Emery & Dustin
[2024] FedCFamC2F 80
•29 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Emery & Dustin [2024] FedCFamC2F 80
File number(s): SYC 6249 of 2021 Judgment of: JUDGE BECKHOUSE Date of judgment: 29 January 2024 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility –– Need to protect the child from parental conflict – With whom a child lives – With whom a child spends time Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAC
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Mazorski & Albright (2007) 37 Fam LR 518 Division: Division 2 Family Law Number of paragraphs: 156 Date of last submission/s: 30 August 2023 Date of hearing: 28, 29 and 30 August 2023 Place: Sydney Counsel for the Applicant: Mr Reynolds with Ms Moussa Solicitor for the Applicant: MLH Lawyers Counsel for the Respondent: Ms Reid For the Respondent: Self-represented Litigant Counsel for the Independent Children's Lawyer: Mr Keserovic Solicitor for the Independent Children's Lawyer: Blumberg Family Lawyers ORDERS
SYC 6249 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EMERY
Applicant
AND: MR DUSTIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
29 JANUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
Parental responsibility
1.The Mother shall have sole parental responsibility for the child, X born in 2018 (“the child”), and in the exercise of sole parental responsibility, the Mother shall:
(a)Notify the Father of any proposed decision in relation to the long-term care of the child in writing before a final decision is made, except in the case of an emergency;
(b)Take into consideration any views expressed by the Father in respect of such proposed decision provided; and
(c)Advise the Father of the final decision as soon as reasonably practicable.
2.The child shall live with the Mother.
Spend time with arrangements
3.The child shall spend time with the Father during school terms each alternate weekend from after school on Thursday to before school the following Monday, commencing each school term on the second weekend after the first day of school.
4.The child shall spend time with the Father during school holidays:
(a)In each Term 1 and Term 3 school holiday period, from after school on the last day of term, until the start of school on the first day of the following term.
(b)In each Term 4 holiday period, for half the holidays, being the first half in odd numbered years and the second half in even-numbered years.
5.If the child is not otherwise spending time with the Father pursuant to these Orders, on the weekend of Father’s Day from after school on Friday to before school the following Monday.
6.If the weekend of Mother’s Day falls on a weekend when the Mother does not have the child in her care, the child shall remain in the care of the Mother for the weekend of Mother’s Day, and the child shall instead spend the weekend following the Mother’s Day in the care of the Father from after school on Friday to before school the following Monday.
Extracurricular activities
7.Before either parent enrols, registers, or commits the child to attending a regular activity on a day when he is, pursuant to these Orders, in the other parent’s care, they shall:
(a)Notify the other parent in writing of any proposed activity at least fourteen (14) days before the activity commences; and
(b)Take into consideration any views expressed by the other parent in respect of such proposed activity; and
(c)Advise the other parent of the final decision as soon as reasonably practicable; and
(d)If the child is ultimately enrolled or registered in an activity, provide the other parent with all the details pertaining to the activity, so that the other parent has the opportunity to facilitate the child’s attendance.
8.Each parent shall notify the other within twenty-four (24) hours of receiving notice of any activity or other commitment for which the child’s attendance would be reasonably required or expected, or the child might like to attend, during the time the child is to spend with the other parent, including:
(a)Providing particulars of the activity, including the nature of the activity; and
(b)Any details which would allow the other parent to facilitate (if the other parent so chooses) the child’s involvement in that activity.
9.Neither parent is obliged to facilitate the child’s participation in any activities they are notified of pursuant to Order 7 and/or 8.
International travel
10.The child, X (male) born in 2018, be removed from the Family Law Watchlist at all points of international departure.
11.Subject to Order 12 below, the parties are restrained from removing the child from the Commonwealth of Australia, unless in accordance with a written agreement between them.
12.In the event that either party proposes that the child travels outside the Commonwealth of Australia for the purposes of participating in a school or organised extracurricular activity, then the parent proposing the child’s attendance shall notify the other parent no less than sixty (60) days prior to the departure date of such proposed trip, and shall provide to the other parent with:
(a)Particulars of the trip, including the proposed itinerary and proposed period of travel;
(b)At least ten (10) days before departure, a final itinerary including contact telephone numbers and addresses of where the child will be staying; and
(c)Copies of return airline booking and details of flights once booked (and at least ten (10) days before departure).
13.Within fourteen (14) days of the date of these Orders, the parties ensure that any passport of the child, X born in 2018, in their possession and control is deposited with the Registry Manager at the Sydney Registry, and the Registry Manager must hold any Australian passport so deposited in safe custody until further Order.
Changeovers
14.Unless otherwise agreed between the parties, changeovers that occur on a school day shall occur at the child’s school, and where changeovers do not occur on a school day, they shall occur at the house of the party with whom the child is next spending time.
15.During changeovers, each parent shall ensure that:
(a)Other than for the purpose of changeover provided for in Order 14 above, neither parent shall attend the other parent’s home without the prior approval of that other parent;
(b)Each parent shall behave in a civil and courteous manner to the other parent and any other person or persons who may be present;
(c)Each parent shall conduct themselves in a child-focussed manner;
(d)Each parent shall limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other; and
(e)Neither parent shall discuss issues of any controversy between them.
School
16.The child shall remain enrolled and attend Suburb Q School for the duration of his primary schooling.
17.For the duration of his secondary schooling, at first instance, the parents shall enrol the child to attend C School, or such other private secondary school as agreed between the parties, provided that:
(a)Before enrolling the child to attend the school, the parents have agreed on arrangements for the payment of school fees and have agreed to be bound by that agreement;
(b)The child is accepted for enrolment at that school; and
(c)The time the child attends the school is to commence at the earliest calendar year in which he is accepted for enrolment.
18.In the event that the child is not accepted for enrolment at C School, or such other private secondary school as agreed between the parties, or the parties are unable to agree on arrangements for the payment of school fees, then the child shall attend his local public high school in the area in which he and the Mother are living for the duration of his secondary schooling.
General orders
19.Each parent shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other parent within forty‑eight (48) hours of any change to either their residential address or telephone number.
20.Each parent shall be permitted to communicate directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress, and this Order shall constitute sufficient authority for such communication.
21.Each parent is entitled to attend all school events and extracurricular activities for the child that a parent would ordinarily be invited to attend.
22.Each parent shall keep the other advised of the health of the child, including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
23.Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with the parents and siblings by electronic means at any reasonable time when they are in the other parent’s care, and both parents shall do all things necessary to facilitate the child communicating with the other parent and their siblings by electronic means on a regular basis.
24.The parents shall each download the application, “OurFamilyWizard”, and shall communicate with each other through “OurFamilyWizard”, except in the case of emergencies.
