Frank & Ryker
[2023] FedCFamC2F 1615
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Frank & Ryker [2023] FedCFamC2F 1615
File number: MLC 9310 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – Parenting – High conflict between the parents – Where presumption of equal shared parental responsibility rebutted because of family violence – Whether the child needs to be protected from psychological harm from being subjected to emotional abuse by the Mother undermining the child’s relationship with the Father –– Allocation of sole parental responsibility as to health to the Mother – Shared parental responsibility as to all other issues – Orders made that the child live with the Mother and spend time with the Father – No order that the Father’s time be conditional on him completing a Men’s Behavioural Change Program or other treatment – No order that the Mother’s time be conditional on psychological treatment Legislation: Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 60CI 65DAC, 69ZW Cases cited: Adamson & Adamson (2014) FLC 93-622
Allum & Ervin [2022] FedCFamC1F 177
Bielen & Kozma (2002) 66 Fam LR 59
Bondelmonte & Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Carlson & Fluvium [2012] FamCA 32
Carter & Wilson (2023) 66 Fam LR 238; [2023] FedCFamC1A 9
Lainhart & Ellinson [2023] FedCFamC1A 200
Donaghey v Donaghey (2011) 45 Fam LR 183; [2011] FamCA 13
Fox v Percy (2003) 214 CLR 118, [2003] HCA 22
Freeman & Freeman (1987) FLC 91-857 at 96,470-71
Goldrick v Goldrick [2007] FamCA 1260
Guerra & Guerra [2021] FedCFamC1F 73
In the marriage of JG and BG (1994) FLC 92-51
In the marriage of Jurss (1976) 9 ALR 455; 1 FamLR 11
Isles & Nelissen [2022] FedCFamC1A 97; 65 Fam LR 288
Lennon & Lennon [2011] FamCA 571
M v M (1988) 166 CLR 69
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Oberlin v Infeld (2021) 63 Fan LR 88; [2021] FamCAFC 66
Reid & Lynch [2010] FamCAFC 184
Sargent & Selwyn [2020] FamCAFC 110
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 2 Family Law Number of paragraphs: 352 Date of last submissions: 26 October 2023 Date of hearing: 17-21 April 2023, 16-18 May 2023, 26 May 2023, 2-3 October 2023, 10 October 20223, 26 October 2023 Place: Melbourne Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Westminster Lawyers Counsel for the Respondent: Ms Smallwood SC and Mr Heggie Solicitor for the Respondent: Sage Family Lawyers ORDERS
MLC 9310 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FRANK
Applicant
AND: MR RYKER
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.All previous Orders be and are hereby discharged.
2.The Father has leave to amend his application in accordance with his amended application filed 7 July 2023.
Parental Responsibility
3.The parents have shared parental responsibility for X born in 2017 (X) for all major long-term issues save and except health as set out in Order 4 below.
4.The Mother have sole parental responsibility in respect of major long-term decisions relating to X’s health, on the conditions that (save for in an emergency):
(a)the Mother will contact the Father in writing and provide her views about any such issues;
(b)the Mother shall consult with the Father in regard to any such issues; and
(c)if no agreement is reached between the parties, then within 14 days the Mother shall make the final decision and advise the Father is writing of the decision about any such issue.
Living arrangements during the school terms
5.X lives with the Mother.
6.X spends time with the Father during school terms on a fortnightly cycle as follows:
(a)in week one, from the conclusion of school on Friday (or 3:30 pm if not a school day) until the commencement of school on Monday (or 9:00am if not a school day save in the event the Monday is a public holiday or curriculum day in which event at 9:00 am on Tuesday) and each alternate week thereafter;
(b)in week two, from the conclusion of school on Wednesday (or 3:30 pm if not a school day) until the commencement of school on Friday (or 9:00 am if not a school day) and each alternate week thereafter; and
(c)as may be further or otherwise agreed between the parties in writing.
School Term Holidays
7.X lives with the Father for half of term 1, 2 and 3 of the school holidays as agreed between the parents and failing agreement, for the first half in odd numbered years and the second half in even numbered years, and will otherwise spend the other half of the school holidays with the Mother, with changeover to occur as follows:
(a)The parent who is to have the first half of the school term holidays will collect X at the conclusion of school on the last day of term; and
(b)The parent who is to have the second half of the school terms holidays will collect X from the other parent’s residence at 4:00 pm on the second Saturday of the holiday period (or the second Tuesday if the holiday period is three weeks) and will deliver her to school at the commencement of the new school term.
AND, in the event there is an odd number of nights in the school holiday period, X is to spend time with the Mother for the additional night.
Long Summer Holidays
8.For all long summer holidays, except as agreed in writing by the parents, the school term live-with arrangements in Orders 5 and 6 continue (with time suspended for Christmas as per Order 15) until 2 January from which date the following will occur:
(a)In the 2023-2024 long summer holidays, from 2 January 2024, X will spend time with the Father for the first week of the long summer holidays; then with the Mother for the second week of the long summer holidays alternating each week thereafter until the commencement of the term 1. In the event there is an odd number of nights in the long summer holiday period before school commences after 30 January 2024, X is to spend time with the Mother for the additional nights.
(b)In the 2024-2025 long summer holidays, from 2 January 2025, X will spend time with the Mother for the first week of the long summer holidays; then with the Father for the second week of the long summer holidays alternating each week thereafter until the commencement of term 1. In the event there is an odd number of nights in the long summer holiday period before school commences after 30 January 2025, X is to spend time with the Mother for the additional nights.
(c)In the 2025-2026 long summer holidays, from 2 January 2026, X will spend time with the Mother for the first fortnight of the long summer holidays and alternate on a fortnightly basis; then with the Father for the second fortnight (or part thereof) of the long summer holidays until the commencement of the term 1. In the event school commences after 30 January 2026, X is to spend time with the Mother for any additional nights before the commencement of term 1.
(d)In the 2026-2027 long summer holidays, from 2 January 2027, X will live with the Father for the first fortnight from 2 January 2027 of the 2026-2027 long summer holidays; and
(e)in each alternate each thereafter, each parent will have a different first fortnight with X for all subsequent long summer holidays and time will otherwise be in accordance with Order 8(c) above.
X’s Birthday
9.The time X is otherwise living with either parent pursuant to these Orders be suspended for X’s birthday so that:
(a)X spends time with the Father on her birthday in 2024 and each following even numbered year from the conclusion of school (or 12:00 pm if a non-school day) until the commencement of school (or 12:00 pm if a non-school day), and X spends time with her Mother from the conclusion of school (or 12:00 pm if a non-school day) the following day until the commencement of school (or 12:00 pm if a non-school day); and
(b)X spends time with the Mother on her birthday in 2025 and each odd numbered year, from the conclusion of school (or 12:00 pm if a non-school day) until the commencement of school (or 12:00 pm if a non-school day) the following day, and X spending time with her Father from the conclusion of school (or 12:00pm if a non-school day) the following day until the commencement of school (or 12:00 pm if a non-school day) the following day; or
(c)at such other times as agreed between the parties in writing.
Father’s Day
10.The time X is otherwise living with either parent pursuant to these Orders be suspended so that she spends time with the Father on Father’s Day:
(a)from 4:00 pm on the Saturday before Father’s Day until the commencement of school on Monday (or 9:00 am if a non-school day)
(b)Should another special occasion fall on the same day, time that X is otherwise living with either parent be suspended so that she spends time with the Father from 4:00 pm on the Saturday before Father’s Day until 2:00 pm on the Sunday of Father’s Day. X will then spend time with the Mother from 2:00 pm on Sunday (Father’s Day) until the commencement of school on Monday the next day (or 9:00 am if a non-school day) and the regular school term living arrangements will recommence in accordance with Orders 5 and 6; or
(c)at such other times as agreed between the parties in writing.
Father’s Birthday
11.The time X is otherwise living with either parent pursuant to these Orders be suspended so that she spends time with the Father on the Father’s birthday:
(a)if on a school day, from the conclusion of school on the Father’s birthday until the commencement of school the day after his birthday (or until 9:00 am if the following day is a school day); or
(b)if on a non-school day, from 12:00 pm on the Father’s birthday until 4:00 pm the following day (or until the commencement of school if the following day is a school day); or
(c)at such other times as agreed between the parties in writing.
B’s Birthday
12.The time X is otherwise living with the Mother pursuant to these Orders be suspended so that X will spend time with the Father for B’s birthday as follows:
(a)If a school day, from the conclusion of school on the day of B’s birthday until the commencement of school the following day (or 9:00 am if the following day is a non-school day).
(b)If a non-school day, from 4:00 pm the day before B’s birthday until 9:00 am the day after B’s birthday (or the commencement of school if the day following B’s birthday is a school day); or
(c)at such other times as agreed between the parties in writing.
Mother’s Birthday
13.The time X is otherwise living with either parent pursuant to these Orders be suspended so that she spends time with the Mother on the Mother’s birthday:
(a)if on a school day, from the conclusion of school on the Mother’s birthday until the commencement of school the day after her birthday (or until 9:00 am if the following day is a school day); or
(b)if on a non-school day, from 12:00 pm on the Mother’s birthday until 4:00 pm the following day (or until the commencement of school if the following day is a school day); or
(c)at such other times as agreed between the parties in writing.
Mother’s Day
14.The time X is otherwise living with or spending time with either parent pursuant to these Orders be suspended and X spends time with the Mother for Mother’s Day each year:
(a)from 4:00 pm on the Saturday before Mother’s Day until the commencement of school on Monday (or 9:00 am if a non-school day); or
(b)at such other times as agreed between the parties in writing.
Christmas
15.The time X is otherwise living with or spending time with either parent pursuant to these Orders be suspended for Christmas 2023 so that X will spend time with:
(a)the Mother from 3:00 pm Christmas Eve to 3:00 pm Christmas Day; in each odd numbered year; and
(b)the Father from 3:00 pm Christmas Day to 3:00 pm Boxing Day, and in each even numbered year; or
(c)at such other times as agreed between the parties in writing.
Easter
16.The time X is otherwise living with or spending time with either parent pursuant to these Orders (including Order 7) be suspended for Easter 2024 so that X will spend time with:
(a)the Mother from 9:00 am Good Friday to 9:00 am Easter Saturday; in each even numbered year; and
(b)the Father from 9:00 am Easter Saturday to 3:00 pm Easter Sunday, in each odd numbered year; or
(c)at such other times as agreed between the parties in writing.
Telephone Contact
17.X will communicate with each of her parents by telephone/FaceTime at any reasonable time requested by X and in the case of the special occasions such as Easter, Christmas, a parent’s birthday or X’s birthday, the parent who is caring for X at the time will facilitate X telephoning/FaceTiming the other parent.
Changeover
18.Changeover is to occur at school where practicable.
19.Unless otherwise contained in these Orders, where changeover does not occur at school, changeover shall be effected as agreed between the parents, and failing agreement:
(a)The Father is to collect X from the Mother's residence at the commencement of time.
(b)The Mother is to collect X from the Father's residence at the conclusion of time.
20.If these Orders do not otherwise specify a time for a changeover, changeover is to occur at 4:00 pm.
21.Where changeovers do not occur at school, the parents be at liberty to nominate a support person familiar to X to effect changeover and they will notify the other parent by text message of the family member or other person effecting changeover in advance.
Interstate Travel
22.The parents are at liberty to travel interstate with X provided he or she give the other parent no less than 14 days’ notice in writing, or as otherwise agreed in writing, and provide the other parent:
(a)a copy of the itinerary;
(b)a copy return e-ticket;
(c)particulars of the places and contact numbers at where X is staying (as applicable); and
(d)details of any other person who will be travelling with X.
23.Unless agreed in writing, the parties shall only be permitted to take X interstate during such times as X is to be in their care pursuant to these Orders.
