Correa & Maestri (No 2) - [2023] FedCFamC2F 507

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Correa & Maestri (No 2) [2023] FedCFamC2F 507

File number: ADC 3300 of 2018

Judgment of: JUDGE BROWN

Date of judgment: 12 May 2023

Catchwords: FAMILY LAW – Parenting – final hearing – high conflict – parenting arrangements for child aged 7 – where the parties have no capacity to co-parent – parties have diverse cultural background – where final orders were made by consent in 2018 – parties each seek primary care of the child – whether a change in arrangement would be in the child’s best interests – assessment of risk – matters to be considered – overseas travel – conferral of parental responsibility

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 68LA

Evidence Act1995 (Cth) s 140

Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)

Cases cited:
Astor & Astor [2007] FamCA 355

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Bartel & Schmucker (No 3) [2012] FamCA 1094

Bright v Bright (1995) FLC 92-570

Deiter & Deiter [2011] FamCAFC 82

Correa & Maestri [2022] FedCFamC2F 609

Eaby & Speelman (2015) FamCAFC 104

Fox v Percy (2003) 214 CLR 118

Gin & Hing [2010] FamCA 617

Goode & Goode [2006] FamCA 1346

H v W (1995) 18 Fam LR 788

Jurchenko & Foster (2014) 51 Fam LR 588

M & M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518

MRR v GR (2010) 240 CLR 461

N & S and the Separate Representative (1996) FLC 92-655

R & R: Children’s Wishes (2000) 25 Fam LR 712

Russell & Russell & Anor [2009] FamCA 28

Slater & Light [2013] FamCAFC 4

Taylor & Barker (2007) FLC 93-345

Zawai & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 433

Date of last submissions: 23 February 2023

Date of hearing: 8, 9, 10 August 2022, 17, 18 October 2022 & 1 February 2023

Place: Adelaide

Counsel for the Applicant: Ms Cocks

Solicitor for the Applicant: D’Angelo Lawyers

Counsel for the Respondent: Mr McLeod

Solicitor for the Respondent: Ryder Family Law

Counsel for the Independent Children's Lawyer: Ms Boyle

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 3300 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CORREA

Applicant

AND:
MS MAESTRI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

12 May 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The parties shall have equal shared parental responsibility for the child X born in 2015 (‘X’).
3.X shall live with each of the parties as follows:
(a)With the mother from the date of these orders until the conclusion of school on 19 May 2023;
(b)Commencing 19 May 2023, on a week about basis with the father from the conclusion of school Friday (or 3:00pm if a non-school day) until the following Friday at the conclusion of school (or 3:00pm if a non-school day) and to continue each alternate week thereafter;
(c)Commencing 26 May 2023 on a week about basis with the mother from the conclusion of school Friday (or 3:00pm if a non-school day) until the following Friday at the conclusion of school (or 3:00pm if a non-school day) and to continue each alternate week thereafter.

4.X shall spend time with each of the parties during the following special occasions:

Christmas
(a)With the father for Christmas in 2023 and each odd year thereafter from 3:00pm Christmas Day until 3:00pm Boxing Day;
(b)With the mother for Christmas in 2023 and each odd year thereafter from 3:00pm Christmas Eve until 3:00pm Christmas Day;
(c)With the father for Christmas in 2024 and each even year thereafter from 3:00pm Christmas Eve until 3:00pm Christmas Day;
(d)With the mother for Christmas in 2024 and each even year thereafter from 3:00pm Christmas Day until 3:00pm Boxing Day;

Easter
(a)With the father for Easter in 2024 and each even year thereafter from 3:00pm on Maundy Thursday until 3:00pm on Easter Saturday;
(b)With the mother for Easter in 2024 and each even year thereafter from 3:00pm on Easter Saturday until 3:00pm on Easter Monday;
(c)With the mother for Easter in 2025 and each odd year thereafter from 3:00pm on Maundy Thursday until 9:00am on Easter Sunday;
(d)With the father for Easter in 2025 and each odd year thereafter from 9:00am on Easter Sunday until 3:00pm on Easter Monday;

Father’s Day
(e)If X is not ordinarily in the father’s care on Father’s Day, he is to spend time with the father from the conclusion of school Friday (or 3:00pm if a non-school day) until 5:00pm on Father’s Day;

Mother’s Day
(f)If X is not ordinarily in the mother’s care on Mother’s Day, he is to spend time with the mother from the conclusion of school Friday (or 3:00pm if a non-school day) until 5:00pm on Mother’s Day;

Eid al-Fitr and Eid al-Adha
(g)If X is not ordinarily in the father’s care on either or both of Eid al-Fitr or Eid al-Adha then he is to spend time with the father from the conclusion of school (or 3:00pm if a non-school day) on either or both of the day prior to the first day of Eid al-Fitr and/or Eid al-Adha (as appropriate) until the conclusion of school (or 3:00pm if a non-school day) on the first day of Eid al-Fitr and/or Eid al-Adha (as appropriate).

5.Each party shall be at liberty to communicate with X if he is not otherwise in their care each Wednesday at 6:00pm with the party who is not caring for X to telephone or FaceTime call the other parties’ telephone.
6.The parties shall communicate with each other with respect to the care arrangements and care, welfare and development of X by SMS text message or email.
7.For the purposes of paragraphs 5 & 6 herein, in the event that either party changes their contact mobile telephone number or email address they shall advise the other party in writing of such change within 48 hours of such change occurring.

Travel
8.Each of the parties shall be at liberty to travel with X as follows:
(a)Intrastate during their usual time with X or at such other times as may be agreed between the parties;
(b)Interstate during their usual time with X or at such other times as may be agreed between the parties provided that each party shall, no less than seven (7) days prior to their intended travel, provide the other with notice of the intended travel dates, destination, and mode of transport to and from the travel destination;
(c)Overseas subject to the below conditions:
(i)During their usual time with X or at such other times as may be agreed between the parties to any destination designated by as a Level 1 – Exercise Normal Safety Precautions or Level 2 – Exercise a High Degree of Caution PROVIDED THAT each party shall, no less than 45 days prior to their intended travel, provide the other party the following:
A.Notice of their intended travel dates;
B.Destination;
C.Mode of transport to and from the travel destination;
D.Details of the accommodation/s; and
E.Contact details whist overseas.

(ii)Subject to the same conditions as the above, in the absence of agreement otherwise by the parties, each party may travel overseas with X for a period of up to three weeks no more than once per annum provided that such party shall afford the other party make up time as agreed and in default of agreement for the same period of time as the travelling parent’s additional time from 9:00am on the day immediately following X’s return to Australia

9.In the event the father shall be traveling during his usual time with X, he provide the mother with no less than four (4) weeks’ notice of the dates of his intended travel and X is to be cared for by the mother.

Education
10.The parties shall jointly enrol X in G School to commence at the beginning of Term 1, 2024 and thereafter shall jointly enrol X at H High School for his secondary education, unless otherwise agreed between the parties in writing.
11.Each of the parties shall facilitate X’s attendance at any commitments for the extra-curricular activity the other party has enrolled X in.
12.All handovers that do not take place at X’s school take place at or outside OSHC at X’s school or in the event that there is no OSHC service take place at McDonald’s Suburb J.
13.The parties shall keep the other informed of any major medical issues involving X, particularly of any medical attention or treatment received by him, any medication requirements or medical appointments, and this notification shall be as immediate as practicable in the event of a medical emergency.
14.Both parties shall keep the other informed of the names and contact details of all treating medical practitioners for X and each party shall be at liberty to contact the said medical practitioner/s to obtain all usual information that is provided to parents within the discretion of the said medical practitioner.
15.Each party shall be at liberty to attend at parent teacher interviews and all other events to which parents are ordinarily entitled to access at their own expense.
16.That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s family or friends in the presence or hearing of X.
17.The appointment of the Independent Children’s Lawyer is discharged.
18.All extant applications are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Correa & Maestri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

