Cilas & Cilas
[2022] FedCFamC2F 906
Federal Circuit and Family Court of Australia
(DIVISION 2)
Cilas & Cilas [2022] FedCFamC2F 906
File number(s): SYC 7812 of 2019 Judgment of: JUDGE BOYLE Date of judgment: 15 July 2022 Catchwords: FAMILY LAW – Children – parental responsibility – progression of time with the father. Legislation: Family Law Act 1975 Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 16, 17, 24 May 2022 Place: Sydney Counsel for the Applicant: Ms Lioumis Solicitor for the Applicant: Santo Family Lawyers Counsel for the Respondent: Mr Wong Solicitor for the Respondent: Fox & Staniland Lawyers ORDERS
SYC7812 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CILAS
Applicant
AND: MS CILAS
Respondent
order made by:
JUDGE BOYLE
DATE OF ORDER:
15 July 2022
THE COURT ORDERS THAT:
1.That the mother and father have equal shared parental responsibility for the child X born in 2018 (“the child”).
2.The child spend time with the father as follows forthwith:
2.1Until the end of term 4 in 2023, unless otherwise specified:
2.1.1In week 1: from after day care/school on Friday (or 3pm if the child is not in day care/school) until 3 pm on Sunday; and
2.1.2In week 2: from after day care/school (or 3pm if the child is not in day care/school) on Thursday until before day care/ school on Friday (or 9am if the child is not attending day care/school);
2.2During January 2023, the father’s time in order 2.1 is suspended, and the child shall spend time with the father:
2.2.1From 3pm on Friday, 6 January 2023 until 9am on Monday, 9 January 2023;
2.2.2From 9am on Thursday, 12 January 2023 until 9am on Friday, 13 January 2023.
2.2.3From 3pm on Friday, 20 January 2023 until 9am on Monday, 23 January 2023;
2.2.4From 9am on Thursday, 26 January 2023 until 9am on Friday 27 January 2023.
2.3From the commencement of term 1 in 2024 as follows:
2.3.1in week 1 of each school term and each alternate week thereafter from after-school on Friday until before school on Monday (or before school on Tuesday if Monday is a public holiday); and
2.3.2in week 2 and each alternate week thereafter from after school on Thursday until before school on Friday.
2.4 During the school holiday period at the conclusion of terms 1, 2 and 3 2023 unless otherwise agreed:
2.4.1from after school on the last day the child attends school for 4 nights with changeover to occur at 5pm at the conclusion of the father’s time; and
2.4.2for a further 3 consecutive nights, from 3pm on the last Friday of the school holidays until 3pm on the following Monday.
2.4.3During the school holiday period at the conclusion of term 4 2023, unless otherwise agreed, from after school on the last day the child attends school for 7 nights, and each alternate week of the holiday period, with changeover to occur at 5pm at the conclusion of the father’s time.
2.5 From the conclusion of term 1 in 2024 for one half of the school holidays at the conclusion of terms 1, 2 and 3 as agreed between the parties in writing and in the absence of any agreement, with the father to have the first half in even years and the second half in odd years;
2.6 For the period between Christmas Eve and Boxing Day:
2.6.1from 3pm on 25 December 2022 until 6pm on 26 December in 2022 and each alternate year thereafter; and
2.6.2from 9am on 24 December 2023 until 3pm on 25 December in 2023 and each alternate year thereafter.
2.7 On Father’s Day from 9am until 5pm, if the child is otherwise in the care of the mother.
2.8 On the child’s birthday, if it is a day that the child is in the care of the mother:
2.8.1On a school day from after school until 6pm and the father shall return the child to the mother’s home at the conclusion of his time; and
2.8.2On a non-school day from 11am until 4pm.
2.9 On the father’s birthday, if it is a day that the child is in the care of the mother, from 9am until 5pm if the mother and child are not on holidays out of Sydney, and the mother shall give not less than 14 days’ notice if she intends to travel out of Sydney with the child.
2.10 During Easter (notwithstanding if it falls during the school term or school holidays):
2.10.1in 2023 and each alternate year thereafter from after-school on the Thursday immediately preceding Good Friday (or 5pm if Thursday is not a day in which the child attends school or day care) until 10am on Easter Sunday; and
2.10.2in 2024 and each alternate year thereafter from 10am on Easter Sunday until before school on the Tuesday immediately following Easter Monday (or 9am if Tuesday is not a day in which the child attends school or day care).
