Emmet & Bernardo (No 2)
[2024] FedCFamC2F 1808
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Emmet & Bernardo (No 2) [2024] FedCFamC2F 1808
File number(s): PAC 4986 of 2019 Judgment of: JUDGE STREET Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – PARENTING - mother to have decision-making responsibility for all major long term issues including schooling - best advance the developmental, psychological, emotional and cultural needs of the child – six nights per fortnight – permit overseas travel with the mother subject to conditions Legislation: Family Law Act 1975 (Cth) Cases cited: Kapoor & Kapoor [2024] FedCFamC2F 605 Division: Division 2 Family Law Number of paragraphs: 123 Date of last submission/s: 5 November 2024 Date of hearing: 4 November 2024 and 5 November 2024 Place: Sydney Counsel for the Applicant: Mr A Moutasallem Solicitor for the Applicant: Jones Hardy Law Counsel for the Respondent: Mr P M Connor Solicitor for the Respondent: King & York Lawyers Counsel for the Independent Children's Lawyer: Ms J Webb Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
PAC 4986 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EMMET
Applicant
AND: MS BERNARDO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1.The respondent mother shall have sole decision-making responsibility on all major long-term issues.
2.The child, X (“the child”) born in 2019, shall live with the mother.
3.The child spend time with the father as follows:
(a)during school terms on alternate weeks from the conclusion of school on Wednesday to 6.30 pm on Sunday, and in the other week from the conclusion of school on Wednesday to 6.30 pm on Friday;
(b)for approximately half of the school holiday periods between terms 1, 2 and 3 as agreed between the parties, and failing agreement from 6 pm on the Sunday in the middle of the period until commencement of school on the first day the child is due to return to school;
(c)for approximately half the summer school holiday periods as agreed between the parties, and failing agreement:
(i)in odd-numbered years from the conclusion of the last day of school for the child until 6 pm on 10 January;
(ii)in even-numbered years from 6 pm on 10 January to the commencement of school on the first day the child is due to return to school
(d)from 9 am on Father's Day to the commencement of school the following day, then from 9 am on Mother's Day to the commencement of school the following day
(e)the child spend such other times or variations of the above times as agreed between the parties in writing.
Changeover
4.For the purpose of changeover, where it does not occur at school the party who is returning the child to the other party or nominee must deliver the child to the residence of the other party.
Communication
5.For the purpose of communication between the parties about all matters relating to the child, except in the case of an emergency, the parties must communicate via an agreed parenting app, and failing agreement that app shall be AppClose.
6.The parties are at liberty to communicate with the child by phone or video on the days the child does not see them, with that party to call on the child's mobile and/or the other party's mobile.
7.The parties must keep each other informed in a timely manner about all significant health issues in relation to the child, including details of health professionals and all treatment recommended or prescribed, and such notification must be made as soon as reasonably practical in the event of an emergency.
8.The parties must keep each other informed of their residential addresses and contact details, and must provide the other with timely notice of any change to such details.
School
9.The mother must:
(a)do all things necessary to enable the father to engage directly with the child's school to obtain information about her, as is ordinarily made available to parents;
(b)do all things necessary to ensure the father is authorised to attend all school events ordinarily attended by parents; and
(c)list the father as the child's father and a primary contact in the case of emergency.
Extracurricular activities
10.The parties must for the remainder of 2024 ensure the child reasonably attends any extracurricular in which she is currently enrolled.
11.From January 2025 the parties can only enrol the child in extracurricular activities which may fall when the child is in the care of that party, and such activities must not impact on the time the child spends with the other party unless by written agreement of both parties.
Travel
12.Within 14 days of a request by either party the parties must do all things necessary to renew the child's Australian passport at the equal expense of the parties, except that if the renewal was due to the loss of the passport by one of the parties, that party shall bear the full expense of replacement.
13.The mother is to retain possession of the passport, except when the father is travelling internationally with the child in accordance with these orders, the mother must provide him with the passport no less than seven days prior to departure, and the father must return the passport to the mother within seven days of return.
