Danvers & Ragusa
[2024] FedCFamC2F 203
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danvers & Ragusa [2024] FedCFamC2F 203
File number(s): ADC 1763 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – PARENTING – children aged seven and five years – final hearing on limited issues – hearing conducted ‘on the papers’ – where there are final consent orders resolving all issues save for those relating to the children’s attendance at sporting and extracurricular activities – consideration of Child Impact Report – consideration of best interests – section 68B injunctions – parties to attend mediation at a later date. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 68B. Cases cited: Bennett & Bennett [2001] FamCA 462
Dalby & Jemmet (No 2) [2023] FedCFamC2F 800
EJK & TSL [2006] FamCA 730
Goode & Goode (2006) FLC 93-286
Flanagan & Handcock [2000] FamCA 150
Hedlund & Hedlund [2021] FedCFamC1A 84
Division: Division 2 Family Law Number of paragraphs: 101 Date of hearing: 24 January 2024 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Camatta Lempens Pty Ltd Counsel for the Respondent: Ms Betro Solicitor for the Respondent: Legal Services Commission of South Australia ORDERS
ADC 1763 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DANVERS
Applicant
AND: MS RAGUSA
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
22 FEBRUARY 2024
UPON NOTING THAT:
A.The parties are to interact and communicate with each other in a polite and respectful manner if they are both attending at the said children’s sporting activities or extracurricular activities.
THE COURT ORDERS THAT:
1.The parties are at liberty to attend at the children’s extracurricular activities and sporting events including training and gradings that occur whilst the children X born in 2016 and Y born in 2018 (‘the children’) are in the care of the other parent.
2.The parties are restrained and injunctions are granted restraining each of them from enrolling the children in any sport or extra-curricular activity unless such activity is agreed between the parties in writing.
3.The father is at liberty:
(a)to volunteer for and coach at any school-based sports and extracurricular activities;
(b)to attend all school-based trainings/practices or games whether the father is actively involved with the team by way of coach, manager, trainer, volunteer or otherwise; and
(c)to attend at the child X’s sports trainings, gradings and matches ON CONDITION that the father provides the mother with no less than forty-eight (48) hours prior notice via the Parenting App that he intends to do.
4.The mother shall forthwith respond to the father’s prior notice as set out in paragraph 3(c) herein to advise him if the child X will not be attending her sports trainings, gradings or matches.
5.The mother is at liberty to attend at any of the children’s sports and extracurricular activities with an agent or an agent attending on her behalf should she elect to do so.
6.As and from February 2026 the parties shall attend a mediation with such private mediator or community-based organisation as the parties agree, for the purpose of discussing a variation or discharge of the order set out in paragraph 2 herein.
7.All extant applications are dismissed as finalised.
8.Each party do bear their own costs of and incidental to these proceedings.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
Mr Danvers (‘the father’) and Ms Ragusa (‘the mother’) are the parents of two children namely, X born in 2016 and Y born in 2018 (‘the children’). The children are aged seven and five years respectively.
On 8 November 2023, the parties entered into final parenting orders by consent in relation to the children save for one discreet issue. At the time, the issue was confined to an order sought by the father that he be at liberty to attend “all trainings/practices or games that occur when the father is actively involved with the team, by way of coach, manager, trainer or volunteer” in relation to the children’s attendance at extracurricular and sporting activities.[1]
[1] See Notation B. to the Orders made by a JR on 28 November 2023.
The father’s application was opposed by the mother.
On 28 November 2023 the parties jointly requested that the remaining issue in dispute be listed for argument ‘on the papers only’ and specifically recorded that they did not seek to cross-examine each other nor the Court Child Expert. For the Reasons set out herein, the court records that proceeding in the manner requested by the parties has hampered the court’s ability to grapple with the remaining issues on a final basis. This was not assisted by the fact that at the time of final hearing each of the parties had further amended and expanded their respective positions.
These Reasons attempt to address the remaining issues in dispute. In the absence of being able to make findings on a number of critical issues, this has resulted in orders being made as set out herein which may unfortunately result in the parties requiring further judicial determination if they are ultimately unable to reach agreement at mediation.
BACKGROUND
The father is 38 years of age and is employed as a public servant and works shiftwork. The mother is 34 years of age and is a student and the primary caregiver for the parties’ children.