3.That the father’s time with the child is suspended as follows:
3.1For the period between Christmas Eve and Boxing Day:
3.1.1from 9am on 24 December until 3 pm on 25 December in 2022 and each alternate year thereafter; and
3.1.2from 3 pm on 25 December 2023 until 6pm on 26 December in 2023 and each alternate year thereafter.
3.2On Mother’s Day from 9am until 5pm, if the child is otherwise in the care of the father.
3.3On the child’s birthday, if it is a day that the child is in the care of the father:
3.3.1On a school day, from after-school until 6pm and the mother shall deliver the child to the father’s care at the conclusion of her time; and
3.3.2On a non-school day from 11am until 4pm.
3.4On the mother’s birthday, if it is a day that the child is in the care of the father:
3.4.1On a school day, from after-school until 7pm and the mother shall deliver the child to the father’s care at the conclusion of her time; and
3.4.2On a non-school day from 9am until 5pm.
3.5For the Easter period:
3.5.1in 2023 and each alternate year thereafter from 10am on Easter Sunday until before school on the Tuesday immediately following Easter Monday (or 9am if Tuesday is not a school day); and
3.5.2in 2024 and each alternate year thereafter from after-school on the Thursday immediately preceding Good Friday (or 5pm if Thursday is not a school day) until 10am on Easter Sunday.
4.That until the time the child commences school and thereafter, during the school holidays, the father shall spend time with the child by Facetime each Thursday and Monday at 7pm and the mother shall facilitate the contact and the father shall instigate the contact.
5.That during the school holidays, the child shall have FaceTime or telephone communication with the parties every third day at 7pm when the child is in the other parties care with the party who does not have the child to instigate the call by calling the other party’s mobile phone, and the other party is to facilitate the call.
6.That for the purposes of these orders, school holidays are defined to commence after school on the last day of the school term which the child attends school and conclude before school on the first day of the school term which the child attends school.
7.That, on a without admissions basis, each of the father and the mother shall:
7.1Not consume any illegal drugs.
7.2Ensure that the child has no access to non-prescription drugs and/or medication.
7.3Supervise the child’s access to the internet on any device.
8.Each party shall notify the other in writing of the name of any general practitioner, paediatrician or other specialist who treats the child from time to time when the child is in that party’s care and provide to that person any authority necessary so that the other party can contact the person to obtain all information regarding the treatment and care of the child.
9.Whilst the child is in primary school, neither parent shall permit the child to travel to and from school on public transport unless prior consent is obtained from the other parent.
AND THE COURT NOTES THAT:
A.On 24 May 2022 the Court made the following orders by consent:
BY CONSENT THE COURT ORDERS ON A FINAL BASIS THAT:
1.That the child X born in 2018 (“the child”) live with the mother.
2.That unless otherwise agreed between the parties in writing the child shall attend primary school at either B School in Suburb C or D School, Suburb E, for the commencment of the school year 2023 and both parties shall do all necessary acts and things to sign the enrolment forms when a place is offered to the child, noting that if the child is accepted to both schools he shall attend B School is the first preference.
3.That both parents are at liberty to attend:
3.1Any events at the child’s preschool where parents are able to attend notwithstanding whose care the child is in.
3.2Any event that the parents are invited to attend regarding the child’s schooling, including but not limited to special days, concerts, award ceremonies, sports carnivals, and parent/teacher interviews; and
3.3Any extracurricular activities the child is participating in, including but not limited to any training sessions, games, or sport the parents are invited to attend.
4.That the parties facilitate the child’s attendance at all extracurricular activities, compulsory school events that occur outside of school hours (camps, excursions etc.) regardless of whose care the child is in and the parties shall each use their best endeavours to ensure that the child attends said activities or events.
5.That if the child expresses a wish to communicate with either parent while in the care of either party, then that party shall facilitate such communication via telephone or FaceTime.
6.That the mother and father are to keep each other informed of the child’s health and any health issues, as well as any procedures or operations to be undertaken with the parent who has the care of the child to advise the other parent as soon as practicable of procedures or operations prior to these being undertaken.
7.If the child is injured, require medical treatment or hospital admission, the party who has the care of that child shall notify the other party by telephone or text message as soon as possible.
