Enright & Normands
[2022] FedCFamC1F 224
•7 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Enright & Normands [2022] FedCFamC1F 224
File number(s): SYC 1162 of 2019 Judgment of: CHRISTIE J Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – Allegations of Family Violence - Equal shared parental responsibility – Substantial and significant time – Communication difficulties – International travel Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B(2), 60CA, 60CC, 65Y
The Hague Convention on the Civil Aspects of International Child Abduction
Division: Division 1 First Instance Number of paragraphs: 117 Date of hearing: 23 March 2022 – 25 March 2022 Place: Sydney Solicitor for the Applicant: Mr Jones, Adam Jones Solicitor Counsel for the Respondent Ms Tovey Solicitor for the Respondent Pittwater Family Lawyers Solicitor for the Independent Children's Lawyer: Mr Hearl, Delaney Lawyers ORDERS
SYC 1162 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ENRIGHT
ApplicantAND: MS NORMANDS
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.The child X (born 2018) (“X”) be known as X Normands-Enright and Ms Normands (“the mother”) and/or Mr Enright (“the father”) (“the parents”) be permitted to make an application for amendment of her birth certificate.
2.The parents have equal shared parental responsibility for X.
3.The parents do all acts and things to ensure X commences school at the beginning of Term 1 2023.
4.In the event that the parents cannot agree about where X should attend school then she attend school in the NSW Government catchment area in which the mother’s residence is located at the time of enrolment and remain at the school to complete primary school unless otherwise agreed in writing.
5.X live with the mother.
6.X spend time with the father from the date of these orders until 31 January 2023 as follows:
(a)From 9.00 am until 6.00 pm each Wednesday; and
(b)From 9.00 am each Saturday until 5.00 pm each Sunday.
7.X spend time with the father from 31 January 2023 until 31 January 2024 as follows:
(a)During school terms on the first weekend after school recommences each term and each alternate weekend thereafter from 9.00 am Saturday until 5.00 pm Sunday;
(b)During school terms each Wednesday from the conclusion of school to the commencement of school on Thursday;
(c)During school holidays by agreement and failing agreement for one week in each of the school holiday periods at the end of Terms 1, 2 and 3 from 9.00 am on the first Monday after school concludes until 9.00 am the following Monday; and
(d)In the summer school holidays as agreed and failing agreement in a week about arrangement with the father to have the first week commencing on the first Monday after school concludes at 9.00 am and concluding on the following Monday at 9.00 am and each alternate week or part of the week thereafter.
8.X spend time with the father from 31 January 2024 until 31 January 2025:
(a)During school terms on the first weekend after school recommences and each alternate weekend thereafter from after school Friday until Sunday 5.00 pm;
(b)During school terms each Wednesday from the conclusion of school to the commencement of school on Thursday;
(c)During school holidays by agreement and failing agreement, for one week in the school holidays at the conclusion of Terms 1, 2 and 3 from 9.00 am on the second Monday after school concludes until 9.00 am on the following Monday; and
(d)During the summer school holidays for half of the school holidays by agreement and failing agreement, in a week about arrangement commencing with the father having the second week of the school holidays commencing on the second Monday after school concludes at 9.00 am and concluding on the following Monday at 9.00 am and each alternate week or part of the week thereafter.
9.X spend time with the father from 31 January 2025 as follows:
(a)During school terms each Wednesday from the conclusion of school to the commencement of school on Thursday;
(b)During school terms commencing on the first weekend after term commences from after school Friday until before school Monday (or 5.00 pm if a public holiday) each alternate weekend; and
(c)During the school holidays for half the holidays by agreement and failing agreement, to be the first half of the school holidays in even numbered years and the second half in odd numbered years.
10.Notwithstanding any other order, X spend time with the father as follows:
(a)On Father’s Day from 9.00 am to 5.00 pm;
(b)On the Father’s birthday from 9.00 am to 5.00 pm;
(c)From 9.00 am Good Friday to 8.30 am Easter Sunday in odd numbered years commencing in 2023;
(d)From 8.30 am Easter Sunday to 5.00 pm Easter Monday in even numbered years commencing in 2024;
(e)From 10.00 am on Christmas Day 25 December to 10.00 am on Boxing Day 26 December;
(f)New Year’s Day in odd numbered years from 10.00 am to 6.00 pm; and
(g)Such other times as the parents agree in writing.
11.Notwithstanding any other order, X shall spend time with the mother as follows:
(a)On mother’s day from 9.00 am to 5.00 pm;
(b)On the mother’s birthday from 9.00 am to 5.00 pm;
(c)From 9.00 am Good Friday to 8.30 am Easter Sunday in even numbered years commencing 2024;
(d)From 8.30 am Easter Sunday to 5.00 pm Easter Monday in odd numbered years commencing 2023;
(e)From 10.00 am on 24 December to 10.00am on Christmas Day 25 December;
(f)New Year’s Day in even numbered years; and
(g)Such other time as the parents agree in writing.
12.X have electronic communication with each of her parents at all reasonable times.
13.The parents continue to use the Trello Application to communicate unless agreed in writing.
14.Within 28 days of the date of these orders, the parents will do all things and sign all documents to enrol X in play therapy and the parents are to equally share the costs of the play therapy.
15.If any dispute arises with regard to any issue relating to X the parents will first engage with T Services or such other entity as agreed between the parents.
16.That the parents notify each other within 48 hours of any change in their email address.
17.Other than when changeover is at X’s school, changeover shall occur as agreed between the parents in writing and failing agreement, at the Coles Suburb B, corner of M Street and N Street.
18.Within 14 days of the date of these orders, the father do all such things to retrieve X’s passports and birth certificate from his friend in Adelaide and hand X’s passports and birth certificate to the mother.
19.Each of the parents is restrained from making comments derogatory of the other parent, in the presence or within the hearing of X and shall use their best endeavours to ensure no one else makes such comments in X’s presence or hearing.
