Deave & Pallin (No 3)
[2024] FedCFamC2F 691
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deave & Pallin (No 3) [2024] FedCFamC2F 691
File number(s): HBC 1339 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – parenting – final orders – parental responsibility – conflictual relations and exposure of child to same – previous order for equal shared parental responsibility agreed not to be workable and no longer in child’s best interests – order for mother to have sole parental responsibility – live with arrangements – equal shared care – not persuaded it is necessary or in best interests of the child to vary live with orders Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Carter & Wilson [2023] FedCFamC1A 9
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 77 Date of hearing: 12-14 March 2024 Place: Hobart Counsel for the Applicant: Mrs Mooney SC Solicitors for the Applicant: Simmons Wolfhagen For the Respondent: The Respondent in person Counsel for the Independent Children's Lawyer: Mr Trezise The Independent Children's Lawyer: Ms Van Meer, Tasmania Legal Aid ORDERS
HBC 1339 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DEAVE
Applicant
AND: MR PALLIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
1.All prior parenting orders are hereby discharged.
Parental responsibility
2.The mother, MS DEAVE (“the mother”), have sole parental responsibility for the child, X born in 2013 (“the child”).
3.For the purposes of Order 2 of these Orders, sole parental responsibility means decisions about major or long-term issues for the child including:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health and medical or allied health treatment;
(d)The child’s sport (including sports club) and extra-curriculum activities; and
(e)The child’s living arrangements providing the decision or change does not make it more difficult for the child to spend time with the father, MR PALLIN (“the father”).
4.For the purposes of Orders 2 and 3 of these Orders and exercising sole parental responsibility:
(a)The mother must message the father by the Our Family Wizard app of any decisions that she intends to make that concern “major or long-term issues” for the child at least twenty eight (28) days prior to those decisions being made;
(b)Within fourteen (14) days of the date of any message sent by the mother by the Our Family Wizard app to the father pursuant to Order 4(a) of these Orders, the father may respond in no more than two (2) Our Family Wizard messages, setting out his feedback in a polite and business-like manner, on her notice of the major or long-term issue which has arisen;
(c)The mother upon receiving the father's communication pursuant to Order 4(b) of these Orders, must acknowledge receipt and give genuine consideration to the father's feedback but is not bound by it; and
(d)Fifteen (15) days after providing the written notice referred to in Order 4(a) herein, the mother may then exercise her parental responsibility and must notify the father in writing of the decision taken by the Our Family Wizard app.
Live with, spend time and communicate with
5.The child shall live with each parent in a week about arrangement in accordance with the current pattern of care.
6.On special occasions, Order 5 herein is suspended and the following living arrangements for the child will occur:
Christmas, being the period from 24 December until 26 December each year:
(a)In the year 2024 and each alternate year thereafter:
(i)With the father from 5:00pm on 23 December until 5:00pm on 24 December; and
(ii)With the mother from 5:00pm on 24 December until 11:00am on 26 December; and
(b)In the year 2025 and each alternate year thereafter:
(i)With the father from 5:00pm on 23 December until 11:00am on 25 December; and
(ii)With the mother from 11:00am on 25 December until 2:00pm on 26 December.
Mother’s day
(c)If the child is not already with the mother, then the child will spend time with the mother from 5:00pm on the day prior to Mother’s Day until the commencement of school the Monday immediately after Mother’s Day, or 9:00am if the Monday is not a school day.
Father’s day
(d)If the child is not already with the father, then the child will spend time with the father from 5:00pm on the day prior to Father's Day until the commencement of school the Monday immediately after Father’s Day, or 9:00am if the Monday is not a school day.
Child’s birthday
(e)The child will spend time with the parent whose care he is not already in from 2:00pm (or the conclusion of school on a school day) until 9:00am (or the commencement of school) the next day.
Mother’s birthday
(f)In the event the child is not living with the mother on the mother’s birthday then the child will spend time with the mother from 5:00pm on the day prior to mother’s birthday until 5:00pm on the mother’s birthday.
Father’s birthday
(g)In the event the child is not living with the father on the father’s birthday, then the child will spend time with the father from 5:00pm the day prior to the father’s birthday until 5:00pm on the father’s birthday.
Easter
(h)In even years, with the mother from 5:00pm on Easter Saturday to 5:00pm on Easter Monday; and
(i)In odd years, with the father from 5:00pm on Easter Saturday to 5:00pm on Easter Monday.
7.In the summer school holidays, but not including during the Christmas spend time arrangements referred to in Order 6(a) and 6(b), on the condition that the parent gives at least sixty (60) days prior written notice, that parent may spend time with the child for two (2) consecutive weeks each year and in this event no makeup time will be given to the other parent.
8.The child communicate with the parent whose care he is not already in via telephone, Facetime or any other electronic video social media platform as follows:
(a)Twice per week when not in their care, on days agreed in writing between the parents via the Our Wizard App within fourteen (14) days of the date of these Orders and in default of an agreement, on Sundays and Thursdays;
(b)At other times as reasonably requested by the child to a parent; and
(c)For the purpose of this Order, each parent shall ensure the child has access to a charged mobile telephone or electronic device for this purpose.
9.With respect to any school events for the child, each parent is entitled to attend school events and extracurricular activities which parents are usually invited to attend during the other parent’s time with the child, except for sports practice/training during the other parent's time.
Changeover arrangements
10.That for the purposes of facilitating the child’s time with each parent, the following changeover arrangements will occur:
(a)If it is a school day, at the child’s school;
(b)If it is a non-school day, outside S Store in Suburb D, Tasmania; and/or
(c)Such other location as agreed in writing between the mother and the father.
Communication
11.The parties are to communicate in respect of the child alone and for the purpose of these Orders via Our Family Wizard, save and except for in the event of emergency and in the event of emergency concerning the child, the parties shall telephone the other party to notify them as to the emergency, as soon as practicable.
12.Within seven (7) days of the date of these Orders, the mother will establish an Our Family Wizard app account and invite the father to join; and
(a)Within three (3) days of receiving the invitation, the father will accept it and initiate all that is necessary for effective use of the app; and
(b)Each party will be responsible for their own cost of obtaining, establishing and using the app.
Injunctions
13.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the child the parties are each hereby be restrained by injunction from the following:
(a)Physically abusing or disciplining the child;
(b)Being verbally abusive or denigrating towards the child;
(c)Being abusive or denigrating towards the other parent in the presence of the child;
(d)Denigrating each other or each other’s family or loved ones to the child, and the parties will each remove the child from any third party doing so whilst the child is in their respective care;
(e)Discussing these proceedings and parenting disputes with the child, or showing the child any correspondence/documentation filed in proceedings or circulated between the parties' respective legal representation (past, present or future);
(f)Communicating about day-to-day matters concerning the child except to notify of an injury or illness to the child;
(g)Communicating otherwise than by use of the Our Family Wizard app for the purpose of complying with these Orders, except in the case of a medical emergency; and
(h)Communicating about the same decision or subject by more than two (2) Our Family Wizard app messages.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the child the father is hereby restrained by injunction from changing or cancelling appointments or other arrangements made by the mother for the child in her exercise of sole parental responsibility.