The parties commenced cohabitation in 2014 and separated for the final time on 20 January 2019.
Both children attend C School.[2] Y has been diagnosed with Global Developmental Delay.[3]
[2] At paragraph 19 of the Child Impact Report dated 6 September 2023, the mother reported to Court Child Expert B that Y would commence school in 2024. There is no evidence to the contrary at the hearing.
[3] At paragraph 19 of the Child Impact Report dated 6 September 2023, the mother also advised Court Child Expert B that Y has a “sensory processing disorder”.
X is enrolled to play sports on Thursdays at 4:00pm and on Wednesdays in the evening with occasional gradings on a weekend. Y currently plays no formal sport.
On 21 April 2023, the father initiated proceedings seeking parenting orders in relation to the children.
A Child Impact Report dated 6 September 2023 was prepared by Court Child Expert B (‘the Court Child Expert’).
On 8 November 2023 the parties entered into final consent orders in relation to the children. Those orders provide, inter-alia, for the parties to have equal shared responsibility for the children, the children to live with the mother and the father to spend time with the children in an increasing fashion on a four-weekly cycle. By March 2024, the children will spend time with the father from the conclusion of school on a Friday (or 3:30pm if a non-school day) until 3:00pm Sunday on two weekends per month. As and from the Term Three school holidays, in 2024 the time will increase to conclude at the commencement of school on a Monday (or 5:00pm if a non-school day). The father also spends time with the children on Monday night and extra time during the Christmas school holidays. Further orders were made with respect to a sharing of special occasions and FaceTime telephone calls. The parties are to communicate via the ‘AppClose’ parenting application unless in the event of an emergency. Mutual ‘non-molestation’ and ‘non-denigration’ injunctions were also made by consent.
By its terms, there was nothing in the orders made on 8 November 2023 that otherwise restrained the father from attending at the children’s sporting or extracurricular activities, whether those sports or activities fell within his time with the children or otherwise. Nor is there an intervention order for the protection of the mother or the children which would warrant an order being made specifically permitting the father to attend at those events to avoid any potential breach.[4] Arguably, the father attending at the children’s sport when in the mother’s care could constitute a breach of section 65M(2)(c) of the Family Law Act 1975 (Cth) (‘the Act’) although this was not argued by the mother before me.
[4] Family Law Act 1975 (Cth) s 68P.
DOCUMENTS RELIED UPON
The father relies upon an Outline of Case Document filed 22 January 2024 which sets out in 'Part B' the documents relied upon by him.
The mother relies upon an Outline of Case Document filed 22 January 2024 which sets out in 'Part B' the documents relied upon by her.
Both parties relied upon the Child Impact Report of Court Child Expert B dated 6 September 2023.
ORDERS SOUGHT
The father sought the following orders:
22.That the father be at liberty to attend: -
b.weekend sports activities and competitive games that occur mid-week and in the event the children are not attending, the mother provide the father with notice of their non-attendance as soon as practicable;
c.all trainings/practices or games that occur when the father is actively involved with the team, by way of coach, manager, trainer or volunteer…
23.That each party be able to attend all special events including but not limited to such events as gradings, carnivals, finals, recitals and concerts regardless of who is spending time with the children.
24.That neither party approach the other at any of the events referred to in 22 or 23 above, and in the event they are in the vicinity of each other, the parties are to both be respectful and polite to each other at all times and in the event either child wishes to speak to the other parent with whom they are not living with at that time, they be encouraged to do so by that parent, with neither parent refusing the child’s request.[5]
[5] See the Amended Initiating Application filed by Mr Danvers on 18 December 2023.
The mother sought the following orders:
1.That the parties are at liberty to attend the children’s extracurricular activities while the children are in the care of the other parent on Saturday and Sunday, and at such other times as may be agreed between the parties in writing.
2.That the parties are restrained and an injunction is hereby granted restraining each of them from enrolling the children in any extracurricular activities that occur during the children’s time with the other parent unless agreed between the parties in writing.”[6]
[6] See ‘Exhibit M1’.
At the hearing, the father instructed his counsel that he would consent to the injunction as sought by the mother save and except for a ‘carve out’ said to comprise any enrolment or attendance by the children at sporting fixtures affiliated with the Suburb D Club, of which the father is a member.
