Canton & Leconte
[2021] FCCA 1138
•28 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Canton & Leconte [2021] FCCA 1138
File number(s): MLC 9365 of 2015 Judgment of: JUDGE BURCHARDT Date of judgment: 28 May 2021 Catchwords: FAMILY LAW – bitter and intense parenting dispute even though actual ambit of dispute is quite narrow – child conceived after very brief (3 meetings) relationship – mother seeking to exclude father entirely when child born – mother seeking sole parental responsibility and father strongly objecting – each parent with entirely negative view of the other – counsel for Independent Children’s Lawyer correctly describing toxic mix of personalities – joint parental responsibility unworkable – spend time orders made as sought by Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss. 60CC Cases cited: Goode v Goode [2006] FamCA 1346 Number of paragraphs: 119 Date of last submission/s: 29 April 2021 Date of hearing: 29 April 2021 Place: Melbourne Counsel for the First Applicant: Self-represented Counsel for the First Respondent: Self-represented Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
MLC 9365 of 2015 BETWEEN: MS CANTON
Applicant
AND: MR LECONTE
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
28 MAY 2021
Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 28 May 2021.
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for the child X born in 2015 (“the child) PROVIDED ALWAYS THAT the Mother keep the Father informed of significant long term decisions that she makes in relation to the child and actively seek the Father’s input on such issues.
3.For the purpose of Order 2 hereof:-
(a)Before any such long term decisions are made in respect of the children:-
(i)The Mother shall advise the Father by email of her proposal relating to the child; and
(ii)if the Father wishes to comment on the Mother’s proposal (or if the Father has any proposal he wishes to make relating to the child on this issue) he shall, within seven (7) days after the date of the Mother’s email, advise the Mother by email (to the email address from which the Mother sent her communication) of his views;
(iii)upon receipt of any comment or proposal by the Father, the Mother shall give consideration to the Father’s views;
(iv)after the Mother has considered the Father’s comments, she shall make a decision and advise the Father by email or SMS text message of the outcome immediately after making that decision; and
(v)if the Father does not respond by email as provided in order 3(a)(ii) hereof, the Mother shall be entitled to presume that the Father does not wish to be involved and she may decide the issue.
4.The Mother do all such acts and things as may be necessary to ensure that the Father receives copies of any medical and academic assessments in relation to the child.
5.That the child live with the Mother.
6.The child spend time with and communicate with the father as follows:
(a)each alternate weekend, from the conclusion of school on Friday until 3.00 pm on Sunday, commencing on the first weekend of each school term,
(b)the changeover to be at the Town B School at the commencement of his time, and at the Suburb C Police Station at the conclusion of his time;
(c)notwithstanding the above, on the last weekend of each month that the father spends with the child pursuant to (a) above, the time will be from the conclusion of school Friday until the commencement of school Monday or Tuesday if Monday is not a school day, with the father to return the child to school.
(d)For one week during the school term holidays as agreed and in default of agreement from the conclusion of school on the last day of the term until 3.00 pm 7 days later, the changeover to be at the Town B School at the commencement of his time, and at the Suburb C Police Station at the conclusion of his time;
(e)For three non-consecutive weeks during the long summer school holidays as agreed and in default of agreement:
(i)From the conclusion of school on the last day of the school year until 3.00 pm 7 days later subject to order 8 (a) below where relevant;
(ii)From 3.00 pm on 1 January until 8 January;
(iii)From 3.00 pm on 15 January until 3.00 pm on 22 January;
(iv)Changeover to take place at the Town B Primary School in relation to subparagraph A and the Town B Police Station in relation to paragraph B and C at the commencement of his time, and at the Suburb C Police Station at the conclusion of his time;
(f)Such other times as agreed in writing.
7.That the child have telephone, FaceTime, Zoom or other communication with the parents:
(a)At any reasonable time initiated by her;
(b)By either parent on Tuesdays and alternate Sunday between 6.00 pm and 6.30pm when she is in the care of the other parent.
(c)At any other times agreed in writing.
8.That the child spend time on special occasions with the parents as agreed at least 14 days in advance and in default of agreement:
(a)From noon on Christmas Eve until 3.00 pm on Boxing Day with the Father in even numbered years and with the Mother in odd numbered years;
(b)In the event that Father’s Day does not fall on a weekend when the child is in his care, from 3.00 pm on the day prior to Father’s Day until 3.00 pm on Father’s Day;
(c)In the event that Mother’s Day falls on a weekend when the child is in the care of the Mother, the Father’s time on that weekend will be suspended from 3.00 pm on the day prior to Mother’s Day;
(d)Changeover will take place at the Town B Police Station at the commencement of the father’s time, and at the Suburb C Police Station at the conclusion of his time.
9.That the parents will communicate all important information regarding the welfare of the child:
(a)By way of the communication platform AppClose,
(b)In the case of an emergency by phone;
(c)In a respectful and child focused manner.
10.That each parent will notify the other as soon as practical of any significant medical illness or injury involving the child when in their care, provide details of the child’s treating health professional, and authorise them to obtain any information regarding the child’s condition, treatment or referrals.
11.Each parent will be authorised to obtain information regarding the child’s academic progress from her school including reports, newsletters and orders for school photos.
12.That each parent be restrained from:
(a)Using physical discipline with the child;
(b)Exposing the child to any negative comments regarding the other parent or any member of their family;
(c)Questioning the child about the arrangements with the other parent;
(d)Communicating any parenting decision or information through the child.
13.That each parent keep the other informed of their contact details including phone number, and email address.
14.Until further order, the Mother be and is hereby restrained from relocating X’s primary residence more than 20 kilometres from her current residence without prior written agreement of the Father or order of this Court.