Mr Correa and Ms Maestri are the parents of X, who was born in 2015. The parties have been engaged in a bitter dispute, with one another, regarding future parenting arrangements for X, over many years. These reasons are directed towards the resolution of that dispute through court order.
Essentially, each asserts that their parenting relationship is so conflicted and the other’s level of insight into what is important, so far as being a parent is concerned, is so compromised, that, in order to secure X’s best interests, it is essential that he lives predominately with one parent rather than the other.
This is notwithstanding the fact that, since 29 November 2018, X has been parented, in essentially an equal time regime. On this date, his parents apparently agreed to such a regime being implemented, following an earlier agreement which saw the father being extensively involved with providing care for the child, including in an overnight setting, from August of 2016, when X was around one year old.
As a consequence, notwithstanding their mutual agreement that their relationship with one another, as parents, can only be described as being disastrous, it must be the case that X has a strong degree of relationship with both his parents. It is the strength of X’s relationship with each of his parents and the undoubted fact that each can bring much to their care of him, which provides the central dilemma underlying the case.
In this context, the court commissioned a Family Consultant, Ms F, to complete a Family Report to advise as to the best way forward. The report was provided on 7 November 2021. Ms F has subsequently provided oral evidence to the court, in which she essentially supports a shared time regime continuing for X, notwithstanding the challenges it would represent for both X himself and his parents.
Perhaps, counter-intuitively, given her assessment that the parenting relationship between the parties was competitive and conflicted, Ms F’s considered opinion was that there were more positives than negatives arising for X, from him interacting equally with each of his parents, as a consequence of the different, but complimentary attributes that each party could bring to his parenting.
Ms F considered that Ms Maestri provided a more emotionally warm relationship with the child; whilst Mr Correa was the more focussed and directed parent, particularly in an academic context. Up to this stage, X himself was described as a delightful little boy, who was generally happy other than he was acutely aware of the perennial conflict between his parents.
As such, Ms F considered that if the parties were only able to communicate, X would have the best of both worlds – a very motivated and directed father, who had his interests at heart, and a very loving and warm and emotionally connected mother. Ms F assessed the parties’ strengths in parenting as being complementary. However, sadly in my view, Ms F deposed that it was such a pity that they [the parties] couldn’t acknowledge the strengths that the other had in order to co-parent.
In these circumstances, in her report, Ms F recommended a somewhat complex regime of X moving between his parents’ respective homes on an alternating two week day regime and an alternating Friday to Sunday weekend, posited on a fortnightly basis. The aim being to minimise what Ms F described as X’s separation anxiety.
In the Family Report, Ms F describes this regime as follows:
That consideration be given to changing the current shared care arrangements to reduce the time that [X] is away from either parent, such as [X] living with his mother every Monday and Tuesday night, and [X] living with his father every Wednesday and Thursday night, and with each of his parent’s alternate weekends.[1]
[1] See Family Report dated 7 November 2021 at [80].
Such a proposal is unacceptable to each of the parties. The father seeks that he be conferred with sole parental responsibility for X and the child live with him and, during the school year, spend time with the mother on alternate weekends from after school on Friday until the commencement of school the following Monday; and overnight in the other week from the end of school Monday until the commencement of school the following Tuesday. He proposes an equal division of school holidays.[2]
[2] See Application filed 26 March 2020.
So far as special occasions are concerned, the father proposes an alternation of Easter and Christmas and his birthday but spend time with his father on Father’s Day and the days of significant Islamic festivals such as Eid al-Fitr and Eid al-Adha each year.
For her part, the mother is concerned at the prospect of X being separated from her for periods in excess of six days, given the separation issues raised by Ms F. It is also her position that the parties currently have no facility to agree on any major long-term issue to do with X’s care, particularly in the context of medical and educational issues. In these circumstances, she too wishes to be conferred with sole parental responsibility for X.
She proposes a similar regime for the child to spend time with the father during the school year, as he proposed for her, namely on alternate weekends from the conclusion of school Friday until the start of school the following Monday and in the other weekend from 9:00am Sunday until the start of school the following Monday. She proposes a regular Wednesday evening FaceTime catch up.
This regime would continue until X is nine years of age, at which stage the regime would be for a longer block of time from the conclusion of school on alternate Fridays until the commencement of school the following Tuesday. The mother proposes an arrangement for school holidays which would see the child spending one week, during each short school holiday and for two separate periods of one week each, at the end of year school holiday, with the father.[3]
[3] See the mother’s Outline of Case document filed 7 August 2022.
There are two other major parenting controversies arising in the case, which concern whether X should be permitted to travel overseas with his father and to which countries such travel should be authorised and what conditions should attach; and which school the child should attend. The mother’s preference is for X to continue to attend at H School, where he commenced in 2021 and which is close to each party’s home.
The father’s preference is for the G School, which offers a Language D bilingual and binational program from Reception to Year 10. The father is a Language D speaker and converses with X in Language D, at his home. The school is to the Region M of Adelaide, whilst Suburb N is to the Region O.
From the mother’s perspective, a change of school would be greatly disruptive for X and would obviously require more onerous travel commitments for him, which would not entail any great benefits given her view that X will have the best possible exposure to the Language D from his father.
The parties themselves are not the only parties to these proceedings. On 20 April 2020 it was ordered that X be represented in the proceedings independently of his parents. The Independent Children’s Lawyer (ICL) is Robert Seymour, an experienced family law solicitor employed by the Legal Services Commission of South Australia. Mr Seymour had briefed a barrister, Ms Boyle to appear on his behalf in the final hearing proceedings before the court.
Pursuant to section 68LA of the Family Law Act 1975 (Cth),[4] both Mr Seymour and Ms Boyle are under a statutory duty to examine all relevant evidence and then advocate the outcome which they believe will best serve the interests of the child, whom they represent.
[4] Hereinafter referred to as “the Act”.
In her final submissions to the court, Ms Boyle does not support Ms F’s proposal believing it is unduly complex, involving as it does multiple hand-overs each week. She was, however, impressed with other aspects of Ms F’s evidence, particularly the benefits X derives from interacting with each of his parents on an equal basis.
Ms Boyle is alive to the communication difficulties existing between the parties. However, she does not believe that it would necessarily minimise the prospect of conflict continuing to occur between them if one is conferred with sole parental authority. From her perspective the evidence indicates that each parent is and will remain vitally interested in every aspect of X’s future care. As a consequence, she proposes the conferral of equal shared parental responsibility, for X, on each parent.
More controversially, Ms Boyle advocates X living week about with each of his parents, during both the school terms and school holidays, with specific arrangements being carved out for special occasions. She also has a proposal for X to travel overseas, subject to his age and the level of Australian Government Travel Advice specific to the country to which travel is proposed. Ms Boyle favours the father’s choice of schools for X.
The parties and Ms F were the only witnesses who gave evidence in the final hearing, which took place over approximately six days. Necessarily, the case was focussed on the shared perception of each parent that the other was a compromised or lesser parent than he or she. As a consequence, the emphasis of each party was on the failings of the other, particularly in respect of deficits in communication and episodes of past behaviour.

