DENNIS & WEISS
[2020] FCCA 280
•24 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DENNIS & WEISS | [2020] FCCA 280 |
| Catchwords: FAMILY LAW – Parenting – final orders – one child, aged 8 years – whether equal shared parental responsibility is appropriate – what time the child should spend with the father –– where the mother is the primary carer – where the mother has relocated to Town A and the father remains in Town B – where there is a high level of parental conflict, an inability to communicate and at times lack of child focus – where there are no real risks pursuant to s60CC(2)(b) – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth) Pt.VII Australian Passports Act 2005, s.11(1)(b) |
| Cases cited: Goode & Goode (2006) FLC 93–286 |
| Applicant: | MR WEISS |
| Respondent: | MS DENNIS |
| File Number: | NCC 3127 of 2014 |
| Judgment of: | Judge Betts |
| Hearing dates: | 22 & 23 January 2020 |
| Date of Last Submission: | 23 January 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 24 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guyder |
| Solicitors for the Applicant: | NLS Law |
| Counsel for the Respondent: | Mr Bithrey |
| Solicitors for the Respondent: | Craney Family Solicitors |
ORDERS
All previous parenting orders be discharged, effective from 5pm on Sunday 26 January 2020 noting that the child is presently with the father on school holidays and will return to the mother’s care at that time.
The mother shall have sole parental responsibility for the child X born … 2011 (“the child”).
The child shall live with the mother.
The child shall spend time with the father as follows:
a.During the school term, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Wednesday, commencing the first Friday of each school term.
b.During the Terms 1, 2 and 3 school holiday periods:
i.In odd numbered years, with the father from the conclusion of school on the last day of term until 5.00pm on the middle Sunday of the school holiday period and with the Mother from 5.00pm on the middle Sunday until the commencement of school on the first day of term.
ii.In even numbered years, with the mother from the conclusion of school on the last day of term until 5.00pm on the middle Sunday of the school holiday period to the commencement of school on the first day of term.
c.During the NSW school holidays at the conclusion of Term 4 as follows:
i.For holidays commencing in odd numbered years, from the conclusion of school on the last day the child is required to attend school until 5.00pm on 7 January; and
ii.For holidays commencing in even numbered years from 10.00am on 7 January until the commencement of school on the first day of Term 1.
Notwithstanding any other order, the parents shall spend time with the child on the following special occasions:
a.By consent, on the weekend on which Father’s Day occurs, from the conclusion of school on Friday until the commencement of school on Monday, with the father.
b.By consent, on the weekend on which Mother’s Day occurs, from the conclusion of school on Friday until the commencement of school on Monday, with the mother.
c.If a parent is not otherwise spending time with the child on the child’s birthday, then that parent will do so from the conclusion of school or 3.00pm on 21 November until the commencement of school or 9.00am on 22 November.
d.In the event the child is not already spending time with the father on the father’s birthday, then the child will do so from the conclusion of school or 3.00pm on 28 October until the commencement of school or 9.00am on 29 October.
e.In the event the child is not already spending time with the mother on the mother’s birthday, then the child will do so from the conclusion of school or 3.00pm on 6 August until the commencement of school or 9.00am on 7 August.
f.For Easter as follows:
i.In even numbered years from 2.00pm on Good Friday until 2.00pm on Easter Sunday with the father and from 2.00pm on Easter Sunday until the commencement of school on Tuesday or 9.00am with the mother;
ii.In odd numbered years from 2.00pm on Good Friday until 2.00pm on Easter Sunday with the mother and from 2.00pm on Easter Sunday until the commencement of school on Tuesday or 9.00am with the father.
By consent, to facilitate these orders and where changeovers do not take place at the child’s school, changeover is to occur at McDonalds Town B or as agreed in writing.
The parties are at liberty to have telephone communication with the child at all reasonable times and intervals.
Each parent shall provide to the other parent a current residential address and mobile telephone number and notify the other party of any change to such address or mobile telephone number within 24 hours of such change.
Each parent shall notify the other as soon as reasonably practicable and within 2 hours of any of the following occurring:
a.The child being involved in an accident requiring medical attention;
b.The child becoming seriously ill;
c.The child being hospitalised.
Each parent is at liberty to attend any school events, carnivals or other extracurricular activities to which parents normally attend or are normally invited to attend at any school attended by the child.
These orders authorise the Principal of the school attended by the child from time to time to supply each parent (at that parent’s expense) with copies of school reports, notices relating to pupils at such schools, school letters, invitations to any cultural event, carnival, sporting or social function, notices of any invitations to parent teacher interviews and any other notices directed to parents of children attending such school and the mother is to ensure that any school attended by the child is promptly provided with a sealed copy of these orders.
Pursuant to section 68B of the Family Law Act 1975, each parent is restrained from denigrating the other parent, or the other parent’s family and friends, to the child or within the hearing of the child and each parent is to promptly remove the child from the presence or hearing of any other person engaging in such denigration.
By consent and without admissions, the father is restrained pursuant to section 68B of the Family Law Act 1975 from contacting or entering the mother’s place of employment.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained from entering or approaching within 50 metres of the child’s residence, unless the mother has consented in writing to him doing so.
Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the mother is authorised to apply for or renew and thereafter retain a passport for the child without the father’s written consent or approval.
Pursuant to section 65Y(2)(b) of the Family Law Act 1975, either party is permitted to take the child out of the Commonwealth of Australia for the purpose of travel providing that:
a.The party travelling with the child provides the other party with copies of return tickets for the child at least 14 days prior to the departure;
b.The party travelling with the child provides to the other party a detailed itinerary providing addresses and phone numbers for the accommodation in which the child will be staying at least 14 days prior to departure;
c.The time occurs during the travelling parent’s time with the child pursuant to these orders unless otherwise agreed in writing.
Regarding the retention and provision of the child’s passport:
a.The mother is to retain the passport when it is not being used by the father for overseas travel;
b.The mother or her nominee is to deliver the passport to the father no later than 7 days prior to any overseas travel he is undertaking with the child;
c.The father or his nominee is to return the passport to the mother no later than 7 days after his return home with the child.
For the purpose of these orders, “writing” includes text messages and emails.
The proceedings are removed from the list of Active Pending Cases.
IT IS NOTED that publication of this judgment under the pseudonym Dennis & Weiss is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3127 of 2014
| MR WEISS |
Applicant
And
| MS DENNIS |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been revised from the transcript so as to make them more readable.
Background:
This is an application for parenting orders in respect of a child, X, born … 2011 (“X”). X is presently eight (8) years of age. She lives primarily with her mother at Town A and spends substantial and significant time with her father at Town B, some five (5) nights per fortnight.
The mother lives in Town A, where she is employed in customer service at Company C. The father lives in Town B, where he works as a self-employed tradesman.
It is common ground that the parties live somewhere between thirty (30) to forty (40) minutes’ drive from each other’s home, although the travel takes longer at times of high traffic on the highway. On school mornings for instance the drive can take longer than forty (40) minutes.
Since they separated, each parent has re-partnered. The mother’s partner, Mr D, lives in the Town B area. She has been in a relationship with him since June of 2018. The father’s partner is Ms E. She and the father now have a baby girl who was born in 2020 and who for all intents and purposes is X’s sibling.