Overseas Travel
24.The parents are at liberty to travel overseas with X provided he or she give the other parent no less than 30 days’ notice in writing, or as otherwise agreed in writing, and provide the other parent:
(a)A copy of the itinerary;
(b)A copy return e-ticket;
(c)within 7 days of any intended travel, proof that X has received any and all necessary vaccinations at least 7 days prior to the intended overseas travel;
(d)particulars of the places and contact numbers at where X is staying (as applicable); and
(e)arrange appropriate make up time for the other parent if the holiday falls over a time X would otherwise be living with / spending time with them.
25.The travelling parent must provide the other parent with no less than 14 days’ notice of their intention to cancel the holiday plans with X and in the event the travelling parent provides notice of cancellation of a trip to the other parent with within less than 14 days, then X’s time with the travelling parent proceed as if the travelling parent’s intended holiday plans were to proceed.
Passport
26.The Mother holds X’s passport on the following terms:
(a)The Mother shall provide the passport to the Father 7 days prior to any overseas travel with X or as required to obtain any necessary visa for travel; and
(b)The Father shall return to the Mother X’s passport within 7 days from returning from any overseas travel with X.
27.Upon compliance with Order 24, consent is deemed to have been given to the overseas travel by the non-travelling parent.
Contact details
28.Each parent will keep the other informed of:
(a)their contact telephone numbers and residential addresses; and
(b)the details of any extracurricular activity attended by X whilst in their care.
Medical
29.In relation to any illness and medical issues, each parent will notify the other:
(a)immediately if X suffers any serious injury while in their care;
(b)as soon as practicable if X suffers any other injury or illness while in their care.
30.In the event X is seriously injured or unwell such that she is admitted to hospital, her time with the Father pursuant to these Orders shall be suspended and she shall live with the Mother until such time as a doctor or allied health professional provides a medical certificate stating that she is well enough to attend school and upon provision of the medical certificate, the Father’s time with X pursuant to these Orders shall resume.
31.The Mother will arrange all doctors’ appointments and allied health professional appointments for X (inclusive of times X is in the Father’s care but will notify the Father in advance in writing of any appointments made for X while in his care).
32.Unless otherwise agreed or in the case of a family emergency or X being unwell, both parents will do all acts and things to ensure X attends her usual school program within the normal hours of operation and in the event X is kept home unwell, the parents who keeps her home will notify the other parent no later than 9:00 am that day of X’s illness.
School functions or extra-curricular functions
33.Each parent will be at liberty to attend any school functions or extra-curricular functions that parents are invited to attend.
34.The parents cannot enrol X in any extra-curricular activity or school camp that occurs during scheduled time with the other parent, without the other parent’s written consent.
Agreed variation to live with and spend time with arrangements in writing
35.By prior agreement in writing the parties may vary the live with and spend time arrangements set out in these orders.
Procedural
36.Pursuant to s. 65DA(2) and s. 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are attached and are included in these Orders.
37.All extant applications are dismissed, save as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
X is six years old and started prep this year. X has a close and loving relationship with each of her parents which is of benefit to her. Unfortunately, the relationship between her parents has been characterised by ongoing and apparently intractable conflict between them, both as to major and minor issues.
Because of the ongoing conflict between the parents, I have decided that it is in X’s best interests to allocate sole parental responsibility to her Mother as to decisions as to her health. In that way, the decisions which need to be made can be made without decisions being held up for too long by interparental dispute. It will also prevent a risk to X from being stuck in the middle of the interparental dispute. The decision is not intended to be punitive of the Father. The Mother will have to consult the Father before making a decision, but if a decision needs to be made, she will be able to make it.
As to all other major long-term issues, X’s parents will share parental responsibility. They have decided on X’s primary school, and no one has identified any pending education decision before X goes to secondary school. Neither parent identified other major long-term issues in dispute.
X has always lived primarily with her Mother. Since December 2022, X has spent substantial and significant time with her Father on a 5:9 fortnightly cycle. She also spends half school holiday time with him. The Mother seeks to reduce X’s time with the Father, and for the court to order that an increase in his time to a 10:4 fortnightly cycle be conditional on his completion of a Men’s Behavioural Change Program (MBCP) because of reasons which include his record of family violence and his complex mental health profile.
The Father seeks to reverse X’s residence and for X predominantly to live with him on a 11:3 fortnightly cycle. He submits that such an order is in X’s best interests because of the need to protect X from the Mother’s current and prospective emotional abuse of X. He puts his claim in at least two ways. First, he submits that the Mother has made repeated allegations to authorities that he is an abusive parent which exposes X to “systems abuse”. Authorities have to act upon the Mother’s reports and X has already been subjected to an external full body examination during her hospitalisation in 2023 and a subsequent DFFH investigation because of the Mother’s reports. Secondly, he submits that because the Mother involves X in the interparental dispute X feels she has to choose sides between her parents, with a risk that she will be psychologically split from her Father which may damage her developmental trajectory.
I have decided not to change the live with and spend time with arrangements. The existing arrangements support X’s meaningful relationship with both her parents. Mr C, the family report writer, assessed the greatest risk to X as being the prospective distress to her if residence was reversed. I also assess the level of risk that the Mother will undermine X’s relationship with her Father by continuing unsubstantiated allegations that he is an abusive parent as a less significant risk than does Mr C. In addition, the proper parenting orders must also be framed with reference to other matters: for example, the Father’s lack of insight into his past family violence and his difficulty with functional relationships because of his untreated mental health condition are reasons not to increase X’s time with him. The 5:9 arrangement, together with half school holiday time, is a proper order to provide a “buffer” against X’s relationship with her Father being corroded by the Mother’s entrenched antipathy towards the Father. Although there is a real risk that if the Mother’s narrative of the Father as an abusive parent continues unabated that will harm X’s relationship with her Father, there is no current evidence that has occurred. In my assessment, continuing the current live with/spend time with arrangements best balances the competing considerations.
My more detailed reasons follow.
PROCEDURAL HISTORY
The trial occupied more than 10 sitting days.
The trial was in two parts. It was scheduled to finish on 26 May 2023 but was adjourned when the parties informed the Court that X was the subject of a notification to the DFFH. The DFFH notification arose out events during X’s hospital admission in 2023 (to which I will return).
Subsequently, on 28 June 2023 pursuant to order, the DFFH made a s. 69ZW report (Ex. CE1). The DFFH closed its investigation and assessed that X’s care and contact arrangements were best managed in the Family Law Court arena (CE-1, p. 12 of 14).
The parties subsequently applied for and were granted leave to reopen their cases to deal with new facts referable to X’s hospital admission and in connection with the DFFH report and other related issues.
In terms of identifying other people to whom I refer to in these reasons I note:
(a)Mr D, with whom the Mother formed a new relationship, gave evidence; and
(b)Mr E, the Father’s criminal lawyer as to proceedings about the Father’s breach of an IVO, made an affidavit. Mr E was not cross-examined.
There were many exhibits including subpoenaed documents from F Hospital, the DFFH, X’s primary school, and G Organisation, an organisation that provides MBCPs and from H Services where the Father saw Dr J. There were exhibits in the nature of video and audio footage as to several of the disputed events.
The expert evidence from Mr C, Dr K and Professor L is detailed below.
I have identified the evidence in Annexure A to this judgment.
BACKGROUND AND CHRONOLOGY OF EVENTS
I have first set out some background and events (ordered more or less chronologically). I have also set out issues as to the expert evidence before turning to the context of the relevant legislative provisions.
Background
The Mother is 45 years old. The Father is 51 years old.
The Mother works as a professional with M Company. The Father does not work (or apparently need to work) because he is the beneficiary of some substantial family wealth albeit that there was limited evidence as to the details.
In or about late 2014 the parties commenced a relationship. Mr C described the relationship as “unstable and volatile” (CB417). The Mother and the Father did not live together for any substantial time.
In 2017 X was born. She is now aged 6. The Mother and Father did not resume a relationship following X’s birth (CB160, [8]).
On 14 August 2018 the Father commenced a proceeding in this court. Family law proceedings have been on foot for most of X’s life.
On 7 November 2019 Final Orders were made by consent (Final Orders). These orders provided for X to live with Mother and progressively increase time she spent with the Father; such time to rest at five nights fortnightly. There was an order for equal shared parental responsibility.
There have been subsequent proceedings. On 25 June 2020 the Mother issued a contravention application because the Father had insisted changeovers take place at a supermarket at Suburb N, rather than, as per the orders, at his home: Father’s Affidavit, [184] (CB213). In August 2020 the Father filed an application to vary the Final Orders so that X would spend time with him rather than going to childcare during the COVID-19 pandemic.
On 14 March 2021 the Mother commenced the proceeding which has culminated in this trial.
Since orders made on 15 December 2022 the current 5:9 time arrangements have been in place.
In 2023 (this year) X started grade prep at O School. The school confirms that X is doing well at school (Ex. R23; CB158, [2]).
The Mother lives close to X’s school. Since late 2022, the Father has lived a 30-minute drive away in Suburb P (CB159, [6]; CB166, [25]).
X has an older half-sister B, aged 10. B is the Father’s daughter from a previous relationship. X has a close sibling relationship with B. B lives with the Father 5 nights per fortnight during school terms and half school holidays. B’s mother is Ms Q (CB158, [3]).
Chronology of events
Late 2019 – The Mother’s intervention order against the Father
In or about late 2019 (3 weeks after the Final Orders) the Mother obtained an interim IVO against the Father (CB209, [175]).
Late 2019 to early 2020 – The Father’s conduct which led to him being charged with breach of the intervention order
After the Final Orders, the Father engaged in repeated unacceptable conduct at changeovers in X’s presence which led to him being charged with persistent breach of the IVO. The Father’s conduct was family violence. His conduct occurred on about seven occasions and included denigrating Mr D, denigrating the Mother and telling her that she was a violent person in front of X. I return to the details of the family violence below. Criminal proceedings for breach of the IVO ensued.
In mid-2021, the Father agreed to participate in a diversion program which involves the acceptance of criminal responsibility but no guilty plea is entered. The Father’s position was that these matters were “historic”. He noted that for some time there had been no further issues at changeovers (CB217-218, [201]-[202]).
Mr D
At some point the Mother commenced a new relationship with Mr D. Mr D was usually present at changeovers. Mr D had spent time in prison. In 1993 he had been found guilty of offences. In 2004 and 2010 he had been convicted for offences committed.(CB209, [173]).
The Mother was cross-examined to provide a foundation for the court to conclude that the Mother had demonstrated a lack of judgment in having Mr D move in with her and X, without having made any inquiries as to Mr D’s criminal history. The most recent criminal matter concerning Mr D was in 2010. Although Mr D himself behaved poorly in late 2020, I find that there was no evidence which persuaded me that X was at risk in Mr D’s presence.
Conflict as to various issues
In the evidence there were various issues of conflict between the parents. Two examples from 2020 are below.
May to September 2020 – the Father insists on changeovers at a supermarket, Suburb N
The Final Orders provided that, “failing agreement”, changeovers would occur at the parents’ respective homes.
On 15 and 16 May 2020 the Father texted the Mother: “you are no longer welcome at my home and any pickups from my end will occur at the supermarket” (CB53, [76]).
Between May and September 2020, the Father insisted changeovers occur not at his home but instead at the supermarket, Suburb N. The Father’s evidence was that he believed “this created a safer and less hostile environment for [X]” (CB213, [181]). The pattern that the Father instigated was that the Mother arrived at the Father’s home to pick up X and then the parties independently drove to Suburb N (10 minutes away). This was not in accordance with the Final Orders. These events led the Mother to issue a Contravention Application.