8.That for the purposes of changeover, unless otherwise provided herein, where the father’s time commences immediately before or after school, changeover shall occur at the child’s school otherwise, the father shall collect the child from the mother’s residence at the commencement of his time with the child and the mother shall collect the child from the father’s residence at the commencement of her time with the child.
9.That the mother and father shall ensure that during changeovers:
9.1Each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
9.2Each parent will conduct themselves in a child focussed manner;
9.3Each parent will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other; and
9.4Neither parent will discuss issues of any controversy between them.
10.That each party is to ensure that they are on the mailing list/contact list at the school the child is enrolled.
11.That the parties agree that the child shall receive the sacraments of the First Eucharist (Holy Communion), Reconciliation and Confirmation and that the child will choose their Godparent for the sacrament of Confirmation.
Travel
12.That unless otherwise agreed between the parties in writing, either parent is permitted to travel with the child internationally from 2028 provided it is during their time with the child pursuant to these Orders, subject to the following:
12.1The parent intending to travel uses their best endeavours to ensure any such overseas travel takes place during the NSW gazetted school holiday periods for the school the child is attending and the travelling parent must obtain the other parent’s prior written consent if child will be absent from school due to travel.
12.2The parent intending to travel with the child provide the other parent written notice of their intention to travel with the child, with such notice not be less than forty two (42) days;
12.3The terms of the written notice pursuant to Order 12.2 above is to include an accurate itinerary of the departure and return dates and times, the country or countries that the child will be travelling to, details of where the child will be staying each night, the address of the accommodation and the mobile and landline telephone number (if a landline number is available) where the child will be staying and in which the child can be contacted.
12.4That the parent travelling with the child provide a copy of the return tickets for the child to the other parent.
12.5That the parent travelling with the child notify the other parent of any change to the itinerary as soon as practicable after such change is made; and
12.6Ensure that the destination(s) for any such overseas travel is restricted to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction unless otherwise agreed between the parties in advance in writing.
12.7A telephone call from the child within 6 hours of arrival to confirm arrival.
13.That the child’s passport be held in the mother’s possession or control for safekeeping.
14.To give effect to Order 12 above, the mother provide the child’s passport to the father at least seven (7) days prior to the child travelling with the father; and within seven (7) days of the child’s return from an overseas trip with the father, the father return the child’s passport to the mother for safekeeping.
15.That within fourteen (14) days of request from either party, both parties sign all documents necessary for a passport to be issued to the child; or a renewal thereof be issued for the child, and the cost of the passport application or renewal be borne equally by the parties.
16.That each party provide to the other party no less than 21 days’ notice of any interstate travel with the child, together with an accurate itinerary of the departure and return dates and times, the state(s) that the child will be travelling to, details of where the child will be staying each night, the address of the accommodation and the mobile and landline telephone number (if a landline number is available) where the child will be staying and in which the child can be contacted.
17.The parent intending to travel uses their best endeavours to ensure any such interstate travel takes place during the NSW gazetted school holiday periods for the school the child is attending and the travelling parent must obtain the other parent’s prior written consent if child will be absent from school due to travel.
18.That the mother and father are to keep each other informed of their respective telephone numbers and residential address, and each party do all things necessary to notify the other party of a change of their contact details within 24 hours of any such change.
19.That the mother and father are restrained from making any derogatory comments about the other parent or any member of the family in the presence and/or hearing of the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cilas & Cilas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYLE:
These are parenting proceedings with respect to X, who is now four years old. The parties married in 2013, and separated under the one roof on 18 August 2019. The father moved out of the home one month later. X was one and half years old at the time his parents separated.
Proceedings were commenced by the father on 18 November 2019. The parties were able to resolve property issues by consent on 7 April 2020.
The father has spent time with X since separation. Initially that was, by agreement, for five hours each week supervised by F Contact Centre, and subsequently G Contact Centre. On 26 February 2020 orders were made for daytime periods between X and his father. On 7 July 2021 further orders were made increasing the father’s daytime periods. On 19 October 2021 orders were made that the father spend one overnight with X each week. From 1 February 2022 the father has been able to nominate an additional night every six weeks, for two consecutive nights with X.
