ELDER & HINH

FAMILY COURT OF AUSTRALIA

ELDER & HINH

[2021] FamCA 87

FAMILY LAW – CHILDREN – Where the mother proposed that the child live with her and spend alternate weekends and half of the school holidays with her father and the father proposed that the child continue to live in an equal-time week-about parenting regime with each parent as had started in mid-December 2020 – where it is ordered that the child live in an equal-time week-about parenting regime.

Family Law Act 1975 (Cth)

Banks & Banks (2015) 93-637
Cox & Pedrana (2013) FLC 93-537
McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509

APPLICANT:

Mr Elder

RESPONDENT:

Ms Hinh

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

FILE NUMBER:

BRC

6502

2016

DATE DELIVERED:

23 February 2021

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 and 23 February 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Hofstee Lawyers

RESPONDENT:

Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All parenting plans and previous parenting orders are discharged.
The child X, born on … 2011 (“the child”), live with the mother at all times she is not living with the father as provided for in this Order.
The parents shall have equal shared parental responsibility for the major long-term issues of the child, including but not limited to:
(a)       the child’s current and future education; and
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health; and
(d)any changes to the living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)each shall inform the other parent about the decision proposed to be made; and
(b)unless the decision relates to an acute or life threatening illness or injury to the child, when the time frame will be dictated by medical needs, each parent shall, at least one (1) month before the date on which the proposal is to be implemented, provide the other, in writing, with the details of any proposal and the intended date on which the proposal is to be implemented; and
(c)the parent receiving the proposal shall, within fourteen (14) days of receiving the same, provide the other parent with written details of any proposed variations to the proposal; and
(d)the parent receiving written details of any proposed variation to the initial proposal shall, within seven (7) days of that receipt, provide the other parent with written notice of their response to the proposed variation; and
(e)each parent shall make a genuine effort to come to a joint decision about a proposal before the intended date on which the proposal is to be implemented.
Each parent has responsibility for daily decisions about the day to day care, welfare and development of the child when she is in that parent’s care.
The child shall live with the father at all times as agreed between the mother and father but, failing agreement, at least as follows:
(a)until after school or 3.00 pm on Friday 26 February 2021; and
(b)from after school or 3.00 pm on Friday 5 March 2021 until after school or 3.00 pm on Friday 12 March 2021and each alternate week thereafter; and
(c)from 2.00 pm Christmas Eve to 2.00 pm Christmas Day in even numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in odd numbered years; and
(d)on the child’s birthday (if not otherwise living with the father pursuant to the terms of this Order):
(i)if it falls on a school day: from after school or 3.00 pm until 7.00 pm; or
(ii)if it falls on a non-school day: from 1.00 pm until 4.00 pm.
Notwithstanding any other order and unless otherwise agreed between the parents in writing, the child shall also spend time with her father from after school or 3.00 pm Friday until 4.00 pm on Sunday on the weekend during which Father’s Day occurs each year.
The mother be restrained and an injunction is hereby issued restraining the mother from collecting the child from school on days on which the child is to live with the father pursuant to this Order.
Other than for a school event to which parents are usually invited, the mother be restrained and an injunction is hereby issued restraining the mother from attending at the child’s school during the time the father is to collect the child for the purposes of the child living with him.
The father be restrained and an injunction is hereby issued restraining the father from collecting the child from school on days on which the child is to live with the mother pursuant to this Order.
Other than for a school event to which parents are usually invited, the father be restrained and an injunction is hereby issued restraining the father from attending at the child’s school during the time the mother is to collect the child for the purposes of the child living with her.
Notwithstanding any other order and unless otherwise agreed between the parents in writing, the child shall also spend time with her mother:
(a)from after school or 3.00 pm Friday until 4.00 pm on Sunday on the weekend during which Mother’s Day occurs each year; and
(b)on the child’s birthday (if not otherwise living with the mother pursuant to the terms of this Order):
(i)if it falls on a school day: from after school or 3.00 pm until 7.00 pm; or
(ii)if it falls on a non-school day: from 1.00 pm until 4.00 pm; and
(c)across the three days of Asian New Year in each year at such times as agreed between the parents in writing.
The child otherwise be at liberty to telephone or “FaceTime” either parent at all reasonable times, with the parent with whom she is then living to assist her to make any calls she reasonably requests.
Unless otherwise agreed between the parents in writing or otherwise specified in this Order, changeovers shall occur as follows:
(a)for those which occur on weekdays during school Term: changeover shall occur at the child’s school; and
(b)for those which occur during school holidays or on a non-school day: the father will collect the child from outside the mother’s residence and/or return the child to outside the mother’s residence at the conclusion of the time.
Neither parent shall enrol the child in any activity which occurs during time that the child is living or spending time with the other parent without first obtaining the written consent of that parent.
Each parent is at liberty to attend any school event at which parents would ordinarily attend (such as, but not limited to: speech nights; parent-teacher interviews; sports events; swimming carnivals and fetes) and is at liberty to attend the child’s extra-curricular activities.
Each parent keep the other parent informed at all times of their residential address, contact telephone number and an email address and:
(a)notify the other in writing as to any change in those details as soon as practicable and no later than seven (7) days after such change; and
(b)notify the other parent at least thirty (30) days prior to relocating their residence beyond a twenty (20) kilometre radius from where they currently reside.
During the time the child lives or spends time with or communicates with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d)if a third party is denigrating the other parent in the presence of, or within hearing of, the child: take all reasonable steps to remove the child from that location.
Each parent shall keep the other informed of the contact details of the child’s doctors, health care and other treatment providers.
Each parent shall inform the other as soon as is reasonably practicable of any chronic medical condition, significant health issue or illness suffered by the child and, in the event of the child being admitted to hospital for emergency treatment, receiving treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, shall immediately, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment; and
(b)the medical or other complaints for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the same; and
(d)the prescribing or provision of such medication and/or treatment; and
(e)if the child is admitted to hospital: the name and contact details of that hospital.
By this Order, any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.
Each parent shall keep the other informed of the details of any school, educational facility or extra-curricular activity provider at which the child attends.
By this Order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child and her progress.
If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
Each parent shall ensure that the other is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the child attends.
Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them.
Unless agreed between the parents in writing, Ms Hinh, born on … 1975 and Mr Elder, born on … 1971, their servants and/or agents be and are hereby restrained by injunction until mid-2026 from removing or attempting to remove or causing or permitting the removal of the child, X, born … 2011, from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to this Order by placing the name of the child, X, a female born in 2011 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until mid-2026.
Unless an earlier date is agreed between the parents in writing:
(a)the child, X, a female born … 2011, is permitted to leave the Commonwealth of Australia for the purpose of international holiday travel with either of her parents after mid-2026; and
(b)each parent is permitted to remove the child from the Commonwealth of Australia after mid-2026 for the purpose of holiday travel to any country that is a party to the Convention on the Civil Aspects of International Child Abduction and, with the written consent of the other parent, to any other country.
Unless otherwise agreed by the parents in writing, any international holiday travel undertaken by the child in accordance with Clause (29) shall occur during school holidays.
In the event that a parent wishes to remove the child from the Commonwealth of Australia pursuant to Clause (29), the following shall, unless agreed between the parents in writing, occur:
(a)the travelling parent shall provide the other parent with not less than sixty (60) days’ notice in writing of the intention to travel overseas, details of the destination and proposed departure and arrival dates; and
(b)the parent wishing to travel will provide the other parent with an itemised itinerary of the proposed travel plans; and
(c)not less than thirty (30) days before the proposed date of departure from the Commonwealth of Australia, the travelling parent shall provide the other with:
(i)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)a copy of an itinerary which contains all accommodation and flight details, contact details and sufficient contact details to enable telephone or Skype communication between the non-travelling parent and the child to occur in the manner provided for in this Order; and
(iii)a copy of documents evidencing the existence of travel insurance for the child for that particular trip; and
(iv)proof of registration of the child’s trip on the Smart Traveller with the Department of Foreign Affairs and Trade.
The mother is entitled to possession of the child’s passport on the proviso that, in order to facilitate overseas holiday travel notified by the father in accordance with Clause (31) of this Order, she shall provide the same to the father no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.
In the event the father removes the child from the Commonwealth of Australia for the purpose of holiday travel, he shall return the child’s passport to the mother within seven (7) days of the child’s return to the Commonwealth of Australia.