2020 – the Father’s birthday and the Mother prefers that X goes to childcare than spends time with the Father
On the Father’s birthday, he sought to collect X from childcare early but because the Mother was unwilling to permit X to leave childcare early the Father and B waited in the childcare carpark for 90 minutes (CB201-202, [139]–[142]).
Pursuant to the Final Orders, X’s time was set to increase from 1 September 2020 so that she would spend each Wednesday to Thursday with the Father on a day she did not attend childcare.
On 10 August 2020, during a COVID-19 lockdown, the Mother informed the Father that she had been granted a permitted worker permit which permitted X to attend childcare while the Mother worked (CB202, [144]).
On 10 and 12 August 2020, the Father’s lawyers wrote to the Mother stating it was the Father’s preference that, due to his concerns about the COVID-19 pandemic, X should be in his care on Thursday until the Mother finished work, rather than X attending childcare (CB203, [145]-[146]). When the Father received no response to the letters, he filed an application in this Court for X to be in his care (not childcare) on Thursdays during the COVID lockdown. Consent orders were made on 20 August 2020 that effected that outcome.
I find that these events – the Father unilaterally altering the location of changeover and the Mother unilaterally refusing to allow X to leave childcare early on the Father’s birthday and preferring X to be in childcare rather than in the Father’s care – are illustrative of the ongoing interparental conflict.
15 November 2020 to the present – parents cannot agree as to whether X attending a child psychologist is in her best interests
An issue as to which the parents have been unable to discharge equal parental responsibility concerns the appointment of a child psychologist for X. For two or more years, the parents have been engaged in inconclusive negotiations as to the appointment of a child psychologist for X.
It must be acknowledged that the experts disagree whether X needs a child psychologist. Prof. L expressed the opinion on 20 March 2023 that “[X] needs … her own clinical child psychologist if not already in place in my opinion.” (CB520, [61]). At trial, in May 2023, Mr C expressed the opinion, “I would not recommend therapy if there is no symptomatology being displayed” (18 May Transcript T100:L20).
Despite communications between the parents for more than two years, a joint decision — one way or another — has not been achieved. Each party sought to blame the other for the inconclusive nature of the interactions. I have set out the chronology briefly below.
On 15 November 2020, because of the Mother’s concern that the Father was co-sleeping with X, she texted the Father: “I am going to book [X] in to see a child psychologist because her behaviour has progressively got worse and worse the more overnights, she spends with you” (CB191, [105]). On 16 November 2020 the Father responded by text: “I do not agree to you taking [X] to a see a child psychologist. I don’t know what your reasoning is and unless these are discussed I will not provide my consent” (CB 192, [106]; Ex. R15).
On 15 June 2021 the Father’s lawyers wrote a letter to the Mother’s lawyers which read (in part): “your client cannot threaten to withhold [X] unless our client agrees to your client’s proposal for childcare and her nominated child psychologist” (Ex. R17).
On 20 December 2021 the Mother’s lawyers wrote: “it remains [Ms Frank]’s position [X] should attend upon a child psychologist” (Ex. A4).
In his family report dated 3 March 2022, Mr C recommended that Ms Frank arrange a paediatric referral for X about her night-time incontinence (CB466, Recommendation 5 [78]).
On 31 October 2022 the Mother’s lawyers wrote to the Father’s lawyers noting that R Day Care, Suburb S (X’s kindergarten) had suggested that X attend upon the child psychologist “who can offer professional advice around supporting [X]’s development, family dynamics and any other support [X] may require, learning and transitioning to school” (Ex. A5).
In early 2023, X attended a paediatrician, Dr T. Dr T referred X to a clinic at the U Hospital. The written referral made no reference to X wetting or soiling her bed: (CB256, letter of X’s paediatrician dated early 2023).
In early 2023 the Mother texted the Father that, “it was further recommended by the paediatrician for [X] to see a child psychologist” as to the wetting or soiling of her bed. The Father responded, “I want us to work cooperatively on this issue” (Ex. R17).
On 13 February 2023 the Father’s lawyers proposed a joint letter to Mr C to seek his recommendation as to a child psychologist (Ex. R17; CB181, [85]).
On 1 March 2023 the Mother texted two names, “[Ms V] and [Ms W]”, as suggested psychologists. The Father disputes that either of these women is, in fact, a psychologist. The Father’s response-text referred back to the lawyers’ proposal that the parties write to Mr C (Ex. R17). Further texts ensued.
On 2 March 2023 the Father proposed Ms Y of Z Psychology. The Mother responded that she was concerned that “[Z Psychology] sounds to me that it is connected to the father’s lawyers”.
In short, the parties have not been able to agree as to whether X should see a child psychologist. I find there has been intransigence on both sides. The impasse is not in X’s best interests. For functional reasons, one parent or the other needs to have sole parental responsibility so that decisions as to X’s health can be made in a timely way and to protect X from the risk of being caught in the conflict between her parents.
Late 2020 – Ms Q and B
Ms Q is the Father’s former partner and the mother of B, X’s older half-sister. Ms Q did not give evidence.
Late 2020 Ms Q made an application for an intervention order against the Father (Ex. A3). The events involving Ms Q are relevant under s. 60CC(3)(j), because they involve B, a member of X’s family.
Ms Q’s IVO application included allegations that the Father in mid-2020 was late to pick up B. She alleged that the Father verbally abused her at her front door, as well as calling her a bitch and a terrible mother. The Father denied substantial aspects of the allegations and I repeat that because Ms Q did not give evidence in this proceeding, her version of events set out in her IVO application was untested. The Father nonetheless made admissions that he had engaged in unacceptable conduct including not thinking of the effect upon his daughter B of his conduct when he banged on the door of Ms Q’s home. He admitted: “I didn’t think of the effect that if she heard and she did hear the yelling at her mother. But it was the wrong thing for me to do. I behaved badly” (21 April T435:L1). The Father’s evidence was: “I’m sorry that the incident occurred, and it hasn’t – nothing like that has happened again” (21 April T435:L45). Questioned as to whether he considered the effect on his daughter when he was banging on the windows and yelling abuse, he said: “If I had have thought of her at the time I wouldn’t have done what I did, and I’m sorry I did what I did” (21 April T434:L40).
Late 2020 – Changeover altercation between Mr D and the Father
Late 2020 there was an incident at a changeover for X which led to the Father being charged as to a breach of the IVO. The Father was involved in an altercation with Mr D. In late 2021, the Father entered a plea of guilty to a single charge of breach of intervention order as to the events in late 2020 (CB233). Details are below in the discussion of s.60CC(3)(j).
Early 2021 – X is unenrolled from ‘AA Day Care’ and enrolled at R Kindergarten Suburb S
In early 2021 X’s first kindergarten, ‘AA Day Care’, unenrolled X because of parental conflict (CB215, [191]). Its manager wrote: “[AA Day Care] has made the difficult decision to terminate [X]'s enrolment with us, effective immediately. This is a direct result of your and [Ms Frank]’s interactions with our [AA Day Care Suburb BB] team members.”
A dispute ensued about the parents’ respective roles in enrolling her in another kindergarten, R Kindergarten Suburb S.
On 31 March 2021 the Mother’s lawyers sent a “[R Kindergarten Suburb S] enrolment form” for the Father’s completion (Ex. R5).
On 1 April 2021 the Father’s lawyers wrote back that “until such time as our client is able to inspect the centre and meet with the staff, he is not prepared to sign the enrolment form” (Ex. R7). On 7 April 2021 the Father’s lawyers wrote further that the Father had attended a tour/intake session at R Kindergarten Suburb S in early 2021 but as the Centre would only open its doors in early 2021 and that there were currently only two or three children enrolled, he did “not consent” to X being enrolled.
Around early 2021, the Mother unilaterally enrolled X and, in early 2021, X started at R Kindergarten Suburb S.
The Mother’s position was that the Father’s consent was “unreasonably withheld” (Ex. R9, Notice of Dispute).
At some point (on a date which is unclear) the Father proposed that X be enrolled at an alternative kindergarten in Suburb CC. He was challenged in his evidence on the basis that this was an unreasonable suggestion given that Suburb CC was a long way from where the Mother lived. He responded that it was close to where the Mother worked (16 May T66:L29).
Parental conflict led to X’s enrolment at AA Day Care being terminated. The parties were unable meaningfully and responsibly to interact as to X’s enrolment at a new kindergarten. Each parent nominated a kindergarten which suited that parent: the Mother chose a kindergarten close to her home; the Father a kindergarten close to his home. Negotiations were outsourced to lawyers. The Mother acted with undue haste in enrolling X. The Father acted unreasonably in proposing an alternative which I find was primarily about his convenience and not focused on X.
15 June 2021 – Mother’s concern about X’s welfare when she returns from the Father’s Care
On 15 June 2021 the Mother sent a text message to the Father which read (CB194, [113]):
What the hell is going on here [Mr Ryker]!?!? This is [X]'s poo tonight after returning from your care. This the 4th time returning from your care she has had green poo.
13 December 2021 – Mother alleges that the Father is co-sleeping with X
On 13 December 2021 the Mother sent a message to the Father (CB196-197, [123]):
Can you please explain why you don't let [X] sleep in her own room? Ever since you sleep with her over the past two years I have to stay with her until she falls asleep
[…]
Please ensure she gets used to sleeping by herself she is four years old. Or consider putting the girls in the same room. A father who sleeps with two children in a bed is not normal and encouraging a very unhealthly relationship.”
The Father responded: “please refrain from sending these non-constructive text messages” (CB197, [124]).
The Mother responded (CB197, [125]):
They are extremely constructive messages and coming from' an extremely concerned mother that an 8 and 4 year old have been told they have no choice and have to sleep with their father because their father says so.
It is extremely creepy and I am concerned about [X]'s welfare and how she returns with so much anxiety and trying to settle her back in to her normal sleep routine in her own bed when she comes back home.
[Emphasis added]
Mid-2021 – Diversion Program
In mid-2021 a Magistrate agreed to deal with the Father’s breaches of the IVO by way of a diversion program as to two charges of persistent breach of intervention order and one single charge of breach of the intervention order (CB342, [5]). There were seven instances of conduct between late 2019 and early 2020 which are detailed below in the discussion under s.60CC(3)(j). In the affidavit of Mr E, the Father’s criminal lawyer, he described the alleged conduct as follows at [5]–[6]:
[…] verbally abusing [Mr D] in front of [Ms Frank] and denigrating [Mr D] to [Ms Frank] (referring to his criminal record primarily); insulting [Ms Frank], and disparaging the suburb that [Ms Frank] resided in.
[…]
In mid-2021 the outcome was that the father was placed in a diversion program. The diversion program entails acceptance of responsibility for actions but there is no entry of a guilty plea.
Late 2021 – the Magistrates Court imposes a bond and orders the Father to engage in a MBCP as to events in late 2020
Later, in late 2021, the Magistrates’ Court separately dealt with events between the Father and Mr D (detailed below). The Court imposed a bond and ordered the father to complete a MBCP.
Late 2021 – the Mother obtains a final IVO against the Father
The Mother had obtained an interim IVO in or about late 2019. A final IVO was made in 2021. This IVO remains in place and expires in 2026 (CB51, [48]).
11 February 2022 to 12 July 2022 – Parents’ communication about choice of primary school
X commenced prep in the 2023 school year. Enrolment arrangements were made in 2022.
On 11 February 2022 the Mother texted the Father that they needed to apply for school no later than April 2022. On 22 February 2022 she texted him about five primary school options. On 25 March 2022 the Mother sent the Father a list of primary school tours and the zoning requirements. On 29 March 2022 the Father responded that his preference was for X to attend a local zoned primary school (CB225, [231]).
On 26 May 2022 the Mother emailed the Father an enrolment form she had completed for X as to O School (CB226, [235]-[236]).
