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence (section 60CC (2) (b)):
a. The ICL submits that X is currently at risk of psychological harm from exposure to family violence including abuse and coercion perpetrated by the Father in his dealing with the Mother and her family, and on the Mother via communication on the Divvito App.
b. The ICL submits that X may also be at risk of psychological harm in the Father’s care if the Father is unable to adequately manage his anger and his and his family’s intensely negative view of the Mother and her family around X.
43. Any views expressed by the children and any factors (such as the children’s maturity or level or understanding that the court thinks are relevant to the weight it should give to the children’s views) (section 60CC (3) (a)):
a. X is too young to express a view.
44. The nature of the relationship of the children with:
a. Each of the children’s parents (section 60CC (3) (b) (i)):
i. The Family Report Writer states that X appeared comfortable in the presence of both parties and that she turned to them for interaction, assistance and comfort during observations sessions (page 59 Family Report dated 4 June 2019).
b. Other persons:
i. Given X and the Mother live with the Maternal Grandmother and a Maternal Aunt, the ICL submits it is reasonable to assume she has a close relationship with those people.
ii. The ICL notes the Father has a large family with whom X spends limited time.
45. The extent to which each parent has taken or failed to take the opportunity:
a. To participate in making decisions about the major long-term issues in relation to the children (section 60CC (3) (c) (i)):
i. The ICL considers both parties have taken the opportunity to participate in making long-term decisions in relation to X.
b. To spend time with the children (section 60CC (3) (c) (ii)):
i. The ICL considers both parties have taken all opportunities to spend time with X.
c. To communicate with the children (section 60CC (3) (c) (iii)):
i. The ICL considers both parties have taken all opportunities to communicate with X noting her age.
46. The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children (section 60CC (3) (ca)):
a. The ICL has some concerns the Father may not meet his obligations to support X for the following reasons:
i. The Father’s reasons for an objection to a Child Support Reassessment (Exhibit E) include that ‘you [the Child Support Agency] continue to reward [the Mother’s] behaviour by stealing my money when she blows what is already wrongly given to her on rubbish and not on X.’
47. The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
a. Either of his or her parents (section 60CC 3 (d) (i)):
i. The ICL submits that the proposed orders will not have any significant effect on X as the time proposed by the Mother reflects what is currently in place and increases gradually.
b. Any other child, or other person with whom he or she has been living (section 60CC 3 (d) (ii)):
i. N/A.
48. The practical difficulty of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis (section 60CC (3) (e)):
a. The ICL does not consider this to be an issue as both parties reside in the ACT.
49. The capacity of:
a. Each of the child’s parents (section 60CC (3) (f) (i); and
b. Any other person (including any grandparent or other relative of the child) (section 60CC (3) (f) (ii)):
To provide for the needs of the child, including emotional and intellectual needs:
i. The ICL submits that the Father’s capacity to provide for X’s emotional needs is limited for the following reasons:
1. His abusive and coercive behaviour towards the Mother and family and experienced by X, and his lack of insight into the effect that behaviour might have on the Mother, her family, and X;
2. His family’s highly critical views of the Mother and her family, and the ICL’s concern that X is likely to be exposed to those views.
3. His inability to accept and abide by rules and boundaries put in place by the Mother and by third parties (C Family Services) for X’s protection.
4. His apparent inability to manage his anger or frustration appropriately and to shield X from the same.
ii. The ICL does not have any concerns about the Mother’s capacity to provide for X’s emotional needs.
50. The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents (section 60CC (3) (i)):
a. The ICL submits that the Father’s attitude to X and the responsibilities of parenthood is hampered by the Father’s ‘rights-based’ approach and his position that he has been wronged by the Mother and her family. The ICL submits this is evidenced by the following (in addition to the Father’s written and oral evidence):
i. The Father’s social media activity which include implied criticisms of the Mother; and
ii. The orders sought by the Father in relation to time with X, having no reference to X’s ability to cope but rather to the hours in the Father’s care.
51. Any violence involving the children or a member of the children’s family (section 60CC (3) (j)):
a. See paragraph 24 above.