AND IT IS FURTHER ORDERED THAT

In the event that either parent fails to comply with a request to sign and return any document necessary to put the terms of this Order into effect, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the parent who has declined to comply with such request.
Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Orders made 23 February 2021 to the school at which the child attends.
Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Orders made 23 February 2021 and the Reasons for Judgment published in support of the same (when settled) to any therapist upon whom the parents and/or the child attends for the purpose of therapy and to the Department of Children, Youth Justice and Multicultural Affairs (by whatever name that Department is then known) and, if necessary, to any member of the Queensland Police Service or the Australian Federal Police.
Should the parents be unable to agree in the future about any significant parenting matters, then the process to be used for resolving disputes about the same and to resolve any disputes about the terms or operation of these Orders will be as follows:
(a)the parents will consult with a Family Dispute Resolution Practitioner (FDRP) via Relationships Australia or a private practitioner or counsellor to assist with resolving any dispute or reaching agreement about changes to be made; and
(b) the parents will pay the costs (if any) of the FDRP equally; and
(c)in the event that the parents cannot agree upon the FDRP, then the mother will nominate three (3) practitioners and advise the father in writing of the details of each practitioner’s fees, experience and availability; and
(d)the father shall, within seven (7) days of receipt of her list, choose one of the practitioners from the mother’s list; and
(e)in the event that the father fails to choose a practitioner within seven (7) days, the mother may choose a practitioner; and
(f)whichever way the practitioner is chosen, the mother shall arrange for an initial appointment for the parents to attend upon that practitioner as soon as possible and shall notify the father of the details of the appointment in writing.
Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
The father has liberty to apply on the giving of forty-eight (48) hours’ notice in writing in the event that the mother fails to make the child available to live with him and spend time with him in accordance with the terms of this Order.
The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

IT IS DIRECTED THAT

Any application by the father in reliance on the liberty to apply conferred by Clause (39) of this Order shall, if practicable, be brought immediately to the attention of Hogan J.

AND IT IS FURTHER ORDERED THAT

All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT

X currently attends martial arts and it is intended that her continued participation in this activity not be hindered or prevented by the terms of Order (15).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6502 of 2016

Mr Elder

Applicant

And

Ms Hinh

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

These proceedings require the determination of those parenting orders which are in the best interests of soon to be 10 year old X, who was born in 2011.
X’s parents live proximate to each other. Both live in close proximity to her current school. Both are, I accept, able to ensure that their work hours, if any, accommodate any requirement to care for X: for example, both can drop her to and collect her from school.
At present, the mother and X live in rented premises whilst the father lives with X’s paternal grandparents. I accept that X is appropriately accommodated in the care of each parent. There is nothing in the evidence to suggest that, should be father implement his stated desire to live separately from his parents, X would not be appropriate accommodated then too.
X’s parents met in 2010. Their relationship developed quickly. It appears that, after the mother learned she was pregnant with X in about October 2010, they subsequently married in 2010. On the mother’s account, at least, the marital relationship ended in 2012, at which time X was about 12 months of age.
On the father’s account, whilst the relationship ended finally in December 2016, it seems it was attended by a number of separations. During those separations, it appears that X spent time with her father in her mother’s presence, although there were also relatively short periods of time during which X did not see her father at all.