Interstate and overseas travel
15.Notwithstanding any other Order herein, each parent is hereby at liberty to take the child on interstate travel during the time the child is in their care, subject to the following:
(a)The travelling parent will give the non-travelling parent thirty (30) days written notice of the intended travel including the dates and destination of the intended travel; and
(b)Not less than fourteen (14) days prior to the travel, the travelling parent will provide the non-travelling parent with a complete itinerary for the child including flight details and accommodation.
16.Notwithstanding any other Order herein, each parent is hereby at liberty to take the child on one (1) overseas or interstate holiday in each calendar year for a period not exceeding fourteen (14) days (unless a longer time period is agreed in writing), subject to the following:
(a)The travelling parent will provide the non-travelling parent with sixty (60) days written notice of the intended travel including the dates of travel and intended destination;
(b)Not less than thirty (30) days prior to the travel, the travelling parent will provide the non-travelling parent with a complete itinerary for the child including flight details, and accommodation, departure and return dates;
(c)No make-up time will be provided to the non-travelling parent;
(d)The travel must not occur during the Christmas period referred to in Order 6(a) and (b) of these Orders or on the child’s birthday;
AND THE COURT NOTES this travel period may impinge on the other parent’s time.
17.Should either parent wish to exercise the provision to travel overseas with the child, the following will occur:
(a)The travelling parent will initiate preparation of the necessary paperwork to obtain a passport for the child and provide the same to the other parent;
(b)Within fourteen (14) days of receipt of the passport application for the child from the travelling parent, the non-travelling parent will complete the requisite documentation and return it to the travelling parent;
(c)The travelling parent will be responsible for the cost of obtaining the initial passport for the child;
(d)The child’s passport will be retained by the mother, and in the event of the father travelling overseas with the child, the mother will provide the father with the child's passport within seven (7) days of the father requesting the same;
(e)It is the travelling parent’s responsibility to ensure that the passport meets the travel requirements of the relevant country they are travelling to with the child and should the child's passport require renewal/updating, the travelling parent will initiate the application process for the same;
(f)The costs of any passport renewal application relating to the child is to be equally shared by the parents; and
(g)Should the non-travelling parent refuse or neglect to complete, sign and return documents pertaining to the child’s passport application referred to in Order 17(b) of these Orders, then a Registrar of the Hobart Registry of the Federal Circuit and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 (Cth), to sign or execute such a document on behalf of the non-travelling parent upon lodgement of such document and the filing of an affidavit of the travelling parent as to the said neglect or refusal.
Independent children’s lawyer
18.The appointment of the Independent Children’s Lawyer is extended for a period of seven (7) days from the date of these Orders for the purpose of meeting with the child to explain the Final Orders made by the Court.
19.For the purpose of order 18 above the parent with whom the child is residing must deliver the child to meet with the Independent Children’s Lawyer and the Court Child Expert at the Federal Circuit and Family Court of Australia on a date and time appointed by the Independent Children’s Lawyer.
Other orders
20.Within twenty one (21) days of the date of these Orders the parties are to make appointments, to engage with a psychologist for at least six (6) sessions for therapeutic assistance to process the Reasons for Judgment and Final Orders made by the Court and must follow the psychologist's treatment and recommendations to promote compliance with the Final Orders and promote the best interests of the child.
21.For the purposes of Order 20 of these Orders, each party is to provide a copy of the Reasons for Judgment and Final Orders to the treating psychologist.
22.Within seven (7) days of any change to the parties' residential addresses or mobile telephone numbers, the party will inform the other party in writing of the new details.
23.This Order acts as an authority to all health and medical professionals who treat the child from time to time to provide each of the parents with all information and documentation sought by them in relation to the child’s welfare and medical treatment from time to time, including but not limited to copies of all reports, referrals, records and documents pertaining to the child (at each party’s own cost).
24.This Order acts as an authority to all schools attended by the child from time to time, to provide to each of the parents all information and documentation sought by them in relation to the child’s welfare, progress and activities at school from time to time, including but not limited to providing the parties with copies of school newsletters and other notes/letters to the parties, copies of the child’s school reports, details of the child’s parent/teacher interviews, copies of order forms for the child’s school photos and certificates and awards obtained by the child (at each party’s own cost).
25.The parties have leave to provide a copy of the Final Orders to:
(a)The child’s school and any school the child attends in the future;
(b)The child’s general practitioner, any hospital or treating health or medical practitioner of the child, psychologist, or any allied health professional with whom the child is engaged; and
(c)The President or manager of the child’s sports team/club.
AND THE COURT NOTES THAT:
A.Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the Orders for personal protection in Orders 13 and 14 of these Orders have been breached.
AND THE COURT FURTHER NOTES THAT:
B.Orders 2 and 6(e) herein has been amended pursuant to Rule 10.1.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
The parties are the parents of X born in 2013 (“the child”). Final parenting orders were made for the child by consent on 19 March 2019. Those Orders provide for the parties to have equal shared parental responsibility and equal time with the child once the child turned six years of age (“the parenting orders”).
By 2021, the mother, Ms Deave, no longer considered the parenting orders to be in the child’s best interests or tolerable by her. She filed a new application seeking parenting orders on 21 December 2021.[1] The father, Mr Pallin, opposes any change to the spend time with orders but agrees that equal shared parental responsibility is no longer appropriate or in the child’s best interests.
[1] Mother’s trial affidavit filed 14 November 2023 at [16] to [20].
THE PARTIES’ OPPOSING CASES AND ISSUES TO BE DETERMINED
In general terms, by her Amended Initiating Application filed 14 November 2023, the mother seeks an order that she have sole parental responsibility for the child and that he lives primarily with her and spend four days per fortnight with the father.
The Responses filed by the father during these proceedings have varied somewhat as to the final orders he seeks, but during the hearing he clarified that he seeks an order for sole parental responsibility of the child and no change to the equal spend time/live with arrangements.
The hearing of these proceedings was conducted on 12 to 14 March 2024. The mother was represented by Senior Counsel, Mrs Mooney. The father appeared self-represented and was unable to personally cross-examine the mother because an Order had been made that s 102NA of the Family Law Act 1975 (Cth) (“the Act”) applied.[2] Mr Trezise appeared as counsel for the Independent Children’s Lawyer (“the ICL”). Mr Trezise also assisted the Court by questioning the mother about topics the father would otherwise have cross-examined about, subject to him considering those relevant to the Court’s determination.
[2] Orders made 15 January 2024.
DOCUMENTS RELIED UPON BY THE PARTIES
The mother relied on the following documents, which were tendered at the hearing:
·Exhibit A1 – Notice of Child Abuse, Family Violence or Risk filed by the mother on 21 December 2021;
·Exhibit A2 – Email exchange between the father to the mother dated early 2024;
·Exhibit A3 – Emails on 6 and 7 March 2024 between the father and Ms T;
·Exhibit A4 – Letter of early 2024 from the father to U Authority;
·Exhibit A5 – Email from the father to the mother dated early 2024;
·Exhibits A6, A7 and A8 – School reports for the child from 2021, 2022 and 2023;
·Exhibit A9 – 2019 property judgment of Judge Baker in the matter of Deave & Pallin;
·Exhibit A10 – V Organisation witness statements;
·Exhibit A11 – W Medical Centre extract (medication list) from early 2024;
·Exhibit A12 – Complete trail of emails comprising annexure T to the Mother’s trial affidavit, together with legible report of Dr Y, paediatrician (undated); and
·Exhibit A13 – Pages 61-62 of ICL Court Book, being Dr O’s letter dated 15 April 2013.