15.Neither party be permitted to file any further application without the prior leave of the Court.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Canton & Leconte is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
In this matter we are concerned with the best interests of a child X, born in 2015. Her parents have been litigating about her since 6 October 2015, a sorry state of affairs that speaks for itself. Despite the intensity of the dispute (and it is, indeed, intense) the matters ultimately in dispute are within a short compass. They are:
(a)should there be an order of sole parental responsibility to the mother or should it be joint;
(b)should X’s time with the father each alternate weekend finish on Sunday at 3.30pm or on Monday at start of school or 9.30am; and,
(c)should the time that X spends with the father in holidays be in blocks of five days or seven days.
For the reasons that follow I propose to make orders for the mother to have sole parental responsibility, the child’s return time to be at 3.30 on Sundays, save that on the last weekend of each month that time is to occur it take place at 9.30 on Monday or commencement of school, and that the holiday time be in blocks of seven days.
AGREED OR UNCONTROVERSIAL MATTERS
The mother was born in 1973 and the father was born in 1964. The parties met in about 2014 and were in an entirely transitory relationship (they appear to have met only three times) until December 2014. X is the result of those meetings. At least initially, the mother put the question of paternity in issue because she had been in another intimate relationship only shortly before this one, but testing has proved that the father is, indeed, the biological father of X.
The father has re-partnered with Ms D in 2015 and they have two children, E born in 2016 and F born in 2020.
The mother took active steps to ensure that the father was not informed of X’s birth. She did not notify him, disconnected her phone and relocated to what was then an unknown address (it is now known that she lives in Town B). The parties have been in embittered litigation on a wide variety of fronts ever since. Consent orders made before Judge Hartnett in 2018 by consent in no ways brought the matter to a conclusion. The matter has been back to court on issues such as whether X needs to be neurologically assessed as a result of excessive injuries as alleged by the father (nothing came of this whatever) and disputes about schooling and the like. It is no exaggeration to say that the parties’ copious affidavit material is replete with mutual denigration and accusation.
This matter came into my docket by chance on a day when Judge Stewart was unable to allot it time. On that occasion I made interim rulings on the father’s application to remove the Independent Children’s Lawyer and transfer this matter to the Family Court. As things then stood the father indicated that he proposed to call a very substantial number of witnesses and that the matter would take a very long time. I declined to transfer the matter to the Family Court and also to disqualify the Independent Children’s Lawyer. I set the matter down for an early hearing because it was clear to me that that is what this case desperately needed. As things have transpired, the matter was comfortably dealt with within one day.
At this point it is appropriate to turn to what the parties said at court. I will examine the objective material to the extent that it bears upon the matter thereafter.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes. Self-evidently, it is not a transcript but it records matters that are regarded as significant.
The matter commenced with a subpoena objection filed by a Dr G. I upheld that objection, at least on an interim basis, and indicated that if there was any application to press for enforcement of the subpoena at a later stage I would deal with that on its merits. I noted that since Dr G had seen the mother her psychiatric health had been the subject of a comprehensive assessment by Dr H.
Counsel for the Independent Children’s Lawyer outlined the areas of dispute to the Court. They are as I have described them in paragraph 1 above. Counsel noted that the injunction made as to restraints on physical discipline on 23 December 2019 would continue. It had been beneficial because there had been no reoccurrence.
I note that although the dispute was put on the footing that the spend time dispute was concerned with when X was to be returned to her father on Sunday, the father has forwarded on 30 April 2021 (after the case has been closed by all parties) a requested variation to the proposed regime whereby changeover on Friday would commence at 7 pm at the Suburb C Police Station and he asserts that, “This is the current arrangement and it has worked well for X”. He also sought special occasions to include, “X to be made available to attend the birthday parties of her siblings upon 14 days’ written notice being provided to the mother”.
The Opening and Evidence of the Mother
The applicant, Ms Canton, was called. The mother said that she relied upon her affidavits. She referred to the recent report by the Department of Families, Fairness and Housing and confirmed that X says she does not want to go to the father, although, she does enjoy this at times. The father is a loving father, but the time she was proposing was age appropriate. It should be no more than two nights until she was older. It could be three nights when that took place. No more than five night blocks away from her in the holidays was appropriate. These might be increased once X was 10 years old. She had decided to have unambiguous orders and complained of the unreasonable emails sent to her by the father. She seeks sole parental responsibility to minimise conflict.
Having been sworn, the mother was cross-examined by the father who, like the mother, was self-represented.
The mother confirmed that X was doing well at school. When asked how she was going at home the mother said, “X was dealing with the impact of your home and mine”. She has nightmares of spending time in the separate households. She has nightmares. She has woken up on one occasion and said she did not want her new mummy; she wanted her old mummy. When asked why the father had not been entered on the birth certificate she said she did not recall this. She denied being obstructionist since the start. She said she had agreed time after the DNA test and court orders. There were some occasions that she had not brought X to spend time but there were more cancellations by the father.
It was put to her that the only reason she sought sole parental responsibility was because of the finding by Ms J. The mother said this was not the case. There were many reasons. She cannot have respectful discussions with the father. The issues about kinder and school and health assessments lead to relentless emails. It is intolerable and a lot to bear. She had worked hard not to expose X to any of this (it should be noted that the mother became labile at this point and required some time to compose herself).
The father wants the school to be in Melbourne and she is threatened with litigation on a monthly basis. X will only be six in July. They cannot have 10 years more of this. X is not doing well in all areas. The mother referred to the father locking X outside on her own and assaults on X by the father’s new partner. She said that X has said that they had flushed the toilet while she was still on it. The father put it that she had been difficult and uncooperative, for example, in emails in relation to X’s name. The mother said she had not refused and did change the name. She said she had always been cooperative. There will be reasonable decision-making if she gets sole parental responsibility.
She said to the father that he used the decision-making process to argue. Referring to choosing schools, she said that the father refused Town B and wanted Melbourne. The Courts had ruled in her favour. When it was put that the school was done by consent the mother said he only agreed on the day. He had not agreed to kinder either. When it was put to her that X suffered 50 injuries between 2015 to 2017 she said she did not know. It was put that sole parental responsibility was the thin end of the wedge and would lead to more obstructionist behaviour. The mother said they cannot possibly cooperate. Health assessments are not required. She denied that having a mixture of ideas as to X’s best interests in the future would be helpful.
