Enright & Normands - [2021] FedCFamC2F 2

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Enright & Normands [2021] FedCFamC2F 2

File number(s): SYC 1162 of 2019

Judgment of: JUDGE MORLEY

Date of judgment: 3 September 2021

Catchwords: FAMILY LAW – parenting – interim hearing on the papers – application by Father for child to commence overnight time with Father – application by Mother for child’s time with Father to be reduced – some evidence of child resisting at changeover – Court finds it to be in the best interests of the child to commence overnight time with Father.

Legislation:
Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAA, 65DAB, 65DAE, 69ZT, 79.

Federal Circuit Court of Australia, Notice: Communicating with Judges’ Chambers, June 2011.

Federal Circuit Court Rules 2001 (Cth) div 13.3, r 16.01.

Cases cited:
A & A & The Child Representative (1998) 22 FamLR 756

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286

Grella & Jamieson [2017] FamCAFC 21

Johnson & Page (2007) FLC 93-344

M & M (1988) FLC 91-973

Marvel & Marvel (2010) 240 FLR 367

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92

MRR & GR [2010] HCA 240

Napier & Hepburn (2006) FLC 93-303

Newett & Newett [2020] FamCAFC 76

SS & AH [2010] FamCAFC 13, [100]

Division: Division 2 Family Law

Date of last submission/s: 12 July 2021

Date of hearing: In Chambers

Number of paragraphs: 260

Place: Sydney

Solicitor for the Applicant: Mr Mokhtar of AMG Law Firm

Solicitor for the Respondent: Mr Blumberg of Blumberg Family Lawyers

Solicitor for the Independent Children's Lawyer: Mr Hearl of Delaney Lawyers
ORDERS

SYC 1162 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ENRIGHT

Applicant

AND:
MS NORMANDS

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

3 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged except for:
(a)Order 1 made on 9 May 2019;
(b)Order 3 of the orders made by consent on 20 September 2019; and
(c)Order 4 of the orders made by consent on 20 September 2019.

2.That the child live with her Mother.
3.That the child spend time with her Father:
(a)For four weeks from the date of orders, on Wednesdays from 9:00AM to 6:00PM and on Saturdays from 9:00AM to 6:00PM;
(b)Thereafter, for a period of six months, on Wednesdays from 9:00AM to 6:00PM, and from 9:00AM on Saturday until 12:00PM on Sunday;
(c)Thereafter, for a period of six months, on Wednesdays from 9:00AM to 6:00PM and from 9:00AM on Saturday to 5:00PM on Sunday;
(d)Thereafter, from 9:00AM on Wednesdays until 9:00AM on Thursdays and from 9:00AM on Saturday to 5:00PM on Sunday;
(e)On Father’s Day, from 9:00AM until 5:00PM; and
(f)On the Father’s birthday, from 9:00AM until 5:00PM.

4.That during the following times, the Father’s time with the child is suspended and the child shall spend time with the Mother:
(a)On Mother’s Day, from 9:00AM until 5:00PM;
(b)On the Mother’s birthday, from 9:00AM until 5:00PM

5.That the child shall spend time with her Father during the Christmas and New Year period as follows:
(a)From 9:00AM on 25 December until 9:00AM on 26 December; and
(b)From 12:00PM on 1 January until 12:00PM on 2 January.

6.That changeover shall occur as agreed between the parties in writing and failing agreement at the L corner of M Street and N Road.
7.That any and all communication except in the case of an emergency is to occur in writing between the parties.
8.Both parties are restrained from physically chastising the child including, but not limited to, smacking, hitting, pushing, or pulling the child, and from allowing or authorising any other person to do so.
9.Both parties are directed to follow all recommendations of the child’s treating doctors and allied health specialists.
10.Each of the parties is restrained from making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household, in the presence or within the hearing of the child.
11.Each of the parties is restrained from allowing the child to remain in the presence of or within the child’s hearing of any other person making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.
12.Both parties are restrained from discussing these proceedings or the implementation of these orders in the presence of or within the hearing of the child.
13.Both parties are directed to engage with their mental health treaters and to follow all recommendations in relation to their mental health care.
14.Each of Mr Enright born in 1979 and Ms Normands born in 1983 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X, a female born in 2018 from the Commonwealth of Australia.
15.X, a female born in 2018 be and is hereby restrained from leaving the Commonwealth of Australia.
16.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List pending further order of the Court.
17.Upon and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

THE COURT NOTES THAT:
18.The Father may, at his liberty, obtain from the Independent Child’s Lawyer at any time a recommendation as to a course or courses to undertake in relation to men’s behavioural change.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Enright & Normands has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:

These are Reasons for Judgment in relation to interim parenting matters between the Applicant Father Mr Enright (‘the Father’) and the Respondent Mother Ms Normands (‘the Mother’) in relation to their daughter X born in 2018. At the time of these Reasons for Judgment, X was 3 years old.
The circumstances of the interim consideration provided by the Court in this matter are somewhat unusual and I will set those matters out later on in these Reasons. However, at all times Mr Mokhtar appeared for the Applicant Father, and Mr Blumberg appeared for the Respondent Mother. The Independent Child’s Lawyer (‘ICL’) changed in this matter mid-proceedings with Mr Hearl, having been appointed by the Legal Aid Commission of New South Wales on 19 June 2020.
PROCEDURAL HISTORY
It is salient to set out the procedural history of this matter in relation to parenting matters. I have not here included the procedural history where it relates only to financial matters.
This matter has attracted a considerable volume of Court attention, somewhat curiously in circumstances where the ordinary indicia which would warrant such attention – corroborative and third party evidence of significant family violence, significant issues of parental capacity, issues of mental ill-health, or substance dependency issues – do not appear in this matter.
The matter first came before the Court in his Honour Judge Monahan’s list on 1 May 2019. On that occasion, his Honour set the matter down for interim hearing on 9 May 2019, and listed the matter for a Child Dispute Conference on 24 May 2019 following which his Honour also listed the matter for mention on 14 June 2019. His Honour also appointed an ICL in the matter.
On 9 May 2019, the matter came before me for interim hearing on the issue of parenting arrangements for X and, in particular, the time to be spent by her with her Father. I heard the matter in the morning and delivered an ex tempore judgment and made orders in the afternoon. The parenting orders made on that date relevant for these purposes are, in summary:
(1)That the parents have equal shared parental responsibility for X;
(2)That X live with the Mother;
(3)An order placing X on the Airport Watchlist;
(4)That X spend time with her Father:
(a)Until 7 August 2019 (a period of just under three months):
(i)From 9:00AM until 12:00PM on Mondays;
(ii)From 4:00PM until 7:00PM on Wednesdays; and
(iii)From 9:00AM until 1:00PM on Saturdays.
(b)From 10 August 2019:
(i)9:00AM until 12:00PM on Mondays;
(ii)From 4:00PM until 7:00PM on Wednesdays;
(iii)From 9:00AM until 4:00PM on Saturdays.
(5)That X spend time with her Father on Father’s Day on 1 September 2019 from 9:00AM until 4:00PM;
(6)That changeovers occur at the start and end of the Father’s time with X at Library P in Street B, Suburb A.
(7)Each parent was restrained from making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence or hearing of X, or allowing X to remain in the presence in her hearing, of any other person, who is making such comments
(8)Orders were made restraining each parent from “physically chastising” the child, including but not limited to smacking, hitting, pushing, or pulling, and restraining each parent from authorising or allowing any other person to physically chastise X;
(9)Orders were also made in relation to then current property settlement proceedings between the parties pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’).
The parties attended a Child Dispute Conference on 24 May 2019, and the family consultant provided a memorandum to the Court later that day.
On 18 September 2019, the Father filed an Application in a Case supported by an affidavit sworn or affirmed by him on 16 September 2019. That Application in a Case sought parenting orders phrased as follows:
That the Father spends additional time with X for a further period of 6 (six months) [sic]:
From 9:00AM until 12:00PM every Monday.
From 4:00PM until 7:00PM every Wednesday.
Week 1 – From 4:00PM Friday until 4:00PM Saturday and every alternate week thereafter.
Week 2 – From 9:00AM Sunday until 12:00PM Monday and every alternate week thereafter.
From 9:00AM till [sic] 4:00PM on Christmas Day.
From 9:00AM to 4:00PM on New Year’s Day.
I note here that on the bare phrasing of the orders sought, the orders seek a new regime of orders to take place for six months, but presumably thereafter reverting back to the orders of 9 May 2019. I further note that upon the expiration of the six months of these orders’ implementation, the Christmas time and New Years Day time with the Father would also cease, which depending on the timing of the implementation of these orders, could defeat the purpose of having Christmas time and New Years Day time at all (that is, if the orders were implemented in April, they would be expired by December).
The matter was next listed before the Court on 20 September 2019 before me. On that occasion, further interim orders were made by consent between the parties providing that:
(1)The Father spend time with X:
(a)Each Monday from 9:00AM until 12:00PM
(b)Each Wednesday from 11:30AM until 6:30PM
(c)Each Saturday from 9:00AM until 5:00PM
(d)On Christmas Day 2019 from 10:00AM until 5:00PM, and on New Year’s Day 2020 from 10:00AM until 5:00PM.
(2)Orders were made providing that if either party is unable to care for X at any particular time, for a period in excess of four hours, they give the other parent the option to care for X;
(3)Orders were made providing for access to and exchange of all medical and educational information relating to X; and
(4)Orders were made setting the matter down for further interim hearing on 14 October 2019.
On 14 October 2019, the parties again negotiated consent orders (this time in relation to property) and I made those orders. I stood the matter over to 21 February 2021 for further mention and “possible interim hearing of the Father’s Application in a Case filed 18 September 2019”. I also made orders for the preparation of a Family Report pursuant to section 62G of the Act.
On 21 February 2020, the Father pressed for the Court to hear his Application in a Case, but the Court ran out of time to hear the matter. In order to regularise the hearing, and to avoid any issues with last-minute evidence, I also made orders limiting the evidence to be relied upon by the parties to one consolidated affidavit per witness, and made directions for a Case Outline document to be filed. I stood the matter over to 5 March 2020.
On 5 March 2020 (‘the March interim hearing’), notwithstanding the Court’s clear directions of 21 February 2020, both parties made applications to rely upon a second affidavit at the interim hearing. I granted that leave. I heard submissions from the parties’ solicitor-advocates, and submissions from the then-ICL. I reserved judgment to be delivered on a date to be advised.
Regrettably, some months passed after the time of my hearing the matter. On 7 October 2020, I released the Family Report by way of Chambers orders. I did not read the Family Report, the matter being reserved on an interim basis, and I made a notation on that Chambers order that “At the date of the Report, this Report has not been admitted into evidence …”.
The matter then came before me on 9 October 2020 for mention following the release of the Family Report. Mr Hearl made his first appearance as the ICL in the matter. I have had recourse to the audio record of that mention in formulating these Reasons.
On that occasion, I asked the parties if there had been any discussions following the release of the Family Report. Pleasingly, the parties indicated that they had had discussions, and it was a consent position that the matter should go to family dispute resolution (‘FDR’), ideally through the Legal Aid Commission of New South Wales. I suggested to the parties that the interim judgment (which by that point was in its final stages of drafting) should be placed ‘on hold’ so as not to interfere with the FDR process. That was also consented to by the parties and the ICL. Accordingly, I vacated the orders from March 2020 reserving judgment in the matter and stood the matter over for further mention on 22 February 2021.
I note here that Mr Hearl made an important point – as a newly appointed ICL, he had not participated in the March interim hearing, and was limited in his ability to assist in that matter.
When the matter came before me on 22 February 2021, the matter had not settled. On this occasion, the Father pressed his application for a further interim hearing in the matter. The Mother and the ICL sought that the matter proceed to a Call-Over listed later that week. I acceded to the application of the Father and set the matter down for further interim hearing, and vacated the Call-Over listing.
It is salient to note here, as I explained to the parties during the mention, that had the matter proceeded to the Call-Over, the matter would have received final hearing dates (provided the parties complied with trial directions) in the last part of 2021. The interim hearing listing that I was able to offer the parties was in July 2021. I was not minded to preserve the Call-Over listing in circumstances where the lateness of the interim hearing would cause the matter to proceed on parallel tracks regarding its preparation for the two hearings.
Later in Chambers, as I was finalising the Court file, it came to my attention that the moving Application in a Case would be nearly two years old by the time the matter would come on for interim hearing. The matter had moved along some way since that Application in a Case was filed, with there being a new ICL, a Family Report, and additional orders for time to be spent by X with her Father made by consent.
I determined that the Application in a Case before the Court was stale, and not of assistance to the Court or the parties in preparing for the interim hearing – as I was already not minded to merely deliver the judgment I had prepared from the March interim hearing, it did not seem proper to proceed on the basis of the same moving document as in that interim hearing. I was particularly mindful of the issues of procedural fairness that could arise if either party sought to depart from the orders sought in their moving documents (a matter raised at the mention), which was an issue raised by the former ICL at the interim hearing that was meant to proceed in February 2020. I was also mindful of the principles provided by the Full Court in Newett & Newett.[1] These are not Reasons in the formal sense for my decision, but are provided by way of explanation for the parties’ benefit.
[1] Newett & Newett [2020] FamCAFC 76
Accordingly, I made orders in Chambers dismissing all extant interim applications and set a timetable for the filing of a fresh Application in a Case and Response. I made notations that the interim hearing would be vacated if no fresh Application in a Case was filed, and referred the parties to the case of Newett & Newett.[2]
[2] Newett & Newett [2020] FamCAFC 76
I have checked the Court file and, properly, my Chambers emailed the orders to the legal representatives on record to alert them to the orders as made.
On 4 May 2021, Mr Blumberg wrote to my Chambers seeking to have the interim hearing vacated on the basis of the Father not filing an Application in a Case as directed. My Chambers replied seeking the input of the ICL on the matter. On 10 May 2021, while not expressly invited, though understandably, Mr Mokhtar replied in lengthy correspondence. In that correspondence, Mr Mokhtar advised his instructions that the interim hearing not be vacated and set out a series of reasons in favour of that application.
I am minded to set those reasons out in full, because in the context of this matter it is salient that I do so. However, I take this opportunity to note in a published judgment that it is not usually appropriate to make applications or to set out submissions in support of an application by way of email to a Judge’s associate. Setting aside the problems with such an approach envisaged by Newett & Newett, the then-Protocol for Communicating with Chambers[3] is very clear that:
It is not usually appropriate for any party (or any legal practitioner) to contact an associate of a judge about a matter unless all parties are in agreement that this is appropriate and for good reason. If agreement cannot be reached and the issue cannot otherwise be resolved then the Associate may be contacted to arrange for the matter to be listed for directions provided that all parties are advised of the request.[4]
[3] Federal Circuit Court of Australia, Notice: Communicating with Judges’ Chambers, June 2011.
[4] Federal Circuit Court of Australia, Notice: Communicating with Judges’ Chambers, June 2011, emphasis added.