The mother has two (2) other children in her care - F aged 14 and G aged 16; their father is her ex-partner who lives in Town B. Those children live between their mother in Town A and their father in Town B on an equal time basis, rotating every five (5) days.
This is a case which has some difficulty and much conflict. The father is proposing that a week-about regime be put in place for X. The mother is proposing that the father’s time with X be reduced from the existing five (5) nights per fortnight during school terms down to three (3) nights.
The parties are also at loggerheads about parental responsibility. The father wants an order for equal shared parental responsibility for X; the mother seeks an order for sole parental responsibility.
The parties also find themselves in significant dispute about a range of other detailed orders relating to holidays, special days and the like. In many respects these are matters of minutiae which I do not consider matter much in the end result. Though not much energy was invested by the parties in relation to those minor matters at trial, the fact that the parties had to litigate over such minor details in X’s life is a good indicator of the very strained communication and difficulty which exists between them.
The trial & observations about the witnesses:
The matter proceeded to a two (2) day trial before me on Wednesday and Thursday of this week. At the trial the father, who was the applicant, was represented by Mr Guyder of counsel. The mother was represented by Mr Bithrey of counsel.
Material relied upon:
In the father’s case, he relied upon:
a)Amended Initiating Application filed 17 December 2019;
b)Trial affidavit of the father filed on 17 December 2019;
c)Case Outline Document filed 21 February 2020.
In the mother’s case she relied upon:
a)Amended Response filed on 6 December 2019;
b)Trial affidavit of the mother filed on 6 December 2019;
c)Case Outline Document filed 21 January 2020.
The parties also relied upon a Family Report prepared by Dr H, clinical psychologist and regulation 7 Family Consultant, dated 30 August 2019. The Family Report was admitted and marked as exhibit “1” in the proceeding.
Brief observations about the witnesses:
I intend to make some brief observations about the evidence of the witnesses before I turn to more detailed factual findings. I should indicate that in the course of these reasons, unless otherwise stated, anything stated by me in these reasons should be taken as a finding of fact.
The father as a witness:
The father was the first witness in this case. It would be fair to say that I was most unimpressed with much of his evidence and much of his attitude. It was quite apparent to me that he has a very low opinion of the mother.
He seems to harbour a grudge against her relating to her decision in 2017 to relocate away from the Town B area to Town A in order to pursue her employment. Although he has some basis for being frustrated about what the mother did - and I will turn to that a little later - the reality is that the father struck me as a grudge-keeper who is slow to forgive. While he told the court that equal shared parental responsibility could still work provided there was “forgiveness”; there was some irony in his evidence about this.
He said that he has to “try to give faith” that the mother will tell him the truth and that:
‘When someone lies to you numerous times, it is hard to have trust.’
For his part, the father in my view holds a serious grudge about the mother’s relocation, which has at times clouded his judgment and reflects on his parenting capacity and attitude.
He complained to Dr H at paragraph 92 of the Family Report about a particular event in 2016 where he says he “set up” the mother by posting on Facebook that he was going to be going away with friends on a particular weekend. To put it in context, he posted this at a particular point in time when the mother had suspended his time with X due to concerns in relation to her possibly being sexually abused by someone known to the father.
The father’s post was in fact a “trap”. He was going away that weekend and so he could not have X. The mother then offered him time that weekend and so his complaint to Dr H was that she had “fallen into” his trap in that she had decided to offer him time with X on that particular weekend presumably knowing that it would be inconvenient or difficult for him to actually take it.
I found it ironic that he complained about the mother offering him time. He did not take it up. As I said to the father in the witness box, it seemed to me that the mother was “damned if she did and damned if she didn’t”. If she had not offered him time that weekend, he could have potentially criticised her for not complying with the orders - but then when she did make the offer he was not interested.
This particular event happened back in early 2016, some four (4) years ago now and some three and a half (3 ½) years prior to the Family Report interviews. I am somewhat troubled that the father is quoting an event from so long ago for the purpose of these proceedings.
Perhaps most alarmingly in the father’s evidence, in what was a series of low points, was his evidence in relation to the mother’s wish to obtain a passport. The mother is seeking in these proceedings to obtain a passport to be able to travel overseas with X. The father opposes a passport being issued. He is concerned, apparently, that the mother might take X overseas and then never come back. This is despite the fact that the mother does not, to his knowledge, have citizenship of any other country apart from Australia. She does not, to his knowledge, have assets in any other country apart from Australia. She has a full-time job in Australia. She has three (3) other children in Australia – F and G (referred to previously) as well as an adult child Mr I (aged 24).
When I queried the father about why he opposed overseas travel, his response was to the effect that if the mother met someone on the internet who had a lot of money then “you never know”.
He was open-minded to the child being able to perhaps get a passport at age twelve (12) because by then she would be in a better position to contact him and to, presumably, protect herself and stand-up for herself if her mother was holding her overseas against her will.
The father’s evidence on that point could fairly be described as bizarre. It was at best the height of unreasonableness. Alternatively, but perhaps consistently, it may simply represent the complete lack of trust or faith that the father has in the mother, which is a significant concern to this court in the face of the competing applications that each party brings.
At times, I found that the father acted in a self-centred manner, focused much more upon himself than upon X’s best interests. For example, in January of 2019, X having by then attended school at Town A School in 2017 and 2018, the father attempted to enrol her in school at Town J.
To be fair to the father, the parties had agreed during their relationship that the child should attend school at Town J. But he well knew in January 2019 that the mother would not agree to change schools from Town A to Town J. By then X was living primarily at Town A with the mother; she was zoned to attend the public school at Town A.
The father made efforts to communicate with the mother about the proposed change of school, regrettably telling her such things as:
It’s time to swap. It’s your turn to travel.
He did not give proper consideration to the reality of the child simply being uprooted from the school that she had been attending for two years. In my view, his actions were nothing more than a selfish “try-on”.
In the same way, the father suggested to the mother that on a particular day during the school week, at a time when the parties were living at Town A and Town B respectively, that the handover that morning to him should be occurring in accordance with the strict terms of the orders, namely at 8am at McDonald’s Town B. This may strictly have been in accordance with prior orders, but it did not reflect the practical reality that the mother was living in Town A, that the mother had a job and that the practical effect of his proposal was that:
a)the child would be travelling with the mother from Town A to Town B for some thirty (30) or perhaps forty (40) minutes that morning in order to meet the father at 8am;
b)the mother would then turn around and drive back exactly where she had come from in Town A;
c)the father would follow the mother’s car to Town A with the child in his car to drop her to school.
In my view, such a proposal was absolute and utter folly; it was nonsense on the father’s part.
I am also troubled by the father’s at-times tactical approach to this litigation, again reflecting a lack of child focus.
In September of 2018 he initiated these proceedings. He sought that the child live with him, a situation that would have been completely alien to this little girl. That is well and good - but worse, and really the point of significance, is that he also sought that the child spend a mere three (3) nights per fortnight with the mother. On the evidence I cannot really discern any sensible basis for so limiting X’s time with the mother.
When cross-examined about it by the mother’s counsel, he explained that his three (3) nights per fortnight proposal was merely a starting point for negotiations. He explained that it was a document prepared by his solicitor on the basis of that advice.