I accept that, in the period from about December 2016 until Orders were made on 24 October 2018, X spent regular and frequent time with her father, albeit for the main part in her mother’s presence. I also accept, though, that it is likely that there were some limited occasions on which X spent time alone with her father when her mother was at work.
I accept that, whilst the Orders made on 24 October 2018 record that there was no appearance by or on behalf of the mother, this was because she had been taken by ambulance to the hospital from the Court that day after becoming distressed whilst attending on the Legal Aid Queensland duty lawyer. I also accept that it appears that Judge Coates was not made aware of these events before his Honour pronounced the Orders that were pronounced that day.
Such circumstances put into context the mother’s submission and explanation of the manner in which she has regarded the Orders made on 24 October 2018 as being unfair.
The Orders made that day provided, amongst other things, that X live with her mother and spend time with her father on an unsupervised basis every alternate weekend (from after school Friday until 6.30 pm Sunday) and for two weeks on and two weeks off during the school holidays after the end of 2018. The Orders also provided that, for all changeovers which did not occur at school, the father collect and return X from her mother’s residence.
Judge Coates also made an order restraining X from leaving the Commonwealth of Australia and restraining each parent from removing or attempting to remove or causing or permitting X to be removed from the Commonwealth of Australia.
I accept that, despite the terms of the October 2018 Order, X’s time with her father between then and the Father’s Day weekend in late September 2020 always occurred in her mother’s presence. Whilst it appears that such time was regular and frequent, it always involved the mother: for example, the father, the mother and X would go to dinner together; he would spend time with X at her mother’s house; the three of them, seemingly, went bike riding and visited parks together.
That the mother had refused to facilitate X spending time with her father unless she, the mother, was present and unless it occurred at times she nominated was noted by Registrar Brookes in an Order made 21 June 2019. The Order the Registrar made on 10 September 2019 also noted that the father was spending time with X when the mother permitted, and only in her presence.
I accept that, on 14 November 2019, Senior Registrar Spink ordered, amongst other things, that the mother be restrained from collecting X from school on days when she was to spend time with her father, pursuant to the terms of the October 2018 Orders. The Senior Registrar also restrained the mother from attending X’s school during the time the father was to collect her from there for the purpose of her spending time with him.
I accept that, on the Friday before the Father’s Day weekend in 2020, the father collected X from school without telling the mother of his intention to do so. I think it much more likely than not that he acted as he did because of the mother’s previous actions. I accept that once X was in his care, the father informed the mother of this fact, and that he was taking her away to spend the Father’s Day weekend with him and her older half-siblings. I accept as likely that the father’s actions angered the mother and worried her. I accept that it seems she took to Facebook to alert others to the fact that X was in her father’s care and that she asserted there that, in essence, he had kidnapped her or certainly taken her, without permission, from the school. I accept, on the evidence before me, that the mother did not appear to tell those with whom she communicated via Facebook of the existence of the October 2018 Order – which, of course, enabled X to spend time with her father on an unsupervised basis each alternate weekend. I accept that the father allowed X to communicate with her mother frequently over the weekend and that he returned her to her mother’s care on the Sunday afternoon of that weekend.
I accept that X subsequently spent unsupervised time with her father on alternate weekends thereafter until the start of the school holidays at the end of Term 4 in 2020, when she commenced spending alternating weeks in the care of each of her parents. I also accept that the father, the mother and X all spent time together on Christmas Day 2020.
I accept that X has continued to spend alternate weeks in the care of each of her parents since the school holidays ended in late January 2021. That is, I accept that X has now lived in an alternate-week parenting regime since about mid-December 2020.
I accept the mother’s evidence that, from the first unsupervised time X spent with her father on the weekend of Father’s Day 2020 until the present, X has not said anything to her to allege that her father has done anything inappropriate to her during their time together. I also accept that X has told each of her parents that she wanted to spend week-about time with them.
Whilst the mother said that she had agreed to X spending such time with her father since about mid-December 2020 because, in essence, he forced her to agree to the same, I think it much more likely than not that the mother (who I accept is a caring mother) heard what her daughter said and wanted and determined to facilitate the same. Her evidence when cross-examined included that she did not want X to feel bad and that was why she let her go to spend that time with her father.
The reality is that, whilst the mother’s evidence also included that she had told X “No” when her daughter raised this with her, she has in fact facilitated X living in a week-about parenting regime since mid-December 2020, despite the existence of the October 2018 Orders.
Further, I note that, when Ms B spoke with the mother during interview for the October 2020 Family Report about the terms of the 2018 Orders (and that they provided for X to have unsupervised time with her father from Friday afternoon until Sunday afternoon), the mother told her that she was not going to allow that to happen as she did not trust the Australian legal system, that the legal system could not force X to go and that the contact was up to X. The latter comment, in particular, seems to me to suggest that, having heard X tell her that she wished to spend week-about time with each of her parents, the mother, in essence, has facilitated the same.