The Father’s evidence was that on 27 May 2022 the Mother texted him that X had been accepted into O School (CB226, [237]).
On 12 July 2022 the Mother sent the Father a follow-up email regarding X’s primary school enrolment at O School because the Father had not completed an enrolment form. He says (and I accept) that it was unclear to him that he had to complete any enrolment form (CB64-65, [184]-[190]). He had not, however, taken any initiative as to a major long-term issue of X’s school enrolment but left the Mother to drive the process.
From this sequence of events, I find that enrolling X at primary school was unnecessarily protracted. The Mother took the lead as to necessary actions in X’s best interests. It was a sequence of events that serves as an example that the parents struggled jointly to discharge the responsibility of making a major long-term decision for X.
Early 2022 – Events involving Mr DD, Mr D’s lawyer
On or about early 2022 there was a confrontation between the Father and a Mr DD in a Suburb EE store. The Father knew Mr DD as Mr D’s lawyer in an ongoing IVO application the Father had brought against the Mother and Mr D. There had been a hearing as to that matter shortly before early 2022 which hearing only concluded subsequently in 2022.
Mr DD took three short videos on his telephone of the events in early 2022 which were in evidence (Ex. A2). Mr DD’s subsequent application for an IVO as against the Father was in evidence (CB117). Although the Father did not make his own application for an IVO against Mr DD, Mr DD’s IVO application was resolved in mid-2022 on the basis of mutual undertakings made by the Father and by Mr DD (Ex. R17). Mr DD did not give evidence in this case.
The videos show that the Father followed Mr DD into the store. The Father insisted on engaging with Mr DD even though Mr DD told him he (Mr DD) was with his family including his young child and sought to have the Father walk outside. The Father called Mr DD a “wanker” and a “dickhead”. The Father’s actions were unprovoked and unwarranted.
In his oral evidence before me, the Father painted Mr DD as the instigator. The Father denied that he had harassed Mr DD and said that Mr DD was a liar. He admitted that he called him a “wanker”. In giving his evidence about this issue (during cross-examination) the Father quickly became agitated. Even in the absence of evidence from Mr DD, I find the Father’s actions on this occasion were uncontrolled.
Early 2022 – Graphic photos
In early 2022 the Mother sent a text to the Father which read (CB178, [70]): "Can you please tell me why [X] always returns from your care like this and you are not looking after her?” The Mother attached graphic photos of X’s bottom and vagina (CB178, [71]). The redness around X’s vagina was because X was suffering from a medical condition.
There is no evidence that the Father has engaged in any sexual abuse of X.
Early 2022 – The Father’s application for an IVO against the Mother and Mr D
In late 2019 the Father sought an IVO against the Mother and Mr D (CB210, [176]) and the substantive final hearing as to his application was delayed until 2022. There was a three or four day contested hearing before a Magistrate which concluded in early 2022. Some transcript of the hearing before a Magistrate was in evidence before me (CB297–335).
From the transcript of the hearing before a Magistrate, it was apparent that the Magistrate found that the Mother had engaged in some abusive conduct directed towards the Father.
In early 2019 the Mother made an abusive phone call (CB190, [99]):
[Mr Ryker], you’re fucking mentally ill. Ill, ill, mentally ill, mate. You’re. Mentally ill, sick in the head. You need psychiatric help… you lied. You lied. It’s in court, black-and-white. You’re a sick man. You need fucking help. And your sister and your brother and your family, you need help.”
Separately, the Mother had referred to the Father as “creepy” on the basis of an allegation that he was co-sleeping with his daughters, with its insinuation of sexual abuse (CB70, [226]; CB161, [11]). Any allegation that the Father was co-sleeping with his daughters has not been proved and was not pursued. There was no evidence of improper conduct and no evidence of any sexual abuse.
In early 2022 (by reference to the abusive phone call and the text in which the Mother had referred to the Father as “creepy” identified above) a Magistrate concluded that the Mother had engaged in conduct that constituted family violence (CB331, L20-31). However, his Honour found “there is no pattern of behaviour that could support the premise that family violence is likely to continue in the absence of an order” (CB333, L26-28). The Father’s application was dismissed.
Late 2022 – FF Cinema
There was an incident at FF Cinema in late 2022, when two special occasions coincided. As to the special occasion orders, the Final Orders made special provision for X to spend time with her Father on one occasion and X was to spend the other occasion with her Mother in even numbered years (2022). Under the Final Orders, the latter occasion trumped the former occasion. The Father sought a concession for X to spend time with him on that day notwithstanding 2022 was an even-numbered year. Via negotiations between lawyers, it was agreed there would be a change over time at 2:00 pm from the Father to the Mother.
The Father purchased tickets to see a film with B and X at the FF Cinema starting at 1:00 pm. The Father deposed that this was so that he could take X out to lunch beforehand. The Mother noted that there were also two other screenings of the same film on that day, but the Father chose the screening starting at 1:00 pm (CB92).
At 2:00 pm, unsurprisingly, X did not want to leave the cinema because the film had not finished. There was a dispute. Sometime between about 2:10 pm and 2:25 pm (there was a dispute about timestamps on the CCTV footage being irreconcilable with the text messages timestamps: a dispute I find unnecessary to resolve) the Mother walked into the cinema to retrieve X because the Father had not brought X out from the cinema.
There were some still CCTV images (CB109-110). The Mother recorded audio on her phone (Ex. R2). The CCTV stills record both parents and X and B coming down the cinema steps. The audio records the Mother saying loudly that the Father should go away because she has an IVO against him.
Mr C saw fault on both sides as to the parents’ conduct (17 May T136:L46):
So what I would say in relation to that is that the behaviour of both parties appears to me to be appalling in those circumstances. So, you know, engaging in an activity which is going to contravene the agreement around changeover is poor. Marching into the cinema and extricating the child is also poor. It, again, is exposing [X] to the adult parental issues and conflict that has been ongoing for years and years and years.
I accept Mr C’s evidence that the parents behaved poorly. Each was focused on their own perceived self-interest. Neither was focused on X. X was caught in the conflict.
The cinema incident is a standout example of the intractable conflict between the parents. Because the conflict was about what Prof. L called “minutiae”, it is not conflict that would be addressed directly by an order for sole parental responsibility. However, because the conflict appears to extend to issues both large and small, I see the interparental conflict which underpinned this incident, and which has been repeated on other occasions, as a factor in support of an order for sole parental responsibility as to decision making as to X’s health because of the parents’ inability to interact responsibly and meaningfully in X’s best interests. It is notable that negotiations about the clash between coinciding special occasions occurred between lawyers, not between the parents. The Father’s plan to book a movie which would end after 2:00 pm was ill-conceived. He was in breach of the agreed change over time because he was not ready for changeover at 2:00 pm. The Mother’s actions in walking into the cinema to remove her daughter and announcing audibly for the public to hear that she had an IVO against the Father in X’s presence were actions which were not child focused.
In late 2022 - The Mother’s police report as to events at FF Cinema
In 2022 the Mother made a police statement about alleged breach of the IVO as to events at the FF Cinema (CB90-94). The Mother wrote (among other matters) in her police statement that: “I’m scared for my daughter’s life when she is in his care and him driving on drugs and potentially killing her. Or killing us if he doesn’t get his own way. That’s when the switch turns in his head.” She said she did not want to be “another Baxter case” (CB94). Mr C said that the Mother had a tendency to “catastrophise”. Her police report as to what happened at the Cinema catastrophised events. The Father had made an ill-conceived plan. There was no evidence that he had been in any way violent. The Mother engaged actively with police with a view to having the Father criminally charged as to breach of the IVO as to the Cinema events.
In late 2022 police told the Father that he would not be charged as to the events at the Cinema (CB231). Although she denied having done so in her evidence to the Court, the Mother actively pursued subsequent communications with the police with a view to having the Father charged (Ex. R4). There was a change in the police decision and in early 2023 the Father was charged with breach of the IVO as to events at the Cinema (CB 235). Sometime after early 2023, there was a further reversal, and the charges were withdrawn.
My focus must be X’s best interests. Regrettably, in late 2022 both parties were focused on their own self-interest, not on X’s best interests. The Father submitted that the Mother had been dishonest in her evidence as to seeking to have the father charged. I find that she did want to have the Father charged and she understated her role in insisting in her evidence that whether he was charged was a matter for police with a view to and as to which she had no control. The Mother was actively communicating with police with a view to having the Father charged when a trial was pending. I infer that one reason she wanted the Father charged was that she perceived there may be a forensic advantage to her in the litigation if he was charged with a further breach of the IVO.
Early 2023 – Police welfare check after Play Centre
In early 2023, when she was spending time with her Father, X hurt herself at an indoor play centre. The Mother was concerned about X’s welfare. B (X’s sister) telephoned the Mother from the Father’s car. The Mother was concerned that X was too upset to speak to her and that the telephone call was cut off. The Father said that he was unable to have a safe telephone call because he was driving. The Mother sent a text which read in part:
[Mr Ryker]
[X] has told me via [B] (because [X] was too scared to talk to me) that she has injured [herself] at [the play centre].
[…]
On top of that you cut me off from speaking to my daughter. That is disgusting in itself
I would expect more from a father given the circumstances.
Giving me only 4 mins of time to see if [X] is not ok. I am concerned about her and would like to talk to her again please tonight
Subsequently, the Mother said that she was worried that X had a “[serious injury]”. She arranged for a police welfare check at the Father’s house on the evening of early 2023 (CB170, [39]). This is another incident which reflected the high conflict between the parents. In my assessment, there was some fault on both sides. The police attending her Father’s home must have been distressing to X. I assess it as a disproportionate response by the Mother. On the other hand, if the Father had facilitated a phone call “to see if [X] is ok” that may have headed off the Mother’s decision to seek a police welfare check before it happened. That he did not facilitate a phone call reflected the poor communication between the parents.
Early 2023 – the Father cancelled an overseas trip
In early 2023 the Father messaged the Mother that he was going overseas and that he would be unable to care for X on two weekends in early 2023 (CB199-200, [127]-[134]).
In early 2023 the Father messaged the Mother that he had cancelled his trip.
In early 2023 the Mother responded that (CB199, [132]):
the decision to now change holiday plans has extremely upset [X]. [X] had it in her mind she was spending a certain amount of time with me and was very excited
[…]
You seem to play by your own rules…
28 February 2023 – Letter of Ms GG of G Organisation
In September 2021 Mr C, in his second report, recommended that the Father complete a MBCP. A Magistrates Court order made in late 2021 (as to the incident involving Mr D in late 2020) was that the Father complete a MBCP. As of the time of the trial, the Father had not completed a MBCP. In 2022, the Father had engaged with G Organisation as to a MBCP.
A letter dated 28 February 2023 authored by a Ms GG, Family Safety Advocate of G Organisation, an organisation that provides MBCP was in evidence (Ex. R1). Ms GG found the Father to be unsuitable for a group MBCP. Ms GG did not give evidence. As a result, I place no weight on any professional opinion set out in the letter.
The Father tendered the letter for the purpose of demonstrating that the Mother exaggerated, catastrophized or “told lies” about the Father’s conduct in the history she gave to Ms GG. Ms GG had provided a draft copy of her letter to the Mother for review and the Mother had suggested amendments to the letter.
The Mother gave a history to G Organisation which painted a picture of the Father being a serious risk to her and to X. First, as to B, the Mother said she witnessed that the Father “violently assaulted the older daughter when she was aged approximately two years. She recalled that the father “locked her in a room and hit her many times”. This allegation could not be reconciled with the Mother’s affidavit on 24 October 2019 (para. [41]) in which she deposed that although the Father physically disciplined B “I generally observed him to be loving and attentive father to her and took good care of her.” The Mother made a serious allegation against the Father on the basis of extremely limited (or no) evidence including that there had been “near drowning” of X, which was apparently an allegation solely based on something B had reported to her.