The emphasised part of the Protocol aforementioned is particularly relevant here, as the proper forum generally for any contested issues requiring applications and submissions is of course a formal Court event, where the matter can proceed on the record and a judicial officer can receive any application or submission as is appropriate.
Notwithstanding the aforementioned, for abundant clarity, I am not unsatisfied with the conduct of any legal practitioners in this matter, and I understand that in the context of this matter, the manner in which the email correspondence eventuated is situationally and contextually understandable, though I would caution against its repetition.
Mr Mokhtar’s reasons are as follows with original emphasis:
1.   Our client’s Application in a Case, filed on 19 September 2019 is current and Judgment has not been delivered;
2.   On 22 February 2021, the matter was listed for a further interim Hearing to be held on 1 July 2021. It is our understanding that the Interim Hearing of 1 July 2021 relates to the current Application in a Case filed on 19 September 2021. The matter was listed for a further interim hearing upon the Respondent’s insistence that new evidence after the Interim Hearing be taken into account. The first set of Orders dated 22 February 2021 made during the mention of the matter, did not require filing a new application in a case;
3.   The supporting affidavits for the upcoming Interim Hearing are to be filed by 11 June 2021;
4.   The second set of Orders dated 22 February 2021 were issued after the mention of the matter on 22 February 2021 and did not come to our office’s attention until 4 May 2021, when the Respondent’s solicitor emailed the Court;
5.   It is our view that the Applicant should not be required to file a new Application in a Case, because the current Application in a Case has not yet been finalised and dealt with by the Court.
6.   In addition, the Commonwealth Courts Portal does not allow for an Application in a Case to be filed without a supporting affidavit.
7.   Accordingly, given that the Affidavit material is due on 11 June 2021, filing the application in a case would not have been possible on 3 May 2021 without the supporting affidavit.
We further submit that:
8.   Orders of 22 February 2021 in relation to the filing of Application in a Case be discharged; or
9.   In the alternative, given that the Respondent insists on relying on further evidence, it is the Respondent that should file an application to rely on further evidence.
I am satisfied that the factual matrix of the matters raised in Mr Mokhtar’s email are correct, save for the following observations:
(1)Judgment had not been delivered in relation to the September Application in a Case, because judgment was no longer reserved for delivery, and had not been for some time.
(2)My Chambers wrote to Mr Mokhtar’s firm (along with the other legal representatives) on 3 March 2021 with the orders made in Chambers on 22 February 2021. Mr Blumberg, in fact, replied to that correspondence confirming receipt of same. It is unknown and cannot be known by the Court what Mr Mokhtar refers to when he says the matter “did not come to our office’s attention until 4 May 2021”.
(3)It is curious to submit that the application had “not yet been dealt with by the Court” in circumstances where I had made orders in Chambers dismissing that application. Moreover, it is incorrect that the only proper manner in which to finalise an interlocutory application is by way of delivery of judgment.[5] A clear example of this is where a Court dismisses an Application in a Case without prejudice to the spirit of the application, in circumstances where there are defects in the drafting of the orders sought in the original Application in a Case.
(4)It may be the case that the Commonwealth Courts Portal does not permit the filing of an Application in a Case absent an affidavit in support. However, this would not have been a true impediment to the Applicant Father, in circumstances where he would be at liberty to do, as I often refer to, a ‘word processor copy and paste job’ on the supporting affidavit, with the consolidated updating affidavit filed pursuant to the later deadline.
[5] See especially Federal Circuit Court Rules 2001 (Cth) rule 16.01; see generally Federal Circuit Court Rules 2001 (Cth) div 13.3.
Above all else, I note that it was always open to the legal practitioners in this matter to confer in relation to any of the matters asserted in Mr Mokhtar’s correspondence and seek guidance from my Chambers to ensure their compliance with the orders made by the Court.
Mr Hearl replied that day, having by that point received the view of the Applicant Father to the correspondence put by the Court. Mr Hearl supported the matter being considered on an interim basis at some point, given the submissions raised by the Applicant Father.
Despite the unorthodox nature of this correspondence, my Chambers properly and promptly brought this matter to my attention. I determined that the matter would be best dealt with in open Court and on the record, and relisted the matter for mention on 9 June 2021. This was communicated to the parties on the same day.
When the matter came before me on 9 June 2021, I received submissions from each of the parties in relation to the ongoing conduct of the matter. It is not necessary for me to set out the entirety of that exchange, save for the following:
(1)I was not satisfied that there were extenuating circumstances for the Father’s failure to file an Application in a Case.
(2)The Mother and the ICL supported the Family Report being marked as an exhibit in the proceedings. This was opposed by the Father. Nonetheless I was minded to mark the Family Report as exhibit R1 in the proceedings.
As a pragmatic case management solution, I suggested to the parties that I ‘re-enliven’ the draft judgment I had prepared by receiving an updating affidavit from each party and written submissions from the parties and the ICL. That was accepted by the parties and is the course I took.
Both the Father and the Mother filed an affidavit on 25 June 2021.
The parties and the ICL filed written submissions on 9 July 2021.
I made orders reserving judgment in the matter on 12 July 2021.
THE MATERIAL RELIED UPON BY THE PARTIES
The Father relied upon the following material:
(1)His Application in a Case filed 18 September 2019;
(2)His affidavit sworn or affirmed on 3 March 2020;
(3)His affidavit filed 25 June 2021;
(4)His written submissions filed on 9 July 2021; and
(5)His Case Outline for the March interim hearing emailed to my Chambers.
The Mother relied upon the following material:
(1)Her Response to Application in a Case filed 4 October 2019;
(2)Her affidavit affirmed on 3 March 2020;
(3)Her affidavit filed on 25 June 2021;
(4)Her written submissions filed on 9 July 2021; and
(5)Her Case Outline for the March interim hearing filed on 4 March 2020.
I have considered the written submissions filed by the ICL on 9 July 2021. I have had recourse to the ICL’s Case Outline document only so far as it is relevant to understand the position of the parties as at March 2020, as the current ICL has not advised the Court that he adopts the submissions made by the previous ICL.
In particular, I have read and considered the transcript annexed to the Father’s June affidavit, however I have given most weight to the submissions made contemporarily in the parties’ and current ICL’s written submissions.
I have also read and considered the family report prepared by Family Consultant Arthur dated 2 October 2021. I have also had recourse to the Child Dispute Conference memorandum to Court dated 24 May 2019, though that document has been somewhat passed by the passage of time and the evaluative evidence in the Family Report.
At this stage it is appropriate to deal with an interlocutory application raised by the Mother in her written submissions for me to disregard the Father’s affidavit filed on 25 June 2021 on the basis of it being filed approximately one and a half hours late.
She submits in support of this application that to accept his affidavit and consider it in relation to this interim hearing would be unfairly prejudicial, given its late filing and its contents containing events that predate March 2020, contrary to the filing directions. She makes a qualitative critique in her submission that the Father’s affidavit “is self-serving with no independent evidence being provided for any of his claims about X’s time with him.”
She stipulates that on the basis of her application, she has not referred to the Father’s affidavit in her submissions.
Rather extraordinarily, the Mother also submits the following:
The Mother’s position is that the Father’s failure to adhere to the Court Orders should be of significant concern to the Court as it demonstrates an unwillingness of the Father to comply with the Orders of the Court.
This unwillingness to comply with court orders was demonstrated only recently by his failure to meet the requirements of the previous court orders related to the scheduled interim hearing, resulting in the interim hearing being cancelled.
I join with the ICL in rejecting that application.
These are parenting proceedings of an interim character, where evidence cannot be tested and the scope of decisions the Court can realistically make are to some extent limited. It has long been the principle of the Court in parenting proceedings (as correctly submitted by the ICL) that the Court is generally aided by having more evidence rather than less.
The lateness of the filing of the Father’s affidavit is trivial in the grand scheme of the timeline for this matter, where written submissions were not due for another 14 days after the filing of fresh evidence. That the Mother based her application on such a triviality in these circumstances entitles the Court to draw inferences from her conduct.