20.Both parties are restrained from discussing these proceedings in the presence of or within the hearing of X.
21.Each parent shall undertake to inform the other parent about any urgent medical treatment for X as soon as possible.
22.The parent who has the care of the X while in circumstances where she becomes ill will inform the other parent of the nature and extent of the illness as soon as possible.
23.X’s name shall be forthwith removed from the Australian Federal Police Family Law Watchlist.
24.The mother shall within 14 days of receipt sign any application for a Country N passport for X and any documentation required to obtain a Country N passport for X.
25.Upon the issue of X’s Country N passport the father shall provide it to the mother and she will return it to the father within 14 days of any request by him in writing to enable X to travel or enable the father to make arrangements for X to travel.
26.Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) the mother and father are authorised to remove the child X from the Commonwealth of Australia on the following basis:
(a)No later than eight weeks prior to any planned trip outside Australia, the parent who planned the trip shall give the other written notice of their intention to travel and itinerary.
(b)No less than four weeks prior to departure, the parent who is travelling shall provide a photocopy of the child’s return ticket for the trip.
(c)The travelling parent will provide the other parent with a contact number for X.
(d)Travel will take place during the travelling parent’s time pursuant to these orders (and during school holidays) or as agreed in writing.
27.In the event that X’s Australian, Country N or Country E passports lapse, each party shall do all acts and things and sign all documents necessary to have a new passport issued.
28.Upon the issue of an Australian or Country E passport, the mother shall hold those passports with same to be provided to the father for travel in accordance with these orders within 14 days of any request.
29.The application for costs of the Independent Children’s Lawyer is dismissed.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Enright & Normands has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for parenting orders for the child X (“X”) who was born in 2017.
X’s father, Mr Enright (“the father”), made an application for parenting orders following his separation from Ms Normands (“the mother”). The mother filed a response. The mother and the father have been unable to reach an agreement and have asked the Court to determine what parenting arrangements are in X’s best interests.
An Independent Children’s Lawyer (“the ICL”) was appointed to represent X’s interests in the proceedings.
BACKGROUND
The mother and father (“the parents”) separated very soon after X’s birth although they remained living separately under the one roof between their separation in February 2018 and the mother leaving the property with X in April 2018.
The father was born in Country N and the mother in Country E. X’s only family in Australia are her mother and father.
At the time of separation, the mother and X moved into a rental property in reasonable proximity to their former home.
There was only one occasion where X spent time with the father in the period between April 2018 and August 2018. This is partly explained by his pre-planned trip to Country N and having suffered pneumonia but it is conceded by the mother that the time did not occur chiefly as a consequence of the advice she had received.
The parents reached an informal agreement in August 2018 for the father to spend time with X as follows:
(a)Initially one hour per week;
(b)Then two hours per week on Saturday and one hour on Monday;
(c)Then two hours on both Saturday and Monday.
Orders were made on 9 May 2019 that provided for the father to spend time with X for three hours on Mondays and Wednesdays and four hours (later increasing to seven hours) on Saturdays during the day.
The matter came back before the court on 20 September 2019 and orders were made by consent that provided for X to spend time with the father:
(a)Mondays 9.00 am – 12.00 pm
(b)Wednesdays 11.30am – 6.30 pm
(c)Saturdays 9.00 am – 5.00 pm
On 2 October 2021 X commenced spending overnight time with the father pursuant to orders dated 3 September 2021.
The mother filed an Amended Response to the father’s Initiating Application on 31 January 2022. In that Response she sought orders providing for X to graduate to spending four nights a fortnight with the father.
On 23 March 2022, the mother served a minute of order which sought that X spend time with the father:
(a)On each Wednesday from 9.00 am to 6.00 pm; and
(b)On each Saturday from 9.00 am to 6.00 pm
(c)From … August 2023 to … August 2024:
(i)On each Wednesday from after school pick up to 6.00 pm; and
(ii)On alternate weeks from Saturday 9.00 am to Sunday 5.00 pm.
(d)From … August 2024 onwards:
(i)On each Wednesday from after school pick up to 6.00 pm; and
(ii)On alternate weeks from Saturday 9.00 am to Monday before school drop off.
The father filed a minute of order he sought which provided he spend time with X:
(a)On Wednesdays from 9.00 am to 6.00 pm and from 9.00 am on Saturdays to 12.00 pm on Sundays until April 3, 2022.
(b)Thereafter, for a period of six months, on Wednesdays from 9.00 am to 6.00 pm and from 9.00am on Saturdays to 5.00 pm on Sundays.
(c)Thereafter, from 9.00 am on Wednesdays until 9.00 am on Thursdays and from 9.00 am on Saturdays to 5.00 pm on Sundays.
THE EVIDENCE
The father relied on affidavit material from himself and his friend U (“Mr U”). Both the father and Mr U were cross-examined.
The mother relied on affidavit evidence from herself and her mother Ms C (“the maternal grandmother”).
Ms V (“Ms V”), a family consultant, prepared a report dated 2 October 2020 (“the family report”) on which the ICL relied. Ms V was not required for cross-examination by any of the parents to the proceedings. I accept that some of her observations are out of date (given the interviews and observations took place in 2020). However, to the extent that she expressed opinions which are not affected by the passing of time or changed circumstances I am consequently entitled to accept her conclusions in the family report.
THE LAW
The overarching principle is that any parenting orders which I make must be in the best interests of X pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”).
In order to make a determination as to what arrangement will be in X’s best interests I must have regard to all relevant considerations set out in ss 60CC(2) and (3) of the Act.
CONSIDERATION
Parental Responsibility
Leaving aside the issue of education, about which the mother sought sole parental responsibility, the parents agreed that there should be an order for equal shared parental responsibility. Such an order is appropriate in this case, as each of the parents is engaged in the life of their daughter and conscious of the need to make informed child focused decisions.
The only potential disadvantage to an order for equal shared parental responsibility is that the parents may reach a communication impasse in circumstances where each has formed the view that his or her opinion is to be preferred. This is an incident of each parent being committed to learning and thinking about parenting matters.