The mother opposed the father’s counter proposal.
THE FATHER’S POSITION
The father’s affidavit sets out in detail his sporting history commencing in reception at primary school. It is evident that sports has been a big part of the father’s life and continues to be so. Specifically, the father has been involved at the Suburb D Club commencing as a player in 2005 and as a coach.[7]
[7] See the Affidavit of Mr Danvers filed 18 December 2023 at paragraph 4.
The father deposes to teaching his children:
…the right way to do things, such as catching, kicking. We do fun little drills and I will be helping out this year and hope that my children will be enrolled.[8]
[8] See the Affidavit of Mr Danvers filed 18 December 2023 at paragraph 6.
The father states that he had:
…always envisaged that when I had children, I would be at their events supporting them like my parents were for me. I have great memories and such a great relationship with my parents and grandparents because of it. I knew I was always loved and supported. I fear that my children will miss out on this experience if I am not allowed to be there and this is something I do not want for them.[9]
[9] See the Affidavit of Mr Danvers filed 18 December 2023 at paragraph 7.
It is the father’s evidence that X has requested his attendance at her sports training. The father describes it as “heartbreaking” that he has to mislead X as to why he is not attending at her sports training and that “it pains” him to make up excuses as to why he cannot attend.”[10] The father describes wanting to be “heavily involved” in any sport that the children engage in and to participate in the children’s activities as a trainer coach or volunteer.
[10] See the Affidavit of Mr Danvers filed 18 December 2023 at paragraph 8.
The father deposes that as sport and sporting clubs have always been a large part of his life, he knows “how good sporting clubs are at providing a stable, safe and supportive environment for the children, in addition to the benefits of engaging in physical exercise.”[11] During his weekends with the children the father describes taking them to his club where the children “… both love having a game together and ask me to coach them when they’re older”.[12]
[11] See the Affidavit of Mr Danvers filed 18 December 2023 at paragraph 12.
[12] See the Affidavit of Mr Danvers filed 18 December 2023 at paragraph 20.
Whilst acknowledging that it would not be “appropriate to have them have an activity every night”, the father expresses an opinion that the children “should be able to choose to try new activities out in a loving and supported environment.”[13] In that regard, the father confirms that he will pay for those activities if not supported by the mother.
[13] See the Affidavit of Mr Danvers filed 18 December 2023 at paragraph 19.
At hearing, the father denied the mother’s allegation that he has recently enrolled X at a “Sports Club”. The father stated that it was “an enquiry only”. The father did not deny that he had told X of that enquiry, which is how the mother came to be aware of it.
THE MOTHER’S POSITION
It is the mother’s position that any future extracurricular activity or sport attended by either children should be a joint decision agreed between the parties. The mother promotes a proposal that any future enrolments in sport or extracurricular activities be made jointly so as to ensure the children’s consistent attendance. It is the mother’s view that enrolling the children in any sport or activity which they are then only able to attend during one parent’s time spending would not be in the children’s best interests.[14]
[14] See the Affidavit of Ms Ragusa filed 15 January 2024 at paragraph 2.
The mother consents to the father attending at all school events that parents would ordinarily be invited to attend regardless of whose time spending in which it occurs. The mother consents to the father being able to take the children to any agreed sporting or extracurricular activities which fall during his time. The mother takes no issue with the father volunteering to assist at school events. The mother does not seek to limit the father’s ability to coach or volunteer at sporting or extracurricular events provided it occurs on a weekend. The mother is opposed to the father attending every sporting and extracurricular activity that occurs during the week when the children are living with her. The mother is concerned that the sporting and extracurricular activities may be used by the father as an opportunity to spend further time with him over and above the existing orders.
The mother observes that the father has been a long-standing member of the Suburb D sports club. It is the mothers view that Y does not enjoy attending at the sports club. In her opinion, the Suburb D club permits “gambling and heavy drinking” which the mother does not consider is an appropriate environment for the children to be exposed to. It is also the mothers view that the father has been discussing his desire to attend at practices with X. The mother strongly denies that X has become upset if her father is unable to attend her events.
