Doyle and Rusedski

FAMILY COURT OF AUSTRALIA

DOYLE & RUSEDSKI

[2016] FamCA 317

FAMILY LAW – CHILDREN – where consent orders were made in 2013 – review as a result of incidents including an assault – how to deal with conviction even though the facts were disputed – impact of conviction for assault on family violence finding.
FAMILY LAW – CHILDREN – question of whether previously agreed time should be reduced.
FAMILY LAW – CHILDREN – international travel – dealing with the question of unacceptable risk of flight.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Sentencing Act 1991 (Vic)
Summary Offences Act 1966 (Vic)

Fardon v the Attorney-General for the State of Queensland [2004] HCA 46
Gin and Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3
Line and Line (1997) FLC 92-729
MW v Director-General, Department of Community Services [2008] HCA 12
Nash v Nash [1973] 2 All ER 704
Nudd v R [2006] HCA 9; 80 ALJR 614
Payne [2001] EWCA Civ 166; [2001] 2 WLR 1826
U v U [2002] HCA 36

APPLICANT:

Mr Doyle

RESPONDENT:

Ms Rusedski

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4646

2012

DATE DELIVERED:

6 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14, 15, 18 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Baczynski

SOLICITOR FOR THE APPLICANT:

Daniel Lawyers & Associates

COUNSEL FOR THE RESPONDENT:

Ms Burt

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates

Orders

That all parenting orders to date (and specifically paragraphs 9, 11 and 12 of the orders made on 14 August 2013) are discharged.
The Marshal and all officers of the Australian Federal Police and of the police forces of the states and territories are requested to remove the name of B born … 2009 from the Airport Watch List in force at all points of arrival and departure within the Commonwealth of Australia.
That the mother has sole parental responsibility for all major long-term parenting decisions relating to B born … 2009.
That save as to paragraph (3) of these orders, each parent has parental responsibility for decisions relating to the child when he is in their care.
Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:
(a)      the nature of the decision to be made; and
(b)      her views as to what should be done; and
(c)      requesting that he provide an answer within seven (7) days thereafter.
That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.
That should the father fail to provide any information to the mother within the seven (7) day period as provided, the mother shall be entitled to make the decision without further consultation with the father.
Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) the mother is at liberty to remove the child from the Commonwealth of Australia and to travel to a place outside of Australia after 1 July 2017 but not before that date.
That the child spend time with the father during weeks when the child is in school as follows:
(a)Until the first Thursday in February 2017, during each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday morning commencing on 13 May 2016;
(b)Until the second Wednesday in February 2017, on each alternate Wednesday from the conclusion of school until 7 pm commencing on 18 May 2016; and
(c)From the first Thursday in February 2017, during each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday morning.
That the child spend time with the father during school holidays as follows:
(a)for one week of each term holidays by agreement and in default of agreement, the second week;
(b)for the long summer holidays in 2016/2017, on a week about basis on a date to commence by agreement and failing agreement commencing the second Saturday of the school holidays;
(c)for the long summer holidays in 2017/2018 and each year thereafter, for one half by agreement and failing agreement, the second half; and
(d)at Christmas, unless there is agreement otherwise, from 5.00pm on 24 December until 2.00pm on 25 December in each even numbered year and from 2.00pm on 25 December until 2.00pm on 26 December in each odd numbered year.
That all school term time between the child and the father under these orders shall be suspended during school holiday periods and recommence thereafter as though the school holidays and the suspension had not occurred.
That the father’s time with the child be suspended on Mother’s Day from 5.00pm on the Saturday until the conclusion of school on the Monday morning after Mother’s Day and similarly, if the weekend of Father’s Day is not a weekend where the child would be with the father, then he spend time with the father from 5.00pm on the Saturday until the conclusion of school on the Monday morning after Father’s Day.
That for the purposes of these orders, if the child cannot be collected at school and returned there, he be collected and returned by the father outside of the mother’s residence.
Notwithstanding the mother has sole parental responsibility for the child, the father shall be entitled to:
(a)obtain information as to the child’ progress and participate in all school activities to which the parents of children would normally be involved PROVIDED ALWAYS that attendances at all school events shall be subject to any determination to the contrary by the principal of the child’ school;
(b)obtain information from and attend upon, any medical practitioner providing treatment for the child including any counselling, but always subject to the entitlement of such health professional to decline to provide such information; and
(c)be provided by the mother with details of any serious medical injury or illness sustained by the child when in the mother’s care.
That the father be able to communicate with the child by telephone when he is not in his care on Tuesday in each week at 6.30 pm.
That the mother be able to communicate with the child when he is not in her care on Tuesday in each week at 6.30 pm.
That the Independent Children’s Lawyer is discharged from the proceedings.
That all applications of the parties are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Doyle & Rusedski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4646 of 2012

Mr Doyle

Applicant

And

Ms Rusedski

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings between Mr Doyle (the father) and Ms Rusedski (the mother) concerning their child B (born in 2009).
Under final orders made on 14 August 2013 by the consent of the parents, the child would now have been expected to have been spending six nights per fortnight with his father. Those 2013 orders were brokered with the assistance of a psychologist that both parents had been attending.
On 4 June 2014, Johns J suspended those contact orders. Subsequent orders have allowed the father restricted time with the child but there has not been a return to the 2013 position.
The current proceedings are a reconsideration of the 2013 final orders and a determination of what will best meet the needs of the child for the rest of his childhood.

The best interests of the child

Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the legislative process in relation to the making of parenting orders.
Section 60B of the Act sets out the objects of Part VII. They are to ensure that the best interests of children are met and hence, the objects too act as a guide. The objects are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA requires that in deciding whether to make a particular parenting order in relation to a child, the court must consider the best interests of the child as the paramount consideration.
To determine what is in the best interests of a child, the court is obliged to examine the factors set out in s 60CC.
The power to make a parenting order is found in s 65D and that provides:
In proceedings for a parenting order, the court may, subject to ss 61DA (presumption of equal shared parental responsibility when making parenting orders)…and this Division, make such parenting order as it thinks proper. (my emphasis).
The unusual feature of this case is that the Court should be entitled to presume that the 2013 orders were made with the best interests of the child in mind. The Court had the benefit of both parents agreeing upon the future arrangements which were also supported by an Independent Children’s Lawyer. It is interesting in this case that the father maintains now that the mother manufactures evidence and cannot be trusted. He says that the mother has orchestrated this dispute and added that outside of the Court, she has been friendly and cooperative. To the extent that he considers the parties are currently getting along as parents and making decisions for the child, he is quick to point out that he will protect himself by ensuring there are witnesses to controversial events. On the other hand, the mother maintains that the father is a domineering person who does not negotiate.
For his part, the father pointed to the fact that he and the mother were able to reach agreement about a school for the child, an alteration of the Easter contact period and cooperation in respect of a birthday party. He added that everything worked and there were no arguments.
In the light of the 2013 orders and what happened prior to their making, the parties’ respective views about the other were a stark contrast. Having heard the evidence, I find there is no basis for me to say the mother has manufactured evidence even if there are things that show her perception is inaccurate. On the other hand, I do accept that the father is difficult to deal with and does not easily accept any compromise. Accordingly, it is likely that orders have to be clear and concise. There is no foreseeable prospect of trust and proactive communication between the parents. The child is loved by both parents but he will never be parented in a co-operative way.
For reasons which will become apparent, there were three major factual events in this case about which the parties disputed and the relevant findings have an impact on what type of parenting orders should be made.
The three incidents highlight how poor the relationship between the parties is and what is likely to be an ongoing dispute such as to affect the stability of the child.
Because of the seriousness of the outcome for both the parents and the child, I have applied to standard required in s 140(2) of the Evidence Act 1995 (Cth) which is the balance of probabilities.