The parties have reached agreements on a number of issues through consent orders made prior to final submissions. These include agreement about primary school for 2023, the parents’ attendance at school, sport and other activities, medical information, and the like. Although not included in the consent orders, both parties seek orders restraining the parent’s conduct during time with X, which I will make. For the convenience of the parties the consent orders will be repeated at the conclusion of the orders made by the court.
Documents relied on
The father filed a case outline identifying the documents he relied on:
(a)Amended Initiating Application filed 18.02.2020.
(b)Affidavit of Mr Cilas filed 14.04.2020.
The mother filed a case outline identifying the documents she relied on:
(a)Amended Response to Final Orders Respondent filed 12.5.2022
(b)Notice of Risk Respondent filed 9.12.2019
(c)Affidavit of Ms Cilas filed 14.4.2022
(d)Affidavit of Ms H (Mother’s Psychologist) filed 14.4.2022
(e)Affidavit of Mr L (Family Therapist) filed 9.05.2022.
I also read the report of the Single Expert, Dr K dated 17.05.2021.
The parties were both cross examined. Neither party cross examined any other witnesses.
Issues
The following issues require determination:
(a)Whether there should be an order for equal shared parental responsibility, or whether the mother should have sole parental responsibility on medical matters.
(b)The pace at which X’s time with his father should increase, both during school terms and school holidays.
(c)Whether the end point of time arrangements should be alternate Thursday to Monday, and Thursday to Friday in the other week in school terms on the father’s case; alternate Friday to Monday, and alternate Thursday until 6.30pm in school terms on the mother’s case.
There are a variety of differences in the ancillary orders concerning Christmas, birthdays, Easter and the like. Counsel for the parties conceded during submissions that there was no relevant evidence on much of those issues, and it a matter for the Court’s discretion. This is indicative of the parties’ inability to reach agreements, and the need for orders to provide clarity in arrangements.
The major difficulty underpinning the dispute in this matter is the parents’ lack of capacity to communicate effectively. They do not trust each other. In fairness to both of them, parents who separate when their children are babies often have difficulties with communication and trust. This is because they have not assisted each other with parenting their infant day to day. They have not observed loving relationships develop between the child and other parent. They have not had the opportunity to experience the other parent as competent to care for the child, and that different parenting styles can have advantages for children. They have not celebrated their child’s milestones together, like first words and first steps. In this case, both parents feel distrustful about the others’ care of X, and worry that their own relationship with him may be undermined.
The mother has longstanding issues of anxiety. She has received psychological assistance from March 2017 to date, from two different practitioners. Her current counsellor is on affidavit in her case. The father is well aware of the mother’s anxiety issues.
The father receives support from a psychologist. He commenced counselling around the breakdown of the marriage. His perceptions of restrictions on time with X have impacted his mood.
The parents have found it difficult to trust each other in dealing with their son. Ultimately it is this lack of trust that is most likely to cause problems for X in the future.
The mother has experienced X upset at times of changeovers. This has happened more frequently since time moved to overnight. She worries about how X manages overnight time. His distress at changeover has exacerbated her fears. The answer to this, in her mind, is to limit overnight time.
The father’s experience of X is that he settles quickly into his care. He was able to get him into a night time routine without problem, and X sleeps well at his home.
Dr K’s observations of X do not support limiting overnight time with the father as sought by the mother: “I do not recommend this approach be trialled for more than once given the current arrangements and the secure relationship X has with his father, and the security he exhibited with and comfort he got from his father when I observed their interactions.”[1] I accept this evidence.
[1] Family Report of Dr K [133].
The parties have previously engaged in family therapy with Mr L from November 2020 to July 2021. He met with the parties on 5 occasions. Mr L’s unchallenged evidence is that the goal of therapy was to address and improve the co-parenting relationship, and assist the parties to make decisions in the best interest of X. His evidence is that he is prepared to re-engage with them. The father saw the goal of therapy as his spending more time with X. Mr L noted “his unwillingness to shift his opinion regarding the goal of therapy, inhibited him from focusing on developing skills to improve the co-parenting relationship and better interactional patterns with the mother”[2].