Three documents were tendered by the ICL and marked as Exhibits, being: consultation notes from W Medical Centre relating to the mother dated 8 October 2023 and 27 February 2017; a Z Organisation note dated 17 November 2013; and the Family Report in these proceedings dated 29 June 2023.[3]
[3] Exhibits ICL1, ICL2 and ICL3 respectively.
Documents tendered by the father and marked as exhibits included three affidavits, affirmed by him on 13 November 2023, 23 November 2023 and 27 November 2023 (Exhibits F1, F2 and F3). Several emails and letters were also filed by him, being:
·Exhibit F4 – A letter from the father to Court Children’s Services dated 14 September 2023, replying to a letter dated 23 August 2023;
·Exhibit F5 – Email and four attachments sent by Mr Pallin on 12 March 2024;
·Exhibit F6 – Two emails and attachments sent by Mr Pallin on 14 March 2024 to my Chambers; and
·Exhibit F7 – An email from the lawyers for the mother to the Court Child Expert, Ms AA, regarding family report interviews.
LEGAL PRINCIPLES – PARENTING ORDERS
As these proceedings were heard and judgment reserved prior to 6 May 2024, the provisions of the Act prior to commencement of the Family Law Amendment Act2023 (Cth) apply to determining the issues in dispute.
The paramountcy principle applies and the Court is required to make orders that are in the best interests of the child/children.[4] Express direction is provided in s 60B(1) of the Act that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interests. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[4] Section 60CA of the Act.
Section 60CC(2) of the Act requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in s 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[5]
[5] See Aldridge & Keaton [2009] FamCAFC 229 and Slater & Light [2011] FamCAFC 1.
The Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[6] This presumption accords with the objective referred to in s 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[7]
[6] Section 61DA(1) to 61DA(4) of the Act.
[7] Sections 61B and 65DAC of the Act.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interest and if practicable, make such an order.[8]
[8] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of “substantial and significant time” is provided for in s 65DAA(3) of the Act.
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in s 65DAA of the Act are to be applied and I have had regard to that authority. I am also mindful of the required decision making pathway established in Goode & Goode [2006] FamCA 1346. All the considerations in s 60CC of the Act are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in s 61DA(1) of the Act does not apply by virtue of s 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
The approach to be taken in applying s 60CC(2) of the Act was discussed in detail in the first instance and appeal judgments in Isles & Nelissen[9] in the context of the assessment of risk where the mother of a child alleged that the father had sexually abused the child. In my view, the principles stated are applicable to the assessment of the nature and extent of risks to the child in these proceedings.
[9] [2021] FedCFamC1F 295; and [2022] FedCFamC1A 97.
EVIDENCE OF THE MOTHER
In addition to relying on her affidavit filed 14 November 2023 and the annexures to it, leave was given to the mother to adduce oral evidence about events that had transpired since filing her affidavit and because the initial defended hearing listed for 5 December 2023 had been adjourned.
The additional oral evidence broadly related to disagreements that had arisen about the sports club the child should attend and concerns the father had again raised with the child’s school about continued bullying in early 2024. Emails exchanged by the father and others about these issues were received as Exhibits A2, A3 and A4.
The tenor of the mother’s evidence was that there had been disagreement about what sports club the child should be enrolled with but they had now settled on BB Club, after both parents had taken the child to try out and experience the club. Further, that the mother was aware of the bullying concerns raised by the father but that she considered the incidents were isolated and not persistent. She also stated that she had informed herself with the school about the recent concerns and was satisfied with their response.
In addition, the mother stated that she was very upset by the father’s email of early 2024,[10] and felt it was threatening her employment and “trashing” her reputation. He had also threatened to make reports to police, although she added that she was not aware of whether he had in fact made a complaint to police.
[10] Exhibit A5.
Through cross-examination by Mr Trezise, in summary, the mother gave the following evidence:
(a)She and the child remained living in the former matrimonial home in Suburb D.
(b)Her former partner, Mr CC, and his son were no longer living with them but they remained close friends.
(c)She is employed as a public servant.
(d)She has flexibility with her work hours, which are ordinarily 8.45-2.45pm when the child is in her care and longer hours in the off week. She has long service leave that she takes to have school holiday periods off work when the child is in her care.
(e)Her income is 80% of a full-time equivalent about $80,000-$90,000 per annum gross.
(f)She owns the former matrimonial home, which is subject to a mortgage.
(g)She described a typical day for the child in her care when he was at school and on weekends. She said that Saturdays revolved around the child’s sports and that he enjoyed having playdates.
(h)She described the child as liking sports, his dog, and being with his friends. She said that he is a bit of an entertainer, and social and popular at school. She has encouraged the child to participate in other activities but he hasn’t “grabbed it”.
(i)The child is an avid sports fan, the same sports club supported by the father.
(j)The child is emotionally aware, does not like unfairness, and is a bit of a fussy eater but has a good routine of foods that he likes. He does not cook but sometimes helps her make pancakes or banana bread.
(k)She did not think the current parenting arrangements had worked well. They had put the child under pressure to be a “different child in different households” and the parents have different routines and parenting styles.
(l)She understood the meaning of parallel parenting and said she tried to stay in her lane but does not get the same from the father, receiving a lot of instructions and abuse from him. She reported that the child had told her that when the father has said nasty things about her, he feels forced to agree because he thinks he needs to. He is aware of the Court proceedings.
(m)The reduced contact at changeover and less contact generally were good aspects of the shared care arrangement. She had agreed to equal shared care because of the level of conflict and contact with the father and thought he would be less critical if she agreed to the shared care. But she said that has not happened and she regretted agreeing to it every day since.
(n)Mr CC does changeovers whenever possible.
(o)The father commonly shares with the child interactions he has with the child’s school, the mother and the sports club, all of which impact on the child.
(p)She is critical of the father’s care of the child but does not express this to others, except Mr CC. Examples of this were that the father had locked the child in his bedroom, yelled at him and called him an idiot.
(q)She is concerned about the father’s approach to the child’s physical care and health needs. She said he would take the child to the doctor for a splinter but for bigger issues, he may escalate quickly but then often disregard the doctor’s advice. An example was the father disputing a general practitioner’s treatment plan for the child’s asthma and refusing to ensure he took the recommended antihistamines.
When asked if she respected the father, she replied it was hard. The mother then stated that the father loves the child but sees him as an extension of himself and puts pressure on him. It was only when it was suggested to her that the father was intelligent and had broader knowledge he could pass on to the child that the mother agreed and said it was good to be able to impart knowledge, but that life is also about how to navigate the world. She agreed the father was a strong supporter of the child’s love of sports but added “there have been problems”.