When asked about drop off on Monday mornings, the mother said X finds it difficult to be in the father’s home for extended periods of time. She has a letter from her teacher which suggests that X misses the first half hour of school and missed breakfast on one occasion. She said the department had visited her home once and a senior case officer had been to the school in the course of the recent assessment. She denied wording X up in respect of the departmental report. She said she had told her it was safe, she would have a safe place to talk. When asked why it would not be good for X to spend an extra night with her stepsiblings the mother said there were problems with the Monday drop off to school. She does not see X in the father’s home, but she knows what X tells her.
The father put it that he had asked the mother to get involved with his own household. The mother said she talks about her developmental needs. He had suggested about a parenting application which she took to be likely a form of surveillance on her by the father. When asked why she objected to a block of three to four weeks at Christmas the mother said it was too long for X’s age. She said this was her opinion and experience of X. X had said seven days would be too long. She relies upon the report writers, and clarified that she meant Ms K.
She agreed that the three night regime had been in place for one year. She denied sending X off with large soft toys as a security blanket. She conceded that X loves her sister. She denied that X tells her what she wants to hear.
The Mother under Cross-Examination by Counsel for the Independent Children’s Lawyer
Counsel asked the mother if she accepted Ms K’s report. The mother said she trusted Ms K but did not always accept her recommendations. She had not accepted the report of Ms L, nor that of Ms M. She noted that Ms K favours a regime of alternate weekends from Thursday to Sunday, and, if this was not practicable, Friday to Sunday. Ms K always says return on Sundays. When asked if she would consider that on once a month it might be Thursday to Sunday or Friday to Monday the mother gave a non‑responsive answer. She agreed, following consideration, that the last weekend of each month could be from Fridays after school until Mondays before school.
On Friday afternoons the father collects on the first and last weekend, otherwise she collects and drives to Melbourne. This is hard for X. It has not taken less than two hours and sometimes three hours. It was not a problem for her but for X. She does not always drive back. Sometimes she stays in Melbourne. She would prefer that the father collects from school on Friday afternoons. She would collect X back again at 3.30 in Melbourne on Sundays.
Counsel put it to the mother that the current holiday time regime was for half school holidays. This had occurred in the term holidays in September 2020 and the first term of this year. In effect, this was Friday to Saturday in the first week of September. Counsel asked how this had gone. The mother said X’s sleep pattern had regressed and X said she did not want that time. X only has enuresis when she returns from the longer time but this settles after three to four nights. She had not consulted anyone about the enuresis. The Royal Children’s Hospital said it was normal if you were not in the same bed or routines in different households.
Counsel put it that the mother had not been sufficiently concerned to take the issue further. Further cross-examination was slightly confusing because the mother’s answers appeared to change. If I understood the matter correctly, the mother had not undertaken to arrange for X to be seen by the RCH. Rather, that it was the father’s insistence that this occur that led to an appointment, which happened to fall on a time when she was in the mother’s care. The reality is, however, that it emerged with some clarity that whatever concerns the mother had about enuresis she had not actually done anything beyond a discussion with a maternal health nurse who said it would get better as she gets older. The last time she saw a maternal health nurse was at age five check up. They had said if she was still doing it at seven or eight it should be checked.
She wanted five night blocks until X was 10. This was only based on her opinion. When pressed again about Ms K’s recommendations, the mother again prevaricated. She said that she trusted her expertise but not necessarily her opinions.
Counsel put it to the mother that she can barely bear to be in the same room as the father and is intimidated, overborne and harassed, which causes anxiety to her. Surprisingly, the mother did not answer directly but did appear to agree with those propositions.
There was no re-examination.
Following the luncheon adjournment the mother confirmed that she accepted the last weekend of each month should be from Friday to Monday.
The Opening and Evidence of the Father
The father indicated that there was a dispute about the three nights and the shared parenting. X had been spending three nights with him for some time. This was a winning result. X had some issues in late 2019 to 2020. She was under duress and stress. She has now gone ahead in leaps and bounds. She is brought up well by the mother and by him and his partner. Time with him is very structured. There would be a readjustment if it was cut back. The time to drive to Town B was one hour, 40 minutes.
Parental responsibility was important. They both need to have input in regard to health issues and a diversity of opinions would be healthy. He organised the RCH appointment. He had looked at the injury records at the child care centre and noted the large number of head knocks. He appeared to suggest that he had a real concern that these childish bruises might give rise to the sort of injuries suffered by AFL football players.
X had not bed wet for six to seven months. Before that she did so every night and was in nappies. E is becoming more verbal and they are great friends. They usually stop on the way to school. It is not an onerous drive. The violence alleged was historical and was dealt with by Ms M. He denied failing to respond to the department (as alleged in their most recent report). He said he does not enjoy coming to court. He adopted his affidavits as true and correct.
The mother did not elect to cross-examine him.
Under cross-examination by counsel for the Independent Children’s Lawyer the father disputed the mother’s asserted driving times to Town B. He had driven this route many times himself, including during rush hour. He works for the Employer N. When asked if he could take the afternoons off on Friday to collect he said he possibly could. He will drop X at school on Mondays. It takes one hour, 40 minutes. School starts at 9 am. It was put that he would have to leave by no later than 7 am. He denied this and said that X gets up at 7 am. He denied (in my view, extremely unconvincingly) that it would take X half an hour to get ready.
Counsel put it that the return on Sundays was good for X. The father said the drive did not impact her. It has been going on for some time. The mother wants two nights, not three. X has gone ahead in leaps and bounds. Counsel asked how much credit he gave the mother for this development but the father, in effect, refused to answer. He said it was the synergistic effect of both of them together. He then went on to say that he never did not give her credit. He never said he did not know what she does.