I will go through and evaluate the evidence set out in the Father’s affidavit further on in these Reasons, but in circumstances of the triviality of the lateness of the affidavit set out above, and where this remains the sole piece of updating evidence in the Father’s case, any qualitative problems with the affidavit would be a consideration of the weight the Court should give that evidence, and not a binary question of the affidavit being wholesale admissible or not. I have considered the evidence in the Father’s June affidavit relating to evidence prior to March 2020, and it is relatively minor in the context of the whole affidavit. It could easily have been met by the Mother in written submissions.
Finally, I am troubled by the Mother’s pontification in her submissions about the Father’s ‘repeated failure’ to comply with Court orders. As I will set out in my evaluation of the evidence, this is a matter where I sense that these two otherwise well-meaning parents lack perspective in relation to the nature of their parenting proceedings, especially in relation to the general lacuna of issues that commonly plague parties that appear before this Court, inclusive of recalcitrant parents who, truly, view orders (in particular parenting orders, as compared to administrative orders) as an optional exercise. If the Father has engaged in repeated flouting of Court orders as the Mother suggests, it has always been open to her to file an Application – Contravention in relation to that conduct. That the Mother has not done so suggests that that is not the case. Moreover, such recalcitrant behaviour on the part of the Father is nowhere to be seen in the Mother’s updating evidence, aside from some discrete paragraphs and annexures to her affidavit that suggest some scheduling difficulties with changeover arising in part from her moving residence without notice to the Father.
Moreover, it was abundantly clear to the Mother as and from Mr Mokhtar’s email that an inference available as to the reason for the Father’s failure to file an Application in a Case as directed by the Court in the Chambers orders of 22 February 2021 was that Mr Mokhtar’s office overlooked the email from my Chambers. By the Father’s insistence at the mention in June to have the matter considered on an interim basis, it was obvious to this Court (as it should have been to the Mother) that in failing to file an Application in a Case, the Father was not intending to avoid the orders of the Court, but rather accidentally overlooked them.
It was the Mother’s choice to self-exclude any reference to the Father’s updating affidavit in her submissions. The Mother was given no indication from my Chambers or the Court that that course was expected or proper. Accordingly, any insufficiency or silence in the Mother’s submissions in relation to the evidence of the Father in his later affidavit is a problem of her own creation.
Again, I have gone into this morbid detail to hopefully signal to the parties in this matter, again, that going forward, the Court will not tolerate petty trivialities, and the parties’ energies are better focused in parenting their daughter and tending to her upbringing.
THE PARTIES’ COMPETING PROPOSALS
At the interim hearing in March, the Father advised that he adopted the minute of orders proposed by the ICL. Some time had passed that minute of order by the time of my considering the matter, and the Father provided the minute of orders sought by him in his written submissions filed on 9 July 2021. The Mother has set out the minute of orders sought by her in her written submission filed on 9 July 2021.
Properly, I have not received notice of either party or the ICL objecting to the ‘new’ minute of order sought by either party.
The ICL did not provide a minute of order sought on interim hearing.
The Father sought orders drafted to build upon or amend the orders made by the Court on 9 May 2019, summarised as follows:
(1)That the spend-time-with provisions in the orders of 9 May 2019 be discharged;
(2)That the child spend time with the Father as follows:
(a)From 8 August 2021 until 24 December 2021 ( a period of about four months) in a two week cycle as follows:
Week 1
(i)Wednesday from 9:30AM to 5:30PM
(ii)Sunday 9:00AM until Monday 5:00PM
Week 2
(iii)Wednesday from 9:30AM to 5:30PM
(iv)Friday 4:00PM until Saturday 5:00PM
I note here that this presents as an increase in time with the Father from 18 hours of daytime per week to two overnight occasions and 16 hours of daytime per fortnight.
(b)During the Christmas and New Year’s holiday season between 25 December 2021 to 8 January 2022:
(i)From 12:00PM on Saturday 25 December 2021 until 12:00PM Monday 27 December 2021
(ii)From 9:00AM until 5:00PM Wednesday 29 December 2021
(iii)From 10:00AM until 5:30PM on Saturday 1 January 2022
(iv)From 9:00AM Wednesday 5 January until 9:00AM Friday 7 January 2022
(c)From 9 January 2022 onwards:
Week 1
(i)From 9:30 am Wednesday to 9:30am Thursday
Week 2
(ii)From 9:30 am Wednesday to 9:30am Thursday
(iii)From 9:00am Saturday to 5:00pm Monday
(d)On Father’s Day weekend from 9:00AM Saturday to 5:00PM Monday, and if that is a weekend that the Father would not ordinarily spend time with the child then the Father shall forego the weekend immediately prior to Father’s Day weekend.
The Mother sought the following orders:
(1)That all previous parenting orders be discharged.
(2)That the Mother have sole parental responsibility for the child, and that the Mother advise the Father in writing of any significant decision made in the exercise of her sole parental responsibility.
(3)That the child live with the Mother.
(4)That the child spend time with the Father as agreed between the parties, or failing agreement as follows:
(a)From the date of these orders until 14 January 2022 (a period of about five months)
(i)On each Wednesday from 10:00AM to 5:00PM
(ii)On each Saturday from 10:00AM to 5:00PM
I note here that this represents a reduction in time from 18 hours per week to 16 hours per week. The time is also condensed into two occasions, rather than in three occasions.
(b)From 15 January 2022 to 14 January 2023 (a period of about a year):
(i)Each Wednesday from 10:00AM until 5:00PM; and
(ii)Each alternate weekend from 4:00PM on Friday to 5:00PM on Saturday.
I note here that represents an increase in time to 16 hours of daytime and an overnight occasion each fortnight.
(c)From 15 January 2023 to 14 January 2024 (a period of about a year):
(i)Each Wednesday from 10:00AM until 5:00PM; and
(ii)Each alternate weekend from 4:00PM on Friday to 5:00PM on Sunday.
I note here that this represents an increase in time to 16 hours of daytime and two overnight occasions each fortnight.
(d)On special occasions as follows:
(i)In 2021, from 10:00AM to 5:00PM on Christmas Day;
(ii)Commencing in 2022 and each year thereafter from 10:00AM on Christmas Day until 10:00AM on Boxing Day;
(iii)On Father’s Day from 10:00AM to 5:00PM.
(e)That the Father’s time with X subject to these Orders be suspended on the following occasions, so that X shall spend time with the Mother as follows:
(i)On Mother’s Day from 10:00AM to 5:00PM;
(ii)Each year from 10:00AM on 24 December to 10:00AM on 25 December (Christmas Eve)
(5)That changeover shall occur as agreed or failing agreement at the L corner of M Street and N Road.
(6)The parents will communicate about issues concerning the children through Our Children website ( set up and maintained for each parent individually and solely for this purpose, and communication will be polite and respectful.
(7)The parents shall only communicate via text message in case of emergency or to notify the other parent if late for pick up/drop off.
(8)Each party is restrained from denigrating or criticising the other parent, or members of the other parent’s family or household in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
(9)Each parent is restrained from physically chastising X, including but not limited to by smacking, hitting, pushing, or pulling, and from authorising or allowing any other person to do so.
(10)Each parent is restrained from discussing the nature of these proceedings and any disputes between the parties in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person doing so.
(11)Each parent will follow the directions of the child’s treating medical professionals, including the administering of supplements or other medicine.
(12)Each parent will ensure the child’s diet is in accordance with the directions of her treating medical professionals.
(13)Prior to commencing overnight time, the Father will engage with an individual counsellor, or complete a behaviour and/or parenting course as agreed, including an anger management course or the Tripe P Parenting program, and shall provide evidence of such attendance or certificate of completion to the Mother’s solicitor and the ICL at least 14 days prior to the child commencing overnight time.
(14)An order that the child be placed on the Airport Watchlist pending further order.
(15)That the Mother is not required to disclose her and the child’s residential address to the Father.
ISSUES FOR DETERMINATION
The Court is required to making findings on the following eight (8) matters in this interim hearing:
(1)How parental responsibility should be allocated;
(2)Whether the time X spends with her Father should progress to overnight occasions;
(3)Whether the Father should be required to undergo any individual therapy or complete any particular courses prior to spending overnight time with the child;
(4)Where changeovers should take place;
(5)Whether orders for the medium and type of communication between the parents should be made;
(6)Whether orders for the parties to follow the child’s treating paediatrician recommendations should be made;
(7)Whether orders should be made for the child to be again placed on the Airport Watchlist; and
(8)Whether the Mother should be required to disclose her residential address to the Father.
THE EVIDENCE