Restraints
25.Without admissions, each parent is restrained from:
(a)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship, in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(b)Discussing the proceedings or any allegations raised in these proceedings with the child, or permitting any other person to do so with their knowledge or in their presence;
(c)Permitting the child having access to any of the documents filed in these proceedings;
(d)Communicating any information intended for the other parent through the child; and
(e)Causing the child to be a medium in any way between their mother and their father.
Costs
26.Within thirty (30) days, each party shall pay to Legal Aid NSW half of the costs of the Independent Children’s Lawyers.
THE COURT NOTES THAT:
A.Orders 14 to 25 are made by consent.
B.The proceedings have been bifurcated, and the property proceedings remain listed for Directions on 29 January 2024 at 9.30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This matter concerns the parenting arrangements for X, who is a five-year-old boy. X is deeply loved by his parents but is embroiled in, and has been exposed to, their bitter parental conflict. His parents, the applicant mother, Ms Emery (“the mother”) and the respondent father, Mr Dustin (“the father”), disagree on how X’s best interests can be met.
The parties each conceded that X has been exposed to their parental conflict and sought to attribute blame for this solely on each other. As a result, they have both accepted that there is little prospect of them coparenting X given the toxic nature of their current relationship and their incapacity to communicate. For this reason, they each sought orders that X live with them and that they exercise sole parental responsibility for him.
Whilst both parties raised their respective concerns about each other’s past conduct, they agreed that X is not at an unacceptable risk of harm in either parent’s care arising from abuse, neglect, or family violence. This was also supported by psychologist, Ms D (“the family therapist”), who observed that X was not at risk of physical harm with either parent.
At the heart of this case is the father’s concern that the mother has not always involved him in decisions about X and his belief that she has not, and will not, encourage a relationship between himself and X. He was concerned that the mother has poor anger management responses and has behaved in a verbally and physically abusive manner both towards X and in his presence. He also argued that, as the mother had returned to full-time employment, he would be more “available” to care for X.
On the other hand, the mother argued that she has been the primary carer for X since his birth and that he has always been raised in the same household as his half-siblings. A change of this current arrangement would see X moving schools, leaving behind friendships, and limiting his time with his siblings. She further argued that he would be unsettled by a change of residence, a sentiment supported by the Single Expert, Dr E (“the single expert”).
I heard evidence over the course of a three-day contested final hearing. I was left with no doubt that X’s parents will each ensure that he receives adequate and proper parenting in their respective care. A more challenging consideration was the extent to which any orders of this Court can ensure that X grows up protected from the bitter parental conflict and having the benefit of a meaningful involvement of both of his parents.
This judgment sets out the reasons why I have ordered that X continue to live with the mother, who will exercise sole parental responsibility for long term decisions concerning X in consultation with the father. It also explains why I have ordered for X to spend significant time with the father in block periods to shield X from the parental conflict. I have also determined that, on balancing the competing considerations, it would not be in X’s best interest for orders to be made permitting him to travel internationally with either parent.
ISSUES IN CONTENTION
The parties agreed to the following matters:
(a)they are unable to communicate and foster a positive and productive coparenting relationship, and, therefore, an order for equal shared parental responsibility is not reasonably practicable;
(b)subsequently, there is a need to insulate X from the parental conflict; and
(c)neither party poses a physical risk to X’s safety.
The matters that remain in dispute are:
(a)who should exercise parental responsibility over X;
(b)whether X should live with the father or continue to live with the mother;
(c)the amount of time the parent with whom X does not live with spends with him; and
(d)whether the parents should be permitted to travel overseas with X.
At the final hearing, and to their credit, the parties and the Independent Children’s Lawyer (“ICL”) agreed to the following orders in relation to:
(a)changeovers, including location and the parties’ conduct;
(b)future schooling arrangements for X;
(c)general orders about communicating with each other and non-denigration orders; and
(d)the ICL’s costs be split between the parties.
EVIDENCE
Both parties were legally represented by counsel at the final hearing.
The mother relied on the following documents:
·Affidavit of Ms Emery filed 10 August 2023
·Affidavit of Ms D filed 10 August 2023 (“the family therapist”).
·The report of Dr E filed on 8 August 2023 (“the Expert Report”)
·Joint Tender Bundle filed on 24 August 2023
The mother was subjected to cross-examination and was assisted by an interpreter when required. She also called the family therapist, who provided family therapy to the parties from 14 November 2022 to 20 March 2023. The family therapist was also subjected to brief cross‑examination electronically.
The father relied on the following documents:
·Affidavit of Mr Dustin filed 27 July 2023
·Affidavit of Ms F filed 27 July 2023
·Affidavit of Ms G filed 27 July 2023
·Affidavit of Ms H filed 27 July 2023
The father was subjected to cross-examination, as was the father’s current partner, Ms H.
The ICL relied on the Expert Report.
I do not propose making any global findings with respect to credit. Both parties gave evidence from their own perspective. As a result, I have assessed the evidence they gave on particular issues and, where in conflict, I have preferred one version to the other. My observations of the demeanour of the parties and the witnesses while giving evidence have assisted in my assessment of the evidence.
Whilst I have not referred to every aspect of the evidence, I have considered and taken it all into account.
There were a number of factual matters in dispute that I have had to determine. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings, which is the balance of probabilities, and in what follows statements of fact constitute findings of fact.
RELEVANT FACTS
Before considering the proposals and the law, it is useful to capture the relevant facts.
The father was born in 1956, and was 66 years old at the time of the final hearing. The father has four adult children from his first marriage to Ms F.
The mother was born in 1979 in Country J. At the time of the hearing, she was 43 years old. The mother has two children from a previous relationship with Mr K, L born in 2006 and M born in 2009.
The parties met in 2016 and began cohabiting in or around the middle of 2017.
In 2018, X was born. He is currently five years old.
In 2018, the parties married.
In or around April 2020, the parties separated before later reconciling in November or December 2020.
In August 2021, the parties separated on a final basis, but continued to live together in the formal matrimonial home situated at N Street, Suburb O (“the Suburb O property”) until the mother left the home on 18 October 2021.
The parties were divorced in early 2023.
As at the date of the final hearing:
(a)The mother is currently living with X, M and L in a home situated at P Street, Suburb Q (“the Suburb Q property”).
(b)The mother has not re-partnered. She is currently employed as an administration officer and works in the CBD. She claimed she has flexible working arrangements available to her and does not need to travel for her job.
(c)The father currently lives at the Suburb O property and has been in a relationship with Ms H since late 2022.
(d)Ms H deposed that she stays with the father when she travels to Sydney for work. She gave evidence that this could be anywhere between two or three weeks a month.
(e)The father continues to work at the R Company, where he has been appointed as a professional. However, he gave evidence that he is reducing his workload with the intention of ‘easing’ into retirement.