I also accept the mother’s evidence that she knows that X enjoys the week- about parenting regime.
I divert to emphasise my view that the mother’s comment to Ms B that she does not trust the Australian legal system needs to be assessed in the context of that which occurred on 24 October 2018 – to which I have already made reference.
Whilst Ms B opined in the updated Family Report (dated 30 October 2020) that it was evident that the mother would never abide Court orders, the reality is that the mother has – at least since the Father’s Day weekend 2020 – abided the October 2018 Orders. The reality is that she did so until the start of the Term 4 2020 school holidays and, then, absent specific ordered provision for X to spend week-about time with her parents, has facilitated the same. With all of this in mind, I accept the mother’s evidence to the effect that, if orders are made for the current parenting regime to continue and for X to live with her parents in an equal-time week-about parenting regime, she will comply with such orders.
I also note, though, her comments that she will have no choice: comments I accept as consistent with her view that it is not for X at her age to, in essence, determine her own living arrangements, but for her parents as adults to do this; comments which are also, I consider, consistent with the mother’s assertions that the father cannot practically care for X and that it is in their daughter’s best interests to live primarily with her and spend alternate weekends and half of the school holidays with her father.
Whilst the mother submitted that she did not accept the evidence provided by Ms B and Dr C, neither were required for cross-examination. I generally accept the evidence given by each of them unless indicated otherwise.
Each of X’s parents now seek parenting orders to regulate her future parenting arrangements. Her mother proposes that X live with her and spend time with her father each alternate weekend (from Friday afternoon until Sunday afternoon) and for alternating weeks during the school holiday period. X’s mother also proposes that there be an order for equal shared parental responsibility (other than in relation to the issue of any change to X’s living arrangements that may make it significantly more difficult for X to spend time with either parent). The mother also seeks that X’s name be removed from the Watchlist and that the injunctions restraining her removal from the Commonwealth of Australia be removed, so as to facilitate her travelling overseas with her mother, including to Country D to spend time with members of X’s extended maternal family – in particular, X’s maternal grandfather who is said to be unwell.
X’s father proposes that X continue to live with each of her parents in a week-about parenting regime and that this regime simply continue through the school holiday periods. He proposes that X’s name remain on the Watchlist, and at least, initially, that neither parent be permitted to travel internationally with her until she is 13 years of age. His position is based upon his asserted concern that, if the mother is permitted to take X out of the Commonwealth of Australia – and, in particular, to Country D (which is not a signatory to the Convention on the Civil Aspects of International Child Abduction, known colloquially as the Hague Convention) – X may not be returned to the Commonwealth of Australia.
Both of X’s parents either propose, or do not oppose, orders being made, in fairly standard terms, to facilitate each of them receiving information about X and the like. Both agree that, whatever other orders are made, X should spend time with her father for the weekend on which Father’s Day occurs and, similarly, should spend time with her mother on the weekend on which Mother’s Day occurs. Both agree that those changeovers which do not occur at school should occur at the mother’s home, with the father to collect X from there at the commencement of such time and return her there at the conclusion of the same. Both agree that X should be at liberty to call or FaceTime the parent with whom she is not then spending time, or living, at all reasonable times, and that each of them would facilitate this communication.
In these proceedings, being proceedings for a parenting order under The Family Law Act 1975 (Cth), in relation to X I may, subject to s 61DA, which imposes a presumption of equal shared parental responsibility, and s 65DAB, which does not apply in the present case, and Division 6 of Part 7 of the Act, make such parenting orders as I think proper.[1] I must have regard to the objects of Part 7 of the Act and the principles which underpin those objects: section 60B of the Act.
[1]See s 65D of the Act.
In deciding whether to make a parenting order, I must regard X’s best interests as the paramount consideration.[2] The matters to which regard must be had in determining those parenting orders which are in X’s best interests are found in s 60CC of the Act. The requirement to consider each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[3] Any failure to mention a consideration specifically, in these Reasons delivered orally and ex tempore, does not mean that it has been overlooked in my deliberations about those orders which are in X’s best interests. Rather, I have considered all of the relevant considerations in arriving at my conclusions about those orders which are in her best interests.
[2]See s 60CA and s 65AA of the Act.
[3]See the comments of the Full Court in Banks & Banks (2015) FLC 93-637: whilst the same were said in the context of the consideration of interim proceedings, I consider there to be no reason why the underlying principles espoused do not apply to the final disposition of proceedings.
The Family Law Act1975 (Cth) does not define the term “meaningful relationship”, nor does it prescribe criteria on which the Court should rely to assess how X’s parents have, or should have, a meaningful involvement in her life.
In McCall & Clark,[4] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in X’s best interests, orders can be framed to ensure that she has a meaningful relationship with both parents. Thus, I must consider and determine whether there is a benefit to X in having a meaningful relationship with each of her parents, such finding not being dependant, simply, on a lack of danger of physical or psychological harm arising from time and or communication with each of her parents.[5] If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect X from physical or psychological harm.