Counsel then cross-examined about the father’s view of the mother’s mental health. Counsel put to him that on 3 December 2019 he had sought as his first order a psychiatric assessment of the mother. The father said he had concerns about her mental health. What he was concerned about was her obstructionist behaviour. Counsel put it that Ms L had not recommended a psychiatric report and the father again refused to answer.
Counsel traversed paragraph 56 of the report of Ms K and the assertion that the father has a rigid and antagonistic personality style. He did not agree. Counsel put it that he refused to attend upon Dr H and the father again did not answer directly. Although he had refused to attend Dr H (there was some discussion of what was said at court during the previous hearing by me), he said he had nothing to hide regarding his mental health.
Counsel put it that Dr H had made a thorough examination of the mother. The father said initially it was a great report. Counsel put it that it showed that the mother was mentally well. The father did not accept this. The report was only as good as the information provided. The mother has emotional issues. Whether these are psychiatric or not he did not know. Counsel put it that he had told Ms K that the mother had a borderline personality disorder.
The father’s answers throughout this entire process were extraordinarily evasive and non‑responsive.
When challenged with what Ms K recorded him saying about the mother as being manipulative and a liar and having a personality disorder, the father equivocated and prevaricated but eventually conceded that he had said that she was manipulative and that she is a liar. He said he accepted she does not have a personality disorder. He then went on to say he did not know if he still thinks that she is a compulsive liar but when pressed conceded that he did indeed hold that point of view (it was blindingly obvious that he continued to hold that point of view despite his equivocation and denials). He denied that the mother was the most vindictive person he had met. He went on to say however that the mother’s conduct was unrelenting and mindboggling. He said he might come over as domineering but did not think he was.
He went on to say he respected the mother. She is fighting for what she thinks is best for her daughter and so is he. That was the tragedy. He conceded that Ms K thought he was rigid and righteous.
Counsel then cross-examined about the departmental report. He denied being contacted and uncooperative on 15 and 19 April 2021. He said he had told them he could not attend at that time. He denied the words attributed to him.
The father conceded that he had taken the mother’s treating GP to VCAT. Counsel put it that the GP had, in fact, told the mother to go to another practice because they could not cope with him. The father said that they were lying in the letter (which is annexed to the mother’s trial affidavit) and that was why he had taken them to VCAT. Counsel cross‑examined on the note from Ms J annexed to the wife’s trial affidavit. He conceded that he had attended her home without an appointment. He said her home was also her place of work. He said he did not know it was her home.
Once again, I interpolate and say that the father’s evidence on this was manifestly unbelievable.
The father said it would be better for X if the summer holidays time was in a block. She could go to the beach with her siblings. He did not agree with Ms K’s recommendation that it be week-about.
In re-examination the father said that his issue was for the mother’s behaviour to stop. He does not like confrontation and is in no way aggressive. He denied being unprepared to go and see the psychiatrist Dr H. He said he had spoken to the department and asked what their processes were. He was concerned about the process.
The father indicated that he did not propose to call any other witnesses and did not require Ms K for cross-examination (and neither did anyone else).
Final Submissions of Counsel for the Independent Children’s Lawyer
Counsel indicated that the Independent Children’s Lawyer’s position was that X should live with the mother. There should be sole parental responsibility to her in respect of long term decisions but she should be required to notify the father seven days before any major decision to enable him to have input and for her to consider that input. So far as time was concerned, the Independent Children’s Lawyer supported the recommendations of Ms K, save that the last weekend of each month should be three nights. This should be from Friday school till Monday school. The father should collect and deliver. Other weekends should be Friday from school to Sunday 3.30pm. The father was to collect the child and the mother to collect the child in Melbourne at 3.30pm on Sunday.
There should be one week in the term holidays, as per Ms K’s report, from school break up until Friday to 5 pm the following week. There should be Zoom time on Tuesday at 6.30pm. The mother should be permitted to call when the child was with the father.
Given the dynamic of the parents and how far they lived apart, Christmas should be spent in each alternate year with each parent, despite the disadvantages of this. X should spend from 23 to 26 December with the mother in odd years and 23 to 26 December with the Father in even years. There should be standard orders for Mother’s Day and Father’s Day and relevantly uncontroversial ancillary orders. Neither parent should be permitted to take X to a therapist as the child does not need it. The father should have usual information about school matters and medical treatment.
The child is five years and nine months old and there has been litigation since 2016. The parties never lived together and never knew each other. There are problems with cooperation and trust and this was fundamental. There was no mutual respect. Both parents had probably done things they regret. It is what is best for the child that matters. She has lived with the mother since birth and only knows the father in the context of this dispute. There have been disagreements about mental health, primary care and time. The damage done to the child by litigation is enormous. This was the opportunity for things to improve. There was a need for final, clear orders. There should also, in the circumstances, be an order that nobody could be permitted to commence proceedings without first obtaining permission of a judge.
The father says that X has made leaps and bounds in the last 12 months and the mother must play an enormous role in this. The father did not give her much credit. The father has a real animosity towards the mother and she is the same to him, but she is the primary carer. This leads inextricably to an order for sole parental responsibility. If anything comes up there will be problems. The parties have an incendiary mix of personality types.
The father’s professed idea that he be in the position to sit down and have a coffee with the mother was cloud cuckoo land. The Independent Children’s Lawyer adopted Ms K’s recommendations.
Final Submissions by the Father
The father said that the idea that you cannot disagree without hating someone is wrong. He does not hate the mother. He mostly disagrees with the mother’s decisions but he still respects her. Parents need to communicate and there should be cooperation. At changeover things may get better. If there is an order for sole parental responsibility it will be saying that one parent is less of a parent. Orders for school and kinder were made by consent. He said that this would be the last time he would be coming to court. He did not oppose an order suggested by the Independent Children’s Lawyer that the parties not be permitted to bring further application without leave of the Court.
Final Submissions of the Mother
The mother agreed with the Independent Children’s Lawyer. Medical examinations and the like required agreement. She supported the order about the prohibition of further litigation. She sought to remove paragraph 2 of the 23 December 2020 orders restricting her place of address. The requirement to seek permission should be removed. Following some discussion with the Court she apparently accepted the prohibition on moving 50 kilometres from where she now lives would be acceptable.