In relation to psychological concerns for the child, the mother stated:
(a)When the child was in grade 1, the father locked him in his room and the child was distressed. It was a case of the child not being able to reach the door handle, not the door being locked. She stated that this was a pattern of behaviour and that the child had also been left at home alone, suggesting this was frequent. She stated this was occurring prior to 2021.
(b)The father’s denigration of her, which the child has reported to her over the years and she does not think has changed. Although the last time it was reported by the child was more than two years ago, she said she was not prepared to give the father the benefit of the doubt.
(c)The child was exposed to the father’s conflicts with others and has remarked that people don’t like his dad and vice-versa.
(d)The child has experienced the father’s “crusades” with third parties to be embarrassing and this will be more so as he moves into adolescence. She has endured a long seven years of abuse and threats around employment that impact on her professional life. She stated that she has been running on adrenaline and worries about how to respond to the father’s awful emails.
(e)Regarding her proposal for the child’s school the mother did not plan to change his primary school enrolment and was considering DD School, EE School or FF School for year 7 onwards. In relation to FF School, although she is not particularly Catholic, her values align with theirs. She said she would pay the school fees for FF School of about $6,000 per annum if he attended there.
(f)She is assessed to pay child support to the father.
(g)She understood the father was still considering enrolling the child at GG School and she is prepared to consider his views, subject to what she can afford.
(h)She was aware and clearly knowledgeable about the child’s medical needs relating to asthma and other medical conditions, and she thought it would be beneficial for him to have psychological support. She is open to either the school psychologist or a private one.
(i)She suggested the father did not fully comply with the treatment plan for the child’s asthma and said she had received abuse from him about treatment the child needed while they were in Sydney.
(j)She agreed that it would be good to use a parenting app rather than emails and SMS and she is prepared to use the Our Family Wizard app and fund its use.
Counsel for the ICL with my leave, to afford fairness to the father and assist the court posed additional questions of the mother. The mother’s evidence was as follows:
(a)That she agreed the child had been coping well with the shared care arrangement since 2019 but said there were other things impacting on him.
(b)That the child was resilient, emotionally intelligent, and managing his time with the father.
(c)She was unsure if the child had expressed the view that he wanted to share time equally, adding that he was careful to be neutral and she believes it will become more difficult for him as he gets older.
(d)She thought the child would cope well with reduced time in one parent’s care but agreed he might be sad initially.
(e)That she has no diagnosed mental illness but at times has sought support from her general practitioner and psychologist and been told that it is situational, and this is not unusual when a person is under high stress.
(f)She agreed that she had been referred to HH Hospital in 2013, the year after the child was born.[11] She stated that the child cried a lot and the father was not coping with this, so she attended to assist in settling the child and sleep. The mother agreed she was suffering exhaustion and had given a past history of three to four episodes of SSRI use about six years prior but she denied she had experienced past mental health challenges that made her susceptible to distress.
(g)She was referred to a psychologist in 2017 in the context of the family law disputes.[12]
(h)That she did not “extensively brief” Mr JJ, the principal at the child’s school, against the father and had let him come to his own conclusions, but she agreed she had told Mr JJ that the father had made complaints about the child’s childcare in the past. She also said that Mr JJ told her that the father disclosed he had also been bullied as a child.
(i)That she did not have concerns about how the school dealt with the child’s reports and that she had not told Mr JJ anything that he could not already see for himself.
(j)She did not “brief” the sports club and simply told them the father would be in breach of the orders if he coached. She said that this was a fact, not a case of supporting the father or not.
(k)She denied that she asked the school not to forewarn the father about the mandatory report they were to make to Child Safety Services when the child reported being slapped by the father. She added that they had asked if there would be benefit in the school telling the father and she simply said that she did not think it would be helpful. Asked if this was unfair, initially the mother struggled to answer and said, “I guess so”. In re-examination, she clarified what she meant, stating that her primary concern was the child’s wellbeing and she thought that Child Safety Services would be qualified to decide what, if anything, should be said to the father.
(l)She agreed that the father largely let the child do what he wants when it comes to sports.
(m)When asked if sending the child to his room was a time out technique, the mother agreed but said she does not have to give him time out and instead discusses his behaviour so he appreciates the natural consequences. She also agreed that at times she will say to the child unless you do this, “X” will happen.
(n)Regarding bullying of the child at school, she believed it was more the case that there had been some schoolyard events, interpersonal conflict or simply being in the wrong place at the wrong time. She was satisfied with the school response and did not think escalation beyond that was needed.
[11] Exhibit ICL1.
[12] Exhibit ICL1.
EVIDENCE OF MR CC
Mr CC gave oral evidence at the hearing and his affidavit dated 14 November 2024 was marked as read. He had been in a relationship with the mother from 2018 until May 2023 and they lived together during that period. In response to questions from the ICL, Mr CC gave evidence as follows:
(a)Even though he and the mother are separated and he moved out, they are still great friends.
(b)He has a son from a previous relationship who lives with him five nights per fortnight, and who lived with him, the mother and the child during the time he was in a relationship with the mother. He said he gets on well with the child and enjoys spending time with him.
(c)His son and the child have always gotten on well and still see each other sometimes, although this is less frequent because his son is now 17 years old and often busy.
(d)He took over doing changeovers of the child with the father as often as possible because of the negative behaviours the father exhibited towards the mother, such as turning his back when she tried to talk to him. He said the child had observed a lot of these behaviours.
(e)That the father is not really rude to him at changeovers, and they are “cold but cordial” and neither really make eye-contact or speak to each other.
(f)His relationship with the mother suffered because of the negative effect the father’s actions and influence had on her, such as causing her to lose sleep and worry.
The father did not ask Mr CC any questions. In response to a question from the Court, Mr CC maintained that he thought the sustained contact from the father was anxiety-inducing for the mother and it wasn’t simply a matter of her over-worrying and over-thinking.
EVIDENCE OF THE FATHER
The father’s three affidavits were read unopposed,[13] and he gave oral evidence in chief responding to the evidence of the mother. He stated that the mother’s evidence was to the effect that he was fine about minor issues but not when major issues had to be decided. Disputing the purported effect of what the mother said, he stated categorically that the child received medical attention when needed and that he could readily arrange appointments, whether by phone or in person, with Dr KK or Dr LL. The father said he found Dr KK to be very responsive to his and the child’s needs and always followed medical advice when given.
[13] Filed 13 November 2023, 23 November 2023 and 27 November 2023.
Referring to the email he sent to the mother two weeks prior to the commencement of the hearing,[14] he said that it had been a genuine attempt to bring the proceedings to an end and it was misconstrued and being presented to the Court as purportedly showing his abuse of the mother.
[14] Exhibit A5.
The father requested that he be given regular breaks each hour to accommodate his major depression and anxiety, conditions which affected his memory. Due to memory difficulties, he also asked to be able to refer to his affidavits as an aide memoire. The Court accommodated these requests throughout the hearing.