[4](2009) FLC 93-405.
[5]See, for example, Vigano & Desmond (2012) FLC 93-509 at [128] and [129].
I accept Ms B’S assessment (in her October 2018 report) that X, who appeared to be a well-adjusted child, then with no knowledge of the parental issues, had developed meaningful relationships with each of her parents; and her assessment and opinion that such relationships could continue into the future despite the breakdown of the parental relationship. I also accept Ms B’S assessment (in the October 2020 report) that X continued to be a well-adjusted girl who was then aware of the parental conflict and seemed to understand that her spending time with her father caused her mother some upset.
I accept that X enjoys spending time with each of her parents. I accept that each parent loves X. I also accept Ms B’S evidence that, on the two occasions she observed X’s interactions with each of her parents and her transitions between them, X did not display any anxiety or behavioural concerns.
I am satisfied, therefore, that X would benefit, indeed, from the opportunity to continue to have and maintain a meaningful relationship with each of her parents.
I must also consider the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse or neglect or family violence. I must also accord to this consideration greater weight than the first of the primary considerations.
I consider that, other than the mother’s reports to persons, including Ms B, there is no independent evidence to suggest the father has used illicit drugs in the past or that he and X’s paternal grandfather have used illicit drugs. On the evidence before me, I am not persuaded that it is likely that he has exposed X to the same.
The mother’s affidavit, filed 27 June 2019 (but sworn or affirmed on 29 March 2019), includes a number of allegations about the father’s asserted behaviour. These include that he smoked cigarettes near X when she was a baby and refused to move away; that he failed to ensure that her room was appropriate when she was brought home; that, when she was a baby, he left her on the floor whilst she, the mother, was making dinner; and that, on 11 June 2012, he took X and his two other children out with him, leaving her (the mother) at home, and did not ask her to go with them and refused her request to leave X with her.
Even if the father behaved as the mother alleged in this affidavit, his described behaviours are not such to persuade me to conclude that X would be at an unacceptable risk of harm if she were to continue to spend unsupervised time with him: a fact the mother implicitly accepts, given her proposal that X spend unsupervised alternate weekend time with him, and time for half of each holiday periods, taken in period of a week’s duration.
I note, as an aside, the mother’s acceptance that, during the interaction on 11 June 2012, she hit her own head against the wall of the house, and her description that she acted in that manner as she was frustrated and was attempting to stop the father taking X from the house. I also accept that it appears that police attended at the home on that occasion.
It is also necessary to consider, briefly, the more serious allegations made by the mother against the father. I do so in the context that, despite them, the evidence clearly establishes that the mother regularly permitted X’s father to spend time with X only in her presence, despite the existence of the October 2018 Order, which provided her the opportunity to be absent from their time together. It appears, therefore, that, despite such order, the mother actively insisted that the father spend time with X at her home and under her supervision. As I have already recounted, it is also clear that X spent time with her parents together more recently on Christmas Day 2020.
I turn to consider the allegation that the father strangled the mother on 9 November 2016. I accept that it appears on the evidence that the mother attended on, or at least communicated with, police in November 2016 in relation to the asserted event, but decided not to make a formal report about the same. I consider that the evidence establishes that this position changed after the father obtained a Domestic Violence Order against her and that, after this occurred, the mother returned to police to make and give a formal statement.
In her statement made to police on 6 December 2016, the mother, relevantly, alleged (at paragraphs 23 to 27) that, after the father jumped onto the bed they had been sharing that night following a discussion about money, he put his hands on her shoulders and shook her; then put his arms around her neck and shook her neck for about four seconds, during which his eyes were very big. She said he did not grab her very tight; his grip was gentle, but he shook her; she could still breathe okay, but he did not say anything whilst this was happening and then stopped and went outside.
However, when the mother spoke to Dr C on 24 July 2019, she told him, amongst other things, the following about this asserted event: that the father had got out of bed, kicked it, then jumped onto the bed and strangled her; grabbed her by the throat straightaway; and “I couldn’t breathe for a few seconds”.
The inconsistency in the mother’s recounting vis-a-vis the statement given to police on 6 December 2016 and the account provided to Dr C on 24 July 2019 is such that I am not persuaded, on the evidence before me, that it is likely that the father strangled the mother on 6 November 2016 in the manner alleged by her when she spoke to Dr C on 24 July 2019.
I turn now to consider the allegation that the father has previously poisoned the mother, using fertiliser. I consider that the only evidence in relation to this allegation appears to be that the mother has drawn a conclusion from the facts that the father gave her a house plant and fertilised the same and that she later felt unwell. It appears to me that she has drawn a conclusion, from her account that the father and X drank from different glasses to her and her feeling unwell at around the same time, to form a view that the father had acted to poison her.
It also appears that her assessment, first, was only that the father had acted to poison only her; but the suggestion has later and subsequently developed to be one to include that he attempted to poison X as well, because the mother thought the father had poisoned the water in a water bottle she kept near her bed, from which X could have drunk.

