Dorn & Dorn
[2023] FedCFamC2F 350
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dorn & Dorn [2023] FedCFamC2F 350
File number(s): PAC 1604 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – Final parenting – Parental responsibility – Whom the child lives with – Whom the child spends time with – Allegations of violence –Mental health – Risk to the child of psychological harm – Difficulties communicating between parents
FAMILY LAW – Costs – Oral application by Independent Children’s Lawyer – Parties opted not to make submissions
Legislation: Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 61DA, 65DAA Cases cited: Banks & Banks [2015] FamCAFC 36
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 93 Date of last submission/s: 15 September 2022 Date of hearing: 14-15 September 2022 Place: Parramatta Counsel for the Applicant: Mr Liedermann Solicitor for the Applicant: Bridges Lawyers Counsel for the Respondent: Mr Bithrey Solicitor for the Respondent: LMC Lawyers Appearing for the Independent Children's Lawyer: Mr Bourne Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers ORDERS
PAC 1604 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DORN
Applicant
AND: MS DORN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS THAT:
1.The parties shall have equal shared parental responsibility for X born 2017.
2.X shall live with the mother.
3.X shall spend time with the father as agreed between the mother and father or failing agreement:
(a)During school term, each alternate weekend from after school or if a non-school day then from 5pm Friday until 5pm Sunday;
(b)During school term, each Wednesday from after school or if a non-school day then from 6pm until the commencement of school the following day, or if a non-school day then 9am;
(c)On Father’s Day weekend from 1pm on the Saturday immediately before Father’s Day until 5.00pm on Sunday/Father’s Day;
(d)In odd numbered years from 1pm on Christmas Eve until 1pm on Christmas Day;
(e)In even numbered years from 1pm on Christmas Day until 1pm on Boxing Day;
(f)In even numbered years from 9am Good Friday until 9am Easter Sunday;
(g)In odd numbered years from 9am Easter Sunday until 5pm Easter Monday;
(h)On the Father’s birthday from 9am until 5pm, or if a school day, then from the conclusion of school until the commencement of school, or 9am if a non-school day the following day;
(i)Effective from when X commences school: Term 1, 2 and 3 school holidays, the first week in odd numbered years and the second week in even numbered years;
(j)Effective from when X commences school: Term 4 school holidays a week about, commencing the first week in odd numbered years and the second week in even numbered years;
(k)Effective from 2025, Term 4 school holidays a two week period rotation commencing with the first two weeks in odd numbered years and the second two weeks in even numbered years; and
(l)Easter holidays from 9am Good Friday until 9am Easter Sunday in even numbered years, and from 9am Easter Sunday until 5pm Easter Monday in odd numbered years.
4.The father’s time with X is suspended as follows:
(a)On the Mother’s Day weekend from 1pm on the Saturday immediately before Mother’s Day until the commencement of Day Care, or school or 9am on the following Monday;
(b)In odd numbered years from 1pm Christmas Day until 1pm Boxing Day;
(c)In even numbered years from 1pm Christmas Eve until 1pm Christmas Day;
(d)In odd numbered years from 9am Good Friday until 9am Easter Sunday;
(e)In even numbered years from Easter Sunday until 5pm Easter Monday; and
(f)On the Mother’s birthday from 9am until 5pm.
5.Unless otherwise agreed between the parties, and unless not a school day, all changeovers shall take place by the Father collecting X from the Mother’s residence at the commencement of his time and returning X to the Mother’s residence at the conclusion of his time.
6.Each of the parents is restrained from discussing these proceedings in the presence of X, or permitting or allowing any third party from doing so.
7.Each of the parents is restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent in the presence or hearing of X, or allowing any third party from doing so.
8.Each of the parents shall keep the other informed of their current residential address and contact telephone number and shall advise the other of any change within 24 hours.
9.Each of the parents shall keep each other informed as soon as practicable of:
(a)Any medical problems or illness suffered by X whilst in their care;
(b)Any medication prescribed for X; and
(c)Any medical appointment with any medical doctor, psychiatrist, psychologist, counsellor, or therapist treating X.
THE COURT NOTES THAT:
A.These orders have been amended pursuant to rule 10.13 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dorn & Dorn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
INTRODUCTION
These Reasons for Judgment are in relation to parenting proceedings concerning the parties’ only child, X born 2017. The child’s father, Mr Dorn (“father”), is the applicant and the child’s mother, Ms Dorn (“mother”), is the respondent in the proceedings (collectively the “parents”).