The mother does not have a drivers licence due to a medical condition. The mother is assisted with transport by the maternal grandmother. Therefore, the mother will require third-party assistance in getting the children to any sporting fixtures. The mother resides in Suburb E. The father resides in Suburb F. There was no dispute at the hearing that the distance between the parties’ residences involved approximately a 25-minute drive. Therefore, the mother indicates a future preparedness to consent to the children engaging in sporting and extracurricular activities only if she could reasonably expect to have assistance from the maternal grandmother.
The mother deposes in her affidavit to continuing to “…feel threatened and intimidated by the father when I am in his presence.”[15] The mother contends that she deliberately does not attend at handovers with the father on her own and will always attend with a family member present. The mother alleges that when in the vicinity of the father she becomes “extremely anxious” and she is concerned that if the parties were to increase the occasions when they would come into contact with one another, the children would become aware of her anxiety.
[15] See the Affidavit of Ms Ragusa filed 15 January 2024 at paragraph 10.
The mother states that if both parents were in attendance at extracurricular and sporting activities “…this may be confusing for the children due to the significant difference in parenting styles between the father and I.”[16] The mother complains that in the past the father has attended at X’s sports lessons and school without notice. It is the mother’s observation that during the lesson X spent much of the lesson looking at the father rather than concentrating on her teacher. On the occasion of a sports school lesson, the mother alleges that the father went into X’s class causing a disruption. The mother describes the father as “very competitive” and that he will call out and try to coach from the sidelines. She describes him as “intrusive” and not a parent who will simply sit back and watch the children participate in the sport.[17]
[16] See the Affidavit of Ms Ragusa filed 15 January 2024 at paragraph 13.
[17] See the Affidavit of Ms Ragusa filed 15 January 2024 at paragraph 15.
The mother opposes any suggestion of the father meeting the cost of sporting activities believing that this will result in unilateral enrolments.
The mother complains that even in the face of the current litigation the father had enrolled the children at a sports lesson at Suburb F on a Saturday, this is an activity which is said to take place each week during the summer months. The mother alleges that X informed her of the enrolment and, that the father told X that she will “miss out” on this activity when in her mother’s care. During submissions the father’s Counsel denied that the children had been enrolled and submitted that the Court was advised that the father had made an enquiry only.
NATURE OF THE HEARING
It is important for the parties to understand that this is a limited hearing despite it being a final hearing. The evidence available at this hearing is limited in nature given that it has taken place ‘on the papers’. I have not had the opportunity to hear evidence from the parties nor to see them cross-examined. I am unable to make findings about the contested evidence nor to test the veracity of each parties’ allegations.
Given the nature of the hearing I am unable to resolve the various factual disputes between the parties.
In the absence of cross-examination, the ability of the Court to finally determine the issues in dispute is significantly curtailed. At hearings such as this, the Court is cautioned against being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[18] Instead the Court must look to less contentious issues such as any facts which are either agreed or any issues which are not in dispute.
[18] Goode & Goode (2006) FLC 93-286, 80,901, [68].
ISSUES THAT ARE AGREED
Upon reading the documents relied upon, the parties agree that:
(1)The children would benefit from engaging in sport and extracurricular activities;
(2)Each party can attend any sport or extracurricular activity that falls in each other’s time with the children on a weekend;
(3)If the parties simultaneously attend a sport or extracurricular activity, they will behave in a polite and courteous manner towards each other;
(4)X should continue with her current sporting activities;
(5)As at the date of interview with the Court Child Expert, the parties reported that at handovers, they behave in a civil and “superficially friendly manner” sharing relevant child-related information;[19]
(6)X had done well at school in 2023;[20]
(7)No Domestic Violence Intervention Orders had been made;
(8)There are no current or former diagnosis of mental health conditions for themselves or for each other;[21]
(9)There are no concerns in relation to the other parent’s use of illicit drugs of misuse of alcohol and the consequent impact on their parenting capacity;[22]
(10)They each “greatly love and are committed to their children” with the Court Child Expert observing that each brought with them a different set of strengths/offerings in how they parent; and[23]
(11)They use different conflict styles which has led to increasing tension/conflict between them particularly as to how they should parent or manage the children. The parties reported and agreed that these unresolved differences now underpin their current conflict.[24]
[19] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 8.
[20] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 17.
[21] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraphs 38 and 39.