The June 2014 orders

A disputed altercation between the father and the mother occurred early in 2014 (and to which I return in detail below). A police officer applied for an intervention order which was granted by a magistrate but only after some confusing messages had been given by the mother as to whether or not she was intending to pursue the order. It was conceded that at an management hearing before a magistrate, the prosecutor informed the court that the mother did not want the order. Notwithstanding that, the matter ultimately proceeded and an order was made which included the child.
On 29 May 2014, the father applied to this Court for orders to have the child removed from the order and more importantly, for the orders of this Court to take precedence (presumably under s 68R of the Family Law Act. The mother responded by seeking orders that the relevant part of the 2013 orders be “dismissed” and that the time between the child and the father be “reserved” (whatever that meant).
Johns J heard the parties on 4 June 2014 in the Judicial Duty List. Her Honour said:
[13]On each parties’ view however, it is clear that the child was present during the exchange between their parents and that he was exposed to whatever transpired between his parents that day. That is a matter of grave concern to this Court.
…
[19][the child], historically and pursuant to the orders that were made in August of 2013, has had significant and substantial time with his father. There has been an interruption to that time since 9 May 2014. I am mindful of that. I am also mindful of the concerns raised by the wife and the need to ensure [the child’s] safety and protection pending a determination of the issues before the court.
Johns J suspended the final orders but provided for the child to spend some day time contact with the father under the supervision of paternal aunts. Her Honour noted that the order was inconsistent with the family violence order and added the following notation to the order:
AND THE COURT NOTES that the above order is inconsistent with the provisions of the interim intervention order made in the Magistrates’ Court of Victoria on 22 April 2014 but is made to ensure that the child continues to have the opportunity of enjoying a meaningful relationship with the husband, but that such time is supervised pending further investigation of the wife’s allegations which are denied by the husband.
Johns J did not know, because it happened later, the father was charged with assault arising out of what he would say was not only not an assault at all but additionally, an innocuous event. Such was the controversy about this particular incident that although convicted by the Magistrates’ Court (and hence this Court should be cautious about treating the incident as innocuous), the father appealed. He explained that he appealed on legal advice from his counsel that the magistrate had applied the wrong test of the standard of proof. But matters worsened because in the County Court of Victoria before Judge Allen, the father withdrew his appeal after the close of the prosecution case (and before he was called upon to give evidence) because, he said, Judge Allen warned his counsel of a more severe penalty.
A hypothesis was put by counsel for the father before me that the Judge may have been trying to short circuit the proceedings. The same counsel remarked that, as with the intervention order, the political climate of family violence required the courts to do things that might not otherwise have been done. This Court should reject all of that.
In the Magistrates’ Court, the record spoke for itself. There was a finding of fact leading to a guilty verdict. The right of appeal is to a de novo hearing so the withdrawal of the appeal must be seen as the father not disputing the facts upon which the conviction was founded. The father maintained that he had no choice but to abandon his appeal because his counsel had been incapacitated and had not done anywhere near sufficient preparation as he should have and cross-examination of the prosecution witnesses was totally inadequate. No transcript of the County Court hearing was tendered to establish that anything said or done led to a miscarriage of justice (see Nudd v R [2006] HCA 9; 80 ALJR 614).
The other basis upon which this Court should reject the proposition that the other courts’ views should have taken the stance that there was no foundation for the mother’s (or the police) complaint about the relevant incident lies in the penalty which the Magistrates’ Court imposed and which the County Court of Victoria upheld. The Magistrate ordered the father to undertake a community corrections order for 2 years. That required him to undertake community work, attend a “Men’s Behaviour Change” program and if recommended, undertake a psychiatric assessment.
Discussion ensued during the hearing in this Court as to what that all meant but on any view of Part 3 of the Sentencing Act 1991 (Vic), a range of options was open to the Magistrates’ Court. An examination of the provision upon which the father was dealt is found at s 37. It reads:
A court may make a community correction order in respect of an offender if—
(a)the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units; and
(b)the court has received a pre-sentence report (if required) and has had regard to any recommendations, information or matters identified in the report; and
(c)the offender consents to the order.
“Penalty units” is defined in s 110 of the Victorian Act but common assault under the Summary Offences Act 1966 (Vic) carries a penalty value of up to 15 units.
On the same day that the father appeared before the Magistrates’ Court, he was also convicted of two offences of breaching an intervention order. These two offences were “rolled up” into the one community corrections order. Each of those offences was considered in the evidence before this Court and it might be said that they were minor in terms of seriousness. One, for example, concerned the father arranging for a friend to serve documents upon the mother relating to proceedings in this Court. At that time, there were no extant proceedings and she had no solicitors on the court record to whom documents could be delivered. Both of these offences concerned the dispute between the mother and the father over his contact with the child which, until the intervention order was made, was extensive.
The father’s own evidence [para 44] showed his perception of what occurred. He said he had sent the mother an email asking if she was “willing to resume a respectful relationship” but he then went on to ask her if she was willing to withdraw the intervention order as she had intimated she would. Whilst this email sounded innocuous enough, when seen in the context of the total conduct of the father going back a number of years in this relationship and his mode of communicating with mother at that time, I can see it was not innocuous. It could very easily be seen as inappropriate bargaining if, as indeed I am satisfied, there was a significant power imbalance between the parties.
Needless to say, the magistrate heard the evidence and decided that in respect of one of those intervention order breaches, a conviction should be recorded (as was also the case with the assault) whilst in respect of the other, the magistrate accepted the father’s undertaking to be of good behaviour and pay $200 to the “Court Fund”.
Section 91 of the Evidence Act 1995 provides that evidence of a decision or of a finding of fact in a proceeding is not admissible to prove the existence of a fact in issue in that proceeding. Section 69ZT(1)(c) of the Family Law Act excludes that provision in a child-related proceeding. Importantly, s 69ZT(2) provides that the Court may give such weight (if any) as it thinks fit to evidence so admitted.

Section 69ZX(3) of the Act provides that in child-related proceedings, a court may receive into evidence the transcript of another court and draw conclusions. The transcripts of the Magistrates’ Court and the County Court of Victoria were not tendered in evidence (and had they been, this Court could have “adopted” their judgments) so regardless of the evidence of the convictions about which I am left to give such weight as I consider appropriate, the events are matters still to be determined insofar as they may be relevant to a fact in issue in this case.
The mother’s evidence was that in December 2013, the father became homeless. From the father’s perspective, he and the mother were communicating and associating with one another such that reconciliation was occurring. The mother disagreed saying that she allowed him to use her accommodation including letting him sleep there at times because she felt sorry for him. There was certainly friendly written communication. He pointed to the fact that he had access to what he described as a “shared key” but I note that it was not his to keep.
In late January 2014, the father described himself as living with the respondent. Accepting as I do that there was not an intimate relationship between them, nor were they sleeping in the same bed and the mother had begun a friendship with her current partner, I consider the father’s statement implausible.
The child had gone away with the father camping and on 26 January 2014, an argument ensued when the child was returned to the mother. There had apparently been a mobile telephone problem and the mother did not know where the child was. The father’s description was that the mother would not reason with him and locked him out. His version was that he went away not having showered for some days only to return the following day asking to be let in so that he could have a shower. Thus, I conclude that if the father was staying with the mother around that time, the arrangement was tenuous because he did not have access to the key, it was the mother’s apartment (not his) and on his own version, he was returning on 27 January only for a shower. His personal items in the apartment were his “phone charger, toiletries and suitcase”. All of that sounds transient. I find in the circumstances that it is more likely than not that the father was not living with the mother on any basis other than as she described.
On 27 January 2014, the father attended the mother’s apartment. He wanted to be allowed in. The father kept pressing the buzzer and the mother said that the child let the father in. That allowed him in to the area around the door of the apartment where the mother described (and upon which the father was silent) him banging on the door demanding to be allowed in. She described (and he denied) swearing and screaming and the child was present. The mother let him inside and he showered. I accept that despite the father’s assertion that he does not use pejorative language, he certainly did on this occasion. There is no other logical reason why the mother would have let him in other than to avoid a confrontation in an area where neighbours would have heard. He was already inside the secure area after the child had given him that access. On balance, I find that the father was the aggressor.
After the shower, the mother said she was holding the child and the father came and grabbed her by the wrist and twisted “them” to make her let go of the child. She described the father endeavouring to take the child. The father said to her:
We are going to [the Mornington Peninsula].
The 2013 orders provided for the father to have the child from 22 January to 29 January so he was entitled to the care of the child but having regard to his lack of accommodation and the finding I have just made about his transient nature, I can understand the mother’s hesitation. None of that however, justified the confrontation which I accept was caused by the husband being upset at being excluded the day before and not being made welcome on this particular day.
This limited version of evidence from the father confirms that he does not negotiate. Both agreed that the child saw it all. It was heated and unpleasant and most importantly, the father was controlling.
Discussion then ensued between them that police should be called. Each described what the other did, he recording that the mother was not distressed but rather cunningly exhibiting distress to the telephone operator. The police attended and on the mother’s version, removed the father. The police took a dim view of the father because they took him to the police station and he was served with a family violence safety notice. This was the beginning of the intervention order process. That notice was prepared by the police and contained a narrative of the father using perjorative language. The police must have got that from the mother when they interviewed her and the police officer was sufficiently concerned to give the following reasons in that notice:
Ensuring the safety of the affected family member;
Preserving the property of the affected family member;
Protecting a child(ren) who has been subjected to family violence carried out by the respondent
It is of some significance therefore that notwithstanding the father’s view that this was not an assault, little was said about the fact that the child witnessed it and that the third of the three reasons for issuing the safety notice was directed to the child.
It does not make sense that a police officer (who was not called to give evidence) would see the issue as innocuous then issue a safety notice excluding the father followed by a recommendation that he be charged with assault.
In the meantime, two things happened. First, the mother attended at the Melbourne Magistrates’ Court and an interim intervention order was issued. The father said that she told the Court that she did not want the order but that was later. In her evidence, she described herself as “very scared” of what the father would do so she sought limited conditions. Shortly afterwards, the mother delivered the child to the father and it was submitted that such an occurrence indicated that there was no fear or necessity for any restrictive orders. I reject that. The mother knew of her obligations under the orders of 2013.
I accept the mother’s version of the events of 27 January 2014.
It is therefore understandable that Johns J took the view that time with the child should be restricted.
This particular event was not the only confrontation between the parties but in my view, the more significant issue is how the Court should view the working parenting relationship between the parties.

Background

The parties commenced their relationship in 2007 and married in 2008.
The mother was born in Poland and is 30 years old. She works in administration and earns about $36,000 per year. She has a new partner who was required to attend for cross-examination.
The father is 49 years of age and currently employed as a parking inspector for a private car parking company. He had been involved in property development. That enterprise went wrong and he was ultimately bankrupted. He currently has modest financial circumstances and has just obtained rental accommodation which enables him to have the child in his own bedroom.
The mother and her family are all Polish by birth and background. The evidence supports a conclusion that whilst the maternal grandparents still travel, they have now sought to be permanent residents of Australia. The child has Polish heritage and one controversial issue arose from his polish citizenship to which I return below.
The father was born in Australia and has all of his family members here.