I did not see any evidence that X has, to date, been impacted by the disagreements (which have occurred in writing) between the parents. The parents should not see this as support for the proposition that lengthy written disagreements are effective communication. Their goal after these proceedings conclude should be on reaching prompt child focused compromises.
X’s school
When the hearing commenced, the parents were at issue as to whether X should commence school in 2023 or 2024. As the case ran it became plain that the mother had abandoned her application that commencement of X’s schooling be delayed and that each of the parents were now seeking an order that X commence school in 2023.
The parents remained at issue as to what school X would attend. The father in his evidence proposed that X attend W School (“W School”), a school outside of the catchment in which he and the mother reside. The evidence established that it was a school within a 22 minute drive of the parties’ respective residences.
The father indicated that he was open to a range of different schools for X but lacked the financial capacity to pay significant private school fees.
The father proposed W School chiefly because of its French immersion program whereby French language is integrated into the curriculum. The father’s interest in X becoming fluent in French arises from his Country N heritage and the fact that X’s cousins in Country N attend French immersion programs at school. The father gave evidence that the school also had an “ad-hoc Country E […] language program and [offered religious education]”: affidavit of Mr Enright, 2 March 2022 at paragraph 227.
As an alternative to W School, the father proposed Y School in Suburb B. The parties had agreed to baptise X in January 2018. The father gave evidence that both he and the mother are religious. Y School is an independent Catholic school and accordingly there would be some fees payable.
The mother gave evidence that she intended (if she were given sole parental responsibility for education) to enrol X at Z School (“the Z School”) in Suburb AA or the BB School in Suburb CC. The mother has selected each of those schools as in her view, they are likely to have many families who have not immunised their children and are likely to provide a “more flexible environment”. X has a friend who is currently attending the pre-school at the Z School and accordingly, if X were to commence kindergarten at that school in 2023, she would commence kindergarten with a friend.
In his oral evidence, the father indicated that he was not philosophically opposed to X’s attendance at either of the schools proposed by the mother as he supported their ethos and if she were prepared to pay the fees, he accepted that they were suitable schools. As the evidence emerged, it became plain that the father did not feel he was yet in a position to select a school for X in 2023.
The mother proposed that she be given sole parental responsibility in respect of education because of a concern on her part that, if the parties were required to reach an agreement in respect of X’s education, this would require considerable communication over a potentially lengthy period of time. There is some evidence to support that submission. The parties have each engaged in lengthy communication about issues relating to X. It is difficult to be critical of the thought that each of these parents has put into parenting issues for their child. Practically, however, X requires a decision to be made so that she knows where she will be starting school. I formed the view that each of the parents have a substantial interest in making decisions for X and that she will benefit from both of her parents being involved in decision making. Whilst I appreciate that the parents are likely to take what may be regarded as excessive time to reach a decision, I do not find that the requirement that they communicate with one another will expose either of them to undue conflict. The fact that the parties do not agree is, by itself, not relevant if they can do so in a way which is respectful. Accordingly, I will give them the opportunity to reach a decision about X’s schooling and in the absence of agreement, make an order that she attend a NSW government school.
The Family consultant acknowledging the communication difficulties noted the following:
…it might be detrimental to [X] to miss out on the potential benefit of one of her parents having input into important decisions about her life simply because the parents struggle to agree. The parents could potentially utilise mediation services if they struggle to agree on certain significant decisions about [X]’s care.
(Family Report 2 October 2020, paragraph 84)
I agree and accordingly, I will make an order requiring the parties to utilise the services of an accredited dispute resolution service when necessary.
Communication
These parties are over communicators. They are both educated and articulate. They write lengthy communications to one another. Those communications are almost always child focused on both sides.
The communication issues between the parties did not arise only after separation. The parties tried to address their relationship difficulties with counselling during the marriage. The father attached to his affidavit a statement from the person they engaged as a doula during the wife’s pregnancy, Ms DD (“Ms DD”). Ms DD observed the parties’ relationship difficulties during her role. Ms DD was not on affidavit and not cross-examined but there was (appropriately given Division 12A of the Act) no objection to her letter. She noted that the mother “would talk over [the father] which led him to do the same”. This tendency to speak at length, with repetition to make a point (including sometimes over other people) was something which was characteristic of the manner in which each of the parents gave their evidence in this case.
In some cases an inability to effectively communicate or resolve issues makes substantial and significant time orders or equal time orders untenable. In this case I am not convinced that the parties’ communication difficulties warrant restricting the father’s time with X. I have formed this view on the basis that:
(a)The parents have not in the main exposed X to the conflict between them;
(b)The parties are not disrespectful in their communication they just disagree;
(c)The father has studiously observed X’s diet as provided to him by the mother;
(d)The father raised with his friend Mr U the concerns raised by the mother concerning play between X and her friend EE which may have (on X’s report) included the dolls being placed near, or as the report is unclear, perhaps in - the children’s genitals.
The parties have for some time now used an application called Trello to communicate about X. That communication includes issues in respect of her day to day care as well as issues of more long term significance for her (in particular concerning X’s health). It is my view having reviewed the communication attached to both parties’ affidavits that the parents have effectively communicated about toilet training, diet, medical issues, sleep schedules and the like.
From time to time the parents’ correspondence can be lengthy and ineffectual. From time to time the mother has adopted a dogmatic tone in her communications with the father whereby she casts herself in the role of being the only one as between them who understands X’s needs. This is an unfortunate situation as each of these parents have a legitimate view as to what arrangement would be in X’s best interests.
One example that stands out is the lengthy communication required to change the location of changeover. The mother says that the parties took two and a half months to reach agreement about this issue. I must observe that this is a difficulty which will not be remedied by court order.
At other times the mother has sought to vary the existing orders to take into account changes in X’s routine and the father has resisted. I do not consider that either of them was unreasonable in the positions they assumed. Each of them must now separately juggle the demands of parenting and work as single people (without immediate family support). Compromise is vital. This is an area in which each of them have some work to undertake.