[2] Affidavit of Mr L filed 9 May 2022 page 10
The father wanted progress in time with X from therapy, and became increasingly frustrated when his goal was not met. Mr L noted that the father had an unwavering belief that the mother is trying to deny his relationship with his son, and blamed her for the lack of progress in time arrangements.[3]
[3] Ibid
Mr L noted that the mother was frustrated that she felt ‘unheard’ by the father. She raised concerns about X, particularly regarding his behaviour. The father denied observing those concerns in X. He suggested her concerns were parenting matters for the mother to address, and that any problems would be resolved by increasing time. Neither were helpful ways to deal with the mother’s concerns.
X is entitled to a relationship with each of his parents. He is entitled to that occurring in as stress free a way as possible. His parents have struggled to achieve this. Unfortunately, the mother deals with her anxiety by sending voluble emails and texts. The father reacts to that by becoming terse and abrupt. This causes the mother to become more anxious that her concerns are not heard. I accept that the father sees the mother’s communication as being based on the assumption that only she knows how to properly care for X. The father finds this galling. Nothing in this dynamic between the parents is helpful for X.
Mr L observed that both parents have great potential to do better. His view was that the pressure for the parents in trying to achieve the orders they each thought suitable for X, was detrimental to therapy. Once time arrangements are resolved by orders there is likely to be significant benefit to the parties, and X, in their participating in therapy.
PRIMARY CONSIDERATIONS
(a) Benefit to the child of having a meaningful relationship with both of their parents.
There is no issue that X will continue to have the benefit of a meaningful relationship with each of his parents. X has a close and secure relationship with his mother, who has been his primary care giver. He is developing a secure relationship with his father, and has spent time with him regularly throughout his life.
(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
X is not at risk of harm in the care of either of his parents.
ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
X is 4 years old. He is not able to express a view with respect to his future parenting arrangements.
Section 60CC(3)(b) the nature of the relationship of the child with:
i. each of the child’s parents, and
ii. other persons (including any grandparent or other relative of the child);
Dr K observed that X has a secure, close and loving relationship with each of his parents. There was no challenge to this evidence.[4]
[4] Report of Dr K paragraph 166
The mother is more familiar with X’s routines, as he has been in her primary care. That is not to say that the father is not capable of providing for X’s needs when they spend time together. X was able to be comforted by his father during the observations with Dr K.
The approach of each of the parties to parenting is somewhat different. The father is observed by Dr K to encourage more physicality and adventurousness. The mother takes a more protective stance. I accept that the different approaches are of benefit to X in providing him with the opportunity for more rounded development. It would be helpful for X if the parents acknowledge the benefits for their son in the different approaches.
The mother has observed X to become distressed at changeovers, particularly on Tuesday afternoons. Dr K opined that the likely cause is “X has become more sensitive to the tension that exists between his parents”. I accept that it would assist X to minimise changeovers between his parents. Brief periods with his father, as occur on Tuesdays, do not permit X to settle into time with his father and may be more difficult for him to manage.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
I accept that both parents take opportunities available to them. A consideration of this factor does not assist in determining the issues in this matter.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The mother currently receives child support from the father in the assessed amount of $914.92 per month. She submits that on several occasions the payments had been late, and that $355.09 of child support debt was owed to her in the 2020/2021 financial year which the father paid in instalments. It is stressful for her if child support is not paid as it falls due, as it means that she cannot rely on it to meet expenses.
The mother has asked the father to contribute to the costs of speech therapy. The father agrees that X’s speech is at times unclear, which can cause X frustration. The father’s evidence is that he has not contributed to the costs of speech therapy “as yet”, but will at the conclusion of the proceedings. He has not communicated directly with the speech therapist, leaving that to the mother.
The father conceded the importance of speech therapy being provided as an early intervention. Clearly it would be helpful for X’s speech to be at the level of his peers prior to the start of school. This was an opportunity for the father to demonstrate to the mother his preparedness to support X’s needs both financially, and through engaging with the therapy. He did neither.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
AND
Section 60CC(3)(e) the practical difficulty and expense 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
The parents live about 40 minutes from each other. They have agreed to orders for changeovers, attendance at pre-school and school, and extra-curricular activities. A consideration of these factors does not assist in determining the issues in this matter.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent of other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
AND
Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The parent’s lack of trust in each other has limited their capacity to co-operatively parent X. The mother’s trust in the father was eroded when she discovered during the relationship that he had not disclosed his level of debt. Dr K refers to this as permeating her view of him as a father. She does not trust that he can put X’s interest ahead of his own, because he did not do so in their relationship.[5] Below are examples of the difficulties created for X by his parents’ lack of trust in each other.