The three substantive issues

There are three main substantive issues in this case:
(a)Should there be a return to the 2013 orders or should the time between the child and the father be more, or less, than what those orders provided?;
(b)Should the parties have equal shared parental responsibility?; and
(c)Should there be restrictions on the international travel by the child?
It will be noticed that there is no application for any change of residence although when one examines the 2013 arrangement and what the father now wants, it is clear he is proposing a shared care arrangement. The mother’s position, supported by the Independent Children’s Lawyer is to reduce the father’s time.
The father seeks equal shared parental responsibility and 7 nights out of every 14 caring for the child.
The mother seeks sole parental responsibility and 3 overnights per fortnight and a mid-week period after school every second week.
Within the question of shared parental responsibility looms schooling. The father wants the child to attend E School. It has been the father’s family’s school for some generations. The mother agrees that the child can go there but quickly questions how the cost will be met. The father says that both can pay. It was not necessary for the Court to do anything about that because it was not something about which orders were sought but it highlighted the looming dispute which will either result in a stalemate or end in further litigation.
Within the financial argument lies the fact that the mother is a trustee of a fund for the child arising out of Federal Court proceedings. The father said [para 56] that $150,000 was part of final orders made on 15 May 2013. What he was referring to was an order of the Federal Court of Australia in which the mother was the applicant and the respondents included various corporate entities and the trustees of the father’s bankrupt estate [ see (2013) FCA 347]. Mansfield J did not make an order but rather made a direction that:
It is proper for [G Pty Ltd] to distribute the whole of the net assets of the Trust as follows:
(1)$150,000 to ([the child]), to be held on trust for his benefit by (the mother)
Mansfield J made the following observations:
40.The qualification is simply that I require the trustees, before making the distribution to ([the child]), to be satisfied that there is in place a proper trust account in the name of ([the child]), or in the name of a person as trustee for ([the child]) (it may be (the mother) as trustee) so that it is clear that the sum of $150,000 payable to him is properly recognised as being held on trust for him and must be applied for his benefit.
41.If the trustees are not satisfied that there is in place an appropriate account for that payment, I will reserve to them or (the mother) liberty to apply to have addressed any issue on that aspect.
Those funds have now apparently been converted to real property. The evidence about this issue was vague but it showed again that there is little communication and no trust between the parents. Importantly, there was no application before the Court to alter the trustee or anything to do with the due administration of the trust nor was there any suggestion that the father had sought assistance from the trustees as indicated by Mansfield J to rectify any inadequacies.
There is however an assumption by the father that this trust is for education. That is not its limitation at all because his Honour referred to the trust being for the benefit of the child. For example, the mother may be entitled to claim an allowance for the care of the child. Importantly, the question is whether, and if so who, may bring any challenges to what the mother is doing with the fund. It is a question that this Court was not asked to answer.
The combination of the desire for private schooling and the father’s very clearly held view that the future education costs are under the control of the mother points to a future dispute. If that occurs, the parties will be back and the child will again be embroiled in controversy.

The separation in Europe

The parties separation occurred in 2012. That preceded the final parenting orders but both parties returned to the subject in their evidence. Its relevance can be seen in how the events thereafter culminated in the 2013 orders.
Not long after their marriage, the father was embroiled in proceedings in the Federal Court of Australia. In 2012, all of these proceedings which were unsuccessful led to the father being made bankrupt. Consequently, the mother was made a director of various corporate entities. In April 2012, the parties decided to go to Europe. Here their versions of the facts were markedly different.
It was the mother’s evidence that the move to Europe was permanent because of the failed business ventures and litigation and the father wanted to start again.
As evidence of the permanence of the move, the mother pointed to:
·The purchase on one way tickets;
·The fact that the father did not tell his mother of his departure until the day before the family left Australia;
·The chattels were all stored in a storage container which was to be shipped to Europe;
·The family car was sold;
·The father told the trustee of his bankrupt estate after leaving Australia that he had “no current plans” to return to Australia;
·The Departure Card showing they were leaving on a holiday was signed under the father’s direction.
The contrary view was portrayed by the father. He said:
·In 2011, he had purchased a block of land under a family trust name and obtained a permit to build 30 apartments;
·Dr I (the parties’ general practitioner) was told they were going for five months;
·The one way tickets were acquired only because there was not enough frequent flyer points with Emirates to purchase the return flights;
·The storage container was under a contract for 12 months and it was not intended to be shipped to Europe;
·The family car was a sports model and the father was intending to upgrade to a 4 door model because of the child;
·The letter to the bankruptcy trustee was a lie but had he been told in advance of the departure, there was a risk that the family would have been precluded from leaving Australia;
·A purchase order for a Peugeot car showed its return date after 4 months; and
·The mother’s departure card was signed as showing that the trip was a holiday.
The father would have the Court accept that this move overseas in the absence of notice to his family was nothing sinister. It was pointed out to him by counsel for the Independent Children’s Lawyer that he could have called his mother to indicate her understanding. His response was that she was 87 years of age and he took the decision to keep her from the stress.
The competing views about this evidence could only be relevant for limited purposes. From the mother’s perspective, it tended to show that life was intended to be permanent overseas. From the father’s perspective, it showed that the family’s intention was always to remain living in Australia. The father pointed to the mother’s position as indicative of the fact that she was untrustworthy and a flight risk but also to explain why he acted to take the child in Europe.
There are a number of difficulties with all of this evidence none of which assists in determining the real issue that subsequently arose or in determining whether the mother is a flight risk.
To the extent necessary to make a finding, I do not accept that the family intended to move permanently to Europe. The balancing of the various facts described above suggests that there was no real plan one way or the other about specific return dates but the acquisition of the land in Australia and the continuation of the corporate entities suggest that there was to be a return. In addition, the medical notes of general medical practitioner Dr I (on the assumption they can be read to mean what they say) was that the family was going to Europe for 5 months.
What makes the father’s position not so clear however is his capacity to lie to his trustee in bankruptcy when it suited him (and which he acknowledged) and the fact that he was controlling activities in Australia under the name of the mother to get around any bankruptcy restrictions. That shows the father’s capacity to do things that suit himself.
The mother’s evidence was that on arrival in Europe, the father was withdrawn and depressed.
By virtue of the mother’s Polish citizenship, the child was also such a citizen. There is apparently a procedure whereby such citizenship can be confirmed by certificate and it was the mother’s evidence, which I accept, she went to organise the confirmation of what seems to have been the natural right of the child. The father’s evidence was that the mother and her family convinced him to “obtain” Polish citizenship for the child a decision he seemed to regret as naïve. There is no doubt however that the joint endeavours were made. I prefer the mother’s version that this was some sort of confirmatory process. It became a source of consternation and appeared in the 2013 orders. The mother was expected to cancel whatever she had done. I am not convinced it makes any difference because it was all connected with Poland and that Country’s citizenship. A Polish passport is not the same as a European passport so to the extent that the mother could be seen as a flight risk, removing those entitlements would not stop any international movement.
During the parties’ stay in Poland, there were arguments. The mother did not detail the times and events but just asserted that from time to time, the father “lashed out”. As no indication was given of her consequential fear (if any), I do not propose to treat the assertions as having any weight.
After flying to Europe where a five month lease of premises had been signed and an advance payment had been made, the mother said that the father’s behaviour became more erratic and he cried several times a day. The father gave an explanation for that behaviour saying that the mother had told him that she “unsure” about the marriage and then later, that she was leaving. This distressed him.
Whatever occurred, there is no doubt the relationship was tense. From the father’s perspective, the mother was leaving him, taking the child and moving to be with her family in Poland. The mother’s view was that the father said he was not happy with his life and that his family had rejected his requests for financial help. She said he told her that he was unsure about the marriage. All of that was denied by the father. I find that the mother is more likely to be the correct historian here as a result of what happened thereafter.
The mother noticed that the passport of the child was missing from where she had put it and the father told her that she must have displaced it. He denied that conversation but again, I accept the mother’s version because of what occurred thereafter.
The mother knew of the father’s habit of hiding documents in the ceiling cavity and said she found the passport there. She then hid it in the laundry basket. The father simply denied this occurred.
I am satisfied that the relationship was ending and the mother intended to leave the father. It is most likely that she would have gone to Poland because that is her country of birth and her family was there. That does not mean that I accept the father’s assertions that she was vanishing.
On a day later, the father suggested they go for a drive with the child and they did. At a particular location, he asked the mother to get out of the car to guide him into a parking space. As she did so, he sped off leaving her standing there with limited clothing and her purse in the car. The rest of what happened may be encapsulated in a few words. The mother chased the father over Europe after she obtained credit card facilities. She returned to the apartment only to find that the father had taken electronic equipment, medication, documents and nappies. The father denied that he had any medication with him in Europe (as distinct from any medication whilst in Europe bearing in mind that the apartment lease was for some months) and I find that unlikely. The medical records tendered by the father show constant Valium prescriptions for the period of over two years prior to the trip to Europe. That was prescribed for reasons including anxiety and there were recorded sleeping difficulties.