It will assist the parties’ capacity to communicate if they both understand that the times for changeover are not suggestions but court orders and persistent lateness undermines their ability to rely on one another and creates a needless opportunity for conflict. Changeover at X’s school commencing next year should assist.
Notwithstanding some of the communication difficulties, the parents have also been able to facilitate face to face meetings from time to time, including for the purpose of discussing health issues and for the purpose of co-operating in respect of X’s education. In January 2022 they both attended the information session for the FF School.
The parties have a similar attitude and approach to X’s health, to issues of attachment, to issues of co-sleeping and immunisation. The parents have agreed that until X is retested for gluten and dairy intolerances, she will avoid both gluten and dairy and other foods which may have come into contact with gluten or dairy. The father accepts that X will not eat meat in the mother’s household. The mother accepts (but does not support) the fact that X will eat some meat in her father’s household.
The communication issue has been acute for these adults because of the age of their child at separation. X could not verbally communicate her wants and needs. Young children require routine and stability which can only be achieved where both parties are on the same page about their child’s schedule. It is to their credit that they devoted so much energy to endeavouring to assist X. The issues that arise for a school aged child will be less controversial and more matters of practicality such as ensuring she has the correct equipment.
Allegations relating to family violence
The mother’s case as articulated in the case outline filed on her behalf was of separation from the father following “episodes of intimidation, coercive control and financial control”. On behalf of the mother, it is argued that those incidents are properly regarded as meeting the definition of family violence in s 4AB of the Act.
There is an important distinction to be drawn between how the mother may have felt as she looks back on the relationship and whether the father’s conduct, viewed objectively, meets the definition of family violence in s 4AB of the Act.
The mother filed a Notice of Risk on 7 May 2019. In that document, in answer to the question “has there been family violence or is there a risk of family violence by a party to the proceedings?” the mother answered “yes” and set out as the particulars:
(a)The applicant father has been aggressive towards the mother in the presence of the child, including shouting and screaming.
(b)The applicant father has, at times failed to care for the child properly by exposing the child to risk of injury and harm.
(c)The applicant father threatened to travel overseas with the child, without the mother.
The mother did not otherwise particularise what was said by her to constitute a risk of family violence, at least not in the Notice of Risk.
In her affidavit, the mother raised a concern that X may be at risk in her father’s care due to his “violent disposition”: affidavit of the mother, 9 March 2022 at paragraph 22. The mother says in her affidavit at paragraph 25 she allowed the father to spend time with X (prior to the making of orders) in the local library and public areas with camera surveillance. In cross-examination the mother confirmed that the father had never been physically violent nor did she maintain any concern that he would be physically violent to X. The mother never articulated why it was that she saw “camera surveillance” as necessary or appropriate.
The issue of family violence was discussed by the mother in her interviews with Ms V. The family report writer recorded:
When further exploring with [Ms Normands] the family violence allegations, [Ms Normands] said that she has in the past had fears that [Mr Enright] could kill her and [X]. She said that these fears are based on her experience of [Mr Enright] becoming very angry at times during the relationship, and him being increasingly aggressive towards the end of the relationship and following separation while living separated in the same home. She added that it appeared that [Mr Enright] was stalking her following separation.
(Family Report 2 October 2020, paragraph 50)
In reflecting on the expressed concerns the family report writer commented:
…it seems somewhat unusual that [Ms Normands] might perceive that [Mr Enright] could possibly kill her and [X] when there has not been a history of any significant violent or aggressive behaviour.
(Family Report 2 October 2020, paragraph 79)
The facts and circumstances said to constitute family violence by the mother became more plain as a consequence of the hearing and cross-examination. In broad terms the mothers allegations were as follows:
(a)That the father had verbally abused her. About this the mother conceded that it was not the words which had been spoken to her but rather the tone in which they were spoken which caused her to conclude that the father’s conduct was aggressive.
(b)The father had banged his fist on the table during an argument with the mother.
(c)The father had got close to the mother’s face when raising with her after separation the fact that he believed her conduct was rude.
(d)The father had been financially controlling of the mother.
Each of the above topics was explored in cross-examination.
To the extent that the mother asserts that the father was verbally abusive of her, I find that the parties argued. I find that the parties disagreed in respect of how they were to organise their finances. I find, consistent with the evidence, that the father did not use swear words in his arguments with the mother, nor did he refer to her by derogatory names. I find that the mother perceived the conversations as abusive and controlling in retrospect (following discussion with others). I cannot find on the evidence before me that they meet the definition of family violence.
I heard the evidence about the father and mother arguing about the proposed trip to Country N. The father agrees that in frustration, during that argument he banged his fist on the table. I accept that the mother found that conduct frightening. The mother found that conduct by the father frightening in circumstances where it is the only example the mother was able to point to which suggested the father had behaved in any way which might come close to meeting the definition to family violence in the Act. In effect what the mother said was that this action on the part of the father was uncharacteristic.
The mother was asked during cross-examination to further particularise her claims of financial control said to amount to family violence. The mother gave extensive evidence both in her affidavit and orally about an occasion on which the parties visited an organic fruit and vegetable market. She said on that particular occasion she had left her wallet at home. She asked her partner whether or not he could purchase a juice for her. It is agreed as between them that he responded by saying words to the effect “if I have enough money after we buy the fruit and vegetables I will buy you a juice”. On the basis of this evidence it appeared as though the mother was alleging the father’s failure to buy her a juice constituted an example of financial control such as would ground a finding that there had been family violence. The father’s evidence in reply indicated that the mother did indeed get a juice at the markets that day (and he annexed a photograph). I do not accept that the father’s comment about deferring the purchase until after the shopping was completed is “violent, threatening or other behaviour …that coerces or controls or causes [the mother] to be fearful”: s 4AB(1) of the Act.
