CORLEY & PETRIE
[2019] FCCA 2461
•16 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CORLEY & PETRIE | [2019] FCCA 2461 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – living arrangements and time – Men’s Behaviour Change Program Referral – sole parental responsibility to mother – Airport Watch List – domestic violence – separation before birth of child – best interests of the child. |
| Legislation: Australian Passports Act 2005 (Cth), ss.7 and 11 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR CORLEY |
| Respondent: | MS PETRIE |
| File Number: | MLC 5458 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing dates: | 30 April, 1 May, 20, 21, 22 & 23 August 2018 |
| Date of Last Submission: | 23 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms Harris |
| Solicitors for the Respondent: | Mitchell Family Law |
ORDERS
All prior parenting orders in relation to X, born … 2015 (X) be discharged.
Parental Responsibility
The Respondent Mother, Ms Petrie (Mother), have sole parental responsibility for X including but not limited to X's education, X’s health and the obtaining of a passport without the written consent of the Applicant Father, Mr Corley (Father) and that the Mother be at liberty to produce a copy of these Orders by way of such authorisation.
The Mother be at liberty to provide a copy of these Orders to any schools, medical practitioners and government agencies applicable to X.
In relation to long-term decisions the Mother is required to make in relation to X, the Mother shall do the following prior to making such a decision:
(a)The Mother shall provide the Father with 14 days' notice in writing (by email) of any such proposed decision; and
(b)The Mother and the Father shall make a genuine effort to come to a joint decision about such issue; and
(c)If no agreement is reached between the parties within the 14 days provided for in Order 4(a), the Mother shall make the final decision about such issue and provide the Father with written confirmation of the decision made (by email) within a further period of 14 days.
Living Arrangements and Time X spends with the Father
X live with the Mother.
X spend time and communicate with the Father as follows:
During Term Time
(a)Commencing 18 October 2019 until X starts primary school in 2021:
(i)Each alternate Friday from 3:00 pm until Sunday at 4.00 pm;
(ii)At any other time as agreed in writing (email) by the parties.
(b)From when X starts primary school in 2021:
(i)Commencing 29 January 2021 and during each school term, each alternate Friday from the time when X finishes school (or 3:00 pm) until Sunday at 4.00 pm;
(ii)Commencing 2 February 2021, and during each school term, each Tuesday at 6.30 pm the Father shall be able to communicate with X by Skype or other video call medium for a period of up to 30 minutes;
(iii)At any other time as agreed in writing (email) by the parties.
During Holiday Time
(c)From when X is in three-year-old kindergarten in 2019, during the school term holidays that are two weeks or more in duration, the Father spend time with X on the alternate weekend he would normally spend time with X during the school term but extending by one night until seven nights is reached, as set out below:
(i)Three-year-old kindergarten in 2019 and four-year-old kindergarten in 2020: Friday from 10:30 am until Sunday at 5:00 pm (2 nights);
(ii)Prep in 2021: Friday from 10.30 am until Monday at 3:00 pm (3 nights);
(iii)Grade 1 in 2022: Friday from 10.30 am until Tuesday at 4:00pm (4 nights);
(iv)Grade 2 in 2023: Friday from 10:30 am until Wednesday at 4:00 pm (5 nights);
(v)Grade 3 in 2024: Friday from 10:30 am until Thursday at 4.00pm (6 nights);
(vi)Grade 4 in 2025: Friday from 10:30 am until 4:00 pm the following Friday (7 nights).
(d)From when X starts Grade 5 in 2026, X is to spend time with the Father during school holidays as follows:
(i)For one half of the Victorian first term school holidays being:
A. The first half in 2026 and each alternate year thereafter;
B.The second half in 2027 and each alternate year thereafter;
(ii)For one half of the Victorian second and third term school holidays and the long summer school holidays, with the Father and the Mother to agree as to which half and in the absence of agreement the Father to have the first half in even years and the second half in odd years.
For all school term holidays during kindergarten, primary and secondary schooling, if the Father's time on the Friday commences on the last day of the school term, the Father's time shall start at the time X finishes kindergarten or school.
At any other time as agreed in writing (email) by the parties.
The Father's time with X provided for in Orders 6(a) and 6(b) is suspended during the school holiday periods provided for in Orders 6(c) and 6(d).
Special Days
Commencing 24 December 2020 and each alternate year thereafter, the Father shall spend time with X over Christmas from 12:00 pm on Christmas Eve (24 December) until 12:00 pm on Boxing Day (26 December).
The Father shall spend time with X each Father's Day from 11.00 am until 4.00 pm that same day if X would not otherwise be in the Father's care pursuant to these Orders.
In the event that Easter does not occur during the school term holidays, the Father shall spend time with X over Easter from 12:00 pm on Good Friday until 12:00 pm on Easter Monday in even numbered years.
Commencing 27 October 2019 and on each alternate year thereafter up until when X turns 12 (2027), the Father shall spend time with X on her birthday at the following times:
(a)When X's birthday falls on a Saturday or Sunday when X is usually with the Mother, the Father shall spend time with X from 11.00 am until 4.00 pm.
(b)When X's birthday falls on a weekday during the school term, the Father shall spend time with X from when X finishes kindergarten or school until 6.00 pm on the same day, increasing by 1 hour each year alternate year until 9.00 pm is reached in 2025.
From when X turns 13, X shall decide where she should spend her birthday. If X chooses to spend her birthday with the Father, the time spent with the Father shall be pursuant to Order 13. Both parents can communicate with X over the phone (or another agreed means of communication) on her birthday.
At other times as agreed between the parties in writing (email).
The Father must give the Mother at least 24 hours' notice in writing (email) if he does not intend to spend time with X in accordance with Orders 6, 7 and 10 to 14.
The Father's time with X pursuant to Order 6 is suspended at the following times:
(a)Mother's Day from 11.00 am until 4.00 pm.
(b)In the event that Easter does not occur during the school term holidays, from 12:00 pm Good Friday until 12:00 pm Easter Monday in odd numbered years.
(c)For Christmas commencing 24 December 2019 until 12:00 pm on 26 December 2019 and each alternate year thereafter.
(d)X’s birthday commencing … 2020 and on each alternate year thereafter up until when X turns 12 (2027) at the following times:
(i)On a Saturday when X is usually with the Father, the Father's time be suspended from when X finishes kindergarten or school on the Friday until 1.00 pm on the Saturday;
(ii)On a Sunday when X is usually with the Father, the Father's time shall be suspended from 11.00 am until 4.00 pm.
Changeovers
That for the purposes of Orders 6, 7 and 10 to 14 and unless agreed otherwise in writing (including by email and text message):
(a)All changeovers (inclusive of kindergarten and school term holidays) are to take place at the location of X’s day program (inclusive of X’s childcare centre, kindergarten, school and school holiday program) on weekdays (i.e. Monday to Friday) and on weekends (i.e. Saturdays and Sundays) at the ticket office on the ground floor of D Train Station.
(b)In the event that the Father does not attend for collection of X at the nominated times, the Mother and/or X shall only be required to wait for a period of a further 30 minutes after which the contact time will be deemed cancelled.
Husband to Complete Men’s Behaviour Change Program
The Father is to forthwith enrol in, attend and complete a Men’s Behaviour Change Program recommended by Mr E, Family Advocacy and Support Service representative of the Men’s Referral Service, located at the Family Advocacy and Support Service, Owen Dixon Commonwealth Law Court Building, 305 William Street, (Telephone contact:1300 766 491).
The Father is to provide proof of attendance and completion of the Men’s Behaviour Change Program to the Wife by 30 November 2020.
In the event that the Father does not comply with Orders 19 and 20, X’s time with the Father pursuant to Orders 6 to 15 of these Orders is suspended from 1 December 2020 until the Father has complied with Orders 19 and 20.
Interstate and Overseas Travel
The Mother be permitted to travel with X within Australia and overseas for a period of up to three weeks at a time each year, except for Easter when X is scheduled to spend time with the Father (pursuant to Order 6(d) or Order 12) or Christmas Eve, Christmas Day and Boxing Day (pursuant to Order 10), provided that the Mother provides to the Father the following information in writing not less than 28 days before the intended date of travel:
(a)X's itinerary, including departure and return dates;
(b)X's return airline tickets (if applicable); and
(c)For overseas travel, a contact number for X.
X is to spend time with the Father for make-up time for one weekend in addition to Order 6(a)(i) or Order 6(b)(i) in the month following the time X is away with the Mother (pursuant to Order 22). The Mother is to provide to the Father in writing not less than 28 days before the intended date of travel, a minimum of three alternative make-up times when X is ordinarily with the Mother for the Father's selection. In the event that the parties are unable to reach an agreement, within a period of 14 days prior to X travelling with the Mother, the Father forfeits the make-up time with X.
After X turns 13, the Father be permitted to travel within Australia with X for a period of up to three weeks at a time once a year, except during the school term when X is scheduled to spend time with the Mother over Easter (pursuant to Order 17(b) or otherwise), Christmas Eve, Christmas Day and Boxing Day (pursuant to Order 17(c)) and X's birthday (pursuant to Order 17(d)), provided that the Father provide to the Mother the following information in writing not less than 28 days before the intended date of travel:
(a)X's itinerary, including departure and return dates;
(b)X's return airline tickets (if applicable);
(c)An address and contact number for X.
X is to spend time with the Mother for make-up time for one weekend on a weekend when X is usually with the Father (pursuant to Order 6(a)(i) or Order 6(b)(i)) in the month following the time X is away with the Father (pursuant to Order 24). The Father is to provide to the Mother not less than 28 days before the intended date of travel, a minimum of three alternative make-up times when X is ordinarily with the Father for the Mother's selection. In the event that the parties are unable to reach an agreement, within a period of 14 days prior to X travelling with the Father, the Mother forfeits the make-up time.
Airport Watch List
The Father, Mr Corley born … 1981, his servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send X, born … 2015 (Child) from the Commonwealth of Australia. This order ceases to have effect two years after the date on which it is made.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.
The Court requests that the Australian Federal Police place the name of the Child on the Airport Watch List at all points of international arrivals and departure in Australia for the purpose of preventing removal of the Child from Australia in breach of these Orders. This Order ceases to have effect two years after the date on which it is made.
The Father, his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the Child from the Commonwealth of Australia.
For the purposes of Orders 28 and 29 the Mother, Ms Petrie born … 1980, is permitted to remove the Child from the Commonwealth of Australia. AND IT IS REQUESTED THAT the Australian Federal Police permit the Child to depart the Commonwealth of Australia with the Mother, notwithstanding that the Child's name is on the Airport Watch List.
Passports
THE COURT DECLARES THAT:
Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Father to enable the child of the relationship X, born … 2015 to obtain an Australian passport to travel internationally, the Court makes the following orders:
IT IS ORDERED BY THE COURT THAT:
The Mother of the child X, born … 2015 be permitted to apply for an Australian passport to enable the Child to travel internationally notwithstanding that the Father of the Child has not signed the passport application form and furthermore the Child be permitted to travel internationally without the permission of the Father.
The Mother shall retain control of the Child’s passport until X is 18 years old and the Mother shall provide the Father with a copy of the Child's passport.