The father’s evidence was that after taking the child, he returned to the apartment, dropped off the mother’s bag and took nappies and left. This was a well-planned move by the father.
A significant concession was made by the father in cross-examination. It was put to him that the mother did not know where the child had been taken and he responded that he “put the child on the phone” twice. He then volunteered words to the effect:
I said if you cancel the Polish Citizenship, we will reunite- It meant giving the child back.
That comment showed that the father was happy to exclude the mother from the life of the child but then to bargain for a resumption of the relationship between mother and child. But his observation about them re-uniting was very odd. On his analysis, the marriage was at an end; why would he then bargain to give the child back on the basis of a resumption of the marriage? This epitomises how the father sees things only his way and is content to use the child to get what he wants.
The police were soon involved. At a police station where the father and the child went, the mother was not permitted to see the child. As she tried to negotiate with the police, they informed her that the child would be put in foster care if the issue continued. She could hear the child in the police station asking for her. The child had not been away from his mother to that point and was aged 3 years old.
The father’s sister who is a lawyer attended and she seemed to be some form of negotiator. An agreement was drawn up in the father’s handwriting. It said the parties agreed to fly to Australia but a day after the child did. Extraordinarily, the following clause then said:
That the parties agree to 50%-50% joint custody of the child in Australia…
As the mother said in her evidence, she felt she had no choice but to sign. I am not surprised. The child was then taken by the father’s sister and flown to Australia and the mother returned the following day.
The reunification took 17 days. The child was clingy and withdrawn; anxious at night and wanted a light on when asleep.
The father’s actions were inexcusable. He justified them on the basis that the mother was going to take the child and disappear. I do not accept that. If anyone was acting strangely, it was the father. I find that he was upset about his business dealings’ failures and there were arguments. It was conceivable that the marriage was coming to an end but both parties were in Europe and it is hard to understand how the courts of that region could not have adequately stopped anything about which the father had concerns.
Counsel for the father pointed to documents showing an application was made by a lawyer on behalf of the mother but that was after the father had taken the child. Counsel asked the Court to infer that the lawyer had acted on instructions given by the mother prior to the disappearance by the father but there is no evidence to support such an inference.
The father’s behaviour was unashamedly bargaining over the child. Whilst desperate measures sometimes need to be taken by a parent to protect a child and the father said in evidence that he regretted what he did but justified it, this was not the only time this sort of bargaining occurred. I return to that in respect of the wedding incident below but also the incident that I earlier mentioned around the intervention order which showed that the father is persistent in his negotiation style. That does not augur well for any form of shared parenting or shared decision-making.

Family violence

In her affidavit, the mother described the father as physically and verbally abusive towards her on a number of occasions. She traversed the entire relationship. She spoke of the father pushing her to the ground and holding her down with his knees on her stomach or chest. She described an incident in the father’s apartment where she dropped some cigarette ash on the carpet whereupon he snatched the cigarette from her hand and held her down on the floor by his knees. She described another undated incident in which he pulled her hair. She described an incident where they had an argument about a funeral in Poland in early 2011 and she was pushed to the bathroom floor. She described calling her sister who telephoned the police in the Mornington Peninsula. These details would appear consistent with an incident referred to in a police running sheet dated November 2011. That document was tendered by the father. A note shows “nil physical violence et”. The rest of the document looks like the information was provided by the father. The fact that the police did nothing and wrote “nil physical violence” is as much indicative of the fact that the situation had calmed as that no physical violence had occurred. The police attendance was recorded as a total of 20 minutes. I remain unconvinced that there was no aggression on that occasion.
The mother described pejorative language and of the father screaming at her. She described him using derogatory language about her family.
To all of these incidents, the father made an absolute denial. Indeed, he said that they were absolutely false and in respect of the incident concerning the cigarette on the carpet, that had been fabricated.
The father’s evidence was that there was a “barrage” of different allegations relating to conflict but that they had been “engineered” purposely by the mother. He observed that there were no recent incidents not because of the existence of an intervention order but rather that he now protects himself by having witnesses. As he described it, it was a “protective strategy”.
The question of whether these incidents as alleged by the mother occurred or not has to be determined on the balance of probabilities. To psychiatrist Dr C, the father described himself as a “genuine gentleman”. The clear inference to be drawn from that was that he was a calm and non-aggressive person. That view was certainly supported by his sister Ms D Doyle. Against that however, is the statement by the child to the family consultant Mr L that there were arguments between his parents. Whilst that statement does not attribute anything specifically to the father, it would suggest the father is not as calm and non-aggressive as he would portray. In addition, there are the findings of the magistrate from the 2014 assault incident. The father was appropriately described by Dr C as launching into a long-winded highly detailed account of “evidence” that he believed proved that his actions in Poland were entirely appropriate and Dr C went on to describe the difficulties he had in interviewing the father because of his pre-occupation. That demeanour was very obvious in the witness box. The father was unable to answer a simple question without giving an elaborate explanation always justifying his position. To the extent that he had done something wrong, he always ultimately blamed the mother.
Curiously, in relation to the allegation of the cigarette ash on the carpet, the mother reported that a friend of the father who she named as Mr J had to come and pull the father off her. In his denial of that particular incident, the father said that he relied on a previous affidavit but in reality, that detail was not drawn to my attention. If Mr J was the friend of the father, it is curious that he did not call him as a witness to say that incident did not occur. In relation to the incident in early 2011 where the police were called, no evidence was called to corroborate either version. It strikes me as odd that if no such complaint was made by the mother and yet she swore to it in an affidavit, one would have expected the father to have relied on the police to establish that the incident did not occur at all. There may not have been any formal complaint to the police (as would seem to be the inference from the mother’s evidence) but the fact that they were called to the house, indicates a problem within the relationship. In circumstances where the mother swore that evidence to be true, and the father’s evidence is that the mother continually manufactures evidence, this would have been a perfect opportunity for him to show just that.
Thus, the balance of probabilities suggests that the father is anything other than a “genuine gentleman” and is aggressive and violent when under stress.
To the family consultant whose report I turn to below, the impression was given by mother was that there was not much significance in the family violence in the relationship. The family consultant’s perception was that the mother was more intent on finding fault and attributing blame to the father. Indeed, the family consultant was of the view that if there was any violence, it was situational.
Even if the relationship was one of volatility, it was the mother who was making the allegations rather than the father. I am satisfied that the incidents did occur as she described them.

Psychiatrist Dr C

The Magistrates’ Court had suggested as part of its community corrections order that the father undergo a psychiatric assessment. Apparently that became unnecessary because whoever was supervising him took the view he did not need it. Against that, in August 2014, this Court made an order that the father attend Dr C for such an assessment.
Dr C’s evidence was relied upon by the Independent Children’s Lawyer but he was not required for cross-examination. Despite that, in his evidence in chief, the father said that Dr C was wrong and that the interview had not gone well. He described Dr C as offended and angry and when the psychiatrist apparently asked him about the report of family consultant Mr L, he said that Dr C described him as wrong as well. The father said that he felt that Dr C was not “in a good mood” with him.
In so far as Dr C might have thought the father had narcissistic tendencies, the father said that the psychiatrist’s rationale was wrong. He said that “perhaps” it was the mother who was responsible for what had happened.
Dr C described the father as highly stressed and preoccupied and bent on proving his case. Dr C was aware of the evidence that this Court now has in relation to the incident referred to below as the “wedding” incident.
Dr C was aware of the overholding in Europe and described the father’s response as an attempt to rationalise his behaviours because of what the mother had done to him previously. It was noted that the withholding “would have been harmful and distressing” to the child yet the father refused to acknowledge that. However in his evidence, he took a different line. He said that the impact on the child was traumatic at that time but he had tried to keep him occupied. He then added that there had been no long term impact.
As at August 2014, the father described to Dr C that he coping very well “due to his … religion and techniques”. There is some irony in that because his counsel told the Court that religion would not be a disputed area for the purposes of equal shared parental responsibility because both parents were of the same faith. That was more a reference to the future attendance of the child at E School. It is difficult to know whether the father takes positions according to what he understands needs to be heard.
Dr C opined that the parties were locked in conflict and children in that environment were exposed to compromised levels of parenting, rendering them vulnerable.
As for the father, Dr C was obviously reliant upon the findings of the Court but he believed that the father wished to see himself as a victim and be seen in a positive light (property developer whereas he is a parking inspector). Those tendencies raised questions about the father’s true mental state and his functioning was a mirror of his assertions about the mother . Dr C described this as projection and he said that if the Court found this to be the case, the father’s parenting was compromised. He warned that the Court would then need to take into account a compromised level of emotional and psychological functioning in making orders.
The opinion of Dr C is therefore dependent upon the Court’s findings. I return to that at the conclusion of the evidence.

The 2013 orders are made with the assistance of a psychologist

I have already mentioned the psychologist who brokered the parenting arrangements that culminated in the 2013 orders. The mother’s evidence was that she did not want to attend but felt pressured, bullied and consequently agreed to the arrangement. At that stage there were extant proceedings in the Court and an Independent Children’s Lawyer was involved. The father produced correspondence to show that after a meeting with the psychologist, he prepared a draft agreement. That correspondence does not assist in refuting what the mother said.
The father’s view was that the final orders required the mother to revoke the Polish citizenship. He said he wrote to the mother to do so but she failed to respond.
In so far as the 2013 orders required the mother to do anything, there was no such requirement to revoke the Polish citizenship. At best, the orders contain a notation as follows:
The parties intend to withdraw/revoke the child’s confirmation of Polish citizenship, provided that in doing so there is no prejudice to the child’s ability to obtain Polish citizenship in the future should both parents agree and provide their written consent. (my emphasis)
The notation went on to say that the mother had to make the necessary arrangements and lodge the appropriate paperwork within 30 days of the orders.
This particular issue has permeated the lives of these parties since the incident in Europe. It underpins the issue relating to international travel in this case. The mother’s evidence was that the child always had Polish citizenship by virtue of his birth and what the notation refers to is simply the cancellation or halting of the process that the parties undertook in Poland when they went to Europe. There is no evidence about that process upon which this Court could rely. Doing the best I can, it seems that an application of some type can be made for a certificate which confirms the citizenship.
Counsel for the Independent Children’s Lawyer cross-examined the mother about what she had done and she confirmed the agreement to have the certificate process withdrawn. She added that she had done the research and that there was no power to cancel the Polish citizenship. When asked whether she had written to the father about that, she replied that she had not because there was no prospect of negotiation with him and if she did not agree with his position, there was a major argument. She confirmed she was not seeking a Polish passport.