His solicitor is not here to defend herself, and I would be troubled if the solicitor’s advice was to that effect. But in the end, the father’s attitude as a parent is called into question. The father struck me as a strong and independent-minded person, and I do not permit him to “hide behind the coat tails” of his then solicitor. He should take responsibility for the unreasonable, non-child-focused approach that he took. The court should also discourage parties from bringing ambit claims, particularly in a parenting case.
Notably, the father’s Initiating Application had also sought that he have sole parental responsibility. In the witness box he explained that this was because of the difficulties in communication. This is rather ironic given that he now presses for an order for equal shared parental responsibility.
The father was also criticised to some extent in relation to his movements every second Wednesday during the school term. On those days he would take X to school at Town A in the morning. In the afternoons he would collect her from school for a 5pm handover. But rather than staying in Town A for those two (2) hours (which was convenient to the mother given she works in Town A), he would instead take the child back to Town B with the result that the mother then had to leave work early to drive to Town B to collect her at 5pm.
This issue is something of a two-edged sword, and I am not as critical of the father about this issue as perhaps the mother’s counsel would want me to be. This is because, to be fair to the father, his time had been “crimped” to some extent as a result of the mother’s relocation to Town A. In the circumstances I can understand why that couple of hours after school was important to him.
It might have been the case that the father could, however, have spent some of those afternoons in Town A to perhaps make things easier for X given the travel involved.
The father, in my view, does not trust or much respect the mother; there are other communications that I will turn to a little later which highlight that point.
Overall, I am of the view that the father is devoted to X; he loves her very much; he is determined to play a significant role in her life, which is to his credit. Some of his attitudes to parenting and towards the mother do however cause the court serious concern.
The mother as a witness:
The mother was the next witness in this case. In the same way that her counsel had damaged the father’s credibility, it might fairly be said that the father’s counsel damaged her credibility.
In many ways the mother was also an unimpressive witness. Despite consenting to a final order for equal shared parental responsibility in 2015, she would have me believe that she did not really understand what she was signing.
I do not accept that evidence. It is quite clear that when she had earlier brought a recovery application in 2014 that she sought specific orders for sole parental responsibility. I do not accept her attempt to blame her former solicitor Mr N, for apparently not properly explaining and advising her as to the issue of parental responsibility. In my view, like the father she is quick to criticise lawyers for her own attitudes.
Moreover, having consented to an order for equal shared parental responsibility, the mother then relocated from Town B to Town A to take up her current employment. Her actions were quite calculated in that she deliberately did not tell the father about the move until it was a fait accompli. Why did she not tell him? Because she knew he would be not agree, that he would be angry or unhappy about it.
Of course, her relocation with X then had the practical effect that the child was then in the catchment area of Town A school when the parents had previously agreed she would attend Town J Public School - and thus began a whole raft of problems for this child.
Then, having moved to Town A and thus creating some difficulty with travel as well as a change of school catchment, the mother then refused the father’s 2018 request to go to mediation. Her refusal was disappointing; it reflected a lack of willingness to cooperate with the father and to attempt to negotiate with him - though I have no doubt, from seeing him in the witness box, that the father could be a most difficult man.
Similarly, I have little doubt that the mother has a capacity to be quite stubborn herself, if she wants to be.
The Family Law Act, section 60B(2)(d), provides that, except when it would be contrary to a child’s best interests:
‘parents should agree about the future parenting of their children.’
The mother made no attempt to have any meaningful discussion with the father prior to her relocation with X and - to that extent - I am critical of her.
The mother has also, on occasions, communicated in a reactive or aggressive manner towards the father. I will turn to such matters a little later in these reasons. One particular example of the mother perhaps behaving in a passive-aggressive manner, or at least a contentious or dismissive manner, relates to the father’s attempt to enrol X at the Town J Public School in January 2019. Though I am roundly critical of this attempt as being nothing more than a “try-on”, it is notable that the mother did not even give the father the courtesy of a response to his email communication proposing the change. Although her response no doubt would have been “no”, she ought at least to have told him as much, even if it was no more than a “try-on” on his part.
Having said these things about the mother, as with the father, I want to make clear that the court is in no doubt whatsoever that the mother very much loves her daughter and wants what she thinks is best for her, and that she is devoted to her care. She organises her life, to a large extent, around what she has to do for X, and I have little doubt that she is a committed mother to this child.
Dr H:
Dr H was the last witness to give evidence. She had prepared a comprehensive Family Report which, in my view, delicately and appropriately weighed up the “pros” and “cons” of each parent’s proposal.
Dr H was concerned about the level of parental conflict in this case and about the future potential for difficulty between these parents. She considered that an equal time or shared care arrangement would be contra-indicated, having regard to the difficulties in this particular family. She was concerned about X being exposed to adult conflict and about the difficulty in the parents’ communication, and that it may result in X being caught in a loyalty bind as between the two parents.
Although Dr H was of the view that X was not, at this stage, affected by the parental difficulty, it is nonetheless a serious risk that the court must weigh up for the future parenting of this child. I say this because, to be clear, these parties first commenced litigation in 2014; they consented to final orders in 2015; the mother then relocated in 2017; the father unsuccessfully attempted to initiate family dispute resolution in 2018; and these proceedings were commenced. And now here we are, at the beginning of 2020, having conducted a hard-fought trial.
So for quite a “chunk” of X’s life, her parents have been fighting about what her co-parenting arrangements should be. This disputation is not going to be good for her if it continues.
Both parties submit to me that the dispute needs to end. Each of them says that the orders they contend for will result in a reduced risk of future litigation. Certainly, the risk of future litigation is a matter that I regard seriously and I have factored it into my reasoning in arriving at the orders that I have.
Brief findings as to the past relationship & parenting history:
To put the matter into a little more context, I propose to set out some brief historical matters and findings, to the extent that I can.
The parties were in a turbulent relationship which commenced in early 2011. They cohabited between December 2011 and April 2012.
On both parties’ versions of events, their relationship was pretty dysfunctional. In my view, prior to X being born, neither of them really had a chance to get to know each other perhaps as fully and thoroughly as might have been hoped.
The mother alleges that the relationship was punctuated by the father’s acts of family violence. Certainly there was briefly an apprehended violence order in place in 2012 following an argument in the home. The parties give different versions of events about what happened and the mother’s version is certainly far more graphic and worse than the father’s. But even on the father’s version of events, he concedes that the mother and child were inside a room in the home and that he was outside, frustrated and knocking on the door. He says he was trying to discuss finances with the mother and that she did not want to do so. He says that he was knocking on the door and raising his voice, and that he acknowledged that he said words to the effect of “If I had a gun, I would shoot myself.”
He did in fact have a slug gun, apparently available to him at that time. When the mother later made a complaint to Police, they then raided the father’s property, something the father is resentful of. As stated, an AVO was issued. It lasted but a matter of weeks; the mother never gave evidence and the AVO proceedings ultimately ended up being dismissed.
Even on the father’s version of events, his admitted threat to kill himself with a gun constitutes conduct that would fall within the definition of “family violence” in section 4AB of the Act.
Later around 2013, the mother obtained another AVO against the father, following what she alleges were obsessive text messages to her after they had separated. He acknowledges that he had sent about 100 text messages to the mother in relation to their relationship and about having time with X on his birthday. He was frustrated as he believed that the mother wanted to continue the relationship, but he had become aware that she was seeing someone else.