The Father, his servants and/or agents be and are hereby restrained by injunction from applying for Country W residency or citizenship, or a Country W passport, or obtaining any passport or acceptable travel document or visa for any other country in the name of the Child, or with the name of the Child entered into or endorsed upon such a document, unless otherwise agreed by the parties in writing.
Restraints on the Parents
Each of the Father and the Mother are hereby restrained by injunction from knowingly posting any photos of X on social media sites that allow people other than the parties' family and friends to view the photos without the written consent of the other party.
Each of the Mother and the Father are hereby restrained by injunction from:
(a)Discussing these proceedings with X or in the presence of or hearing of X.
(b)Denigrating, abusing, belittling, insulting, denigrating or rebuking the other parent to X or within her presence or hearing.
(c)Knowingly allowing any third party to act in non-compliance with this Order.
Parents to Provide Information
The Mother shall obtain, utilise and maintain a family account with an online parenting application (Parenting App), which the Mother and Father shall use to communicate with each other in regard to X. The Mother shall establish the account and invite the Father to join within 7 days of these Orders being made.
The Mother and Father, and not their agents, representatives or any other person acting on their behalf unless otherwise agreed by the parties, are to communicate about matters solely and exclusively with respect to X through text message, the email addresses that were established for communications between the parties and the Parenting App.
Each party shall keep the other informed of any change of telephone/mobile and email address within 24 hours of such change and thereafter keep the other parent up to date with any subsequent changes as provided for in these Orders.
Each parent shall inform the other as soon as practicable of any significant illness or injury requiring hospitalisation suffered by X that occurs whilst X is in their respective care, along with the names of any treating medical, dental or allied health professional so that each parent may liaise with the same.
Miscellaneous
The Father be authorised to request from the Principal of any kindergarten or school attended by X copies of school reports, newsletters, event notices, school photographs and the like at his respective cost. AND IT IS DIRECTED that either parent be at liberty to produce a copy of these Orders to X's kindergarten or school, by way of such authorisation.
Both parties be at liberty to attend X's kindergarten or school events including, but not limited to, parent teacher interviews and other events organised by the kindergarten or school.
Notwithstanding that the Mother has sole parental responsibility for X, each parent is authorised to speak with any of X's treating medical or health professionals from time to time, including any treating specialist(s) as to X's diagnosis, prognosis and treatment. AND IT IS DIRECTED that the either parent be at liberty to produce a copy of these Orders to X’s treating health professionals, by way of such authorisation.
All extant applications are otherwise dismissed.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Corley & Petrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5458 of 2016
| MR CORLEY |
Applicant
And
| MS PETRIE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Father (Father) and the Respondent Mother (Mother) are the parents of X, born … 2015 (X). The parents separated 4 months prior to the birth of X. The Father commenced this proceeding when X was 7 and a half months old seeking to spend time with X. The Mother seeks sole parental responsibility for X on the basis of the Father’s repeated domestic violence.
Issues to be determined
The issues that fall to be considered in this case are as follows:
a)The allocation of parental responsibility.
b)The time that X should spend with the Father.
c)Whether the Father ought to be permitted to obtain a Country W passport for X without the consent of the Mother and whether he should be permitted to travel overseas with X.
Synopsis
I have determined that:
a) The Mother should have sole parental responsibility for X.
b)X should spend time with the Father as follows:
i)Until X commences primary school in 2021, each alternate Friday from 3:00 pm until Sunday at 4:00 pm.
ii)From when X commences primary school in 2021 and during each school term:
A.Each alternate Friday from the time X finishes school (or 3:00 pm) until Sunday at 4:00 pm;
B.Each Tuesday at 6:30 pm by Skype or other video call medium for a period of up to 30 minutes.
iii)During the term school holidays, on the alternate weekends that X would normally spend with the Father but extending by one night until seven nights is reached. Therefore in Grade 4 X will spend time with the Father from Friday 10:00 am until 4:00 pm the following Friday.
iv)From when X starts Grade 5 in 2026, X is to spend one half of the Victoria school term and long summer holidays with the Father.
v)At specified times over Christmas and Easter and on Father’s Day and X’s birthday.
d)The Father be restrained from obtaining a Country W passport or the passport or travel document of any other country for X and be restrained from travelling overseas with X.
Background
The Mother was born in Country H on … 1980 and is aged 39. The Mother’s father Mr A was a public servant and when the Mother was born her parents were living in Country H where her father was posted.
The Father was born in Country W on … 1981 and is aged 38.
The Mother first met the Father 1995 in Country W when she was 15. Mr A was posted to Country W, Country Y and Country Z in late 1995[1]. At that time the Mother and the Father had a romantic relationship as teenagers. The Mother subsequently left Country W in early 1997 to complete years 11 and 12 of her education in Australia. After the Mother left Country W the parties gradually lost touch with each other in the following years[2].
[1] Father’s Affidavit, filed 2.11.16, Annexure “A”.
[2] Ibid., Annexure “A”.
The Mother married Mr G on … 2007. The Mother and Mr G have a son F (F), who was born on … 2010 and is now aged 8. The Mother and Mr G were divorced on … 2014. F lives with the Mother and Mr G on a shared care basis[3].
[3] Mother’s Affidavit, filed 28.7.16, at [7].
The Father arrived in Australia in … 2012[4] and the parties commenced cohabitation in … 2013. The Mother sponsored the Father in obtaining from the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Department of Immigration) a partners’ visa. The Mother wrote an emotional and heartfelt reference in support of the Father’s partner visa application. The Mother’s reference was a personal and detailed history of her relationship with the Father[5]. Mr A also provided a Statutory Declaration in support of the Father’s partner visa application[6]. The parties married on … 2014.
[4] Father’s Affidavit, filed 16.6.16, at [1].
[5] Father’s Affidavit, filed 2.11.16, Annexure “A”.
[6] Ibid., Annexure “B”.
However it was not long before the Mother lost trust in the Father. It became apparent to the Mother that the Father was an unsuccessful businessman, was undermining her relationship with F and that he had an obsession with pornography. He also frightened her by committing domestic violence. The Mother separated from the Father on 27 July 2015 when he was overseas in Country W. After separation the Mother notified the Department of Immigration that the parties had separated as she was required to do, being the Father’s sponsor for his partner’s visa. The Mother and F moved out of the matrimonial home before the Father returned from Country W. At the time the Mother separated from the Father she was pregnant with X.
The Father returned to Australia on … 2015. On 25 September 2015 by reason of the Father’s behaviour, the Mother was granted an Interim Ex Parte Intervention Order for the protection of herself and F from the Father (Interim Intervention Order).
Between early … 2015 and … 2015 the Father formed a relationship with Ms J whom he met via the internet[7]. The Father then commenced a de facto relationship with Ms J after meeting Ms J for the first time on … 2015[8]. Ms J has two children from her former marriage, AA and BB. Ms J shares the care of and parental responsibility for AA and BB on an equal shared care basis with the children’s father[9].
[7] Transcript T38:41-42.
[8] Father’s Affidavit, filed 16.6.16, at [18].
[9] Ibid., at [19].
X was born on … 2015, three months after the parties separated. X is now aged 3, nearly 4. X has lived with the Mother since she was born.
On 12 January 2016 the Father was found guilty at the Suburb K Magistrates Court of breaching the Interim Intervention Order. No conviction was recorded and the Father was placed on a good behaviour bond for 12 months[10] (First Intervention Order Breaches).
[10] Exhibit R22.
On 21 March 2016 a final Intervention Order was made against the Father in the Suburb K Magistrates Court for the protection of the Mother and F (First Final Intervention Order). The Father did not attend the hearing.
In … 2016 Ms J fell pregnant with the child B. Both the Father[11] and Ms J[12] said that the pregnancy was planned. In May 2016 the Father advised Mr A that he was moving from Melbourne to City L to live and that he was in a new relationship.
[11] Transcript (20.8.19) T38:17.
[12] Ibid., T117:32-33.
In … 2016 the Mother met Mr M online and subsequently they commenced a relationship. Mr M separated from his partner in … 2014. He has two children CC and DD. Mr M and his former partner have shared care and joint parental responsibility for their children[13]. The Mother and Mr M do not live together and maintain separate households[14].
[13] Affidavit of Mr M, filed 16.4.18, at [2] and [4].
[14] Mother’s Affidavit, filed 27.2.18, at [11].
On … 2017 B, the child of the Father and Ms J, was born two or three weeks premature.
On 3 November 2017 the Mother made a statement to the Police alleging that the Father had breached the First Final Intervention Order[15].
[15] Ibid., at [41].
From 1 December 2017 the Father refused to communicate directly with the Mother and Ms J commenced to undertake all communication with the Mother on behalf of the Father[16].
[16] Ibid., at [54]. Transcript T22:1-4 and 31-41.
On 10 January 2018 the Father was found guilty at the Suburb K Magistrates Court of nine breaches of the First Final Intervention Order, including two persistent breaches. The Father was convicted and fined $2,000[17] (Second Intervention Order Breaches). Immediately after the hearing that day at the Suburb K Magistrates Court the Father approached Mr A as he left the court room and he said whilst in close proximity to Mr A “What the fuck are you looking at? Cunt?” Mr A immediately returned back into the court room and subsequently made a statement to the Victoria Police concerning this incident[18]. That same day the Father refused to return X in accordance with Court Orders and over held X on the night of 10 January 2018, contrary to the wishes of the Mother. X was returned by the Father on 11 January 2018.
[17] Exhibit R22.
[18] Affidavit of Mr A, filed 18.4.18, at [10] and Annexure 7.
On 8 March 2018 the Suburb K Magistrates Court of Victoria granted an Interim Intervention Order in favour of the Mother against the Father, thereby extending the First Final Intervention Order to include X as well as F as affected family members (Second Interim Intervention Order). The hearing of the Mother’s application for a further final Intervention Order was listed for 25 June 2018 at the Suburb K Magistrates Court.
The Father then made applications to the City L Magistrates Court for Intervention Orders against the Mother and Mr A. On 22 March 2018 Mr A was served with a copy of an Application and Summons for an Intervention Order made by the Father. The incident on 10 January 2018 and a meeting on 11 January 2018 when X was returned by the Father after over holding her, were recorded as reasons for the application for an Intervention Order[19].
[19] Ibid., at [11].
On 10 April 2017 the Victoria Police were granted an Interim Intervention Order against the Father, with Mr A named as the affected family member[20].
[20] Exhibit R16.
The City L Magistrates Court on 19 April 2018 declined to make an Interim Intervention Order in favour of the Father against the Mother[21]. The Father’s applications against the Mother and Mr A were transferred to the Suburb K Magistrates Court, to be heard on 25 June 2019, together with the Mother’s application against the Father.
[21] Mother’s Affidavit, filed 14.8.19, at [22].
On 25 June 2018 a Final Intervention Order was made by the Suburb K Magistrates Court in favour of the Mother against the Father for the period of two years. X and F were also named as affected family members (Second Final Intervention Order)[22]. That day a final Intervention Order was also made against the Father for a period of 12 months on the application of the Victoria Police, with Mr A named as the affected family member[23]. Both of these intervention orders were heard at the same time and were undefended as the Father did not attend the hearing.