The post-2013 orders phase

The mother’s evidence was that around the end of 2013 and the beginning of 2014, the father was homeless and unemployed. He had a dispute with one of his sisters. His response was that he was not homeless but rather, living with his friend and then, he maintained that he moved in to live with the mother. The difficulty with all of this from a parenting perspective was that it was without any semblance of stability for the purposes of any parenting role.
One example of the father’s assertion that the mother manufactures evidence was that she asserted that he had been sleeping in his car. He denied that. I find the mother’s version is the more plausible. On 7 December, his sister wrote to him a letter setting the terms of his “lodging” at her house. She referred to him as “boarding”. The unusual letter (for a sibling) is written in very terse and legalistic language but it conveyed the picture of a dissatisfied property owner. The fact that a sibling had to write the letter (as distinct from communicating her unhappiness orally) indicates that there were problems. The father said that on 14 December, he moved his “belongings” to the mother’s apartment which was the day after the ultimatum of his sister had expired. That indicates that he had nowhere to go. He maintained he and the mother had “mutually agreed” shortly after 28 September 2013 that he would move in with her but nothing much seems to have happened until his sister made the overtures in writing three months later. The mother’s evidence that she allowed him to sleep on the couch from time to time, is the more plausible description of what was happening.
It was put to the father that the mother had commenced a relationship with her current partner Mr M but he denied that saying that Mr M had not “broken up” with his former partner. Mr M was a witness in this case. His evidence was that he commenced a relationship with the mother in or around August 2013. He was not challenged about that so much as when he moved in to a permanent relationship with the mother. The father’s description of his own relationship with the mother is at odds with the evidence of the mother and Mr M. He portrayed a picture of the mother and he attending dinners, Christmas parties, tennis dates and coffee and of course, living at the apartment after December 2013. The father maintained this was not intimate but it was more than shared parenting. If the mother was dating Mr M, as would seem to be the case on the evidence, the nature of her relationship with the father was one of trying to give the child the time he needed with his father.
Accordingly, I do not accept that the mother embellished the evidence about that period of time nor that she exaggerated her evidence for any obvious advantage.

The wedding incident

The father moved to live at the home of a friend and the child stayed there with him for contact periods. During this period, the parties had discussions about removing their chattels from the storage facility.
In 2014, the mother’s sister was to be married and the child was to be a page boy. In a set of electronic communications consistent with the concept of the father bargaining over the child, the following occurred.
The mother sent the father a message asking that the child be returned early on a particular day and the father asked why. The mother’s response was that it was for “wedding preparation”. Despite his evidence that he was unaware of the wedding, I accept the father knew of it and the mother’s explanation for the early return was clear.
Remarkably, the father began to negotiate over a division of the chattels and that indicated that he was content to give the mother what she wanted provided she committed to the chattels division. In his words, the mother wanted a “favour” in the face of “breaching” the “agreement” about the return of the furniture.
On the morning of the wedding, the father left Melbourne and drove to the Mornington Peninsula. As he conceded, he was stressed and sleep deprived. That was how he explained his “judgment errors” that day. Although he said that he felt fit to drive, why he was, with the child in the car, is hard to fathom. There had been an incident earlier in the year where he had an accident in the car whilst the child was with him. It was a serious accident and the car was written off. No-one was injured but the remarkable thing about it was his explanation. He said he had the cruise control operating and was trying to adjust something on the steering wheel and was distracted only to look up as he crashed into another car. Accidents do happen but in the context of the father subsequently telling the Court (as indicated below) that he was stressed, sleep deprived and at breaking point, his responsibility as a parent must at times be questioned.
On the wedding day, the father said his mobile telephone went flat about 12 noon and he was not wearing a watch. It was not until mention of dinner was made by his friend that he thought he was late and he panicked. He then activated his flat mobile phone and got a barrage of text messages which he did not then read. At 6.54 pm which was well after the time for the child to be at the wedding, he managed to send a text that read he was “driving” and another that read “cinema”. He said that these messages could be explained by his endeavours to type a message with the limited life of his battery.

He said he was not well but he then volunteered that he knew he was “in trouble”. All of this indicates he knew the child should have been at the wedding.
In another remarkable piece of evidence, the father was asked why he had not got the friends to contact the mother and he replied that apart from not asking them, he did not have the mother’s number because it was contained in the flat phone. But he then also volunteered that he was “the victim” and the mother was “abusing” him “about the furniture”. He then began to ramble. He said that the mother told him she was going ahead with the application for the intervention order because her sister and new husband had told her to do so despite having indicated previously that she was not so proceeding. All of this had nothing to do with a very simple concept. He knew that the child was to be at the wedding. He had the child in his care when he was clearly unwell himself; he described his situation that day as the mother contributing to his “mental state”. He drove his car when sleep-deprived. He did not make attempts to contact the mother because he knew that he was not going to provide the child for what was a significant event for her.
The wedding was on a Friday and two days later, the father sent a text message to the mother apologising for what had happened. To the extent that his position was that everything occurred beyond his control (such as the mobile phone going flat), this message indicates that he well knew what he was doing. He said:
I am shocked saddened ashamed & most embarrassed at what occurred & anything I say will be inadequate I was so angry & worried about what took place then relieved that the child was back I am so very sorry.
The message is cryptic but when asked about it, the father said he was trying to say he was stressed and that this was “breaking point”. I find the “apology” was indeed self-serving and not genuinely written. As he said, he knew he was in trouble. This incident highlights the father’s disdain for the mother and his view that parenting is something about which he is happy to bargain. That is not good parenting.

The observations of Family Consultant Mr L

Shortly after the parties returned to Australia with the child, orders were made for a family consultant initially to undertake a Children and Parents Issue Assessment and then a family report for the proceedings then before Young J.
These reports were relied on by the Independent Children’s Lawyer in the current proceedings and no objection was taken by either party.
In July 2012, Mr L as a family consultant reported that 3 year old the child was distressed when separated from his mother but not so when his father departed even though he interacted well with both parents and was not anxious around either of them. One of the curious features of that observation was that only weeks before Young J had made orders for the child to be with the father from Friday night to Sunday night so separation anxiety would have been a relevant issue.
Importantly, despite what had occurred in Europe, the mother told Mr L that since her return to Australia, she had had no concern about the well-being of the child in the father’s care.
Whilst limited and for a specific purpose, Mr L opined that children could be anxious when faced with separation particularly from their primary attachment figure. He said that both parents had commented that the child had exhibited behavioural indicators consistent with experiencing uncertainty. None more so than in the area of the separation anxiety when the mother left the child.
In November 2012, the comprehensive family report was prepared by Mr L.
In this report, the father acknowledged that the child initially had difficulty in the transition between parents and had wanted his mother but there did not appear to be any ill effects from what had previously happened because the child was emotionally and physically settled.
The observations of the father included that he had a sound understanding of the needs of the child as well as to his functioning. On the other hand, Mr L was critical of the mother whose intent was on preventing more time rather than working out what was genuinely in the child’s best interests.
At that time, Mr L thought the parties communicated well. That was obviously before the incidents to which I have otherwise referred.
The advice to the parties at the end of 2012 was that a shared parental arrangement was unwise for a child of the age of the child but that it had better chances at school age. Mr L warned about exposing the child to the parental conflict which he seemed to view as of significant tension and ill feeling. That of course was completely inconsistent with the picture painted by the father.
Despite that advice, the parties went off to their joint psychologist and came up with the sharing arrangement encapsulated in the 2013 orders. Perhaps the advice of Mr L was not heeded.
In 2014 as a result of the orders of Johns J suspending the father’s time under the 2013 orders, a further initial issues assessment report was ordered. Again, Mr L was allocated the task and he delivered a report on 17 July 2014. The child was then 5 years old.
According to Mr L, the child had no concerns about being with his father. It was noted that there was anxiety in the child being away from his mother. Importantly and unsurprisingly having regard to the January 2014 incident, the child was noted as being aware of some level of conflict and tension between his parents. He commented on them both being angry “and at times scared” when they came into contact with each other. He was sad that his parents had been angry with one another. This was coming from a child aged 5.
Mr L seemed to understand the respective proposals of the parties and acknowledged there was little chance of a resolution as between them notwithstanding they had apparently sorted out everything on a permanent basis only months before. What that suggests is that the agreement in 2013 was fragile and probably ill- conceived. Mr L thought that the parental relationship (and I would add the parental arrangement of 2013) remained significantly complicated and problematic.
In reality, Mr L was not telling the parties anything they did not know but contrary to that, the father maintained that he and the mother were able to co-parent.
The parties then returned to court just after that and a hearing was conducted by Senior Registrar FitzGibbon. The Senior Registrar noted the father’s position which was that the Court should be satisfied that the suspension of his time had no basis and should therefore be lifted (see para 23 of the Reasons for Judgment 31 July 2014) but the Court then declined to alter the then existing parenting orders because of the competing evidentiary allegations of the parties. The Senior Registrar was worried about the emotional and psychological risks to the child and the evidence as to who was the cause of those problems was untested. That situation is now clear as I have heard all of the evidence. I much prefer the mother’s version of the facts about the main allegations to that of the father. I find he has little insight into what is needed to co-parent the child.