As with the incident where he threatened or talked about shooting himself, he again refers to his frustration, and he acknowledges that his texting was not the best way to resolve the situation.
The father consented to this AVO on a “without admissions” basis.
The mother’s evidence is that the father was a far more controlling, manipulative person than he would concede. I do not however consider it to be of any particular relevance to trace through any of the further disputed domestic violence history between these parties given the age of the events and given that they subsequently entered into final consent orders on 2 December 2015 for equal shared parental responsibility.
Moreover, at trial I urged the parties not to overly dwell on the events pre-dating the final consent orders. Indeed the parties lead very little (if any) evidence at trial in relation to these historical matters. The historical family violence allegations were not really explored in any serious way at trial, and in my view, this was appropriate in the circumstances of this case.
In the result, my view is that family violence is not the determinant in this case at all; it is however part of the background history.
For present purposes, the relevant point is that the evidence before the court engages section 61DA(2) of the Act, ie. the court has reasonable grounds to believe that a parent of the child (in this case the father) has engaged in family violence.
Parental dispute giving rise to the first round of litigation:
There is a dispute about what happened around the time when the mother travelled overseas to Country K around 2013 or 2014.
The father’s case is that the mother was homeless for a period and that she was wanting to relocate; therefore he kept X with him. He had her for a little over three weeks in total. The mother’s case is that she was never homeless.
It was the father’s retention of the child that led the mother to initially bring parenting proceedings in the Local Court at Town A, which resulted in orders being made for him to return X to the mother. The father told Dr H, at paragraph 36 of the Family Report, that the mother had made an application for a recovery order which he considered ridiculous, as he had “as much right to the child as the mother did”.
There are certainly disputed facts surrounding what was going on in the mother’s life at that time, but what is noteworthy is that the parties found themselves in a situation of high conflict, where each gives radically different versions of events. Again, sensibly, these matters were not explored at any length during the trial.
Nor is it necessary in my view to make a finding about the alleged event between the parents that occurred at Location J which is said to have occurred in 2013, but must logically have happened in 2014. The mother alleges that the father became angry with her on that occasion and that he stabbed his knife into the table – which he denies.
I do not consider it necessary or even helpful to make a finding about this event. Certainly, on any view there was an unpleasant altercation between the parents - and the father briefly attempted briefly to stop the mother leaving afterwards with the child.
Consent orders of 2 December 2015:
Pursuant to those orders, the parents agreed to equally share parental responsibility and that the father would spend time with X for five (5) nights per fortnight in a way that effectively involved three (3) separate blocks of time. They agreed to share school holidays. They agreed to changeovers at Town B McDonald’s.
The orders ought, in a perfect world, to have extinguished the dispute between the parties - but they did not. Tensions remained.
Relocation leading to current round of litigation:
As I have indicated, the mother relocated with the child from Town B to Town A in February of 2017 after obtaining a job there.
Afterwards the mother refused to participate in family dispute resolution and the father has maintained an ongoing simmering anger and resentment at the manner in which he thought he had been treated. This is what led to the father bringing his, in some respects, ill-considered Initiating Application of September 2018 to which I have already referred.
In the course of these proceedings, the court has ordered a section 11F memorandum, a Family Report and the parties have consented to further interim orders whereby the child continues to spend five (5) nights with the father each fortnight, being a Friday to Monday in one weekend and then overnight each Tuesday.
It is these arrangements that the parties now seek significantly to change, the father’s application being for equal time and equal shared parental responsibility and the mother’s proposal being that the father spend three (3) nights per fortnight with the child.
The law:
I turn then to the law in relation to parenting proceedings.
The court’s power to make a “parenting order” is found in Part VII of the Act, with that term being statutorily defined in section 64B. Section 60B sets out a number of key objects and principles which underpin the operation of Part VII, which I do not propose to repeat here.
When deciding whether or not to make a particular parenting order, the Act requires that the court regard the best interests of the children as the paramount consideration: section 60CA, section 65AA. In arriving at this statutorily-mandated best interests determination, the court is obliged to have regard to various mandatory considerations prescribed in section 60CC. There are two (2) so-called “primary” considerations, one in section 60CC(2)(a) and the other in 60CC(2)(b). Section 60CC(3) goes on to prescribe fourteen (14) other so-called “additional” considerations.
When a court is considering making a parenting order, section 61DA(1) of the Act imports a rebuttable statutory presumption that it would be in the best interests of the child concerned for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in “abuse” of the child or “family violence” as those terms are statutorily defined in sections 4 and 4AB respectively.
Pursuant to section 61DA(4), if the presumption does apply, then it may nonetheless be rebutted by evidence which satisfies the court that the making of such an order would not, in fact, be in the child’s best interests.
Pursuant to section 65DAA of the Act, upon the making of an order for equal shared parental responsibility for a child, the court is then obliged to follow the specific statutory pathway in that section as identified by the decision of the Full Court in Goode & Goode (2006) FLC 93–286. Put shortly, the court must consider, as the first option, making an order for the children to spend equal time with both parents provided that such an order is in the best interests of the child and is “reasonably practicable”. The term “reasonable practicability” is statutorily defined in section 65DAA(5).
If equal time is not in the best interests of the child or is not reasonably practicable, then the court must consider making an order for the child to live primarily with one parent but to spend “substantial and significant time” with the other parent. “Substantial and significant time” is statutorily defined as meaning that the children spend time with the other parent not merely on holidays and weekends, but also in a way that allows that other parent to be involved in the children’s day-to-day routine and occasions of special significance. Once again, such an order can, however, only be made if in the best interests of the child and reasonably practicable.
If an order for substantial and significant time is not in the best interests of the child or is not reasonably practicable, then the question of the child’s time with the other parent is at large, to be determined by application of the best interest considerations in section 60CC.
“Reasonable practicability” was explained by the High Court in its celebrated decision of MRR & GR (2010) FLC 93-424. The court held that reasonable practicability requires the court to consider the reality of the situation of the parents and the children. The court must undertake a practical assessment of whether an order for equal time, or for substantial and significant time, is feasible for both parents.
In U & U (2002) 211 CLR 238, the High Court held that this court is not strictly bound by the competing parenting proposals of each party. Subject to each party being afforded procedural fairness, the court may craft different orders if required so as to meet the best interests of a child in any given case.
Best interests:
I now turn to the relevant findings pursuant to section 60CC of the Act.
Section 60CC(2)(a) – benefit of meaningful relationship with parents:
In Mazorski & Albright (2007) 37 FLR 518, Brown J referred to the concept of a meaningful relationship as being a relationship which is important, significant and valuable to a child. It is a qualitative adjective, not a strictly quantitative one. Of course, quantity can also affect quality.
In Godfrey & Saunders [2007] FamCA 102, Kay J, sitting as the Full Court, held that the legislation does not purport to describe how that meaningful relationship is best promoted in the circumstances of any one case. His Honour held that what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[1]
So much might be thought to be obvious in the context of a relocation argument, which is what that particular case involved. If an optimal relationship was required, for example, it is difficult to imagine how a parent could relocate in a great many cases.
In assessing the benefit to the child of having a meaningful relationship with a parent, the test is a prospective one.