While I have read and considered the entirety of the above-named material, I have given particular weight to the updating evidence in circumstances of it being more current.
The evidence before the Court, in broad terms, comes down to six (6) issues:
(1)The impact of family violence on the parties;
(2)The status of the co-parenting relationship between the parties;
(3)How time between the child and the Father is progressing;
(4)How well or poorly changeovers are occurring in terms of conflict between the parties and distress by the child;
(5)How well or poorly changeovers are occurring in terms of the impact on the child’s schedule; and
(6)The child’s diet and health.
I consider that the question of whether the child should progress to spend overnight time with her Father is a matter on the basis of the state of the evidence and submissions, and is not a discrete category of evidence of itself.
Where evidence does not fit neatly into one of the above categories, I say that I have still given that evidence due consideration. I intend to address each of these matters in turn.
Family Violence
The Mother deposes at several points in her evidence that her current conduct, her wishes, or her concerns about various issues in this parenting matter are affected by her experience of family violence at the hands of the Father during the relationship.
This was a matter raised at the interim hearing in May 2019. In my judgment of that date, I made a finding that:
I do not find that there is sufficient cogent and acceptable evidence of family violence to find that the presumption set out in section 61DA does not apply.
Notwithstanding this finding, it is proper to assess the evidence the Mother puts before the Court on this matter in her latest material.
There is discourse in the Mother’s June 2021 evidence in relation to X calling the Father a “monster”. The Mother relays this as being a matter for the Court’s concern, deposing “… while changing her clothes to get ready for the visit she said, words to the effect of “I don’t’ want to go with Daddy. I want to stay with you to protect me”. A few minutes later she said, words to the effect of “I don’t want to go with daddy because daddy is a monster.” X purportedly said this to her Mother when she was two years and 10 months old.
The Mother annexes to her affidavit correspondence she sent to her solicitor in relation to this incident. In that correspondence she expresses interest in speaking to a “child protection agent” (presumably someone from the Department of Communities and Justice) to discuss if this is “common behaviour on little kids who visits the other parent”. While involving the Department in a matter as de minimus as this would be extraordinary, I take this evidence (albeit unsworn given it is in an annexure) as the Mother’s attempt to understand the child’s behaviour, rather than a genuine belief that such a matter would warrant the Department’s involvement in the matter.
Her solicitor suggests engaging a child psychologist instead of the Department, and the Mother replies to that correspondence indicating her support of that proposal, but there is no evidence before the Court that the Mother has made any steps to involve the child with a child psychologist. The balance of her reply to her solicitor gives the Court an indication that she considers the Father may be repeating a pattern of conduct “he used to do with [her]”, that is presenting a pleasant public face, while behaving privately in a menacing fashion.
Whether the Mother made any steps to arrange with the Father (as required as they share parental responsibility) for the child to see a child psychologist is not known to the Court. That would have assisted the Court in grounding the proper inference to draw from the Mother’s reply to her solicitor, whether it was child-focussed or performative for evidentiary purposes. The lacuna remains.
The Mother gives evidence of “occasions” at changeover where the child sees her Father, jumps to her Mother and asks to be picked up, saying “I’m scared of daddy. Daddy’s mean”. The Mother does not give any evidence about the frequency of such incidence, when these incidences started, the most recent incident of the child doing this, nor how the Father responds to these generalised events. On this basis, I find that it is a consideration better left to my consideration of the conduct of changeovers and the progress of time, rather than as an indicia or outcome of family violence.
The Mother deposes that she finds text communication with the Father, particularly when she asserts he texts her late at night, “invasive”. The Court is provided with no evidence of text messages being sent late at night. Earlier on in the affidavit, the Mother describes a protracted discussion over text message in relation to a particular changeover, and describes the Father texting her at “nearly midnight” with the annexed conversation. I will deal with the contents of that conversation later on in these Reasons, but it is salient to state that, as the sole evidence before the Court of the Father texting the Mother inappropriately at late hours, those text messages contain no timestamps, and clearly follow the logical flow of a responsive conversation, rather than unsolicited communications. On this basis, it is not open to the Court to find that the Father has inappropriately texted the Mother in the manner she describes, and certainly not in a manner proscribed by section 4AB.
She deposes one occasion when the Father video called her on a Sunday when he would not ordinarily see the child, and that she found this “invasive and disturbing”.
She deposes that she “continue[s] to not feel safe disclosing mine and X’s address … due to family violence [she] experienced during [the parties] relationship and stalking reported to the police after [the Mother and child] moved”.
The Mother deposes that changeovers have occurred at a public space for the “safety of myself and X”. This is untrue. Orders were made on 9 May 2019 providing for changeovers to occur in the Library P vicinity by consent of the parties, as is explicated in my Reasons for Judgement of 9 May 2019. The Court made no findings whatsoever as to incidences of family violence in that hearing.
The Mother deposes that part of her application for sole parental responsibility relates to her fear that “if there were equal shared parental responsibility, the Father would use this to assert dominance and control over me and not necessarily act in X’s best interests.” As there is a current order for equal shared parental responsibility, it is not clear that the Father has, to date, utilised that order to assert dominance and control over the Mother. That is not to say that this is not a genuinely held fear of the Mother, but apprehensions or fears are not overwhelming evidence of those matters being factually probable.
In her March 2020 affidavit, the Mother deposes her ongoing concern that the Father’s “violent disposition” and the “exposure of X to his verbal abuse due to his anger management issues”. I have considered other parts of the evidence to consider this assertion, including (but not limited to) letters annexed to the Mother’s affidavit from her psychologist and from the parties’ midwife Ms Grant. Neither of those sources provide sworn evidence (annexures not being sworn evidence). Properly, the psychologist provides no more than a recitation of the narrative provided to her by the Mother, and while Ms Grant provides her observations, they are not sworn evidence and in parts contain opinions she is not capable of providing, which affects the weight that I can give her opinion, albeit that section 76 of the Evidence Act 1995 (Cth) does not apply in these proceedings.[6]
[6] Family Law Act 1975 (Cth) s 69ZT.
The Court is wholly absent any evidence that would found a basis for an assertion that the Father suffers from ‘anger issues’ or has a ‘violent disposition’ and accordingly I afford that assertion no weight.
For his part, the Father denies perpetrating any of the family violence asserted by the Mother. In his March 2020 affidavit, the Father gives responsive evidence to matters raised in the Mother’s May 2019 evidence. While the Court has dealt with those specific allegations in the contents of the May 2019 judgment, it is proper to point out that the Father denies stalking the Mother, and provides an innocuous explanation for the events described by the Mother, and denies perpetrating “financial violence”.
The Father also gives some evidence for what he might assert are the bases for the Mother’s assertions (that is, giving an explanation for the Mother’s assertions of family violence that are other than the Father perpetrated family violence). The Court can do little with the Father’s sundry surmises on the matter, especially when it is not clear to the Court that his responses adequately address the specific complaints of the Mother relating to communication between the parties. It would have been of more assistance to the Court to receive evidence of things the Father has done to address the Mother’s concerns, albeit he considers them unfounded.
In relation to other issues before the Court in the matter are voluminous sums of text message correspondence. I have read and considered the entirety of that correspondence. In considering whether the evidence substantiates that the Father is perpetrating ongoing family violence by way of text message correspondence, there is nothing in the correspondence before the Court that would rise to the level of family violence as defined by section 4AB of the Act.
The Family Consultant discussed the Mother’s allegations of family violence, and expresses that the Mother’s fears are “based on her experience of [the Father] becoming very angry at times during the relationship, and him being increasingly aggressive towards the end of their relationship and following separation while living separated in the same home.” The Father “vehemently” denied the Mother’s claims to the Family Consultant. He described “normal couple conflict” during the relationship mostly relating to financial matters, concedes an instance where he “banged his hands on a coffee table out of frustration”, and counter-asserts that the Mother was the “aggressor” during the relationship. Of most concern to the Court is the following:
Ms Normands’ concerns about X’s safety and wellbeing with Mr Enright seem to be primarily based on her claims that Mr Enright was highly controlling, emotionally abusive, and sometimes aggressive during their relationship. As a result of her alleged experience of family violence, Ms Normands appears to hold concerns that Mr Enright could possibly be physically violent towards X, or that he could be controlling with X and insensitive towards her, and that this could have a very negative impact on X’s emotional wellbeing … She also raised concern about Mr Enright’s mental health.
This is troubling to the Court, not in the pure factual sense of “did this family violence occur”, but on the basis of irrespective of whether the violence occurred, the Mother continues to behave as though she is plagued by it. This is clearly having an impact on the ongoing parenting relationship between these two people. As noted by the Family Consultant, it would be highly troubling to the Court if, on a final basis, the Court made findings that the Father conducted himself in the manner described, however that is just not open to the Court on the interim basis without the proper testing of evidence. It is still troubling to the Court that this issue continues to affect the parties in the manner that it does.
There is nothing that arises since the date of that judgment that would lead me to make any findings on the evidence that family violence has occurred. That is not the same as a finding by the Court that family violence did not occur, and this should not be construed as a finding by the Court that family violence did not occur.
The Co-Parenting Relationship
This is a matter where the parties present diametrically opposing narratives of the progress of their co-parenting relationship. The Father’s position is, broadly, that the co-parenting relationship is functional, and in the few instances where it has been non-functional, it is the Mother’s fault. For the Mother, she asserts that the co-parenting relationship is in a parlous state consequent upon the Father’s conduct.
The Father is critical of the Mother for moving residence, without forewarning, to a location far enough away that he asserts it affects his travel time to changeover. Consequent upon her move, the Mother requested that changeover occur at Suburb B Supermarket, which the Father deposes he accedes to on Wednesdays and Saturdays, but not on Mondays given the short time he has with the child. The location for changeover is a matter agitated by the parties, and considered further on in these Reasons.
While he deposes the Mother is frequently late to changeovers now (though without specificity about the frequency of this lateness or the gravity of the lateness), he does depose that she communicates with him by text when she is running late, including by up to 30 and 90 minutes, which he deposes he accommodated without “complaint”. Properly the Father also deposes that he has himself been late to changeovers, has communicated by text with the Mother on the matter, and she has accommodates him. This on its own portends some functionality to the co-parenting communicative relationship.
In his March 2020 affidavit, the Father deposes that the Mother ensures that the child has a backpack with a stuffed animal that the child sometimes sleep with “to give her a sense of familiarity” when she’s spending time with the Father. That is child-focussed conduct by the Mother.
The Father gives evidence of an incident in December 2019 when he asked the Mother to allow the child to spend additional time with the Father to attend a children’s Christmas Carol performance in Suburb A. He deposes that the Mother “advised that she didn’t think this would be good for X” and that the Mother felt that “the current amount of time [the child] sees [the Father] is too much already.” The Father actually quotes the Mother later on as saying “As [the child] is still quite unsettled at handovers, adding more visit days might not be beneficial for her at this stage. Let’s leave the schedule as agreed on the last two courts [six] please, which I still believe to be too much for her already …”
To say that the Mother expressed the view that the child was seeing the Father “too much” on the basis of that quoting is unfair. While it might have been petty to not allow the child to attend the Christmas carol event, it is clear that the Mother’s view of the time spent by the child with the Father was not irrationally and fastidiously held, and rather is a concern about the capacity of the child to cope with her schedule.
More troubling for the Court is the Father’s assertion of the Mother saying the following to the Father at a changeover:
Children are resilient, [the child] only see’s [sic] you because she has to see you, so she is resilient. You should read more about it, resilience and children – read more. Just because she settles after being with you doesn’t means she is ok or that it is health for her to see you.
The Court cannot find on the interim basis that the Mother did, in fact, say this to the Father, that evidence being untested. But if the Court finds at an eventual testing of the evidence that the Mother did say this to the Father, that indicates an ongoing belief held by the Mother at least at that time that the child does not have a meaningful relationship with her Father. That is a most unfortunate view for one parent to have about the relationship of their child with their other parent.
As evidence for the functionality of the parties’ co-parenting relationship, the Father gives evidence of an incident in December 2019 when the child was fed “a few bites” of scrambled eggs containing dairy “by mistake”, which affected the child’s health. More will be made of the child’s dietary and health needs and the parents respective commitment thereto later on in these Reasons, but for these purposes, the Father goes on to express that since then “I have been in significant communication via Trello with [the Mother] regarding [the child]s digestive health”. On its face, and without examining in depth the nature of that correspondence as yet, that indicates to the Court that the Father took seriously his previous error, and made strides to address it in a child-focussed way.
The Father gives evidence that he communicates with the Mother to understand the “updated language” the child uses to express herself, her progress, and “staging”. He goes on to express his opinion that as at March 2020, the Mother had been much less hesitant to give the child to the Father at changeovers, which had improved the efficiency of changeovers. While that is complimentary of the Mother, it does express the implicit view that the Father views the cause of the poor changeovers of times past as being the Mother’s hesitancy and her hesitancy alone.
Aside from changing the location of changeover on Wednesday and Saturday, what the Father does not provide in his evidence are examples of compromises or initiatives he has proposed to address the concerns of the Mother, albeit he considers them to be misguided. While the Court has the impression from his evidence that he considers himself a competent parent and capable of co-parenting effectively, aside from the bare actions he undertakes to be ‘a good parent’, it is unclear what he does to ensure he is a competent co-parent.
For the Mother’s part, the crux of her case is best expressed in her June affidavit as follows:
I am concerned that the Father and I are unable to communicate and agree on simple matters in respect of [the child].
She gives evidence in her June 2021 affidavit that on an occasion in June 2021, the Father cancelled his time with the child on the basis that he was unwell. The Mother made arrangements to retain the child on that basis. That incident demonstrates child-focussed behaviour by both parties. Notwithstanding this, in her written submissions, the Mother uses this as an example of the Father failing to take the opportunity to spend time with the child. I completely reject that submission.
Of particular concern to the Mother in relation to the co-parenting relationship between the parties is the Father’s refusal to “accept” a new changeover location consequent upon the Mother’s move. She expresses her discomfort with sharing her new address with the Father “due to the history of stalking and domestic violence”, though couches his request for her new address as being based on the difficulty of being able to agree to a new location for changeover if he is not aware of her address. While the Mother’s concerns in this regard are of a character well-understood by this Court, the Court finds there is some force in the case the Mother asserts the Father puts.
The Mother deposes that she is not intending to reduce the Father’s time with the child by changing the changeover location, and then gives evidence of how she uses time spent with the child in the car. That appears to the Court as passive aggressive and unnecessary. It is not open for the Mother to decide that time spent by the Father with the child in a car travelling home from changeover has meaning or importance.
The Mother then details an incident when she was unwilling to commute to the Suburb A changeover location as she was travelling with a temporary tyre in heavy rain, and requested that changeover occur at Forestville. That, of itself, does not strike the Court as an unreasonable request.
The Mother then deposes that “4 hours” was spent messaging between the parties with the Father demonstrating reluctance for the new location in the event he missed out on time with the child.