THE FAMILY REPORT OF MS K
It should be noted that I omitted the formal tender of this report by mistake, as I had assumed that Ms K would be required for cross-examination
Ms K traversed the background and noted the fraught history of the interrelationship between the parents (paragraph 6) and the admitted single assault by the father on X (paragraph 7). The report noted the father’s contravention application in August 2019 alleging the mother’s alleged refusal to take X for a medical examination despite alleged numerous injuries at day care, and the dismissal of that application (paragraph 9).
The report noted Mr Leconte’s emphasis on the report of Ms M which he interpreted, to which I shall come (paragraph 36). The report noted the case in VCAT and the incident where the father called on Ms J to which I have referred (paragraph 41).
The report noted the allegations in 2019 as to X’s being locked out of the home and assaulted by both the father and his partner (paragraph 48).
Against this background, Ms K observed at paragraph 53:
Both parents have extremely negative opinions of the other. Mr Leconte referred to Ms Canton as a “compulsive liar” and “the most manipulative person I’ve ever met in my life”. Mr Leconte is keen for Ms Canton to undertake a psychiatric assessment as he believes she may have “some form of personality disorder” or she is “the most vindictive, manipulative person I’ve ever met in my life. It’s unrelenting, mind boggling”. Mr Leconte stated that Ms Canton has sent over 100 emails to the ICL – “If I do respond, I get dragged into the fire fight. If I don’t, I look guilty” (it appears to the report writer that Mr Leconte initiates much correspondence with the ICL). Ms Canton described Mr Leconte as a man who can be “very domineering” and “very convincing”. She stated that he is an incessant and compulsive liar.
At paragraph 56 Ms K continued:
It appears apparent, from written communications, that Ms Canton considers herself, not just the primary carer, but the primary decision-maker and one to whom Mr Leconte is answerable and accountable. Given Mr Leconte’s rigid and antagonistic personality style, this way of engaging with him will never produce satisfying results.
At paragraph 68 Ms K opined:
X is a confident and bubbly child who is developing according to expectations. She will commence prep at Town B School in 2021. At five years of age X is still a vulnerable child. She will have a tendency to want to remain with her primary carer for the majority of the time, but will also enjoy time with the other parent. At this age and stage of development, it would be a stretch for X to spend more than a week at a time away from her primary carer (for example in school holiday periods). The overriding factor which has the capacity to impact X negatively is parental conflict.
At paragraphs 71-73 Ms K noted:
Ms Canton presents as a conscientious mother who has made a life for herself and X in the Town B community. She and X appear to have a warm and close relationship and Ms Canton is supportive of X’s interests and talents. It is likely that Ms Canton would have been able to develop a more cooperative co-parenting relationship with someone who was more flexible and less antagonistic than Mr Leconte. Ms Canton is a woman with a strong personality, who reacts to Mr Leconte’s personality. She is unlikely to compromise if she does not think a compromise is in the best interests of X.
Mr Leconte, as he stated, has come to fatherhood later in life and sees it as a positive thing for him. He wants to provide his children with guidance and positive values. Mr Leconte demonstrated some level of insight in regard to X, for example, the difficulties for her in the transition periods and living in two worlds. However, although he had also identified a creative solution, he did not implement it, because Ms Canton did not respond to him about this. If he was able to be more child focused, he would have been able to implement this practice, potentially with positive outcomes for X, whether Ms Canton agreed to it or not. Mr Leconte has a rigid personality and a righteous attitude which does not lend itself well to cooperation and co-parenting. Mr Leconte’s tendency to make complaints against those who are not favourable to him, suggests that he seeks to be in control of suggestions and does not accept the professional assessments of others if they do not fit in with his opinion.
While the information provided indicates that Mr Leconte may well be within his rights to take a case to VCAT in regard to Dr O, he very likely underestimates the impact such actions have. There may have been alternative means by which to deal with this issue and others. Dealing with issues in such a manner, (and other examples of his actions, including going directly to Ms J’s home), have the impact of intimidating others and most concerningly, inflaming the parental conflict.
I note that at paragraph 74 Ms K opined that changeover on a Sunday rather than a Monday morning had merit and was preferable to the early morning starts required for Monday. The report went on to observe that it was optimal that the parents aim for a parallel parenting relationship and observed at paragraph 75 that while the mother’s reasons for seeking sole parental responsibility could be understood from her perspective, a parenting coordinator could assist with issues that might arise.
Nonetheless, it should be noted that the report did not go on to recommend an order for joint parental responsibility.
THE REPORT OF MS M
Ms M saw the parties in December 2019. While I have regard to the totality of the report (which is now some year and a half out of date) I note that X was observed to be under stress and Ms M opined that some of the complaints made by X about her father had probably been coached by the mother.
THE REPORT OF DR H
The mother has been examined by Dr H, a clinical psychiatrist of many years of experience. Given the father’s emphasis about the mother’s ill health, a matter to which I shall return, it is appropriate to note at paragraph 57 Dr H opined, “Ms Canton does not suffer from any current diagnosable psychiatric disorder”, and at paragraph 61, “Ms Canton does not currently suffer from any psychiatric disorder, and, judging from her statements, has never suffered from a diagnosable psychiatric disorder”.
Dr H did not get the opportunity to examine the father but the father’s assertions to the effect that Dr H’s report should not be accepted because he only had the mother’s account of events fails to give any weight to Dr H’s experience and professional qualifications. Furthermore, Dr H was not required by any party to attend for cross-examination as, indeed, was the case with Ms K. The father sought to indicate that he might wish to call Ms M but I pointed out to him that Ms M’s report was before the Court and spoke for itself.