In the circumstances of this case, I consider that on either parent’s proposed orders the child will have a meaningful relationship with each parent. The reality is that the child has a loving, established, developed relationship with the mother, and on no proposal before me is that going to change. The child also has a loving relationship with her father, and in my view a meaningful relationship can be maintained with him even on the mother’s proposed orders.
However, the quality of that meaningful relationship or its meaningfulness, for want of a better word, will diminish to some extent if I were to reduce the father’s time to three (3) nights per fortnight, as the mother seeks. Dr H’ evidence was that the risk of such a reduction might be that “the little things” that occur in a parent/child relationship – perhaps subtle things each parent and child knows about what is going on in the other’s life - can be lost if the time with that parent is reduced to a great extent.
I consider, nonetheless, that section 60CC(2)(a) will be satisfied on either party’s proposal. I see an obvious benefit to the child in having a meaningful relationship with both parents, and by necessary implication both parents concede that.
Section 60CC(2)(b) – protection from risk of harm:
I have addressed the issue of family violence earlier. On the mother’s case, the father was behaving in a manner towards her that constituted family violence at a much higher level than he would concede. But I do not see family violence in this case as being a particularly significant matter. The major issue in this case, in my view, is the toxic nature of the parents’ relationship and their inability to communicate, their lack of trust and their lack of respect for each other.
The father accused the mother of slapping the child on two (2) occasions, apparently to “slap some sense into her” or words to that effect. These allegations were not pursued in cross-examination, and I reject the father’s evidence about them. The mother has consistently denied doing it. I raise it here because if proven it would constitute “abuse”.
The father has used cannabis from time to time, last apparently using in November 2019. Dr H talks about cannabis in the Family Report, but again, to be fair, it was not an issue pressed with any vigour, if at all, at trial. I do not regard cannabis as an issue that is of concern in this case.
In the result, I do not consider that there is any real risk arising in this case pursuant to section 60CC(2)(b), as that section is drafted.
Section 60CC(3)(a) – views of the child:
X is eight (8) years old. At the time of the Family Report interviews last year, she was not quite eight (8).
At paragraph 107 of the Family Report, Dr H observed that X, in the course of the interview, indicated that she loved her mother and father very much and she described a range of fun and child-focused activities that she engages in with each of them. She noted that she likes living with her mother, however, would also like to have more time with her father. She stated that she also likes her mother’s partner, who is fun and kind and looks after her. She also likes her father’s partner, describing her as pretty, gentle and kind.
What weight should I give the child’s statement that she likes living with her mother but would like to have more time with her father?
The child’s wishes are of course but one consideration, and in that regard the mother expressed a concern that the child may have been “coached” by the father. She gives an example in her affidavit of where the father effectively, on her case, pressured the child to ask her to have more time with him on one particular occasion. The father did admit at paragraph 59 of the Family Report that he has shared his views with the child and that she agrees with him that an equal shared care arrangement would be appropriate.
It is quite clear from the Family Report interview that the father was strongly of the view that equal time was appropriate. But it is noteworthy that the child did not herself say she wanted equal time. I am not satisfied that the father has coached this child in that sense. But equally, I am not entirely sure that the child actually wants equal time. She could have said as much to Dr H if that was her true wish but certainly she did say that she wanted to spend more time with her father.
It troubles me to reduce the child’s time with the father to a significant extent if the child wishes to spend more time with him. But as I have indicated, X’s wishes are but one consideration.
Section 60CC(3)(b) – nature of child’s relationships:
The mother has always been X’s primary carer and I am comfortably satisfied that she has done an excellent job in providing for all of X’s day-to-day needs.
X has a loving and close relationship with her father as well. She is not an alienated child by any stretch of the imagination.
She has a loving relationship with her siblings in the mother’s home, no doubt, and she has the beginning of what will hopefully be a very loving relationship with her youngest sibling in the father’s home. This baby born in 2020 is, in a practical sense, X’s little sister.
Also resident in the father’s home is his partner Ms E’s son, L, who is of similar age to X and apparently, on all of the unchallenged evidence before me, the two of them get on well and enjoy doing activities together.
The child has loving relationships with the important people in her life. This include members of X’s extended family, who are also important but who do not feature in any serious way in the evidence in this case.
Section 60CC(3)(c) – parental participation in decision-making:
I am satisfied that each parent has participated in decision-making about X to the extent that they have been able to. That said, the mother’s decision to enrol X at Town A Public School effectively deprived the father of an opportunity to have input into that decision, and the father’s subsequent attempt to “try on” a change of school back to Town J was unhelpful.
But I am broadly satisfied that each parent has participated in X’s life and in decision-making for her to the extent they think they have been able to.
Section 60CC(3)(ca) – parental maintenance of child:
This matter does not take me very far. The mother pays modest child support to the father, from which I can only infer, given that she has the child for much more time than he does, that the father’s income must be pretty modest and certainly much less than the mother’s income.
But I cannot be critical of the father for this reality; he is (notionally) paying what is assessed. I reject the submission or suggestion that the mother has brought this proceeding, or seeks to reduce his time, so as to improve her child support situation. This suggestion was put to the mother, she rejected it and I accept her evidence. Neither party’s application is motivated by child support.
Section 60CC(3)(d) – likely effect of any change in circumstances:
This is inevitably a significant consideration, because I am weighing up equal time versus three (3) nights per fortnight - or perhaps some other allocation of time in between those two positions.
Equal time is the father’s application, and I am troubled at how these parties could possibly make such an arrangement work. Dr H’ evidence was that it would require a lot of co-parenting, something that would need to be worked through by the parents without too much conflict. Simple things about being able to make joint decisions and cooperate in a collaborative fashion are vital to the success of such an arrangement.
Put another way, such an arrangement would only be in the best interests of this child if the parents were able to collaboratively work together, because a child living in two separate households for an equal amount of time, although the handovers are very limited, nonetheless requires substantial parental cooperation and parties being on the same page.
In my view, the parents are not on the same page. They barely communicate at handovers, where I accept that the father endeavours to initiate discussions with the mother to try to talk through issues about X - and that she resists participating. Handovers are not the appropriate place to have such discussions in any event.
Dr H raised real concern about the “simple things” going wrong, such as when the child leaves things behind at the other parent’s house.
I have before me somewhat depressing, albeit illustrative, evidence about what happened when a pair of X’s shoes was left behind at the mother’s home in September 2018. The shoes were meant to have gone back with X to the father’s home.
The parents’ ensuing text exchange, which appears in annexure “A” to the mother’s affidavit, is illuminating. The father starts the discussion by saying:
Shoes, [Ms Dennis]??
He asks why they were not returned and says:
I requested you return them yesterday!
The mother’s response is:
We forgot. Simple!!! They’re too small anyway, so no rush. Tomorrow it will be. Thus was followed by a thumb-up emoji.
I pause here to observe that the one word conspicuously absent from her text was – sorry. That simple word may have somewhat reduced the sting that the father was apparently feeling.
The father’s response, regrettably, was to escalate. He rejected the mother’s suggestion that the shoes were too small for X or that she would grow out of them soon and went on:
I want to get the most use out of those $100 shoes as possible, and there is no excuse for forgetting, you had plenty of notice as a reminder.