I have read the totality of the text messages exchanged between the parties. It is impossible to assess the timeline of the messages exchanged because there are no timestamps for the messages provided. It is the view of the Court that the communication, while perhaps unnecessarily protracted for one changeover, is not disrespectful, on topic at all times, and child-focussed. It has the exact flavour of correspondence between two parties who are attempting to negotiate the often challenging quotidian details of raising a child between two homes. This may have been an opportunity for the Father to demonstrate flexibility as a show of good faith to the Mother.
The Mother expresses concern at the Father raising her comments to the Family Report writer, and then expresses a logically unconnected concern that the Father may have raised issues such as these with the child directly. This concern is not reasonable on the state of the evidence. In reading the correspondence (best that one can without timestamps), it is clear that the Father feels that there is a pattern of conduct of the Mother attempting to change the location of changeover, despite there being Court orders. While in this case the Mother may have had a reasonable and specific excuse, that feeling by the Father is entirely understandable, in circumstances where the Mother had, very literally initiated an attempt to permanently change the location of changeover. The Mother knew that she had made attempts to change the location of changeover previously, and gives evidence in her affidavit that is inexplicably critical of the Father for not merely accepting her proposal.
Moreover, in this context, it is totally explicable why the Father would make reference to what he might perceive as ‘subterfuge’ by the Mother. It is entirely inappropriate to make jokes about a parent using substances of abuse to a Family Consultant in circumstances where that Family Consultant is attempting to make a serious assessment of the circumstances of this family. I am somewhat baffled that the Mother would think it appropriate to depose to this conduct in her affidavit without making the necessary admissions as to the seriousness of that conduct.
The Father does not give direct evidence of this particular exchange with the Mother, however his replies to her text messages speaks for itself. I would note that while it has been the right of the Father to rely upon the orders made by the Court for changeover to occur at the Library P, that general entitlement does not excuse parents from the general expectation by this Court to conduct themselves in a child-focussed manner, even if that conflicts with the parent’s own wishes or hopes. Court orders do not restrict parties from making sensible arrangements consensually between themselves. I cannot know on the state of the evidence if the Father’s stated concerns were bona fide or whether the Court should draw a more adverse inference from his conduct.
It is unfortunate that the state of trust between these parties is such that they were not able to come to a quicker agreement on such a minor issue. The only issue in that correspondence that gives the Court serious concern about the co-parenting relationship between the parties is that by both parties, it necessitated a protracted message exchange.
The next evidence the Mother points to express the breakdown of the co-parenting relationship are paragraphs 58 and 59 of her June affidavit, which I will extract in full:
Recently, during a handover on Monday morning in Suburb A, Mr Enright asked me in front of X, words to the effect of
Would it be helpful if I brought X back half an hour later? I know you have a longer drive to go home and come back.
I replied saying, words to the effect of
It would be helpful if you could actually meet us halfway as requested by my lawyer weeks ago. Let us please keep these conversations between our lawyers though. We should not be addressing any conversation in person or in front of X. Our communication should be strictly via Trello app.
It is fascinating to the Court that the Mother considers this evidence of a poor co-parenting relationship.
It is proper to state at the outset that it is entirely fair to request that communication in relation to parenting arrangements only occur between legal representatives. It is also fair for parties to enact a blanket ban on any discussion about parenting arrangements occurring in the presence of children. However, aside from those matters, there is barely anything that troubles the Court about this interaction.
It is not the case that any discussion of parenting arrangements in front of children are always fraught. It can be very helpful and meaningful for children to see their parents modelling a functional co-parenting relationship. The proposal made by the Father is, prima facie, reasonable. It is phrased as being to assist the Mother, though of course the Court is aware that this would advantage the Father by enabling him to spend extra time with the child. It may have been ill-advised for the Father to raise this in front of the child, especially given what he asserts are his extensive experiences of the Mother being unreasonable uncooperative. But that does not of itself indict the conduct of the Father as being non-child-focused.
The Mother is, of course, not required to accept the Father’s proposal on the spot, irrespective of the reasonableness of that proposal. But it is troubling that instead of declining the offer and referring to correspondence occurring between solicitors and away from the child, the Mother chose instead to reassert her request that the Father assent to her original proposal in the presence of the child. Moreover, that reply belies any submission that the Father’s conduct in this instance was coercive.
This was a relatively trivial issue. While there is nothing in the contents of the dialogue that gives the Court concern about the state of the co-parenting relationship, that it ended up in the Mother’s affidavit is unfortunate.
The Mother gives evidence that the parties use Trello to communicate about the child, and deposes that the Father has “now been sending me text messages instead. I am not comfortable with this form of communication due to the number of messages and the time at which they are sent – sometimes late at night. I find it invasive.”
Again, there is minimal evidence of the Father texting the Mother late at night, aside from examples in the context of an ongoing dialogue. It is also not clear what the Mother means by “[the Father] has now been sending me text messages”, suggesting that this is a new phenomenon. In the Mother’s affidavit of March 2020, she herself annexes text messages that she initiated to the Father as early as June 2019. It is not clear why it is appropriate for her to text the Father in relation to issues affecting the child, but not appropriate for the Father to do the same.
The Mother is critical of the Father for failing to give her 12 hours notice prior to medical appointments for the child. She annexes to her affidavit five text messages from the Father of what she asserts are his failing to give her the proper 12 hours notice. Four of those examples are not timestamped. The contents of each message are generally to the effect that he has an appointment for the child ‘that day’. Unless each appointment is in the early evening and his text messages are sent in the wee small hours of the day (which would fairly ground some basis for the Mother’s earlier assertions of receiving text messages late at night), the Father is likely in breach of the order.
The Mother asserts that she does not believe the order providing for notice is necessary in circumstances where the Father himself has breached it numerous times. This should be read in the context of the Mother’s overall application for sole parental responsibility.
Finally, the Mother expresses her concern about the parties’ inability to agree on simple matters relating to the child, quoted above. She expresses concern in the Father’s unwillingness to make
… joint decisions that are in [the child’s] best interests, such as amending the changeover time considering her development and the impact on her meal/sleep routine and the request for change of handover location.
The discourse on changeovers vis a vis the child’s routine will be discussed later in these Reasons.
In her earlier evidence from March 2020, the Mother expresses the following:
I have always been concerned with [the child’s] safety when left in the private care of [the Father] due to his lack of insight regarding how to care for [the child]. I feel that [the Father] does not consider [the child’s] age and development and the fact that she is still very young. I have also been concerned about Mr Enright’s violent disposition and the exposure of [the child] to his verbal abuse due to his anger management issues.
I have already made findings in relation to the Father’s alleged anger issues and ‘violent disposition’.
This passage is troubling to the Court. It indicates in specific detail the distrust the Mother has in the Father, both in his parenting capacity and in his general commitment to parenting their daughter appropriately. While time has passed that affidavit by to some degree, it is clear in the Mother’s updating evidence that these concerns and fears she holds have not in any sense totally abated.
The Mother goes on to describe the time the child spends with her Father, as at March 2020, as “significant and meaningful time” with her Father. This is repeated in her written submissions. I have had recourse to the audio record of the mention on 9 June 2021, where the Mother again repeats that the Father is spending “substantial and significant time” with the child. As I made clear at that mention, the time the Father is spending with the child is nowhere close to substantial and significant time, as defined by section 65DAA(3).
The Mother deposes that the Father once messaged her to ask about something the child was doing that “he did not understand”. The inference the Court is able to draw from that incident is that the Father acted in a child-focussed manner in accessing information to help him better parent his daughter, especially in circumstances where he spends a number of hours with her per week. I would gently encourage the Mother to be cheered by this conduct. On the state of the evidence as it is before the Court, that demonstrates that the Father recognises the role and importance of the Mother as primary carer and the importance of consulting with his daughter’s primary carer to best support and parent her. The Father cannot be expected to understand every moment of the child’s development, in circumstances where she does not reside nor spend substantial and significant time with him.[7]
[7] See especially Family Law Act 1975 (Cth) s 65DAA(3).
The Mother then goes on to detail the parties’ joint agreement, purportedly, that the child be breastfed for as long as the child shows signs of wanting to be breastfed. The Mother uses this as an example of why the time spent by the child wither Father should not be increased, as the child does not accept expressed breastmilk and would be able to continuing breastfeeding more frequently if she spent more time with her Mother. I have no evidence before me about whether the child continues to breastfeed. At her current age of about three years old, the child would not be breastfeeding with such frequency that it would be materially impracticable for her to spend time away from her Mother, as evidenced by the current regime where the child spends up to 7 hours at a time with her Father.
Finally, the Mother expresses her ‘belief’ that overnight time is not necessary for the child to form a strong bond with her Father, but as that evidence is an unqualified opinion, I afford it no weight.
The Court is left with an overall impression that the Mother has immense distrust for the Father, however she is not able to demonstrate any contemporary examples that portray in objective terms the parlous state of that relationship. That leaves the Court with the only inference available, that the Mother’s distrust is founded on her assertions of historical family violence, about which the Court has already made findings. That the Court did not find that the family violence occurred on the interim basis in May 2019 does not negate the fact that this appears to be the sole basis upon which the Mother draws distrust that affects the co-parenting relationship.
The parties’ affidavit evidence gives the Court the impression that despite the actual lacuna of any real barriers to a competent co-parenting relationship, the parties remain hung up on trivial matters. The Family Report is perhaps the most utile piece of evidence in this interim consideration of the co-parenting relationship, though it is untested.
The family consultant describes the co-parenting relationship as being affected by a “lack of trust from [the Mother] to [the Father] and possibly domineering behaviour from [the Father] to [the Mother]”.
The Court is troubled by the demeanour of the Father as described by the family consultant. It is understandable for parties to have anxiety about the family report process and indeed it is well known to this Court that people under the scrutiny of the Court and engaged in parenting proceedings can behave unusually out of anxiety or nervousness. However, the Court is entitled to draw inferences, favourable or unfavourable from such conduct. Ordinarily, this is best done on a final hearing of the evidence where matters can be tested through cross examination. Unfortunately for these parties that date will be at least a year and possibly years away.
However, that the family consultant was moved to notate her experience of the Father behaving in an overbearing and domineering way, in her observation, does give the Court concern about the Father’s insight into his own behaviour. This concern is both because, obviously, the Court is required to be concerned about behaviour that is coercive.[8] But moreover, the Court is concerned about this behaviour, irrespective of whether the perpetrator intends to be coercive or controlling as the Father denies is his intention, where it has the practical outcome of diminishing what ideally should be a functional and cooperative parenting relationship. If the Father’s conduct contributes to any anxieties that the Mother may have, consequent upon her assertions of family violence in the former relationship or any other matter, then that is of concern to the Court.
[8] See especially Family Law Act 1975 (Cth) s 60CC(2A).
It is notable that coupled with this possible lack of insight is a lacuna in the Father’s evidence of steps he has taken meet the concerns of the Mother in relation to the conduct of changeover, albeit he may consider that they are frivolous or unnecessary. I have made reference to this lacuna earlier in these Reasons.
It grounds the factual basis for the Mother to feel distrust towards the Father, and the Father should heed this observation closely.
The evidence of the family consultant ultimately gives the Court some concern about the ongoing co-parenting relationship between the parties. The evidence suggests at this time that the co-parenting relationship is still existent, but it runs a real risk of deteriorating.
Time spent by the Child with the Father
At the outset of this consideration, it is important to note that neither party has the benefit of independent and contemporaneous evidence of time spent between the Father and the child, such as supervision reports.
The Father’s evidence, in both his June and his March affidavits, is replete with evidence about the daily routine he adopts for the child when she spends time with him and activities he and the child do together. The evidence indicates the Father engages the child in age-appropriate activities and is an active part of playing with her when she spends time with the Father. There is nothing in that evidence that gives the Court any concern.
In stark contrast, it is the Mother’s evidence that the time between the child and the Father is proceeding poorly.
Most of the evidence provided by the Mother that time is proceeding poorly relates to the conduct of the child at changeovers. I will address that matter later on in these Reasons.
The Mother expresses concern that the Father, not being the child’s primary caregiver, will not “understand X’s distress cues” and therefore not be able to respond appropriately to X’s anxiety. The Mother purports to put into evidence as annexures to her affidavit (annexures H and I) certain research material. The material in her annexure H which is an extract from a paper prepared by Robyn Sexton, a former judge of this Court of deservedly the very highest reputation, is just that – an extract, and is not of any assistance to the Court. The material relied upon in her annexure “I” is an article from the Australian Association for Infant Mental Health Inc from March 2015 being purported guidelines developed in November 2011 for “infants and overnight care – post-separation and divorce” without author attribution and carries no weight.
In her June affidavit, the Mother deposes several instances of the child showing a reluctance to spend time with her Father, and at times outright saying “I don’t want to go with daddy”. Other than one incident, there is no specificity in the evidence in relation to the child’s reluctance to changeover to the Father. The one incident with some specificity is the incident where the Mother saw fit to write to her solicitor and suggested engaging the Department, aforementioned. I can give that correspondence very little weight as being evidence of the child’s reluctance to changeover to her Father, or of time proceeding poorly, given that that correspondence to her solicitor is a hearsay statement, notwithstanding that it is admissible.[9]
[9] Family Law Act 1975 (Cth) s 69ZT.
The Mother deposes that she has asked the child, when the child has been upset after spending time with the Father, if the child would like to spend more time or even overnight time with the Father, “in case this is causing her to be upset”, to which the child has always replied ‘no’.
While it is proper as a parent to ask questions of a child to understand the cause of their upset, given the child’s tender age, the Court would not be able to place any weight whatsoever on any view expressed by the child.
In her earlier evidence, the Mother deposes, again, that the child was not coping with the current time arrangements, and theorises (though without any basis for the Court to accept this) that it is based on her very young age, state of development, and the overlapping of meal times.
The latter of these items has been the subject of correspondence between the parties annexed to the Mother’s affidavit, and to the extent that it is becoming a problem for the child, that would be a problem that the parties could readily overcome by having an understanding of which parent will provide which meal at times close to changeover.
What is interesting to the Court in this particular part of the evidence is that the Mother’s case is, in effect, that time has not improved since March 2020, despite some 17 months passing. The regime in play as at March 2020 was the same regime entered into by consent of the parties in September 2019. By the time the Mother had sworn her June 2021 affidavit, the child had been spending time with her Father, in the same pattern, for a year and nine months. While it might have been true as at March 2020 that the time regime was too burdensome for the child (though I do not at all find that that was the case), it is salient that that was a consent arrangement entered into months prior. Moreover, the Mother does not provide any evidence of things she has done to improve the child’s experience of time with her Father or what she tells the child to prepare her for changeover.