I find that the Mother did, in her report to Ms GG, make exaggerated allegations against the Father because of her entrenched antipathy towards him. Her communications with Ms GG were at the time when both parties were preparing for trial. I infer that the Mother exaggerated events because she believed that she might gain some forensic advantage in the trial.
Early 2023 – The Father was charged (charges then withdrawn) as to the Cinema incident
In early 2023 the Father was charged as to breach of IVO as to the Cinema incident in late 2022 (CB176-177, [63]). As noted, the Mother actively engaged with the police with a view to having the Father charged as to breach of the IVO as to the events at the Cinema. Charges were subsequently withdrawn.
17 April 2023 – the trial commenced
On 17 April 2023 the final hearing commenced.
Mid-2023 – X is admitted to F Hospital
In mid-2023, after five hearing days, but during a break in the first part of the hearing when the matter was scheduled to resume in mid-2023, X was urgently admitted to hospital. She was an in-patient at F Hospital for a few days. X had a viral infection. X’s illness was unconnected with the proceeding. For a short time, she was unable to walk. To the best of the parties’ knowledge, there is no ongoing health issue.
Evidence as to what happened at the hospital was not before the court until both parties reopened their cases and the hearing resumed in October 2023. The Father relied on the Mother’s conduct during X’s hospital admission as a serious “escalation” (Mr C’s description) of the Mother undermining X’s relationship with the Father. The Father alleges that in the hospital the Mother made “baseless allegations […] concerning sexual, physical and psychological abuse by the father.” He further alleged that “the allegations and the actions they prompt from various authorities are harmful to [X].” Because the events as to what happened in the hospital were central to the Father’s amended case that a residence reversal was in X’s best interests I have returned to my findings as to these issues in my consideration of risk under s. 60CC(2)(b) below.
The Mother’s statements to hospital authorities functioned as a catalyst for hospital personnel to make a report about X to the DFFH.
Mid-2023 – The DFFH investigation and the s. 69ZW report
Having received a notification that X was the subject of allegations of abuse, the DFFH conducted an investigation.
In mid-2023 a departmental officer interviewed X at school. X told the departmental officer that she did not want to go to her Father’s, “because I love my mum so much” (R23, 50 of 115). X also said:
(a)“my Mum has less money and my dad has more money. My Mum has only $100 in a bank account and my dad has $1000 may be more. That’s why I love my mum so much because she tries her best because it’s hard to look after a kid when you have no money”. (p 59 of 115); and
(b)when she gets older, she wanted to be a single mum “because my Mum is a single mum” (p 70 of 115).
X’s statements at interview to the DFFH constitute evidence that the Mother – at least to some degree – had been inappropriately involving X in the parental dispute and, as the DFFH subsequently concluded in its s. 69ZW report, in a narrative in which X interprets that she has to choose sides as between her parents.
Mid-2023 - The s. 69ZW report
The DFFH’s s. 69ZW report identified “10 previous reports” and dealt with a further report which emanated from X’s hospital admission, made in mid-2023.
It seems to me that I ought not to draw an inference as to the sources of the 10 previous reports in circumstances in which the notifier is protected under s. 69ZW(3) of the Act. It is apparent that different reports to DFFH originated from different sources. No party sought an order disclosing the identity of the person who made a notification on the basis that the notifier’s identity was “critically important” to the proceedings”: s. 69ZW(6).
DFFH recorded that: “while [X] was in hospital the full body check was conducted, with no injuries noted” (CE-1, 9). Observed redness from an external full body examination of [X] was diagnosed as a medical condition (CE-1, 10). Further, X disclosed her “safe people are doctors, the mother [Ms Frank] and her father [Mr Ryker]” (CE-1, 11).
The DFFH recorded the Father’s report of an improving relationship with X as follows (CE-1, 12):
[Mr Ryker] talked positively about his time with [X] and the activities that [X] likes. He described [X] to be really easy child she used to be a bit more emotional and cry a lot but has grown up now and is [a] lot tougher. [Mr Ryker] expressed that [X] used to be very enmeshed with her mother, [Ms Frank] but now is becoming a lot closer to him and asked now when she is coming back to his house.
The DFFH concluded in its report in mid-2023 that “Child Protection have never substantiated any physical or sexual harm of [X]” (CE-1, 13).
Further, the DFFH reported a concern about a “dynamic where [X] potentially is interpreting that she is required to choose sides (mother or father). With [X] providing a seemingly black and white view of her parents there are no ‘bad things’ with her mother [Ms Frank] and she can’t spend time with their Father [Mr Ryker] as she loves her Mother” (CE-1, 13).
Mid-2023 – The Mother’s notes of concerns – a 12-page document
In mid-2023, as part of the DFFH investigation, the Mother sent an email to the DFFH. It is 12 pages long. An unredacted version was attached to the Father’s later Affidavit of 1 September 2023, DM-01.
As to the nature of this 12 page document, the Mother said she kept notes on her phone. When the DFFH was conducting its investigation, she printed out her notes that she had made from time to time on her phone over a three-year period.
The notes included a note which refers to events in or about early 2023 (by reference to that being the date when the Father cancelled an overseas holiday to Country HH), at page 2 of 12:
[X]’s continued uncertainty on her life with their father/it’s all over the place
[Mr Ryker] cancelling his trip to [Country HH]!! Total abuse and try to teach me like his [2022] holiday!! I HAVE TO REVOLVE MY LIFE AROUND HIM total abuse – but can’t pay me $200 and kinder fees! THE STRESS THIS IS CAUSING ON OUR LIVES. The mental toll has become too much/HE IS TRYING TO BREACH ME AGAIN LIKE SEP. Plan of attack so I lose it one he is wanting to cause a scene because he picks her up from school – [X]’s getting confused, it’s really upsetting how all this confusion. He is all over the place. [X]’s crying, confused, upset, tantrums – how is this showing routine, consistency and stability in a child’s life just started prep!! Part-time parent when it suits him - did not provide a reason for his trip cancellation.
[As written]
At page 5 of 12, there was a note dated early 2023:
“[Early] 23 (Mon) - [X] CAME AT SAT ON MY LEG COMPANY WITH NO CLOTHES ON 5:16 PM I ASKED HER WHERE SHE GOT THIS FROM HER FATHER “SHE SAID YES” I SAID WHERE FROM TELEVISION AND SHE SAID “YES” – then she ran away….She’s always been jumping bath since she was 18 months old but I ignored the fact until now. Always turning herself upside down shoWING her bum!
[As written]
Further, there is a note that the Father “does not give a shit”.
I accept the Mother’s Counsel’s description of the 12 -page document as the Mother’s “stream of consciousness” concerns as to the Father. The notes disclose the Mother’s entrenched antipathy towards the Father.
Mr C noted the “demand” questioning (questions that demand a particular answer) in the extract set out from page 5 of 12 above. He expressed the opinion (which I accept) as follows: “that type of questioning is quite detrimental” because it can lead the child to confabulate as to innocent and innocuous things in the child’s life.
I find that the demand questioning constituted evidence that the Mother was inappropriately involving X in the parental dispute.
7 July 2023 - the Father’s amendment to his case
On 7 July 2023, the Father amended the orders he sought to seek an order that sole parental responsibility be allocated to him and that there be a residence reversal with X to live primarily with him on a 11:3 fortnightly schedule.
12 September 2023 - reopening of cases
On 12 September 2023 I gave both parties leave to reopen their cases in light of events during X’s hospitalisation and the DFFH report. I heard further evidence on various dates in October 2023.
EXPERT EVIDENCE
Mr C was the family report writer. He had prepared three written reports dated 15 January 2019 (CB353-372), 23 September 2021 (CB436-452) and 3 March 2022 (CB453-470). Mr C gave evidence and was cross-examined both in the first part of the trial (May 2023) and the second part of the trial (October 2023).
Dr K, Psychiatrist, made a psychiatric assessment of the parties, and made a report dated 4 February 2022 (CB471-487). Dr K was not cross-examined.
Professor L, Psychologist, made a neuropsychological assessment of the Father dated 20 March 2022 (CB488-522). Prof. L was not cross-examined.
Each expert noted the ongoing high conflict between X’s parents.
Mr C - 15 January 2019, 23 September 2021, 3 March 2022, Oral evidence May 2023 and October 2023
15 January 2019 – First report
Mr C’s first report is now more than four years old. X was only a year old as of the date of the first report. The passage of time means this report has limited relevance.
23 September 2021 – Second Report
In his second report (23 September 2021) Mr C considered two alternative explanations for the continuing conflict between the parents (CB440, [42]-[44]) as follows:
42.If [Ms Frank]’s account is preferred her parenting responses would be seen as a protective mechanism in the face of [Mr Ryker]’s unrelenting attacks on her parenting capacity. The alleged family violence would be assessed as coercive and controlling.
[…]
43.The impact of [Mr Ryker]’s alleged behaviours would manifest as a debilitating restraint on [Ms Frank]’s parenting capacity. It would be unlikely that the perpetrator could sustain a long-term nurturing response with the child or support the primary caregiver’s role…. In this context, sole parental responsibility would be recommended for [Ms Frank] with limited term and holiday time for [Mr Ryker].
44.In the alternative, if the aetiology of the conflict is assessed as stemming from [Ms Frank]’s personality vulnerabilities or mental health difficulties, her capacity to facilitate the child’s relationship with [Mr Ryker] would be seen as compromised. While it would be important to move it apace commensurate with [X]’s developmental capacity to cope, the incremental introduction of a shared care arrangement would be recommended. This type of arrangement would act as a protective mechanism around [X]’s relationship with her father. If [Ms Frank]’s mental health and alleged behaviours could not be remediated, a change of residency with sole parental responsibility for [Mr Ryker] would be recommended.
Despite the positing of these alternative scenarios providing a useful lens to consider the ongoing conflict between these parents, I have not been able to assess the evidence in such a binary way.
I find that the Father’s family violence at changeovers would have had a “debilitating” effect on the Mother’s parenting capacity. His conduct must have eroded any confidence the Mother had that X was safe in his care. That debilitating effect is compounded by his lack of true acceptance of responsibility for his conduct and insight into it (Mr C, [43], above) (see also discussion as to family violence below).
It is also, however, the fact that the Mother’s personality traits have compromised her capacity to facilitate X’s relationship with the Father. The Mother’s antipathy towards the Father manifested by repeated reports of concerns about his conduct to authority figures (the hospital, police, Ms GG) and her involvement of X in the interparental dispute (i.e. see the DFFH conclusion in its s. 69ZW report that X feels that she has to “choose sides”) means that there is also evidence that the Mother has been unable to facilitate X’s relationship with the Father: (Mr C, [44], above). She had a pattern of catastrophising events driven by her entrenched antipathy for the Father.
Rather than the conflict stemming from the conduct of one parent or the other, it has stemmed from the conduct of both of them.
Third report – 3 March 2022
In his third report, Mr C noted that: “[X] appears to be on track in all the required developmental areas”: (CB460, [30]).
Because of the interparental conflict, Mr C then recommended that the Mother have sole parental responsibility save that prior to making any ultimate decision she should consult with the Father (CB 467; Recommendation 1).
Oral evidence, First hearing – 16 to 18 May 2023
In Mr C’s oral evidence, as of 18 May 2023, he supported the continuation of the current arrangement of X spending 5 nights a fortnight with her Father (18 May T9:L10-19). His professional view was that was “enough time for him to cement a significant and meaningful relationship with” X.
Mr C suggested that equal shared parental responsibility was not going to work because the parents were “locked in this kind of […] destructive relationship post separation” (17 May T30:L19). As to the live with and spend time with arrangements, he recommended against an “equality of time” because “a shared care arrangement [required] a sophisticated level of cooperation. And that’s just not here in this case” (17 May T163:L30-41).