[22] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 41.
[23] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 42.
[24] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 43.
ISSUES THAT ARE IN DISPUTE
Upon reading the documents relied upon, the parties do not agree the following:
(1)What sports or extracurricular activities the children should participate in either now or in the future;
(2)Whether the father should be able to attend at any sport or extracurricular activity that does not fall on a weekend;
(3)If the children are enrolled in an activity, who will pay;
(4)Whether or not either parent can enrol the children in a sport or extracurricular activity without the other parent’s consent whilst acknowledging that the other parent would not be obliged to facilitate the children attending during their period of care; and
(5)As at August 2023 when the parties were interviewed by the Court Child Expert, the parties were in dispute as to their individual assessments as how the children were coping with time spending.
CHILD IMPACT REPORT DATED 6 SEPTEMBER 2023
In August 2023, the parties were interviewed by the Court Child Expert.
The parties held contrasting views as to how the children were coping with time spending. It was the father’s report that his face-to-face contact with the children was proceeding well and that handovers had proceeded smoothly. By contrast, the mother reported that the children found their regular time with the father “very anxiety producing”. The mother reported that X returns dysregulated and noticed a demonstratable change in her usual demeanour. The mother reported Y having cried before visits with his father and that Y had reported his father as having been “scary” and that he did not want to go. The mother contended that whilst the children appeared “upbeat and positive” when saying goodbye to their father, they “…immediately become upset and dysregulated as she drives away with them…”.[25]
[25] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 5.
The mother reported that X has ongoing “anxiety” as a consequence of witnessing the father’s alleged family violence during their relationship but hides it, particularly when with her father. The mother described that her tone with the children is “gentle” in comparison to the father describing him as a “get on with it approach” and that the children struggle with this approach.[26]
[26] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 6.
The father reported to the Court Child Expert that X does not have any developmental/learning challenges but was engaged with a Psychologist to assist with “symptoms of anxiety” and grinding of her teeth. The father reported that X’s behaviour had now settled. It was the father’s view that X did not require any further support at this stage.[27]
[27] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 15.
By contrast, the mother reported that X had been seeing a psychologist since she was three years of age on a fortnightly basis which has assisted in emotional self-regulation.[28]
[28] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 16.
Both parents reported that Y had been diagnosed with “global developmental delays” at the age of four. It was the father’s view that Y’s difficulties would “dramatically improve once he starts at school”.
The mother reported that Y consults with a range of professionals and that she was currently seeking NDIS funding for ongoing therapy. The mother remained concerned that Y was not developmentally prepared to commence at school due to delays with his communication and motor skills.[29]
[29] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 19.
The father reported no child safety concerns in respect of the mother’s care of the children. The father strongly refuted any inappropriate behaviour towards X. By contrast, the mother reported child safety concerns with respect to X more than Y. These related to X’s emotional/psychological wellbeing and physical safety.[30]
[30] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 29.
The observed interaction of the children with their father demonstrated that both children appeared enthusiastic to see their father and showed no signs of fear at any stage. The children were reported as being “very physically playful and affectionate” throughout the observed interaction.[31]
[31] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 23.
The father denied any occurrence of family violence. He reported one occasion wherein during a physical tussle the mother “accidentally hit her hand” against the bedhead. The mother alleged that the father engaged in one incident of “pulling” but otherwise abused her by “yelling and slamming doors” with this behaviour occurring at times in the presence of the children.
The mother alleged that the father refused to drive her to places and had expressed displeasure of the mother’s practice of co-sleeping with the children.[32]
[32] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 35.
The father reported no child safety concerns in respect of the mother’s care of the children. The father denied any allegation as raised by the mother involving child safety, especially towards X.
The mother informed the Court Child Expert that she believed X’s disclosures that the father had purportedly “invited/forced her” to touch his genitals. As to the child Y, the mother alleged that he is anxious and fearful prior to spending time or talking to the father.
Both parties confirmed that there were no “Intervention Orders”.
Whilst family violence was not assessed by the Court Child Expert as being a current risk factor, she acknowledged that the mother “conveyed she has unresolved fears/concerns/anxieties with respect to the father consequent to his purported reactivity during their relationship”.[33]
[33] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 37.