An example of this is the Wednesday changeover at the end of the Father’s time with the child.
In the Father’s June affidavit, the Father deposes that, given the new location for changeover on a Wednesday, the weekly timing of the child’s “play date”, traffic conditions, preparing the child’s dinner, he has advised the Mother that he struggles to return the child by 6:30PM as she desires, but that he can typically return the child around 6:45PM and sometimes closer to 7:00PM.
On the other hand, the Mother deposes that the 6:30PM changeover on Wednesdays overlaps with the child’s dinner time, and delays her sleep routine. She has, apparently, requested to adjust changeovers on Wednesday to start and finish earlier. The Mother deposes that upon getting home on a Wednesday, the child says she is hungry while “overtired”. The Mother deposes that “when overtired she gets hyperactive and takes much longer to fall asleep”.
The Mother states that the Father is late to several changeovers, with him excusing his conduct on the basis of losing track of time or starting dinner late. The Mother annexes text message correspondence on the matter. In that text message exchange, the Father foreshadows that he is trying to ensure he attends changeover on time, but there are circumstances that make it difficult. That correspondence also shows the Father being accommodating by coming to the Suburb B changeover location despite having the benefit of Court orders providing for changeover to occur at Suburb A.
The Father also expresses clearly that if changeover occurs at 6:30, dinner with the child becomes rushed. The Mothers replies to this by stating that the child is having dinner around 6:45 as per the schedule update, and if she eats too early, that it delays her bedtime.
In reply, the Father notes that he ordinarily feeds the child dinner on Wednesdays, that he has been clear about this, and that it now makes sense to him that the child does not eat everything he feeds her, because she knows she is going to eat with her Mother as well. He states “psychologically, she is having to eat two dinners in an evening”, perhaps one of the most unintentionally insightful references in the entirety of this evidence.
In his correspondence, the Father seeks a 7:00PM drop off so that dinner can be later to match with the child’s bedtime, enabling the child to “wind down, have a snack, and go to bed after her dinner”. If the Father seeks a later drop-off time, it seems commensurate for drop off to have been moved forward by an hour as well.
It is baffling to the Court why these two parents do not seem to have an understanding about which parent should or may properly provide the child with dinner on a Wednesday. There is no evidence before the Court that dinner time is an issue with which the child has no flexibility 15 minutes or so either side of a meal time, which would set the groundwork to enable necessary flexibility in effecting changeover, while ensuring that the child has a routine with dinner.
The Mother deposes that the child stopped napping in the day and now goes to bed at 7:00PM, and that she “kindly” requested that changeover occur on time per the orders. While there is a child-focussed basis for this request, it comes in the necessary context of the Mother insisting on changeovers occurring at a different location to that set by the orders. It leaves the Court with the impression that the Mother is acting in accordance with, partly, what is convenient to her, rather than, purely, what is in the best interests of the child. Of course, a child’s best interests are not the only consideration, and there is nothing inherently unreasonable with a parent considering their personal circumstances.
The Mother deposes that the Father replied to her request with the following:
There are some adaptations going on for both [the child] and I, and the new requests on routine with bath before, etc and travel. I certainly set out today for hopefully a 6:30 PM drop off. Dinner Prep and bath this day just went not as expected, and then I have a choice to rush [the child] through dinner or not. Rushing I do not think is best.
The Mother then goes on to express that she understands that children can delay things, but that this is a regular Wednesday occurrence. She then deposes, curiously, “by the time I get [the child] home, she eats and gets on her pyjamas. She is not able to fall asleep until 8:15 PM to 8:30 PM.” It is not clear why the child needs to have another meal with her Mother once she has been returned by the Father, especially in circumstances where the Mother is concerned about the child getting to sleep on time. The Father is, as far as the Court can tell, very clear in his intention to give the child dinner. Whether that is proper or not remains to be seen, and is not aided by the Mother not providing evidence on why that belief was unreasonably held by the Father, or inappropriately held by the Father. But nonetheless, the Mother persists in feeding the child a second dinner, rather than just preparing the child for sleep. It appears to the Court open on the evidence to draw the inference that any delay on a Wednesday with the child’s routine is, at least, contributed to by the Mother. That of course does not excuse the Father from complying with the Court orders, irrespective of the delays children can cause.
For the next 15 years, the child will continue to grow and develop and matters arising out of that growth and development could very well continue becoming the Court’s problem. As is appropriate and proper, the child’s routine will continue to develop and change and the parents will need to learn how to adapt to those changes. To some degree, the challenges the parties face at present are, relatively, manageable – the child needs to eat at certain times and the child needs to sleep.
Nothing on the evidence suggests that either party is incompetent at providing the child with a meal. So long as the child lives with her Mother, it is not possible for the Father to put the child to sleep of an evening, except for times when the child spends overnights time with the Father.
The Child’s Diet and Health
The child is currently being treated by Healthcare professional R and Healthcare Professional S. Healthcare professional R has advised the parents to ensure that the child avoids gluten and dairy completely, including with cross-contamination of food. The Father goes to great lengths in his evidence to set out the compliant foods that he will give the child, compliant foods that she enjoys eating, and specifies to a great extent the lengths he goes to ensure that the child’s food is gluten free and dairy free. The Father deposes in his June affidavit “I screen all food to ensure no gluten or dairy are included”. Prior to October 2020, there were items that the Father was feeding the child that were gluten free and dairy free, but may had a notice that “may contain dairy” as the product was processed in a plant where dairy is processed.
At the Mother’s concerns, I removed these items from the child’s diet from about October 2020. I have also consulted with the child’s Healthcare professional S about the child’s diet and eating habits. I have attained all medical records from Healthcare professional S up to date.
The Father’s evidence that he gave the child food that contained a notice “may contain dairy” prior to October 2020 is, to a degree, glib. It was clear to him from at least March 2020 on the basis of the Mother’s evidence that it was of grave concern to her that the child was consuming trace amounts of dairy and gluten, whether that was a rational concern or not. It is proper that the Father now screens the child’s food more carefully, but this strikes the Court as an example, perhaps, as the Father missing an opportunity to demonstrate that he has given serious consideration to the concerns of the Mother, to meet her concerns.
Moreover, on the Father’s own evidence, this is not the only example of him unintentionally and accidentally feeding the child food with dairy and gluten. In the Father’s March affidavit, he properly and frankly deposes to an episode where “the child had a few bites of scrambled eggs made with dairy milk by mistake at a restaurant”. I have discussed this matter at some length earlier in these Reasons. In that affidavit, the Father also deposes to writing to the child’s paediatricians to learn more about her current health and to get answers to more “technical questions”. That is proper conduct of a parent who is properly concerned with the health of their child, and is minded to ensure that they comply with dietary directives.
The Mother’s evidence invites more concern. She gives evidence that she has sent the Father photographs of the child’s stools (evidencing the child’s consumption of dairy and gluten, supposedly), and it does in fact annex a copy of such a message to her March affidavit. In her June affidavit, there are four messages that she has sent the Father, absent any timestamp, expressing reminders to ensure the child does not consume gluten and expressing concern about the state of the child’s health on the basis of what the Mother has observed in the child’s stool. It is clear from those messages that the Mother is vigilant, perhaps even fastidious, about the child’s diet. It is also clear that when the child has unusual bowel movements or digestive issues, she operates with a presumption, to some degree, that the cause is something that the Father gave the child. While the incidences of the Father giving the child dairy-containing foods are regrettable, and it is understandable why the Mother would have such a concern, it is not clear to the Court that this gives rise to the inference that the Father is ignorant of or apathetic about the child’s dietary needs. What those messages do not contain are replies from the Father.
The Mother deposes in her June affidavit that the child has said to her that after visits with her Father that she is “sad because [the Father] gives her pig meat to eat”. The Mother says “I have addressed this issue with the Father via message”, but does not annex to that affidavit the message in question at that point. The message is annexed with the aforementioned messages regarding the child’s bowel movements, and states:
X said she was feeling sad because she was given bacon. She’s aware bacon is pig. She is not happy about eating animals. X receives a very balanced vegetarian diet and supplements discussed with her Healthcare professional R (who is vegan and has raised her kids vegan). Bacon is not known for being a healthy or nutritional food anyway. There are plenty of vegetarian food [sic] rich in nutrients and good fat that you can provide to her.
To her affidavit of March 2020, the Mother annexes a letter from the child’s treating Healthcare professional R I have read that letter carefully.
The letter is dated 2 March 2020 and Healthcare professional R states that she last saw the child in May 2019. It is salient to note that as at 2 March 2020, the world had not yet been plunged into the lockdown emergency caused by the SARS-CoV-2/COVID-19 pandemic. Healthcare professional R discusses the steps taken by her to assess whether the child has coeliac disease, and contains her recommendation for the child to eat a strictly gluten free, dairy free, and high calorie diet. The letter is probative and assists the Court in assessing the actual medical issues affecting the child.
What Healthcare professional R does not say is that she has prescribed or recommended the child have a vegetarian or vegan diet. It is quite improper to conflate the personal dietary choices of a paediatrician for herself and her family as being inherent gold standards or recommendations for other children. Moreover, it is quite concerning to the Court that the Mother thinks it is appropriate to interfere with the manner in which the Father parents the child during the times she spends time with him, by imposing a vegetarian diet on a lifestyle basis, not rooted in the health of the child. That is improper interference with the day-to-day management that a parent is entitled to have under section 65DAE of the Act.
Moreover, it is not remotely age appropriate to suggest that a parent ought to, inherently, respect lifestyle dietary choices made by a toddler. If the child expresses to the Father a disinclination to eat meat, that is a matter for the Father to manage with the child during the time he is able to spend with her, as it is should the child show a disinclination to eat any other kind of food not proscribed by her paediatrician.
There is no evidence before the Court that would satisfy me that the Father is grotesquely inattentive when it comes to matters of the child’s diet, albeit that I consider the Father has missed chances to demonstrate in a good faith manner that he has considered the Mother’s concerns and has made an attempt to meet her at those concerns. Whether the child eats a fully vegetarian diet or the child has an omnivorous diet between her two parents is not something that bothers this Court, nor is it something that the parties should not be able to work out between themselves, especially in light of the general rule provided for in section 65DAE.
Notwithstanding this, it is of course of great concern to the Court that both parties maintain what can only be described to date as significant compliance (notwithstanding the instances of accidental noncompliance by the Father) with the child’s dietary needs.
THE LAW
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[11]
[11] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[12] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[12] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[13] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[14]
[13] Family Law Act 1975 (Cth) s 65D(1).
[14] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [15]
[15] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[16]
[16] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[17]
[17] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
(1)Whether the child spending equal time with each parent would be in the best interest of the child;[18] and
(2)Whether the child spending equal time with each of the parents is reasonably practicable.[19]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[20]
[18] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[19] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[20] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the decision of Grella & Jamieson:[21]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[22]
[21] Grella & Jamieson [2017] FamCAFC 21.
[22] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
(1)Assess whether that risk is an acceptable risk or an unacceptable risk;
(2)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
(3)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[23] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[24] Napier & Hepburn,[25] Johnson & Page,[26] Deiter & Deiter,[27] and Eaby & Speelman.[28]
[23] M & M (1988) FLC 91-973.
[24] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[25] Napier & Hepburn (2006) FLC 93-303.
[26] Johnson & Page (2007) FLC 93-344.
[27] Deiter & Deiter [2011] FamCAFC 82, [61].
[28] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).

Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[29] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[30]
[29] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[30] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[31] this approach “enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”[32]
[31] Eaby & Speelman [2015] FamCAFC 104.
[32] Eaby & Speelman [2015] FamCAFC 104, [19].
What constitutes ‘meaningful’ time between a parent and a child has been described by the Full Court in McCall & Clark[33] citing Mazorski & Albright[34] as follows:
The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[33] McCall & Clark [2009] FamCAFC 92.
[34] Mazorski & Albright (2007) 37 Fam LR 518.
SECTION 60CC – THE PRIMARY CONSIDERATIONS
The primary considerations are the benefit to the child of having a meaningful relationship with both of her parents, and any need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. Subsection (2A) mandates the greater weight is to be given to the consideration relating to any need to protect the child over the consideration of the benefit to the child of having a meaningful relationship with both of her parents.
I find that this is not a matter where there is any risk of physical or psychological harm to the child by reason of being subjected to or exposed to abuse, neglect, or family violence. I reiterate for the parties that this is a cause for joy.
I find that the principal matter to be considered in determining what orders are properly to be made with the child’s interests as the paramount consideration in relation to the time to be spent by her with her Father is that such time proceed and progress on an age appropriate basis.
As I noted above, the family consultant notes in the Family Report:
Mr Enright is keen for X to begin spending overnight time with him. As previously suggested, given that X already appears to be struggling with separating from her Mother when going to spend several hours with Mr Enright, it seems likely that, if the length of time were increased, X may become even more averse to the idea of spending time with Mr Enright. While there is no set rule book for when children may be ready to begin spending overnight time with a parent, there are certain factors that may assist a child in their readiness. Firstly, a child’s sense of independence from their primary care should be considered. From assessment it appears that X is highly attached to Ms Normands, which is to be expected given that she does not attend childcare and is thus rarely away from her Mother except for when she is spending time with Mr Enright. X may thus struggle to spend prolonged periods of time away from her Mother at this stage until she has a more developed sense of independence. A child’s particular temperament also bears consideration as outgoing confident children may more easily adapt to new circumstances than a naturally timid and cautious child. X appears to be a somewhat timid young girl and this is another factor which may suggest that X may benefit from her time with Mr Enright progressing at a more gradual pace. Furthermore, X is still at an age at which she has a limited understanding of time, and separations from a child’s primary carer, particularly overnight separations, can be tolerated better when a child has a better understanding of time as they can be reassured that they will be reunited with a parent the following day. The co-parenting relationship is also another factor which needs to be considered as children whose parents are in conflict can have greater insecurities and greater need for stability. Unfortunately, the co-parenting relationship between Ms Normands and Mr Enright appears fraught and characterised by a lack of trust from Ms Normands towards Mr Enright, and possibly domineering behaviour from Mr Enright towards Ms Normands. If Ms Normands is anxious about X spending overnight time with Mr Enright because she does not trust him, this may make it difficult for her to support X to spend time with her Father. If Ms Normands is anxious about the prospect of X spending overnight time with Mr Enright, X may well be anxious too. There may thus be some benefit to X’s time with her Father increasing at a pace at which both X and Ms Normands feel comfortable with. With all that said, the benefits to X of beginning overnight time with Mr Enright now or in the near future, are that this step could help their relationship to be enhanced, so long as X is not over-anxious or distressed about spending such time away from her Mother and has a firm foundation in her relationship with Mr Enright. In addition, once X begins spending overnight time with her Father, the frequency of time she spends with her Father can decrease. This may be of benefit given that the changeovers at this point seem to be a distressing experience for both X and Ms Normands. Nevertheless, in light of all these considerations, it may be best that X begins spending overnight time with Mr Enright when X is closer to aged four years, as this will allow time for X’s development and the further development of her relationship with her Father so that when X eventually begins spending overnight time with Mr Enright, she is happy and confident about doing so.
A parent being able to engage with the child in night time routine and morning routine by having time with the child on an overnight basis where there is no element of risk to the child is an important step in the development of the meaningful relationship between parent and child.
I find that that step should be taken, especially as it will reduce the frequency of changeovers required.
I find that there is benefit to the child in having a meaningful relationship with both of her parents, I find that she has a meaningful, close and loving relationship with her Mother, her Mother being her primary carer for the whole of her life and her principal attachment figure. I find that the child has a meaningful, close and loving relationship with her Father, but that an increase in the time the Father spends with the child, including to overnight, is essential to enable that meaningful relationship to further mature and develop.
I do not accept the Mother’s submission that the evidence supports the time between the child and the Father being decreased. I do not accept the Mother’s suggestion that the totality of the evidence tends to suggest that the time has been progressing poorly.
SECTION 60CC – THE ADDITIONAL CONSIDERATIONS
The child is too young to express any views that ought to be given weight in these proceedings.
I have already made comment above, and findings, in relation to the nature of the relationship of the child with each of her parents.
I find the extent to which each of the parents have taken the opportunity to participate in making major long-term decisions about issues relating to the child, to spend time with and communicate with her tends in favour of and not against order being made for an increase in the time to be spent between the child and her Father along the lines proposed by the Father and the ICL as opposed to those proposed by the Mother. Again, I totally reject the Mother’s submission that the Father cancelling a visit due to him being unwell suggests a lack of commitment to spending time with the child.
In the making of any orders that increase the time the child spends with her Father, the natural effect is that she spends less time with her Mother. I find on all of the evidence that there is no basis to find that such decrease in time will have any detrimental effect on X or any detrimental effect on the meaningful relationship between the child and her Mother.
I find there is no difficulty or expense involving the child spending time and communicating with either parent.
I find on the whole of the evidence that there is nothing presented by the Mother which calls into doubt the Father’s capacity to provide for the child’s needs, including her emotional and intellectual needs and including her needs in being cared for overnight.
SECTION 61DA – PARENTAL RESPONSIBILITY
On 9 May 2019, I made an order that the parents have equal shared parental responsibility for the child. The Father seeks that such order continue, and the Mother seeks that she have sole parental responsibility.
There is nothing in the evidence that satisfies me that an interim order for sole parental responsibility would be necessary or appropriate in these circumstances. An order for sole parental responsibility would not negate the necessity for either parent to liaise with the other in times that they are running late to changeover. It would not entitle the Mother to change the location of changeover for her preference, nor would it materially impact on the experience of the child in the time she spends with her Father.
The only matter in which an order for sole parental responsibility might be of assistance to the Mother in her application is that it might, in a sense, entitle her to enforce that the child adhere to a vegetarian diet. That is a de minimus issue for the Court to impose an interim sole parental responsibility order.
This is a matter better left for consideration on a final basis.
SECTION 65DAA – EQUAL TIME, SUBSTANTIAL AND SIGNIFICANT TIME
I gave reasons in my judgment dated 9 May 2019 addressing whether orders for the child to spend equal time with each of her parents or the child to spend substantial and significant time with her parents were in her best interests and reasonably practicable.
X is now three years of age. Her Mother is her primary attachment figure and the child has not been away from her overnight yet. It is not in the child’s best interests to make orders that provide for X to spend equal time with each of her parents.
It is not in the child’s best interests to make orders that she spend substantial and significant time with each of her parents at this stage.
Neither party proposes that I make orders that provide for the child to spend substantial and significant time with each of her parents at this stage.
CONCLUSION
I find that it is appropriate to make orders for the child to spend time with the Father in between the two proposals of the parties. I find that it is appropriate to implement a regime for overnight time to commence, but somewhat slower than that contemplated by the Father.
I find that it is in the child’s best interests to make orders for the child to spend longer periods of time with the Father so as to reduce the number of changeovers required to occur between the parties, and to enable the child to settle into her time with her Father. I find that it is in the child’s best interest to make orders for that time to start and finish earlier. Changeover intersecting with the child’s dinnertime appears to be an ongoing problem for the parties, and while there is nothing on the evidence that would satisfy me that the Father is incapable of providing dinner to the child, it is in the child’s best interests to take this issue out of the parties’ hands entirely. I note that after a period of four weeks, the Father will begin to spend overnight time with the child. During those overnight occasions, he will be able to provide the child with dinner.
Furthermore, I find it is appropriate that during the ‘third phase’ of the graduated time structure in the orders, the child finishes her time with the Father at 5:00PM, rather than 6:00PM, so that the child can return to the Mother’s residence and return to her routine in the Mother’s home.
I find that it is in the child’s best interest to make orders that move changeover away, for the meantime, from what appears to be the child’s evening meal time, in the hope that this alleviates this area of conflict for the parents. While this means the Father will not be responsible for giving the child an evening meal for four weeks, as the child will then go on to spend overnight time with her Father, I find that this is a tolerable ‘reduction’ for the Father.
As the child will spend longer periods of time with the Father, and on the basis of the Father’s conciliatory approach to the Mother’s request to change the location of changeover, I find that it is appropriate for changeovers to occur at Suburb B Supermarket.
I am not minded to order the parties communicate by a particular means, other than that that communication occur in writing.
I find it is appropriate that orders restraining the parties from physically disciplining the child are proper to continue.
I find that it is proper to make an order directing both parties to follow all directives and recommendations of the child’s treating doctors and allied health specialists. I have no evidence that either party has done other than this to date, but it is hoped that by making this an order, the parties can have some peace of mind.
I find that it is proper to make an ordinary and mutual restraint on the parties from engaging in denigrating conduct of the other parent, or from allowing the child to remain in the presence of other persons doing so.
I find that it is appropriate to make an order restraining the parties from discussing the proceedings or the implementation of the orders in the presence of the child. While this might deny the parties any ability to foment a routine cooperative co-parenting relationship in the presence of the child (which the Court generally seeks to support), the parties have both raised matters which suggest that the safest course of conduct henceforth is for such communication to not occur in the presence of the child. For abundant clarity, this order does not prevent the parties from exchanging ordinary greetings or from conversing at all during changeover.
I find that there is not sufficient evidence to make specific directions for the parties or either of them to engage with a specific mental health care treater. However, given the overall tenor of the evidence, I do find that it is appropriate to put in place a general directive to the parties to engage with their mental health care treaters and to follow all recommendations in relation to their mental health care. Should the matter proceed to final hearing, the steps taken by both parties in relation to this order will, I am sure, be of interest to the Court.
While I have no evidence in relation to the likelihood of either party abducting the child overseas, I am minded to make another Airport Watchlist order (the earlier order having now expired) in circumstances where the child is very young and any time spent away from either of her parents for the extended time overseas travel would require could have a negative impact on the development of her attachments to each parent. Should either parent have a particular overseas trip in mind, they may make a formal application to be considered on its merits.
While I do not find that it is appropriate to order that the Father attend anger management or like courses, I am minded to make a notation that this remains an option open to the Father and that he may consult with the ICL in order to gain a referral to a course. The Court will take a keen interest, on a final consideration of the matter, in the steps the Father chose of himself to take in this regard.
I am not minded to make orders buying into any controversy about the Mother revealing or not revealing her residential address at this time. There is not sufficient evidence to suggest that an order requiring her to disclose her address would be unreasonable, nor is there evidence to suggest that such an order is even necessary.
Finally, neither party should read these Reasons for Judgment as being a series of ‘wins’ and ‘losses’ for each parent. The Court has been, rightfully, critical of both parents in these Reasons, just as the Court at various times has acknowledged or has been sympathetic with the position of each parent. While this is contested litigation, these Reasons have been formulated to help these parents parent their daughter with her best interests at heart. To interpret anything herein in the binary terms of a loss or win is to fundamentally misunderstand the point this Court is desperately trying to make.
Accordingly, I make the orders set out at the start of these Reasons.