People forget. The father has clearly written this text in anger. He then ups the ante:
I’m sick of your games, [Ms Dennis]. You shouldn’t be playing games. This is ridiculous.
And again:
Things will not be sent home with [X] any more, [Ms Dennis]. Unfortunately, you cannot return things.
So a small thing has escalated into a problem, over a simple pair of shoes.
The mother then seizes upon the father’s typographical error in the last message, where he incorrectly spells X as “X” in capital letters to emphasise her point. She goes on:
[X] said her toes are hitting the end!!! Not me!!!!! You are bloody ridiculous. Go and harass your new GF.
Leave me alone.
This mother was clearly becoming reactive.
The father then engages in some more messaging about collecting the shoes, and again misspells the child’s name. The mother responds with:
Don’t you know how to spell your daughter’s name lol
which frankly was just plain rude on her part.
The father then attended at the mother’s home to collect the shoes without her knowledge and without her consent. In my view he knew that doing so would be annoying to her at best.
The mother reacted to his actions by being very critical of him in a further text message. Effectively she said to him – “How dare you call into my home without my knowledge nor consent,” and she refers to previous AVOs, and that he is not welcome at her home.
This is a one-off event relating to a pair of shoes, but in the context of the marked lack of trust between these two parties, it is an illustrative example of the very concern raised by Dr H in the context of an equal time arrangement.
The parties are at loggerheads about whether the father should even be able to go to the mother’s home. It is all a bit confusing and it reflects a greatly fractured co-parenting relationship.
Specifically the mother wants an absolute restraint that the father not go to her home. Yet when the parents swapped weekends with X in January 2020 she proposed that the father drop X back to her home.
The father opposes the restraint against going to the mother’s home. Yet on that particular occasion he refused to drop X back there even when invited to do so.
The father did not want to go to the mother’s home because he does not trust her. He records their changeovers. The lack of trust and capacity for these parents to work cooperatively together, in my view, tells strongly against a suggestion that there be an equal time order.
I do not think that such an arrangement would be workable. It would put the child in the middle of a dispute that she should not be in the middle of. So far the parents have shielded her from their dispute to some extent. Going forward, the risk is that their dispute will not be able to be fully contained. An equal time arrangement escalates that risk.
As Dr H observes in paragraphs 121 and 122 of the Family Report:
High, ongoing inter-parental conflict does not suggest that an equal shared care arrangement will work effectively, and it may have a detrimental impact on the child as it will likely result in the child experiencing high emotional distress. If the parents are unable to effectively communicate in a flexible and supportive manner, then the child will be required to manage and negotiate the parental conflict, inconsistent parenting arrangements or strategies in a number of physical environments. This is likely to be physically and emotionally draining, particularly when the child’s coping resources are either not well enough developed to manage such an arrangement or when they are already stretched with meeting normal developmental demands.
Further, a shared care arrangement would mean there would be a heightened need for routine parental communication, cooperation and flexibility due to school, sporting and social commitments, which arise constantly in a shared care arrangement, as opposed to an every second weekend arrangement. Given the parent’s current relationship, this will place strain on the mother’s emotional resources, due to her ongoing feelings of intimidation by the father. This will impact her parenting capacity, and therefore ultimately impact the child.
I pause here to note that the parents’ communication is woeful.
In their communications, the mother has a capacity to stand up for herself, and on occasion to “give as good as she gets”. But I do not dismiss the evidence that she feels intimidated by the father. I accept that that is the way she feels. Whether it is entirely proportionate to what is happening is another matter, but it only highlights the very difficult relationship between these two parties.
The mother proposes that the child should be spending three (3) nights per fortnight with the father. X has never spent such a limited amount of time with him in the context of court-ordered arrangements, save for a period in early 2016 when the mother briefly suspended the father’s time as referred to earlier.
The mother’s proposal means that the child would have to adapt to a significant reduction in her quality time with her father.
The child loves her father very dearly. She has a good relationship with his partner, a good and developing relationship with L. Perhaps of most or at least equal significance as the father/child relationship – X now also has a new baby sister in the father’s household.
To be fair, the mother’s proposal seems rather cruel to X. I indicated to the mother’s counsel that I might, in making such an order, be “breaking a little girl’s heart”, or words to that effect. Put another way, it troubles me that such an order might be “using a sledgehammer to drive a nail.”
The court has to weigh up the relationships that the child has, which, although a meaningful relationship can be maintained, will be inevitably diminished, in my view, if I were to accede to the mother’s application.
To her credit, the mother in the witness box said that she could possibly agree to maintaining the existing five (5) nights per fortnight with the father, though it is not what she wants – provided that such a block were to be consolidated into one (1) block of time. (Her formal instructions, no doubt, were to press her three (3) night per fortnight application.)
If the court were to put in place a five (5) night order, as I foreshadowed was a possibility in the course of the hearing, the father’s time could be taken as one (1) block, which would give the child the opportunity to continue a meaningful relationship with her father and develop, in my view, a more meaningful relationship with her little sister by having that bigger chunk of time. Though there would be risks of difficulties between the parties in terms of school uniforms or other details that could go wrong and although there would be issues related to communication which will inevitably have to be addressed by the parties whatever orders are made, the court considers that a five (5) night block would be an order that could work effectively in this child’s best interests.
Section 60CC(3)(e) – practical difficulty and expenses:
There are practical difficulties and expenses relating to travel that I have addressed earlier. I have factored these matters into consideration. They, in fact, also tell fairly strongly against the father’s proposal for a seven (7) night alternating arrangement - because I would be subjecting this child to a significant amount of travel to and from school if she were to live in such an arrangement. Though there may be school buses available between Town B and Town A, I do not see the availability of buses as being a complete answer on this point.
Section 60CC(3)(f) – parental capacity:
Each parent has capacity to provide for the child’s needs. At times, their conflict has trumped their child focus, but in a broad sense each has capacity.
Section 60CC(3)(g) – age, maturity and characteristics of the child:
X is a female child aged eight (8) years.
I see no particular issue arising in this case in terms of her sex, maturity or background.
Section 60CC(3)(h) – aboriginality and cultural issues:
These consideration do not arise on the evidence before me.
Section 60CC(3)(i) – attitude to parenting:
Each parent’s attitude can be praised in terms of their devotion to their daughter - and criticised in terms of their stubborn inability on occasions to reach agreement and their lack of child focus.
Section 60CC(3)(j) & (k) – family violence and related orders:
I have addressed the historical issues of family violence to the extent that I intend to. There have been previous family violence orders.
Post-separation, the mother alleges that the father has attempted to sabotage her employment since she moved to Town A in 2017. This is a very serious allegation, but she is not in a position to be able to prove it on balance.
Her case might be summarised in this manner – that between May and August 2017, a woman at her former employer’s office was telephoned on some three (3) occasions or so by a person who twice identified himself as “[Ms Dennis’s] ex”. The woman responded that the mother no longer worked there.
In January of 2018, someone then sent a most aggressive message to the mother’s current employer. The message reads:
On visiting your office, I see you have a new team member, Ms Dennis. I hope you did checks on her. Be aware she is major trouble and will be hard to get rid of without some legal battle. She flirts with staff and very moody and troubled woman. This is just a warning that she will cause trouble, as she did for us and her previous employers. Be careful. Regards, concerned client.