PROPOSALS
I will now consider the parties’ proposals on the issues that remain in dispute.
The mother’s proposal is as follows:
(a)The mother have sole parental responsibility for X and live with her.
(b)The father spend time with X:
(i)During school terms:
(A)Each alternate weekend from after school Friday to before school Monday; and
(B)Each Wednesday afternoon from after school until 7 pm.
(ii)During each school holiday: for the first half in odd numbered years, and for the second half in even numbered years.
(iii)On special occasions:
(A)For at least four hours on X and the father’s birthdays.
(B)On Father’s Day from 10 am to 6 pm.
The father’s proposal is as follows:
(a)The father have sole parental responsibility for X and live with him.
(b)The mother spend time with X:
(i)During school terms:
(A)Week 1: from after school Friday to before school Monday; and
(B)Week 2: from after school Thursday to before school Friday.
(ii)During each school holiday: for the first half in even numbered years, and for the second half off numbered years.
(iii)During Christmas holidays in 2023, 2024 and 2024: with the mother on the first, third and fifth weeks in even numbered years, and with the father on the first, third and fifth weeks in odd numbered years.
(iv)During Christmas holidays from 2026: for the first half in the following even numbered years, and for the second half in the following odd numbered years.
(v)On special occasions, including for X and the parties’ birthdays, Mother’s Day and Christmas Eve and day until 2026.
(c)No overseas travel with X until he turns 18 years old, or until Country J becomes a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
On the final day of the hearing, the ICL tendered an Amended Minute of Order, proposing the following orders:
(a)The mother have sole parental responsibility for X and live with her.
(b)The father spend time with X:
(i)During school terms: each alternative weekend from after school on Thursday to before school on Monday.
(ii)During school holidays:
(A)For Terms 1 and 3, from after school on the last day of term to the first day of the start of the following term.
(B)In every Term 4, for the first half in odd numbered years, and the second half in even numbered years.
(iii)If X is not otherwise spending time with the father, from after school Friday to before school the following Monday on the weekend of Father’s Day.
(c)Each parent notify the other within 24 hours of enrolling X in any activity or other commitment, and that neither party is obliged to facilitate X’s participation in such activities or commitments.
(d)Both parties be restrained from removing X from Australia.
THE EXPERT REPORT
The Expert Report was prepared and completed by the single expert on 8 August 2022. Interviews were conducted on 15, 19, 20 and 26 July 2022 by telephone and one in-person interview on 18 July 2022.
At that time, the single expert made the following recommendations:
(1)A change of residence for X would not be warranted unless the evidence substantiated the father’s allegations about the mother’s emotionally destructive parenting practices and discounted the mother’s allegations of the father’s violence.
(2)On a final basis, X should live with one parent and spend time with the other parent on alternate weekends “Friday pm to Monday am”, as well as half the school holidays.
(3)In order to eliminate unnecessary handovers, the visitation schedule should apportion school holidays so as to allow the parents to celebrate Christmas Day and other special days with X in alternate years.
(4)The residential parent should exercise sole parental responsibility.
(5)Both parents should attend a post-separation parenting course such as Keeping Kids in Mind.
(6)Both parents should seek individual counselling assistance to improve their parental reflective function.
(7)The parties should engage in Reportable Intensive Family Therapy (“RIFT”).
To the parties’ credit, they implemented the following recommendations made by the single expert:
(a)On 22 August 2022, the father engaged with Ms S for family therapy to assist him to improve his parenting approach and his coparenting relationship with the mother.
(b)In October 2022, both parties agreed to undertake RIFT. An agreement was eventually reached to undergo RIFT with the family therapist.
(c)On or around July 2023, the mother enrolled in post-separation therapy with the aim to improve her communication and co-parenting relationship with the father. Her first appointment was scheduled for August 2023.
The single expert was a frank and straightforward witness when cross-examined. Her recommendations remained largely unchanged at the final hearing, except for the following matters:
(a)That X continues to live with the mother if the Court was satisfied that he was not at risk of physical or emotional harm as alleged by the father.
(b)That X spends one afternoon during the week and overnight with the parent he is not living with, provided the Court was satisfied that it would not interrupt X’s routine and reduce the risk of his exposure to the acrimony between the parties. She preferred, however, an arrangement that saw the parent that X is not living with to have extended time during holidays to maximise the possibility of having contact with extended family.
(c)To ensure that the parties have as little opportunity as possible to interact with each other, she suggested that they have alternating holidays rather than half each.
(d)That the parties keep their own schedule with X when he spends his weekend with them.
BACKGROUND
After they married, the parties resided at the Suburb O property. Towards the end of their relationship, the parties had periods of separation and reconciliation where they moved between living together or apart in the Suburb Q and Suburb O properties.
In early 2020, the mother moved into the Suburb Q Property with L, M, and X. The father continued to live at the Suburb O property.
From January 2020 to 18 April 2020, the father asserted that he spent one night a week at the Suburb Q Property, and that the mother and children spent one night each weekend at the Suburb O property.
In late 2020, the father claimed that the parties reconciled, and the mother, L, M, and X moved back into the Suburb O property.
In late 2020, the mother alleged that the father pulled L out of bed, pushed him several times, and tried to drag him from his bedroom. The father denied this but admitted that he and L had an altercation around this time and, as a result, L went to live with his father, Mr K.
In early 2021, the mother, M, and X moved back into the Suburb O property. In early 2021, L also resumed living in the Suburb O property.
In or around August 2021, the parties separated but continued to live together at the Suburb O property.
On 27 August 2021, the mother commenced these proceedings by filing an Initiating Application for property and spousal maintenance orders. The Application for spousal maintenance arose as the mother was not employed at the time and required urgent financial support as she claimed the father stopped paying her $1,500 per week. The father confirmed this in his affidavit, where he ceased this weekly payment as he believed the mother had “sufficient funds to meet her expenses” as he claimed to have transferred her $65,000 in mid‑2021.
In late 2021, the father arranged with the mother to take X “to the beach for a walk”. Without her prior knowledge or consent, X was taken to Region T for 3 days in late 2021 with the father and his extended family (“the Region T trip”). The mother was only advised three hours after the father had collected X from her of his plans.
In late 2021, the mother left the Suburb O property with the children and entered temporary accommodation. From this date to 27 October 2021, the father claimed that he did not see X and did not know where he was.
On 22 October 2021, the father filed an Amended Response seeking an urgent recovery order for X to be heard on an ex parte basis. The father also sought interim orders for X to live with him, to place X on the Airport Watchlist, and for the mother to undergo a psychiatric evaluation.
On 27 October 2021, interim orders were made for X to continue living with the mother, spend time with the father from Friday to Sunday, and for X to be placed on the Airport Watchlist.