As will be detailed, in due course, there are many such incidents, which stretch back to before X was born. Given the way the case was conducted, it will be necessary for me to adjudicate in respect of these issues. In my view, this presents a danger, not only for the parties but more particularly for X himself, for the following reasons.
Firstly and most obviously, such a process cannot be conducive to encouraging any form of cooperative parenting to evolve between Mr Correa and Ms Maestri. The evidence indicates that X is acutely aware of the conflict between his parents and, as Ms F has deposed, as he grows older, he can only become more aware of it, which has a high probability of being detrimental to his emotional development and possibly his academic progress and general level of happiness.
In a case like the present one, which involves two parents who have had a significant level of involvement in the care of their child and who clearly love him, it must be the case that they will be involved with one another, to some degree or other, for the foreseeable future – certainly until X is a young adult. As such, the adversarial nature of the proceedings required to resolve the issues raised by them is not likely to be helpful to either of them in maintaining either their individual sense of worth or a focus on what is best for X.
Secondly and most importantly, the focus in this case is on X’s best interests alone and not the rights and interests of his parents. Given the manner in which the case has been conducted – on the negative attributes and past behaviour of each parent, particularly the mother – in my view, there is a risk that this fundamental aspect of the case will be minimised or even over-looked.
I must remember that X is not to be awarded, like a prize, to the parent I assess to have behaved better throughout the parties’ turbulent and difficult relationship, after I have passed judgment on how they have engaged with one another, over time. Rather, I must consider what is the best outcome for X, in the case, given the idiosyncratic features of his situation given the nature of his relationship with each of his parents.
At the same time, I must be alive to the obvious and endemic problems in the parties’ co-parenting relationship, which it would be naïve to think are going to go away any time soon. Regrettably, empathetic, respectful and cooperative parenting and communication cannot be brought about by judicial fiat. It can only come about through the constructive and thoughtful engagement of the parties themselves.
In these circumstances, it seems improbable that the case can provide a perfect outcome for X. Rather, the court must attempt to reach the least detrimental outcome for him, which the parties themselves will have to make work, for X, as best they can.
Sadly, given the conflict and controversy between them, it seems unlikely that there can be an outcome, in the case, which is satisfactory to both parents. As such, there is a real and palpable risk that the conflict between them will become more entrenched, which will not be helpful to X.
Again, I must remain focussed on what is best for X. However, as the Full Court of the Family Court has remarked, the simple fact that a judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests. Rather,
[W]hat is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[5]
[5] See Zawaii & Rayne [2016] FamCAFC 90.
BACKGROUND
As their names suggests, the parties have very different cultural backgrounds and origins. The father was born in City B, Country C in 1968. However, he moved to Country D, with his family, when he was a child. He is polylingual – speaking Language D; Language R; the languages of Country C; as well as English. His elderly mother continues to live in City B, as do two of his brothers. I understand it, another brother and other members of his family live in Country D.
It is for the obvious reasons of his background and family connections that issues of Language D education, for X, and overseas travel, particularly to Country D and City B, are so important to Mr Correa.
Ms Maestri has travelled to Country S but not to Country C. She is apprehensive about the prospect of X travelling to City B in particular although, ostensibly at least, she acknowledges the importance of X having access to his cultural origins, at their source. She also accepts that X is likely to be extraordinarily excited about the prospect of travelling overseas.
The mother was born in Adelaide in 1974. Her background is Country T. She has worked as a hospitality worker and in the entertainment industry. She lives in rented accommodation in Suburb U, a suburb of Adelaide. It is her perception that the father looks down on her because of her lack of tertiary qualifications.
The father first came to Australia, in 2006, on a scholarship to complete further studies . He is now a professional at the Employer E.[6] He is an Australian citizen, although he has travelled overseas regularly, most often to Country D, which he visits leading parties of his students on educational tours.
[6] Mr Correa deposed in an affidavit prepared by himself in December 2019 that he is a professional.
X is the parties’ only child. There is no doubt that he is much loved and cherished by each of his parents, who bring different attributes and qualities to his care, both by dint of their culture and temperament.
In addition, given the diversity in their experience and personal orientation, the parties necessarily have different aspirations, for X and approach his parenting in different ways. As Ms F remarked, in her evidence, this is not necessarily a negative for X but, in the present matter, has made co-parenting challenging, as one might be expected. Apart from X, it appears the parties have little else in common.
The parties met, in Adelaide, in 2011. They had an intermittent relationship, until shortly before X’s birth, which was marked by each of them travelling separately overseas, from time to time. As a consequence, they have no experience of jointly parenting X, whilst living in the same household.
In 2015, some weeks after X’s birth, Mr Correa purchased a house in Suburb U, less than a kilometre from where the mother lives. As a consequence, at an early stage, he signalled to Ms Maestri his intention to be an active and involved parent in X’s life.
It is clear that Ms Maestri was X’s primary provider of physical care from the time of his birth but controversies soon arose, between the parties, as to the degree of interaction, which he should have with his father, particularly in the context of overnight time, when he was in his early infancy.
This controversy has continued until the present time, whilst waxing and waning in its intensity. From time to time, the parties have reached levels of accommodation with one another but this has never lasted. At the present time, it is my impression that the acrimony between the parties is at a particularly acute level.
The father’s stance, in the case to date, is that throughout the parties’ casual relationship with one another, he was constantly troubled by what he regarded as the mother’s substance and alcohol abuse issues and her unstable mental health. It is the case that the mother’s compromised mental health and alcohol dependence represents a risk to the maintenance of X’s safety and emotional health and justifies a change in care arrangements. He further alleges that the mother has subjected X to physical abuse.
As a consequence of his concerns, the father’s solicitors have subpoenaed the mother’s medical records, over many years, and have subjected them to a high degree of scrutiny. Much time, during the case, was spent on the mother being cross-examined about what her doctors and other health professionals had written about her.
Ms Maestri regards these interventions to be insensitive and highly intrusive into her personal affairs. She concedes that she has had psychological ill-health and alcohol problems in the past, but contends that these issues are long resolved and Mr Correa’s recourse to them is an attempt to undermine and humiliate her.
In addition, Mr Correa has characterised Ms Maestri as being a highly manipulative and dishonest person, who fell pregnant, without reference or discussion with him, as a ploy to get him to marry her. Necessarily, he considers her an emotionally immature person, who does not share his educational attainments. In these circumstances, he contends that he is the axiomatically superior parent for X.
The father required X’s paternity to be scientifically confirmed. Once this had occurred, it is the effect of his evidence that he has done everything possible to play as active a role, as possible, in X’s life and has demonstrated, in difficult circumstances, that he is a competent and caring parent, frequently in the face of the mother’s active and passive opposition and undermining of his parenting role.
The mother, whilst accepting Mr Correa loves X, and X loves his father, characterises Mr Correa as a bully, who is hyper-critical and dismissive of her and her role as the main provider of emotional sustenance to X. As a consequence, it is her case that she finds it close to impossible to communicate effectively with Mr Correa.
It was against this challenging and unconducive setting for anything conducive to shared care that Mr Correa first commenced proceedings, in this court, on 10 August of 2018. Proceedings have been on foot, more or less continuously, in the period since, albeit the parties have, ostensibly at least, been able to reach agreement as to future arrangements for X’s care.
In his application of August 2018, Mr Correa deposed that he had been spending three overnight periods with the child each week and had been regularly involved with spending time with him since shortly after his birth, starting with overnights when X was one year of age. He sought the formal confirmation of this arrangement.
In her response, Ms Maestri confirmed that X had spent extended periods of overnight time, in his father’s care, during 2017/18 but her experience was that this had been unsettling for the child. She also deposed that she had felt bullied and threatened by what she regarded as an inappropriate demand from the father that 50/50 care for X commence when he turned two years of age. In her responsive affidavit, she described X as being still a very young child [who] does not appear to have adjusted very well to an increase in his time with the father.[7]
[7] See mother’s affidavit filed 21 September 2018 at [59].
In these circumstances, she proposed an overnight period consisting of two nights each week, which would increase in mid-2019 and further increase in mid-2020. For his part, Mr Correa had proposed a split week – 4/3 days starting immediately, which would transform to week about when X started primary school.
At an early stage, the parties were referred to a child dispute resolution conference, under the aegis of Ms F, which was held in mid-November of 2018. Ms F provided a memorandum to the court which reported as follows:
The parties had very different narratives about the nature of their relationship. However both acknowledged that [X] is a happy little boy who loves spending time with each of them, which suggests both have been able to protect him from their conflicted relationship and current proceedings.
…..
Both acknowledge that [X], who has never experienced his parents living together, as a couple, is a happy little boy who is oblivious, up to now, of any discord between his parents.[8]
[8] See Child Dispute Conference Memorandum to Court dated 15 November 2018.
In this context, Ms F described the parties as being mutually child focussed and to be clearly wanting the best for X. As such, they wished to resolve the case arising between them by agreement. When the matter returned to court a few days later, the parties were able to reach a final consent minute, which resulted in the conferral of equal shared parental responsibility and saw the instigation of a fortnightly regime which saw X living with his parents on 6/8 night regime with Ms Maestri having the majority of nights.
This regime has continued more or less until the present time, with the weekly time also split from Saturday to Tuesday in one week; and from Saturday to Monday in the other week. As previously indicated, Ms F’s view of this regime was that it was clumsy in that it involved periods of up to six days of separation from a parent.[9]
[9] See Family Report dated 7 November 2021 at [77].
Arrangements were also agreed for special occasions; a communication book was inaugurated; interstate travel was approved; the issue of overseas travel deferred to mediation, when X reached school age; a regime for exchange of school information was inaugurated; and the parties agreed not to denigrate one another or physically disciplining X.
With the benefit of hindsight it seem to be the case that the parties committed to the regime with the misplaced hope that it work out for the best and their parenting relationship would improve. This has manifestly not been the case.
From the mother’s perspective, no doubt she hoped Mr Correa would back off from his demands of her and she could continue to be the parent who was more responsible for the provision of emotional sustenance for X, given her history of having been his primary carer from birth.
Whilst, the father hoped that the orders would lead to the mother being more respectful of what he characterised as his entitlement to be involved equally in the provision of care to X and more accepting of what he had to offer X, particularly in terms of the child’s intellectual development and potential to become bilingual in Language D, like his father.
Regrettably, any prospect that this family could evolve in an organic and consensual fashion to a stage at which appropriate arrangements for X’s care would devolve naturally between them proved illusory. It is my finding that there is just too much mistrust and suspicion and now too great an absence of trust and respect for this to ever occur in the medium to longer term, unless the parties are able to change the trajectory of their attitude towards one another.
In her report, Ms F sagely put the potential risks for X in the following terms:
Unless both parties shift from their polarised views of each other and become genuinely committed to mutually supporting, fostering and facilitating [X]’s relationship with the other parent, (which will require improved communication between them, focussed on ensuring consistent care routines across the households, including night time toileting practices), then [X]’s current transitional distress may well develop into maladaptive behaviours that can only be viewed as detrimental to his emotional wellbeing in the long term.[10]
[10] See Family Report dated 7 November 2021 at [76].
In recent times, it is my perception that the tensions between the parties have become more rather than less acute. This has set the tone of the current proceedings. Now each party, particularly Mr Correa, is intent on mustering as much negative evidence about the other as possible, in order to provide the knockout blow, which will disqualify the other from having any significant level of involvement with X.
Ms Maestri has responded to the allegations against her with her own escalating allegations. As a consequence, the hostilities between the parties has become ever more intense. This has created the febrile energy of the case. The difficulty for the court being, as I will expand upon in due course, is that there is a dearth of independent evidence to support either of their allegations against the other.
In these circumstances, the risk is that the court will be diverted from its role of determining what is best for X, but will focus on resolving the myriad of controversies raised by the parties, which may be impossible given the evidence available and its natural rectitude to make significant findings of fact on the basis of who presents better in the witness box.
In this challenging and conflicted context, each party has made allegations that the other had physically assaulted X, which resulted in reports being made to the Department for Child Protection. The father alleges that he has observed bruising, swellings and scratches on X’s back and right side, on two separate occasions in March of 2019 and October of 2019.
In respect of the second incident, he alleges that X disclosed to him that he had been hit and pushed by mummy which caused him to fall on mummy’s door. The father has produced records from the DCP, which have characterised the various notifications received by the Department in respect of X as not warranting formal investigation. I was provided with colour photocopies of photographs taken of the injuries in question.[11]
[11] See Exhibit F.
The current proceedings were commenced on 26 March 2020 by Mr Correa and followed three earlier contravention applications instituted by him. The allegations of contravention included the following:
·The child had not been provided to the father;
·The child had not been taken to Suburb N Childcare;
·The mother had sent the father a text message which included the phrase what a wanker!!;
·The mother had made an appointment for the child to attend a psychologist without his agreement;
·The mother had attended a school tour, with X, without notifying him;
·The mother had enrolled the child into a child care centre with consultation with him;
·The mother had told the child she did not like the colour of the father’s skin and told X not to like his father;
·The mother had physically disciplined the child; and
·The mother denigrated the father to the child.
As a corollary of the various contravention applications, on 3 October 2019, the father applied for an interim intervention order, pursuant to the provisions of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), against the mother, which was granted by the Suburb W Magistrates’ Court, on 14 October 2019, in the mother’s absence. It would seem to be the case that the final hearing of this application has been adjourned until the outcome of the current proceedings is known.[12]
[12] See father’s affidavit filed 12 December 2019 at [12].
In an attempt to see if the earlier positivity identified by Ms F in November 2018 could be re-captured, the parties were referred to a further Child Dispute Conference, on 24 January 2020, with Family Consultant Owens, who reported as follows:
While the parents had [earlier] presented as child-focussed and appeared willing to resolve their issues, this is clearly not the case now, and there was no indication that the parties could successfully co-parent due to their animosity towards and/or abuse of each other.[13]
[13] See Child Dispute Conference Memorandum dated 24 January 2020 at [39].
In early February of 2020, the father was acting on his own behalf for a period of time in respect to the three contravention applications. He indicated his desire to change the living arrangements for X, primarily as a consequence of his allegation that the mother had assaulted the child in July of 2018 (prior to the consent orders of November 2018) and more significantly in March and October of 2019. As a consequence, he was directed to file an application, directed to this end, which he did on 23 March 2020.