14.The mother is restrained from travelling outside Australia, with the child unless in the company of her other children and her partner Mr M until the child is eight years of age, and the mother must in respect of any such overseas travel:
(a)give the father no less than 28 days notice of the travel, including a full itinerary and contact details for the child while she will be travelling;
(b)provide a copy of the paid return tickets for the child, and, until the child is eight, the paid return tickets for the mother, Mr M and the other children accompanying the mother.
15.The travel must occur during the period of time when the child, pursuant to these orders, would be with the travelling party unless otherwise agreed in writing by the parties.
Restraints
16.The parties must use their best endeavours to ensure neither the parties or a third party in the presence or hearing of the child:
(a)denigrate or criticise the other party, or their partner or any member of their family; and
(b)discuss these proceedings or any parenting issue in dispute.
17.The Court makes no order for costs in relation to the Independent Children’s Lawyer.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 11 October 2019 and were fixed for final parenting hearing on 4 and 5 November 2024. The proceedings were commenced by the applicant father (“the father”) in relation to the child X (“the child”), born in 2019, seeking recovery orders. The parenting matter has had a protracted history of dispute. By the time that it came on for parenting hearing the core issues were as follows:
(a)whether there should be joint decision-making responsibility on all major long-term issues, with a carve-out exception for schooling, or whether one party should have responsibility for making all major long-term issues.
(b)whether time with the father should be increased to seven nights a week and, if so, which day in relation to increasing the six night per week arrangement that has been in place since 11 September 2023;
(c)whether there should be a restraint until the age of 12, 8 or at all in relation to overseas travel by the respondent mother (“the mother”) with the child.
In summary, for the reasons given the Court finds, that the mother should have sole decision‑making responsibility on all major long-term issues, that the existing arrangement of six nights should remain in place and that the mother should be permitted to travel overseas subject to conditions in respect of notification of travel, pre-paid tickets and, until the child is eight years of age, by accompaniment with the mother's new partner.
EVIDENCE
The following affidavits were read, with annexures treated as being in evidence:
(2)Affidavit of Mr Emmet dated 18 October 2024;
(3)Affidavit of Ms N dated 18 October;
(4)Affidavit of Ms Bernardo dated 28 October 2024; and
(5)Affidavit of Mr M dated 28 October 2024.
EXHIBITS
The following exhibits were tendered into evidence in the proceedings:
(1)Exhibit A: Family Report dated 9 May 2022;
(2)Exhibit B: Proposed Short Minutes by the ICL;
(3)Exhibit C: MFI 1 Documents Relating to the Respondent’s Criminal Activity or Gambling Activity
(4)Exhibit D: Respondent’s Tender bundle; and
(5)Exhibit E: MFI 2 with item Removed.
APPLICANT FATHER’S EVIDENCE
The father’s affidavit dated 6 May 2022 identified that the father has one daughter X, born in 2019 with the mother and indicated that he has another daughter from a previous marriage who he spends 4 nights per fortnight with and half the school holidays.
The father disposed that that the is in a de-facto relationship and engaged to be married to Ms N who he has been in a relationship with since 2021 and cohabitating with since 2022.
The father stated that the parties commenced cohabitation in 2019 and separated on final basis on 12 April 2020.
The father indicated that the parties relationship was on and off throughout 2019 with the initial period of cohabitation being a number of months in length. The father stated that the mother reconciled the relationship in late 2019 before final separation.
The father provided a history of the proceedings indicating that he initiated these proceedings on an urgent basis in October 2019 seeking recovery of the child from the mother. The father noted that consent orders were made on 29 October 2019 before Judge Myers that the child live with the mother and spend time with the father for 2 days each week and one overnight per fortnight.
The father identified that an interim hearing of the parenting application occurred on 10 December 2020 and further consent orders were made for the mother and father to share parental responsibility and for the child’s time with the father to increase to two nights and six days per fortnight.
The father deposed that the parties privately agreed for the child to spend six nights per fortnight with the father in early 2022. The father indicated that such an arrangement was formalised by consent orders on 11 September 2023.