On 21 December 2021, the father filed a Further Amended Response, seeking to amend final orders sought, including for equal shared parental responsibility, for X to live with the mother, and for the father to spend increased time with X to a week about basis from Term 1 2024.
On 8 February 2022, the father filed an urgent Application in a Proceeding, seeking interim orders for X to live with him, to spend no time with the mother, and for a Child Impact Report to be prepared addressing the mother’s mental health and any risk posed by her in relation to X.
On 15 March 2022, the father again filed a Further Amended Response, seeking amended final parenting orders, including that X live with him and spend time with the mother in accordance with recommendations made in the Child Impact Report.
On 17 March 2022, orders were made dismissing the father’s Application in a Proceeding filed on 8 February 2022. A notation was also included that the father must seek leave of the Court before filing any future application.
On 10 April 2022, the father filed a Second Further Amended Response, amending final parenting orders for increased spend time arrangements to include overnight stays each alternate week.
On 11 August 2022, the Expert Report was released to the parties.
On 28 August 2022, the father filed an Application in a Proceeding, seeking to vary Orders made on 27 October 2021, so that changeover could occur at X’s preschool. This Application was dismissed by consent on 5 September 2022.
On 21 November 2022, with the Court’s leave, the father filed an Application in a Proceeding seeking interim parenting orders for X to live with him and for X to be enrolled at Suburb O School. The father also sought spend time arrangements with the mother each alternate week from 3 pm Friday to 9 am Monday, and for changeovers to occur at the school.
On 1 December 2022, interim consent orders were made for X to attend Suburb Q School. The Court noted that the mother had enrolled X at Suburb Q School without the consent or involvement of the father, and that changeovers were to occur at the school.
In early 2023, X commenced kindergarten at Suburb Q School where he also attends after-school care.
On 22 March 2023, the proceedings were bifurcated and, consequently, this judgment only deals with the parenting arrangements for X.
The matter was listed for a 3-day final hearing in relation to parenting from 28 August 2023.
THE LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) guides the process in relation to the making of parenting orders.
Pursuant to s 60CA of the Act, the Court must regard the best interests of the child as the paramount consideration when making a parenting order.
Subsections 60CC(2) and (3) set out the particular matters that I must take into account when determining the child’s best interests.
There are two primary considerations. As stated in s 60B of the Act, the best interests of the child are met by ensuring that the child benefits from both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests, and protecting them from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.
Whilst the parties raised some behaviour in the past that arguably posed a risk to X, neither party alleged that there are any current risks associated with being exposed to harm or abuse in the care of either parent.
There are 13 additional considerations for determining what is in the child’s best interest, which are set out in s 60CC(3) of the Act. I will address these through the lens of X.
X
The single expert reported that “[X] is a little charmer; a bright, cheerful, confident, well-behaved, cooperative, winsome child”.
Indeed, despite the acrimonious parental conflict and separation, X, at five years old, is reportedly progressing well and is a happy, well-adjusted young boy.
As his maternal family is of Country J origin and the mother’s first language is Country J language, X attends a Country J language lessons each week.
X lives with the mother and his older siblings, M and L, in a home located in Suburb Q.
The older siblings are of high school age: M attends U School and L attends V School.
In 2023, X commenced Kindergarten at Suburb Q School. He is progressing well at school and meeting all developmental milestones.
X currently spends each weekend with the father in Suburb O. The parents’ homes are located about 30 kilometres apart, or around 30 minutes’ drive by car.
The single expert observed X with both parents. She concluded that X is a securely attached child, and his parents interacted appropriately with him.
Both parents gave the single expert a similar description of X (at paragraph 49 of the Expert Report):
Both parents describe [X] as a child with an easy temperament who is not difficult to parent. In person [X] impressed me as a friendly child who is eager to please adults but at the same time able to sweetly assert his own strong will. Categorical classification of children’s attachments is not valid outside laboratory conditions, but it would be fair to say that in this short observation [X] behaved like a securely-attached child. He was observed to display secure base behaviour towards both parents and formed a ready rapport with me, a stranger in a strange place. He clearly expects adults to be kind.
X’s extended family
The father has four older children from his first marriage who are all now parents themselves. He has eight grandchildren who are of similar age to X. The paternal family gathers regularly and enjoy spending time with together with X.
The father said that his connection with family reflects positively on him. In addition, he suggested that this “community” of family members are available to assist and support his capacity to provide for the needs of X. The single expert observed that the mother did not seem to place any great value on these relationships for X, observing that “she seemed unable to conjecture about, let alone value, any feelings [X] might have for people she did not value (such as Mr Dustin’s ex-wife, children and grandchildren).”
The father has re-partnered with Ms H who lives in Victoria but spends significant amounts of time in Sydney. She gave evidence that she would support the father’s care of X.
The mother’s extended family live in Country J and X communicates regularly with his maternal grandmother. The father accepted that X is also loved by his extended maternal family.
X’s parents
The mother is 44 years old. She appears to have been the primary parent responsible for X’s care until the parties’ separation, while the father was the primary income earner for the parties during this time.
In August 2021, after the parties separated on a final basis, the father ceased paying the mother $1,500 per week. On 5 November 2023, the father was ordered to pay the mother $1,365 per week in spousal maintenance, and this was increased to $1,500 per week on 26 June 2023. At the time of the hearing, the mother had resumed full-time employment as an administration officer. She enjoys good health, and there was no impediment to her continuing to work and have her children in her care.
The father is 67 years old and has worked as a professional for 43 years.
In 2022, the father was diagnosed with an anxiety disorder and another illness for which he is medicated. There was no evidence to suggest that either condition impacted upon his capacity to continue to work or to care for X.
The father was highly critical of the impact that the mother’s employment has on her ability to provide adequate care to and supervision of X. He argued that her employment has resulted in her leaving X very early in the morning and in the care of his sister and next-door neighbour.
To understand the impact of the mother’s employment on her ability to care for X, the father engaged an investigator to follow the mother in mid-2023. In preparation for the hearing, he also acknowledged that he had driven to Suburb W Railway Station at around 6 am one weekday morning around a month later, to personally determine if the mother was still leaving for work at the same time. He took a photograph to prove that she was. In a similar vein, when the mother did not facilitate the father spending time with X during the school holiday period, the father found him at a full-time vacation care centre and visited him there. He also made enquiries as to who was dropping X off and collecting him.
The father’s approach to this issue was, in my view, disingenuous. During the proceedings, he was highly critical of the mother’s failure to be in paid employment. For example, in email communication dated early 2022, he encouraged the mother to work full-time to “pay the bills”, observing that X was in pre-school for four days a week. He wrote to the mother: “I hope you are beginning to look for employment – there is plenty of work out there especially for a presentable young woman who is bilingual like you.”