The mother reported that the children’s manner of engagement during the assessment did not reflect their true emotions. The Court Child Expert opined as to a number of reasons as to why this might be so. One of them was that the children’s alleged complaints about their father when with their mother are a ‘habituated response’ based on their expectations as to what they think their mother wishes to hear. The Court Child Expert explained that:
Children are exquisitely attuned to the feelings of their ‘primary focus’ parent irrespective of whether or not these are verbally expressed. [Ms Ragusa] conveyed palpable feelings of anxiety, mistrust and fear in respect of [Mr Danvers]. She also conveyed she his highly protective of the children.
This is to some extent understandable given their (the children’s) respective anxiety based and developmental changes but major note her general disposition and/or her unresolved feelings/experiences from her and [Mr Danvers]’ relationship.[34]
[34] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 47.
It is the Court Child Expert’s opinion that the children’s respective challenges may also leave them less able to cope with change and difference between households, including separation from their mother at this stage of their development.[35]
[35] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 48.
The Court Child Expert suggested that:
…It is unlikely [Ms Ragusa] will be able to engage with [Mr Danvers] in a more cooperative, collaborative and information sharing manner until she resolves her feelings/experiences in respect of him. However, [Mr Danvers] may also be required to develop a greater understanding/awareness of [Ms Ragusa]’s experiences during their relationship so as to better understand her responses (then and now) and engage more sensitively/constructively with her in the future.[36]
[36] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at \paragraph 50.
Further, given the children’s special needs and ages she observed that it will be imperative that the parties co-parenting relationship improves (in respect of their ability to communicate/cooperate) so that they can support the children’s requirements and ensure some degree of alignment between the households in respect of routines/practices/approaches which would lessen the burden on the children to continuously adapt. This will be important if the children are to achieve their optimal outcomes regarding future development, learning and emotional/psychological wellbeing.[37]
[37] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 51.
The Court Child Expert made a number of recommendations including a recommendation that the parties separately engage with a counsellor to address their unresolved issues in respect to one another and for support in building a more cooperative/communicative co-parenting relationship. For reasons that have not been articulated to the Court, that recommendation has not been taken up by the parties at the time of the final hearing and no submission was made by either parties’ counsel that they would endeavour to do so in the future. [38]
[38] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph g) on page 13.
LEGAL PRINCIPLES
The issues in dispute between the parties concern two discreet topics namely parenting orders and an injunctive order pursuant to section 68B of the Act now sought by the mother.
The Court has held that orders pursuant to section 68B of the Act for injunctions are informed by the best interests test but not by the paramountcy principle.[39]
[39] Hedlund & Hedlund [2021] FedCFamC1A 84; Flanagan & Handcock [2000] FamCA 150; EJK & TSL [2006] FamCA 730; Bennett & Bennett [2001] FamCA 462.
In determining all of the parenting issues in dispute, the Court must still regard the best interests of the children as the paramount or most important consideration.[40] In determining a child’s best interests, the Court must take into account the matters set out in section 60CC of the Act.
[40] Family Law Act 1975 (Cth) s 60CA.
Section 60CC of the Act sets out two classes of considerations, namely the primary considerations and a longer list of additional considerations. The Court is directed to give greater weight to the primary considerations which align with the objects and principles set out in section 60B of the Act.
There are two primary considerations, namely:
(1)The benefit to the child having a meaningful relationship with both of the child’s parents; and
(2)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[41]
[41] Family Law Act 1975 (Cth) s 60CC(2)(a) & (b).
Section 60CC(2)(a) of the Act directs the Court when applying the primary considerations to “give greater weight” to the primary consideration relating to protective concerns.
Additional considerations are further set out in section 60CC(3) of the Act, being criteria that the Court must consider in determining the best interests of the children. In considering the section 60CC(3) factors the Court considers the following to be relevant to the facts of this case:
(a) any views expressed by the child and any factors (such as the child’s maturity level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Each of the parties not unsurprisingly allege in their Affidavit material that X has expressed a point of view regarding her ongoing involvement with sport that aligns with each parties’ position now before the Court.
There is no independent evidence of X’s views. Even if there were, the Court would be reluctant to place weight on the wishes of a seven-year-old child.