The father acknowledged that in early 2022 the parties disagreed about the father travelling overseas with the child. The father noted that the child was placed on the airport watchlist in October 2019 and that the child was removed from the Airport Watchlist for the period that she was to travel with the father in 2022. The father identified travelling overseas with the child between mid-2022 and late 2023.
The father identified that the child’s schooling is an area of dispute between the parties. The father indicated that previous orders were made for the child attend a school selected by the mother.
The father stated that the mother was sentenced to a period of home detention for a number of months.
The father indicated that the parties participated in a legal aid mediation in 2024 that was unsuccessful.
The father asserted that the child is excelling academically and socially at school and at extracurricular activities. The father further attested to the positive relationship the child has with her older half-sister and Ms N.
The father deposed of changeovers requiring the involvement of NSW police to mediate the situation recalling the most recent time in late 2023.The father expressed a suspicion that the mother denigrates him. The father alleged that the child has on two occasions informed him of incidents which occurred in the mother’s house in 2023.
The father deposed that when the child is in his care her school mornings start at 5:30 am and do not finish until 4:15pm. The father expressed that he leaves the house with the child at 6:00 am arriving at the child’s school in Suburb D just after 7:00am where she is enrolled into before school care. The father noted that he arrives at his work just before or right on 8:00 am.
The father indicated that the travel he is required to travel each day for the child’s schooling is a significant issue. The father deposed that he is a an educator at H School part of the week and at O School part of the week. The father identified that he is required to be at work no later 8:00 am.
The father identified that the child had a secured and paid for place in Kindergarten at H School and that he had submitted an enrolment application for the child to attend O School.
The father alleged that the mother has the capacity to drive the child to school at O School in the mornings and that the child would only be required to wake at 7:30 am when in the mother’s care or 7:00 am when in the father’s care.
The father identified that the child apart from Wednesdays goes to bed between approximately 8:00pm and 8:20 pm due to extra circular activities.
The father identified taking both of his daughters on holidays to regional NSW during the school holidays.
The father noted that the parties have been agreeable on overseas travel and make up time in relation to the child apart for an outstanding request made by him in early 2024.
The father expressed a desire for the child to engage in the arts, attend a high school halfway between his and the mother’s houses and for the parties to have shared parental decision-making authority. The father stated that the parties only contention in relation to the child’s schooling was related to distance.
The father identified seeking an expansion of his time with the child to include a Sunday night allowing all changeovers to occur at school.
The father expressed concerns about the mother travelling overseas with the child and not returning to Australia, noting that the mother is a citizen of Country P and holds a passport from Country P.
The father asserted that the mother has significant debts in Australia including debts owed to the ATO.
The father alleged that the mother was verbally and physically abusive throughout the relationship.
The father recalled incidents where the mother allegedly stole from him in 2019.
The father deposed that the mother was fired from her job due to suspicions of criminal activity.
The father identified that he remained at home caring for the child when the mother returned to work for 3 days each week.
The father recalled leaving the family home in early 2019 and in mid-2019 with both of his daughters for fear of the mother.
The father alleged the mother informed him that she had told Centrelink that she was a single mother and threatened to leave him following his objection. The father alleged that the mother also opened a case for child support on 13 May 2019 and proceeded to threaten the father if he did not confirm they were separated.
The father identified a series of incidents between the mother and his other daughter including an incident where the mother grabbed and pulled the other daughter and threated to take the child if the father went against her.
The father deposed that the mother had been sentenced for a criminal offence in 2018 and had received a non-custodial sentence.
The father referred to the mother’s criminal history.
The father identified working in another role on weekends when not caring for his children. The father deposed that his estimated teaching salary is $80,000.00 per annum.
The father referred to attending counselling sessions with a charitable organisation as a victim of a partner with gambling problems following separation and from 2021 to 2023 attended counselling sessions once every few weeks with another community organisation.
The father referred to the child having a positive relationship with her paternal grandparents, extended paternal family and family friends.
The father recognised the importance of the child spending time with the mother and expressed a belief that the child would prefer to live with each parent equally.