The mother can equally be criticised for her decision to place X in the full-time care of others when the father appeared to have been available to care for him. However, the incident highlights the intractable nature of the dispute between the parties and the need for clear orders that carefully define the time X will spend with each parent, given that cooperation between them appears unrealistic.
As to X’s ongoing care, the father gave evidence that he was working from home when he could and could no longer expect to earn an annual income of $1.6 million as he has in previous years. His evidence was that he is changing to a “consulting style” so that he could be more flexible with work hours. He appeared to continue to undertake regular work commitments but said that this did not impact his ability to take X to and from school most days. Apart from his oral evidence and the information obtained under subpoena, there was little information before the Court as to father’s proposals for X to be placed in his full-time care. Indeed, in email correspondence tendered, on two successive weekends in July 2023, the father had requested a variation to the care arrangements because he was travelling to Town Y for work on a Sunday. On balance, I am not satisfied that the father was any more available than the mother to care for X on a day-to-day basis.
The single expert and the parties agree that X, and the other children in their households, have been exposed to the parental conflict. Some examples cited by each of them include:
(1)From the mother:
(a)In late 2021, the father was filming her with X, which resulted in the Police being called to the home.
(b)The father attempted to remove X from her care and on one occasion, blocked the mother from leaving with his own car.
(2)From the father:
(a)That the mother involved M and L in the dispute by encouraging them to treat him with contempt. He claimed that she encouraged them to speak in Country J language when in his presence to further isolate him.
(b)When he saw X in July 2023, he claimed that X appeared tired, unsettled, and was behaving poorly. He allegedly said to the father: “Daddy, I need to spend 6 days with mummy and one with you. I love mummy more than you.” Under cross-examination, he complained that the messages X received in the mother’s home was damaging.
(c)In early 2022, the mother sent the father a video recording (apparently taken in late 2021) of X being asked if the father hit him. The father claimed that X was observed to be “extremely distressed and crying”.
The father viewed the video recording incident as an example of the mother “weaponising” X. At the request of the father’s solicitors on 25 February 2022, clinical forensic psychologist, Ms Z reviewed the videotape and provided a report. That report, dated 2 March 2022, was made available to the single expert who reported that:
[Ms Z] opined that even if the mother’s motivation was sincere maternal protectiveness, her behaviour was counter-productive and inappropriate. By her actions [Ms Emery] drew [X] into the family law dispute, highlighting to him the parental acrimony as well as (potentially) setting up a pattern of [X] endorsing the mother’s negative conclusions about his father in order to please her…
(The Expert Report, paragraph 6)
Both parties were cross-examined about their version of an event that took place in mid-2021 (“the mid-2021 incident”). This incident occurred when the parties were living separately under the one roof and the children were present at the home. The parties agreed on the following:
(a)The father threw out a container of food that had been in the fridge.
(b)An argument ensued when the father, who was preparing food had a kitchen knife in his hand.
(c)The mother says that the presence of the knife frightened her.
(d)The mother instructed L to call the Police.
(e)The Police attended whilst the children were home. No action was taken.
(f)The mother then used the fridge located in the garage for her and the children’s food.
In mid-2021, the mother claimed that the father began to lock the garage door at 8 pm to limit her access to the fridge. In cross-examination, the father admitted to locking the garage door on occasion but not while the mother used the fridge in the garage.
The mid-2021 incident (and others during this time) perhaps typifies the level of conflict between the parties in 2021 when they were living separately under the one roof. However, to prefer one party’s behaviour over the other’s seems a futile exercise.
Clearly, the parents have different approaches and attitudes to parenting X. This was highlighted by several issues, and, more generally, by the critical and negative way they viewed each other:
(1)By the mother:
(a)In late 2021, the mother claimed that the father came into X’s bedroom, allegedly filming her and X. He shouted at her, “Christ, you stupid woman. You have the heater on with a high temperature. X’s room has no fresh air. You are killing him.”
(b)She complains about the father’s level of care for X. For example, that:
(i)In late 2021, while in the father’s care, X developed an illness.
(ii)In late 2021, the mother alleged that X was returned to her care covered in mosquito bites.
(iii)In early 2023, the mother sought medical attention for a skin irritation on X’s hands.
(c)In April 2023, the mother emailed the father as she was concerned that X had told her that Ms H had changed in front of him.
(d)She contends that the father displays a negative attitude towards her and is unable to support X’s Country J heritage. She deposed that after an altercation in late 2021:
… [Mr Dustin] made a phone call during which he screamed into the phone, loudly enough for me to hear, ‘She set up the marriage….to hell with her cohorts…[Country J] renegade…fucking bitch’.
(As per the original)
(e)The negative view that the father took of the mother was one also adopted at times by members of the paternal family. Upon X’s return from the Region T trip, the father sent the mother text messages from his family addressed to her. In these messages, the mother is referred to as “mentally retarded”, “stupid [Country J person]”, “an idiot”, and “abuser”. The father conceded in cross-examination that he had passed these messages on to the mother and admitted that doing so was inappropriate and something he now regretted. He further conceded that the messages were “insulting and racist”.
(2)By the father:
(a)He contended that from February 2021 to October 2021, the mother spent most of her days in bed on her phone. In those circumstances, he claimed to have taken responsibility for most aspects of X’s care.
(b)He complained of the mother enrolling X at Suburb Q School without consulting with him first.
(c)The mother’s failure to play an active role in milestone events for X was also a source of complaint by the father. He cited her failure to attend his first day at school and a class family picnic arranged for parents and children.
Much of the conflict between the parties reflected their very different attitudes to the roles and responsibilities of parenting. Understandably, when X returned from the father’s care, the mother raised any concerns she had regarding X’s physical wellbeing. However, the father takes a more robust approach to parenting children, and, while taking precautions, he viewed minor ailments such as scratches and bites as an inevitable part of a child’s enjoyment of the outdoors. It was not asserted, nor was there evidence to suggest, that X was at an unacceptable risk of harm in the father’s care.
WHAT PARENTING ORDERS ARE IN X’S BEST INTERESTS?
Section 61DA of the Act provides for the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child when making a parenting order. Relevantly for this case, s 61DA(4) of the Act permits the presumption to be rebutted when the Court is satisfied by the evidence that it would not be in the best interests of the child for their parents to have equal shared parental responsibility for them.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. Where the exercise of parental responsibility involves deciding about a major long-term issue, this section requires three things of the parents:
(1)the parents consult the other in relation to the decision to be made;
(2)the parents make “a genuine effort to come to a joint decision about that issue”; and
(3)the decision be made jointly by those persons.