(b) the nature of the relationship of the child with each of the child’s parents and any other persons
The observed interaction undertaken for the purposes of the Child Impact Report showed that the children have a close relationship with each of their parents. Specifically, the children showed no sign of fear when the presence of their father. X made it clear to the Court Child Expert that she loved each of her parents and that she did not love one more than the other.[42]
[42] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 25.
The mother maintains that the children’s relationship with their father is not what can be seen on the surface and that the children in her care show markedly different behaviours both prior to and upon returning from time spending with their father. Given the nature of this hearing the Court is unable to make any finding in relation to the mother’s allegations and is left with the observation and comments made by the Court Child Expert in her report which suggest that the children enjoy their father’s company and are comfortable in his care.
(c) the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and to communicate with the child;
I do not consider that this sub section impacts on the Court’s decision making. The father has clearly sought to be an active and hands on parent and initiated proceedings seeking relief from the Court enabling him to do so.
The mother has taken all appropriate steps as the children’s primary carer to make decisions about the children’s major long-term issues and day-to-day care. The father has consented to a final order that the mother remain the children’s primary carer.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living;
Whilst the issue of the children’s sporting attendance may not be regarded as a ‘substantial change in the children’s circumstances’ the observations and comments made by the Court Child Expert in her report suggest caution in there being too many changes to the mother’s household at this stage.
Without careful implementation, the Court is concerned that too many changes may overwhelm the mother and in turn the children resulting in a backwards step in terms of the parties coparenting relationship.
(e) the practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The practical difficulty in this case relates to the mother’s opposition to the father unilaterally enrolling the children in any extracurricular or sporting activities without her consent. The mother makes the valid point that she does not drive. This is not disputed by the father. Hence, either the mother needs to prevail upon her own mother for assistance in transport, or the children miss out on attending an activity or the father will be required to collect the children and return them to the mother.
None of those scenarios are optimal in the current circumstances. The parties’ coparenting relationship at this preliminary stage does not support an outcome which will see the parties being able to easily transition the children from one parent to another in order to facilitate sports attendances.
(f) the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
The Court is satisfied on the material available that each of the parties have the capacity to provide for the children’s needs including emotional and intellectual needs.
(g) the maturity sex lifestyle and background of the child in either of the child’s parents and any other characteristics of the child that the court thinks are relevant;
The children are still very young. X is seven years and Y is five years. The children have many years ahead in which to enjoy sporting and extracurricular activities. Y has just commenced at school. The parties agree that Y has some special needs which will require careful monitoring and support particularly as he transitions into the school environment in 2024.
(i) the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents;
Each parent has displayed a proper attitude towards discharging their responsibilities as a parent. It is my view that the issue in this case relates more to the different parenting styles and the parties’ different personalities and how this may impact on the children moving forward. Whilst I am not able to make any findings, the material suggests that the mother is a highly protective parent. By contrast, the father’s personality appears more outgoing and robust which would lend itself to his occupation as a public servant.
(j) any family violence involving the child or a member of the child’s family;
Whilst the Court Child Expert did not assess family violence a current risk factor in her report, she did however acknowledge that the mother conveyed unresolved fears or concerns with respect to the father arising from the father’s alleged “reactivity” during their relationship.
The mother’s presentation at interview with the Court Child Expert was described as “palpable” in conveying feelings of ‘anxiety, mistrust and fear’ regarding the father.
The Court is unable to make any finding as to whether or not the mother’s presentation was genuine or otherwise. In the absence of cross-examination, this evidence sits there as a factor to consider in determining the current issues in dispute.
The Court Child Expert also opined that it was not unreasonable to expect that the mother’s anxieties would be picked up on by the children.[43] It is open to me to infer that this is likely to include any occasion when the parties come into contact with one another for the purposes of sports and/or extracurricular activities.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
[43] See the Child Impact Report dated 6 September 2023 prepared by Court Child Expert B at paragraph 47.
Given the manner in which this hearing was conducted and noting the Court’s concerns about its inability to make findings on a number of critical albeit narrow topics, the Court will endeavour to attempt to make orders which will resolve the current remaining issues in dispute as best it can on the evidence available. The fact that the attendance of the children at sports was the only issue which could not be resolved by consent speaks to the strength of conviction that each party has on this issue. It may be inevitable that the sports issue returns to Court if the parties cannot in the future agree to a variation of the injunction which the Court has determined at this time to be in the best interests of the children.