The father's cross-examination gave rise to consistent and repetitive criticisms and disparagement of the mother by the father. Many of those disparagements and criticisms were unresponsive to the question and were volunteered. The father's evidence in cross-examination revealed an ongoing latent hostility or anger towards the mother, stemming from the belief that he was tricked into the relationship and fatherhood, and perceiving himself as the victim of alleged family violence by the mother.
The father's evidence in cross-examination, consistent with, the approach adopted in his affidavit, persistently painted the mother in a negative light and, blamed the mother for the conflicts that had arisen in relation to the circumstances giving rise to an ADVO in favour of the father and the mother, the failure to agree upon schooling, the conflict in relation to make‑up time in respect of overseas travel by the father and for the father's refusal notwithstanding the terms of the orders made on 11 September 2023 in order 4 for collection of the child from the father's residence to require the mother to collect the child from a shopping centre nearby. When the father was asked for the address of his residence in cross examination, he objected and gave reasons for his concern as to disclosing his address that reflected his assertions of criminal activities by the mother.
The father also gave evidence in his affidavit in respect of the schooling issue, as to the impact requiring the child to get up at 5.30 am in order to travel to school, in advancing the contention that the child should attend one of the two schools at which the father is employed. The position of the mother that was still advanced after there had been an interim determination by this Court on 15 December 2023 was that the child should attend the school chosen by her, being B School, as it was close and convenient to the her residence.
The father was also cross-examined about the foundation for his fear that the mother would not return with the child if permitted to travel overseas, and in that regard the father acknowledged the mother has a sister who has been living in Australia, the father believed, for 15 years. The father purported to justify the stance in respect of overseas travel because of the potential for the mother to owe an amount to the Australian Taxation Office (“ATO”). That amount arose from criminal activity perpetrated by the mother on the ATO in relation to which she was convicted, and there is no Court order in place that is apparent, requiring her to make any such payment.
The father gave evidence that he was assaulted by the mother when the child was still breastfeeding when he attended the day-care location and refused to release the child from his arms, in the course of which the mother assaulted the father, trying to recover her child but being unable to do so due to the superior strength of the father.
RESPONDENT MOTHER’S EVIDENCE
The respondent mother’s affidavit dated 28 October 2024 identified that the parties commenced cohabitation in 2019 and separated on 4 October 2019 before reconciling in late 2019 separating on a final basis in April 2020.
The mother has one child with the father, X, born in 2019. The mother identified having two other children Q, born in 2007 and R, born in 2023 with whom she shares with her current de‑facto partner Mr M.
The mother referred to unsuccessfully attempts at resolving the parenting dispute with the father through family dispute resolution.
The mother stated that she met the father in 2018 through a dating application.
The mother indicated that the parties initially lived with the father’s parents for five to six weeks before moving into the father’s home in 2019 which she alleges she initially vacated in late 2019 and following reconciliation vacated again in early 2020.
The mother acknowledged her prior criminal convictions and her historical gambling addiction. For a criminal offence the mother received a sentence of home detention from early 2024 to early 2025.
The mother deposed that a charge concerning theft from the father was withdrawn and dismissed in 2023.
The mother identified that the father was present at almost all of her Court appearances for criminal proceedings. The mother recalled instances where the father would inform her that she would be sentenced to lengthy terms of imprisonment and that she should change her name, get a fake passport and go to back Country P. The mother alleges the father informed her that if he would prevent the child seeing her if she was imprisoned but would take the child to visit her in Country P if she moved back.
The mother indicated that the father reported to Suburb S police that she had sexually assaulted him when he was collecting the child from her residence in 2020. Suburb S police following an interview with the mother declined to press charges.
The mother deposed that the father has also reported her to the Department of Communities and Justice (“DCJ”). The mother referred to two instances in mid-2021 where a DCJ officer and the following month in 2021 where two police officers following interviews and welfare checks reported that the child is not at risk in then mother’s care.
The mother indicated that she attends a program every two weeks with community organisation for her gambling addiction and has done so since 2021. The mother asserted that she has refrained from gambling for approximately three years.