52. Whether it would be preferable to make the order least likely to lead to the institution of further proceedings in relation to the children (section 60CC (3) (l)):
a. The ICL consider it would be preferable to make the orders least likely to lead to the institution of further proceedings in relation to X and to that ends recommends;
The ICL’s Recommendations
53. Having heard the oral evidence of the parties, the ICL maintains her view that the Orders proposed by the Mother are in X’s best interests and that they should be made in their entirety.
Outline of principles
I remind myself of the following basal principles.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Family Law Act 1975 (“the Act”). Respectfully and gratefully, I adopt her Honour’s comments. Brown J said:[9]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[9] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[10]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[10] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Further, and in addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF. For example, in that case, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[11] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.”
[11] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[12]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[12] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.
Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court.
Consideration and disposition
I note at the outset the primary considerations in s.60CC(2) regarding the child being entitled to the benefit of a meaningful relationship with both parents, and the protective responsibilities towards the child.
Briefly, and in sequential order of the considerations in s.60CC(3), I note the following, without necessarily listing each of them.
Given X’s age, there are no relevant “views” for the Court to consider.
The evidence is clear that X has a good and close relationship with both of her parents, as well as a good relationships with members of both families. X’s maternal Grandmother has played a significant role in her life thus far, and I suggest will very likely do so for a while yet. In my view, especially in the light of the Mother’s evidence, the paternal Grandmother is also likely to play a significant role into the future.
The following comments apply generally to the considerations in sub-paragraphs (c), (ca), (f), (g) and (i). They have some modest application to the matters contemplated in sub-paragraph (e).
First, as outlined so regularly in these reasons, the parents have an increasingly difficult relationship with virtually no communication.
Secondly, to a very significant degree, this lack of (and deteriorating) communication is essentially due to the Father’s almost badgering of the Mother that he be able to spend more time with X. In doing so, the Father has shown, and continues to do so, a very regrettable lack of understanding of the negative impact his belligerent messages – in both tone and volume – have on the Mother. The Father is almost completely unable to appreciate how obsessive and confronting his behaviour is, and the negative impact it undoubtedly has on her. In consequence, he regularly cannot see that there is anything that he needs to change, either in his behaviour towards the Mother, or in terms of his understanding of X’s developmental needs. Taking relevant advice regarding parenting generally, or regarding appropriate communication between parents, and in relation to X, is almost anathema to him. He does not recognise that he needs any advice, least of all advice from the Mother.
Matters of “practical difficulty” at least in terms of distance and geography and the like, under sub-paragraph (e) are, by and large, non-existent given the relative proximity of residences in Canberra, even if the parents’ residences are on opposite sides of the national capital.
I accept the Mother’s submissions in particular regarding the considerations of family violence under sub-paragraph (j).
In the light of all the evidence, I accept the ICL’s submissions regarding “parental responsibility” at pars.38 – 40. Accordingly, there should be an Order for the Mother to have sole parental responsibility regarding major long-term issues concerning X. That said, she is to keep the Father informed of any such decisions. In the first instance, as a strong suggestion only, any such decision is to be conveyed to the paternal Grandmother.
With such an Order being made, there is no need to consider the requirements of s.65DAA.
Also in the light of all the evidence, I accept and adopt both the Mother’s submissions and make the Orders she seeks. There are some adjustments as to the transition periods, and to the time that X spends with her Father. In my view, those Orders, as adjusted and subject to any other agreement in writing, are in X’s best interests.
One final comment, which is basically an exhortation to the Father: if he genuinely seeks to put X’s best interests before all else – which I accept that he attempts to do – he will: (a) seek genuine assistance about how to curb his impulsive and obsessive behaviour, most particularly in relation to his communication with the Mother, (b) more generally, curb his social media outbursts, (c) seek legal advice from experienced lawyers and not from online urgings of aggrieved personalities, and (d) give these Orders a chance to work themselves out. This is primarily for X’s sake but also for the parents’ sake. Free of the Court system, the parents can let some dust settle and focus on what is in X’s best interests. Almost above all else, it is in her interests that her parents stop fighting.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Associate:
Date: 21 May 2020
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