Oral evidence, Re-opened hearing – 10 October 2023
There was a shift in Mr C’s evidence between his written reports and his evidence during the first part of the trial in May 2023 and his evidence on the resumption of the trial in October 2023. There is no criticism of Mr C as to the shift. New events had occurred. I have set out below (in my discussion of events at F Hospital in mid-2023) that Mr C was concerned about an “escalation” in the Mother’s conduct after he first gave evidence.
I have noted that before he reopened his case, the Father changed the orders he sought to seek a residence reversal. When Mr C returned to give evidence, he recommended against a residence reversal because of the “attachment distress” it would cause to X (10 October T647:L2). Mr C may have been using “attachment” in a technical sense. For my part, I regard his reference to “attachment distress” as the distress and harm to X that would be caused to her by turning her living arrangements upside down so that she spent only three nights fortnightly with her Mother who had always been her primary carer since birth. Such a step is a dramatic step having regard to the nature of the relationship of X with her mother: s. 60CC(3)(b). Mr C described a “hierarchy of risk”. At the apex of the hierarchy, was the risk of disrupting X’s relationship with her Mother who had been the primary caregiver (10 October T647:L18-19). Mr C assessed that there was a greater risk to X from attachment distress then there was from “systems abuse and alienation at this point in time”: (10 October T687:L10-16).
Despite being pressed, Mr C, did not agree with the proposition that the Mother was alienating X from the Father. His evidence was: “there is no indication to me in any of the material or in my interviews with [X] that she is on the verge of, or currently in the process of, being alienated from [Mr Ryker]” (10 October T665:L31-33). Rather than X having been psychologically split from her Father, Mr C noted that X and the Father had a “warm and reciprocated relationship” (10 October T665:L39).
Nonetheless, because of the “escalation” in the Mother’s conduct, he recommended orders for a graduated increase in X’s time with her Father which would provide “a buffer and a safeguard against [the risk of the Mother undermining [X’s] relationship with her Father] occurring”: (10 October T694:L40-41). He recommended an increase to equal time, to 7:7 to occur incrementally over a one-year period (10 October T698:L43-46).
He also recommended a review “in two years’ time …. to see whether residence should change at that point in time if her [i.e., the Mother’s] pattern of behaviour hadn’t changed” (10 October T700:L11).
Consistent with his recommendation for a gradual increase in time, Mr C opposed any reduction in X’s time with her Father from the current 5: 9 arrangements. As explained below, I do not intend to reduce X’s time with her Father.
Mr C acknowledged that this was a shift in his evidence from May 2023 (the first part of the trial), when because of the high conflict between the parents he had recommended against an equal time (7:7 arrangement) because the necessary parental cooperation was absent and X would be unduly exposed to interparental conflict (18 May T6:L46–T7:L1-4).
As to equal shared parental responsibility, in his evidence on the resumption the trial, Mr C’s recommendation was that despite the high conflict between the parents there be equal shared parental responsibility as part of the “buffer” against the Mother undermining X’s relationship with her Father.
Dr K - 4 February 2022
Mr C, in his second report made on 23 September 2021 (CB447, [46]), had recommended obtaining a psychiatric opinion and as a result, Dr K, psychiatrist, interviewed the parties and authored a report dated 4 February 2022. Neither party cross-examined Dr K. Dr K noted the ongoing parental conflict. Dr K expressed his opinion as follows (CB486):
3.Of interest, each party’s accounts have a shared mirrored quality. Each make similar allegations against the other. Such a scenario can reflect the common couple violence dynamic as indicated by [Mr C], but in this matter, I consider that [Mr Ryker]’s level of insight and ability to maintain boundaries appears significantly limited.
[…]
6. ….I was left with less concern about [Ms Frank] than [Mr Ryker]. Given she is the primary carer of [X], if the Court was to favour one party over the other in order to stem the conflict, possibly involving considerations in regard to sole parental responsibility, it would be my view that [Ms Frank] would fulfil that position and those responsibilities more equitably than [Mr Ryker]”
7.Given that [Mr C]’s assessment does not question each party’s parenting responsibilities, but noting the ongoing conflict which continues, such an arrangement may serve to stem the conflict which continues in equal shared care circumstances.
[Emphasis added]
The Father cautioned me against reliance on Dr K’s report because (on one reading) it was premised on a misunderstanding that there was an existing equal time arrangement. Further, the Father submitted that a recommendation as to sole parental responsibility was not within a psychiatrist’s field of expertise. I have formed my own view, which is consistent with that of Dr K and Prof. L, that the Father’s level of insight into his conduct is limited. I have not placed any weight on Dr K’s opinion as to sole parental responsibility.
Professor L – 20 March 2023
In his third report made on 3 March 2022, Mr C had recommended a neuropsychological assessment of the Father (CB466). As a result, the Father attended at a neuropsychological assessment with Prof. L who authored a report dated 20 March 2023. Neither party cross‑examined Prof. L.
Prof. L was concerned about the conflicted dynamics between parents. On one reading, Prof. L’s opinion points to a need for an order for sole parental responsibility but I agree with Prof. L’s opinion that much of the conflict between the parents was about what he called “relative minutiae” which an order for sole parental responsibility will not address. He wrote at [57], [61] (CB516-519, [57], [61]):
57.There is scant evidence from the available material available to me that either parent has reflected sufficient insight into understanding that overt, hostile, disorganised or even passive-aggressive dynamics between parents, particularly those displayed in the presence of a child, compromise the capacity for functional attachments generally in the longer term for that same child, and usually to a greater extent than the variations in parenting style. At least, any insight that either may articulate is apparently not sufficient to date to prevent harm to their child. The current risks will continue ongoing in my opinion if history is the best predictor, with each parent in this case continuing to fuel ongoing contention with the other regarding the relative minutiae of elements of parenting at the expense of their child’s rightful dues.
….
61.A further compelling feature reflected from both parties’ Affidavits is that this case has been drawn out for a number of years — clearly to the detriment of the dependent child [X]. Here, her parents clearly do not have the tools even to navigate and organise an appropriate script for transfers and for shared model of care generally, particularly with the support of substantial resourcing over the years. If history is the best predictor, this is not likely to change significantly in the short-medium term in my opinion.
[Emphasis added]
BEST INTERESTS CONSIDERATIONS
Against that background, I must make parenting orders. X’s best interests are the paramount consideration: s.60CA.
Part VII of the Act governs the applications. I am guided by the objects of that Part and the principles underlying those objects: s.60B. Section 60CC(2) sets out two primary considerations. Those considerations require me to consider:
(a)the benefit to X of having a meaningful relationship with both of her parents; and
(b)the need to protect X from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect X from harm.
Section 60CC(3) sets out 14 further additional considerations. The Full Court in Bielen & Kozma (2002) 66 Fam LR 59 at [35] grouped those additional considerations as follows:
·Issues relating to the children — their views, level of maturity, culture and relationships: s 60CC(3)(a), (b), (g) and (h).
·Issues relating to the parents — decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: s 60CC(3)(c), (ca), (f) and (i).
·Issues of family violence: s 60CC(3)(j) and (k).
·The likely effect if the child’s circumstances changed: s 60CC(3)(d).
·Practical difficulty of implementation: s 60CC(3)(e).
·Avoiding further proceedings: s 60CC(3)(l).
·Other relevant matters: s 60CC(3)(m).
His conduct was also not without guile. At changeovers the Father purported to engage the Mother in conversations superficially about parenting. At changeovers, he asked: “why don’t you want to talk about [X]?”; “why don’t you want to talk about your daughter’s health? Why don’t you want to talk about your daughter’s school?”. This was not a genuine attempt to engage in a parenting discussion. It was a knowing attempt to skirt the prohibitions of the IVO because discussions about parenting matters did not contravene the IVO.
In the marriage of JG and BG (1994) FLC 92-51 at 81, [317] Chisholm J held:
It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child's welfare requires, and it will be more important in some cases than in others.
The Father’s past conduct at changeovers, and directed towards B, and directed towards Mr DD in front of his child, are further factors to be evaluated in the assessment of X’s best interests.
Notwithstanding the past violence, and a lack of insight into his conduct, I have set out above that Mr C described the issue in terms of “pros and cons”. Mr C held the view (which I accept) that it was in X’s best interest to have a meaningful relationship with her Father: see s. 60CC(2)(a) (above). By minimising his disregulated behaviour as “historic” the Father took limited responsibility as to it. The incident with Mr DD was relatively recent: in early 2022. The conduct is more serious because there is a pattern: the Father has engaged in this disregulated conduct not only towards the Mother, but towards his former partner Ms Q (in B’s presence) and towards Mr DD (in the presence of Mr DD’s young child). The fact that there have been repeated instances of past disregulation, poorly thought-through behaviour is a factor which weighs against the Father’s case that he should be allocated sole parental responsibility and that X ought to spend increased time with her Father.
Coercive control
Mr C was cross-examined by the Mother’s counsel as to whether the conduct amounted to behaviour “that coerces or controls”: see Carter & Wilson [2023] FedCFamC1A 9. Mr C’s professional view was that it was not the Father’s intention to coerce or control. For the purposes of the definition of family violence in s. 4AB, I am not at all sure it is necessary to establish intention to bring the conduct within the scope of the definition. It is not necessary to engage in any detailed examination of that issue in this case. Nonetheless, although the Father’s conduct was not without guile (as set out above) his behaviour was better characterised as “reactive, disregulated, poorly thought through.” I accept Mr C’s characterisation that it was not conduct engaged in with an intent to coerce or control.
I draw an inference from the family violence order first made on an interim basis in late 2019, the fact that it was subsequently breached, and the fact that the final order will remain in effect until late 2026, that the context of family violence is a reason (in part) for the Mother’s antipathy towards the Father: s. 60CC(3)(k). She has reacted to that past conduct by seeing his actions since that time in the worst possible light. The Father’s conduct has made the process of sharing parental responsibility for X more difficult. I also infer that the 5-year duration of the IVO is a measure of the Magistrates’ Court assessment of the seriousness of the Father’s conduct.
Mother’s family violence
I have noted that the Father had sought an IVO against the Mother. The Magistrate noted that the Mother had engaged in two instances of conduct that met the definition of family violence but declined to make an IVO. There is no parity of seriousness between the Mother’s conduct and the Father’s repeated family violence detailed above. I find the Mother’s conduct was at the very lowest end of the spectrum. In the Magistrate’s assessment, the Father did not need an IVO to guard against its future recurrence. The Father’s conduct in breaching the IVO was sustained and serious.
The effect of any changes in X’s circumstances
Each parent proposed a change in the child’s circumstances in terms of the live with/spend time with arrangements: s. 60CC(3)(d). Neither party’s proposals would lead to X’s “separation from” either of her parents.
Despite the high level of conflict between the parents, X has a well-settled living arrangement on the existing 9:5 arrangements. Importantly, X’s school advised the DFFH that: “[X] is doing very well in prep and that she is a happy little girl[…] When discussing [X’s] parents, it was identified that [Ms Frank] was a lovely person, but the school will need to sit down with her to have a meeting. [Mr Ryker] was also described to also be a lovely person on his own” (CE-1, 9). The purpose of the meeting with the Mother was not disclosed.
There is no presumption in favour of the status quo. Nonetheless, In the marriage of Jurss (1976) 9 ALR 455; 1 FamLR 11 at 203, Demack J held: “to move them [that is, the children] from this environment is to choose uncertainty and to require them to make a variety of emotional adjustments which are not necessary for their well-being” (emphasis added).
Although the status quo is but one of many factors, to increase X’s time with the Father would be to “choose uncertainty.” The status quo enables X to maintain her meaningful relationship with her Father.