The father also requested that he be protected from “badgering” and “harassment” during cross-examination. I explained to him that the purpose of cross-examination was to test evidence relied upon by a party and that questioning is permitted to be robust, but that I would enforce the terms of the Evidence Act 1995 (Cth), particularly those relating to unfair or improper questions.[15]
[15] Section 41.
Cross-examination of the father
When cross-examined by counsel for the mother, the father’s evidence was to the following effect:
(a)He had concerns about the child being bullied in the past at childcare at the GG School. He had spoken to the carers and other parents, and also emailed the manager. When it was not resolved to his satisfaction, he then emailed the State government about the bullying.
(b)Despite the communications referred to above in subparagraph (a), he was not satisfied that the bullying concerns were resolved.
(c)He had concerns about the child being bullied at P School in 2020 and he took those up with the class teacher and at a meeting which Mr JJ and Ms MM also attended. Ms MM took minutes at the meeting, but the father said the minutes were not an accurate record of discussions.
(d)Regarding the bullying concerns, he wrote to the R Authority and the NN Authority in late 2021. At this time his concerns were also about the school’s processes in dealing with his grievances and there had been other bullying, as well as physical assaults of his son by children.
(e)He agreed he had also written to the R Authority and his local MP.
(f)He couldn’t recall if he had made a complaint to the OO Authority but said he had made enquiries with that office.
(g)He had written to PP Authority about the treatment of his son but was not satisfied with their responses.
(h)He agreed he had made a complaint about the behaviour of staff in the Court Registry but was not satisfied with the response.
(i)He agreed that he was unhappy with the Family Report produced in these proceedings and that he had written to express concern or complaint about that. As he wished to rely on the contents of those letters to indicate what he says was reported inaccurately or unfairly, his two letters to Court Children’s Service were tendered and marked Exhibit F4.
(j)When employed as a public servant he had made allegations and complaints about bullying in the workplace and this resulted in a payout of $230,000 and his departure from the public service.
(k)He had also made a complaint against the government and a consequent workers compensation claim but this had been rejected as “too old”.
(l)He agreed he had left his employment and received a modest payout.
(m)He denied that he had complained about two law firms engaged to represent him consequent to the Court making the s 102NA Order in January 2024 but said they had not read the materials or made mistakes about whether an offer had been made. He described a prior firm that had acted for him as “woeful” and agreed he had made a complaint to the Legal Profession Board about counsel for the mother in the earlier parenting proceedings.
(n)He also agreed he had complained about the ICL in the current proceedings and claimed that she was instigating issues for the mother.
(o)He said he had a rent increase dispute with the landlord of the rental property he had previously occupied in Suburb QQ and this was resolved with a lesser rent increase being allowed.
(p)He also raised concerns about a real estate agent managing the Suburb QQ property and that agent was sanctioned after he complained to the relevant authority.
(q)He agreed it had been hard to get a private rental property since the dispute, as the landlord had given negative reports when he applied for prospective rentals.
(r)He conceded he had been forced to stay in hotel accommodation for a short period in late 2022 but disputed it being inconvenient or tough for the child, stating he had found it a bit of an experience and had friends visit.
(s)He now lives in a holiday home while he is on a waiting list for public housing. He has been on the waiting list for about a year.
(t)He reported an incident to the child’s school about bullying by another child in early 2022 and though it may have related to the other child having a medical episode, the school’s response was not satisfactory because it did not identify the need to protect other children and manage the other child’s medical issues.
(u)He stated that for every year of the child’s schooling except 2023, he had concerns with the school. In 2023 he corresponded and liaised with Ms Q about issues. Ms Q had been his point of contact after the principal, Mr JJ, and Ms MM were unable to resolve issues with him.
(v)He stated that the mother had sullied and defamed him when speaking with the principal and others and this affected both him and the child. He gave the example that when the mother spoke to the staff at the school the child may have been around and she described him as “homeless”. The inference being that the mother made untrue statements about him which adversely affected the staff’s attitude to him and the concerns he raised.
(w)He denied that he had made a complaint about Child Safety Services, saying he knew nothing about them.
(x)He agreed that he had made a complaint to V Organisation but was not satisfied with the outcome of their investigation. He had also escalated his complaint further, but said nothing eventuated.
(y)Regarding the incident that was subject of the sports complaints, he denied escalating the dispute with the other parents or that he had initiated it by shouting. He added that V Organisation had found that there had been contribution/interactions on both sides. He also denied that his conduct had led to the child having to change sports clubs.
(z)He confirmed sending the communications earlier this year about bullying of the child[16] and his dissatisfaction about the response of the school. He agreed he had sent similar communications to U Authority and two senior officers of R Authority in early 2024.
(aa)He acknowledged that he had sent the email in early 2024 to the mother,[17] and said he raised a range of disciplinary possibilities for her to think about because she had behaved poorly but he denied this was a threat to her employment.
(bb)He had not made a complaint to police about the mother and denied threatening to do so to scare her.
(cc)When suggested he had made earlier threats or warnings to the mother, he denied it but then agreed he had written to the mother in late 2021 in the terms of annexure Q of her trial affidavit. He added that it had been written because the mother was saying things to “curry favour” with her employer at the expense of the child.
(dd)Asked if he accepted that the mother felt threatened, he said that he is not responsible for her reactions and as she is lying, how she received his communication and interprets his comments is for her.
[16] Exhibit A3.
[17] Exhibit A5.
EVIDENCE OF THE COURT CHILD EXPERT
The Family Report dated 29 June 2023 of Court Child Expert (“CCE”) Ms AA was received by the Court as Exhibit ICL3 and CCE Ms AA gave evidence at the hearing. In substance, her evidence under cross-examination was as follows:
(a)That the child had reported being told by the father to “manage” his behaviour when the father experienced periods of anger or emotional dysregulation after taking steroids to treat his medical conditions, and this was not in the child’s best interests to feel responsible and manage his behaviour to put his parent’s needs above his own.
(b)That collaborative, cooperative co-parenting is a necessary part of a working equal time arrangement and that such co-parenting requires, at a minimum, communication that allows for all of the practical, ongoing and important decision making to occur.
(c)She agreed that the father was invested in the child and the child’s activities, potentially to the exclusion of many other things.
(d)That the child was at a stage in his development where concepts such as fairness were very important and, in their interview, he had been very cautious not to say anything negative about either parent. She said that the child’s views should be considered in the context of his developmental stage as his focus on fairness was informing his views on equal time.
(e)That the child’s presentation suggested he was highly aware of the difficulties and conflicts between his parents. She clarified that when she had stated that it was likely the child would continue to manage the dynamics of the equal time arrangement, she meant that although children can manage a lot of things, it may not necessarily be in their best interests to have to do so.
(f)That a reduction in time between a child and a parent didn’t necessarily mean reduction in the quality of their relationship, and the experience a child had in the care of their parents was usually more meaningful than actual time spent.
(g)Any change in time arrangements would have some immediate impact on the child but how that change was managed by the parents, and if they were supportive of the Court’s Orders, would affect how the child experienced and managed it. She agreed that an order in the terms proposed by the mother, decreasing the father’s time to four nights per fortnight during the school term, would initially be a substantial change for the child but said he had demonstrated himself to be very resilient in the context of his parents ongoing conflict.