The parties have an inability to parent cooperatively and reach agreement in relation to decisions affecting X’s care, welfare and development. This was reiterated by the family therapist, who opined that “[n]either party demonstrated openness to establishing a co‑parenting relationship, and it appears that such an arrangement may not be suitable at this time.”
The single expert carried out a Parenting Alliance Measure test on both parents which indicated a problematic co-parenting relationship between them. The single expert was concerned about their ability to work effectively together in circumstances where the other parent’s views did not align with their own. She concluded that: “these parents cannot ever be expected to make decisions jointly which would serve their son’s best interests.”
Perhaps acknowledging this, each party seeks an order for sole parental responsibility of X. There was no evidence to support the proposition that they could jointly make major long-term decisions about X. In those circumstances, the only alternative is to have one parent exercise sole parental responsibility. It was the view of the single expert that the parent with whom X spends most of his time should hold sole parental responsibility. This position was supported by the ICL. I accept this proposition and therefore will proceed to determine the issue of who X should live with.
LIVING ARRANGEMENTS
The parties each deposed that the other has exposed them or members of their household to family violence. The agreed position between the parties was that whilst they each maintained their positions and perspectives about family violence during the relationship, they did not require the Court to make findings about them, as neither party argued that X was at unacceptable risk of harm due to being exposed to family violence.
The father also argued that X was at risk of emotional harm in the mother’s care due to her parenting practices. This argument was not pursued by his counsel and there was little evidence to support this proposition. The single expert found no evidence of a serious or untreated mood or personality disorder in the mother. While the mother has exposed X to the parental conflict, so too has the father.
However, each parent argued that they should be preferred as the parent X lives with because the other parent’s approach to parenting is more deficient than their own. A central issue is whether either parent should be preferred as the parent more likely to ensure that X enjoys a meaningful relationship with both parents.
Will either parent likely ensure that X enjoys a meaningful relationship with the other?
The concept of a “meaningful relationship” has been discussed in many authorities and is one that is described as qualitative and not strictly quantitative (see Mazorski & Albright (2007) 37 Fam LR 518 at [26]). That is, the relationship is not measured simply by the amount of time the child is spending with each parent, but the quality of the relationship that exists between the child and parent.
The father submitted that the lack of ability or unwillingness on the part of the mother to promote X’s relationship with him weighs the balance in favour of X living primarily with the father.
He cited the breakdown of the relationship between M and L and their father, Mr K, as evidence of the mother’s failure to promote this relationship. I was not satisfied on the evidence that this was the case. Clearly, Mr K has limited involvement in their lives, but I could not be satisfied on the evidence before me that this was a result of the mother’s actions and her failure to support that relationship.
In my view, the criticisms levelled by the father about the mother’s inability or unwillingness to promote his relationship with X needs to be viewed in context. The parties are of different ages and backgrounds, and this impacts the way they communicate with each other and navigate problems. The father has lived in Australia his entire life, is highly educated, and has led a successful professional life. He has raised four adult children and has grandchildren. He has managed to maintain good relationships with former partners. He is financially comfortable and well supported by a large extended family in Sydney.
The mother is much younger. She has lived in Australia since 2007. She has no formal qualifications and English is her second language. She raises two children from a previous relationship with little assistance from Mr K. She has been dependent upon the father for financial support.
Of the father, the family therapist noted that:
His demeanour during the sessions was highly engaged and at times charismatic, but I observed his communication style to occasionally be controlling, demanding, and condescending, albeit always polite.
The single expert undertook a personality assessment on both parties. She found that the father tended to minimise personal deficits or the effect that they might have on other people. Otherwise, she assessed no significant problems or evidence of clinical psychopathy. Likewise, the mother’s profile showed no evidence of clinical psychopathy either. She reported experiencing stress arising from the parental conflict following separation, but it was not, in the single expert’s view, severe enough to warrant a diagnosis of a mood, anxiety, or traumatic stress disorder.
The nature and tone of the father’s text and email communication with the mother could also be described as authoritative and controlling on occasions. Similarly, whilst he was a polite and courteous witness, he was intent on ensuring that he gave his own commentary and perspectives on his actions and behaviour, even when his responses went beyond answering the question asked of him.
In completing the Expert Report, the single expert diagnosed both parties as extremely low on their ability for parental reflectiveness. The single expert observed that the father’s discourse reflected a better capacity to adopt a child’s perspective than that of the mother. But she also observed that each parties’ ability to frame child-focussed answers seemed to collapse when triggered by negative emotional reactivity towards the other parent. Of the father, the single expert observed:
[Mr Dustin]’s empathic concern for his son can be eclipsed at times by his own strong opinions, including a heartfelt commitment to his advocated solution to his child’s predicament. Likewise, he displayed limited ability to imagine that [X] might have needs, thoughts or feelings which were opaque to him, especially when a conflict of interests was implied. For example, [Mr Dustin] was dismissive about the likely impacts on [X] of sibling separation, with reference to a shallow analysis of surface features…
The ability of both parties to be reflective of their parenting styles or child-focussed is concerning. Due to the high conflict between them, and on the recommendation of the single expert, they agreed to engage in a family therapy process.
The father, to his credit, promptly engaged with an intensive family therapy process, but not so the mother. This caused the ICL to write to the parties on 13 March 2023, observing that the family therapist has reported that “the father had been very cooperative and keen to resolve matters, whereas the mother refused to communicate at all with the father or engage positively in the process”.
Similarly, while the father was prompt in seeing the assistance of a counsellor, the mother did not do so until 9 August 2023.
The father was critical that the mother failed to accept the advice of the family therapy and join the OurFamilyWizard communication platform (“OurFamilyWizard”). However, the family therapist observed that the mother:
expressed reluctance in using the Our Family Wizard. She lacked confidence that it would effectively facilitate communication with [Mr Dustin] ad conveyed her reluctance to engage in any communication with him, both presently and in the future. [Ms Emery] also described feeling intimidated by [Mr Dustin], which resulted in her inability to participate in joint sessions with him. Furthermore, she disclosed that the relationship with him was reportedly marred by historical domestic violence.
(As per the original)
The father, under cross-examination, argued that he had gained a deeper insight into his behaviour and was now more child-focussed with the assistance of counselling and other learnings. He said that he regretted some of the emails and SMS messages he had sent to the mother, as well as the messages from his family that he had forwarded to the mother. However, there was little evidence to support this newly acquired “deeper insight”.
In addition to the matters already identified, the affidavits and tendered material contained numerous examples of the father’s judgmental and critical view of the mother’s approach to parenting and her decision making. They also highlight his preference to control the parenting arrangements for X. His trial affidavit, deposed within a month of the final hearing, provided some examples of this. On the impact of X living with him, he observed:
I will encourage contact with her and ensure that he spends time with his mum. I would like to think he could go to her home as often as possible if only her attitude was more cooperative and child focussed.