I accept the submission that there is no credible evidence to support an assertion that the father has previously tried to poison either the mother or X. I am not persuaded, on the evidence before me, that it is more likely than not that the father has acted in that alleged manner.
I turn now to consider the allegation that the father has previously sexually abused X. I do so in circumstances where there is no evidence in either of the mother’s affidavits, filed in the Court, to raise such an assertion. Further, such allegation was not mentioned to Ms B on the two occasions on which the mother spoke to her (for the preparation of the 2018 and 2020 Family Reports respectively), nor was it mentioned to Dr C when he interviewed the mother.
I note that a reference or mention is made in medical notes dated 20 February 2018 (which form part of Exhibit 1 in the proceedings) that, when the mother took X to see the doctor on that occasion, she recounted that, two years ago, she noticed redness of the “fenny” (to quote the records) and a bit of blood on the undies. The notes include that the mother was concerned and wanted to know whether X was a virgin or had been assaulted. The notes also record that X refused any examination.
There is no evidence before me to suggest that the mother made any complaint to police, either at or around the date of the appointment in February 2018, or two years prior to this day, about her reported observation or her asserted view that the father had sexually abused X.
As I have already noted, neither of the mother’s affidavits filed in these proceedings (either in early to mid-2019 or on 5 August 2020) contain any reference to this attendance upon the doctor or the reported observation two years prior to the February 2018 appointment. This occurred despite the evidence also establishing that the mother told a Ms F (a psychologist from G Clinic upon whom she attended between 2 December 2019 and 5 August 2020) in a session on 10 June 2020 that she was concerned about past sexual abuse between the father and X – about which, according to Ms F’s notes, she did not go into any detail. That is, despite making such an assertion to Ms F on 10 June 2020, the same does not form part of the mother’s August 2020 affidavit.
I also note that, when cross‑examined, the mother made more specific allegations about behaviour of an abusive nature that the father may have engaged in toward X. There is no evidence at all, other than the mother’s response in cross‑examination, to support such allegation or the allegations recorded in the medical note dated 20 February 2018 or in Ms F’s note of an appointment on 10 June 2020.
I also record that, when the mother was cross-examined about how, in essence, she could make an allegation that the father had previously sexually abused X and then positively suggest that her daughter spend unsupervised weekend and half of the holidays time with him, she pointed out that the asserted concerns arose when X was four years of age and she is now nearly 10 years of age, and able to speak out.
There is, I consider, no credible evidence to support an allegation that the father has in any way sexually abused X.
I consider there is simply no evidence upon which to base any conclusion that the father has, at any time, sexually abused his daughter or been violent directly toward her or acted in any way to deliberately harm her.
Insofar as there may be concerns raised in relation to the mother’s functioning, I note that, whilst Dr C’s report contains a series of opinions based on findings of fact about the matters I have just considered, I consider that the proposal by the father and the Independent Children’s Lawyer that X’s best interests will be met by her continuing to live with her mother for equal time to that during which she should live with her father negatives the necessity that I consider the same in any further detail.
I also record that, whilst the mother referred in her submissions to “mothers who have killed or harmed their children following marital separation”, she assured me that, in making such reference, she was not suggesting that she would act to harm herself (and, I infer X) if she was unsuccessful in her attempts to persuade the Court that the orders she seeks are the orders that are in X’s best interests. I also note, of course, that – despite what I accept as highly likely to be a sense of grief and loss that she has felt when X has not been in her care – the mother has, without it being mandated by Court order, facilitated X spending alternate weeks in her father’s care since mid-December 2020.
I accept that X has told both of her parents that she wants to live in an equal-time week-about parenting regime. I accept that it is much more likely than not, given the mother’s evidence about the absence of complaint to her by X since September 2020 (when she started to spend unsupervised time with her father, absent her mother’s presence) and since about mid-December 2020 (when she has started to live with each of her parents in a week-about parenting regime), that X has enjoyed living with each of her parents in the latter manner.
I certainly accept that each of X’s parents love her, and I accept, as she recounted to Ms B, that X loves them. I also accept, as Ms B reports, that X has said that she thought spending equal time with her parents would be good and that this would allow her to have a relationship with both of her parents.
I am not persuaded, on the evidence before me, that it is more likely than not that X would become a poor citizen of the world if she continued to live in an equal-time week-about parenting arrangement with her parents. I consider that such arrangement would continue to afford her the opportunity to experience and benefit from her mother’s parenting of her and will also enable her to experience being parented by her father. Whilst the parenting regimes implemented by each of her parents may well, in fact, involve very different approaches to aspects of parenting, I consider it more – rather than less – likely that X will gain benefit from exposure to the manner in which each of her parents approaches their respective parenting of her.
I consider that a continuation of the week-about parenting regime would also afford X the opportunity to continue to spend time with her paternal grandparents. I do not regard the fact that she may well have been with her paternal grandmother when her mother has called to speak with her on the telephone to indicate that the father is not capable of looking after X or meeting her needs himself.
I consider the nature and content of X’s half-brother’s text communication to the father about the mother to be such as to provide the mother with a reasonable basis for her expressed concern that exposure to the father’s parenting approach or character may run the risk of X becoming a disrespectful and hating member of the community, rather than one who embraces love and respect as ideals. However, I am also certain that X’s father will not have failed to take into account my comments about the highly offensive nature of that text communication – particularly given the potential impact on X and her self‑esteem should she be exposed, in the future, to comments of such a nature.
I note that the mother has been critical of the manner in which X’s father has approached his obligation to support X financially. It appears to be an accepted fact in the proceedings that he has not paid child support for X to her mother, although he has made financial contribution to X’s school fees. His evidence certainly was to the effect that he had contributed financially to X’s support in that regard – and clearly, and perhaps obviously, he has no doubt met costs associated with her support when she is with him.
Whilst the mother relied on documents, included in Exhibit 1, from X’s previous school which seemed to me to establish that, on occasion, the father was late at times in meeting his contribution to X’s school fees, such documents do not seem to me to establish that he has failed to pay the same.
Whilst the mother clearly disagrees, I am not persuaded that the father’s delay in paying his contribution to X’s school fees has meant that X was somehow disadvantaged or treated differently at the school at which she previously attended.
Section 66E of the Family Law Act 1975 (Cth) provides that, irrespective of whether an application for administrative assessment of child support has been made in relation to X or not, the Court must not make a child maintenance order if an application could properly be made under the Child Support (Assessment) Act 1989 (Cth) for a parent to be assessed in respect of the contribution to meeting X’s financial support. Thus, whilst I cannot make such an order today, I also specifically note that, during his cross-examination, the father’s evidence was that he would meet all of X’s fees for her to attend her current school for this year. No doubt such payment would assist the mother as it would alleviate the impost of school fees on her financial resources. Whilst made, I have little doubt in concluding that the father’s offer to meet all of X’s school fees this year would not be seen by him as extinguishing his parental obligation to financially support X – as he has no doubt done since she started to live with him on an alternate week basis in mid-December 2020.
As I have already noted on a number of occasions, X has been living with each of her parents in a week- about parenting regime since mid-December 2020. Whilst that change represented a significant change from her previous parenting regime, there is nothing in the evidence before me to suggest that such change has been deleterious to her or her functioning. Rather, given that both parents’ evidence includes that she has told them that she wants to live in such a parenting regime, I think it more likely than not that, if a change was now made to return X to spending only weekend and holiday time with her father, it would be likely that she may suffer some upset – even if the same was transitory.