The mother outlined the current parenting arrangements between the parties and identified that all changeovers occur at school other than on Sunday where the changeover occurs at a shopping centre at 6:00pm. The mother asserted that the father does occasionally delay pickups on a Sunday and that it may be more appropriate for the child to remain in the fathers care until school on Monday.
The mother identified that the father declined to provide her his residential address.
The mother stated that the child is currently in kindergarten at B School in Suburb D. The mother referred to the parties contentions and suggestions regarding X’s schooling. The mother indicated that the fathers suggested school, H School is approximately 30 km away from her residence and would take close to an hour to travel to and from school each way. The mother provided that she suggested the child attend another school that was an equal distance away from both parties however noted that the father was opposed to the school fees and the difference in school calendar year to his other daughter.
The mother noted that the father relocated top to Suburb K in 2023.
The mother identified that orders made on the 15 December 2023 provide for the child to attend B School, Suburb D. Further consent orders made on 15 December 2023 reflected an agreement that the parties share the cost of the school fees equally. The mother alleges that the father as mid-2024 ceased contributing to the child’s school fees.
The mother expressed a belief that the child is exceling academically and socially at school identifying the various activities the child is involved in at school.
The mother recognised that changing the child’s school would reduce the fathers travel time when she is in his care but indicated that she would be required to do the extensive traveling. The mother also expressed a concern that changing the child’s school may cause her distress and asserted that it is not in her best interests.
The mother referred to the difficulties the parties have experienced with co-parenting including the father refusing to hand the child over for a school interview in mid-2023 or refusing to return X the following month in 2023 on the basis that the mother had Court a few days later. The mother further identified difficulties between the parties in relation to the interpretation of the start of the school holiday period.
The mother expressed concerns regarding the child’s nutrition when in the father’s care asserting the child goes into her care hungry and not having eaten much as the father has been busy.
The mother identified that the child previously participated in extracurricular activities between mid-2023 and late 2023. The mother recalled that the child had an opportunity to participate in an extracurricular activity at a venue and that the father refused to swap weekends. The mother alleges that the father informed her that he would only drop the child to the venue if she called child support to stop child support payments. The mother identified that the child did not participate in the extracurricular activity.
The mother alleges the father did not contribute any child support from 2019 to 2023. The mother identified that following a request and subsequent assessment in late 2023 the father pays $50 per week.
The mother indicated that she enrolled X into sport lessons in 2022 but temporarily ceased in 2023 and as of 2024, has re-enrolled X in sport lessons.
The mother identified that her father has an illness and expressed a desire to travel with her partner and children to Country P.
The mother asserted that she has lived in Australia since she was 19, is an Australian citizen and regards Australia as her home expressing no desire to return to Country P to live. The mother deposed that her two other daughters are both Australian Citizens and that she has never expressed a desire to flee to Country P to the father.
The mother acknowledged that she is a Citizen of Country P and contended that she does not hold a valid passport for Country P asserting that it expired around 2016. The mother noted that she has not visited Country P since 2015.
The mother raised a concern that the father if permitted to hold X’s passport may decline to allow X to travel with her should that be allowed.
The mother identified that her and her partner have been in a relationship since 2022 and that she resides with her children in his home in Suburb D.
The mother indicated that she currently works in an administrative role at her partner’s company.
The mother identified a positive and loving relationship between X and her partner Mr M and his family.
The mother identified the importance of teaching X and her other daughters about their Country P heritage.
The mother recognised the important positive relationship X shares with the father and his extended family.
The mother was cross-examined about her criminal record that included an offence for which she was convicted and sentenced in relation to that conduct, as well as in relation to another criminal offence involving the ATO. The cross-examination in relation to the mother's criminal conduct did not, in any way, identify a want of parenting capacity by the mother, albeit that part of the conduct occurred after the child had been born.
The mother identified genuine contrition for her criminal behaviour, both in her affidavit and in the witness box. The mother also gave evidence in relation to the incident involving the obtaining of the ADVO and the circumstances in which she came to assault the father. In relation to that incident the mother indicated that the child was extremely young and that police were called, and that she was taken to the police station and charged. No charge was advanced against the father, and it was in these circumstances that the father obtained an ADVO against the mother in his favour and that of the child.