When asked for further particulars in respect of her claim that she had been subject to financial control amounting to family violence, the mother referred to the fact that the father had prepared a budget for the parties. The father gave context to the preparation of the budget. In the year prior to the birth of X, the parties knew that the mother would be out of the paid workforce for a period of time following X’s birth. The parties were acutely aware of the fact that, having made the decision not to vaccinate their daughter, she would not be able to attend organised childcare. Both the father and the mother wished to take X home to their respective countries of origin: Country N and Country E. As a consequence, they planned a trip to each of those countries with X, following her birth. In addition to that, the mother also wanted to take a “baby-moon”. The mother wanted to travel with the father to Country GG for a baby-moon prior to X’s birth. The father was concerned about whether or not the parties’ finances could stretch to all three international trips within a 12 month period. He and the mother discussed what arrangements they could put in place in order to achieve this. I accept that the parties did not see eye to eye in respect of financial affairs. To disagree as to how the parties should spend their reduced financial resources during that time in and of itself cannot amount to family violence.
Section 4AB of the Act provides examples of behaviour which may satisfy the definition of family violence in s 4AB(1). The examples are not intended to be exhaustive of the factual circumstances that may attract the definition. In s 4AB(2)(h) the Act speaks of:
Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support
The father raised with the mother the possibility that they might be able to increase the funds available to them by engaging in income splitting of the income earnt from his business. The mother did not want to engage in income splitting and indicated that the pressure she felt from the father to consider this proposal also amounted to family violence. As was explored in cross-examination, the father was not aware as at the time he suggested this arrangement to the mother, that their relationship was going to end. The father saw this as a possible way of obtaining for the parties a taxation benefit and freeing up for them further income to be able to expend on their families’ expenses.
Again, whilst the parties may not have agreed as to the income splitting arrangement, this disagreement and indeed even the father’s frustration at not being able to implement such an agreement does not constitute family violence.
The mother was asked in cross-examination whether or not there had been any occasion on which she had been denied access to funds. The mother acknowledged that at no time was she denied access to funds which she held in her own bank accounts nor was she prevented from using the credit card which was in her name. The mother suggested that she had been prevented from using the parties’ joint funds. When asked for a specific example of this, the mother said that the father did not want her to use the joint bank account to pay for her own ticket to Country N. The question of payment for the mother’s aeroplane ticket to Country N was a matter of considerable controversy as between the parties. The parties had reached an agreement, as discussed above, that there would be travel to both Country N and Country E to introduce X to the parties’ respective families. The proposal as between them was that the father would pay for X’s ticket and his own ticket to Country N and the mother would pay for hers. The mother would pay for X’s ticket and her own ticket to Country E and the father would pay for his. At some time the mother became anxious about whether or not she would be able to pay for her ticket to Country N and the father indicated that he could make an arrangement to pay for that ticket. During a subsequent argument, the father says he forgot that he had been prepared to pay for the mother’s ticket and the parties had a further argument about this. I am not confident that the parties’ disagreement about their finances meets the definition of family violence in s 4AB of the Act.
The mother was deliberately asked open questions in cross-examination by the solicitor who appeared on behalf of the father about her allegations of control. She was asked to provide as many examples as she could and certainly asked to concentrate on what may be regarded as the most significant examples. The mother gave as an example that the father had (post-separation, at a time where according to his evidence the parties were living under the one roof attending T Services and he hoped would reconcile) begun to contact friends to arrange a birthday party for the mother. The mother says that she found his conduct controlling but accepted that when she told him she did not want him to organise the party it did not proceed.
The mother raised as another example, the fact that she had organised for her friends to come over to meet X (for the first time). She deliberately arranged the catch up while the father would be at work. The impression she gave was that she saw this as an event for her female friends. She did not convey to the father that she did not want him there. She saw the fact that he returned home earlier than expected and spoke to her guests about himself and his business as controlling. I cannot agree. At best the evidence establishes that he was perhaps tone deaf to the nature of the social event. If the mother’s account is accurate (arising in cross-examination it was not the subject of evidence from the father) his arrival at her event and consequent discussion about himself may be boorish but it certainly would not be regarded as an example of family violence.
The mother gave as an example of emotional abuse the fact that the father reached out to her family – she says in an effort to have them accept his point of view. The father’s emails to the mother’s family demonstrate the parties’ failure of communication and the father’s deep desire that the relationship continue.
The mother recounted events in which she says the father showed he did not value her opinion. I accept that in the course of the relationship the mother did not believe that the father valued her ideas as highly as he valued his own. I accept the mother’s evidence that following separation the father said things to her which she found hurtful and would be entitled to find hurtful. This is an unappealing personality trait but I do not find that the evidence establishes that the father’s conduct is family violence.
The mother made a serious allegation that the father had stalked her after separation. The father denied that he had done so. The mother told her counsellor that she:
“[the mother and [X]] moved to a unit on the same street where her husband resides. Her thought was that this would make access visits easier down the track. However there are no parenting orders in place. [Ms Normands] can see her husband’s unit form her unit and is anxious she may run into him…”
The mother’s narrative as provided to her counsellor suggests the father could see her unit, not because the mother had seen him looking in her unit, but rather because the reverse was true – she was able to see her former home from her new home.
The mother says that there was a repeat of the stalking after she moved again. The mother makes allegations that after she moved the father located her. The father says that he saw the maternal grandmother on the street while he was in a taxi. The father’s explanations for having encountered the maternal grandmother in the street in the vicinity of the mother’s apartment are inherently credible. Counsel who appeared on behalf of the mother did not cross-examine the father about this incident and accordingly I cannot find that it constituted stalking.
Importantly, the mother says that it was not until after she separated from the father that she came to view the events in the parties’ relationship as constituting family violence. The mother gave evidence that she met with lawyers after separation and it was then that she says she was able to use words to describe what she had experienced. I accept that the mother may have felt, as she looked back on the relationship, that the father’s actions were indicative of his tendency to prefer his own position (or argue strenuously in favour of it such that she did not feel heard). That, by itself, is inadequate to constitute family violence.