I accept that each parent has had, at various times, a Domestic Violence Order against the other. I note that, when interviewed by Ms B in 2018, the father told her that he had never been violent toward the mother, but there was at that time a two year cross-Protection Order in place. I accept that, on 31 October 2017, the Magistrates Court made an Order by consent on a without-admissions basis that required the father to be of good behaviour toward the mother and not commit domestic violence toward her. I also accept that it appears that that Order was in force until either 30 or 31 October 2020.
I also accept, though, that despite the various Protection Orders in existence at various times between these parents, the mother has, as I have already remarked, previously insisted that the father spend time with X under her supervision and in her presence – including when the October 2018 Orders were made in terms which would have enabled her not to be present during such times.
I accept that it is always preferable to make an order which is the least likely to lead to the institution of further proceedings in relation to X. However, the history of the parenting regime in this particular matter and the parental interactions – at least until the September 2020 Father’s Day weekend – persuades me that it is appropriate to make an order according to the father liberty to apply in the event that the mother fails to facilitate X spending time with him in the manner which will be ordered.
When making a parenting order I am bound to apply a presumption that it is in X’s best interests that her parents have equal shared parental responsibility for her. Given each of the parents’ evidence about the asserted actions of the other and the fact that Protection Orders have been made at previous times in the past, I consider that the presumption does not apply in this matter. However, both parents seek that the Court make an order for equal shared parental responsibility, albeit that the mother seeks to remove reference to the “living arrangements” aspect of the definition of “major long-term issues” as set out in s 4 of the Act.
I accept that both of X’s parents consider it to be in her best interests that each of them are involved in making decisions about, at least, all of the major long-term issues other than that which touches upon living arrangements; and that both consider it to be in X’s best interests that such decisions are made jointly.
Given the history of the matter and, in particular, the history of the manner in which X has spent time with her father and the mother’s expressed attitude about X spending time with her father prior to the change in position from the end of September 2020 onwards, I am not persuaded that it is in X’s best interests to limit the parents’ exercise of parental responsibility in the manner sought by her mother and I decline to do so.
Despite the difficulties in the parental history, I consider it more likely than not that these parents are capable of discharging the obligation, which would be cast upon them if an order is made for them to have equal shared parental responsibility, to make decisions jointly.[6] They have been able to communicate sufficiently well to make arrangements to spend time together with X on Christmas Day 2020; they have implemented an equal-time parenting regime since mid-December 2020, despite the absence of orders imposing the same. I consider, therefore, it is in X’s best interests that her parents have equal shared parental responsibility for the major long-term issues relating to her.
[6]See s 65DAC(2) of the Act.
Given that I intend to make an order that X’s parents have equal shared parental responsibility for the major long-term issues relating to her, I am required by the Act to consider whether it is in X’s best interests, and reasonably practicable, for her to spend equal time with each parent.
I turn to further consideration and discussion of the living and time orders and determination of those orders which are in X’s best interests.
I have, as I have already remarked, no hesitation in accepting that X will benefit from the opportunity to have, and continue to develop, meaningful relationships with each of her parents.
I am not persuaded, on the evidence before me, that X will be at a risk of harm if her time with her father continues on an unsupervised basis and continues to occur in the week-about parenting regime in which she has lived since mid-December 2020. In arriving at this conclusion, I have accepted Ms B’S assessment and opinions in this respect, as outlined in her reports of October 2018 and October 2020 respectively.
Whilst I note Dr C’s evidence and accept the same, I am not persuaded that X will be at a risk of harm if she continues to live with her mother in a week- about parenting regime: I again remark and record that X’s father clearly does not consider this to be the case either, given the orders he proposes as being in X’s best interests. I also accept, generally, the thrust of the submissions made by Counsel for the father to the effect that living in a week-about time arrangement with the father may well also provide X with something of a buffer.
Each parent is, I consider, capable of ensuring that X’s needs are met- even if there are differences in the manner in which each approaches this obligation. As already noted, I have accepted that X herself seeks out an equal-time week- about parenting regime and I accord weight to this view, albeit that I also accept the mother’s contention that, at her age, X’s view or wishes are certainly not determinative of the parenting regime that is thought and found to be in her best interests.
I consider, though, that an equal-time week-about parenting regime is one which will continue to enable X to have a meaningful relationship with each parent, and to continue to have and develop good and meaningful relationships with members of her extended paternal and maternal families. In arriving at this conclusion I have also had regard to, and accepted, Ms B’S more recent assessment of X (albeit at a time before these parents decided to implement an equal-time week-about parenting regime) as being comfortable in the care of each of her parents, as enjoying her time with each of them, as transitioning well between them without overt anxiety or behavioural concerns; and Ms B’S recommendation that, on the proviso that the mother accepts X’s need to have a meaningful relationship with her father and does not interfere in the same, X should live with her parents in an equal-time parenting arrangement.
In arriving at my conclusion that it is in X’s best interests and reasonably practicable that she continue to spend equal time and/or live for equal periods of time in a week-about parenting regime, I have also taken into account that: the parents have implemented this regime since mid-December 2020; X has told each of them that she wants to live equally with each of them; X has, on the mother’s evidence, made no complaint about the father’s behaviours toward her during her time with him; the parents live proximate enough to each other to ensure that any practical issues which might arise can be dealt with (although neither appeared to me to suggest, in the evidence before the Court, that any such issues have really arisen since X started to live in the week-about parenting regime in about mid-December 2020); and, that both parents live close enough to X’s school to be able practically to facilitate her continued attendance there.
Consequently, and despite the mother’s submissions to which I have had particular regard – including her concerns that living in two households may be emotionally unsettling and destabilising for X – I am persuaded that it is in X’s best interest that she continue to live in an equal-time week-about parenting regime and that, unless otherwise agreed by her parents in writing, such regime should simply continue through the school holiday periods.
I turn now to consider the issues of overseas travel, the presence (or otherwise) of X’s name on the Watchlist and the issue of continuing the restraints on X’s removal from Australia.
The mother’s evidence included that X had last visited family in Country D in March 2018. She submitted to the Court that there was no risk to X in permitting her to leave Australia for holiday travel. She submitted that she had previously removed X from the Commonwealth of Australia and returned to this country. Her submissions included that she has family in Australia and that she had, in essence, no intention of moving to live in Country D, as she had previously moved from Country D to live in Australia.
The father’s position is that orders restraining X’s removal from Australia should remain in force. His continued opposition to her being able to travel internationally, at this point in time, is, it seems, based upon his concern that, if permitted to remove X from the Commonwealth of Australia, the mother would not return her to this country. His concerns arise, in particular, as I understood his evidence, in relation to Country D, given that it is not a signatory to the Convention on the Civil Aspects of International Child Abduction.
The father also relied upon his evidence that the mother has an extensive network of family and friends living in Country D, although she also has both her mother and sister in Queensland. His evidence included that the mother had previously – albeit, it seemed to follow from his cross-examination, some time ago – threatened to take X back to Country D. He also said in his evidence that the mother has an extensive network of friends who live in the United States of America: his concern is, in summary, that given that the mother’s only ties to Australia are, at least from his perspective, that her mother and sister live in this country, she might, if able to remove X from Australia, take her to live in Country D permanently, or for an extended period of time.