[22] Ibid., at [23] and Annexure “P-4”.
[23] Mother’s Affidavit, filed 14.8.18, at [23] and Annexure “P-4”.
The Suburb K Magistrates Court on 25 June 2018 also dismissed the Father’s applications for final Intervention Orders against the Mother and Mr A[24].
[24] Ibid., at [24].
Procedural History
The Father initially commenced proceedings in this Court on 16 June 2016. At that time X was 7 and a half months old. In his Initiating Application the Father sought interim and final orders that the parties have equal shared parental responsibility for X and that X live with the Mother. The Father also sought orders that between June 2016 and February 2017 he spend increasing periods of unsupervised time with X, with overnight visits to commence in December 2016. At the time the Father commenced this proceeding he was legally represented.
The Mother filed a Response to Initiating Application on 28 July 2016 seeking interim and final orders for both parenting and property. The Mother sought interim and final parenting orders that X live with the Mother and that she have sole parental responsibility for X. The Mother also sought interim orders that the Father spend time with X at a supervised contact centre at the Father’s expense for specified times twice a week.
On 2 August 2016 on the first return date, the Court made Interim Orders by consent that X live with the Mother and spend time with the Father on two occasions each week for periods of one to two hours in the presence of a supervised contact service. The Father was to be responsible for the costs of supervision and reporting. The parents were also restrained from posting any photos of X on public social media sites. The Father was also restrained from removing X from Australia and the Australian Federal Police were requested to place X’s name on the Airport Watch List. The Court also made Orders for the future conduct of the proceeding.
On 1 September 2016 the Father filed a document described as an ‘Initiating Application’. At that time the Father was self-represented. The Father sought interim and final orders that the parties have equal shared parental responsibility for X and that X spend shared living time between the Mother and the Father as deemed appropriate by the Court.
On 31 October 2016 the Father filed a Further Amended Initiating Application. The Father sought interim and final orders that:
a)The Mother and the Father have equal shared parental responsibility for X;
b)X live with the Father on a fortnightly basis for increasing periods of time so that by 30 October 2017 when X was 2 years old, she lived with the Father 6 nights out of 14 nights.
c)X live with the Mother and at specified times on Christmas Day, Boxing Day, Mother’s Day and Father’s Day.
On 2 November 2016 the Mother filed an Amended Response to Initiating Application. There was no amendment to the final parenting orders previously sought by the Mother. The Mother continued to seek that the Father’s time with X be supervised by a professional supervisor and that the Father be responsible for all costs associated with such supervision and obtaining reports from the supervisor. The Mother also sought orders that would enable her to obtain a passport for X and orders that she be able to travel overseas with X for a holiday in or around the Term 2/3 school holidays in 2017.
On 9 November 2016 the Court ordered that pursuant to s.11F of the Family Law Act 1975 (Cth) (Act) the parties attend upon a Family Consultant of the Court for the purposes of a Child Dispute Conference on 10 April 2017 and that the Family Consultant provide a written memorandum. The Court also made orders by consent that:
a)X spend unsupervised time with the Father for specified periods of time on each Tuesday and alternate Sundays on a gradually increasing basis.
b)Permitted the Mother to travel overseas with X for a holiday and for the Father to have makeup time.
c)The parties each enrol and provide to the other party written confirmation of such enrolment and the completion of a post separation parenting program and an EACH Social and Community Health Program managed by the Family Relationships Centre in Suburb N.
d)Changeover take place at day care or the McDonald’s restaurant, Suburb EE, save for Christmas at Town O.
On 28 November 2016 the parties attended a Conciliation Conference as a result of which the Court made final consent property orders. The Orders included the following:
The [Father] be solely responsible for and indemnify the [Mother] against all payments in respect of and liability arising from or in relation to the P Bank Mortgage Contract number … and thereafter pay within 14 days and indemnify the [Mother] in respect of any liability to P Bank including but not limited to the [Mother’s] and court costs.
The parties do all acts and things and sign all documents as may be necessary to release the [Mother], at the [Father’s] expense, from her personal guarantee from the P Bank Mortgage Contract number … and thereafter pay within 14 days and indemnify the [Mother] any liability to P Bank including but not limited to the [Mother’s] and court costs[25] (P Bank Debt).
[25] Orders 1 and 2, Final Orders 28.11.16.
The Orders made on 28 November 2016 included the following notation:
The [Father] notionally pay the [Mother] the sum of $4,500 to be offset by her against the [Father’s] current child support liability such that she will notify the Child Support Agency within 14 days that she has received non-agency payments in the sum of $4,500 pursuant to these orders[26].
[26] Orders 28 November 2016, Notation A.
The Orders made on 28 November 2016 otherwise provided that the Father was solely entitled to his company Q Pty Ltd and all other businesses in which he had an interest in the debts including the overdraft debt to the ANZ bank.
On 30 March 2017 the Mother filed an Application-Contravention for the Father’s contravention of the Orders made on 28 November 2016 (Mother’s Contravention Application). The Mother’s Contravention Application alleged that the Father had not paid the P Bank Debt, of which the amount of $1,309.55 remained outstanding to P Bank.
On 10 April 2017 the parties attended a Child Dispute Conference at the Court with a Family Consultant. At that time X was 17 months old and attending the Suburb N Early Learning Centre four days a week. The Family Consultant prepared a Memorandum dated 10 April 2017.
On 20 April 2017 the Court ordered that the proceeding be relisted for final hearing on 30 April 2018 and that pursuant to s. 62G(2) of the Act the parties and X attend upon a Family Consultant for the purposes of the preparation of a Family Report. The Court also ordered by way of enforcement that:
Orders (1) and (2) of the Orders made on 28 November 2016 remain in full force and effect and it is noted that the Father has not complied with these orders and that an amount of approximately $1,318.25 remains owing to P Bank (ANZ) and he says this is because of family expenses he has had to pay but that he has now entered into a repayment schedule with Recovery Centre acting on behalf of the P Bank a copy of the letter agreeing to this repayment schedule dated 7 April 2017 is annexed to the minute of consent orders signed by the parties personally at Annexure “A”.
The Father continue to pay the required payments under the said repayment schedule until the arrears and any associated penalties or interest are repaid […][27].
[27] Orders 20 April 2017, Orders 15 and 16.
On 20 April 2017 the Mother consented to the Order referred to in the preceding paragraph on the basis that the Father had entered into a repayment plan with Recovery Centre for the repayment of the P Bank Debt. On this basis the Mother consented to the Mother’s Contravention Application being dismissed[28].
[28] Mother’s Affidavit, filed 27.2.18, at [134].
On 20 April 2017 the Court also made interim orders by consent that:
a) X live with the Mother.
b)X spend increasing periods of time with the Father culminating with:
i)Each alternate weekend from Saturday at 9:00 am until Sunday at 12 noon and extending by one hour each visit thereafter until it is to be 5:00 pm on Sunday, commencing 28 October 2017;
ii) Each alternate Tuesday from 8:30 am until Wednesday at 12 noon extending by one hour each visit thereafter until it is to be 4:00 pm on Wednesday, commencing 31 October 2007.
c)The Father must give the Mother at least 24 hours’ notice if the times provided in the Orders are not to take place and advise immediately by text message or email if the times provided for in the Orders are to be varied.
d)Changeover was to take place at X’s child care centre on the midweek days and on the weekends and days that the child care centre was closed, changeover was to take place at McDonald’s at the Suburb N railway station.
e)The parties were to communicate with each other in a communication book which was to travel with X.
f)Orders were also made for X to spend time with each of her parents for the Christmas period in 2017.
On 20 August 2017 the Father filed an Application-Contravention (Father’s Contravention Application). The contraventions alleged by the Father included that the Mother:
[…] without reasonable excuse, told Child Support Australia (sic) that the sum of $4,500 was not paid by [the Father][29].
[29] Father's Contravention Application, at [6].
On 30 October 2017 the Father’s Contravention Application was dismissed for failing to comply with the Federal Circuit Court Rules 2001 (Cth) and the Mother’s costs were reserved. It was also Ordered by consent that:
a)X spend holiday time with the Father from 9:30 am on Saturday 13 January 2018 to 4:00 pm on Monday, 15 January 2018.
b)The Father was to collect X from the Town O Store and return X to child care at the conclusion of the January 2018 holiday time.
c)The orders of 20 April 2007 were otherwise confirmed.
On 5 March 2018 Family Consultant Mr S interviewed the Mother, Mr M and the maternal grandparents. Observations were conducted of all these people with X and F. Mr S also interviewed the Father and Ms J and conducted observations of them with X.
On 11 March 2018 the Father filed a Further Amended Application (Second Further Amended Application) seeking interim and final orders. In the Second Further Amended Application the Father sought final orders that:
a)The Mother and the Father have equal shared parental responsibility for X.
b)X with live with the Father on four week alternating schedule as follows:
i)Week One - Week Two
From Wednesday 7:30 am until the following Wednesday at 4:30 pm commencing 9 January 2019. The Father to collect X from the Mother on the Wednesday at 7:30 am at the D Train Station railway station and the following Wednesday the Father to return X to the Mother at 4:30 pm at the D Train Station railway station (seven nights).
ii)Week 4
From Wednesday at 7:30 am until Sunday 3:00 pm commencing 23 January 2019. The Father to collect X from the Mother on the Wednesday at 7:30 am at the D Train Station railway station and the following Sunday the Mother collect X from the Father’s house or an agreed City L location at 3:00 pm (four nights).
c)Each parent be permitted to take X on a 10 day holiday during the year with time with the other parent being suspended and that:
i)No make-up time be required;
ii)The parents are to inform each other about the holiday at least 30 days prior to the holiday;
iii)The holidays are not to be taken during the main Christmas days, being 24 December to 26 December or on X’s birthday.
d)X spend time with the Father at specified times over the Christmas period and on Father’s Day.
e)The Father and the Mother keep each other informed of their contact information at all times and advise the other of any changes to their contact details within 24-hours of any changes.
f)The Father and the Mother advise the other as soon as practicable of any illness, serious injury or health-related issue affecting X whilst she is in their respective care.
g)The Father and the Mother being entitled to communicate with any professional (medical or otherwise) who treats X.
h)“That all acts in Article 18 of the ICCPR be followed by both parents[30].
[30] Paragraph 10 of the Second Further Amended Application. By the reference to the “ICCPR” it is assumed the Father is referring to the International Covenant on Civil and Political Rights.
On 13 March 2018 the Court ordered that pursuant to s.13C(1)(b) of the Act the parties forthwith attend family dispute resolution to attempt to resolve their disputes with each other relating to the care of X. The proceeding was otherwise adjourned to the Compliance List on 9 April 2018. At that time both the Mother and the Father were self-represented.
On 19 March 2018 the Family Report, dated 14 March 2018 prepared by Mr S was released to the parties.
On 9 April 2018 Orders and directions were made for the further filing of documents for trial by the parties. The Father’s Notice of Objection to Subpoena in relation to the Suburb N Early Learning centre was adjourned to the Final Hearing on 30 April 2018.
On 24 April 2018 the Mother again became represented by lawyers[31].
[31] Notice of Address for Service, filed 24.4.18.