If it was the father who telephoned the mother’s former employer in 2017, then it might be the father who sent her current employer this message in early 2018. He certainly felt resentful of the mother – no question about that – and he did not respect her.
The father might be thought to have a motive for doing so.
The father’s motive arises because, on his own case, he says that in March 2017 he became aware that an adverse review of his then business had been posted on TripAdvisor. He said that Mr M had subsequently admitted to him that he had posted it – at the mother’s request.
The mother denies asking Mr M to do so.
Certainly, there is a possibility that the mother did as the father alleges, ie. She deliberately set out to sabotage the father’s business in 2017. If so this would reflect poorly on her; it may even constitute family violence.
For his part, the father denies sending that January 2018 message to the mother’s current employer and suggests that it could have been someone else – specifically pointing to the mother’s acrimonious separation around that timeframe with the said Mr M. The father says he does not know who sent the message but suggests that Mr M, or some other person, could have been responsible.
There is a possibility that the father by way of revenge sent the January 2018 message to the mother’s current employer under the guise of being a “concerned client”. He certainly had the motive. He also admits that in January 2019 he had his partner, Ms E, telephone the mother’s employer under the guise of being someone else in an endeavour to check if the mother was at work at that time.
While I do not positively find that either parent has done what is alleged against them by the other parent, equally I do not discount the real possibility that one or both of them did exactly what they are accused of.
What is the relevance of it? It demonstrates the lack of trust between these parties; each genuinely believes the other attempted to sabotage their respective income stream and each is willing to accuse the other of doing so in these proceedings without in my view being able to positively prove it.
The father did not call Mr M as a witness. The mother did not call either her current employer or this other person at her former workplace who claims she had received calls from her “ex” in 2017.
The court makes no positive finding either way but observes that it is possible that each party has done what is alleged and that each genuinely believes the other did what they accuse them of. This underscores the deep cracks in the co-parenting relationship between these parents.
I have addressed the issue of past apprehended violence orders, and I will not restate those. Those orders have now expired.
Section 60CC(3)(l) – future risk of litigation:
Each party seeks orders that they say will reduce the risk of future litigation.
Section 60CC(3)(m) – any other relevant facts or circumstances:
There is no particular matter pursuant to section 60CC(3)(m) that arises in my mind.
The statutory pathway:
Turning then to the statutory pathway identified by Goode & Goode, starting with section 61DA, I have already indicated that I am satisfied that section 61DA(2) is engaged.
Mr Guyder refers to the fact that the parties entered into final consent orders on 2 December 2015 whereby they agreed to equal shared parental responsibility. But that, in my view, does not change the impact of section 61DA(2). Once there are reasonable grounds to believe that a parent has perpetrated family violence, then section 61DA(2) applies even if parties have subsequently agreed to final orders for equal shared parental responsibility, as happened here.
Of course, the making of such orders after there had been family violence might make it more straightforward for the court to arrive at the view that the parties can, in fact, share parental responsibility in a child’s best interests.
While I start from the position that the statutory presumption does not apply, it is nonetheless my view is that even if the presumption did apply, it would be overwhelmingly rebutted by the evidence in this case – with the result that such an order would not be in X’s best interests.
To be clear, this is why I say that family violence is, to some extent, a side issue in this case. The major issue here is that these parties, in my view, do not have the capacity to properly communicate about their child’s best interests in a way that would be conducive to equal shared parental responsibility being a success. I consider that it would be a failure. They cannot agree in terms of schooling. It remains simmering issue for them.
In support of his position that there should be equal shared parental responsibility, the father submits that - at least insofar as education is concerned - the parents are going to have to send X to whatever public school’s catchment she is in. But that is not a complete answer, particular on the equal time order he seeks, as in that event child would not have one particular home as such. I have little doubt that if I made an equal time order, for example, that there would be an immediate problem whereby the father would want the child enrolled at Town J.
The potential for these parties to engage in dispute, and potentially litigation, in my view militates strongly against the making of an order for equal shared parental responsibility. In my view, the parent who has primary care of the child should have parental responsibility in this case.
These parents maintain too much reactivity in their relationship. As recently as January this year the mother was complaining to the father about him continuing to record their discussions at handovers. He knew she did not agree with him doing so. She had asked him to stop. His response to her was - “What have you got to hide?” and that he would keep recording until the mother stopped making accusations about him.
Regrettably, the father then followed this up with a message - “Why are you so bitter, [Ms Dennis]? Is it because you still love me? Move on.”
Equally regrettably, the mother responded, “Ha, ha, ha. Ha, ha. Nah.” This was clearly a reactive response on her part.
A short time later, when the mother had been contacting the father without using “caller ID’ he queried her as to why she was doing that, raising the seemingly legitimate concern that he would not be able to ring her back if he missed her call.
She responded to the effect, “You didn’t miss it”, hearkening back to his comments about their earlier relationship.
So even now in January 2020, some seven (7) years and nine (9) months after what passed for a relationship between them came to a dreary end, they remain so reactive to each other. This troubles the court.
Moreover, the court is troubled by the reality that the order for equal shared parental responsibility in December 2015 did not work anyway. Here we all are after two (2) days of a contested final hearing. The mother is no innocent victim in this respect, because she trampled on the requirements of that order.
I do not consider that parties can make equal shared parental responsibility work in X’s best interests. The fact that the father wants to record the mother at handovers, or at least substantially record her, shows what a toxic relationship the two of them have.
In saying this, I am mindful of paragraphs 52 - 57 of the father’s affidavit where he gives evidence about the parties being able to reach some co-parenting agreements, and I also note that they have reached previous interim orders by consent.
But not many cases make it all the way to a final hearing, and this is one such case.
I consider that an order for equal shared parental responsibility is not an appropriate order. If equal shared parental responsibility is not in the best interests of a child then section 65DAA is not engaged. I am not therefore obliged to consider equal time as a first possibility.
I do not consider, for the reasons I have given, that an equal time order would be “reasonably practicable” in any event.
Equally, I do not consider that reducing the father’s time to three (3) nights per fortnight would be in this child’s best interests either. I consider that X would be most upset by such an arrangement, particularly over time. That a risk I also have to weigh up, namely that if she spends such limited time with her father, who would no doubt harbour intense resentment about such an order, X might, in time, come to want to “vote with her feet” and otherwise do what she can do to spend more time with her father. She might become quite a “handful” for the mother.
I consider a much more appropriate and child-focused order to be that the child continue to spend five (5) nights per fortnight with the father – but in a block on the basis of orders that are clear; orders that are tightly drafted, with a view to limiting conflict as much as possible.
The parties heard what Dr H said. I have told both of them in the course of the hearing that they both need to reflect on their own behaviours; that they should focus on what they can do to improve the situation as best they can.
There are some other detailed orders that I am asked to make. I will shortly give each party the draft orders that I propose to make; each party can have a look at them and if there is any “tinkering” or any last-minute changes, I can make those before the orders are finally sealed, obviously without any prejudice to either party’s right to take this matter somewhere else if they see fit.
But before I do that I will turn just to a couple of other matters.
The mother seeks an injunction that the father be restrained from entering or approaching within fifty (50) metres of the child’s residence. The father opposes this order. An interesting debate was had as to the court’s jurisdiction. In my view, section 68B(1)(c) would seem specifically on point, although section 68B(2) may also be engaged.