Given the limitations of this hearing, I do not rule out the possibility of the sporting and extracurricular activity issues potentially returning to the Court for further determination if the parties are unable to reach agreement at mediation.
INJUNCTIONS SOUGHT BY THE MOTHER
In paragraph 2 of ‘Exhibit M1’, the mother seeks an injunction that would restrain both of the parties from enrolling the children in any extracurricular activities that occur during the children’s time with the other parent unless agreed between the parties in writing.
At hearing the father’s counsel informed the Court that the father would agree to this order save for a carve out permitting the father to enrol the children in and attend at activities at the Suburb D Sports Club.
The father’s proposal was opposed by the mother.
I consider that the injunction sought by the mother falls within the range of orders contemplated by section 68B of the Act as being appropriate for the welfare of the children.
As set out in paragraph 62 herein, in considering such an order the requirement to regard the best interests of the children as the paramount consideration does not apply. The best interests of the children remain “a matter of careful consideration and of significant weight particularly where injunctions are sought between parties for the welfare of children.”[44]
[44] Dalby & Jemmet (No 2) [2023] FedCFamC2F 800.
The Court has already referred in these Reasons to the section 60CC factors.
CONCLUSION
I have come to the conclusion that the Court should make orders largely as sought by the mother but with some additions. I do so for the following reasons:
(1)The parties co-parenting relationship remains fragile following the recent making of final consent orders. I consider that the children and the parties will benefit from a period of time for the orders to ‘bed down’ before any further changes are contemplated;
(2)It is unrealistic to think that making an order permitting enrolment in sports unilaterally by one parent won’t potentially have a possible negative effect on the other parent and their household. If the children love playing a particular sport when with the father there is the potential for knock on consequences in the mother’s home. It is agreed that the mother does not drive, relies on her mother for transport and currently the parties are restrained from attending at each other’s homes. How attendance at future sports matches is to be facilitated requires careful management to ensure that it does not become a point of contention between the parents which could also embroil the children;
(3)The children are still very young and have many more years ahead of them to enjoy sporting pursuits with the involvement of their parents; and
(4)Whilst the father may see the recent sports club inquiry as benign, it reinforced the mother’s point that the father is keen to get the children involved in sport and activities and that he will do so without reference to her. It may also set up expectations for the children which the mother simply cannot uphold.
I do not consider the father should be excluded from attending at X’s current sports events which occur in the mother’s time. The father should have an opportunity to attend but with a precondition that he notify the mother in advance if he intends to do so. It will be a matter for the mother then as to whether or not she will also be present. Absent any professional assistance, the mother will need to develop strategies to deal with seeing the father at sport events.
The mother’s anxiety about being in the father’s presence may lead to even more discomfort if steps are not taken by her to address his. Avoidance may lead to increased anxiety. The parties have agreed final consent orders for equal shared parental responsibility. Implicit in this order is the recognition that the parties will need to confer and consult with one another. Excluding the father from sports lessons will only further entrench the parties sequestration from one another.
The future attendance of both parties at X’s sports together provides an ideal opportunity for the parties to demonstrate to each other and the children, that they can attend and support their children without further concerns. The parties have each had notice of the views of the other through the affidavits filed for this hearing. Hopefully they can take them on board when interacting with each other in the presence of the children in the future.
It is regrettable that the Court was not told that the parties had taken up the suggestion of personal counselling to build a more cooperative/communicative co-parenting relationship as recommended by the Court Child Expert. Absent this, it is another reason to proceed cautiously at this stage.
I decline to make an order that the parties behave respectfully and politely to each other when attending events contemporaneously and in the presence of their children. This is expected behaviour from good parents.
I further decline to make an order about encouraging children to speak with the other parent. In the absence of professional assistance, the parties will need to develop strategies themselves on how to be at events together with their children.
I will direct that the parties attend at mediation to discuss the issue of sports enrolment in the future if they have not been able to resolve it amicably between themselves beforehand. Regrettably, if they do not so, I anticipate that a further application for sports enrolment may be filed by the father.
For all of the above Reasons, the Court makes the orders set out at the commencement of this Judgment.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 22 February 2024
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