The material filed by the father, around this time, indicates an extremely negative view of the mother. He was critical that Ms Maestri suffered from financial incapacity and was reliant on the provision of child support by him to support X’s needs.
He portrayed X as a child who was struggling emotionally with his mother’s inconsistent care and who was constantly sick. He alleged that X was at serious risk of suffering emotional and psychological harm as a result of his mother’s manipulation. Given these factors, particularly the alleged assault of October 2019, he sought orders that X come into his sole care and spend brief professionally supervised time with his mother.
In response to the Notice of Risk document received by it, the Department for Child Protection informed the court that it did not intend to investigate the allegations formally assessing them as Notifier Concern, which means that whilst the relevant notifier was concerned for the safety or welfare of the relevant child, the matters raised did not fulfil the department’s criteria for a child protection response.
The mother responded to the father’s application in mid-April of 2020. It was her position that she perceived herself to have been subject to constant campaign of bullying and disparagement by the father, whom she characterised as being antagonistic and uncooperative towards her. She described the father as having a supercilious attitude towards her because of his greater professional attainments and being misogynistic. She feared that X would be influenced to have the same attitudes. She asserted that she had agreed to the November 2018 orders in the hope that her agreement would stop the constant abuse and belittling of me [and enable her] to achieve some level of peace of normality in [her] life.[14]
[14] See affidavit of the mother filed 19 April 2020 at [15].
The mother also filed an affidavit in which she denied the gravamen of the various contravention allegations made against her. Essentially, it is her position that it was the father who was emotionally insensitive to X’s needs not her, escalating his distress at handovers. She asserted that the child has complained to her that his father plays too roughly with him, particularly when engaged in sports.
Ms Maestri conceded that X had sustained a large bruise, which she discovered when she bathed him on 16 October 2019. She also described what appeared to be a bite mark. In this context, she deposed that she questioned the child as to whether he had been injured at child care, which he denied. She then asked X if the injury had happened whilst playing sport with his father, at which point the child became distressed and said maybe, I don’t know. The mother indicates that she made a notification to DCP about the issue. She did not raise the incident directly with the father.
It is the mother’s perspective that she has been subject to constant psychological abuse from the father, who threatens and belittles her. She asserts that it is he rather than she who refuses to communicate constructively. She categorised the father’s contravention applications as being either false or petty. She asserted that she had offered Mr Correa make-up time when X had not been able to spend time with his father because of unforeseen exigencies. She denied ever having made any racist comments in respect of any attribute relating to the father.
I declined to make any changes to the agreed parenting arrangements for X. However, it was in the context of the increasingly polarised positions of the parties that the order for X’s independent representation was made on 20 April 2020. On 28 August 2020, the parties agreed the X would attend Suburb N Primary School in 2021. The Family Report was ordered in May of 2021 and the case fixed for final hearing in February 2022.
It is Ms Maestri’s case that she has frequently made more than ample concessions in response to Mr Correa’s desire to be involved with X, often contrary to the child’s best interests and her better judgment, but whatever concessions she makes, it is never enough for Mr Correa. From her perspective, this state of affairs has inevitably led to her having to take the stance, which she has, in these proceedings.
Essentially, the mother’s case is that, from an early stage of X’s life, she agreed to the father being extensively involved in the child’s life. Regrettably, he did not always cope well with these arrangements and when she attempted to make what she regarded as more developmentally appropriate arrangements, she was met by hostility and belittlement by the father.
In this context, the mother points to the fact that she has been the subject of multiple contravention applications instigated by the father in conjunction with applications to revisit the consent order of November of 2018. In these circumstances, she submits that the father is utilising legal processes as a means of intimidating and harassing her and to get his own way.
On the other hand, it is Mr Correa’s perspective that he has been compelled to bring the current case (and seek the change of residence arrangements for X, which he does) because of the mother’s increasingly bizarre and irrational interventions directed towards minimising his involvement in X’s life. He contends that the mother is intent on poisoning the child against him; undermining his sense of ethnic identity; and ultimately alienating the child from him so that their hitherto positive relationship is destroyed.
The most significant and recent of these interventions, in his contention, was a fabricated allegation that he (Mr Correa) had subjected her to two incidents of sexual assault in 2013 and 2014, which led to him being arrested by police on 20 October 2020, some months prior to an earlier scheduled trial.
This trial had to be deferred pending the outcome of the criminal proceedings against him, in which he strenuously denies any wrong doing on his part. It is Mr Correa’s evidence that when the case came on for some form of mention before the committing magistrate the prosecution had not completed the necessary brief of evidence and the magistrate concerned dismissed the relevant information.
By necessary implication, he asserts this is because the authorities accept that the allegations have been manufactured. In this context, he points to the fact that nowhere in the mother’s extensive medical records is there a reference to such an incident ever having occurred.[15]
[15] See father’s trial affidavit filed 11 July 2022 at [232].
Ms Maestri has maintained her allegations in her trial affidavit alleging that she was subject to sexual violence on three occasions during the relationship. She further deposes that she has sought therapy for the violence and abuse which the father inflicted upon her. In these circumstances, she has deposed as follows:
I have only recently come to terms with the sexual assaults. I also took the step of reporting them to the police, which I had come to feel I needed to do, despite feeling humiliated and exposed.[16]
[16] See mother’s trial affidavit filed 5 August 2022 at [181] – [183].
It is the mother’s case that during the parties’ relationship and afterwards, she was subject to long standing physical, emotional and psychological abuse by the father, including intimidation, belittling, bullying, gas-lighting and sexual assault(s).[17]
[17] See Family Report dated 7 November 2021 at [26].
Given the structure of the Family Law Act 1975, particularly as it pertains to issues of family violence and abuse, such allegations must be approached seriously by the court. In addition, the absence of corroborating evidence in support of any such allegations, does not absolve the court of its responsibility to investigate such issues.[18]
[18] See Eaby & Speelman (2015) FamCAFC 104 at [21] (Ryan J).
However, for reasons about which I can only conjecture, the parties elected not to explore the issue of sexual assault in the trial proceedings before me. In particular, the allegations were not expressly put to Mr Correa. In addition, it was not expressly put to Ms Maestri that she had concocted the allegation.
It is the father’s case that it is he, rather than the mother, who was the subject of family violence during the parties’ relationship and afterwards. In particular, he alleges that the mother has subjected him to stalking and has hacked his computer and emails. His concerns, in this regard, led to him making complaints to police in respect of what he characterises as cybercrime in September of 2018. He asserts that the mother was apparently cautioned by police in this respect.
The father alleges the mother breached this order on 1 April 2021, when she assaulted him by striking him in the back of the head at a handover at X’s school. The matter was reported to police. Again, the parties have different views as to what occurred.
As with many families, the period during the Covid-19 pandemic crisis was particularly difficult for the parties in the current matter. Without doubt, these difficulties were exacerbated by the worsening relationship between the parties themselves, attributable to, amongst other things, the rape allegation; the father accessing the mother’s medical records; and the current proceedings.
It is a central plank of the father’s case that the mother has unresolved anger management issues, which represent a very real threat to X’s welfare and which are confirmed by disclosures she has had made to her treating psychologist Dr Y.
For her part, the mother alleges that X disclosed to her that he had been choked by his father in mid-March of 2022, which led her to suspend the father’s time with X. This coincided with a period when it was also asserted that X had been exposed to Covid-19 and needed to isolate.
It is also her case that, in May of 2019, in response to what she characterise as X exhibiting behavioural issues, she had engaged a psychologist, Ms Z to investigate. Ms Maestri alleges that X disclosed to Ms Z that he had been hit in the back of the head by his father and was frightened of him. Mr Correa is highly critical of the manner in which Ms Z was engaged, which was without his knowledge.
As a consequence of the child being withheld from him in March of 2022, the father commenced interim proceedings in this court on 7 April 2022, which proceeded to an interim judgment delivered on 22 April 2022.[19] I determined to reinstate the father’s time, following him [X] having a pre-arranged holiday, with his mother, at Town AB, to which Mr Correa graciously consented, notwithstanding the fact he had not seen X since mid-March.
[19] See Correa & Maestri [2022] FedCFamC2F 609.
In his trial affidavit, Mr Correa has also raised issues regarding effeminate clothing in which she has dressed X. I have been provided with photographs of the clothing in question, which Mr Correa describes as glittery pants and a multi-coloured necklace, which was hanging around the child’s neck.
Other issues raised in the case concern controversies about the exchange of information concerning medical treatment needed by X and alleged abuses of the communication book; the removal of an adhesive bandage on his arm (20 October 2019); the mother’s insensitivity regarding X consuming pork, given his father’s Islamic background; and the approach of each to an injury to X’s toe, which occurred in December of 2021.
It was against this extraordinarily conflicted and difficult background that the final hearing commenced on 8 August of 2022. In his affidavit material, the father included the mother’s medical notes from her general practitioner as well as Dr Y’s notes.
THE EVIDENCE & ISSUES
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[20] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[21]
[20] See Evidence Act1995 (Cth) s 140.
[21] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In addition, I bear in mind section 140(2) of the Evidence Act 1995 (Cth), which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
The parties have each filed lengthy affidavits to which were attached very many documents. As will become apparent, if it is not already so, there have been many flashpoints and controversies arising between them, which have arisen over very many years. At the same time, I suspect there have been periods of uneasy truce between them.
As a consequence, my impression of each of their respective trial affidavits is of a rambling sense of mutually shared and ever recurring antipathy. As such, I found it difficult to find a sense of coherent narrative and the various complaints the parties make of each other merge into one another. In general terms, I found it difficult to categorise one of them as the antagonist in the conflict and the other as its subject.
The central evidentiary issues arising in this case turn on assessing who of the parties is more responsible, than the other, for driving the extraordinary level of conflict between them and what are the implications of this for X’s well-being.
Essentially, each asserts that he/she is the victim of the other’s manipulation and bad behaviour. In tandem with these assertions, each contends that he/she has a superior level of insight into what is required to acquit the responsibilities incumbent on being a good parent.
Associated with the issue, the court, given the manner in which each party has put their case, is called upon to make an assessment of the risk, so far as X’s future care is concerned of being in the care of each parent, each of whom asserts that the other parent represents a significant threat to X.
In the instance of the father, it is on the basis that the mother is unstable and prone to episodes of violent and unpredictable behaviour. In the instance of the mother, it is on the basis that the father lacks insight into the emotional needs of X and is fixated on denigrating her. Both assert that the other has abused the child, either physically or emotionally. In addition, the father asserts that the mother is intent on destroying his relationship with X through a process of alienation.
Accordingly, the court must assess the degree of risk each parent’s past behaviour and conduct represents to X. Necessarily, in my view, this task must also include an assessment of the parental capacity and strengths of each of the parties. In my view, this is a most challenging task for the court to conduct in the context of adversarial proceedings, such as these, which turn, too a large degree, on the court accepting one party is, on balance, more likely to be reliable than the other.
As I have already observed, there is a dearth of independent evidence to indicate that X has been subject to abuse as defined by the Act or exposed to family violence. In addition, many of the allegations of each of the parties rely on what X, a child of tender years, has said to each of them, being reliable in its contents.
This difficulty is compounded by the fact that necessarily, given his attachment to each of his parents, developed over the significant period of shared care, it is likely to have resulted in a situation in which X feels conflicted in his loyalties to each of his parents.
As such, there is a real risk that either the parties have misinterpreted what he has said to them or he has told them what he thinks they wish to hear. It is also possible that the child’s statements to one or the other of them have been fabricated. For obvious reasons, X cannot be a witness in the case nor has he been interviewed by any independent expert or objective person, to determine whether he has or has not been subject to assault.
It is not the role of this court to punish a party or parties for past failings arising from their relationship. In a case, such as the present one, in my view, it is simplistic to assess one parent as being good and the other as bad in the context of what is obviously a dysfunctional and emotionally charged relationship and then determine which parent should be successful, in the case, on the basis of such an assessment.
This would be to abrogate the court’s fundamental obligation to bring about the result it assesses as being in X’s best interests. In my view, it is clear that both parties must be accorded some level of responsibility for driving the extraordinary level of dysfunction in their relationship, which, in my assessment stems fundamentally from their incompatibility as individuals.
The evidence available to me indicates that both parents dearly love X and cherish him. Axiomatically, they are very different in terms of their attributes and backgrounds. Yet X himself is the sum of their parts. In this context, I do not reject Ms F’s view that each has much to offer X, which will be central to him attaining his full level of development in both emotional and intellectual terms. In this sense the individual parents can be viewed as being complementary to one another.
However, the reality of the situation is that the divergences in their parenting styles, current and prospectively, have the potential to create a toxic environment for X, from which, if at all possible, he should be protected. It is in this context that the central dilemma of the case arises.
If the only way to protect X from the corrosive emotional dynamic created by his parents’ co-parenting is to place him more with one parent than the other, what is likely to be the price for him of having a lesser relationship with the other? Is that price to high or the emotional risk too great for the court to take? Is it reliable for the court to make such an assessment, on issues of credit, arising from its assessment of the parties’ respective performances, in the artificial and unfamiliar circumstances of the witness box.
In this context, what are the implications of an outcome which saw the court significantly discounting or disregarding the parties’ mutual allegations that the other has inflicted actual physical abuse on X?
Accordingly this is a case about risk and its assessment. However, risk alone cannot determine the outcome of the case of which the ultimate arbiter remains the court’s overall view of what is the outcome which will best serve X’s interests.
Regrettably, this is likely to mean that there can be no perfect or optimal outcome in the case given what I regard as my central evidentiary finding – X loves both his father and his mother and they love him; as a consequence each has much to offer X. However given the intractable conflict between them, stemming from their fundamental incompatibility, co-parenting between them is fraught with difficulty and likely to remain so.
In assessing risk, the court’s task is prospective in nature. It must assess the degree of future likelihood that exposure to some harmful event will arise for any particular child, including the possibility of exposure to family violence or some other form of abuse. One of the central tasks, for the court, in applying the jurisdiction conferred upon it, by the Act, is assessing risk for children.
Necessarily, this must be an imperfect task. No individual’s life can be rendered completely risk free. In addition, well-meaning attempts to negate risk may, of themselves, have harmful consequences. The court must be aware of the perils of depriving children of worthwhile relationships on the basis of inchoate fears of harm or that it has made an assessment on a shaky evidentiary basis.
As such, risk must be objectively rather than subjectively evaluated. In this court, as with life, it is a question of balancing and assessing the degree of risk arising in any particular situation, in an objective and methodical basis.