Practical difficulty and expense of X spending time with a parent
There are no practical difficulties in X spending time with either parent. Travel is not an impediment to X spending time with either parent because her parents live a 30-minute drive apart. Section 60CC(3)(e) is a neutral factor.
Avoiding further proceedings
If the past is a guide to the future, because of past high levels of interparental conflict there is every possibility of further, future litigation: cf. s. 60CC(3)(l). Continuing litigation is usually emotionally damaging to the litigants and is likely to affect X adversely: Freeman & Freeman (1987) FLC 91-857 at 96,470-71 (Strauss J) (approved in Reid & Lynch [2010] FamCAFC 184).
The allocation of sole parental responsibility as to health may be a “preferable” order because it removes one point of conflict as to an impasse in the discharge of joint parental responsibility under s. s. 65DAC and therefore is “least likely to lead to the institution of further proceedings.”
Section 60CC(3)(l) is a significant factor in favour of making final orders rather than interim orders and reviewing the matter in two years’ time as Mr C at one point in his evidence raised as a possibility.
Any other fact or circumstance that the court thinks is relevant
Neither party put any submissions specifically directed to s. 60CC(3)(m). To the extent that the issues as to the high conflict between the parents extend beyond s. 60CC(3)(i) those issues are relevant considerations under s. 60CC(3)(m). The evidence as to the Father’s mental health as to which I have made findings above may also be considered under s. 60CC(3)(m).
DETERMINATIONS
Equal Shared Parental Responsibility
The Father has engaged in family violence. The Father was charged as to “two charges a persistent breach of an intervention order and one single charge of breach of the intervention order” (CB342, [5]).
The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe that the Father has engaged in family violence: s. 61DA(2).
I must still consider whether an order should be made for equal shared parental responsibility in X’s best interests: Carter, [24] (Bennett J).
Although the conflict between the parents has been intractable and enduring, much of the conflict has been as to “minutiae”, not as to decision-making in relation to major long-term issues. Nonetheless, because of the interparental conflict I have allocated sole parental responsibility to the Mother as to decisions as to health.
The parents will have shared parental responsibility as to other issues. As to education, a decision has now been made as to X’s school. Although other education issues may arise, the obvious future major long-term issue as to education is as to X’s secondary school. Neither party identified any pending issue as to education. Any decision as to secondary school is some years into the future. The parents should have shared parental responsibility as to choice of secondary school.
As to health, the evidence has satisfied me that it would not be in X’s best interests for her parents to have equal shared parental responsibility because of the intractable conflict between them: see s. 61DA(4). That intractable and enduring conflict means that it is unlikely that they will be unable to discharge the legal obligation to make joint decisions under s. 65DAC(2) of the Act.
In Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61 at [109], Austin J referred to the need for a “rational synthesis of the findings about the parties intractable and probably enduring conflict with their consequent legal obligation under s. 65DAC of the Act”.
Substantial evidence concerned ongoing high levels of conflict between X’s parents. Murphy and Cronin JJ in Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 held at [70]:
[70] It might be thought that the circumstances of the instant case, including his Honour’s specific findings about the parents’ inability to interact meaningfully and responsibly in X’s best interests [….] together with the requirements of s 65DAC, may well have led—despite the apparent agreement of the parties—to an order that did not see the parents share parental responsibility equally. In that event, s 65DAA would not have applied and the s 65DAA grounds would not have arisen.
[Emphasis added]
Murphy J held in Lennon & Lennon [2011] FamCA 571 at [108]–[109], it is a “significant step” to exercise the discretion in favour of excluding one parent from decision-making in respect of major long-term issues for a child but sometimes the best interests of the child will require it. On a “rational synthesis” the “intractable and probably enduring conflict” (Manifold, above) and a consequential “inability to interact meaningfully and responsibly” (Tibb, above) means that a proper parenting order requires the allocation of sole parental responsibility as to decision-making as to health as to one parent or the other.
The evidence of a parental inability to make joint decisions in X’s best interests as to health included that the parties were unable to agree as to the appointment of a child psychologist or, alternatively, that one was not needed. I have set out the protracted negotiations above.
For functional and risk reasons it is in X’s best interests for one parent to have sole parental responsibility as to health.
As to the functional reasons for a sole parental responsibility order, one parent or the other needs to be allocated sole parental responsibility for health so decisions in X’s best interests can be made to overcome the impasse of disagreement. It is not about punishing one parent, but framing orders so that decisions that need to be made can be made. Because of the “aspiration” that both parents be involved in X’s lives, I will require consultation with the other parent before a final decision is made,
As to risk issues, I accept Mr C’s evidence that a real risk to X of current arrangements is exposure to the ongoing high level of parental conflict between her parents.
In his second report dated 23 September 2021 Mr C had noted (CB440, [15]) “the post‑separation cooperation and communication have been problem saturated and conflictual”. He further opined that neither parent had significant insight into the ongoing parental conflict (CB440, [16]; [24]). In his third report, Mr C had assessed that it was unlikely that the parties would engage in cooperative decision-making for X, in which he writes (CB463, [42]): “This ongoing internecine conflict poses the most significant risk to [X]'s psychological and emotional welfare in the context of her vulnerable age and stage of development”. On 17 May 2023 Mr C said (17 May T32:L26): “the risk to the child is the child’s exposure to the parental conflict”. Mr C’s oral evidence was that (17 May T56:L11-14)
I see sole parental responsibility as one of the few levers that the court has got in terms of making structural changes and arrangements that are more likely to diminish the capacity for the parties to engage in conflict,
Prof. L’s opinion was that the highly problematic and conflicted dynamics between the parents remaining unresolved poses a risk of ongoing harm to X (CB516, [56]).
When Mr C gave his evidence on 10 October 2023 when the trial resumed, he changed his evidence as to his previous recommendation for an order for sole parental responsibility and recommended equal shared parental responsibility because there was a “inherent risk given the pattern of behaviour” of the Mother (10 October T677:L11-16). He was professionally concerned that the Mother may use an order for sole parental responsibility as a means to undermine X’s relationship with her Father: that is, that a sole parental responsibility order would be “weaponised” so as to exclude the Father from X’s life.
Acknowledging the risk that a sole parental responsibility order may weaponised, the functional issues and the risk issues to which Mr C referred in his evidence in the first part of the trial, cause me on balance to continue to consider that an order for sole parental responsibility as to health is the proper parenting order. A counterbalance to any order being used to exclude the Father from X’s life is that I intend to order that X’s spend substantial and significant time with the Father. There will be guardrails requiring prior consultation before any decision is made. The sole parental responsibility order will be confined to major long‑term issues as to health.
Conflict as to issues that are non-major long term issues
I acknowledge that an order for sole parental responsibility as to health will not protect X from all conflict between these parents. Significant conflict has been about “minutiae”. The Cinema events are a prime example. An order for sole parental responsibility as to health is nonetheless one lever available to the court to reduce risk to X by reason of exposure to ongoing parental conflict (see: Mr C’s evidence, above).
Allocation of sole parental responsibility to the Mother
Sole parental responsibility as to health should be allocated to the Mother. At a pragmatic level, the Mother, not the Father, has taken the lead in decisions as to major long-term issues, including as to health. She is a proven performer. In relative terms, the Mother has a relatively greater capacity than the Father to make necessary decisions as to major long-term issues in X’s best interests. Allocating sole parental responsibility to the Father is uncertain. The Father lacks insight as to his past family violence. Prof L’s opinion was that his untreated mental illness is a contributor to ongoing conflictual dynamics. Further, Prof. L also expressed the opinion that the Father struggles with functional relationships. These issues are contra‑indicators in allocating sole parental responsibility to the Father.
Live with and spend time with arrangements
As to the live with and spend time with arrangements, the proper parenting order under s. 65D(1) is “at large” and I am not bound by the provisions set out in s. 65DAA to consider equal time and/or substantial and significant time.
No reversal of primary residence
I do not intend to order a reversal of the primary residence.
I accept Mr C’s recommendation against such a step. Mr C framed his recommendation in terms of the attachment distress it would cause to X and the risk associated with disrupting X’s relationship with the Mother as X’s primary caregiver (10 October T647:L2, L18-19). Mr C assessed that there was a greater risk to X from attachment distress then there was from “systems abuse and alienation at this point in time” (10 October T687, L10-16). He put attachment distress for X which would be a result of the reversal of residence at the apex of his hierarchy of risk. I accept his evidence. Although Mr C referred to “attachment distress” by way of an expert opinion and issues as to attachment may be the subject of specialised or technical knowledge, I must make a judgment as to this issue in accordance with the legislative pathway. Under s. 60CC(3)(b) I must consider the nature of X’s relationship with her Mother. The facts that X has primarily lived with her Mother and been cared for by her Mother throughout her life, mean that it would be very distressing for her to reverse that situation. In my assessment, it is not in X’s best interests for that to occur.
No reduction in X’s time with the Father
Mr C opposed any reduction in X’s time with her Father from the current 5:9 arrangements and half school holiday time (17 May T52:L42-44). To that extent, I accept his evidence. I do not intend to reduce X’s time with the Father. Currently X spends substantial and significant time with her Father which supports X’s meaningful relationship with her Father which is of benefit to her. The Father is an intuitive parent who enjoys a warm and reciprocated relationship with X. Substantial and significant time with her Father also enables X to have time with B. None of the experts saw an unacceptable risk in X spending substantial and significant time with her Father.
Mr C opined that a reduction in time would be “deleterious” to X. Prof. L was concerned that the marginalisation of a parent may lead to issues for X in adolescence. Notwithstanding that the Father has in the past engaged in disregulated and poorly thought through behaviour, the “pros” of X spending time with her Father outweighs the “cons”.
Should X’s time with the Father be increased?
A more difficult issue was whether X’s time with the Father should be increased to 7:7, an equal shared time arrangement.
I have already noted the shift in Mr C’s evidence.
In his third written report (written more than a year before the trial commenced), Mr C had recommended a time arrangement where X lived predominantly with the Mother: see e.g., CB466, Recommendation 7. On 18 May 2023 (in the first part of the trial), Mr C’s opinion was to recommend against an equal time arrangement because of the high conflict between the parents, as such an arrangement required a level of cooperation between the parents that was absent (10 October T6:L46–T7:L1-4).
In his evidence on 10 October 2023 (after the trial had resumed), Mr C was concerned about what he saw as an “escalation” in the Mother’s undermining of X’s relationship with her Father. His primary example of the “escalation” was the Mother’s conduct when X was admitted to hospital in mid-2023. His concern was that the Mother’s report to doctors or allied health professionals at the hospital exposed X to a level of systems abuse because the Mother’s reports resulted in an external full body examination and X being interviewed at school as part of the DFFH investigation. I add the concern that the DFFH report revealed that there was some evidence that X was interpreting the underlying animosity between her parents as giving rise to a dynamic where she was “required to choose sides” (CE-1, 13).
Mr C recommended that a graduated increase in X’s time with the Father would provide “a buffer and a safeguard against [the risk of the Mother undermining [X]’s relationship with her father] occurring” (10 October T694:L40-41). Mr C recommended an increase in time to a 7:7 arrangement. He recommended that the increase occur incrementally over a one-year period (10 October T698:L43-46). Because of a concern about the Mother’s actions, he also recommended a review “in two years’ time to see whether residence should change at that point in time if her [i.e., the Mother’s] pattern of behaviour hadn’t changed” (10 October T700:L11). He qualified his recommendation because he did not know what the court would find overall as to the disputed facts. At T647:L43-48, Mr C’s evidence was:
In the event that you find alienation then certainly I would be looking at reversing my initial recommendation for sole parental responsibility. I would be looking at the possibility of increasing [X]'s time up to a shared care arrangement, probably by the end of grade 2 primary school.