In accordance with interim parenting orders from 1 July 2021, X presently lives with the mother and spends time with the father each alternate weekend from 5pm Friday to 5pm Sunday, each Wednesday from 5pm to Thursday 6pm and on special occasions.
The parents are presently in disagreement not only as to where X is to live, but the time that he is to spend with the other parent, and whether the parents should have equal shared parental responsibility.
The father has very negative views of the mother which on the evidence are not warranted. His views taint his capacity to co-parent, and make joint decisions with the mother in respect of X’s long term welfare. The father does not trust the mother.
The mother describes her difficulties in communicating with the father, but notwithstanding those difficulties, she maintains a view that it is important for X to have a relationship with the father. The mother is supportive of that relationship, and has given X the emotional freedom to have a relationship with the father.
It is in that context that the Court needs to determine what orders are in X’s best interest, whether his parents are to share parental responsibility and make joint decisions, and where it is best for X to live and what time he is to spend with each of his parents.
RELEVANT LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in the child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] See for example Slater & Light [2011] FamCAFC 1, [45].
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the particular child.[3]
[2] Mazorski & Albright [2007] FamCA 520, [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”), [121].
[3] McCall, [122].
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4, [13].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is not only that discussion does not mean consideration[5] but also because of the specific issues to be determined by the Court. Likewise, not all of the evidence at trial has been discussed in the reasons, and only the relevant factual findings are referred to.
[5] Banks & Banks [2015] FamCAFC 36.
THE CASES AT FINAL HEARING
In his case outline filed 12 September 2022, the father seeks X live with him and spend time with the mother, which was clarified during submissions as 3 nights each fortnight and that he have sole parental responsibility. In support of this the father relies on the following documents:
(a)Amended Initiating Application filed 8 August 2022;
(b)Affidavit of Mr Dorn filed 8 August 2022;
(c)Affidavit of Mr Dorn filed 5 September 2022;
(d)Affidavit of Ms B filed 11 May 2022;
(e)Affidavit of Mr C filed 11 August 2022; and
(f)His Notice of Risk filed 14 March 2021.
The mother seeks orders that the parents have shared parental responsibility, and that X live with the mother and spend time with the father.[6] In support of these orders, the mother relies on the following documents:
(a)Amended Response to Initiating Application filed 26 June 2022;
(b)Affidavit of Ms Dorn filed 11 July 2022;
(c)Affidavit of Ms Dorn filed 8 September 2022;
(d)Affidavit of Ms D filed 3 May 2022;
(e)Affidavit of Mr E filed 3 May 2022; and
(f)Family Report by Ms F dated 7 February 2022.
[6] Amended Response to Initiating Application (filed 22 June 2022).
The Independent Children’s Lawyer (“ICL”) holds the position that orders providing for shared parental responsibility, and that X should live with the mother and spend time with the father is in X’s best interest. The ICL makes clear that they do not support the proposition that X live with the father, nor an equal time arrangement.[7] In addition to the parties affidavits and applications for final orders, the ICL relies on:
(a)The parties Case Outline documents;
(b)The Child Dispute Memorandum by Family Consultant Ms G dated 2 June 2021; and
(c)Specific Issues Family report by Ms F dated 7 February 2022.
[7] Independent Children’s Lawyer Case Outline (filed 13 September 2022) [52].
The ICL also made an oral application for costs. Both parties were granted leave to file submission in respect of the ICL’s costs application, but neither party has elected to make submissions. The ICL relies on their Costs Notice filed 13 September 2022.
FINDINGS OF FACT
The mother was born in 1981 and is currently 41 years of age.
The father was born in 1982 and is currently 41 years of age.
The parents commenced their relationship in April 2012, and commenced living together in late 2012.
In 2014 the father’s brother died. The evidence is that, understandably, his brother’s death deeply affected the father.
In or around mid-2016, the mother suffered psychological injury at work.
The parents were married in 2017.
X was born in 2017 and is currently 5 years of age. He is the only child of the parties’ relationship.
Before X was born, the mother worked as a manager. From early 2017 the mother has been in receipt of workers’ compensation consequent to her psychological injuries from mid-2016. When X was born the mother took maternity leave and additional leave covered by workers’ compensation.
After X was born the mother was X’s primary carer. When X was in his first year, the mother returned to part-time work. After returning to work, X attended Day Care (Mondays and Tuesdays) or was looked after by the paternal grandmother (Thursdays) on the days the mother worked.