THE REPORT TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Somewhat to my surprise, the Department was able to complete a section 69ZW report by 21 April 2021. Child Protection received a report on 22 February 2021 regarding the safety and wellbeing of X. On 9 March 2021 and 14 April 2021, Child Protection interviewed the mother who presented “as an insightful, kind, highly attuned mother who was clearly able to articulate a secure attachment to X”. The report noted the mother’s assertion of “behaviour perpetrated by Mr Leconte where he displays aggressive, threatening and intimidating behaviours which commenced early in their brief relationship and continued to this day.”
The report noted the mother’s concerns about inappropriate physical discipline of X (something in my view disingenuous at best on the mother’s part when she knew full well that there had been no repetition of violence following the injunction against physical discipline made quite some time before).
The report noted:
Mr Leconte was contacted on 15.04.2021 and 19.04.2021 by Child Protection. Mr Leconte was unco-operative, dismissive and refused to engage with Child Protection regarding the reported concerns or partake in interview prior to the Family Law Court hearing on 29.04.2021. Mr Leconte was focussed on determining who had made the report to Child Protection, and despite being advised this information could not be shared, persisted in his efforts.
On 20.04.2021- at Mr Leconte’s request, Child Protection “First home Visit information for Parents” was provided to him via email. Mr Leconte has not acknowledged receipt of this email.
The report went on to note that Mr Leconte had asserted he had been informed by the court that he was not required to engage in interviews prior to the trial (an erroneous representation of what was said) and noted that the report would remain open as a result of the concerns expressed. When interviewed, X re-rehearsed the incidents involving her father and stepmother in 2019. The report went on, unsurprisingly given Mr Leconte’s misguided failure to cooperate, to make a number of findings antithetical to him.
It should be noted that the father complained bitterly that his position with respect to the Department had been misrepresented, and he has tendered a letter from him to the Department dated 22 April 2021; however, as I pointed out, by then the Department had already prepared their report.
Findings about the Credit of the Witnesses and Some of the Matters in Issue
Neither of the two witnesses was, in my view, by any means entirely satisfactory. Despite her formal position, the mother was palpably reluctant to adopt any position that was in any way favourable towards the father or to give him credit. Whilst she was being cross-examined in a most overbearing and bullying way by the father this was not surprising, but she was no better when under cross-examination by counsel for the Independent Children's Lawyer. I have no doubt that, whether intentionally or otherwise, she did indeed word up X before the interview with Ms M.
She remains extremely antagonistic towards the father, as Ms K noted. The mother’s answers about the visit to the Royal Children’s Hospital were notably evasive and nonresponsive. She professed to be unable to understand perfectly straightforward, easy questions from counsel for the Independent Children's Lawyer
Whatever difficulties might be thought to have occurred when the mother was giving evidence, they were nothing like those that emerged with the father. His demeanour in the witness box sits entirely congruently with Ms K’s description of him as rigid and self-righteous. He appeared to have something of a smug expression on his face at all times. His endeavour to perhaps explain this away as nerves was completely unconvincing.
It is always regrettable to have to make findings about parties or witnesses that may be hurtful to them, but this judgment cannot be completed without facing the true facts. The father is an extremely intimidating, aggressive and difficult person. He refused to answer some perfectly straightforward questions, and at all times sought to deflect away from any question that he perceived, quite obviously, to be antithetical to him. His prevaricating and unhelpful answers about what he still really thinks about the mother are perhaps the most potent and important example. There are all too many more, but it is not necessary to detail them.
Before coming to the statutory pathway, it is worthwhile paraphrasing some of the entirely accurate submissions of the Independent Children's Lawyer as to what really happened. The parties had the most fleeting relationship which resulted in the mother becoming pregnant and, ultimately, giving birth to X. She had already decided long before this that she wanted nothing to do with the father. She did not notify him of the birth and took steps to make herself invisible to him. These were not successful. They have been locked in litigation ever since.
As counsel rightly submitted, they never had the opportunity to build the sort of trust and awareness of one another that might have provided a fertile ground for a more cooperative approach. Rather, and right from the start, the parties have been embroiled in bitter litigation driven by their mutual antagonism and distaste. The father professed not to hate the mother, and that may be so, but he holds her in the most profound contempt.
He regards her as a compulsive liar and the most manipulative person he has ever met in his life. Despite the attempts on his part to equivocate about this, there is no doubt in my mind that it remains exactly what he thinks of her. She thinks little better, if at all, of him. As counsel rightly submitted, it is a toxic clash of very different personalities.
The father has litigated and threatened to litigate at every step, and, despite his denials, he struck me as being a man with a keen eagerness to pursue legal proceedings against any person or persons whom he feels have acted to his significant disadvantage. He abandoned his endeavours to subpoena the mother’s former GP and her treating psychologist when I explained to him that he could not cross-examine witnesses he himself had subpoenaed, but I have no doubt that he would have wished and still wishes to prove that the mother is mentally unwell.
He refused to engage with Dr H. If I understand his objection correctly, it really amounts to this. Dr H would not be able to perform a proper assessment without having read, in effect, substantial tranches of information designed, as it were, to set the scene. The father would have wished him, no doubt, to have read Ms M’s report. Whether he would have been so keen for him to have read Ms K’s report might be open to question. In other words, the father was not prepared to enter upon the examination unless he himself had already controlled the basis on which it would take place.
A similar pigheaded misguidedness appears to have informed the way he dealt with the Department most recently. It is an entirely consistent pattern and one I would emphasise is entirely congruent with his demeanour in court. His notion that he does not dislike the mother and that they could quite readily go out and have a cup of coffee together was rightly described by counsel as being in cloud cuckoo land.
Against these matters which I hope paint the relevant considerations, albeit in somewhat short form, it is appropriate to move to the statutory pathway.
STATUTORY PATHWAY
I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
PARENTAL RESPONSIBILITY
The mother wants an order for sole parental responsibility because she simply cannot bear to deal with the father. She has a view of him which continues to be informed by her ongoing hostility to him. She maintains that he is a compulsive liar. She thinks that if there is any room for the father to have any involvement in the major decision-making process, the father will simply embroil her in further relentless persecution (as she sees it). This perception is derived from certain obvious frailties in her personality and her ultimate, as I find, disdain for him as a father.