Communication

I have referred to specific incidents as detailed in the evidence. Generally however, it was the mother’s view that there can be no talk about issues. It was put to her that there had indeed been a recent civil communication and she agreed but then added that it had only occurred once. She was worried about changeovers because of the potential conflict but she agreed that communication in writing through email could otherwise work.
The father pointed to email communication to show that arrangements could be made between the parties. He showed his cooperative approach in helping the mother in 2013 over matters arising from the Federal Court litigation. He was clearly acting as an advisor. He sent emails to confirm conversations that had taken place during the day. My perception is that he was controlling her life. Whilst he portrayed a situation where he was trying to be helpful, the reality is that that Federal Court litigation was about him and the benefits he would receive. It was the mother’s evidence which I accept, the father was using her to do things that he was unable to do because of his bankruptcy. When he did send emails, they had a clear message of things being done straight away.
After the assault incident in January 2014, the father’s communications pressured the mother to make a determination about the police prosecution. There had clearly been discussions between the parties and the father confirmed that in much the same way as a lawyer would confirm instructions. But he then added (19 March 2014):
Your frivolous manner concerns me, and the orders sought to the effect that I do not cause Family Violence or cause damage to your property are partly covered by existing Family Court orders which state that we are both not to cause Family Violence.
The father’s email then went on to say that as there were no allegations of damage to the mother’s property, he requested she provide written confirmation of her intentions because he had to deposit money into his lawyer’s trust account for the purposes of his being represented. Whilst the father might see that as his way of communicating with the mother but also protecting himself, it had the effect of pressuring her into not proceeding. That can be seen in his reference to a discussion that they had at a kindergarten party and a tennis lesson. The subject of whether or not the proceedings were going ahead was constantly being raised. It is unsurprising therefore that counsel for the father produced the audio of a police officer telling the magistrate that the mother did not want to proceed.
I accept the mother’s version that communication has to be limited to written form but even then, it is the negotiation that creates the impasse that will give rise to the problems of how decisions are made.

Ms D Doyle

The father’ sister was not just a witness in the hearing but had also had a role throughout the relationship of the parties. She is a lawyer by profession and affirmed an affidavit much of which did not pay any attention to the provisions of ss 55 and 56 of the Evidence Act.
Curiously, when the affidavit was filed, it had a significantly sized paragraph redacted. This was done after the affidavit was affirmed. It caused some consternation for counsel for the mother but after an unredacted copy was apparently shown, the issue evaporated.
Much of the first part of the affidavit concerned the sister’s role as a baby-sitter, nanny, refugee lawyer and surrogate aunt for children whose aunts and uncles remain outside Australia. This evidence was presumably led to show what experience the witness had to comment (as she said) on issues about children which were “common needs if they are to thrive”. The beliefs of the sister were prominently on display. It is unfortunate that, as a lawyer, the witness did not turn her mind to opinion, expertise and the fact that the Court had appointed a single expert. I have presumed her lack of litigation experience to be the cause.
The witness had been present at over 100 changeovers. And she observed that the child had often expressed his disappointment and sadness at being unable to spend time with his father. It is difficult to give that statement any weight without knowing the context in which it was discussed. For example, the family consultant detected that the child was well aware of the father’s position about what orders should be made. I am unsure whether the father’s influence extended to the child volunteering that sort of comment or whether he was specifically asked.
Ms Doyle set out the various things that were done with the child none of which was contentious. She said:
I have noticed that the child has had several “best times of his life” whilst in (the father’s) care.
One might ask why the words were in parentheses. It was not said that the child used those words but rather that the witness perceived that situation. Was this a statement intended to suggest that by comparison with times at his mother’s home, the child was professing that it was better with his father? If so, why were the words “I have noticed” used?
This type of evidence is usually seen from litigants in person; from a lawyer, I would have expected a different approach.
The witness then described the child as a “sensitive, cautious and nervous child” which is unsurprising after what he had been through but also the fact that he is embroiled in parental conflict. The sister went on to say that she recalled being like that when she was the similar age to the child. She then described why that was so for the child and attributed it to the sensitivities and concerns of the parents until the child turned three. She even described toilet training. None of these matters had anything to do with the issues at hand.
The sister then described the catching up of the child since he was three in respect of his motor skill development. This evidence was gratuitous and unnecessary as it had never been a matter put to the family consultant. The father expressed concern that the child was not up to his peers physical standards and the sister agreed. She thought that the child was catching up with the father’s “guidance and persistence”. One might question then the father’s view that he needed more time to enable this program to be brought to fruition. Again, this was not a contentious issue and nothing the family consultant observed suggested that the child was behind in some developmental way. The family consultant was concerned that the child was writing stories about his life somewhat akin to writing affidavits. The evidence of the sister has a remarkable similarity about it.
The sister then turned to what happened in Europe and said unlike the father, the mother was screaming hysterically in front of the child. When cross-examined, she said that she spoke to the mother and said that she was “sorry” about the child missing her but reassured her that she had spoken to the child who was “ok”. She then asked the mother if this could be ended by her returning to Australia and reassured her that she would be reunited with the child. I found this staggering. She described the father as “sometimes” making foolish decisions including suggesting that he was a poor judge of character yet here she was endorsing what he was doing. Nothing addressed the appalling behaviour of the father at that time. She described the father as a very attentive and loving father but gave no indication of her experience.
The sister’s role was to negotiate with the mother. She was not partisan but rather doing her brother’s bidding. Unlike the father who saw that his behaviour was not good for the child even if he considered there was no other alternative, this affidavit was simply a criticism of the mother.
The affidavit went on to talk of matters since that time including evidence about matters that were not in contention. The family consultant had been critical of what was seen as a dominating role by the mother’s partner Mr M but Ms Doyle seemed to fulfil the same advocacy role for the father.
At paragraph 36 of her affidavit, she set out a long stream of consciousness as to her beliefs. This was directed to why the mother is, in her view, “strongly committed” to living in Poland. I was not assisted by her opinions.
Just to ensure that the Court understood, she said:
[38]I find it extremely disappointing that the Independent Children’s Lawyers (sic) whom (the father) originally requested be appointed in order to help [the child] remain in Australia where he could spend time with both of his parents, have repeatedly expressed their opinion that (the father) abducted the child in Europe without justification, contrary to the list of facts and evidence, above.
That statement not only misunderstands the role of the Independent Children’s Lawyer enshrined in statute but also shows a misunderstanding of the requirement of the lawyer to advocate for the best interests of the child as that lawyer sees it. This statement might again be expected of a litigant without understanding of the role of the courts and the law but this was gratuitous and unhelpful. The impression gained from the rest of this affidavit was that the witness was so partisan that it was difficult to discern what was fact and what was opinion.
The criticism of the father by Dr C and indeed the family consultant was his unfailing belief that he was right. The sister’s evidence must be seen to fit into that category. At para [36] she referred to the mother’s “claim in 2012 to have applied for sole-custody of the child in Poland which I understand does not recognise the rights of the child in relation to non-citizen parents like (the father)”. That statement was inconsistent with the evidence and to the extent that it was purporting to be expert evidence, no foundation was given. Even the father did not seem to make that claim.
The affidavit was closely typed and ran to 23 pages. In a case in which issues such as that to which I have referred about the absence of the father’s mother to corroborate the exit from Australia was with her knowledge and the difficulties that the father had with his own family in December 2013, this affidavit was remarkable for what it did not say.
I have re-read the affidavit a number of times because its density and opinionated views could be a distraction rather than addressing the issues in dispute but I have been unable to find anything must of assistance. To the extent that there were things, I have given them little weight because of the partisan nature of the witness.

International travel

It was the father’s case that there should be no international travel by the child. His view is that the mother would vanish and he would not have any involvement in the life of the child. Against that, it was the mother’s evidence that her parents have applied for permanent residency in Australia. Her sisters have undertaken tertiary studies here. She has employment here and as she described it, she has a connection to Australia. She is now in a stable relationship with Mr M.
Counsel for the father cross-examined Mr M on the basis that he had no significant ties in Australia. He is not married nor does he have any property here notwithstanding he was involved in the finance industry. I am not sure what all that was about but the reality is that Mr M is Australian. Nothing about his evidence suggested he is unstable, a flight risk or intends to thwart contact between the father and the child.
The father relied upon what happened in Europe to say that the mother was untrustworthy. I am satisfied that there was no intention on the part of the mother to abscond with the child or disappear in Europe. She impressed as being a devoted parent and acknowledged that the child now had connections with Australia as well. The issue for the Court is one of an assessment as to the risk of its orders being thwarted. Is that risk unacceptable?

The legal issues associated with international travel

Decisions about international travel are difficult to make because no-one can foretell the future. Albeit there is no specific proposal for international travel in this case, the mother has cultural and family connections with Poland. But Poland is only one country to which she and most other parents might wish to travel with a child.
The father seeks an absolute prohibition on any such travel.
In the exercise of its discretion (on the basis that this is a parenting order which must be proper (s 64B)) if the Court granted the mother’s request, the decision would be a leap of faith but the discretion must be exercised within the framework of the evidence that it is presented. (Gin and Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3).