Given his concerns, his position was that X should not be permitted to travel internationally with either parent until she is 13 years of age. He appeared to re-iterate that position when cross-examined and explained – as least as I understood his evidence – that, in effect, at that age, he thought X would be old enough to communicate with him any opposition she may have to being kept in a country not of her choosing, or a country that is not Australia. The father also sought to restrain the mother from taking X to any country that is not a signatory to the Convention.
The Independent Children’s Lawyer’s position, initially, was to oppose X being permitted to leave the Commonwealth of Australia. Whilst this was initially indefinitely, after I raised the prospect of a five year restriction, it was accepted that the same may be appropriate. Counsel for the Independent Children’s Lawyer also made submissions to the effect that, whilst the father’s evidence related to X travelling once she was 13 years of age, the Independent Children’s Lawyer was not particularly persuaded that at that age, her being overseas in a country that is not a signatory to the Convention would be likely to assist, practically, in her being returned to Australia.
The mother’s submissions about X’s right to travel overseas and have the opportunity to obtain benefits from the same were, I consider, well thought out and made. She submitted, amongst other things, that the Court should remove the restriction currently in place and permit X to be able to enact her right to travel out of Australia.
Whilst I accept that it is the right of a citizen to travel away from the Commonwealth of Australia, in a parenting case, a child’s best interests are the primary consideration.
Here, unfortunately, I retain concerns that there remains a risk that, if X were able to travel outside of Australia with her mother (including to Country D), she may not be returned to this country.
Whilst the mother proposed that X spend alternate weekends and half of the holidays with, and in the care of, her father, she also raised – for the first time in her evidence – when cross-examined, the allegation that X had been previously sexually abused by her father. That she did so and that she maintained, despite the implementation of the week-about parenting regime since December 2020, that he was unable properly to care for X; and that she submitted that, after the last 10 years, it was now time for her to move on; and that she clearly regards the father as a person who is deficient in character (such that, by living with him an equal-time parenting regime, X will grow to be an adult who demonstrates hate, who does not have a good heart, and who would display an absence of appropriate respect for others); and that Country D is not a signatory to the Convention (such that, if X was retained there, the father would have to engage with that country’s legal system without the assistance that would be accorded to him if Country D was, in fact, a signatory to the Convention), have all combined to persuade me that it is not currently in X’s best interests to permit her to travel out of the Commonwealth of Australia and that it is currently in her best interests that both of her parents are restrained, unless they otherwise agree in writing, from taking her out of Australia until she is 15 years of age. After that time, she will, as her mother identifies, have the right to travel away from Australia to experience all that the world offers.
To the extent that any other aspects of the parenting orders to be made are not the subject of the particular discussion in these Reasons expressed orally this afternoon, I have concluded that the same are in X’s best interests because such orders will, for example:
a)enable her to spend time with each of her parents at, or around, Christmas Day of each year; and
b)enable both parents to be kept informed about her, and her progress; and
c)afford her the opportunity to maintain communication with each of her parents in the time between face-to-face interactions; and
d)maximise the prospects that she remains attending to the school she has just started to attend this year and is afforded some stability in her living arrangements; and
e)enable her school to be aware of the parenting arrangements which these orders will put into place and eliminate the possibility of confusion about the same; and
f)ensure, as far as possible, that she is protected from the harm which may be caused to her as a consequence of exposure to derogatory comments about each of her parents.
In this last respect I again record my particular assessment and condemnation of the highly offensive nature of a text sent by X’s half-brother to her father. Whatever his personal views of X’s mother, he should, as an adult, appreciate the very real possibility that X might come to learn of his extremely derogatory and hurtful comments about her mother; he should also appreciate that with the freedoms of adulthood comes the responsibility of self-restraint.
I am also hopeful that the orders which impose positive obligations on each of the parents to ensure that X is not exposed to comments derogatory of each of them – whether such comments relate to matters of heritage, cultural background or mental health – may assuage the mother’s concern, as expressed to Ms B during interview for the October 2020 report, that X may hear bad things about her when she’s in her father’s care.
To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in X’s best interests.
For the reasons expressed orally today, I consider that the orders set out in the Minute of Order, which I will sign and place with the papers (and which will be included in the settled copy of the Reasons when the same are provided to the parties and which will be provided to the parties today) are those orders which, in the reality of X’s circumstances, are now in her best interests and proper.
For those Reasons then, I make orders in terms of the Minute, which I sign and place with the papers.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 February 2021.

Associate:

Date: 23 February 2021

[2021] FamCA 87

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Family Law

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Injunction

Jurisdiction

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