On 26 April 2018 the Mother filed her Outline of Case document (Mother’s Outline of Case). The Mother sought final orders which may be summarised as follows:
a) The Mother have sole parental responsibility for X.
b)In relation to any long-term decision the Mother is required to make in relation to education, religious and cultural upbringing, health or any other decision affecting the long-term welfare of X, save for any emergency decisions, the Mother shall do the following prior to making such a decision:
i)The Mother provide the Father with 14 days' notice in writing of any such proposed decision; and
ii)The Mother shall consult with the Father with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view; and
iii)The Mother shall make the final decision and within 14 days of so doing, provide the Father with written confirmation of the decision made.
c)X shall be enrolled at Suburb R Early Learning Centre for three-year-old kindergarten, commencing January 2019 for three days per week and four-year-old kindergarten commencing 2020 for four days a week.
d) X live with the Mother.
e) X spend time and communicate with the Father as follows:
i) Until X starts three-year-old kindergarten in 2019:
A. Each Tuesday from 8:00 am until 5:00 pm; and
B.Each alternate Friday at 8:00 am until Sunday at 4.00 pm.
ii)From when X starts three-year-old kindergarten until X starts primary school:
A.During each school term, each alternate Friday from when kindergarten finishes (or 3:00 pm) until Sunday at 4:00pm; and
B. Each Tuesday from 8:00 am until 5:00 pm.
iii) From when X commences four yearold kindergarten, and during each school term, each Tuesday from when kindergarten finishes (or 3:00 pm) until 6:00 pm on the same day.
iv) During the school term holidays:
A.On the weekend the Father would normally spend time with X during the school term, but extended to 8:00 am on the alternate Friday until Sunday at 4:00 pm; and
B. On each alternate Tuesday immediately preceding the Sunday visit from 8:00 am until Wednesday at 5:00 pm.
v) From when X starts primary school in 2021:
A.During each school term, each alternate Friday from when school finishes (or 3:30 pm) until Sunday at 4:00 pm; and
B.During each school term, each Tuesday from when school finishes (or 3:30 pm) until 6:00 pm on the same day, increasing by 30 minutes each year until 8:00 pm in January 2025.
vi) During the school term holidays, the Father shall spend time with the X on the weekend he would normally spend time with X during the school term but extended by one night in each year until seven nights is reached commencing in the term one holidays of the year X commences Grade 4;
vii) For the term 4 or long summer school holidays commencing from when X starts Grade 4, the Father shall spend time with X for up to seven nights each second week of those school holidays; or at further and other times as agreed between the parties in writing including by text message.
viii) From 12:00 pm on Christmas Eve until 12:00 pm on Boxing Day in even numbered alternate years.
ix) Each Father's Day from 11:00 am until 4:00 pm that day, if X would not otherwise be in the Father's care.
x) Over Easter from 11:00 am on Good Friday until 4:00 pm on Easter Monday in even numbered alternate years.
f)Commencing 27 October 2019 and on each alternate year thereafter up until when X turns 12 (2027), the Father shall spend time with X on her birthday at the following times:
i)When X's birthday falls on a Saturday or Sunday when X is usually with the Mother, the Father shall spend time with X from 11.00 am until 4.00 pm;
ii)When X's birthday falls on a weekday during the school term, the Father shall spend time with X from when kindergarten/school finishes (3:00 pm or 3:30 pm) until 6:00 pm on the same day, increasing by 1 hour each year alternate year until 8:00 pm is reached in 2023.
g)From when X turns 13, X shall decide where she should spend her birthday. When X chooses to spend her birthday with the Father, the time spent with the Father shall be pursuant to sub-paragraph (f) herein. If X chooses to spend her birthday with the Mother, the Father can communicate with X over the phone (or another agreed means of communication) on her birthday.
h)The Father's time with X be suspended at specified times on Mother’s Day, at Easter, the Christmas period between 24 and 26 December and for X’s birthday.
i)The Mother be permitted to travel with the X for a period of up to two weeks at a time each year, except for Easter, Christmas Eve, Christmas Day, Boxing Day and X's birthday, provided that the Mother provide the Father the following information in writing not less than 28 days before the intended date of travel:
(a)The Child's itinerary, including departure and return dates;
(b) The Child's return airline tickets (if applicable); and
(c) For overseas travel, a contact number for the Child.
j)X is to spend time with the Father for make-up time for one weekend in addition to sub-paragraph (e)(v) herein in the month following the time X is away with the Mother. This time is to be agreed at least 14 days prior to the travelling with the Mother.
k)After X turns 13, the Father be permitted to travel within Australia with X for a period of up to 10 days at a time each year, except for Easter, Christmas Eve, Christmas Day, Boxing Day and X's birthday, provided that the Father provide the Mother the following information in writing not less than 28 days before the intended date of travel:
(a) X’s itinerary, including departure and return dates;
(b) X’s return airline tickets (if applicable);
(c) An address and contact number for X.
l)X is to spend time with the Mother for make-up time for one weekend on a weekend when X is usually with the Father in the month following the time child X is away with the Father. This time is to be agreed at least 14 days prior to X travelling with the Father.
m)Changeovers were to take place at either the ticket booth on the ground floor of D Train Station railway station, kindergarten or school. In the event that the Father does not attend for collection of X at D Train Station railway station or kindergarten/school at the nominated times, the Mother and X shall only be required to wait for a period of a further 30 minutes after which the contact time will be deemed cancelled.
n)“The Mother and Father, and not their agents, representatives or any other person acting on their behalf unless otherwise agreed by the parties, are to communicate about matters solely and exclusively with respect to [X] through text message and the email addresses that were established for communications between the parties”[32].
o)The parties, their servants and/or agents be restrained by injunction from posting any photos of X on social media sites that allow people other than the parties' family and friends to view the photos without the written consent of the other party.
p)The Father be restrained from obtaining a Country W passport or citizenship for X. The Father his servants and/or agents be restrained by injunction from removing or attempting to remove X from the Commonwealth of Australia. X to be placed on the Airport Watch List.
q)The Mother be permitted to obtain a passport for X without the written permission of the Father. The Mother to retain control of the X's passport until X is 18 years old and the Mother provide the Father with a copy of the X's passport.
r)The Mother be permitted to remove X from Australia notwithstanding that X's name is on the Airport Watch List.
s)Until X is 5 years of age, the Mother and Father shall communicate with each other in a communication book.
t)Other ancillary orders: authorising the provision information to the Father; requiring the sharing of information between the parties; and mutual non-denigration orders restraining both parties.
[32] Mother’s Outline of Case, Mother’s Proposed Minute of Final Orders, at [14].
On 27 April 2018 the Father filed his Outline of Case document (Father’s Outline of Case). The Father sought final orders which may be summarised as follows:
a) The Father and the Mother have shared parental responsibility for X.
b)X spend time with the Father as follows:
i)Three nights a fortnight from Thursday 7:30 am to Sunday 3:00 pm for a period of 12 weeks. The Father to collect X from the Mother in the CBD at the changeover centre for the first six months and then at the D Train Station. The Mother to collect X from the Community Support Children’s Contact Changeover Centre in City L for the first six months and then an agreed location in the locale of City L.
ii)From when X is three years old, four nights a fortnight until X starts school in 2021. The Father to collect X from the conclusion of kindergarten on Wednesday. The Mother to collect X at an agreed location in the locale of City L on Saturday.
iii)When X commences primary school in 2021, from the end of school on Friday until Sunday at 5:00 pm on a fortnightly basis. The Father to collect X from the conclusion of school on Friday. The Mother to collect X at an agreed location in the locale of City L on Sunday.
c)The Father be allowed to contact X every Tuesday via Skype or other video call medium until the age of eight and thereafter X be allowed to communicate with the Father and other family members freely.
d)The school holidays to be shared equally between the Mother and the Father. In the event that the parties are unable to reach agreement:
i)In 2018 the Mother was to have the first week and the Father to have the second week and so forth;
ii)In 2019 the Father is to have the first week and the Mother to have the second week and so forth.
iii)During the long Christmas holidays both parents have the option of taking X for a two-week holiday, providing one another with six weeks’ notice.
e) The Father be permitted to take X overseas with his family.
f) X to be removed “from all watch lists”[33].
[33] Father’s Outline of Case, filed 27.4.18, Statement of Precise Orders Sought, at [12].
g)The Father be permitted to obtain for X a Country W passport.
h) X spend her birthday wherever her schedule falls.
i)X to spend Mother’s Day with the Mother. If Mother’s Day falls on a day that X is with the Father, the Mother is to collect X the night prior to Mother’s Day at 4:00 pm from an agreed location in the locale of City L. The same arrangements are to apply for Father’s Day, save that the Father is to collect X night prior at 4:00 pm from the D Train Station.
j)Communications between the Mother and the Father regarding X should be by email or text messages.
k)“The father continue to utilise his partner, Ms J, to communicate with mother on his behalf until such time he is not under threat from the mother and her agents as demonstrated to date”[34].
l)In relation to medical decisions:
(i) Both the Mother and the Father jointly make decisions about any and all medical decisions. Unless it is an emergency or life-threatening situation each parent has the right to communicate with specialists and seek a second opinion. If a consensus is reached between specialists the parents are to abide by that decision.
(ii) In a medical emergency either parent is permitted to make an emergency decision if X is in their care at the time.
(iii) Both parents to undertake to keep each other informed of any health issues.
[34] Father’s Outline of Case, filed 27.4.18, Statement of Precise Orders Sought, at [19].
The Final Hearing commenced on 30 April 2018. The Mother was represented by Counsel and Solicitors and the Father was self-represented. On the first day of the hearing the Father advised the Court that he required all of the Mother’s witnesses for cross-examination[35] apart from Ms T. Ms T had transcribed the proceeding before the Magistrate at the Suburb K Magistrates Court on 10 January 2018 in relation to the Father’s conviction for the Second Intervention Order Breaches[36]. The Father advised the Court that he did not question that the transcript of the proceeding on 10 January 2018 at the Suburb K Magistrates Court was correct[37].
[35] Transcript T8:27-30.
[36] Affidavit of Ms T, filed 18.4.18, Annexure “-2”.
[37] Transcript T8:20-25.
On 30 April 2018 the Father gave limited evidence and was cross- examined. On 1 May 2018 the cross-examination of the Father continued. The Final Hearing required adjournment at the conclusion of the second day as Mr S, the author of the Family Report, was overseas and unavailable to give evidence.
On 1 May 2018 the following Orders were made:
a)The matter be adjourned part-heard to 14 June 2018 at 9.30 am for mention.
b)The matter be adjourned part-heard to 20 August 2018 with an estimated further hearing time of 2 days.
c)X spend time with the Mother on Mother’s Day 13 May 2018 from 11:00 am and in this regard the Father shall deliver X to the Mother at the McDonald’s Restaurant by the Suburb N railway station.