The family consultant also noted that the mother demonstrated limited insight that ongoing involvement in litigation might pose a significant risk of harm to the child but that arose out of a comment that the family consultant took to mean that the mother anticipated the parenting dispute would continue throughout the childhood of the child. I am satisfied that the family consultant misconstrued what the mother was saying. There is no doubt that the mother anticipates ongoing litigation but predominantly as a result of the instigation of the father. It is very clear from the evidence of the mother in this case that she wants an end to all litigation and for there to be some certainty in the life of the child.
The overall view of the family consultant about the mother was that she was focussed on herself and had limited insight to the needs of the child and that that was contributing to the ongoing parental conflict particularly in relation to issues such as family violence and mental health issues. In my view, to the extent that the family consultant was sceptical about those issues, the evidence supports the conclusion that there was foundation for the mother’s fear.
When the family consultant interviewed the child, he told her that the existing arrangements were fine. Of course, those arrangements severely reduced what had been agreed in 2013. The child told the family consultant that he was looking forward to more time with his father and the family consultant concluded that the child had been exposed to his father’s views about the parenting arrangements but that the child understood little of what that actually meant. The child was positive about the relationship with both of his parents.
Ultimately, the family consultant concluded that based upon what she had read from the report of Dr C in particular, the professional literature suggested that parental mental health issues posed a risk of harm to children by limiting that parent’s capacity to meet the needs of the child.
The family consultant concluded that even if the father suffered from anxiety and depression, it did not necessarily mean that the parenting decisions that he made demonstrated any impaired mental functioning. In that sense, I agree with the family consultant. The behaviour of the father in Europe, the assault issue in January 2014 and the wedding incident were not explainable by any illness. In each of the cases, including in respect of the wedding incident where the father said that he was under stress, each of the decisions was made and each was irresponsible.
The family consultant said that as each individual became accustomed to the situational “stressors” that led to an adjustment disorder, the disordered behaviour was likely to lessen. Theoretically, that is understandable but in this case, the chronology suggests little change has occurred. There is no doubt that there is currently limited conflict between the parents but that is as a result of them not being in proximity to one another. There are also currently very few decisions to be made between them that require communication. The examples of what occurred at Easter and the birthday party are such that they were hardly controversial.
The family consultant dealt with the professional literature relating to the effects of a personality disorder but I am not at all comfortable in making a finding that the father suffers from any such disability. Dr C certainly queried it but just whether that was a diagnosis, I remain unsure. The family consultant noted that Dr C said that the father displayed a number of narcissistic personality traits but the family consultant noted that a number of individuals in a family system could display similar personality traits.
The family consultant explored the question of how narcissistic personality traits impacted on children. She observed that parents with those traits struggled to identify and prioritise the needs of children and may have unrealistic expectations of the capabilities of the children or lack empathetic attunement with a child. There is a distinct indication of that in this case about the father’s focus on himself and his poor decision in Europe and a similar situation in relation to the wedding incident but so too, the incident in January 2014 which took place in the presence of the child. Absent some form of imposed restriction on the parties coming into contact with one another, I am satisfied that the conflict will go on between them. To the extent that the father has said that he has arranged “strategies” such as having witnesses, that does not overcome the lack of trust and the fact that every decision about the child in the future will be difficult to arrive at a conclusion if it is of some substance.
The family consultant’s view was that both parents prioritise their own needs over the child. I reject that on the basis of the evidence that I have heard. The family consultant found that neither parent demonstrated insight into whether the orders they were seeking would be most appropriate for the child. I reject that on the basis of the evidence that I have heard. She raised the question as to whether the particular presentations she saw at assessment were an accurate reflection of the way the parties interacted with the child or whether it was “context-dependent” or a product of the contest between the parents. In my view, the clinical interveiw environment probably reflects the fact that it was artificial whereas I have had the advantage of seeing both parties cross-examined under oath.
The family consultant finally opined that if the parents continued litigation, it would have a harmful effect on the child and lead him to align with one parent whilst rejecting the other. There is a distinct possibility of that occurring here particularly as there is the looming dispute over education.
In summing up, the family consultant said:
[85]This assessment found that the chronic and high level of conflict between the parents, and the tendency of both parents to prioritise their own needs over [the child’s] were the two aspects of the current parenting dispute that posed the greatest risk of harm to [the child].
The family consultant therefore made some recommendations. In respect of time, the family consultant suggested alternate weekend Friday through to Monday and one mid-week overnight either on a weekly or fortnightly basis. She conceded however that the overnight time could be substituted by the regular telephone contact that has been taking place between the parties. If the conflict is a problem because of the parties coming into contact with one another, that can be alleviated by a changeover at school. Mid-week time was about the ability of the child to maintain the relationship that he has with his father and it seems to me that a telephone call less than daily might resolve some of those anticipated problems.
The family consultant also addressed the holiday issues and said they should be shared but on any view, the maximum period during the school holidays should be one week although the summer holiday once a year could be extended to two or two and a half weeks. Thus, the family consultant did not seem troubled about that block period. The Independent Children’s Lawyer ultimately submitted that for the forthcoming long summer holidays, the solution was to provide a week-about basis and then in 2018-2019 it be increased to the sort of concept that the family consultant anticipated. That submission was put on the basis that the Independent Children’s Lawyer did not accept the correctness of the family consultant’s opinion. Having regard to the findings that I have made, I agree.

What of Dr C’s opinion?

I return to the opinion of Dr C.
I find the father sees himself as a victim. At every opportunity, he pointed to the conspiratorial approach of the mother to take the child away from him. His bargaining over the child indicates his lack of any trust in the mother and in my view, unjustifiably so. He saw himself as a significant figure in the life of the child and was forceful in his presentation about that importance yet he has had significant emotional turmoil since he was made bankrupt. Even the bankruptcy decision was said to be wrong and he was unfairly treated. Upon the opportunities he had as a witness to reflect on his own role in the dispute, he sooner or later always returned to the theme that it was the mother’s fault. His constant reference to her having made up evidence to show him in a bad light was not seriously borne out by any evidence. His reference to self-serving documents generally showed him to be a bully. His language towards the mother was strident in his correspondence. His views about the courts that convicted him showed that everyone else got it wrong. Those factual matters bear out what Dr C thought was the father projecting onto the mother.
I accept the view of Dr C that it follows the father’s parenting of the child is compromised.

The parties’ final positions

The Independent Children’s Lawyer submitted that with the prospect of ongoing litigation causing the child harm, a parenting order was needed to regulate the future dealings between the parties. Counsel was highly critical of the father particularly in not accepting that he had contributed to the problem.
The Independent Children’s Lawyer submitted that the proposals to be put were not a matter of rewarding the mother but an endeavour to make life stress-less for the child. It was submitted that sole parental responsibility was essential because there was no capacity to negotiate and there was the looming school issue which counsel described as a “battle ground waiting to happen”. I have to agree with that submission.
Importantly, counsel submitted that there was no evidence that the mother made decisions that were ill-considered and I would add to that, decisions in which she has ignored the views of the father.
In respect of time, counsel submitted that the time between the child and the father should be limited until 2017 when it could be extended to commence on the Thursday after school. In her submission, counsel said that this was an indication of substantial and significant time under the Act.
It was submitted that the whole purpose of the proposed orders was to minimise conflict exposure and lessen the burden on the child moving between households.
In respect of the overseas travel, it was submitted that the child should be retained on the Watch List for two years and that would give everyone an opportunity to see the tension easing off as well as presenting a stable routine. It was submitted that it was not about risk but about taking away an area of stress. I do not agree with that submission on the basis that it is about risk and an assessment of it, but more importantly, I do not anticipate that there will be any reduction in the stress between these parties. There were stressors from 2011 onwards and now five years later, there has not been any indication of the conflict abating. I accept that there have been few confrontations in the last 12 months but that is a symptom of the nature of the arrangements.
Counsel for the mother submitted that sole parental responsibility was the appropriate order because there were no criticisms about the mother and her decision making concerning schooling because she always considered the best interests of the child. The mother however wanted to restrict the father’s time to alternate weekends from Friday through to Monday and no overnight time in the midweek nor an increase in time during 2017. The underlying logic it was said was that the more time that was granted, the more opportunity that there would be for conflict over small issues all of which created a significant risk of problems.
In respect of telephone communication, the mother suggested that there be three occasions per week between 6.00pm and 6.30pm and in respect of school holidays, a maximum period of one week at a time and hence over the summer holidays for a period of two lots of one week.
In respect of international travel, it was submitted that the Court should remove the Airport Watch order and not make restrictions on the mother’s travel but the difficulty with that lies in the fact that if any period of time of substance is considered, with the limited amount of time that the father would have with the child, make-up time would be almost impossible. There was no simple solution.
Counsel for the father noted that the family consultant thought that it was in the best interests of the child for there to be equal shared parental responsibility and historically, that had been a consistent theme. In my view, the Court is in a better position to judge whether or not the parties have a capacity to fulfil their obligations as shared parent decision makers but more importantly, whether an impasse would be detrimental to the child. In my view, the education issue is a problem. But the mother also pointed to the relatively minor injury that occurred on 31 August 2014. This was where the father seemed to suggest that the injury was manufactured. The child told the mother that he had bumped his head in a pillow fight with his father. She took him to a doctor to assess whether he had concussion. For his part, the father said that the pillow fight did occur immediately prior to changeover and he put a bag of frozen peas on the injury. He said he told his sister to tell the mother and to instruct her to monitor the child for signs of concussion. It is curious why the father did not convey that information. A similar injury occurred to the finger of the child and again, childhood injuries are well understood. However, it was a lack of communication such that the mother became upset when she saw it that caused the problem. The father’s sister gave evidence and said that at the time she delivered the child back to the mother, the injury was not like it was in the photo produced by the mother. She described it as “blue”. There was no medical evidence to indicate whether the finger was injured but little things like that indicate poor parenting communication.
Counsel for the father highlighted the money issue concerning the trust from the Federal Court proceedings. Presumably that was on instructions to show that the mother was being less than candid. The inference that the father would have the Court draw is that this money should be available for future schooling. As I have earlier observed, that is not a comprehensive view of what the money was for nor has any action been taken by the father or any other person on behalf of the child, to sort that issue out. The issue did not reflect on the credit of the mother.
Counsel for the father quite properly said that the parties should be able to discuss things so that decisions could be made. I emphasise the word “should”. The reality is that all of the evidence points to the fact that they cannot. Counsel suggested that the father could learn and that in the last few weeks, he had done things that were positive. Examples were highlighted of the Easter agreement and also the birthday party.
Counsel urged the Court to find that the mother exaggerated to assist her own case but I reject that. It was also submitted that the mother had agreed to equal shared parental responsibility in 2013. It was pointed out that at that time the mother had lawyers. She certainly had access to lawyers but on the evidence, this agreement was brokered by the parties’ psychologist. In my view, even if it had been brokered by lawyers, it was doomed to fail.
Counsel submitted that the mid-week time for the father was important because the father wanted to participate and had shown that he could.
In respect of international travel, counsel suggested that if the Court was not prepared to make an order to continue until the child turned 18, it should be at least until he was 12 or 13 years of age. In my view, that does not address the issue of the risk to which I have earlier referred.