The mother gave evidence about the father's failure to agree to make-up time prior to attending to collect the child for overseas travel. The mother also gave evidence in relation to the father's refusal to agree in relation to schooling and gave evidence as to the difficulties she had encountered in communications with the father.
EVIDENCE OF MS N
The father’s partner Ms N in her affidavit dated 18 October 2024 indicated that she has been in a relationship with the father since 2021 and is currently residing in Australia on a partner visa. The father’s partner identified that she moved to Australia in 2022.
The father’s partner indicated that she works part-time in a domestic role and has maintained this employment for over a year.
The father’s partner identified that prior to moving to Australia the father travelled with his daughters to Country T to visit her and meet her extended family.
The father’s partner referred to assisting the father care for the child and having a loving relationship with her.
EVIDENCE OF MR M
The affidavit of the mother’s partner Mr M dated 28 October 2024 identified that the mother and her partner have been in a relationship since early 2022.
The mother’s partner indicated that he has four daughters, three adult daughters from a previous relationship and R, born in 2023 with whom he shares with the mother.
The mother’s partner identified that the mother and the child live with him.
The mother’s partner deposed of having a positive and meaningful relationship with the child.
The mother’s partner indicated that he owns a business which he has been operating for approximately five years and referred to the mother assisting the business.
The mother’s partner referred to the mother’s desire for the family to visit Country P.
CHRONOLOGY
Date Event 1979 Applicant Father born (currently 45 years of age) 1983 Respondent Mother born (currently 41 years of age) 2018 Parties commence relationship 2019 X born (currently 5 years of age) Early 2019 Parties commence cohabitation October 2019 Parties initially separate 29 October 2019 Orders were made in respect of the parenting arrangements for the child including an order that the child be returned to the Respondent mother’s care, the child to live with the Respondent mother and spend time with the Applicant father. Late 2019 Parties reconcile April 2020 Parties separated on a final basis APPLICANT FATHER’S SUBMISSIONS
The father's case outline dated 31 October 202and the oral submissions maintain that there should be joint decision-making responsibility in all major long-term issues. It was submitted that the mother's evidence supported the capacity of the parties to mutually agree in relation to all major long-term issues. It was contended that the only exception was schooling, and that the parties should be left in a position to agree upon schooling when that issue potentially further arises in respect of the child going to high school.
In relation to increased time to seven nights per week, the father's preference was for the existing arrangement to have added a Friday and, in the alternative, to have added a Sunday night. It was submitted that the Friday night would be more convenient to the child because the Sunday night may require the child to get up at 5.30 am in the morning.
It was submitted that the travel time for the father in relation to the existing school, being B School, required the child to change to one of the two schools at which the father was working, in substance being a re-agitation of the issues advanced and determined on an interim basis on 15 December 2023. The father wished to retain the passport and objected to the mother travelling overseas with the child until the child was 12 years old.
RESPONDENT MOTHER’S SUBMISSIONS
The mother’s case outline was dated 1 November 2024 advanced joint decision making except as to schooling which the mother should decide. The mother submitted orally that in light of the evidence that had been adduced, in particular, the attitude, and the latent anger that the mother should have sole decision-making responsibility in all major long-term issues. It was submitted that the parties have had consistent difficulties in issues beyond schooling, including make-up time. It was submitted that permitting purported joint decision-making responsibility would give rise to ongoing future disputes. It was submitted that the existing time regiment and arrangement of six nights per fortnight had been working well and should remain in place rather than being increased to seven nights per fortnight.
It was further submitted that the mother has substantial connections with Australia and that there was no safety risk to the child of not being brought back to Australia in overseas travel with the mother. The mother submitted that conditions could be imposed in relation to overseas travel including, if necessary, financial security. It was submitted that the child should continue to remain at B School where the child has been thriving.
SUBMISSIONS OF THE ICL
The ICL did provide a case outline and, during the course of the hearing, did propose a minute of orders. However, in light of the whole of the evidence, the ICL supported the mother's position of having sole decision-making responsibility on all major long-term issues. The ICL also supported the existing arrangement in relation to school days remaining in place with the father only having six nights per week rather than seven.