(Emphasis added)
Under cross-examination, the father conceded that the time X would spend with the mother would be influenced by his perception of the mother’s attitude. His response raises legitimate questions about the terms and circumstances upon which he will be prepared to promote a relationship between X and the mother.
The Region T trip was understandably a source of consternation between the parties. The father’s insight into the impact of his behaviour bears consideration. Scant reference was made to the event in his affidavit. He was highly critical of what he considered to be the mother’s overly protective or critical response to X’s physical state upon his return. He deliberately forwarded the mother text message correspondence where his daughter, Ms B, referred to her as “mentally retarded”, “Stupid [Country J person]”, “an idiot” and “abuser”. He used the cross-examination process as an unprompted opportunity to describe the trip as a “joyous” family occasion. He conceded that his communication with the mother about the incident was both inappropriate and regrettable. He justified his decision to take X without the mother’s consent on the basis that “she would have said no”. I was not satisfied that he fully understood the impact of his actions and behaviour on either the mother or X (who was three years old at the time), despite his evidence that he was now more “child focussed”.
This conclusion was reinforced by the father’s evidence about a dispute that had arisen in July 2023, only one month before the hearing. The dispute related to the interpretation of the Court orders concerning school holiday time. The father deposed that as he did not accept the mother’s interpretation of the orders. He therefore went to collect X at the conclusion of the school term, knowing that the mother did not agree to his interpretation of the orders. The mother, no doubt pre-empting this course of conduct, did not send X to school. The father appeared unable to reflect on the impact on X had he been collected by him, and potentially kept in his care for the school holiday period, when that was not a course agreed upon. The father also criticised the mother because when he spoke to X, he reportedly “began the conversation by telling [him] why he had to be with his mummy”. This is, of course, a concern, as it may reflect the way X continues to be involved in the parental conflict. But equally, the father’s apparent inability to apply a child-focussed approach to the problem seems consistent with the single expert’s observations.
It was reported by the family therapist that in their sessions the mother “openly shared her emotional experiences, expressing feelings of being berated and intimidated” by the father. She recommended to the mother that she establish some boundaries around their communication but reported that “the father disregarded these boundaries”.
It is perhaps unsurprising that the mother finds her dealings with the father overwhelming and difficult, or that she has at times in these proceedings failed to engage with the father or in processes involving the father, such as family therapy. However, regardless of the level of her engagement, I note the family therapist’s conclusion was that the mother’s primary focus “consistently revolved around [X’s] needs and best interests, particularly in regard to his education, extra-curricular activities, and social connections with friends”.
I observe that the single expert was less confident of the mother’s ability to promote a relationship between X and the father. But she did not see this as a determinative issue in terms of the parent with whom X should primarily live with. Indeed, her final observation was that changing the principal residence of X was unlikely to prevent X from rejecting one parent over the other:
If [Mr Dustin] is right in thinking that [Ms Emery] will resolutely undermine the father‑son relationship, then a change of principal residence will not resolve the problem: why should [Mr Dustin] suppose that [Ms Emery] would behave differently if [X] spent fewer days per fortnight with her? If such a bleak scenario came to pass, [X] might eventually resolve his predicament by rejecting one parent. Which parent would be rejected is not certain. Perhaps the parent he blames (rightly or wrongly) for causing the problem, perhaps the parent whose displeasure he fears less, perhaps the more coercive, punitive parent. However, when such rejections occur they tends [sic] to be sudden and difficult to reverse before the child is an adult. As a pre-emptive strike best efforts should be made to prevent [X] having any need to resort to that drastic solution. Estrangement from either side of his family during childhood would represent a significant loss of social capital for [X].
(As per the original)
Even if the father, on balance, was more likely to promote a relationship between X and the mother, this is a high conflict matter where we are talking in degrees. Both parents remain hostile and negative in their attitudes towards each other, and neither displayed any willingness nor ability to change. Their respective abilities to promote a meaningful relationship between X and the other parent is therefore not a determinative factor.
The determination of which parent X should live with is finely balanced. They each present X with different parenting styles. The composition of their respective households contrast. However, they are both competent parents. There was some criticism made of the current quality of each parents’ physical care of X, but no suggestion that he was at any risk of harm as a result.
This is a case involving parents who both want the best for their son but have different views about how that can be achieved. Based on the findings that have been made, I observe that the strengths of the father’s proposal are:
(a)The father provides a good balance for X. He is focussed on ensuring that X is exposed to an array of activities and experiences.
(b)Living in the father’s household, X would grow up surrounded and supported by members of his extended paternal family. If the father is unavailable to care for X, there are other suitable family members who can fill the void.
(c)The father is financially secure.
(d)The father would comfortably navigate X’s social networks and activities, as well as support his participation in them.
The strengths of the mother’s proposal are:
(a)She has been the primary carer for X since birth.
(b)X would remain living with his siblings, M and L. He enjoys a close relationship with them, particularly M.
(c)X would continue to attend Suburb Q School where he appears to be progressing well.
(d)He will not be estranged from his Country J heritage in the care of the mother.
(e)She is much younger than the father, and more likely to be in a position to provide consistent care for X until her turns 18.
The single expert concluded that it was in the best interests of X to remain living with the mother unless the Court finds that the mother presents a risk of harm to X. However, she also observed that even if such a finding were made, there were potential risks for X in changing households anyway. The father put forward a comprehensive proposal for X’s life with him. But he did not address the impact of removing X from the mother, who is his primary carer and attachment figure.
Having regard to the totality of the evidence, and my assessment and balancing of all the considerations, I am satisfied that it is in X’s best interests that he lives primarily with the mother for the following reasons:
(a)An arrangement where X remains in the mother’s care will best promote his stability.
(b)Whilst X has and continues to be exposed to the parental conflict, orders can be made restricting the face to face contact and direct communication between these parents, especially at changeovers.
(c)The father will continue to provide a supportive and loving home environment for X when he spends time with him. Indeed, many of the activities that the father enthusiastically supported X participating in, are usually enjoyed on weekends and during holiday periods.
It then follows that an order for sole parental responsibility will be made in favour of the mother, with a requirement that she notify the father of any proposed decision, take into consideration any views expressed by the father, and then advise the father of the final decision as soon as reasonably practicable.
SPEND TIME WITH ARRANGEMENTS
Presently, the orders provide for X to spend time with the father each weekend. Neither party nor the ICL proposes that this arrangement continue in the long term, arguably because it might negatively impact upon each parent’s ability to participate in all aspects of X’s life.
Both parties put forward proposals for how they would spend time with X if a live with order was not made in their father.
If the Court decided that X is to continue to live with the mother, the father sought to spend time with X from Wednesday afternoon until Monday morning.