While the matters of which she repeatedly continues to complain (the assaults in 2019 by the father and his partner, and the alleged locking outside of X) are matters of proper concern, the fact that they are still being pressed so strongly, when there has been no repetition since orders restraining it were made, speaks volumes. This is all the more the case when the dispute as between the parties as to the actual spend time regime is, in fact, one of such small ambit.
The father seeks joint parental responsibility on the footing that a multiplicity of inputs is inherently desirable. At that level of generality, the proposition might be said to have some force. What militates, of course, decisively against this proposition is the father’s personality. His aggressive, intimidating, rigid and domineering personality makes any order for joint parental responsibility nothing more than a battleground. It is a battleground which will continue to upset the mother and is highly likely, despite the father’s disavowal of such matters, to lead to further curial proceedings with all the related stress on both parties.
This stress, of course, is greater on the mother because she has a less robust personality despite her being described as a strong personality (which I accept in a sense she is). Nonetheless, where two parents are utterly unable to agree about anything, and any interaction with them is so distressing, it would appear, to both of them, it is immediately apparent that an order for equal shared parental responsibility is utterly unworkable.
Not only is it unworkable, the way in which it would operate is likely to be not only unproductive but deeply distressing, and particularly to the mother. She is the primary carer of X, and it is not suggested that she should not continue to be so. In the circumstances, all the evidence in this case and most particularly the toxicity of the relationship between the parents which will not, on any view of the matter, decline, at least in the foreseeable future, militate to the obvious conclusion that an order for equal shared parental responsibility is not in the child’s best interest. The presumption is well and truly rebutted.
THE SPEND TIME REGIME, THE PRIMARY CONSIDERATIONS
Given that the dispute as to time amounts in substance to one night per fortnight at its maximum and five or seven days in school holidays, it is immediately apparent that whatever reservations the parties may have about X being exposed to any kind of abuse is not of sufficient materiality to operate in any significant way. Both parties agree, at least in theory, that it is to X’s benefit to have a meaningful relationship with each of her parents.
As I have already indicated, I think the mother’s true position is far more nuanced than she says, but the fact is she is agreeing to two nights per fortnight and five nights per school holidays, so it is implicit in this, both that there is no significant risk to X in such a regime, and that it is beneficial to X to have a meaningful relationship with her father. The father’s position self-evidently accepts that it is in X’s best interest to have a meaningful relationship with her mother.
Section 60CC(3)(a)
X is, of course, very young and has expressed no meaningful views as to what she might desire.
Section 60CC(3)(b)
X has always lived in the primary care of her mother, and all reports suggests she has a very strong and loving relationship with her. Despite the mother’s quibbles, which as I find reflect her distaste for the father rather than any kind of objective reality, it is clear that the father adores X and that she likes spending time with him. There is nothing to suggest that X has anything other than an unobjectionable relationship with her stepmother (albeit that she has not been put on affidavit), and I see no reason to doubt that she has an increasingly affectionate relationship with her stepbrother, E, and loves her little sister. There is no meaningful evidence about X’s relationships with other persons before the court.
Section 60CC(3)(c)
There is no doubt that the father has tenaciously and avidly sought to participate in decisions about X and to spend time and communicate with her. The problem is not this desire on his part, which might be thought reasonable, but rather the way he has gone about it. He has so conducted himself that the mother is discernibly uneager to even be in his presence (something I observed in the court). The mother has, of course, made decisions about X and has, as Ms K opined, tended to do so in a mindset whereby it is for her to make the decisions and Mr Leconte to agree with them. This has only contributed to the very unfortunate outcome to which I have already referred.
Section 60CC(3)(ca)
Both of these parents have made perfectly appropriate steps to fulfil their obligations to maintain X, and I do not understand there to be any suggestion to the contrary.
Section 60CC(3)(d)
In the context of this case, this is a particularly important subsection. It is the mother’s position that any greater amounts of time with the father are likely to be extremely damaging to X. She wants to reduce his time from three nights a fortnight to two (save for the last weekend in each month) and to limit blocks of time to five days rather than seven. The various reticences apparently expressed from time to time from X in my view more probably arise from the child’s perception of the mother’s anxieties than from any other source.
Whether I am right or wrong in this surmise, however, does not, to my way of thinking, matter. What is important is that, first, X has coped with the three nights a fortnight since October last year, albeit that I accept that she may well be unsettled when she returns to her mother. Such difficulty is consistent with a child of X’s age passing between two different household with different routines, and also, more probably than otherwise, reflects the tension X notes in the interaction between her parents at changeover, if nowhere else.
In the end, however, the mother’s view as to the amounts of time X can sustain is, as she herself conceded, based solely on her own opinion and her experience of X. The court has before it the unchallenged expert evidence of Ms K that X can cope with up to seven nights. Ms K also recommended three nights per fortnight, albeit with a different configuration of days.
Section 60CC(3)(e)
I see no reason to doubt the father’s assertion that X enjoys being with her stepsiblings, and more time with them is likely to be beneficial to her.
Section 60CC(3)(e)
There is an obvious practical difficulty where the parents live so far apart. Each of the parents has, in my view, exaggerated the time that they say it takes to go from Town P to Melbourne and vice versa to suit their own perceptions. On any view, it is not less than an hour and 40 minutes (father’s version) and not more than three hours (mother’s version). While I would accept that the father’s version is highly likely to be understated and to not reflect the reality of rush-hour traffic, I have no doubt equally that the three hours is an exaggeration.
On any view, however, it is a relatively lengthy period of travel for so young a child and particularly so early on a Monday morning when she is likely to be tired. The father’s assertion that he can easily get X up at 7 o'clock and get her to school by 9 o'clock is not one I accept. It is part of his tendency to exaggerate and twist matters to suit any outcome for which he contends. Plainly, an early morning start for X may well be problematic on a Monday.