[5] Report Dr K paragraph 171
During the Sydney lockdown in 2021 X had a place at childcare because his mother is an essential worker. A condition to attending the childcare was that he not go to public playgrounds. This was to avoid a risk he may play with other children. The condition was not part of the general public health orders, which permitted outdoor activities within geographic areas. It was a requirement of the childcare.
The father was advised of the requirements of the childcare by the mother. She forwarded to him an email from the childcare centre which described, in clear detail, the requirements to maintain a position. The father said that he attempted to telephone the centre to query the directive. He left a message, and did not receive a response. He did not email the preschool. He did not persist with enquiries. Instead, he determined that he could take X to the park. In his view if X was not playing with other children there should be no issue.
I accept that the mother was obliged to tell the childcare that X was attending public playgrounds. As a consequence, X was suspended from attending at preschool, and his mother was unable to work.
The father’s perception was that the mother was dictating what could occur during his time with X. He did not trust what she reported about the requirements of the childcare. Therefore, he did not do as requested. The father’s conduct was to X’s detriment. It stressed his mother, and caused her to lose income necessary for her and X’s support. It deprived X of his routine, and the opportunity to be in the company of other children during lockdown.
As part of the current orders the father sends the mother a photograph of X in bed when he stays overnight. I accept that the intention is to provide her with the security of seeing X settled at night. Many parents would take this as an opportunity for a friendly exchange between them. Unfortunately the mother did not take this opportunity. She did not respond to the texts, other than critically. This included an occasion where she sent him a message in the morning to advise that at 3:14 AM it was 13°, and X would not have been warm enough.[6] She agreed in cross examination she had no information about X’s bedding, or whether there was heating in the room. The mother’s message had the effect of making the father feel unfairly criticised. It decreases the possibility he would freely communicate with her about X.
[6] Exhibit F1.
The mother has been extremely concerned about X having bruises and scratches on return from his father. She conceded he gets bruises and scratches whilst in her care. Positive information from independent supervisors about the father’s care of X, have not assuaged her fears.
The mother has photographed bumps and bruises on X, sent the photographs to the father, and sought an explanation. During cross examination she agreed she has taken photographs of X’s buttocks, scrotum and anus. This is detrimental for X in a variety of ways. It is likely to make X aware that he is the subject of disagreements between his mother and father. It may cause him to wonder about his safety with his father, given his mother’s cataloguing of injuries. It invades X’s privacy for no purpose. This conduct is particularly concerning where she does not assert X is at risk with his father, nor propose a continuation of supervised time. When asked if she thought that the father would harm X, her evidence was “I hope not”.
The parties need to work on building their trust in each other as parents. Improving their communication, so that each thinks about how their text is likely to be received by the other parent, would help.
Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
X is a four year old boy. He will be spending time with his parents on special days important to both of them, such as Christmas and the child’s birthday. Detailed consideration of this factor does not assist a resolution of the issues.
Section 60CC(j) any family violence involving the child or a member of the child’s family;
Each of the parties makes allegations of violence against the other. Both parties refer to arguments and physical disputes between them that were witnessed by X prior to separation. The father conceded that he made audio recordings of the mother without her knowledge in 2018. He accepts that it was inappropriate for him to have done so. There is no question that the party’s relationship was mired in distrust and hostility.
Neither party seeks orders that would restrain the others’ care of X, nor suggest that he is currently at risk from family violence. Although there are problems with their communication, it is not abusive.
There are matters in dispute from 2018 about a threatening email sent from the father’s iPad, and whether he punched her whilst she was pregnant. Each party denies the other’s version of events. Neither seeks orders to restrain the other’s conduct. There is no suggestion of ongoing violence, or abusive text communication. They both agree to equal shared parental responsibility, save that the mother seeks sole parental responsibility with respect to medical matters. It so not necessary to make findings on all issues between parties, only ones relevant to matters requiring determination. A finding on this issue is not relevant in the circumstances.
Section 60CC(k) if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no current family violence order.
Section 60CC(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceeding in relation to the child
The parties, and most importantly X, need an end to this dispute. For the whole of his childhood he has been the subject of dispute between the two most important people in his life.