The mother has not worked since April 2019 and on or around late 2021 enrolled in a course which she studies on the days X attends Day Care or is spending time with the father.
The father is in full-time employment as a manager and has worked in similar roles over the course of the relationship and after separation. As part of his work, the father regularly travelled for up to 3 days at a time. During the COVID-19 pandemic the father worked from home, but has since resumed a work schedule similar to pre-pandemic levels. The father currently pays $923 each month in child support as assessed.[8]
[8] Affidavit of Mr Dorn filed 14 September 2022, annexure L.
During 2019 the mother became aware that the father had been applying testosterone cream on X after finding fine pubic hair grown and enlargement of his genitals unusual for his age. The mother took X to be tested and higher than normal levels of testosterone were detected. The most recent tests from late 2020, indicate a return to a normal level of 0 for X’s age.[9] During cross examination the mother conceded that the levels remained normal as of May 2022. The father has not applied testosterone cream since this time. The evidence does not support a finding that X’s testosterone levels were elevated in that manner as a result of the application of the topical cream.
[9] Affidavit of Ms Dorn filed 13 July 2022 [5] and annexure A2.
In 2019 the parties travelled to Europe for a holiday accompanied by the paternal grandmother.
On 26 January 2020 the parties separated following the mother learning that the father was having extramarital relations with his work colleague Ms H.
The father left the marital home and spent no time with X for a relatively short period of time. The mother contends that this was after she was told by Ms H’s husband that the father had sexually assaulted Ms H and that the mother needed a few days to process what she had learned.[10]
[10] Affidavit of Ms Dorn filed 13 July 2022 [38].
In or around early 2020 the father had a confrontation with Mr E, the mother’s brother-in-law, outside the mother’s residence.
On this occasion, Mr E had come to collect the mother and X to spend time with their extended family. When Mr E arrived the father was at the mother’s residence to see X. The father was reluctant to let Mr E take X. The father picked up X and a verbal argument occurred between the father and Mr E. The father asserts that Mr E tried to fight him, while Mr E asserts the father was acting aggressively and refused to let X go with the mother and Mr E. The police were called but no charges made.[11]
[11] Affidavit of Mr Dorn filed 14 September 2022, [47]; Affidavit of Mr E filed 3 May 2022, [10]; Affidavit of Ms Dorn filed 13 July 2022, [93].
In early 2020, the father was arrested and charged with threatening to distribute intimate images without consent in relation to Ms H. On the same day, the father had a provisional Apprehended Violence Order (“AVO”) issued against him in relation to Ms H. The final AVO was issued a short time later for two years. From mid-2020, the father had a conditional release order without conviction in relation to the charge of distributing intimate images.
X spent time with the father, following separation, each week on Thursdays overnight and on Sundays overnight.
In around late 2020, the father commenced a relationship with Ms B.
These proceedings were commenced by the father on 29 March 2021.
Since the interim parenting orders dated 1 July 2021, X has lived with his mother and spent time with his father, each alternate weekend, and Wednesdays from 4pm until Thursdays at 6pm, with changeover at the mother’s residence, except on Wednesdays when the father collects X from Day Care.
The mother has raised the issue that from about October 2021 the paternal grandparents were frequently picking up or bringing X to changeover as the father was busy, usually with work. The mother gave evidence during the hearing that leading up to the hearing, the father has been more involved with the pick-ups and drop-offs which has been to X’s benefit.
Both parties had previously raised issues of alcohol use and abuse by the other parent, including during their relationship. On 15 September 2021 orders were made by consent for both parties to undergo hair strand testing for alcohol before 30 September 2021.Neither party raised the use and abuse of alcohol by the other parent as a current risk to X.
In or around February 2022, the paternal grandparents relocated to the J Region.
Since that time X has spent nights at their new residence during the father’s time with X. The mother asserts that X is unsettled with this arrangement as he does not know when he is spending time at the father’s or his grandparent’s residences.
In mid-2022, the mother moved to Suburb K and the father has lived in Suburb L since late 2020.
In or around mid-2022, X reported to his mother that the paternal grandfather had exposed himself to X. The father denies the occurrence of the event. During cross examination the father indicated that he believed it was a fabrication by the mother that showed “an unbalanced mind. I mean at best she is very confused, and at worst she’s absolutely malicious.” When the father asked X about this conversation X did not remember the conversation. Due to his relationship with X, the father believes it was the mother who is being dishonest. The mother does not hold concerns that X was or has been sexually abused, but simply sought to raise the matter as it had been told by X.