The mother says there is evidence from third parties supportive of the conclusion that the father engaged in family violence. She points to the following:
(a)The observations of the family report writer to the effect that the father:
“has a highly assertive and possibly somewhat domineering and controlling personality, as her expressed himself quite fervently throughout interview, and sometimes seemed to be trying to direct the Family Consultant with what she should write, and how she should proceed with assessment. It is acknowledged, however, that parents may feel that these assessments carry great weight and they may feel pressure to get their message across. He was nevertheless compliant and co-operative with the assessment process”.
(Family Report 2 October 2020, paragraph 35)
The family consultant was not cross-examined. She tempered her observations with the acknowledgment that the father’s conduct may have been a consequence of the pressure he felt to convey his message. Her observations are not evidence that the father engaged in violence but evidence of the consultant’s observations of his conduct on the day.
(b)The observations of a nurse at HH Services – the mother saw Ms J (“Ms J”) on 9 April 2018 (the day after her argument with the father where the father said the mother had been disrespectful and the mother said the father had called her rude and done so too close to her face). Ms J’s notes record the mother’s narrative only and are not an independent source of information about whether the conduct the mother describes can properly be called family violence.
(c)Attached to the mother’s affidavit was a statement by Ms KK (“Ms KK”), the midwife who assisted the mother with her pregnancy and the birth of X. Ms KK was not on affidavit and not cross-examined. Ms KK is not an expert witness and her evidence was not tested. It is not clear what information she received that caused her to write her letter dated 10 June 2019. The letter was not objected to and Division 12A allows me to receive it into evidence and accord it weight having regard to its limitations. In effect, in my view it does little more than echo the evidence which I accept. The husband found the prospect of X’s birth stressful from a financial perspective and he was focused (perhaps overly focused) on looking for solutions to the problems as he saw them. The father’s emphasis on finances was experienced by the mother as controlling. The parties’ different approaches to this problem caused conflict between them.
(d)In a similar vein the mother attached a letter from Ms LL (“Ms LL”) dated 19 May 2019. Ms LL is a healthcare worker. She records that the mother reported to her emotional conflict with her husband, conflict and distress. Taken at their highest the mother’s reports to Ms LL do no more than confirm the mother’s unhappiness in her relationship with the father.
I am concerned that in an effort to construct a narrative to support the label the mother was provided by the persons she consulted after separation she has effectively “raked over the coals” of the failed relationship for examples of conduct by the father that displeased her. The father has not, to his credit, done likewise.
Some of the mother’s concern may be explained by the way in which she has interpreted events. Her mistrust of the father is such that she saw a missed call from the father on mother’s day as invasive (the father said it was an inadvertent “pocket dial”.) She saw the father reaching out to her family when the relationship was failing as further indication of his desire for control. She saw the father’s affidavit evidence to the effect “there were a few occasions where X asked me permission to cry and I allowed her to cry and supported her emotions” as a literal statement that in his care X believes she must have the father’s verbal permission before expressing emotion. Collectively, several of these misunderstandings underpin the mother’s continued mistrust of the father and cross-examination demonstrated that these perceptions are difficult to shift.
I find that the mother experienced her relationship with the father as difficult and dissatisfying and, in the latter stages of the relationship was worried about his reaction to her dissent but I cannot find on the basis of the evidence that the father’s conduct was family violence as it is understood in the context of the Act.
The child’s views
X was a baby when her parents’ relationship ended. Her views about her living arrangement, given her age, have not been sought. The available objective evidence suggests that she had issues transitioning from her mother to her father but there is no objective evidence to suggest that she does not enjoy the time she spends with her father.
I accept the evidence of the father that X has expressed reluctance to leave at the end of her time with him. I also accept that from time to time she may have told her mother that she does not want to go to the father. Neither her desire to stay with her father nor her reluctance to leave her mother are anything other than appropriate responses having regard to her age and experience.
Does the mother support the father’s relationship with X?
Where there is no objective evidence that orders for time would place a parent or child at risk then it is important to understand whether each parent understands that, as part of his or her responsibilities as a parent, it will be important for them to support the child’s relationship with the other parent: s 60CC(3)(i). The mother understands the value of the father/daughter relationship to X in an intellectual sense that is, she appreciates that X will derive value from having a father who is actively involved in her life. However, the mother maintains a scepticism about the father’s motives and parenting capacity which infects her attitude to X’s relationship with the father.
This is illustrated by the matters she has raised in the proceedings. The mother told the family report writer:
She did have some suspicions at times as he would get home late and there was one occasion when he looked very unusual and she jokingly said he looked like he was on cocaine, and he became very upset. She said that she also wondered where all his money went…
(Family Report 2 October 2020, paragraph 53)
When the mother was cross-examined about why she had raised this issue, she could not accept that absent evidence, the only identifiable purpose in her raising this issue was in an effort to make the father look bad. I find that there is no evidence to support any concern about drug use by the father.
Immediately post separation the mother did not facilitate any time between X and the father. When she began to discuss time she proposed it be professionally supervised. She did so notwithstanding the fact that the father had cared for X for whole days by himself prior to the parties assuming separate residences.
The mother does not recognise that she sends messages to X about the father through her choice of words. For example, when X appears resistant at changeover the mother says she encourages X by saying words to the effect: “Daddy wants to spend time with you”. She does not say “Daddy loves you” because while she does not doubt it is true she does not want to speak to somebody else’s feelings. In a similar vein the mother does not show (by her words) that she, as X’s mother, wants X to spend time with her father – that she supports the father/daughter relationship.
To her credit the mother accepted that X may well pick up on the mother’s attitudes because of their emotional attunement. This accords with the family report writer’s observation: “[i]t is possible that X somehow senses Ms Normands’ ambivalence about Mr Enright”.
The family report writer posited as a possibility that the mother presented as somewhat over-anxious about X’s relationship with Mr Enright with reference to the examples of matters the mother had raised with her in interview.