On 1 May 2018 it was also Ordered by consent that:
a)The Mother be at liberty to enrol X in the three year old Kindergarten Program at Suburb R Child Care for the year 2019 and in this regard the Mother shall be responsible for the payment of any enrolment fee.
b)The enrolment of X at Suburb R Child Care shall be subject to any final order made by the Court following the completion of the hearing of this matter.
c)The Mother’s solicitors have leave to request the issue of a subpoena addressed to Bentleys Barristers and Solicitors, 386 Victoria Parade, East Melbourne (Subpoena) requiring the production of all correspondence and documents with:
i)The Administrative Appeals Tribunal;
ii)The Department of Immigration and Border Protection;
relating to the Father’s migration and visa status.
d)Any documents produced pursuant to the Subpoena in which there is a claim for privilege be placed in a separate sealed envelope at the time of production.
On 17 May 2018 the Mother’s solicitors filed a subpoena in accordance with the Orders made on 1 May 2018. On 29 May 2018 the Father again became legally represented when Coote Family Lawyers commenced to act for him[38].
[38] Notice of Address for Service, filed 29.5.18.
On 1 June 2018 the Father’s lawyers filed a Notice of Objection-Subpoena in response to the Subpoena (Subpoena Objection). It was claimed that the documents sought pursuant to the Subpoena were subject to legal professional privilege or alternatively were “materially irrelevant to the current family law proceeding”.
On 14 June 2018 at the Mention of this matter the Father was represented by a solicitor from Coote Family Lawyers and the Mother by Counsel. On that occasion it was ordered by the Court that:
a)The Subpoena Objection be withdrawn.
b)Leave was granted to the lawyers for both parties to inspect the documents.
On 30 July 2018 Coote Family Lawyers ceased acting for the Father[39].
[39] Notice of Withdrawal as Lawyer, filed 30.7.18.
The Father’s cross-examination continued when the Final Hearing recommenced on 20 and 21 August 2018. On 21 August 2018 Ms J gave evidence and was cross-examined. The Mother also gave evidence and was cross-examined by the Father. At the conclusion of 21 August 2018 the Father again indicated that he required all of the Mother’s witnesses to be available for cross-examination (save for Ms T)[40].
[40] Transcript (21.8.18) T166:29-34.
On 22 August 2018 the Father’s cross-examination of the Mother continued. Mr G, Mr M and Mr A then gave limited evidence and were cross-examined. The Father then advised the Court that he did not want to cross examine the Mother’s sister, Ms U[41]. The Father also advised the Court that he did not want to cross-examine Ms Petrie, the Mother’s psychologist[42]. Mr S then gave evidence and was cross-examined. Prior to giving evidence Mr S had an opportunity to read the proposed orders in the Mother’s Outline of Case, the Father’s Outline of Case and also in the Mother’s amended Proposed Minute of Final Order from the Mother, which is referred to below[43].
[41] Ibid., T222:21-223:66.
[42] Ibid., T223:41-224:30.
[43] Transcript (22.8.19) T218:30-219:26.
On 23 August 2018 Counsel for the Mother addressed the Court in final submissions. The Father also made some final submissions. Judgment was then reserved.
The Proposals of the Parties at Trial
I turn now to each of the parties’ proposals.
Mother’s Proposal
In closing submissions Counsel for the Mother provided to the Court an amended Proposed Minute of Final Order from the Mother[44], which may be summarised as follows (Mother’s Proposal):
[44] Mother’s Proposed Minute of Final Orders.
a) The Mother have sole parental responsibility for X.
b)In relation to any long-term decision the Mother is required to make in relation X, the Mother shall do the following prior to making such a decision:
i)The Mother shall provide the Father with 14 days' notice in writing (email) of any such proposed decision; and
ii)The Mother and the Father shall make a genuine effort to come to a joint decision about such issue; and
iii)If no agreement is reached between the parties then, within 14 days, the Mother shall make the final decision about such issue and provide the Father with written confirmation of the decision made.
c) X spend time and communicate with the Father as follows:
i) Until X starts primary school in 2021:
A.Each alternate Friday at 3:00 pm until Sunday at 4:00 pm;
B.At any other time as agreed in writing (email) by the parties.
ii) From when X starts primary school in 2021:
A.Commencing 29 January 2021 and during each school term, each alternate Friday from the time when X finishes school until Sunday at 4.00 pm;
B.Commencing 2 February 2021, and during each school term, each Tuesday at 6.30 pm the Father shall be able to communicate with X by Skype or other video medium for a period of up to 30 minutes;
C.At any other time as agreed in writing (email) by the parties.
iii)From when X starts three-year-old kindergarten in 2019, during the school term holidays that are two weeks or more in duration, the Father spend time with X on the alternate weekend he would normally spend time with X during the school term but extending by one night until seven nights is reached, as outlined below:
A.Three-year-old kindergarten and four-year-old kindergarten: Friday from 10:30 am until Sunday a 5:00pm;
B. Prep: Friday from 10.30 am until Monday at 3:00 pm;
C.Grade 1: Friday from 10.30 am until Tuesday at 4:00pm;
D.Grade 2: Friday from 10:30 am until Wednesday at 4:00pm;
E.Grade 3: Friday from 10:30 am until Thursday at 4.00pm.
iv)For the term one school holidays commencing from when X starts grade four, the Father shall spend time with X for up to 7 nights commencing at 10:30 am on Friday of the weekend he would normally spend time with X during the school term and concluding at 10:30 am on the following Friday.
v)Over the Christmas period and on Father’s Day as previously proposed in the Mother’s Outline of Case in paragraph 50(e).
vi)Over Easter from 12:00 pm on Good Friday until 12:00 pm on Easter Monday in even numbered years.
d)X’s birthday as previously proposed in the Mother’s Outline of Case in paragraph 50(f), save that when X’s birthday falls on a weekday, the time will be increased by 1 hour each alternate year until 9:00 pm is reached in 2025.
e)The Mother be permitted to travel within Australia and overseas with X for a period of up to three weeks at a time each year. Otherwise as previously proposed in the Mother’s Outline of Case in paragraph 50(i).
f)The Father be permitted to travel within Australia with X for a period of up to 10 days after X turns 15. Otherwise as previously proposed in the Mother’s Outline of Case in paragraph 50(k).
g)The Mother and Father shall communicate about matters with respect to X all through text message, email addresses are established for communications between the parties and MyMob.
h)The Mothers Proposal is otherwise set out in sub-paragraphs 50 (d), (h), (j), (l) to (r) and (t).
Documents Relied Upon by the Mother
The Mother relied upon the following documents[45]:
[45] Mother’s Outline of Case. The Affidavit of Ms C, filed 16.4.18 was not relied upon by the Mother.
Affidavits
a) Affidavits of the Mother:
(i) Filed 14 August 2018;
(ii) Filed 18 April 2018;
(iii) Filed 27 February 2018;
(iv) Filed 25 October 2017 (as to paragraphs 22 to 26);
(v) Filed 28 July 2016.
b)Affidavit of Ms Petrie (Mother’s psychologist), filed 17 April 2018.
c)Affidavit of Mr M (Mother’s partner), filed 17 April 2018.
d)Affidavit of Mr G (Mother’s first husband), filed 17 April 2018.
e)Affidavit of Mr A (maternal grandfather), filed 18 April 2018).
f)Affidavit of Ms T (transcription of Magistrates’ Court proceedings), filed 18 April 2018.
g)Affidavit of Ms U (Mother’s sister), filed 5 August 2018.
Filed Documents
h) Mother’s Outline of Case.
Single Expert Reports (Court)
i) Child Dispute Conference Memorandum, dated 10 April 2017.
j)Family Report, dated 14 March 2018, prepared by Mr S (Family Report).
Other Documents
k)The Outline of Submissions for the Respondent Mother, dated 23 August 2018.
l)Mother’s Proposed Minute of Final Orders, dated 23 August 2018.
m)Mother’s Detailed Chronology, dated 23 August 2018.
Father’s Proposal
In closing submissions the Father provided to the Court a Statement of Precise Orders Sought[46], which may be summarised as follows (Father’s Proposal):
[46] Transcript (23.8.18) T254:1-36.
a)X spend time with the Father as follows:
i)From 31 January 2019 until X attends four year old kindergarten in 2020 from Thursday 10:00 am to Sunday 5:00 pm (three nights). The Father to collect X from the Mother on Thursday from the D Train Station. The Mother to collect X at an agreed location in the locale of City L.
ii)From 31 January 2020 until X starts school in 2021 from Wednesday to Sunday 5:00 pm (four nights). The Father to collect X from Suburb R Child Care on Wednesday. The Mother to collect X from the D Train Station on Sunday.
iii)When X commences primary school in 2021, from the end of school on Friday until 5:00 pm each alternate week. The Father to collect X from school on Friday. The Mother to collect X from the D Train Station on Sunday.
iv)From 10:00 am on Christmas Eve until the 5:00 pm on Boxing Day in even numbered years. From 10:00 am on Christmas Day until 5:00 pm on Boxing Day in odd numbered years. The Father to collect X from the Mother and the Mother to collect X from the Father on return.
b)The Father to be permitted to attend any and all school or sporting events that X may be involved with. The Father to be required to let the Mother know 48 hours prior if he is to be in attendance.
c)The Mother will have the right to decide X’s school placement based on the proximity of the school to the Mother’s home.
d)During the school holidays until X turns five, the Father have X for three days in addition to his normal times with X[47].
[47] Statement of Precise Orders Sought, at [12] and Transcript (23.8.18) T256:15-39.
e) During the school holidays after X turns five:
i) The parents to have “Equal 50/50 across school holidays”.
ii) In default of agreement during term holidays:
A.In 2022 the Mother to have the first week and the Father to have the second week and so forth.
B.In 2023 the Father to have the first week and the Mother to have the second week and so forth.
iii)During the long Christmas holidays both parents have the option of taking X for a two-week holiday, provided that they give each other six weeks’ notice.
f)The Mother be permitted to take X overseas for holidays from 2021 and the Father be permitted to take X overseas for holidays from 2022.
g)The Father’s Proposal is otherwise set out in sub-paragraphs 51(h), (i), (j) and (l).
Documents Relied Upon by the Father
The Father relied upon the following documents[48]:
[48] Father’s Outline of Case.
Affidavits
a) Affidavits of the Father:
(i) Filed 9 April 2018;
(ii) Filed 21 August 2017;
(iii) Filed 13 April 2017;
(iv) Filed 2 November 2016;
(v) Filed 26 October 2016;
(vi) Filed 2 September 2016;
(vii) Filed 16 June 2016.
b) Affidavit of Ms J (Father’s partner), filed 9 April 2018.
Filed Documents
c) Father’s Outline of Case.
Single Expert Reports (Court)
d) Child Dispute Conference Memorandum, dated 10 April 2017.
e) Family Report.
Other Documents
d) Statement of Precise Orders Sought, dated 23 August 2018.
Evidence
The standard of proof in a civil matter is the balance of probabilities: s.140 Evidence Act 1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
These are proceedings to which the provisions of Part VII, Division 12A apply. Section 69ZT(1) prescribes that certain of the provisions of the Evidence Act1995 (Cth) do not apply for the purposes of the admission of material into evidence, however the Court is to determine the weight such evidence should be given as a consequence of its admission due to the Evidence Act1995 (Cth) not being applied: s.69ZT(2).
The Mother and the Father relied upon their affidavits. Their evidence set out in significant detail the history of their relationship and I do not propose to repeat it this judgment.
In Bell & Nahos[49] Strickland J addressed the obligations of a trial judge as follows:
[…] it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[49] [2016] FamCAFC 244.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision[50].