The ICL also supported permitting the child, when the mother is able to do so, to travel overseas with the mother, initially with appropriate conditions, and that the child's passport should remain with the mother. It was submitted by the ICL that the conduct of the father did reveal controlling behaviour and a latent hostility that continues in relation to the mother. It was submitted that the failure to comply with the Court's orders made in September 2023, to require the mother to return the child to the shopping centre rather than the father's residence, was also controlling behaviour.
THE RELEVANT PRINCIPLES OF PARENTING LAW
The Court has taken into account the new statutory pathway in relation to Pt 7 of the Family Law Act 1975 (Cth) (“the Act”) and, in that regard, the Court has had regard to the principles in s 46, s 60B, s 69ZN, and the objects identified of the Act.
The Court has also had regard to the meaning of a "parenting order" in s 64B of the Act, as well as the purpose of the order identified in s 65D of the Act.
The Court has also taken into account the paramount concern, being the best interests of the child, identified in s 60CA and s 65AA of the Act.
The new provisions in s 60CC of the Act are as follows:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
a.consider the matters set out in subsection (2); and
b.if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3)
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
a.what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i. the child; and
ii.each person who has care of the child (whether or not a person has parental responsibility for the child);
b.any views expressed by the child;
c.the developmental, psychological, emotional and cultural needs of the child;
d.the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e.the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f.anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
a.any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
b.any family violence order that applies or has applied to the child or a member of the child’s family.
That the Court has also taken into account the principles as discussed in Kapoor & Kapoor [2024] FedCFamC2F 605 in identifying parenting principles.
FINDINGS AND CONCLUSIONS
Both parents clearly have a close and loving relationship with the child, and the child expressed no views in relation to living arrangements. The young age means little weight would be given to such views. In general the Court prefers as a matter of credit the evidence of the mother to that of the father. The mother was the more credible witness and the father’s credit was undermined by his latent hostility towards the mother. The Court has made further findings on the father’s credit below.
Dealing with s 60CC(2)(a) of the Act, the Court is satisfied that the mother having sole decision-making responsibility for all major long-term issues would promote the safety of the child, including preventing the child from being exposed to family violence or controlling behaviour by the father in relation to schooling and other long-term issues. The Court is not satisfied that the father and mother are able to jointly make major long-term decisions and accepts the mother's evidence that the father would be inflexible and would dictate the outcome.
In relation to schooling, the Court finds the existing arrangement in relation to B School would best promote the safety of the child, being a location currently nearest the mother. The Court is satisfied that permitting the mother to have decision-making responsibility for all major long‑term issues in relation to schooling, or education for the child, as well as all other major long-term decision-making issues, is most likely to prevent the child being subjected to family violence or controlling behaviour by the father.
In respect of increased time, the Court is also of the view that the existing arrangement during the school term best promotes the safety of the child. The Court has taken into account the observations in the ICLs submissions about the communications with the child, but the child's age is such that the observations are of limited assistance. The Court is of the view that the mother having the decision-making responsibility for all major long-term issues will best advance the developmental, psychological, emotional and cultural needs of the child. The child is currently performing well and thriving at her school.
The father's repeated attempts to obtain a school at which he was teaching was to advance his interests, as submitted by the ICL, rather than that of the child's. The father's insistence on a school more convenient for him was not one advancing the interests, in terms of developmental, psychological, emotional and cultural needs, of the child. The Court is also of the view that remaining with the present sixth night per fortnight is in the best interest of the psychological, emotional and cultural needs of the child, both by reasonably increased time with the mother during school term, increased stability and the reduced need for travel time and early mornings with the father when attending a particular school.
In relation to the issue of overseas travel, the father identified in his evidence the child enjoying the exposure to the culture of his new partner from Country T but had not taken any steps to advance the child's connections to her cultural connection to Country P. The Court is satisfied that the overseas travel with the mother, subject to appropriate conditions, will best advance the developmental, psychological, emotional and, in particular, the cultural needs of the child.