Parental responsibility

Both parents have parental responsibility for the child because of the order of the Court in 2013. Thus, each has all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B). The Court has power to alter what it previously gave.
The approach to orders relating to decision-making is largely governed initially by the Act and then how the evidence is applied.
Section 61DA provides a mandatory presumption when making a parenting order as the Court is asked to do here.
The statutory presumption is rebuttable in two circumstances, s 61DA(2) and s 61DA(4). In respect of the former, if there is evidence to justify that non-application of the presumption it must not be applied. I am satisfied that there has been family violence here for the reasons earlier set out.
In respect of the latter circumstance, the Court needs to examine the best interests’ principles which I shall below. Everything about this case suggests that there is no communication and a distinct and chronic conflict between the parents. The presumption here may be rebutted if the Court finds that it would not be in the best interests of the child for the parents to have that responsibility. Whilst best interests are approached through s 60CC, those factors give the Court some insight as to how the parents address and will address, their responsibilities in decisions for the child. But the best indicator of whether it is the best interests of the child is whether, at least in respect of major long-term issues, the parties can reach a conclusion without causing problems for the child. The father pointed to things such as the Easter agreement and the birthday but neither of those matters is a major long-term issue. Counsel for the father said that religion would not be an issue because both were Catholics. That may well be right but as I earlier observed, that is not the religion professed by the father to Dr C. The schooling issue would not be determined on the basis of religion but on money.
Major long-term issues” is defined in s 4:
i.major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
ii.the child’s education (both current and future);
iii.the child’s religious and cultural upbringing; and
iv.the child’s health
v.the child’s name;
vi.changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
vii.To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
My focus on s 65DAC relates to “major long-term issues” turns to s 65DAC.
As for how the parents would meet the test of the equal sharing of parental responsibility in relation to major long-term decisions, the unusual feature here is that it was previously specifically contemplated but it now transpires that decision-making is difficult. Again, education decision-making for the child is likely to be a problem. The best yardstick is to examine whether the parents could meet the statutory requirements of s 65DAC. That requires parents to consult each other in relation to the decision to be made and make a genuine effort to come to a joint decision. After the 2013 orders, agreement was reached about primary school. The looming problem concerns not the school but the payment. I do not see any prospect of that conflict being avoided. The father seemed to suggest that if it became an issue, the family would assist but that would have to be viewed cautiously because of the matters to which I earlier referred about his sister’s falling out with him in December 2013. Those impasses cannot be afforded when the education of the child is critical.

I am also sceptical of the chances of negotiation or even consultation on any issue let alone major long-term matters when there is an approach of the father seen by the mother as bullying. I am satisfied the past orders arose because of the persistence of the father.
It is not in the best interests of the child that his parents continue the conflict. The family consultant noted that the child was aware of their respective positions. That must mean that he is embroiled in the parenting dispute. Any future decision of significance will lead to the prospect of each party using the child as a bargaining chip. That is not appropriate.
I consider the only solution is that the mother continue to fulfil the decision-making role she has effectively fulfilled to date.

Best Interests’ considerations

The considerations contained in s 60CC guide how a court determines what is in a child’s best interests. In effect, that section provides a checklist of matters that the Court shall take into account.
The main guiding principle as to what is to be attempted to be achieved can be seen in the objects and principles in s 60B.
The child has the right to benefit from his father having a meaningful part in his life. Section 60CC(2) speaks of meaningful relationship. As has been said in various well cited authorities, the relationship does not have to be optimal. The Court has to do the best it can with what evidence it is given. The unusual feature here is that the Court can see how the parties have reacted after the 2013 orders where there was agreement on time and decision-making. The father would have it that he had been a significant part of the mother’s life and they were communicating well for the benefit of the child. The mother saw it very differently in that the father was domineering. The best description of which one is correct is the view of a five year old to the Family Consultant. He observed anger and aggression. The father would have the Court accept that there were signs of a reconciliation but the reality was that his domineering personality made it look that way with the compliant mother. I accept the mother allowed a lot of these things to happen for the benefit of the child. It did not work.
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm by exposure to family violence. I have accepted there was family violence and the child witnessed it. The family consultant’s view was that exposure to parental conflict is harmful for children. The Court therefore has an obligation to endeavour to craft orders that will reduce that exposure.
I do not doubt the earnest desire of the father to play a very significant role in the life of the child but the best interest principle overrides the father’s desire (see MW v Director-General, Department of Community Services [2008] HCA 12).
Whilst all of the factors have to be considered, s 60CC(3)(m) enables the Court to go outside what I earlier described as the checklist. When making a parenting order, s 65D provides that the Court may (subject to s 61DA to which I have already referred) make such parenting order as it considers proper. What is proper here and how does the quantification of time matter if the relationship between the parents is as poor as it is?
The answer lies in the fact that exposure to conflict is harmful. The more time the father has particularly outside of leisure time, the more likely the exposure to conflict. Because the child is in early schooling, he cannot be expected to carry everything he needs and that is a parenting responsibility. Longer time therefore means greater opportunity for issues to arise. I have no confidence that communication will occur. I point to the lack of co-operation about clothing during changeovers. I point to the injuries issues (no matter how minor) and specifically the one raising questions of concussion. Even if the father had intended the warning to be passed through his sister, why was that necessary in such a potentially serious issue? I point to the wedding findings where the focus was not on the child. Even if he was oblivious to the fun that he could have been having at the wedding, the discourteous approach of the father in using the child as a bargaining chip when he wanted his chattels, shows the incapacity to deal with simple let alone major decisions. The child is the one who has and may in the future, suffer. Those problems are not entirely avoidable if the time is limited but they are potentially reduced.
In my view, there is a link between time and parental capacity. The father’s view was that he needed more time to ensure that the child was up to the standard of his peers. Dr C and the family consultant raised the self-focus problems of the father. Giving him more time to do such things does not seem to do more than satisfy his needs. I am unsure what benefit the child would get out of more time. The family consultant was distancing herself from any question of a significant sharing of time. There is no fine line between weekend/ holiday time and significant and substantial time as it is defined in the Act. The dichotomy is stark. The former is leisure time whilst the latter is very much involved in the management and development of a child. The evidence supports the conclusion that the father’s interest is more on his own needs than those of the child in an environment where the child is primarily attached to his mother and she has fulfilled all of the basic needs to date. The family consultant’s view was that now is not the time to extend the contact periods.
Another consideration of the Court is the capacity of each of the parents to provide for the emotional and intellectual needs of the child and the respective attitudes of the parties towards the raising of the child and to the responsibilities of parenthood (s 60CC(3)(f) and (i)).
Commendably, the father gave examples of all of the positive things he does with the child but then, so does the mother. The issue of whether conduct is relevant to parental responsibility is a vexed one. The child was described as being aware of the conflict between his parents but not being affected by it. As the family consultant observed, exposure of children to conflict can make them align themselves with one parent but it can also convey the wrong attitude to children that the sort of behaviour they have witnessed is acceptable. As the father has been found to be the main contributor, that has to stop.

Other provisions

The father and the mother had various other agreed positions which, in my view, do not need to be the subject of orders. I have not made provision for Mondays of long weekends. If the parties can agree, they can extend the weekend to the Monday but if not, these orders as set out shall apply. I have concerns about extending the weekends because of the reservations of the family consultant about how long the child should be away from the mother during school weeks. Accordingly, if the mother considers the child will be fine, she can extend the time but otherwise, the order applies.
Similarly, I have only made provision for one day telephone contact per week. If the mother considers that the child needs more, it can be accommodated. I have chosen Tuesday because it is in the middle of the week and gives the father an opportunity to talk to the child about what they had done on their previous weekend and what he has planned.
I also consider Wednesday does not need to be an overnight but if the mother considers that it is better than returning at 7.00pm, she can so extend the time. I am mindful of the concern earlier expressed about the father’s negotiation style. If she determines not to agree, the orders will prevail.
Wednesday overnight, that is beyond 7.00pm, adds little to the relationship. In 2017, the time will be a block period of four nights; the child should manage that. The mother can agree to longer periods if she considers the child is ready for it.
Handovers can be at school or otherwise at the mother’s home. If the father considers it is necessary to protect himself as he described, he can have someone present.
Having been satisfied that there is no risk of abduction by the mother, I will discharge the watch list order but the mother cannot remove the child from Australia before 1 July 2017 to give him the opportunity to settle into the new routine. To make it clear, thereafter, the child can travel internationally but unless the parties can agree as to times, it will have to be within the ordered regime. If the mother wants longer than the maximum time provided under the orders, she will have to consider the Court’s concern that the child should not have a long absence from his father for a year or so. The parents will have to negotiate that or seek specific direction from the Court. To be also clear, I am conscious of the mother’s partner’s desire for overseas travel this year. In my view, the impact on the child of that contemplated absence is not in his best interests.
I consider the best interests of the child lie with the orders that commence these reasons.

I certify that the preceding Two Hundred and Sixty Five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 May 2016.

Associate:

Date: 6 May 2016

[2016] FamCA 317

6 May 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction

Procedural Fairness