Attitude to the responsibilities of parenthood
The father says, and I accept, that he has read considerably about parenting matters and in particular in respect of the specific issues which arise in parenting of girls (including adolescent girls).
During cross-examination the father was asked about X’s responses when transitioning from the mother to him and her reluctance (manifest in returning to her mother for additional hugs). The father commented that he saw X’s reluctance as a natural incident of attachment to the mother and consequently was reassured as opposed to being concerned by what he saw. His answer displayed knowledge of child development issues.
Nature of the child’s relationship with father
The observations of the family consultant were brief and took place on 14 August 2020. X was three years old. At this stage X had not spent any substantial time apart from her mother and had not spent overnight time with her father. She was spending time with him three times per week. The family consultant witnessed the attempted transition of X between the parents. She recorded that X was “highly distressed”. Her distress continued intensely for ten minutes and less intensely after that time. The father said it was not characteristic of changeovers. The mother said that it was. Neither party suggests that changeovers are currently accompanied by anything close to this level of distress.
When X settled Ms V observed:
…she sat on [Mr Enright]’s lap and she appeared to be reasonably happy then, sitting with him, looking at pictures. She seemed comfortable with him, as though she was familiar doing so.
(Family Report 2 October 2020, paragraph 64)
Ms V in her evaluation concluded “such distress does not necessarily mean that Mr Enright is not providing good and proper care to X”. I accept this unchallenged opinion.
Nature of the child’s relationship with the mother
The family report writer concluded that X and the mother “share a warm and loving relationship”: Family Report 2 October 2020 at paragraph 72. The father acknowledged X’s attachment to the mother.
The closeness of the relationship may be in part responsible for X sensing the mother’s ambivalence about the father: Family Report 2 October 2020 at paragraph 72.
Parenting Capacity: father
The family consultant, under the heading “evaluation” concluded “it appeared that Mr Enright is a very dedicated parent and is greatly invested in X’s care” and further Mr Enright has:
…good parenting skills and was employing appropriate strategies to try and calm [X] when distressed. Once [X] did calm down, it appeared that [X] felt reasonably comfortable and familiar with [Mr Enright] and that a rapport exists between them.
(Family Report, 2 October 2020 at paragraph 69)
The father in his affidavit material talks about having undertaken reading. He says that both he and the mother read The Attachment Parenting Book prior to X’s birth. He then makes the observation at paragraph 102 of his affidavit that he understood X’s resistance to transitioning from the mother to him on occasion in light of what he had read. His affidavit says “I saw this as good and natural as it illuminated the bond and attachment between X and her mother”. This is consistent with evidence that the father gives at other parts of his affidavit material concerning his understanding of the importance and value of X continuing to be breast fed.
The father has continued to read about child development issues and sets out in his affidavit the books and audio books he has listened to or read including: Mindful Co-Parenting: a child friendly path through divorce, Parenting from the Inside Out: How Deep Self Understanding Can Help You Raise Children Who Thrive, Playful Parenting, The Whole Brain-Child: Revolutionary Strategies to Nurture your Childs Developing Mind, in addition to that the father gave evidence that he had completed the Triple P Positive Parenting Program online.
The father was candid about the fact that X has not always found it straight forward to transition into his care. The father is aware that X may seek reassurance from a video call with her mother while she transitions to overnight (or more overnight) time in his care. In the main, where X’s schedule has allowed, he has ensured this has occurred. I accept he will continue to do so.
The mother was concerned that the father may prioritise his work. I accept that there was an occasion on which the father had to work when X was in his care. He made appropriate arrangements for her care (just as the mother has done in her time with X). The mother did not suggest that the father was routinely taking X to his work on Wednesdays. I accept that from time to time each of the parents will need to balance parenting and work responsibilities and I am confident they will each do so having regard to X’s interests.
The mother, in her evidence, was concerned that the father may not be sensitive to X’s feelings or observant about how his play effects X. She gave as an example the misunderstanding which the father tried to clear up about X having called her father a monster. The father explained to the court that X enjoyed a particular book they read together where a father says his daughter from a monster. The mother remained concerned. It will be important for the mother to understand that she and the father may parent slightly different, but these variations may function to X’s benefit.
Parenting capacity: the mother
The mother is well read and takes her role as a parent very seriously. I have no doubt that the parenting that she provides to X is to a high standard. She has undertaken “gentle parenting courses”, an online respectful parenting mentoring program and has participated in “family constellation” counselling.
The mother has a tendency to interpret X’s behaviour as reflecting on the parenting she is receiving while in the father’s household. Her affidavit contained examples of teeth crunching, nail biting and the like which she was connecting with the father (and reluctance of X to see or extend time with the father).
In a similar vein the communication between the parties suggests that the mother has concluded that the father is at fault when X is unwell. Attached to the mother’s affidavit was lengthy communication between the parties about X’s diet. It included multiple photographs of X’s bowel movements, accompanied by the mother’s queries about what the father had fed X during their time together. The father’s responses included outlining X’s diet, reassuring the mother that he had checked labels and suggesting that X’s symptoms could be the result of illness as opposed to a consequence of having eaten a particular food.
International Travel
The parties remain in dispute about whether X’s name should remain on the Australian Federal Police Family Law Watchlist (“the watchlist”). The father caused X’s name to be placed on the watch-list. The mother seeks to maintain her name on the watch list.
The father was born in Country N and, apart from X, all of his family live in Country N. The mother was born in Country E and, apart from X, all of her family live in Country E.
During the parties’ relationship, they travelled. Prior to X’s birth, as discussed above, the parties planned to travel to both Country E and Country N in order to allow X to meet members of the parties respective families and vice versa. The mother travelled to Country E and X met her Country E family. At the time of hearing, X had not met her Country N family.