In Deiter & Deiter,[22] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[22] See Deiter & Deiter [2011] FamCAFC 82.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term unacceptable risk. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.[23]
[23] See Slater & Light [2013] FamCAFC 4 at [37].
In a case called M & M,[24] the High Court has indicated this test of unacceptable risk entails the balancing of the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent.
[24] See M & M (1988) 166 CLR 69 at 78.
It is in this context, in my view, the central dilemma, which the case presents, must be re-capitulated. Is the only way to prevent X being exposed to the potentially emotionally corrosive effects of the dysfunctional relationship between his parents to direct that he live predominantly with one parent, who is then charged with exercising sole parental responsibility for him? If so, what are the consequences, for X, of having a diminished level of relationship with the other parent? In this context, is there sufficient evidence for the court to reach any reliable conclusion in respect of these issues, particularly in respect of the abuse and family violence allegations?
In N & S and the Separate Representative[25] Fogarty J indicated that in assessing risk, particularly in cases involving allegations of child abuse, the court’s obligation is to give real and substantial consideration of the facts of the case concerned to determine the implications of any risk for the child concerned. In so doing, the court should pose for itself the following types of question:
[25] See N & S and the Separate Representative (1996) FLC 92-655 at 82,713-4.
·What is the nature of the events alleged to have taken place?
·Who has made the allegations?
·To whom have the allegations been made?
·What level of detail did they involve?
·Over what period of time have the allegations been made?
·Over what periods of time have the events alleged to have occurred?
·What are the effects exhibited by the child?
·What is the basis of the allegations?
·Are the allegations reasonably based?
·Are the allegations genuinely believed by the person making them?
·What expert evidence has been provided?
·Are there satisfactory explanations for the allegations apart from abuse?
·What are the likely future effects on the child concerned?
In summary, the issues for the court, in the case turn on the following controversies:
·Is one parent, more than the other, responsible for driving the extraordinary level of conflict between the parties?
·What are the implications of this for X himself?
·Has X been exposed to abuse by one or other of his parents?
·If so, what is the appropriate protective response to this?
·Is there a danger X will be deprived of having as extensive a relationship, with one of his parents, which will be beneficial for him, on the basis of uncertain or inchoate allegations of risk?
·Is it possible to ascertain if one parent is more responsible than the other for driving the conflict between the parties given each asserts that he/she is the victim of the other’s manipulation and bad behaviour
·In tandem with these assertions, each contends that he/she has a superior level of insight into what is required to acquit the responsibilities incumbent on being a good parent. Where does the truth lie?
The parties
I acknowledge the pitfalls of any attempt, on my part, to capture credibility and motivation from my limited exposure to the parties in these adversarial and polarising proceedings, which by their very nature have the propensity to bring the worst out of people and lay waste to their better aspects.
In general the father presented as punctilious and methodical and at times a little pedantic. At best, this added order to his evidence and, at worst, left me being concerned that he had a passive aggressive attitude towards Ms Maestri. He also seemed to me to be something of a conservative.
In general the mother presented as emotionally intense and spoke of what she sensed rather than what she had actually experienced. At best, this added an immediacy to her evidence and, at worst, led me to believe she was prone to being hysterically disingenuous and subject to overreaction.
However, notwithstanding these strictures, I do not doubt the accuracy of her perception regarding how she feels she has been treated by Mr Correa of many years. Essentially, she feels that she has been treated with condescension and disrespect notwithstanding the concessions she has made to Mr Correa, which have resulted in him having been able to build a solid relationship with X from the child’s early infancy.
In these circumstances, she characterises herself as being axiomatically the parent who is more child focussed and reasonable. For his part, Mr Correa’s experience is that he is the victim of the mother’s irrationality over many years, which has been directed towards restricting his relationship with X. In essence, in terms of temperament, the parties are like chalk and cheese, with each seeing themselves as having been victimised by the other.
Mr Correa was a composed and confident witness. I do not doubt his veracity. However, given the emotional quotient of the case for him and his high level of animus for Ms Maestri, fostered over many years, at times, I doubted the objectivity of some aspects of his evidence, particular in regards to his view that Ms Maestri was likely to physically harm X.
In my view, as a consequence of his experience over the years, he is driven to portray Ms Maestri as negatively as possible, which has resulted in an incapacity, on his part, to concede that she can play any positive role in X’s life and development. In addition, any such concession is hardly likely to assist his case, which is more focussed on the negative than the positive. This is also an element of Ms Maestri’s case.
In particular, the father has recounted criticisms of the mother’s behaviour, relating to her use of alcohol and illicit drugs, within the context of his perception that she was and remains psychiatrically ill. The most significant of these events occurred many years ago and prior to X’s birth.
In this context, I am concerned that the father has trawled through the mother’s medical history searching for any possible thing, which may discredit her, whilst being unable or unwilling to make any positive attribution in her favour. Essentially, as a consequence of these records, he asserts that the mother is incapable of change. In these circumstances, it is inevitable that the mother would feel that she is under attack.
Doubtless the mother has had her issues. However, in objective terms, she does exhibit a capacity to function within society as a whole. In addition, it seems to me that the father has difficulties in accepting that his conduct towards the mother is a factor in her reactive and oppositional response to his behaviour. Overall, as already indicated, I accept that the mother does feel she is under attack from Mr Correa.
To utilise a judicial cliché, Mr Correa views Ms Maestri through a distorting prism of hostility, which prevents him seeing her having any positive attributes whatsoever. Rather, he sees himself as the victim of the mother’s outrageous behaviour, describing her as a pathological liar, who will stop at nothing to destroy his relationship with X.[26]
[26] See father’s trial affidavit filed 11 July 2022 at [14].
The father sees himself as being superior to the mother in every way – financially, given his professional salary; intellectually, given his academic qualifications; psychologically, given the mother’s past mental health issues; and above all, as a parent. The mother is well aware that the father views her as his inferior.
Mr Correa is truly an exceptional person. His evidence regarding the challenges of his early education in City B and his academic achievements in both Country D and Australia are remarkable. No doubt his achievements are attributable to his self-discipline and self-determination – attributes which he wishes to instil in X but which he believes Ms Maestri is sorely lacking.
However, in this context, he is likely to be liable to under-estimate the attributes which Ms Maestri can bring to the parenting of X. She is a tender and solicitous parent. As will be indicated, in greater detail, in due course, it is Ms F’s view that currently X’s emotional needs are more met by his mother than his father.[27]
[27] See Family Report dated 7 November 2021 at [64].
Mr Correa is likely to take a different view, from the mother (and indeed from Ms F) as to the value for X of such attributes. However, whether this is a product of culture or personality is beyond the remit of these proceedings other than the inculcation of self-discipline is likely to be helpful for X as is the sense that he is the subject of unconditional love.
In his oral evidence, Mr Correa confidently categorises himself as demonstrably the better parent, who was likely to provide X with access to better food; better education; and better culture. He conceded that X had an emotional connection with mum but as he was an adaptable child, who was very smart, he considered that X would quickly adjust to coming to live mainly with him.
To Ms Boyle, Mr Correa indicated that when Ms Maestri is normal, she is a very good mother. He conceded that she was protective of X and was concerned about his health. He also accepted that given her creative bent, Ms Maestri would be able to facilitate any artistic interests which X displayed. The underpinning of his case is that he has not seen any recent signs that the mother is, as he would put it, normal, given the stridency of her recent attacks on him.
In cross-examination, Ms Maestri was asked to consider the respective strengths of each of the parties as parents. Of herself, she indicated she had a Country T background, which prized equality. Of the father, she indicated he was very dedicated to his work and was a gifted professional. She accepted that Mr Correa could be very patient and gentle but she characterised him as being a parent who was determined to mould a successful child. As such, he had everything academic covered for X.
In this context, she accepted that Mr Correa could provide sufficient structure for X. However, she doubted his level of emotional availability for the chid and capacity to manage X’s emotional outbursts. It was her perception that the father had struggled to cope with X and been driven to the point of aggression by the child’s behaviour from time to time. She further indicated that she did not know if the father and child were affectionate with one another. In short, she portrayed herself as being more in touch with X’s temperament and emotions than the father.
The parties’ present circumstances
The father has not re-partnered. He has a salary of $143,000.00 per annum, in respect of which he is assessed to pay child support of $840.00 per month. Mr Correa has no direct family in South Australia, apart obviously from X. He enjoys good health.
However, he indicated that he has a close connection with a family, in the Adelaide area, with whom he shares cultural and linguistic ties and which includes two children around X’s age. He has another close friend and a cousin in Melbourne. Accordingly, Mr Correa rejects any suggestion that he does not have sources of emotional and practical support in Australia. He describes himself as an active member of the Language D Community in Adelaide.
Mr Correa’s mother, who is aged in her early eighties, lives in City B, as does his brother. He has other family in Country D, Country AC, City B and the United States. I accept his evidence, as does the mother, that he speaks in Language D to X, at his home and, as a consequence, the child has some Language D fluency.
The father sees X’s potential to be bilingual as a great positive for him, as he grows to maturity. Not only would it give him a source of self-esteem but also it would enable him to converse with his family in their principle tongue.
It is for these reasons that Mr Correa aspires to X attending G Primary School, which has a specialised bilingual Language D/English program and for his secondary education at H School, which continues the program. For her part, Ms Maestri does not dispute that it is beneficial for X to be bilingual. However, she asserts that the best source of Language D instruction is likely to be Mr Correa himself and given this state of affairs, the disruption to X of changing schools and the travel involved cannot be justified.
It would appear to be the case that Mr Correa no longer lives in Suburb U but has moved to a rented three bedroom apartment in Suburb AD,[28] which is reasonably proximate to Suburb G. This is not an issue which was explored at trial.
[28] See father’s trial affidavit filed 11 July 2022 at [103].
In the past, the father has been a frequent overseas traveller. The mother has been critical that she has not been consulted prior to his travel but rather has been expected to pick up the slack of having to care for X, in his absence, without demur. From her perspective, this is emblematic of the father’s lack of respect for her.
It is the father’s more recent evidence that it is not currently necessary for him to travel as often as he did previously. Currently, he regularly travels to Country D each January, in the course of his employment, of around four weeks in duration. He would like X to accompany him on this tour as soon as possible.
It is his contention that X would be entirely safe on such a tour because there would be many individuals available to assist him. More importantly, the child would have an opportunity to meet members of his family resident in Country D, none of whom have met X as yet. He would also have a direct exposure to Language D and culture, the experience of which is likely to remain with him for a lifetime, given his impressionable age.
Of equal significance to Mr Correa is his understandable desire for X to meet his paternal grandmother. From the father’s perspective, such a meeting needs to happen as soon as possible given her age and the fact that she is in poor health. As a consequence, she cannot easily travel to either Country D or Australia.
In her evidence, the mother indicates that she has also travelled extensively overseas. As such, she is not in a position to deny the benefits and attractions of travel. However, it is her position that such travel should be deferred for X until he is older. She is not comfortable with travel to countries which are not signatories to the Hague Convention on Child Abduction. City B is not a signatory to the Convention.
However, at the same time, in her oral evidence, Ms Maestri indicated that it would be lovely for X to meet his grandmother. She also accepted that it would be extraordinarily exciting for X to travel overseas. She said she had no problem with Country D, Country AE or Country T but City B was another matter. She would want an itinerary and flight details in respect of any travel to Country S and, if possible, would like the child to wear a GPS tracking device, such as an Apple Watch.
More recently again, in a minute submitted after the evidence and submissions had concluded, and in order to enable her to comment on the detailed minutes prepared by the ICL, Ms Maestri has proposed that she accompany the father and X on any travel to City B with the expense of her necessary travel to be shared.
The father was born into the Islamic faith. As a consequence of this Mr Correa performed a traditional Muslim naming ceremony, a couple of weeks after X was born. He would want to be able to share the major festivals of Eid al-Fitr and Eid al-Adha with him. I accept his evidence that, given his background, he is sensitive to the issue of X consuming pork.
This is a matter of some significance in the proceedings and for reasons upon which I will elaborate in due course, it is my view that the manner in which the mother has approached the father’s understandable sensitivity regarding the issue does her no credit.
Each party describes themselves as an excellent cook, certainly in respect of preparing suitable meals for a child of X’s age. This has not stopped them criticising the food prepared by the other. In her affidavit material, Ms Maestri suggests that Mr Correa has not been completely frank about his financial circumstance so far as child support is concerned. However, she elected not to explore this issue and there is no credible evidence to support such an allegation.
Ms Maestri has not re-partnered. She is close to her two sisters, Ms AF and Ms AG and her mother. Interestingly, Mr Correa has a significant level of respect of X’s maternal grandmother. She lives around ten minutes’ walk from the mother’s home and X sees her on an almost daily basis. I accept the mother’s evidence that X is the centre of a warm network of family on his maternal side.
Ms Maestri has lived in the same accommodation, which she rents, since late 2013. X has his own room. Ms Maestri has converted her garage into a playroom for X, in which she helps him with painting and crafts. As previously indicated, Mr Correa sees these as positive attributes which the mother brings to the parenting of X.
In her affidavit evidence, the mother has deposed that in 2014 she began a course of tertiary study in health care. She graduated in November 2021 and now works part time at an employer close to her home. She works 44 hours per fortnight in health care administration.
I do not recall that her level of remuneration was examined in the case. Certainly, one would expect this to be the case given the father’s earlier assertions regarding what he has characterised as the mother’s general financial ineptitude. It is a small matter but confirms my impression that the father has a heightened capacity to be critical of Ms Maestri.
At first blush, both such employment and the completion of a further course of study would not appear congruent with a person suffering a significant drug and alcohol problem or to be severely compromised by mental health problems. However, again, I concede that this was not an area explored by the father in his cross-examination of the mother.
The parties seem to engage in all manner of recreational activities and excursions with X. Engagement in sports is particularly important to the father and X. The mother deposes to enrolling him in kinder gym and swimming, as well as other sports classes. It seems probable that X will be able to attend all manner of extramural activities in future. However, the nature of those activities, up to this point, has been a matter of controversy and the parties seem to have experience difficulties in coordinating their efforts in this regard.
Issues surrounding the mother’s mental health and substance abuse
It is the father’s evidence that when the parties first met, in either 2011 or 2012, the mother was in the grip of a serious alcohol dependency, which caused her to pass out. In addition, he deposes that he found her, on one occasion, with a used crack pipe, in or around October of 2012. These issues pre-date the birth of X. The mother, in cross-examination denies that the first incident ever occurred.