I certify that the preceding two hundred and sixty (260) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 3 September 2021

File number(s):	SYC 1162 of 2019
Judgment of:	JUDGE MORLEY
Date of judgment:	3 September 2021
Catchwords:	FAMILY LAW – parenting – interim hearing on the papers – application by Father for child to commence overnight time with Father – application by Mother for child’s time with Father to be reduced – some evidence of child resisting at changeover – Court finds it to be in the best interests of the child to commence overnight time with Father.
Legislation:	Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAA, 65DAB, 65DAE, 69ZT, 79. Federal Circuit Court of Australia, Notice: Communicating with Judges’ Chambers, June 2011. Federal Circuit Court Rules 2001 (Cth) div 13.3, r 16.01.
Cases cited:	A & A & The Child Representative (1998) 22 FamLR 756 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman [2015] FamCAFC 104 Goode & Goode (2006) FLC 93-286 Grella & Jamieson [2017] FamCAFC 21 Johnson & Page (2007) FLC 93-344 M & M (1988) FLC 91-973 Marvel & Marvel (2010) 240 FLR 367 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92 MRR & GR [2010] HCA 240 Napier & Hepburn (2006) FLC 93-303 Newett & Newett [2020] FamCAFC 76 SS & AH [2010] FamCAFC 13, [100]
Division:	Division 2 Family Law
Date of last submission/s:	12 July 2021
Date of hearing:	In Chambers
Number of paragraphs:	260
Place:	Sydney
Solicitor for the Applicant:	Mr Mokhtar of AMG Law Firm
Solicitor for the Respondent:	Mr Blumberg of Blumberg Family Lawyers
Solicitor for the Independent Children's Lawyer:	Mr Hearl of Delaney Lawyers

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	3 SEPTEMBER 2021