(h)She did not consider that the mother’s past history of mental health concerns,[18] posed a detrimental ongoing impact to the child.
(i)When put to her by the father that there were “gaps or inaccuracies” in the Family Report, she disagreed and stated that the information she had considered pertinent or important had been included. She also disagreed that she had simply “followed” a request not to interview Mr CC’s son, noting it was at her discretion and that while she typically interviewed partners, it was rare to interview other children in households.
(j)That while there may be some initial impact on the positive aspects of what the father brought to the child’s life if his time was reduced, the change would address the “overarching negative” of ongoing conflict that the child was currently managing.
(k)She agreed that a change to sole parental responsibility could also reduce parental conflict in this case, where much of the conflict surrounded major issues. When counsel for the mother put to her that the conflict involved everyday issues, CCE Ms AA replied that there was a bit of both and that her answer about the child managing was premised in large part on the fact of his having done so previously. When asked what was in his best interests as compared to what he could manage, she stated that she thought his best interests were better informed in him having a primary care arrangement with one parent.
[18] Contained in Exhibit ICL2.
EVIDENCE OF DR O
Dr O, the father’s treating psychiatrist, was called on subpoena issued at the request of the ICL. His letter of 15 April 2019 was tendered,[19] and he stated that the views expressed in it remained valid, being that the father suffers from Major Depressive Disorder, has been treated for such since 2011 and is reviewed on an as needs basis.
[19] Exhibit A13.
Dr O was reluctant to express any further views that would assist the Court in the context of the issues in the parenting dispute and stated this was due to the therapeutic relationship he had with the father.
EVALUATION AND FINDINGS
Addressing the considerations that inform the best interests of the child for the purpose of making parenting orders in these proceedings, I find as follows for the reasons stated.
There is no contention that the father poses an unacceptable risk to the child. The mother's case and ICL's case relating to primary considerations in s 60CC(2) of the Act acknowledge that the father has a meaningful relationship with the child. There is ample evidence to support a finding that father has a meaningful relationship with the child and this benefits him.[20]
[20] Section 60CC(2)(a) of the Act.
However, there is contention about whether there is a need to protect the child from psychological or emotional harm due to the father's embroilment of him in the parenting dispute, other disputes, and his tendency for interpersonal difficulties with a range of persons and entities,[21] or alternatively, the mother’s alleged undermining or exclusion of the father from decision making for the child.
[21] Section 60CC(2)(b) of the Act.
I accept the evidence of the mother and the CCE that the father has involved the child in various disagreements or disputes. Indeed, the father's own evidence is that he had shared with the child the dispute regarding his former lease and the property manager, and on other occasions the child has been present.[22]
[22] See, eg, the evidence of Mr CC referred to at [25](d) that the child witnessed the behaviour at changeovers.
Having observed and heard the father give his evidence, I have no doubt that he discusses adult topics with the child when it is unreasonable to do so. His manner of giving answers was somewhat theatrical and conveyed telling a subjective narrative, rather than simply stating facts, events or circumstance. It is likely that he could not refrain from discussing topics with the child. I also find that he does not have awareness that this is inappropriate, and he rejects the view of the CCE that it exposes the child to emotional harm.
Although the child appears to be resilient and has coped with being involved in this way so far, I am satisfied that his coping is somewhat at the expense to his emotional wellbeing. I accept the views of the CCE that this is undesirable and may expose the child to emotional harm however, this will depend on context.[23]
[23] Exhibit ICL3, pp 23-26 at [24], [26], [29] and [30].
In view of the voluminous disputes and disagreements the father has had, which were demonstrated by his own evidence, it is very likely that he lacks capacity to avoid similar disputes in the future.
The father says that the mother has acted to undermine joint decision making or his contribution to making major decisions, by making false reports of family violence, reporting him to Child Safety Services (“CSS”), criticising his actions (including to third parties) or seeking to exclude him from various aspects of parenting, predominantly relating to bullying at school and concerns about sports clubs.
The father’s claims summarised at [42] above are not borne out by objective or reliable evidence. In particular:
(a)What the father depicts as concerted bullying or actions or statements by the mother about this to the school or others is overstated. While there have been some episodes of physical contact and demeaning statements by other children towards the child, these have been episodic and addressed within expected and reasonable school policies;
(b)The disputes arising in connection with the child’s sports or the mother’s statements and actions as to the same were precipitated by the father’s conduct and his lack of interpersonal relations. The mother has largely been a bystander managing third parties and the child’s reactions to knowledge of the conflict as best she could; and
(c)The disputes about medical treatment and management or the mother’s statements and actions as to the same have arisen due to the parent’s competing views and approaches, each of which may have been well intentioned.
It is correct that claims of family violence are raised by the mother against the father in these proceedings. They are confined to verbal denigration or threats of repercussions or intimidation. The mother’s evidence in chief about this,[24] was not particularly challenged. Further, the written communications are likely to reflect his verbal communications. I accept that the mother has become fearful and threatened by what is effectively verbal abuse and intimidation capable of constituting family violence within the meaning of s 4AB of the Act.[25]
[24] Mother’s affidavit affirmed 14 November 2024 at [25] and [75]-[87].
[25] Carter & Wilson [2023] FedCFamC1A 9.
I have carefully considered the father’s evidence described at [28] and [31](aa) of these reasons about the email sent to the mother, being Exhibit A5. Although I accept that subjectively the father believes he was genuinely seeking to avoid a contested hearing, the content, style and tone of the email communication is not conciliatory and highly unlikely to be received by a reasonable person as a genuine offer to settle. The content of the email is a stark example of the father’s problematic interpersonal communications.
Despite the conduct establishing the finding at [44], the mother agreed to a shared equal time living arrangement, although I note the explanation for such given above at [21](m). Although family violence is alleged by the mother in these proceedings, there is no evidence that the mother has caused the child to believe that his father was a perpetrator of family violence.
The report to CSS about the father assaulting or verbally abusing the child was clearly generated by school staff consistent with their obligations as mandatory reporters, and not by the mother. She took a reasonable and sensible position of leaving it to CSS to determine what, if any, notice or action should be taken when the report was received.
The mother may have shared information about the father to the school that need not have been shared, for example that the father made a complaint about bullying at childcare. However, I do not accept that she engaged in a campaign to sully the father or influence the school. It is self-evident from the subpoenaed material from the school that they had multiple interactions with the father over time and formed a position based on their dealings with him, not their dealings with the mother.
The claim that the mother has sought to exclude the father is simply wrong. The evidence demonstrates the father being fully involved in the child’s health issues, school issues, sports issues and the like.
Although the father relied on considerable evidence said to demonstrate concerted bullying of the child, this evidence was not relied upon to specifically underpin an allegation that the mother failed to take reasonable measures to protect the child from physical or emotional harm.