[50] Ibid., at [28]-[29].
Both the Mother and the Father gave limited evidence and were cross-examined. The Father was cross-examined in considerable detail. I therefore had the benefit of observing both parties in the witness box for a period of time and observing their demeanour in the Court throughout the proceeding.
When being cross-examined the Mother gave her evidence in a considered manner. Being cross- examined by the Father was clearly an unpleasant experience for the Mother. The Mother directly answered questions put to her. She made concessions where appropriate. The Mother behaved with dignity in the circumstances and she impressed me as a witness.
I note that as a result of Part XI, Division 4 of the Act coming into operation recently, the Father would now be prohibited from cross-examining the Mother personally, by reason of a family violence order applying to both parties: s.102NA(1)(c)(ii) and s.102NA(2)(a) of the Act.
Under cross-examination the Father did not answer questions in a responsive manner and had to be reminded by the Court repeatedly to answer the questions asked by Counsel. The Father presented as an evasive witness who found it difficult to actually answer the question asked. The Father often forgot what the original question was and had to be reminded.
The Father was inconsistent in his evidence and appeared to be trying to tailor his evidence to best support his case. The Father presented as disingenuous and significantly lacking in insight regarding the impact of his conduct and comments on others. He repeatedly attempted to argue with Counsel for the Mother instead of answering questions.
The Father’s anger and dislike of the Mother was palpable in the giving of his evidence. His attempts to explain his conduct towards the Mother served to reinforce his threatening and intimidating behaviour towards the Mother and indicated that he had not in fact taken responsibility for his conduct, despite his protestations to the contrary. The Father demonstrated a flippant attitude towards the First Intervention Order Breaches and the Second Intervention Order Breaches. This attitude was replicated by Ms J in her evidence.
The Father made significant generalised allegations about the Mother and her conduct but failed to particularise those general allegations. The Father had a number of opportunities where he could have particularised these generalised allegations but failed to do so. He was quick to apportion blame to the Mother for matters which related significantly to his own behaviour and voluntary actions. In particular I refer to the Father’s own visa difficulties and child support difficulties, his inability to leave Australia because the Child Support Agency had issued a no fly order, and the Department of Immigration’s requirement that he demonstrate that his recently formed relationship with Ms J was a genuine relationship. For each of these matters the Father blamed the Mother as being the source of his difficulty.
The Father was shown to be untruthful to the Department of Immigration. The Father’s lawyers, Bentleys, claimed in correspondence to the Department of Immigration on 16 October 2015 that the Father was the victim of family violence[51]. This correspondence failed to disclose that the Father at that time was subject to the Interim Intervention Order. The Father subsequently failed to advise the Department of Immigration of the First Final Intervention Order, the First Intervention Order Breaches, the Second Final Intervention Order and the Second Intervention Order Breaches.
[51] Exhibit R13.
The Statement of Decision and Reasons of Administrative Appeals Tribunal, when reviewing the decision to cancel the Father’s partner visa (Decision Record), placed weight upon the fact that the Father was paying child support for X[52]. It is evident from the Decision Record that the Administrative Appeals Tribunal had not been informed by the Father that he was not paying child support and was in arrears. Two months prior to the Administrative Appeals Tribunal hearing the Mother deposed that the Father was $4,959.76 in arrears[53].
[52] Exhibit R7, at [36].
[53] Transcript T148:4-149:4.
I found the Father to be dishonest and a wholly unreliable witness. The Father’s evidence was such that where there is a difference or dispute between evidence of the Mother or her witnesses, I prefer the evidence of the Mother or those witnesses.
Ms J’s evidence was significantly aligned with that of the Father’s evidence and was clearly based on the Father’s narrative of events, which I do not accept. Ms J presented with a high degree of hostility towards the Mother. She attributed blame to the Mother for the difficult circumstances that she and the Father have found themselves in. The depth of Ms J’s hostility was such that when giving evidence she was unable to refrain from pulling disparaging faces at Counsel for the Mother and also at the Bench.
It is apparent that Ms J has uncritically accepted the Father’s narrative of events concerning the breakdown of his marriage. Ms J has also significantly lacked insight into the behaviour of the Father and how it may have affected the Mother and X. Ms J trivialised the Intervention Orders that had been made against the Father and also Father’s breaches of those Orders.
Some of Ms J’s evidence was evasive. She relied upon the fact that she is clearly a very busy woman and that sometimes she did not pay attention when the Father spoke to her about issues relating to the Mother. However Ms J’s recollection was clear when it suited her, particularly in relation to evidence in which she apportioned blame to the Mother. Ms J’s financial circumstances do not give me any confidence that there will be any financial stability in the Father’s household for the foreseeable future.
Where the evidence of Ms J and the Mother are in conflict I prefer the evidence of the Mother.
In relation to the evidence of Mr G (Mother’s first husband) and Mr M (Mother’s partner), each of these witnesses presented as witnesses of truth. The questions that the Father asked of each of these witnesses did not undermine the facts to which they had deposed to in their respective affidavits.
The Father made extremely serious allegations against Mr A in his affidavit material and also when being cross-examined by Counsel for the Mother. The Father’s anger towards Mr A was also very evident in his evidence and was exemplified by the accusations made concerning Mr A’s conduct. These accusations were not put to Mr A in cross-examination nor were they supported by any credible evidence tendered by the Father. The Father’s cross-examination of Mr A took six minutes[54]. The questions that the Father asked of Mr A did not undermine the facts to which Mr A had deposed to in his affidavit. I prefer Mr A’s evidence to that of the Father’s evidence.
[54] Transcript (22.8.18) T215:36-218:18 and T221:36-222:4.
The evidence of Ms U (Mother’s sister), Ms Petrie (Mother’s psychologist) and Ms T (transcriber of Magistrates’ Court proceedings) was accepted with the Father not seeking to cross- examine these witnesses.
I was concerned by the contents of the Family Report. It was evident that Mr S, the Family Report writer, had clearly interpreted the affidavit material he had read, his interviews with the parties and observations of X, from the perspective of the Father. At the time the Family Report was written on 14 March 2018 the following orders had been made against the Father: Interim Intervention Order; First Intervention Order Breaches; First Final Intervention Order; Second Intervention Order Breaches and the Second Interim Intervention Order. The language and the tone used in the Family Report with respect to the Mother in relation to the intervention orders and the breaches of those orders was concerning, given the nature of Mr S’s area of expertise and the importance of family violence considerations in parenting matters. I note in particular the following comment in the Family Report:
She was concerned about his twitter comments regarding parental alienation and his Facebook posts that he was missing her and F. [The Mother] ensured he was charged with breaches of the interim Intervention Order as a result[55].
[55] Family Report, at [16].
This comment implies that the Mother acted inappropriately. This comment also ignores the reality that it is the Victoria Police who decide whether a charge should be laid for a breach of an intervention order. It was not within the Mother’s power to “ensure” that the Father was charged with breaches of an intervention order. Mr S conceded that this comment in the Family Report was inappropriate.
The parties’ proposals had changed after being interviewed by Mr S for the Family Report. Therefore the recommendations in the Family Report were outdated. Mr S was cross-examined by both Counsel for the Mother and the Father and he ultimately recommended the Mother’s Proposal.
The Law
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act entitled ‘Children’. The Court in determining this proceeding must consider what orders are in X’s best interests: s.60CA. Section 60CA provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
What this means in individual cases is determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in X’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of X. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in X's best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[56] and U v U[57]).
[56] (1999) 199 CLR 160.
[57] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court in Goode v Goode[58] mandated that the legislative pathway must be followed in all parenting cases[59]. I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
[58] (2006) 36 Fam LR 422.
[59] Ibid., 445, at [81]-[82].
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[60], Mazorski & Albright[61] and McCall & Clark[62].
[60] [2013] FamCA 33.
[61] (2007) 37 FamLR 518.
[62] (2009) FLC 93-405.
In Mazorski & Albright[63]Brown J considered the definition of “meaningful” in the context of “meaningful relationship”. Her Honour said:
I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant[64].
[63] [2007] FamCA 520.
[64] Ibid., at [26].
Her Honour’s conclusions in the preceding paragraph were approved by the Full Family Court in Moose & Moose[65]. In McCall & Clark[66] the Full Family Court again considered the concept of “meaningful relationship”. In that case the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”[67].
[65] (2008) FLC 93-375, at [69] (May, Boland and O’Reilly JJ).
[66] (2009) FLC 93-405. (Bryant CJ, Faulks DCJ and Boland J).
[67] Ibid., at [109].
When considering the benefit to the child of having a meaningful relationship with both of the child’s parents, the Full Family Court in McCall & Clark considered three possible interpretations of s.60CC(2)(a) as follows:
118 It appears to us that there are three possible interpretations of s 60CC(2)(a):
a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents “the presumption approach”); and
c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
In arriving at its conclusions the Full Court accepted as appropriate the interpretation of “meaningful relationship” as set out by Brown J in Mazorski & Albright[68].
[68] [2007] FamCA 520.
Therefore the Court is required pursuant to s.60CC(2)(a) to make appropriate orders to ensure that the Children have a “meaningful relationship” with both parents. In accordance with Brown J’s interpretation of “meaningful relationship” in Mazorski & Albright, the Court will consider orders that facilitate the Children having a relationship with each of the Mother and the Father that is “important”, “of consequence” and “valuable”[69]. This is a qualitative assessment.
[69] Ibid., [26].
X has been in the primary care of the Mother since birth. In the Family Report Mr S reported:
X was observed interacting with her mother, Mr M and her maternal grandparents at her mother’s house. She engaged happily with the significant adults to her who were present and appeared to be on a path to good speech development[70].
[70] Family Report, at [44].
In the Family Report Mr S also reported:
After her mother left, she took about five minutes to settle down with him and his partner, Ms J (sic). They were able to gently reassure her that her mother was returning and gradually distract her with play activities. X responded well to their efforts and it wasn’t long before she was smiling and playing happily with them during the observed period together[71].
[71] Ibid., at [45].
Neither party contended that X did not have a meaningful relationship with either parent or that X would not benefit from continuing to have such a relationship with each parent.
In my opinion both the Mother’s Proposal and the Father’s Proposal would ensure that X would continue to have a meaningful relationship with both of her parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
As set out above under the heading ‘Background’, the First Final Intervention Order and the Second Final Intervention Order have been made for the protection of the Mother and her children against the Respondent. X is named as an affected family member pursuant to the Second Final Intervention Order.
Family violence for the purposes of the Act is defined in s.4AB(1) to mean:
[…] violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes of the family member to be fearful.
Section 4AB(2) of the Act sets out examples of behaviour that may constitute family violence. They include:
[…]
(c) stalking; or
(d) repeated derogatory taunts; or
Section 4AB(3) of the Act provides:
For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
One of the charges which the Father was found guilty of in relation to the Second Intervention Order Breaches was the Father on 21 March 2017 aggressively saying that the Mother was “a fucking psychopath” to Ms V, the second in charge at the Suburb N Childcare Centre. The Father said this whilst holding X in his arms.[72]
[72] Mother’s Affidavit, filed 27.2.18, at [43].