The ICL was of the view that, to support X having a meaningful relationship with each parent, orders should allow him to spend regular time with each parent, but in a manner that would limit the parents coming into direct contact with one another. The single expert expressed a forthright view that X should spend no more than four nights each fortnight with the non‑resident parent. This position was supported as being in X’ best interests by the ICL.
The single expert was pressed on the issue of mid-week time. She was of the view that an order could be made for X to spend one afternoon during the week and overnight time with the parent he is not living with, provided the Court was satisfied that this would not interrupt X’s routine and reduce the risk of his exposure to the parental acrimony. Although this was not her preference. She preferred an arrangement that saw the parent X is not living with to have extended time during the holidays to maximise the possibility of having extended family contact.
The ICL’s position was that X should be with the father for the entirety of the Term 1 and 3 holidays, rather than introducing changeovers during school holidays. This would reduce the need for the parties to come into contact for changeovers to one occasion each year in the Term 4 holiday period.
As to changeovers, the ICL’s position was consistent with the recommendations of the single expert, who said:
Given their mutual animosity, [Ms Emery] and [Mr Dustin] should not meet again in the presence of [X] anytime soon. Any time before the cosmos collapses would be too soon. Scientists debate whether our universe will end in a Big Crunch or a Big Freeze, but seem to agree that it will not be for several trillion years. In the meantime, [X] can be shielded from direct exposure to parental acrimony if all handovers are to and from school. This arrangement will also work for school holidays at the end of Terms 1, 2 and 3 if parents take turns having [X] for the whole of the break, thereby reducing direct handovers to once per annum at the mid-point of the 6 week Christmas holiday period. Any unavoidable changeover outside of school terms should occur on neutral ground.
The mother largely adopted the ICL’s proposal for spend time arrangements with the following exceptions:
(a)She would prefer the father to spend time with X each alternate weekend from Friday after school until Monday before school, although ultimately indicated she could consent to his time commencing on Thursday after school.
(b)She agreed to each party having X for the whole of each school holiday period but sought to vary the single expert’s proposal by alternating the parent X spends time with in the Term 1, 2 and 3 holiday periods, rather than school holidays in Terms 1 and 3 with the father, and Term 2 with the mother.
(c)That in addition to special provisions being made for X to spend time with the father on Father’s Day, she sought that there be a mirror order in terms of Mother’s Day. There is no reason why provision should not be made for this to happen, and I will do so.
Notably, the parties did reach agreement about changeover arrangements. These orders will be made by consent.
One of the reasons that the single expert supported less mid-week time was because the parents could not co-parent nor agree upon the extra-curricular activities that X would participate in on days when he is with the other parent. Counsel for the father was unable to articulate how such matters would be communicated between the parties, except to say that it would not require much more communication than a four-night arrangement, hopefully adding that “there only needs to be a little bit of cooperation”. In the context of this bitter parental dispute and with no evidence before me that this would improve, such an order will not be made.
I understood that the single expert preferred the block school holiday approach because it both reduced the need for the parties to come into contact but also allowed X to spend additional time with the father in lieu of a midweek night. The mother’s proposal for the rotation of school holiday periods did not consider the additional time or “make-up” time for the father, if his time was reduced to a four-night block from Thursday after school to Monday before school each fortnight.
I will make an order that the father spend time with X from Thursday after school until Monday before school on alternate weekends. In addition, X will spend the entire school holiday period at the conclusion of Terms 1 and 3 with the father. X will remain in the mother’s care for the Term 2 school holiday period, and he will share his time with the parents in the Term 4 period in two defined blocks.
THE DAY-TO-DAY ACTIVITIES THAT X WILL PARTICIPATE IN
It is clear that the nature of the parties’ relationship with each other means that they will continue to be in high conflict about how X should be raised. There is currently high conflict between them about the extra-curricular and social activities that X is enrolled in or invited to attend. For example, in early 2023, the mother claimed that she was unable to enrol X into the local sports club as he would be in the Suburb O area with the father on weekends when games would normally be scheduled.
In early 2023, the mother messaged the father about an invitation to a birthday party for one of X’s friends. The father replied that he would be taking X interstate on the weekend of the party.
In mid-2023, X was unable to attend an event hosted by his school. The mother claimed that this was because X was in the father’s care who was unwilling to take him. The father conceded that he did not take X to this because he believed it was not in X’s best interests, due to his belief that he was overscheduled during the week.
Of controversy during the hearing, were events such as birthday parties or school social events that took place during the father’s time with X. The parties were in conflict about whether X’s attendance was necessary or in his best interests. I need not dissect those controversies and make findings on them. They were most illustrative of the need for final parenting orders to provide a mechanism to guide the consultation and decision-making process. An order will therefore be made that neither parent will be obliged to facilitate X’s participation in any activities that he might be invited to or enrolled in, if that falls in their time with him.
INTERNATIONAL TRAVEL WITH X
The mother sought orders permitting her to travel internationally with X. She is of Country J heritage and would like the opportunity to take X to Country J so he could deepen his knowledge and understanding of his cultural heritage. Whilst X’s maternal family from Country J have visited him in Australia, as his maternal grandmother ages, this may not be possible.
The father was opposed to an order allowing X to travel internationally with the mother. He was of the view that there is a real risk that she may not return to Australia with X, noting that Country J is not a signatory to the Hague Convention. He cited some examples that grounded his fears, for example, in mid-2021, the father alleged that the mother threatened to remove X to Country J unless he paid her $1.2 million.
The ICL submitted that there was perhaps no obstacle to the mother taking all three children to Country J. I note, however, that the mother has lived in Australia for 16 years. She has two older children who are settled in Australia and owns real estate here. They are all Australian citizens.
Travel provides unique opportunities for young people. To deprive them of the opportunity to experience new cultures and experiences in other countries is a serious restraint and one that might limit X’s development. However, the conflict between these parties is so high, and their inability to prioritise the needs of X over their conflict, that I cannot discount significant issues arising should I make an order permitting either party to travel internationally with him.
This will be to the detriment of X. It was proposed that he attend a private secondary school in Sydney, and the opportunity for X to travel internationally to participate in a school or an organised extra-curricular activity might arise. He should not be deprived of that opportunity.
Orders will be made restraining each party from removing X from the Commonwealth of Australia. However, they will allow X to travel internationally for the purposes of participating in a school or an organised extra-curricular activity. The Orders will require that his passport be deposited and held at the court registry.
CONCLUSION
I will made the orders contained in Exhibit 4 by consent and these will be incorporated into the final orders made.
Accordingly, I am satisfied the Orders made at the start of these reasons are in X’s best interests.
I certify that the preceding one hundred and fifty-six (156) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 29 January 2024
0
0
3