In mid-2022, the mother took X to “M Playground” where it was later alleged that X inappropriately touched a little girl. The mother spoke to the educators at X's Day Care after having a conversation with X that a friend of his from Day Care played a game where she tried to touch boy’s penises.
The parties’ communications relating to X are strained. The parties find it difficult to reach an agreement for spending time with arrangements that are not covered by orders. This was the case in relation to the Mother’ Day and Christmas Day arrangements in 2020. When asked in cross examination, the report writer Ms F agreed that the communication and agreement between the parties as to the arrangements was identified as a problem. Ms F described the parents as having a poor parental relationship and should look for ways to diffuse their emotional reactions.
Parents’ Concerns as to Risks for X
The mother
The mother expresses concern for X while in the care of his father. In particular was an incident when the father dropped X at Day Care around early and mid-2021. In this instance the mother was informed by the Day Care educators that the father had dropped X off and that both the father and X were crying.
The mother is also concerned about the father recording conversations with X, and regarding X’s behaviour after returning from spending time with the father including X crying and throwing toys. The mother is concerned for X’s mental health after spending time with the father.
The father
The father has expressed concern for X while he is in the care of his mother. The father claims that the mother verbally abuses him in front of X, that the mother had once encouraged X to call the father “a pussy”, and that X’s cousins hit him.
During cross examination, when being asked about possible parenting and spending time with arrangements, the father expressed concerned for X being exposed to a risk of emotional and mental harm. However, the father conceded that he would consider X as being safe and properly cared for if left with the mother for three consecutive weeks.
In respect of the father recording X telling him about being hit by his cousins, during cross examination, the father conceded that he did not think X was at risk of harm while in the company of his cousins at the time he recorded the conversation.
During cross examination, the father described his relationship with X as excellent and denied that the mother contributed to the positive relationship the father shares with X. The father concedes at best that there is a “possibility” that the mother contributed.
Other Risks
There has never been any apprehended domestic violence order between the parties. Neither party alleges any physical violence.
The incident between the father and Mr E was referred to earlier in these Reasons for Judgment.
In about late 2020, Mr N moved into the father’s home. Between three months in late 2020, the father reported that Mr N had been drunk but that X had not be at the father’s home when this occurred, and that there was an incident when Mr N had smashed a bottle of wine demanding money from the father, which made the father fearful and he consequently reported the matter to the Police. X was not present. In late 2020, the father moved to his current residential address in Suburb L.
Mental Health
The Mother
Around the end of 2019 the mother begun seeing a psychologist and a psychiatrist, and taking medications. During this time the mother’s anxiety reached its height and her alcohol consumption had increased.
In mid-2020 Dr O released his report on the mother for her workers’ compensation claim. Under Presenting Complaints in the report, Dr O described the mother’s previous mental health history, noting that the mother was on medications. Dr O also noted that:
Her mental health has been complicated because she has been abusing alcohol over several years. She said that she had used alcohol to try to cope with her symptoms and, also, lack of sleep. Currently, she could drink a bottle of wine daily. She does not have any alcohol free days. She readily admitted that she is dependent on alcohol.[12]
[12] Affidavit of Mr Dorn filed 14 September 2022, 18, annexure A.
In accordance with orders dated 15 September 2021, the mother submitted to hair follicle testing for alcohol consumption on 18 September 2021. The test returned a negative consumption of alcohol on 5 October 2021.[13]
[13] Affidavit of Ms Dorn filed 13 July 2022, 151, annexure R1.
The mother continues to engage with professional help in the management of her mental health.
The Father
On or around early 2020, the father was assessed by a forensic psychologist Mr P and was diagnosed with two mental health disorders, and that there are indications of another disorder.[14] The father indicated a willingness to effectively manage his conditions and Mr P suggests these prognoses as capable of being managed through Therapy, psychological intervention and pharmacological treatment. As part of the assessment, Mr P records the father describing a decline in his health since 2020, including eating and drinking excessively.[15] In the assessment, Mr P describes the father as:
[A] tendency to be pessimistic and to give negative interpretations of events. [The father] may try to fight back depressive feelings and though by consciously diverting his ideas and preoccupations away from his depressive mood. For the most part, however, these ruminations are replaced by more troublesome ones. Moreover, he tends to be reactive and then brood over minor incidents from the past.[16]
[14] Affidavit of Ms Dorn filed 13 July 2022, 54, annexure B.