X has therefore been exposed to family violence by the Father. The Mother has persistently been exposed to the Father’s behaviour constituting family violence. Two of the breaches of the Second Intervention Order Breaches were for persistent breaches of the First Final Intervention Order[73].
[73] Exhibit R22.
The Father’s constant narrative has been that the Mother has “weaponised” intervention orders against him[74]. The Father’s modus operandi is to portray the Mother as a selfish and unloving Mother. He takes every opportunity to belittle and berate the Mother and as a result she has suffered from anxiety.[75]
[74] Transcript T21:4-14.
[75] Mother’s Affidavit, filed 27.2.18 at [54] and Affidavit of Ms Petrie, filed 18.4.18.
In relation to the First Intervention Order Breaches the Father deposed:
I did not breach the IVO purposefully. We resided in the same suburb and there was no intention to come in contact with her[76].
The judge did not believe that I was guilty of actual family violence but believed that on the technical point that I had breached the order […][77].
[76] Father’s Affidavit, filed 2.11.16, at [14].
[77] Ibid., at [12].
When cross-examined in relation to the First Intervention Order Breaches the Father said that he regarded the breaches a minor offence[78].
[78] Transcript T72:38-42.
The Father sent the Mother an email on 1 December 2017 stating that he would only correspond with her through her lawyers or through Ms J[79]. In the Family Report Mr S reported:
[The Father] now directs all communication with her through [Ms J]. He explained that he doesn’t want to risk another fine or possible imprisonment[80].
[79] Mother’s Affidavit, filed 27.2.18, at [54], [126], and [127].
[80] Family Report, at [39].
In relation to the Second Intervention Order Breaches which were heard at the Suburb K Magistrates Court on 10 January 2018 the Father told the Magistrate:
[…] I was very frustrated and it was stupid of me to allow that frustration to boil over into those emails[81].
[81] Affidavit of Ms T, filed 18.4.18, Annexure “-2” at [41].
The Father’s Outline of Case specifically sought an order that the Father continue to use Ms J to communicate with the Mother on his behalf, as set out in paragraph 51(k). When the Father was cross-examined in relation to his inability to appropriately communicate directly with the Mother the Father said:
I’m happy to eventually deal directly with [the Mother] again[82].
[82] Transcript T120:21-24.
It must have become apparent to the Father during the first stanza of the Final Hearing that his insistence upon only communicating with the Mother via Ms J, was not likely to work in his favour. During the adjournment of the Final Hearing the Father commenced communicating directly with the Mother again. From 24 May 2018 Father started corresponding directly with the Mother. The Father in this correspondence continued to denigrate the Mother and portray her as an uncaring parent. He transformed issues that should have been easily resolved or that were minor into unnecessary and lengthy correspondence[83].
[83] Mother’s Affidavit, filed 14.8.18.
The most egregious recent behaviour of the Father, was in relation to the Father’s trial affidavit[84] (Trial Affidavit). In the Trial Affidavit, which the Father prepared himself, the Father included the following:
When the parties were together the mother made pornographic videos of herself whilst her son F was in her care and sent them to the father. Including her masturbating, using various sex toys. The [father] has resisted exposing this but the attempted demise of his character has led him to expose this and the footage can be submitted as evidence if required[85].
[84] Father’s Affidavit, filed 9.4.18.
[85] Ibid., at [171].
The contents of this paragraph served no forensic purpose in this proceeding whatsoever. The Father was cross-examined in relation to this paragraph[86]. I determine the Father by including paragraph 171 in his Trial Affidavit intended to humiliate and demean the Mother. During the cross-examination in relation to paragraph 171 the Mother was visibly upset.
[86] Transcript T95:5-99:31
I intend to make orders that are prescriptive and that take into account the Father’s propensity to commit domestic violence. To this end I will generally be preferring the Mother’s Proposal, as it provides well considered and structured orders for the parties in relation to the usual areas required for comprehensive parenting orders.
I will also order that the Father participate in and complete a Men’s Behaviour Change Program within the next 12 months. The Father will need to provide evidence of completion of the program to the Mother within the next 12 months, otherwise X’s time with the Father will be suspended until he has completed the program. I am making this order because the Father has attended other parenting programs in the past however his behaviour has not improved. The Father’s domestic violence has had an impact not only upon the Mother but upon X, F and Mr A. The Father’s lack of insight into his own behaviour has also deeply upset the Mother’s sister Ms U. During the proceeding it was discovered that the Father had posted a photo of himself holding Ms U’s infant son FF on the dating website E-Harmony[87]. In my view it is in X’s best interests for her Father to properly address his problem with domestic violence, his lack of insight into his behaviour and his attitude towards the Mother.
[87] Exhibit R1.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the 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;
At the time of the Family Report interviews X was 3 years old. X was therefore too young to express a view at the time of the interviews.
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 of the child);
Each of the child’s parents;
I refer to the discussion in relation to s.60CC(2)(a).
X has a close relationship with and is primarily attached to the Mother. This attachment is essential for X’s continued emotional development. X is dependent upon the Mother to meet the majority of her needs, including her emotional needs. The Mother also provides for all of X’s significant financial needs.
X continues to develop a relationship with the Father. The relatively limited amounts of time that she has spent with the Father necessarily impact upon her awareness and understanding of him.
Other persons (including any grandparent or other relative of the child of the child);
From the Family Report X has a good relationship with the maternal grandparents and Mr M[88]. The Maternal grandparents assist the Mother with X from time to time. X has a close bond with F, who has been a normal part of her household since birth.
[88] Family Report, at [44].
X is developing a good relationship with Ms J. However X does not spend as much time with Ms J as the Father, as Ms J travels interstate regularly for extended periods for her work.
X is developing an appropriate relationship with her half-sister B, who is very close to her in age. X is also developing a relationship with the paternal grandmother who visited Australia from Country W twice in the twelve month period prior to the Final Hearing.
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
(iii) to communicate with the child; and
Participation in making decisions about major long-term issues in relation to the Child
The Mother’s conduct plainly shows that she has taken every proper step to participate in making decisions about major long-term issues in relation to X. The Mother has attempted to involve the Father, however the inability of the parties to effectively communicate has resulted in the possible compromise X’s health care, particularly in relation to hearing and speech issues. The parties have been unable to decide upon kindergarten and school arrangements for X. At the time of the Family Report the Father was suggesting that X should attend two separate kindergartens, one in Melbourne and one in City L. More recently the Father has raised as significant issues the Mother’s management of X’s influenza injection and her treatment of X’s head lice[89]. The demonstrated tone and content of the Father’s recent correspondence to the Mother continues to suggest that the Mother’s treatment of X is not adequate or otherwise not as good as the Father can provide, thus continuing to undermine the Mother.
[89] Mother’s Affidavit, filed 14.8.18, at [54]-[62] and Annexures “P-14” to “P-16”.
The Father’s endeavours to participate in long-term decisions in relation to X have been counter-productive. The Father’s determination to be involved in long term decision making has been in a controlling manner and has led to conflict rather than sensible discussion between the parents about X’s long-term best interests.
Opportunity to spend time and communicate the child;
The parties separated before X was born. The Mother has always been X’s primary carer. The Mother attempted to encourage the Father to spend time with X in the presence of her parents or family when X was newborn and to establish regular arrangements but the Father did not take up this opportunity as it was not exactly what he wanted. The Father wanted extended periods of unsupervised time. The Father did not see X from late February 2016 until the making of the interim orders on 2 August 2016, as the contact offered by the Mother did not meet with his ideas of what contact should be.
Since the making of the interim orders on 2 August 2016 the Father has not taken full advantage of the time that has been made available to him to spend with X. The Mother has provided spreadsheets which were not challenged by the Father which evidence inconsistent pick-up and delivery times and missed sessions with X mid-week[90]. This has demonstrated that the midweek time is not an appropriate time for the Father to spend time with X.
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;
[90] Exhibit R8.
The Mother has fulfilled her obligations to maintain X. The Father as I find has not fulfilled his obligations to maintain X.
The Father has paid $1,400 towards the Mother’s medical bills and for the birth of X and a total of $1,255 in child support over a period of 2 ½ years. The Father was in arrears of child support in excess of $22,429.
The Mother pays to accommodate, educate, clothe and feed X. The Mother also maintains health insurance and pays for all expenses for medical care, speech therapy and audiology. The Mother pays for child care fees and will pay for the three and four-year-old kindergarten fees.
The Father says he has no capacity to pay child support and blames the Mother for this situation as well as for the poor financial circumstances in his household which required his partner to return to work shortly after the birth of B. There is no evidence that the Father will contribute to the maintenance of X in any significant way in the future.
Realistically while Ms J is so well remunerated it will make economic sense for the Father to remain a stay-at-home-parent. Nevertheless his total failure to pay any form of child support stands against him. Almost one of the first things he did after the birth of X was to cease employment. Winding up his former business in order to be with his child is, at one level of analysis, understandable. But I find this was also interrelated at least in part with a desire to ensure that the Mother got as little as possible. This is well illustrated by his behaviour in relation to the P Bank Debt. I do not accept his self-serving explanations of why he has failed to discharge this relatively minor debt over so long a time. The Father has been well aware, because the Mother’s solicitors have repeatedly told him so, of the importance of this matter to the financial but perhaps more importantly emotional health of the Mother who has been greatly concerned about it. His insouciant failure to do so speaks against him.
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:
Either of his or her parents;
I will consider first the Mother’s proposal. At present X is spending time with the Father pursuant to Orders made on 20 April 2017 and which are noted in the Family Report as being:
[…] alternate weekends from Saturday 9am to Sunday 5pm and alternate Tuesdays from 10.30 am until Wednesday 4 pm.
When cross-examined by Counsel for the Mother Mr S indicated that two nights each alternate fortnight would provide consistency and a “comfort level” for X as she transitioned from three-year old kindergarten to four year old kindergarten and then to primary school[91].
[91] Transcript T243:38-244:21.
The Mother’s Proposal of two consecutive nights each alternate weekend would not significantly impact upon the periods of separation from her Mother.
I note that the Mother’s Proposal does not seem to clearly make provision for the Father to spend time with X during the school holidays after X is in grade 5 (as I understand it). There is a graduated program proposed during the school holidays up to grade 4. The Outline of Case provided for school holidays, as set out in paragraphs 50(e)(vi)(vii).
Turning to consider the Father’s Proposal. When cross-examined by Counsel for the Mother, Mr S opined that a block of three nights was too much for child of X’s age and that the progression from one night to 4 nights was too rapid[92].
[92] Transcript T243:47-244:11.
The Father’s proposal of three nights until X attends for three year old kindergarten and then four nights until X attends school, would significantly disrupt the attachment that X has to the Mother and her household, including F, and would impact upon her development. In my view the Father’s Proposal was largely designed to meet the convenience and needs of the Father to avoid mid-week time which he finds inconvenient. Therefore in my view the Mother’s Proposal will have the least effect on X’s circumstances during term time.
For school holidays the Father proposes that once X turns five the parents share all school holidays equally. In my view this proposal is quite unrealistic and likely to have a significant impact upon X. I prefer the graduated approach to school holidays proposed in the Mother’s Proposal. However once X gets to grade 5, I see no reason on the evidence before me why X cannot share school holidays equally with her Father and his family. I therefore agree with the Father’s Proposal for X from grade 5 onwards. I have made orders ensuring that the parties share the holidays equally.