It is in this context, I must make a determination about whether to permit X’s proposed travel to City B. In making this decision, I must be careful not to fall into the error of making stereotypical judgements, about City B, which may be based on my subjective assumptions about the country, which has a very different history and culture to Australia and which, like Ms Maestri, I have never visited. As indicated above, it must be the case that Mr Correa knows far more about City B and indeed Country D than I do.
In this context, I must make the assessment of the degree of potential risk arising for X of travelling both to City B and Country D. Clearly, all incidents of life, including overseas travel, must entail some degree of risk. The world cannot be rendered anodyne. In my estimation, Mr Correa cannot be regarded as a foolhardy parent or one who would knowingly embrace an unacceptable degree of risk for his child, whom he obviously loves.
As such I doubt that he would take any steps to put X in harm’s way in either Country D or City B. In regards to the latter country, by dint of his experience and personal resources, he is better placed than other visitors to City B to make realistic appraisals of risk in real time. Certainly, in objective terms, he is better placed to assess such risk than Ms Maestri.
I have no reason to doubt the bona fides of Mr Correa’s desire to take X to both City B and Country D. For obvious reasons, he wants the child to meet his mother. The experience of joining a cultural trip to Country D, with students, is also likely to be the type of experience for X, notwithstanding his tender years, which he will remember for the rest of his life. Again I have no reason to doubt the validity of Mr Correa’s views regarding the benefits X will derive from travelling both the Region AM and Country S.
There is also the risk that Mr Correa may decide to remain in City B or Country D and not return X to Australia. Obviously such an outcome has the potential to have devastating emotional consequences for X in terms of the severance of his close and loving relationship with his mother and so contrary to his best interests, particularly in terms of maintaining a meaningful level of relationship with his mother.
Country D is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. City B is not. Accordingly, I accept that if Mr Correa does decide to live in City B indefinitely with X any process to compel the child’s return to this country will be inordinately difficult, if not close to impossible. However, I must make some assessment of the likelihood of such an outcome.
Mr Correa has become an Australian citizen.[64] He has a secure and prestigious professional position in Adelaide. His life is in South Australia and it is a comfortable and well-resourced one. In these circumstances, in my view, it is improbable that he would decide to throw both his life and that of X into turmoil through electing to live indefinitely in Country C.
[64] Whether he has Language D citizenship (or indeed has City B citizenship) is not clear to me.
Necessarily, as a consequence of its nature, humanity is capable of throwing up endless surprises and unanticipated aberrations from the norm of ordinary human behaviour. As such, I cannot rule it as being impossible that Mr Correa is not a person of his word and, contrary to my assessment, will elect not return to Australia with X. As Cronin J said in Gin & Hing:[65]
Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.
[65] See Gin & Hing [2010] FamCA 617 at [64].
In this particular case, on balance, the evidence available to me leans more in favour of Mr Correa returning X to Australia and taking the steps of a prudent parent to avoid exposing him to danger, in both City B and Country D. In this context, it seems to me that the benefits of X travelling to both such locales, notwithstanding his immaturity, in both physical and intellectual terms, outweighs the dangers.
DETERMINING THE BEST INTERESTS OF THE CHILDREN – SECTION 60CC
a) The primary considerations
The applicable legislation requires me to consider two criteria primarily – protective concerns relating to the exposure of a child to abuse, neglect and family violence – and the benefits of a child having a meaningful relationship with both of his or her parents. As previously indicated, the former criterion is to be given greater weight, in appropriate cases.
I have no difficulty reaching the conclusion that X will derive significant benefits, in myriad ways, from having a meaningful level of relationship with each of his parents. This, indeed, was Ms F’s professional opinion and I accept her evidence.
The reality of X’s life, up to this stage, is that from a young age, he has spent regular and significant periods of time in each of his parent’s homes. As a consequence, he knows both his father and mother well and there can be no doubt he loves each of them and they, in turn, love him. In X’s own words he has fun times with both his father and his mother.
However, as previously noted, the parties are likely to bring different things and different qualities to how they parent X. This is a consequence of their different backgrounds, attitudes and indeed genders. Given the closeness and intimacy of their respective relationships with X, it is to be hoped, but not guaranteed, that these differences can prove to be complementary.
It is also the more concerning reality of X’s life that he is also acutely aware of the endemic conflict between his parents. He said as much to Ms F.[66] In my view, it is the conflicted and competitive relationship, between the parties, which is likely to pose the greatest threat to X’s psychological well-being. In simple terms, they can decide to complement one another in their parenting or prolong the conflict between them.
[66] See Family Report dated 7 November 2021 at [60].
In the context of these proceedings, directed towards one securing the advantage over the other, each of the parties has asserted that the other poses a serious risk to X’s health and safety. Each asserts the other has assaulted X. The father characterises the mother as mentally unstable and having an addictive personality. The mother characterises the father as being violent and controlling.
I have attempted to analyse these competing claims, which have a scant level of objective support. To the contrary, I assess it as unlikely that either party would willingly expose X to harm. However, this has not stopped either of them behaving inappropriately from time to time. Most recently when the mother withheld the child from the father for what I consider to be the most spurious of grounds.
In this context, the question for the court is whether the parties’ disastrous co-parenting relationship is so extreme that the child should live predominantly with one parent and if so, who should that parent be? In my assessment, each party must be accounted as having some level of responsibility for the current parlous situation. In addition, as Ms F observes each of them bring positives to the parenting of X.
In addition, at this stage, in my view, it does not appear to be conducive to the promotion of X’s best interests that one parent should be promoted over the other, when each has contributed to the conflict, for the sake of creating some sort of peace, which is likely to be unattainable given that both must continue to be involved in the child’s life to some degree or other as he grows to maturity. Indeed, in my view, down-grading the prominence of one parent may lead to more rather than less conflict and competition between them.
Considerations of this kind lead me to favour the recommendations promoted by Ms Boyle, counsel for the Independent Children’s Lawyer. Essentially adopting some form of parallel parenting in which the child can gain the best each parent has to offer with a minimum of interaction between them.
Ms F did not favour such a regime preferring one which saw the child moving between mother and father every few days rather than in longer blocks. However, Ms F’s recommendation must be viewed in the light of the fact that X is now an older child and therefore a more resilient one. In addition, as will be discussed in greater detail shortly, the reality of his life, up to this stage, is one of movement between his parents’ respective households.
In my view, there are risks incumbent in the court radically disrupting such a long-standing regime both in terms of the quality of the child’s relationship with the parent consigned the minority role and the potential for him to be exposed to yet more conflict, which inevitably provides fertile soil for allegations of parental misconducted to be sown by each party, particularly the one who perceive he/she has been hard done by.
The additional considerations
a) The children’s views
The applicable legislation requires me to consider any views expressed by the child concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[67]
[67] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) at [56].
Accordingly, a child is not required to make a decision about what the appropriate outcome is in any particular case. Nor are they required to express an explicit wish as to which parent or other significant person they want to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[68]
[68] See H v W (1995) 18 Fam LR 788, 797 (Fogarty and Kay JJ).
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”.[69] What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.
[69] See R & R: Children’s Wishes (2000) 25 Fam LR 712, 724 [54] (Nicholson CJ, Finn & Guest JJ).
The only conduit for me to assess X’s views, in the matter, comes in the form of Ms F’s report. To her, X said the current regime was kinda okay. By which it would seem he expressed some level of qualified support for it or quite possible implied a fear of something worse.
X also said to Ms F that he might love his Mum a tad bit stronger that my Dad. It would seem to me, on balance, to be more likely that X draws slightly more emotional comfort from his mother than from his father. This may be reflective of his age and the fact that she provided more of his primary care in his early infancy. Otherwise, X’s view cannot be regarded as strongly influential in this case.
b) The nature of the child’s relationship with each of his parents and significant others
X has close but different relationships with each of his parents. From his father he gains strengths in educational attainment and a positive role model in terms of his inherited background. It is important that X continues to mix with the family friends of the father who share an Country C background with him.
X also has a close emotional relationship with his mother, maternal grandmother and aunt, each of whom he sees regularly. Accordingly, I accept that X has a close and loving relationship with both his mother and father. He has a clear sense that both his mother and his father are his family, notwithstanding the fact that the parties concerned separated many years ago, when he was little.
In my view, whatever orders are ultimately made need to reinforce this sense of family for X. In my view, it is important given the different backgrounds, which he inherits from each of his parents.
c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child
The evidence is clear that both parties are intent (indeed determined) to be as fully involved as possible in all decision making processes to do with X and, if at all possible, each would prefer to have him in their respective care 24/7. Each aspires for the child to have a comfortable, well-resourced up-bringing.
ca) Provision of financial support for the child
In my view, this is not a relevant consideration in the case. The father has been critical of the mother for being, in his view, profligate or feckless in respect of financial matters. However, as observed above, there is no indication that X has not been able to enjoy a sport or other extramural activity or has otherwise gone without on financial grounds.
d) The likely effect on the child of any changes in his circumstances
In my assessment, this is one of the more important additional considerations. It would be a major change for X to move into the predominant care of his father given the previous care arrangements for him. He appears to be a relatively emotionally resilient child but, on any view, this would be a significant change. It is also likely to be met with significant hostility by Ms Maestri or indeed Mr Correa, if the tables were turned and X moved into the predominant care of his mother.
The reality of X’s care, since late 2018, is that he has spent significant blocks of time with each of his parents. Given the conflict between them, this has not been ideal but regrettably, in my view the endemic level of disputation between renders no arrangement likely to be problem free or suggests a regime which has the potential to be obviously better.
In these circumstances, there seems to be some degree of risk of changing this regime to X’s detriment. In addition, X himself does not suggest a change other than the unrealistic dream of his parents living in the same house, with him. In my view, these are factors which militate against the court making significant changes in X’s living and care arrangements at this stage. This is an outcome supported by the ICL.
e) The practical difficulties and expense of the child spending time and communicating with each of their parents
The parties live relatively close together in suburban Adelaide. They each have access to motor vehicles. This is not a case concerned with the logistics or practicalities of time spending arrangements. The problems in the case arise as a consequence of their parenting incompatibility.
f) The capacity of each of the child’s parents and other persons to provide for the emotional and intellectual needs of the child
i) The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the parties
The above two considerations are closely related and, as such, it is convenient to consider them together. As detailed above, there can be no doubting Mr Correa’s commitment to ensuring X attains his full educational potential. It is his focus on this which has led to him wishing to change X’s school so that X has greater support in learning Language D.
From Ms Maestri’s perspective, Mr Correa is fixated on education and pushes X too hard. Again, as previously indicated, it is my impression, supported by Ms F’s assessment, that she is more emotionally attuned to the child and is a tender and solicitous parent.
Obviously each parties’ parental attributes and strengths are likely to be useful to X’s development, in both and intellectual and emotional sense as they complement one another. In my view, this is another factor which militates in each parent continuing to be significantly involved in providing care for X.
These considerations are relevant to the determination of which school X should attend. In my view, it is highly regrettable that this issue falls to be decided by the court. It is a zero sum game. I cannot create an outcome which will be mutually satisfactory (or even one which is mutually unsatisfactory) to each party. Rather I must make a selection and which will create a sense that one parent has won and the other parent has lost.
Each party has powerful and valid arguments to make to support their individual preference in respect of the schools in question – the father calls of Language D skills and immersion; the mother calls of continuity and the maintenance of a cohort of friends for the child, at the school which was originally agreed for him and which he has consistently attended. From her perspective, this is another incident of the father dictating to her.
From my perspective, the resolution of the issue will create a sense in one party of having been hard done by or of their legitimate concerns having been over-looked or dismissed by the court. This, in turn, will have the potential to drive yet more conflict in their already difficult relationship to the ultimate detriment of X.
Necessarily, human nature being what it is, each party will think that his/her preference for the school is the better one and neither is prepared to selflessly compromise on the issue. At this juncture, on the evidence available to me, it is difficult for me to ascertain whether in an idiosyncratic sense the schools proposed by Mr Correa will be axiomatically better for X.
In this context, I do not doubt the sincerity of Mr Correa’s view that it will be so but this cannot be a given. It is largely imponderable. X may flourish there or he may flounder, missing his friends. In my view, there is also some significant merit in Ms Maestri’s view that the best Language D teacher, for X, is his father.
In her minute, Ms Boyle proposes G School – the father’s preference – from the start of the academic year in 2024. She makes this call, I think, in deference to the father’s background as a native Language D speaker and in order to support the child’s sense of connection to this aspect of his background. On balance, I consider this to be the best compromise.
In my assessment, both parties aspire to being the best possible parents for X. Obviously, they have differing views as to how to achieve this but, on balance, they probably have more in common, in this regard, than they might think. I agree with Ms F that the fact that X presents as a delightful child is a credit to each of them.
g) The child’s maturity, sex, lifestyle and background
X is a child who inherits a rich cultural background from both his mother and his father. However, given his appearance, he is likely to be viewed as a Country C child in the context of his current social environment in suburban Adelaide. This is not to down play the Country T aspects of his background, which are also important but it seems unlikely that he will be regarded as an Country T child per se.
Given this factor, in my view, it is important that whatever orders are made support X having a strong sense of his personal identity in the context of this background. In my view the achievement for X of a coherent sense of identity based on his cultural affiliation is likely to be an important aspect of how his best interests are served.