[15] Affidavit of Ms Dorn filed 13 July 2022, 50, annexure B.
[16] Affidavit of Ms Dorn filed 13 July 2022, 53, annexure B.
During the Family Report interviews, the father denied ever being diagnosed with any mental health condition, and denied that Mr P ever diagnosed him with a mental health condition.
In accordance with orders dated 15 September 2021, the father submitted to hair follicle testing for alcohol consumption on 2 October 2021. The test returned a low to moderate consumption of alcohol on 21 October 2021.[17]
Expert Evidence
[17] Affidavit of Ms Dorn filed 13 July 2022, 154-5, annexure R2.
Specific Issues Family Report (February 2022)
The Family Report was requested in accordance with orders dated 15 September 2021 to deal with specific issues in relation to the relationships between the parties. The focus of the report aimed at addressing the following:
(a)The appropriateness of each parties parenting proposal in light of X’s age and development;
(b)The impact of the parties mental health on their parenting capacity; and
(c)Issues of family violence, alcohol use, and excessive discipline in relation to their parenting of X.
At the time of writing, X lived with the mother and spent time with the father each alternate weekend, and each Wednesday from 5pm to Thursday 6pm.
When conversing with the report writer about shared parental responsibility, Ms F reports the father commented that the mother makes “unilateral” decisions about X and that she “just assumes she is the boss”.[18] When asked about the possibility of X living with him if it cannot be a shared care arrangement, Ms F writes that the father believed “50%” is “fair” for himself, X and the mother.[19]
[18] Specific Issues Family Report prepared by Ms F on 7 February 2022, [33].
[19] Specific Issues Family Report prepared by Ms F on 7 February 2022, [36].
The Family Report writer, Ms F, wrote as part of her evaluation:
Based on the history of caring giving [sic], employment and arrangements upon separation, it would appear that [the mother] has been [X’s] primary care giver and from this perspective she appears the most suitable ‘live with’ parent at present. Both [the father] and [the mother] indicted that the current arrangement is functioning well, and it was suggested by [the mother] that the current arrangement has been preferable to the previous one, when considering [X’s] wellbeing and capacity to remain connected with [the father] and the maternal externed [sic] maternal family.[20]
[20] Specific Issues Family Report prepared by Ms F on 7 February 2022, [83].
Ms F recommended that minimal contact between the parents for day-today issues in relation to X would be in X’s best interest. This is considered in light of the parent’s “incapacity to regulate their emotions and difficulties negotiating.”[21]
[21] Specific Issues Family Report prepared by Ms F on 7 February 2022, [94].
RELEVANT CONSIDERATIONS AND COURT’S DETERMINATION
X, at present, has a meaningful relationship with each of his parents. The father asserts that there is a risk that X’s relationship with the father will be impacted by the mother’s actions in preventing X from spending time with the father. Such an assertion is not made out on the evidence.
The mother has fostered and encouraged a meaningful relationship with X, and despite the high conflict situation and the difficulties that the parents have had in dealing with each other, the mother has not let her feelings for the father get in the way of X’s relationship with him. The same cannot be said of the father, whose misguided mistrust of the mother was patent.
The father is pressing for orders for X to live with him, and in those circumstances for there to be an order that he have sole parental responsibility for X. If X is to live with the mother, the father then says that the parents should have equal shared parental responsibility. The father’s position in respect of parental responsibility changed very shortly before the final hearing. Until early September 2022, each of the parties had been pressing for orders for equal shared parental responsibility. The father’s position changed abruptly and without adequate explanation in his evidence. His suggestions during oral evidence, to the effect “oh I could say a lot more” were unhelpful.
The father’s communication with the mother is often aggressive and confrontational. His demeanour in the witness box was at times agitated and often egotistical. His mannerisms were that of a man who considered himself to be very important and who appeared to be self‑absorbed. The father’s oral evidence painted an impression of a self-righteous man without any real understanding of the impact of his behaviour on X and/or the mother in terms of her ability to co-parent X.
When he was asked whether he gave the mother any credit for X’s relationship with him, the father replied with a resounding “no” but that “oh yes” she was influential over X. The father upon being further pressed as to whether he gave the mother any credit, he conceded “perhaps some”. When asked if he accepted that the mother is not manipulating and/or undermining of X’s relationship with him, the father said that he could imagine a world in which this might be true, but that this would be a really “charitable view” of the mother at present.