In my view, the making of an injunction pursuant to section 68B is not a parenting order. That being so, the court is obliged to consider, in section 68B(1)(c), whether making such an order would be appropriate for the welfare of the child.
This debate is an example of the parties, in one sense, having a fight simply because they can. I say that because the mother clearly does not want the father coming to her house, as a general rule.
In January 2020, when she asked him to do so, he was sceptical. He feared that she might make a false complaint about him. He didn’t want to. She said to him “come on” or words to that effect.
The father says that the mother is being tactical or difficult with him and wants to call the shots. But the irony in him opposing her injunction is that:
(a) there is no reason for the father to ever attend the mother’s home in accordance with the orders they agree to – the parties actually agreed to handover being at McDonald’s at Town B, so there’s no reason for him to go to her home;
(b) he doesn’t want to go to her home, and in fact, he positively refused the mother’s request that he do so in January 2020;
(c) it is common ground that the parties have pretty high conflict – or if it’s not common ground I certainly find it to be the case. They don’t respect each other, and there is significant antipathy between them.
In a perfect world, as Dr H observed, the parents would conduct handovers at their respective homes. Nothing would be better for his young girl than to see her mum and dad get on, and having a handover at the houses is a great way to give X that message - but some parents can’t do it, and at this point, this couple can’t.
In circumstances where:
· there have been two (2) previous AVOs;
· the father expresses fear of the mother making “false complaints” against him;
· the mother seems to be – or at least says she is, and I accept that her feelings are genuine - intimidated on occasions by the father;
· where the father does not need to ever go to the house in any event under the orders; and
· where he refused her invitation to do so in January;
I do not even know why the parties argued about this injunction.
The court is firmly of the view that the granting of that injunction would be appropriate for the child’s welfare in all the circumstances. It does no harm. In fact, it probably does good. The court would, however, make one amendment, so that it reads that the father be so restrained unless the mother has consented in writing to him doing so. She doesn’t have to give her consent, but that gives the parties a bit of flexibility if they can do it, and then the father cannot then say that it is all a “set up”.
The father consents without admission as to an order that he be restrained from contacting or entering the mother’s place of employment. I don’t know why he consents to that order but refuses to agree to an order that he not go to the mother’s home, but anyway it’s a matter for him.
In relation to the raft of other detailed orders that the parties asked me to make findings about, I propose to hand to the parties the orders that the court intends to make. If I would summarise it this way, I propose to order that:
· all previous parenting orders be discharged;
· the mother have sole parental responsibility for the child;
· that the child live with the mother;
· that the child spend time with the father during school terms from after school Friday to the commencement of school Wednesday, commencing the first Friday of every school term;
· that the end of terms 1, 2 and 3 school holidays be split equally in an odds and even years fashion – this being the father’s proposed form of order. Each parent’s proposal is equally clear; each can be navigated. But the father’s proposed order may avoid or minimise the risk of “special days” such as Easter, Good Friday and Easter Sunday becoming problems, ie. being unequally shared.
· In terms of the Christmas holidays, the court is of the view that the appropriate orders are that, in an odd-numbered year, the time be spent with the father from the conclusion of school on the last day until 5 pm on 7 January, and in even-numbered years from 10 am on 7 January until commencement of school on the first day in term 1. In other words, I am splitting the Christmas holidays equally, or close to equally, but not in a week-about fashion. (The father was seeking week-about.)
The Christmas holiday debate has a connection to the passport and overseas travel orders. The father’s evidence is that week-about at Christmas works best for his employment. But week-about means that this child is condemned to never having more than about eight (8) consecutive days with a parent during the year, which means neither of them can ever have any sort of decent holiday, much less an overseas holiday. Going anywhere overseas other than, perhaps, somewhere in the Pacific would be almost impossible for X, and frankly I don’t see why she should miss out in this way. So I propose to order that the parents split the Christmas holidays as blocks of around half each.
The minutiae that could not be agreed upon:
I don’t propose to make an order that Christmas Day itself be split between the parents. If they want to work that out, they can. If they don’t, then the parent who has the child for the first half has Christmas, Day with X, full stop.
The birthday order I propose to make is the one that the father proposed, namely that the parent who hasn’t got X on her birthday collects her at 3 o’clock from school the day before her birthday - so that that parent can then spend the night before with X and can organise a birthday party. The child then gets the benefit of – if it’s organised - a birthday party on her birthday with the other parent as well. She gets two (2) birthdays for the price of one, which might be one good thing for this girl given that her parents are not together any more.
I propose to make the parent birthday orders in the same terms.
In terms of Easter, I prefer the father’s order that the time run from Friday to Sunday, and then from the Sunday to the Tuesday and vice versa, because it may be – and I say may be – that this proposal will be less disruptive to the holiday arrangements than the mother’s proposal, which is to have a big “chunk” of time with the other parent in alternate years.
In terms of passports, the court is of the view that this is just another example of the difficulty between these parents. The mother seeks a passport to be able to travel overseas with X. She doesn’t have a specific plan at this time, but she wants to be able to travel overseas.
Her proposal in that respect is entirely appropriate, in my view. I do not see her as being a flight risk at all. The father does not consent to a passport for this child.
What I propose to do is to order that, pursuant to section 11(1)(b) of the Australian Passports Act, the mother be authorised to apply for and retain a passport for the child without the father’s written consent or approval. This gives the child the opportunity, if it arises, to travel overseas.
I am not making the specific order sought by the mother in response, which was to the effect that the mother could apply for the passport only if he failed or refused to do so, because that might, with all the best intentions of the person who drafted it – I am not critical about them at that – but it might lead to an argument along the lines of “she never asked me to sign it, or I would have done it”, and here we are again. I am not permitting that, so I am just authorising the mother to go ahead and do it, frankly.
In terms of overseas travel, I propose to also make the mother’s order, which is that either parent can travel with X outside the Commonwealth of Australia.
However, I add one additional order - namely that the overseas travel occurs during the traveling parent’s time with the child pursuant to these orders, unless otherwise agreed to in writing. This is to avoid a possible scenario where one parent says “I want to go to England with X for four weeks” and the other responds with “Hang on, you’re only entitled to three weeks under the orders” - and then we get into a debate about whether the general overseas order proposed by the mother could be read as potentially permitting extra time with X above and beyond what the orders provide. I probably would not read the mother’s proposed overseas travel order as permitting such extra time - but I am expressly spelling it out to try to avoid a problem.
Realistically, unless a parent was traveling somewhere close by, the holiday would have to occur at Christmas anyway.
In terms of the passport, so as to avoid the risk of a fight about this, I am adding an additional order - namely that the mother retain the passport when it is not being used by the father for overseas travel; that the mother deliver it to the father no later than seven (7) days prior to any overseas travel he is undertaking with X; and that he return it to her no later than seven (7) days after he returns home with the child. So that way the passport is with the mother, but it goes to the father seven (7) days before he leaves Australia with X, and he then returns it to her no later than seven (7) days after he gets back.
For the purpose of the order, “writing” will include text messages and emails, noting that this is how most people communicate these days, except perhaps for solicitors.
Conclusion:
The court makes the orders set out at the commencement of these reasons.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 13 February 2020
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
-
Remedies
0
3
3