Instead, the father’s evidence and submissions about bullying were relied upon to demonstrate that the mother was undermining him. There is no definitive evidence of the child suffering enduring injury, or emotional or psychological injury due to events at the school when he reported being bullied by other students. To the extent that the father is dissatisfied with protective actions by the school, it is sadly not uncommon for children to treat other children cruelly and at times physically react. Further, given the father’s own experience of bullying I infer that it is likely he has a heightened sensitivity in respect of the same. The evidence before the Court demonstrates that the school is aware of the concerns for the child and endeavours to ensure a constant pattern of bullying does not occur. I am not persuaded that the mother has failed to take reasonable protective actions vis a vis the school or the conduct of students in so far as the alleged bullying is concerned.
The Court is required to take the findings at [36] to [51] of these reasons into account and give greater weight to the risk of emotional harm to the child than to the benefit to the child of a meaningful relationship with either parent.[26] But, it is also necessary and proper to consider whether the risk of emotional harm to the child is capable of being satisfactorily mitigated.
[26] Section 60CC(2A) of the Act.
Addressing the other considerations that inform the child’s best interests,[27] I find as follows:
[27] Section 60CC(3) of the Act.
(a)The child has expressed the view that he wishes to continue in an equal time arrangement with the parents. The child is of an age such that I ought to and do give his views weight and serious consideration despite the views of the CCE.[28] That is, because it is apparent from his reports to the CCE that he likely has insight about his parents and this demonstrates a level of maturity that will likely enable him to reasonably tolerate whatever decision the Court makes.[29]
[28] Exhibit ICL3, pp 25-26 at [29].
[29] See [24](b) of these reasons and the evidence of the CCE.
(b)Based on the views of the CCE I also find that the child will be disappointed if his time with the father is reduced because:
(i)Of the strong interests they share, particularly around sports clubs and activities in which he engages with the father, but not the mother; and
(ii)His stage of development and the importance of fairness to him.
(c)Both parents have a very strong meaningful and loving relationship with the child. Accepting the unchallenged evidence of Mr CC, I also find that the child has a meaningful relationship with Mr CC. The mother confirmed the father’s evidence about the child’s relationship with his paternal grandmother and I find that is meaningful and loving relationship also.
(d)Both parents have taken opportunity to fully participate in the child's life and I find that this likely has led to a degree of competition around major decision making and the time which they seek to spend with the child, particularly because of their very different manner and personality, which are not well tolerated by each other.
(e)In respect of financial support of the child, there is an administrative assessment of child support. The father is not working and relies on a disability support pension, the mother works and pays periodic child support to the father. It can be inferred that the parents support the child according to their respective income and the mother’s financial support is considerably greater.
(f)Since separation, the child has lived for significant and substantial time with each of the parents and then on an equal shared time basis. Accordingly, I find that any significant reduction in the time the child lives/spends time with either parent will likely have a degree of negative impact on him due to separation. It was apparent to me that each parent offered different attributes and opportunities that promote the development and stability of a child. For example, the mother provides more reflection and consideration of others, and the father strong convictions and shared common interests. The variety and differentials and range of experiences and activities are likely to afford the child a broad, well-rounded basis upon which he can develop his own identity as he matures, providing the parents’ differences do not embroil the child in conflict, pressure or disapprove of him as he forges his own way.
(g)No party raised any submission about the practical difficulty of the child spending time with or communicating with the parent and is unnecessary to address this consideration.
(h)As to the parenting capacity of the parties, each have provided adequate care in a different manner. Having had the benefit of hearing each of the parties give evidence, I find that the mother is more emotionally aware and sensitive in personality. The father is a rigid thinker and his interactions with various parties concerning a number of topics have self-evidently caused problems, disputes or claims. I cannot accept that all other parties involved in his interactions are the instigators of the father’s problems as the common element is the father himself. It is more likely therefore that he struggles to differentiate objective facts from his subjective personal beliefs or lacks capacity to acknowledge and tolerate alternate views or perspectives. I find that the father is less emotionally aware and more likely to expose the child to emotional distress. In making this finding, I found the views of the CCE persuasive.[30]
(i)Despite the finding at subparagraph (h), I do not discount the possibility that the father’s mental health diagnosis may impact on his behaviours, tolerance and statements to others.
(j)The father alleged the mother suffered from mental health issues and relied on evidence concerning past psychological symptoms.[31] There is insufficient evidence to persuade me that the mother currently experiences a mental health disorder. The material relied upon by the father is dated and confined to the context of being a first-time mother. I accept that she is likely to be vulnerable to symptoms of stress and anxiety noting her history and presentation during these proceedings however, this does not impact adversely on her parenting.
(k)Each parent demonstrated a committed attitude to parenting the child and took their responsibilities of parenthood seriously however, they have different personalities, beliefs and parenting styles. As I accept the mother’s evidence at [21](l) of these reasons, which is corroborated by the communications from the father to the mother before the Court,[32] this has led to the father interfering with the mother’s parenting and exposing the child to his parents’ disputes.[33]
(l)I have made a finding of family violence by the father and characterised the nature of it above at [44] of these reasons.
(m)These proceedings are the second time that the parties have come before the Court in respect of parenting disputes.[34] Section 60CC(l) of the Act is very important and there is a strong preference to make orders that are least likely to lead to the institution of further proceedings concerning the child.
DETERMINATION
[30] Exhibit ICL3, pp 23-25 at [22] and [27].
[31] Exhibit ICL1 and Exhibit ICL2.
[32] Exhibits A2 and A5, and exhibits G, K, O, P, Q, T, U, X, Z and BB of the annexures to the mother’s affidavit affirmed 14 November 2023.
[33] See [39] of these reasons.
[34] Final parenting Orders made by consent on 19 March 2019 in HBC1195/2017.
Parental responsibility and live with arrangements
I have rejected the father’s assertions that the mother has acted to undermine joint decision making or his contribution to making major decisions for the reasons given at [42] to [51]. I have not been persuaded that the child has suffered any type of enduring or serious harm due to bullying or that the mother has failed to reasonably protect him in that regard. This should not be taken to undermine the temporal distress that the child likely suffered at relevant times, noting his reports to school staff.
The father’s own communications and conduct have unnecessarily exaggerated and prolonged decision making and resolution of common issues that arise in the context of parenting a child. Alternatively, they have created unnecessary complexity and disputes about the child’s education and school in the context of typical childhood issues.
As the provisions of the Act prior to commencement of the amendments to the Act on 6 May 2024 apply, the finding of family violence by the father rebuts the presumption of equal shared parental responsibility. For this reason and those stated at [54] and [55] an order for sole parental responsibility is now needed because the parents have not been able to effectively and cooperatively make joint or shared decisions about major and long-term issues without exposing themselves and the child to conflict.
The mother’s nature and parenting style is more likely to promote timely, positive and effective decision making about major and long-term issues for the child and not expose him to conflict or harm. I am satisfied she will take reasonable and necessary actions to protect the child, including from bullying if that occurs.
There will be an Order that the mother have sole parental responsibility for the child, on condition that she invite the father’s input before making a decision. The terms of the order proposed by the ICL are largely consistent with the child’s best interests in view of the findings and reasons above. However, greater particularisation of decisions pertaining to sole parental responsibility is desirable. For clarity, the mother will only be required to consider the father’s input, which I am satisfied she will, but she is not bound to make a decision that accords with his input or view. Further, there will be a restraint against the father from continuing to communicate or engage with the mother about major or long-term issues.