It would be detrimental to X’s welfare to be the subject of further litigation, which has been his life experience to date. Litigation preoccupies his parents, and focuses them on the perceived problems with the other parent, rather than getting on with learning to parent co-operatively.
Parental Responsibility
Both parties seeks orders for equal shared responsibility, save the mother seeks sole parental responsibility with respect to medical matters. The mother’s orders propose allowing the father to respond to her notification of decision-making around X’s medical matters. The mother proposes considering the views of the father when making a medical decision regarding X.
The law requires that when making a parenting order the court must apply a presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility. This presumption can be rebutted by family violence. The mother has asserted that the presumption should be rebutted on the basis of family violence by the father, despite her agreement to shared parental responsibility in all other areas.
The argument really revolves around their communication. It is difficult for each of them to communicate effectively in a business like manner. Medical decisions require timely responses, so treatment can be carried out.
The parties are committed to returning to therapy with Mr L. Mr L will be provided with a copy of these reasons, and the final orders. Effective communication, and development of some level of mutual trust are goals of that engagement. The parties have agreed on schooling, which was a major hurdle, prior to the commencement of this hearing.
I accept that each of the parents is committed to their son, and wishes the best decisions to be made for him. Input from both on all long term decisions for X is in his interest. I find that it is X’s best interests for there to be orders for equal shared parental responsibility.
Time arrangements
Overnight time between X and the father commenced in October 2021. This was occurring once each week, with 2 consecutive overnights from February 2022 not more than once every 6 weeks. The parents dispute the best manner for that to increase.
X is due to start school in 2023. This will no doubt require some adjustment for X, and in my view arrangements should not change around the start of school. The parent’s proposals largely accord with that.
In my view X should commence spending 2 consecutive overnight periods with his father immediately, with one night in the other week. There has now been 8 months of one night each week, and a number of occasions of 2 overnights. The intention is that this be bedded down prior to the start of school, so that X is used to arrangements when he is adjusting to the start of school. In addition an overnight time in the other week limits the gap between X seeing either parent.
Keeping the opportunities for conflict between parents to a minimum supports limiting changeovers occurring directly between the parents. Time during an afternoon involves the potential of travel for X, and a changeover between the parents. Setting a pattern of weekly time now resolves issues of change for X in advance of the start of school. I propose time occur overnight in one week, and on the weekend the other week.
Dr K suggested in May 2021 that Friday to Monday weekends not commence on a fortnightly basis until Year 3. Prior to that it would occur once each term. By the beginning of Year 1 X will have had 18 months of 2 consecutive nights with his father. He will be 6 years old in March 2024. I accept that it is in his interest for weekend time to move to Friday to Monday from the commencement of Year 1 in 2024. That means school to school for changeovers during school terms.
During school term holidays from 2023 time should occur equally but split into 3 night and 4 night blocks. The summer holidays at the end of 2023 will be week about, which will settle X into that arrangement for the school term holidays going forward from 2024.
From the end of Year 4 the long holidays will shift to block time so that the parents can take a longer holiday with X. By then he will be able to manage that length of time separated from either of his parents.
The parties differ in the specifics of arrangements for Christmas and special days, but agree there should be arrangements in place. What is important is that it be clear to the parties what the arrangements are. The father’s birthday will always fall in school holidays. In alternate years that means the child will be with him. In other years he will be with him within days of the birthday over the school holiday period. I accept that if the mother has the opportunity to take the child out of Sydney for a holiday, she should be able to do so. In that event there should be a FaceTime call on the day. Make up time is often the cause of disputes, and I do not propose ordering it.
The father’s orders for the most part provide slightly longer periods of time on special days. For that reason I propose adopting those orders, other than for the parent’s birthdays, for the reasons outlined above. The differences between the parent’s proposals are minor.
The time arrangements provide for time on weekends and weekdays. I do not propose further increasing the arrangements beyond alternate Fridays to Mondays with a night in the other week. The reason for this is that the more shared school term time is, the more scope there is for dispute over things like school books, uniforms and homework. Although it is hoped that the parties, assisted by counselling, improve their communication final orders need to minimise the scope for disagreement.
These parents both have a great deal to offer X. The orders are intended to provide for increasing time between X and the father, at a pace that is manageable for X. The end point provides for significant and substantial time between him and his father, without over stretching the parties’ capacity for communication.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle. Associate:
Dated: 15 July 2022
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