The Court accepts the mother's evidence that the grandfather of the child on the maternal side is seriously ill and permitting such overseas travel as soon as the mother is otherwise able to do so, after completion of her relevant sentence which involves home detention and precludes overseas travel, is then appropriate.
In relation to s60CC(2)(d) of the Act, the Court is satisfied as to the capacity of each party in general to meet the child's needs. But the qualification identified is that the father has not advanced the cultural needs of the child and permitting overseas travel will do so.
In relation to s60CC(2)(e) of the Act, the proposed orders at least permit the child to have a relationship with the parents and the people who are significant. The Court is satisfied that it is safe to permit the overseas travel with the conditions the Court proposes.
In relation to s 60CC(2)(f) of the Act, the Court has taken into account the history of conflict between the parties where there have been competing recovery applications and family violence in the presence of the child, both at the time of the incident in giving rise to the ADVO and at the time of the dispute in relation to overseas travel and make-up time. The Court is satisfied that the orders proposed by the mother and ICL are most likely to prevent any future dispute in relation to the child and are in the best interests of the child.
Consistent with s 60CC(2)(a) of the Act, the Court has taken into account the family violence that has occurred. In that regard, the Court prefers the evidence of the mother to that of the father. The father's latent hostility or anger towards the mother, apparent in his affidavit and in his cross-examination, materially undermines his credit.
Further, the father was willing to propound in his affidavit and in his evidence an assertion of impact on the child, in respect of his repeated desire to change school, that the child is required to get up at 5.30 am in the morning. That proposition was qualified in the second day of the hearing where he identified that would only occur if he was at a particular school, and his evidence identified that otherwise the child got up at 6 am.
The Court finds the father in this regard gave evidence in his affidavit that was not true and correct, which the Court finds materially undermines his credit, generally, given the centrality of the issue sought to be re-agitated in relation to schooling and its impact on long-term decision-making as issues between the parties.
The Court finds that the father did engage in family violence in the incident that gave rise to the ADVO being obtained in the father's favour against the mother. The Court accepts that the mother also engaged in family violence, provoked and caused by the father, by assaulting the father in seeking to recover her breastfeeding child from the father. The father’s conduct in physically withholding the breastfeeding child using his greater strength to resist the wife’s invitation for return of the child, was itself an assault on the child by the father that should not have occurred. That conduct by the wife should not have given rise to any charge against the wife and overall was an understandable reaction by a distressed mother to the physical assault occurring by the husband in physically resisting the return of the child to the mother. The only person who should have been charged in this incident was the father.
The conduct of the father in withholding the child warranted different charging conduct to that that occurred, with the mother being taken to the police station and charged. It would have been open to the police to charge the father with assault in relation to the child. Further, given the young age of the child, the charging of the mother with an alleged criminal offence in relation to that assault ignored the father’s assault of the child and the father’s provocation of the mother and was unnecessary, disproportionate and inappropriate in context of the dispute in respect of which the Court prefers the mother's evidence.
Moreover, the ADVO should have been, on one view, put in place for the protection of the mother and the child and not in favour of the father. The father's persistent attempts to have the mother charged and reported is consistent with the Court's finding of the continued latent anger and hostility of the father towards the mother and as indicated undermines his credit.
The cause of the family violence that occurred in respect of the overseas travel and make-up time, the Court finds, was due to the controlling conduct of the father. The Court finds that the non-compliance with the Court's orders, in terms of return of the child to the father's residence, was due to the controlling conduct of the father.
Taking into account that history of family violence and the ADVO that had been in place the Court is satisfied that the history to which the Court has referred, and the family violence order that was, in fact, made when it should not have been, all weigh in favour of the orders currently proposed by the Court. In all the circumstances the Court is satisfied that the proposed orders are in the best interests of the child.
Taking into account all the factors in s117(2A) and in particular the financial circumstances of the parties under s 117 of the Act the Court finds that in all of the circumstances no order for costs should be made in favour of the ICL.
It is for these reasons the Court makes the above orders.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 16 December 2024
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