As previously indicated, this is a consideration which favours Mr Correa’s preferred outcomes in respect of overseas travel and education for the child. It is also likely to be the best prophylaxis for him against racial prejudice.
h) Aboriginal Heritage
This is not a relevant consideration in the case.
j) Family violence
k) Any family violence order
Each party asserts that the other has behaved in a coercively and controlling manner towards the other. Essentially, each asserts that he/she has been consistently the victim of the other’s poor behaviour, as demonstrated over many years. I have endeavoured to examine the evidence in respect of these issues in these regrettably lengthy reasons for judgment. In my view, the parties’ respective allegations in the context of these criteria are reflective of the endemic conflict between them. I note, in this regard, that there is not a final family violence order applicable to the parties.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
However, the issues in this case are both long-standing and powerful. As such the case presents the court with invidious options. As such, it would be naïve to think anything other than the prospect of further litigation remain high, given the polarising issues which it raises. The case is unlikely to have anything approaching a satisfactory outcome. Certainly, it would be naïve to think that the conflict and disputation between the parties, present since before X was born, will easily dissipated.
The parties’ relationship is difficult and marked by a distinct lack of empathy for the other. They are in competition with one another in respect of many issues to do with X, which has led each of them to be highly critical of the conduct of the other. These are not good harbingers for the avoidance of further litigation.
In this context, issues to do with how parental responsibility in respect of X is to be conferred arise. Essentially, the father asserts that the only way to avoid future conflict in respect of parenting decisions, including medical and educational ones, is if one parent is given sole control over them. The Independent Children’s Lawyer and the mother assert that it should be conferred equally on each parent.
EQUAL SHARED PARENTAL RESPONSIBILITY
The presumption created by section 61DA is rebutted if the court considers that it should not apply because it would not in the best interests of the child, for it to do so or because the court has reasonable grounds to believe that one of the child’s parents has engaged in abuse or family violence.
For the reasons already provided, I do not consider that either parent would willingly expose X to any form of neglect or abuse and their parenting relationship, although highly problematic is not one which is obviously characterised by family violence, in the sense that there is a marked imbalance of power between them leading to one being able to coerce or control the other, notwithstanding their mutual assertions to the contrary.
In terms of the best interest considerations, delineated in section 60CC, I consider that the evidence available to me indicates strongly that X will benefit from maintaining his currently meaningful level of relationship with each of his parents, which is a product of the fact that they consensually committed to a close to equal time regime in November of 2018. In these circumstances, in my view, there are significant risks in the court radically altering this long standing regime notwithstanding the problems clearly inherent in the parties’ co-parenting relationship.
In addition, it seems to be the case that the parties bring different attributes and emphases to the parenting of X. The issue for the court therefore is whether the parties’ relationship is just so problematic and so conflicted that it would simply not be in X’s best interests to confer joint parental responsibility upon them.
Each of X’s parents love him and accordingly each of them is fervently interested in every aspect of his care, welfare and development. In addition, however the time he spends with each of them is ultimately configured, it seems clear that he will spend significant periods of time in each of their households. I am also satisfied that each of them has much to offer X, as he grows and develops.
In these circumstances, I do not consider that it would be helpful to X or in his best interests for one parent to feel that he or she has been placed in a position of ascendancy over the other parent. In these circumstances, I do not consider that the presumption has been rebutted.
However, it is all very well to talk about the presumption in technical and legal terms. What is likely to be important to the parents (and indeed X) is what the application of the presumption means in practical terms in respect of the division of time. With the application of the presumption the court is obliged to consider equal time and then substantial and significant time, subject again to consideration of the child’s best interest and what is reasonably practicable.
As indicated above, in the section of the reasons dealing with the applicable legal principles, the Court is obliged to give real consideration to a child spending equal time with each parent given the focus created by sections 61DA and 65DAA. In a case like the present one, given X has been effectively living such a regime for a large proportion of his life, it becomes, in my view, doubly important.
In this context the question for the court being will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided between his parents?[70] Too a certain extent, the answer to this question, in practical terms, is in the hands of the parties themselves and how they chose to interact with one another in future.
[70] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14.
The father’s position throughout the case is that parties’ relationship is so flawed and the mother is such a compromised parent that X should live predominantly with him. The mother has a similar view, proposing a 4/10 fortnight in her favour. Ms F favours equal time but configured in a way which does not involve X being away from one or other of his parents for more than a few days. The ICL favours equal time posited on a weekly rotation.
In practical terms, I concede that there are many impediments to there being an equal time regime. However, these are not logistically based given the parties live in adjoining suburbs of Adelaide. Rather, they are to do with longstanding communication deficits arising between with a resulting inability to solve parenting difficulties to adopt the terminology of section 65DAA(5).
I accept that these difficulties are unlikely to dissipate in the reasonably foreseeable future. Indeed, there is a real risk they will become more rather than less entrenched over time. The question is whether that factor justifies extending X’s relationship with one parent and diminishing it with the other, particularly given the benefits each will be able to provide the child going forward.
In addition, as I have previously indicated, I do not consider that skewing the time in favour of one parent more than the other will necessarily ameliorate this problem. Rather, it may intensify the competition between them. In this context, the court must consider the impact on X himself, whose view about what is currently, in effective terms, an equal time regime was that it is kinda okay.
In essence, everything to do with the parties’ on-going care of X is likely to be problematic to one degree or another. Yet, in my view, it would not be in the child’s best interests to promote one parent over the other. Accordingly, I do not consider that an equal time regime can be rejected on practical grounds notwithstanding the endemic difficulties arising in the case.
The reality is that the parties are likely to parent X, as the jargon has it, to a large extent, in parallel. Each, pursuant to section 65DAE, will make autonomous decisions, regarding arrangements for X’s care, whilst he is in each of their respective households and each will continue to make these myriad decisions untrammelled by any involvement from the other.
In addition, at least in theoretical terms, they are likely to be on the same page substantially, in respect of wanting X to be properly cared for and loved and to have access to all the resources he needs to have a happy and fulfilled childhood. As has occurred up to this stage, they will do this in distinct and separate ways. This is not optimal for X but, in my view, is likely to be the best option for him.
CONCLUSIONS
Having determined that an equal time regime is the best outcome for X, the next issue is how that should be configured given the fact of the divide between the paternal and maternal aspects of his family.
In my view, the greatest difficulty arising from this divide is the obvious one that the parties have a compromised ability to communicate effectively with one another, if at all, and therefore no capacity to solve the myriad of problems – both trivial and major – which will inevitably arise in the life of any child, who has school, sporting and social commitments and who will, of course, suffer the inescapable maladies of childhood, leading to absences from school and medical appointments.
These issues will have to be managed in future and regrettably, up to this stage, as I have attempted to catalogue in the evidence section of these reasons, many such problems have arisen in the past, which have led to much recrimination and angst. Again, in my assessment, there is not an easy or obvious answer to problems of this type, which will remain endemic no matter how the time is configured given the impossibility of effectively excising one parent from X’s life, given how he has been parented up to this stage.
Some partial solutions to the problems are orders which clearly delineate what information is to pass between them and when, as provided in the minute prepared by Ms Boyle to which each party has substantially agreed. In this context, I will make the order sought by the father in respect of being able to access X’s Medicare details through the myGov website.
It is also helpful that a neutral location such as school be utilised for handovers and on their agreement to be restrained from denigrating the other to X, each party commits in real terms to abiding by such an order. I do not regard it as a hollow order.
I do not dismiss Ms F’s view, based on what X has said to her, that it is better to keep the time he is away from each of his parents to a minimum. However, I must also consider the practical realities of X’s life. I use the expression family divide deliberately. The chasm between the parties is a major threat to X’s wellbeing, as he grows from a primary school student to an adolescent and on into adulthood.
Although the parties may each wish that they could dispose of the other, so far as parenting X is concerned, that is not possible and therefore it makes more sense that the parties try and work together. However, the reality of the situation is that this is and will remain extremely challenging for them. In these circumstances, the regime proposed by Ms F does seem to me to somewhat cumbersome and ill-suit to the current state of play so far as the parties’ co-parenting relationship is concerned.
In these circumstances, the regime promoted by the ICL seems more in keeping with the parallel parenting model which is likely to be the best outcome for X at this stage of his development. To their credit the parties have agreed on arrangement for X to spend special occasions with each of them.
Finally, for the reasons already provided, I will authorise X to travel overseas, to both Country D and City B, on the conditions proposed by Ms Boyle. I appreciate, of course, how different the two countries are. However, Mr Correa is deeply familiar with each of them and their culture. It is the culture in part from which X himself stems and it is important, in my view, that he be given the earliest opportunity to share that with his father.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding four hundred and thirty-three (433) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 12 May 2023