The Court’s overall impression of the father’s evidence is that if X was to live with him, it is unlikely that the father would be willing to promote and encourage a relationship between X and his mother. Such an impression is supported by Ms F’s observations and assessment.
The father’s capacity to be X’s primary carer is untested. The signs so far, which the father has shown, do not bode well for that capacity. His questioning of the child, recording of the conversations with the child, and his inflexible attitude to others’ points of view are all difficult to reconcile with an appropriate capacity to meet X’s needs. The father’s inflexible attitude may be seen for example, from his evidence suggesting that the mother is “cruel” for weaning X off his day sleeps when he was approximately 2 and a half years old and more particularly from his challenging of Ms F during the interviews for the family report when she tried to canvass his views on the different proposals.
Ms F was clear in her opinion about the capacities of each of the parents to foster a relationship between the child and the other parent. While she considered that the mother’s ability was not hugely positive, the mother had done some thinking about how to deal with the conflict and minimise its impact on X. Ms F considered that the father’s narrative of the mother was more negative than the mother’s narrative of the father, and that with that level of negativity, Ms F had no confidence that the father would proactively encourage a relationship between X and the mother.
Ms F also said that based on the father’s presentation, her assessment is that the father would not be able to hold back on his emotions in front of X or shield him from them.
In the Court’s view, these limitations in the father’s capacity are a considerable concern no matter where X lives; but are more considerable if X lives with the father.
In respect of the issue of schooling, and consequently, the exercise of parental responsibility, the father wants X to attend Q School, which is in close proximity to his residence. The father is proposing to pay for private school fees for X, but it appears, only in respect of his choice of school. The mother is not in a financial position to pay for private school fees for X, nor is the school the father proposes in relative close proximity to her residence. The mother proposes that X attend the local public school, for which X lives in the catchment area (if he remains living with the mother). No evidence about the suitability of either school was before the Court, and in the circumstances no order will be made as to which school X is to attend.
If the parents cannot agree otherwise, then in line with usual practice, X will simply attend the local public school, as all primary schools have designated local enrolment areas.
The parties live some distance apart by car. An order in accordance with the father’s application, would see a significant change for X, not only in terms of his primary residence, but also in terms of his relationship and separation from his primary carer. The father says that he is aware that there will be a negative impact on X if he was to live away from his mother, who is his primary carer, but notwithstanding any such negative effect, still says to the Court, that X should live with him.
However, the father has not put forward any strategies of how he would help X deal with such a significant loss, nor why such a loss would be in X’s best interest, particularly noting that the father’s case is not that the child is at an unacceptable risk of harm in the mother’s care and that the father still proposes time with the mother, including lengthy block periods during school holidays.
The mother has the greater capacity, compared to the father, to meet X’s emotional needs. X is still very young, and his mother is his primary carer. There is no justifiable reason as to why that secure attachment should be broken.
In all of the circumstances, an order for X to live with the mother is in his best interest, as is an order that he spend time with his father in accordance with the mother’s application. The orders for time as sought by the ICL would see too much of a disruption to X’s weekly routine particularly when he is at school, noting that the commencement of school will, in itself, require a period of adjustment for him.
While the parties have had difficulties in communicating, the evidence does not ground a finding that such difficulties have led to any long term decisions not being made by the parties jointly. It is important for children to know and understand that both of their parents have a say in important long term issues, and so it is for X. The presumption of equal shared parental responsibility has not been rebutted on the evidence and it is appropriate that an order for equal shared parental responsibility is made.
An order for equal time is not supported on the evidence. This is so, not only because of Ms F’s recommendations and opinions, but also because these parents have not demonstrated any capacity to engage in a manner that would be required for an equal shared time arrangement. There is simply too much conflict and too much distrust, and it would likely be an extremely difficult situation for X to navigate.
X will however, have the opportunity of spending time with his father on weekends, during the school week and also during school holidays. He will have the benefit of significant and substantial time with his father.
The parties each seek a number of restraints, which the Court by and large declines to make as such restrictions are not supported by the evidence. Limited restraints will be made in respect of discussing the proceedings and denigration of the other parent, same being warranted on the evidence.
For all of these reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
ICL’S COSTS
The ICL seeks an order that each party pay half the ICL’s costs. The ICL seeks costs in the amount of $9,832, each party to pay $4,916. The mother has indicated that she does not wish to be heard against such orders. The father has not made his position known.
In the circumstances, it is appropriate that each party pay half of the ICL’s costs.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 30 March 2023
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