At the time of the parties’ separation, they were in active disagreement about the father’s proposed trip to Country N. The mother came to see the proposed trip as an attempt by the father to retain X in Country N. In support of that proposition, the mother said:
(a)The father was experiencing financial difficulties in respect of his business in Australia
(b)The father is and has always been close to his family in Country N and has no family in Australia
(c)The father wrote her an email which she interpreted as a suggestion that he could obtain a passport [for X] without the mother’s consent.
On the basis of the above matters, the mother has declined to allow the father to travel with X to Country N.
Country N is a party to the Hague Convention on the Civil Aspects of International Child Abduction (“the convention”). The effect of both Australia and Country N being signatories to the convention is that, if the father were to retain X in Country N, the mother would be entitled to make an application for her prompt return.
It is plain from the evidence about the proposed trip to Country N in 2018 that the father was intending that the mother also attend. This makes the suggestion that he was endeavouring to abduct her unlikely. In addition, the fact that this was a planned trip which was to be undertaken by all three members of the family prior to the parties’ separation, also detracts from the mother’s case that the father was intending to retain X in Country N.
I acknowledge that the mother has fears that the father may retain X in Country N. I raised with the parties whether or not one option might be to leave X on the watch list for a period of time to allay the mother’s fears and to have her name removed at the conclusion of that period by operation of the final orders. Neither the mother nor the father accepted this as a proposition. The ICL suggested a different period from that which I had put to the parties but in circumstances when neither of the parties adopted that position, I will not make such an order.
It is therefore necessary for me to consider whether or not an order that X remain on the watch list is an order which is in X’s best interests. In order to determine whether such an order would be in X’s best interests, I need to consider her mother’s fears but I also need to consider whether there is objective evidence to support those fears. For reasons discussed above, I do not find that there is any evidence to support the proposition that the father either in the past or in the future intended to take X to Country N and retain her there. It is necessary for me to consider the value to X in travel. The Act provides that it is appropriate to have regard to a child’s cultural heritage when making parenting orders and in particular, the importance to a child of being able to share in that cultural heritage: s 60B(2)(e) of the Act. It is also important to consider the value to a child of relationships with extended family. Accordingly, I have little doubt that making orders which would permit X to travel (in particular to Country N and Country E) are orders which are in X’s best interests.
I continue to be mindful of the fact that, the mothers fears, whilst not objectively based, are nonetheless genuine and accordingly, I will provide that she hold the passports for X but she must provide same to the father to facilitate a trip in accordance with the orders which I will make.
CONCLUSIONS
I have, for the reasons set out above, determined that the parties should share equally parental responsibility for X. It follows that it is not necessary to dictate how that parental responsibility is to be exercised, for example, in respect of health. The parties will be required to consult and reach a joint decision as the Act requires. Given that X is to start school in 2023 I have provided a fall back order in the event the parties cannot reach timely agreement about her education.
The family report records the mother as stating “she is not opposed to X living equally between her and the father if X appears able to manage such an arrangement in the future”. I do not believe the mother was being disingenuous when she made this comment. The difficulty is that the parties have disagreed and I anticipate they will continue to disagree about how X is managing the division of time between their two households.
While the mother’s Amended Response to Final Orders filed on 31 January 2022 sought orders for graduated time to four nights a fortnight with the father, her Minute of Order filed for the hearing in March 2022 sought that the time be limited to day only time twice a week until August 2023. The minute also proposed that time never progress to any more than two nights a fortnight.
In the mother’s evidence she noted that the orders the father seeks between now and the time X starts school are that she spend time with him for both days each weekend. Accordingly, there are some activities which X and the mother will not be able to enjoy together on weekends in 2022 such as parties. Under the regime I propose to order X will spend Mondays with the mother, Tuesdays in her nanny share arrangement, Wednesdays with the father, Thursday and Fridays with the mother and Saturdays and Sundays with the father. In effect the parties will each spend three days with her. The mother will, in addition, spend almost every night with X. While the arrangement which is in place will limit the activities the mother and X can undertake on weekends it will do so for less than a year and in order to facilitate age and developmentally appropriate time with each parent.
The father while preferring an equal time arrangement sought that the eventual arrangement see X spend time with him six nights a fortnight and with her mother eight nights a fortnight.
The parents do not have a sufficiently well-established post separation parenting relationship. Ms V described the relationship at the time she saw the parties as “fraught” and “strained”. In my view it remains so. There is still significant mistrust and allegations of serious misconduct by the mother. The parties’ communication while extensive is often weighed down by the need to be correct as opposed to the need to find solutions.
The mother resisted the order, sought by the father, that each party be required to notify the other about his or her residential address. I have found that there is no evidence to support the conclusion that the father has stalked the mother or that, if the father knew where the mother was residing, this would place either the mother or X at risk of harm. It would appear to logically follow that I should make the order the father seeks. Notwithstanding these observations I have formed the view that requiring the mother to disclose her address will cause her stress and may impact on the parties’ capacity to jointly implement the regime for graduated increases in X’s time with the father and so I reluctantly find that it may be in X’s best interests that I decline to make the order which the father seeks. In due course, it is hoped that as the mother sees the relationship between X and the father develop and with the passage of time she will understand why the father wishes to know where his daughter is residing and will provide the address voluntarily.
The family consultant talked of various matters which touch upon a child’s readiness to begin overnight time. They included:
(a)A sense of independence from their primary carer;
(b)A child’s particular temperament (the family consultant assessed X at the time to be naturally timid and cautious);
(c)The child’s understanding of time; and
(d)The co-parenting relationship.
I accept that X’s understanding of time will have developed and that she is developing a sense of independence from her mother. However, at the time of hearing I could not be confident that orders which graduated to almost equal time would be in her best interests. X’s father acknowledges that the changes to her routine should be gradual. Gradual increases in time are likely, according to the family consultant, to be better able to be tolerated by X.
Accordingly, I propose to order that X live with her mother and spend substantial and significant time with the father.
The ICL applied for costs. The mother is in receipt of Legal Aid. The father’s finances have been stretched by these proceedings. I decline the application.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 7 April 2022
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