File number:	ADC 3300 of 2018
Judgment of:	JUDGE BROWN
Date of judgment:	12 May 2023
Catchwords:	FAMILY LAW – Parenting – final hearing – high conflict – parenting arrangements for child aged 7 – where the parties have no capacity to co-parent – parties have diverse cultural background – where final orders were made by consent in 2018 – parties each seek primary care of the child – whether a change in arrangement would be in the child’s best interests – assessment of risk – matters to be considered – overseas travel – conferral of parental responsibility
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 68LA Evidence Act1995 (Cth) s 140 Intervention Orders (Prevention of Abuse) Act 2009 (SA) Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Cases cited:	Astor & Astor [2007] FamCA 355 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Bartel & Schmucker (No 3) [2012] FamCA 1094 Bright v Bright (1995) FLC 92-570 Deiter & Deiter [2011] FamCAFC 82 Correa & Maestri [2022] FedCFamC2F 609 Eaby & Speelman (2015) FamCAFC 104 Fox v Percy (2003) 214 CLR 118 Gin & Hing [2010] FamCA 617 Goode & Goode [2006] FamCA 1346 H v W (1995) 18 Fam LR 788 Jurchenko & Foster (2014) 51 Fam LR 588 M & M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 MRR v GR (2010) 240 CLR 461 N & S and the Separate Representative (1996) FLC 92-655 R & R: Children’s Wishes (2000) 25 Fam LR 712 Russell & Russell & Anor [2009] FamCA 28 Slater & Light [2013] FamCAFC 4 Taylor & Barker (2007) FLC 93-345 Zawai & Rayne [2016] FamCAFC 90
Division:	Division 2 Family Law
Number of paragraphs:	433
Date of last submissions:	23 February 2023
Date of hearing:	8, 9, 10 August 2022, 17, 18 October 2022 & 1 February 2023
Place:	Adelaide
Counsel for the Applicant:	Ms Cocks
Solicitor for the Applicant:	D’Angelo Lawyers
Counsel for the Respondent:	Mr McLeod
Solicitor for the Respondent:	Ryder Family Law
Counsel for the Independent Children's Lawyer:	Ms Boyle
Solicitor for the Independent Children's Lawyer:	Legal Services Commission of South Australia

ADC 3300 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CORREA Applicant
AND:	MS MAESTRI Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE BROWN
DATE OF ORDER:	12 May 2023