Any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;
There was no evidence that specifically considered this issue in relation to X’s relationship with F. I nevertheless take note of the fact that F has been a member of X’s household since birth. F lives with his father Mr G in a shared care arrangement with the Mother. X’s weekends away with the Father should be organised in such a manner that they coincide with F’s time spent with Mr G. This will minimise any impact upon the relationship that X has developed with F.
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 Father relocated his residence to City L which is 100 km from the home of the Mother and X in Melbourne. X is required to travel long distances to spend time with the Father. The Father asserts that it is financially difficult for him to travel. There is no evidence of this apart from the fact that the Father is not earning an income and is in substantial arrears to the Child Support Agency.
The Father unrealistically proposes that the Mother drops X off at the D Train Station at 10:00 am on Thursday mornings. This proposal was put for his own personal convenience in managing Ms J’s children AA and BB and their family arrangements. The Father also suggests that the Mother should be travelling to City L to collect X, in circumstances where driving X is the only practical contribution the Father would be making in terms of child support at this time.
The Mother is in full-time employment and is solely responsible for maintenance of X.
In terms of the arrangements for changeovers, I prefer the Mother’s proposal as it takes into account the distance X has to travel, the fact the Mother works full-time and the need to minimise the parties face-to-face contact at changeovers.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
To provide for the needs of the child, including the emotional and intellectual needs;
The Mother has a well-developed capacity to provide for X’s needs. Her capacity to do this is perhaps slightly qualified by the extent of her concerns about the Father and his household but taken overall she has plainly done an excellent job.
The Father’s capacity to provide for X’s needs is more nuanced. The Father clearly loves X however that love has about it a strong possessory quality. Much of the Father’s affidavit materials are critical and/or dismissive of the Mother and this weakness unless controlled is likely to mean that derogatory remarks are made about the Mother in his household. This must not be allowed to happen.
The Father does not have the emotional capacity to provide for the needs of X. He lacks insight into the emotional impact of his conduct and comments upon X and other members of the household. The Father’s conduct and the orders that he has sought during the course of this proceeding do not evidence any understanding of the developmental needs of X.
The Mother has not constructed family violence applications to get back at him as he described to Mr S[93]. The Father demonstrated a high level of general emotional insensitivity and inability to emotionally regulate when being cross-examined. The Father presents as a poor role model for X and is not able to take responsibility for his own actions.
[93] Family Report, at [39].
Any other person (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(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 that the court thinks are relevant;
X is three years old, and about to turn four. She has had some speech and communication issues however she otherwise appears to be reaching the appropriate milestones for her age. There was no evidence of any no specific cultural issues that relate to X.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The Mother has demonstrated an appropriate attitude towards the responsibilities of parenthood including facilitating a relationship between X and the Father, notwithstanding the issues of family violence and ongoing belittling and negative communications from the Father.
The Father has demonstrated an inappropriate attitude towards the responsibilities of parenthood. His view is self-focused and emanates from a clear sense of entitlement rather than an insightful response to X’s needs. The Father’s disputation in correspondence concerning X’s head lice and flu vaccination during the adjournment of the Final Hearing serves as a clear example of the Father’s attitude to parenting X[94]. Counsel for the Mother described this correspondence as:
[…] strong indicators that he can talk the talk when it suits him but he cannot walk the walk[95].
I agree with that submission.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
[94] Mother’s Affidavit, filed 14.8.18, at [44] and Annexure “P-9”; [54]-[61] and Annexures “P-14” to “P-16”.
[95] Transcript (23.8.18) T279:13-14.
I refer to the discussion under the heading ‘Background’ and in relation to s.60CC(2)(b).
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the 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;
the nature of the order;
The Father has had the following intervention orders made against him:
a) The Interim Intervention Order.
b) The First Final Intervention Order.
c) The Second Interim Intervention Order.
d) The Second Final Intervention Order.
e)One 26 June 2018 an Intervention Order was granted by the Suburb K Magistrates Court, on the application of Victoria Police for the protection of Mr A against father. One year Mr A for a period of one year.
The Father has been convicted of the following:
a) The First Intervention Order Breaches.
b) The Second Intervention Order Breaches.
the circumstances in which the order was made;
The circumstances in which the orders referred to in the preceding paragraphs are discussed under the heading ‘Background’.
(iii) any evidence admitted in proceedings for the order;
Evidence of the proceedings in relation to the Second Intervention Order breaches is contained in the Affidavit of Ms T[96].
[96] Affidavit of Ms T, filed 18.4.18, at [6] and Annexure “-2”.
any other relevant matter;
There is no evidence before me that would give me confidence that the Father’s behaviour will change. On the two occasions that the Father had to defend the allegations made against him by the Mother in relation to the First Final Intervention Order and the Second Final Intervention Order, he did not take the opportunity to defend those proceedings or alternatively appeal the orders made.
When the Father made an application for an intervention order against the Mother he was ordered to provide further particulars of his allegations by 18 May 2018. The Mother provided her further and better particulars of the allegations she made but the Father never provided his particulars. Furthermore he did not attend the hearing for the intervention order against the Mother[97].
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of will further proceedings in relation to the child;
[97] Affidavit of the Mother, filed 14.8.18, at [15]-[18] and Annexures “P-1” and “P-2”.
Persistent parental conflict concerning issues relating to parental responsibility for X has fuelled this dispute. The Court will make be making final orders in relation to this matter.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Interstate and International Travel
The Mother’s Proposal as set out in paragraph 64(e) seeks orders permitting the Mother to travel with X within Australia and overseas for a period of up to 3 weeks at a time each year. The Father has previously consented to the Mother travelling overseas with X[98] and Orders were previously made on 9 November 2016 permitting the Mother to travel overseas with X.
[98] Transcript T79:34-36.
In my view the Mother should be permitted to travel overseas should she wish to do so. The Mother is based in Australia and there is nothing to suggest that she would relocate.
The Father’s Proposal seeks an Order that he be permitted to take X overseas for holidays from 2022, when X is in Grade 2.
The Mother opposes the Father travelling internationally with X and the Mother’s Proposal seeks the Orders referred to in paragraphs 50(p) to (r) restraining such travel by the Father.
In my view the Orders sought by the Mother are in X’s best interests for the foreseeable future. The Father holds more than one passport. The Father is now a permanent resident of Australia but he does not hold an Australian citizenship.
In my opinion any proposed overseas travel by the Father should be the subject of a separate application. Much would turn upon for example: the Father’s visa status; his ongoing relationship with his partner in Australia; his proposed travel plans; the funds that he has at the time to offer as a security bond to ensure his return to Australia with X or alternatively to fund the Mother’s legal costs should she have to recover X.
I therefore intend to make the orders sought by the Mother restraining Father from international travel with X.
In relation to the orders sought by the Mother concerning the Father’s travel with X within Australia, I have nominated the age of 13 and not 15 as included in the Mother’s Proposal. I note that the age of 13 was included in the Mother’s Outline of Evidence. In my view by the time X is 13 she will be mature enough to be able to enjoy travel with her Father and his family within Australia.
Special Days
In relation to special days, being the Christmas period, Easter, Mother’s Day, Father’s Day and X’s birthday, neither party addressed me as to why their proposed times should be accepted.
I have accepted the Mother’s Proposal because it is well structured and this removes the requirement for any negotiation between the parties in circumstances where the Father has been committing domestic violence.
Communication Between the Parents
The Mother’s Proposal suggests that the parties communicate by text, email and also via the app MyMob. The app MyMob has recently been discontinued. There are a number of parenting apps available and I do not seek to constrain the parents in the selection of a parenting app that is chosen for communicating with each other. I have therefore left it for the Mother to select a parenting app.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In the Mother’s Proposal the Mother seeks sole parental responsibility. In this case the presumption of equal shared parental responsibility does not apply because the Father has engaged and continues to engage in conduct amounting to family violence as defined in s.4AB of the Act (see paragraphs 113 to 115). The Father has been found guilty of 11 separate breaches of intervention orders, including two which were determined as being persistent breaches.
During the course of the hearing the Father neither acknowledged that he had participated in family violence or demonstrated any contrition or the ability to take any responsibility for his actions.
The Father’s evidence and his threat in his Trial Affidavit to provide a sex tape of the Mother to the Court is clear evidence of the Father’s failure to change his behaviour, even when he is before the Court.
In my view given the above matters, it is not in X’s best interests for the parents to share parental responsibility equally: s.60CC.
Further, there is a complete lack of trust between the parents. This is clear from:
a)The Father’s attitude to minor matters such as head lice and influenza injections[99].
b)The parties’ inability to agree upon a kindergarten for X. In the first stanza of this proceeding the Father actually suggested X should go to two kindergartens, one in Melbourne and one in City L[100].
c)The Father abrogated responsibility for communicating with the Mother by having Ms J communicate with the Mother. The Father did not alter this position until after he was cross-examined at length in relation to this matter. The communication from the Father to the Mother during the adjournment of the Final Hearing continued to be inappropriate.
d)There is no evidence that the Father believes that there is any issue with his communication style.
e)The Father’s style of communication is such that by his own admission he is likely to continue to breach the intervention order. By his own admission he becomes frustrated with the Mother and “bubbles over”. It is for this reason that he put a third party in place to communicate on his behalf so that he did not suffer a further breach of the intervention order.
[99] Affidavit of the Mother, filed 14.8.18, at [15]-[18] and Annexures “P-1” and “P-2”.
[100] Family Report, at [54].
Taking into account the matters discussed in paragraphs 188 to 194, I am satisfied that pursuant to s.61DA(4) of the Act, it is not X’s best interests for her parents to have equal shared parental responsibility for her. Orders will be made for the Mother to have sole parental responsibility for X.
As I have found that there is no equal shared parental responsibility pursuant to s.61DA of the Act, there is no requirement for mandatory consideration of equal time or significant and substantial time pursuant to s.65DAA of the Act. In any event, given that the Mother lives in Suburb EE, a suburb of Melbourne and the Father lives in City L, a distance of some 100 km apart, equal time or significant and substantial time would not be reasonably practicable.
As Orders will be made for the Mother to have sole parental responsibility for X, I will also make the Orders sought by the Mother in relation to X’s passport. The Mother presently has the custody of X’s passport. The Father is to be restrained from travelling internationally with X. The Mother may apply for a further passport for X when required without the written authority of the Father. The Mother is to ensure that Father is to have a copy of X’s current passport. Orders will be made accordingly.
Consideration and Conclusion
I have followed the legislative pathway as required by Goode v Goode[101]. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. For the reasons set out herein, I determine that the Mother’s Proposal is in general in the best interests of X as required by s.60CA of the Act and amended orders are made accordingly.
[101] (2006) 36 Fam LR 422, 455, at [81]-[82].
The time suggested in the Mother’s Proposal permits X to have a meaningful relationship with the Father whilst still providing age-appropriate stability in connection with her primary caregiver. The time proposed by the Mother is consistent with the oral evidence of Mr S, the author of the Family Report.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Date: 16 October 2019
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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