I intend to make final orders; not orders to be reviewed in two years’ time. In this case of sustained interparental conflict (including by means of ongoing litigation) final, not interim, orders are important. It would be preferable to make an order less likely to lead to the institution of further proceedings in relation to X: s. 60CC(3)(l).
I do not intend to accept Mr C’s recommendation that there be an increase in time for the following reasons.
First, I am not persuaded that the Mother has been undermining X’s relationship with the Father to the degree that underpinned Mr C’s recommendation for an increase in time particularly when considered alongside other factors. Despite allegations that the Mother has undermined X’s relationship with her Father, she has abided court orders as to the “spend time with” arrangements: see Bondelmonte (above).
Secondly, maintaining the status quo provides a stability of arrangements for X with the parent who has always been her primary carer rather than choosing an uncertain course. X remains a young child who has always lived predominantly with the Mother who has been her primary carer. In my assessment, even acknowledging the Mother’s antipathy towards the Father, the Mother is a child focused parent. On the independent evidence, X is currently doing well at school.
Thirdly, I assess the Mother has a relatively greater capacity to provide for X’s needs. She has always taken the lead as to addressing X’s needs as to important issues: kindergarten, school, health. The Father has not taken the initiative as to any of these issues.
Fourthly, as to the Father’s parenting capacity and attitude to parenting, I am not persuaded that the Father has significant insight into, or taken responsibility for, his past family violence. This concern is ameliorated by the fact that the conduct which marred changeovers ceased in 2020 and has not recurred more recently. The “pros” of X spending time with her Father outweigh the “cons” of the risk of repetition of past unacceptable behaviour. The appropriately calibrated response is to acknowledge that the Father has made substantial progress in addressing his past conduct which weighs against any time reduction, but his lack of insight as to that conduct weighs against increased time. The fact that the Father struggles with social relationships (as Prof L identified) is an additional factor which weighs against increased time. Prof L identified a potential as to the Father for “difficulties in regulating intense emotion once is more tenuous coping thresholds have been exceeded” which also weighs against an order for increased time (CB514, [49]).
Fifthly, the level of the ongoing conflict between the parents is likely to make an arrangement for equal time impracticable. Although each case turns on its own facts, usually equal shared care requires substantial parental cooperation. That was Mr C’s position when he gave evidence in May 2023. Mr C’s opinion was that it was “counterintuitive” to him as a clinician to have an equal time arrangement in circumstances of high parental conflict (17 May, T56:L26). The absence of parental cooperation remains a contra-indicator for an equal shared care arrangement.
Mr C’s recommendation for an increase in X’s time with her Father was that increased time would function as a “buffer” against the risk of the Mother undermining X’s relationship with the Father. The current orders which provide for X to spend substantial and significant time with her Father and equal time in holiday periods provide that “buffer” when balanced together with other factors. Although, as noted, Mr C’s opinion had shifted on the resumption of the trial, in my view, his opinion as of May 2023 remained applicable which was to support the current arrangement of 5 nights a fortnight (18 May T9:L10-19). His professional view then was that:
It would be my view that the current arrangement of five nights a fortnight and working up to half school holidays constitutes substantial time for the father with [X] and, indeed, enough time for him to cement a significant and meaningful relationship with the child.
[Emphasis added]
Also in terms of any need for a “buffer”, accepting that there was an “escalation” of the Mother’s conduct in the hospital undermining X’s relationship with the Father, Mr C’s evidence remained: “there is no indication to me in any of the material or in my interviews with [X] that she is on the verge of, or currently in the process of, being alienated from [Mr Ryker]” (10 October T665:L31-33).
Sixthly, despite the Mother’s attitude, on the Father’s own account X enjoys a good relationship with him and, on his own account to the DFFH, X’s relationship with him is “improving” (Ex. CE-1). Mr C noted too that X and the Father had a “warm and reciprocated relationship” (10 October T665:L39). The relationship is strong without the need for increased time.
Looking at the totality of the circumstances assessed against the relevant statutory criteria, the proper parenting order as to the live with and spend time with arrangements is that X live with the Mother and spend time with the Father on a 9:5 fortnightly cycle, with X spending half‑holiday time with the Father.
Block time
As to the configuration of time, X currently spends time with her Father five nights fortnightly across two blocks of time: Friday to Monday (week 1) and Wednesday to Friday (week 2). Mr C saw merits and demerits in the possibility of moving from two current blocks of time to one five-day block of time. The merit in moving to one block of time was to remove X’s proximity to conflict by reducing the number of changeovers (10 October T654:L30-35). The demerit was a longer period of absence from the Mother who has always been the primary carer (10 October T654:L41). X remains a young child and I do not propose to change the current configuration of time over two blocks: three nights in week 1 and two nights in week 2 of a fortnightly cycle. Two blocks of time will enable the Father to have more regular involvement in X’s education with X spending time with him every week.
Other issues
Choice of secondary school
The parents will have shared parental responsibility as to all major long-term issues other than health. As to “education” the most likely issue to arise is X’s secondary school. I accept other issues may arise. There was some passing reference to the fact that private school education may be of importance to the Father. Any such decision is likely to impose significant financial cost. In my assessment, in part because neither parent identified any pending education decision, the parties ought to have equal shared parental responsibility as to any choice of school for X. Because any apparent education decision is some considerable time off, there is no need for an order for sole parental responsibility for functional or risk issues in the same way as there is as to health decisions. The Mother’s counsel acknowledged that it would be appropriate in final submissions to “carve out” any choice of school issues from an order for sole parental responsibility (26 October T811:Ll45–T812:L2).
There has been no relevant conflict between the parents as to other major long-term issues defined in the legislation as to X’s religious and cultural upbringing, her name and/or as to “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent” such as would require an order allocating sole parental responsibility as to issues other than health.
Changeovers
Changeovers should occur at school where practicable. Each parent should be able to nominate a neutral person to effect the changeover. In the past the Father engaged a childcare worker to effect changeovers. That flexibility should be available to the parents.
Terms 1, 2 and 3 holidays and the long summer holidays
Orders for terms 1, 2 and 3 holidays and the long summer holidays will be that X spend equal time with each parent, on a “week about” arrangement.
The Father’s suite of orders proposed a simple halving of the six-week long summer holidays: 3 weeks with one parent followed by three weeks with the other parent.
Mr C’s opinion (which I accept) (10 October T657:L31) was that at the age of 6, three consecutive weeks was too long away for X from her primary carer. I accept his opinion. X has however in the past spent ten consecutive days with her Father over the summer holidays: between 17 January 2023 and 27 January 2023 (CB165, [23]). If the parents agree in writing to longer periods during the long summer holidays the orders will facilitate changing arrangements by written agreement.
In 2025, X will turn 8. As X grows older, it appears that either parent may want to travel with her for a longer period. From the 2025/2026 summer holidays, I have made an order that time will be divided immediately after New Year (2 January) for X to have a consecutive fortnight with each parent, so that she may have access to a longer holiday with either of them to enable the possibility of interstate or overseas travel. Term time arrangements will resume shortly before school.
A child psychologist
Because I have decided to allocate sole parental responsibility for health to the Mother, I do not intend to make orders as to a child psychologist for X. Subject to consultation obligations, the Mother will have responsibility for any decision.
Child support
In her Further Amended Application filed 31 March 2023, the Mother had sought child support departure orders (CB9-10, orders 32-36). That application was not pressed in final submissions. There will be no departure order as to child support.
Whether the Mother’s time ought to be conditioned on her engagement with a psychologist as to her entrenched antipathy towards the Father
I canvassed with the parties in final submissions as to whether I ought to condition the Mother’s time on her engagement with a psychologist to seek assistance with her entrenched antipathy towards the Father. The Mother indicated that she would consent to such an order. The Father submitted that I did not have power to make such an order and/or that it would be of no utility given that the Mother refused to acknowledge that she had such an entrenched antipathy toward the Father.
In Oberlin v Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66 at [51]–[52], a Full Court held that a self-standing order, untethered from any particular parenting order directing a party to accept therapeutic treatment was not usually within power under Part VII of the Act. I have also referred to Lainhart above in declining to order that the Father’s time be conditioned on completion of an MBCP or therapeutic treatment in circumstances in which it is not clear how the success of any treatment required may be measured. The same observations mean that an order conditioning the Mother’s time on her completion of therapeutic treatment is not, in this case, a proper parenting order.
On balance, I have decided against making such an order lest compliance with it become a focus of dispute between the parents. It will be for the Mother to decide whether X’s best interests are promoted by her seeking therapeutic assistance as to her entrenched antipathy towards the Father. Despite the absence of any order, it seems to me important that she acknowledge that should her entrenched antipathy towards the Father continue that will not be in X’s best interests.
Whether the Father’s time ought to be conditioned on him engaging in a MBCP or other treatment
I have set out above that I do not intend to condition X’s time with the Father on him completing a MBCP or engaging in any psychological or psychiatric treatment. I will not repeat my reasons here.
The injunction
On 20 April 2023, the third day of the trial, I made an interlocutory injunction preventing dissemination of a communication about sensitive matters between the Father and Prof. L. The interlocutory injunction was subsequently discharged. There is no ongoing injunction.
Application in a proceeding
Order 2 formally grants the Father leave to amend his application in accordance with the document filed on 7 July 2023.
The recusal application
Another judge of this court heard a Recusal Application on 30 August 2022. Technically, judgment remains reserved but given the re-allocation of the matter to me by reason of judicial availability, that application has been overtaken by events. My order dismissing all extant applications includes within its scope an order dismissing the recusal application.
CONCLUSION
In conclusion, I will make the orders set out with these reasons.
I certify that the preceding three hundred and fifty-two (352) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 14 December 2023
Annexure A
Summary of evidenceMother’s evidence – first part of the trial
(1)In the first part of the trial, the Mother relied upon the following evidence:
(a)Ms Frank, Trial Affidavit, 1 April 2023 (CB45-128)
(b)Ms Frank, Affidavit, 14 March 2021;
(c)Mr D, Affidavit, 12 April 2023 (Ex. A1); and
(d)Ms Frank, Reply Affidavit, 14 April 2023.
Father’s evidence – first part of the trial
(2)In the first part of the trial, the Father relied upon the following documents as of 13 April 2023:
(a)Mr Ryker, Trial Affidavit, 6 April 2023 (CB157-339); and
(b)Mr E, Criminal Lawyer, Affidavit, 28 September 2021 (CB340-352)
Expert evidence
(3)There was the expert evidence as follows:
(a)Mr C was the family report writer. He had prepared three written reports dated 15 January 2019 (CB353-372), 23 September 2021 (CB436-452) and 3 March 2022 (CB453-470);
(b)Dr K, Psychiatrist, made a psychiatric assessment of the parties, filed 4 February 2022 (CB471-487); and
(c)Professor L, Psychologist, made a Neuropsychological assessment of the Father dated 20 March 2022 (CB488-522).
Re-opening of cases
(4)When the cases were reopened, the parties relied on the following material:
(a)Mr Ryker, Affidavit, 1 September 2023;
(b)Ms Frank, Affidavit, 1 September 2023; and
(c)Mr Ryker, Reply Affidavit, 11 September 2023.
(5)Further, when both parties reopened their cases, additional subpoenaed material was received by the Court including material subpoenaed from:
(a)F Hospital;
(b)the DFFH;
(c)O School; and
(d)G Organisation, a provider of Men’s Behavioural Change Programs.
Exhibits
(1)There were a substantial number of exhibits: A1–A15, R1–R23 and CE1.
(2)Each party produced an aide-memoire document for the purposes of final submissions: MFI-1 (Father), and MFI-2 and MFI-3 (Mother).
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