My findings about all relevant considerations on balance weigh in favour of maintaining the existing equal time arrangement because the findings about the father’s capacity to expose the child to risk of emotional harm can be mitigated satisfactorily. Although the CCE’s opinion is that the child should live primarily with the mother, that view was significantly premised on the basis of the father exposing the child to disputes about matters related to school, healthcare and participation in extracurricular sport. The CCE’s rationale also related to the father’s housing instability and emotional dysregulation due to his health but I am not persuaded that these will be particularly relevant factors in the future. First, the father has always ensured the child was adequately housed and although the mother may think it novel for the child to be in a hotel for a time, that was a temporary arrangement. Secondly, the father’s medical conditions appear to be relatively well-controlled and there is evidence that he follows the directions of his own treating doctors.
In arriving at the conclusion at [59], I do not ignore the views of the CCE that were stressed by counsel for the mother in closing submissions.[35] Rather, I am comfortably satisfied that the order for sole parental responsibility will sufficiently mitigate the conflict and risk of emotional harm to the child, which, contrary to that submitted on behalf of the mother, is mostly about major and long-term issues, not about day to day living. Where day to day care of the child intersects with major and long term issues, an injunctive order prohibiting the father from interfering with day to day care will adequately mitigate risk of conflict. Such injunctive order would, for example, prevent the father from changing appointments made by the mother for the child or communicating about health issues other than to simply notify the same.
[35] As summarised at [32] of these reasons.
There is insufficient evidence to persuade me that the father would ignore or neglect to have the child reasonably treated for day-to-day illness issues that may arise. As the mother will have sole responsibility for medical and health decisions, the risk of the child not receiving a diagnosis and treatment for medical conditions or injuries of a more serious or chronic kind will be avoided.[36]
[36] For example, the risk of the child not receiving psychological treatment if required, noting the past dispute about this.
Further, removal of the need for joint decision making will mean that the opportunity for the father to interfere with the mother’s parenting is reduced. That is, it will promote parallel parenting and it can be reasonably expected that the child will need to manage exposure to conflict less.
In relation to the views of the CCE referred to at [32](a), it is unfortunate and undesirable that a child at times was required to prioritise the father’s ill health over his own needs, but it is not necessarily harmful to the child and has been infrequent. There was no evidence of physical or emotional harm to the child arising from the limited instances this occurred.
The unchallenged evidence from the father was that situation described in [63] of these reasons occurred approximately once per year. As the child matures, there is benefit to awareness of effects of chronic ill-health and mental health disorders. Such awareness will encourage empathy and understanding in circumstances where chronic illness and mental health disorders are a common fact of life.
Counsel for the mother urged me not to continue the equal shared care live with arrangements. She submitted that this would be contrary to the views of the CCE. I do not accept that to be strictly the case, but if it were so, I am not bound to accept the views of the CCE as determinative.
In particular, I am satisfied that once the mother is solely charged with major and long-term decision making and specific orders are made to limit the opportunity for parental conflict to occur, it will be in the child’s best interests to continue in a week on, week off living arrangement with each parent. This arrangement represents what the child is used to and considers fair, and promotes the equal importance of his meaningful relationship with both parents particularly, for the reasons expressed at [53](f). Orders to limit the scope of parental conflict would require:
·That the parents communicate only by use of a parenting app;
·That changeovers occur at school except for public or school holidays; and
·Injunctions for the protection of the child that the father not discuss parenting disputes, proceedings or decisions made by the mother in the exercise of sole parental responsibility with the child.
The simplicity, familiarity and experience of a week on and week off live with/spend time arrangement throughout the year will enable routine, planning and stability for the child and parents, with little need for the parents to interact. It will reduce the risk of conflict to which the child may be exposed and promote although not guarantee parallel parenting as recommended by the CCE.
Although the father initially was to conduct his case on the basis that the child’s time with the mother be restricted, he sensibly abandoned that position.
Other protections
In view of the level of conflict between the parties and the child’s awareness of the same, it is imperative for his protection from emotional harm that neither parent engage in discussion with him about the Final Court Orders and reasons for the same. The ICL should convey the outcome of the proceedings to the child and explain the Court’s Orders to him. Accordingly, there will be an Order for the ICL’s appointment to continue for this purpose.
There is considerable evidence before the Court demonstrative of the father’s tendency to interpersonal disputes and this impacting on the child. It will be of benefit to the child, to ameliorate the risk of this into the future, for the father to undergo a course of psychological therapy to assist in developing capacity to tolerate opposing opinions and reduce interpersonal conflict. This is desirable given the evidence he gave on at least two occasions that he was not responsible for how the mother reacted to him. This demonstrates lack of insight about what is necessary for cooperative and child focused parenting, which is preferable for the child.
I do not propose to make a specific order requiring the father to undergo psychological therapy to address conflict reduction because, this Court frequently hears evidence from experts in psychology and psychiatry that unless an individual willingly undertakes treatment, it is unlikely to have therapeutic effect. However, I would urge the father to seriously consider the Court’s reasoning and engage in such treatment.
Furthermore, as the Final Orders are likely to be unpalatable to some degree to both parents and I foresee this may impact on the child, it is in the child’s best interests that each parent access psychological support to understand, process and accept the Court’s Orders and Reasons for Judgment. This is an important consideration.[37]
[37] Section 60CC(l) of the Act.
The parties made slightly differing proposals about the changeover location. As the child has been accustomed to changeovers occurring at S Store in Suburb D, it is preferable that this stability continue as it is likely to promote his comfort and routine. There is no evidence before the Court about any particular difficulties with the existing routine, which has been facilitated by Mr CC at times.
Brief submissions were made about travel and passports. I am satisfied that it is preferable to make explicit orders now about passports, which are largely but not completely in accordance with the terms of the ICL’s proposal,[38] to avoid future disputes.
[38] The proposal attached to an email from counsel for the ICL sent to the Court, copied to the other parties, on 14 March 2024 after the close of the hearing pursuant to Order 2 of the Orders made 14 March 2024.
The orders proposed by the ICL about travel are typical and in my view meet the purpose of giving clarity to what arrangements should occur for the child and will promote dispute avoidance. Accordingly, there will be orders largely consistent with those proposed by the ICL. As the parents will continue in an equal shared care arrangement it is not practicable and obstructive of the stability of the live with and care arrangements to permit extended periods of travel. The Court’s Orders will recognise this.
In view of the involvement of the child’s school, sports club, V Organisation and various medical professionals in the parenting disputes concerning the child, I consider it desirable to give leave to the parties to provide a copy of the Final Orders to:
·The child’s school and any school the child attends in the future;
·The child’s general practitioner, any hospital or treating health or medical practitioner of the child, psychologist, or any allied health professional with whom the child is engaged; and
·The President or manager of the child’s sports team/club.
For all the foregoing reasons, Final Orders are made consistent with the findings and reasoning in this judgment.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 31 May 2024
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