While dealing with this matter, I propose to deal with the father’s belated application to keep changeover on Fridays in Melbourne. I do not accept this proposition. The Independent Children's Lawyer has contended for the time to start on Friday after school, and I agree. This has the benefit to the father, and, indeed, to X, of his having some capacity to be involved with the child’s school, something I would have thought he would embrace. Despite his attempts to withdraw it, the gravamen of this evidence was that he had relatively flexible working hours, and I have no doubt he will be able to collect X on Fridays. This will involve, obviously, some measure of tedious driving on his part, as he is likely to re-enter Melbourne during rush hour, but I noted that it is his position that the driving never takes more than one hour 40 minutes in any event.
Section 60CC(3)(f)
Both of these parents have the capacity to provide for X’s needs. This is implicit, despite their mutual criticisms, in the orders that each of them is prepared to consent to in any event. In each case, the capacity of the parents is somewhat compromised by various matters. In the mother’s case, it is compromised by her detestation of the father and her underlying desire to exclude him completely from her life and, therefore, that of X.
In the father’s case, it is compromised by his very significant lack of insight into the nature of his own personality and presentation, and further, by his extremely critical denigration (despite his unbelievable denials) of the mother. Having said this, however, each of these parents loves their child and wants the best for her, and, undoubtedly, they are sufficiently well attuned to X’s needs to be able to meet them as they arise.
Section 60CC(3)(g)
The mother’s lifestyle and background in general terms is unremarkable. She appears to have had, five or six years ago, a somewhat casual attitude towards sexual intimacy which is, of course, how X arrived. She is now, however, single, and there is nothing to suggest that she is anything other than a loving and devoted mother.
The father has made a new family. His relationship has now been underway for some six or so years, and they have two children. There is nothing to suggest that he is not a perfectly decent father to them and husband to his new wife, and there is nothing in the materials to suggest that there is anything untoward in his household now that the historical incidences of violence have been overcome.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
This is an important subsection, but it has largely been covered already. Both these parents have a somewhat possessory attitude towards X that as I find this arises more from their mutual dislike and from a fear on each of their part that the other is, in a sense, trying to overwhelm them. This is part of the most unfortunate and toxic set of circumstances that they find themselves in, but it needs to be borne in mind and repeated, if need be, that they are both loving parents.
Section 60CC(3)(j)
There has, undoubtedly, been family violence perpetrated upon X in the past. The mother has admitted smacking her once, and the father likewise. It appears that the father’s new partner may have struck her several times. Nonetheless, these matters are quite some time ago, and I have been informed by counsel for the Independent Children's Lawyer without contradiction that the injunction made to restrain physical violence has been adhered to.
Section 60CC(3)(k)
There is no family violence order that presently operates on this matter.
Section 60CC(3)(l)
It is, of course, imperative that the court makes final orders in sufficiently clear terms to prevent these parties, who if the truth be told (and more particularly so in the case of the father) are prone to litigation, from instituting any more. By consent of the parties, I will make the orders sought by the Independent Children's Lawyer that no further applications proceed without leave first obtained from a judge.
Section 60CC(3)(m)
There are no other relevant matters.
CONCLUSION
I have already dealt with the question of sole parental responsibility. For reasons given, there will be an order for sole parental responsibility in favour of the mother with the qualifications as to consultation urged by the Independent Children's Lawyer.
The time regime should be that proposed by the Independent Children's Lawyer. It is true that this is a reduction, but it is also true that the extant regime has only been in place for a relatively short space of time. Having X get up at a very early hour on Monday morning, followed by travel time of not less than one hour 40 minutes (with an additional break for some form of food or drink as well) means that it is unsurprising if she has been late on occasion to school and tired. The balance proposed by the Independent Children's Lawyer and assented to by the mother involves a sensible compromise.
On the one hand, most weekends will see X returned on Sunday so that she can get up and go to school well prepared on the Monday. The extra weekend, the last weekend of each month, will give X another overnight with her father, stepmother and stepsiblings. Bearing in mind all the matters to which I have referred above, it is clear that this is the outcome that is in her best interest.
Similarly, so far as time in blocks in the holidays is concerned, Ms K’s evidence is that seven days is within X’s capacity even at this age (and she will, of course, be getting older by the year). In my view, the mother’s insistence on five days is not borne out by the expert evidence, and there is no good reason why the time should not be in blocks of seven days. I do not accept the father’s application to have blocks of three or four weeks in the long summer holidays. That is completely unrealistic given her age and the difficulties she presently has in separation and is also contraindicated by Ms K.
The only final matter to deal with is the mother’s application to be released from the restraint on moving further away. The Independent Children's Lawyer has not sought to continue the restraint imposed by Judge Stewart on 23 December 2019 but made no submissions one way or another. I would infer that the father would oppose any move that places yet further distance between him and his child. I was initially prepared to remove the restraint on the mother moving, as it may well be that she wants to obtain accommodation slightly further away. However, the present time regime which has been bitterly fought out is posited on the geographical location of the parties as it has been. Indeed up until the making of this judgment this has been restrained by court order.
As I pointed out during the currency of the proceeding, any endeavour by the mother to move any great distance further away from the father is certain to give rise to further legal proceedings, and might suggest to the court that the father’s dark concerns about the mother are better founded than I have found them to be. I will vary the extant order to 20kms to give the mother a little extra wiggle room.
Finally, I have to deal with the father’s belated application that X be made available on the birthdays of her stepsiblings on notice. What this application ignores, of course, is that one of his children has the same birthday as X. The net result would be that she would never spend the whole day with her mother on the birthday. This is not an appropriate outcome, albeit, that in a better and more perfect world where the parents were not so difficult with one another, the overarching idea behind it is inherently desirable. X will spend her birthdays with her mother, and can celebrate also on some proximate days with her siblings. I decline to make the order the father seeks.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 28 May 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Jurisdiction
-
Remedies
-
Appeal
-
Costs
0