Galla & Harroun
[2023] FedCFamC2F 77
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Galla & Harroun [2023] FedCFamC2F 77
File number(s): PAC 67 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 2 February 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother is the uncontested resident parent – where both parties make broad allegations of family violence as against the other – where the respective allegations of family violence are denied by either party – no positive finding that either party engaged in family violence – where the parties’ co-parenting relationship is highly conflictual and toxic – finding that the nature of the parties’ relationship poses a risk to the child’s psychological wellbeing in circumstances where the child is sensitive and has difficulty adjusting to change – finding that the fathers new partner likely exacerbates the conflict between the parties and injunctive orders made – order made for the mother to have sole parental responsibility for the child with conditions for the father to provide his views – order made for the child to spend graduating time with the father. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CC (2), 60CC(2)(a), 60CG, 65D, 65DAA, 65DAC
Evidence Act 1995 (Cth) s140
Cases cited: Amador & Amador [2009] FamCAFC 196
B & B (1993) FLC 92-357
Dieter & Dieter [2007] FamCA 608
Isles & Nelissen [2022] FedCFamC1A 97
Keating & Keating [2019] FamCAFC 46
Line & Line (1997) FLC 92-729
M & M [1988] HCA 68
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 206 Date of hearing: 17-19 October 2022, 3 November 2022 Place: Parramatta Solicitor for Applicant: Litigant in person on 17-19 October 2022, Mr Seeney on 3 November 2022 Solicitor for ICL: Ms Mahony of Counsel Solicitor for Respondent: Mr Macarounas of Counsel ORDERS
PAC 67 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GALLA AND: MS HARROUN
order made by:
JUDGE MURDOCH
DATE OF ORDER:
2 February 2023
THE COURT ORDERS THAT:
1.All prior parenting Orders with respect to X born in 2018 (“X”) are discharged.
Parental Responsibility
2.Subject to Order 3, the mother shall have sole parental responsibility for X.
3.Except in the event of an emergency, not less than 28 days prior to the mother making a decision regarding X’s long-term care, welfare or development:-
(a)the mother shall notify the father of her intended decision by email; and
(b)The father shall be entitled to notify the mother of his view regarding the proposed decision, such notification to be contained in one email reply to the mother; and
(c)The mother shall consider the father’s view prior to making the decision regarding X’s long-term care, welfare or development, and
4.The mother shall notify the father of all decisions made regarding X’s long-term care, welfare, and development by email within 7 days of such decision being made.
Live with
5.X shall live with the mother.
6.
Spend Time with Arrangements:
7.X shall spend time with the father as follows:
(a)From the date of these orders until the commencement of Term 2, 2023:-
(i)In week one of each fortnight from 10:00am until 3:00pm Saturday commencing Saturday 4 February 2023;
(ii)In week two of each fortnight from 5:00pm Friday until 3:00pm Saturday commencing Friday 10 February 2023.
(b)From the commencement of Term 2, 2023:
(i)In week one of each fortnight from the conclusion of school on Thursday until the commencement of school on Friday;
(ii)In week two of each fortnight from the conclusion of school on Friday until 3:00pm Saturday.
(c)For the school holidays at the conclusion of Term 2 in 2023, for two block periods of two consecutive nights, such time to continue in the same week one and week two pattern as provided for in school term time, such that the child’s visit with his father in week one of the fortnight be extended to conclude at 3:00pm on Saturday and the child’s week two visit with the father be extended to conclude at 3:00pm on Sunday.
(d)From the commencement of Term 3, 2023:
(i)In week one of each fortnight from the conclusion of school on Thursday until the commencement of school Friday;
(ii)In week two of each fortnight from the conclusion of school Friday until 3:00pm Sunday.
(e)For the school holidays at the conclusion of Term 3 in 2023, for two block periods of three consecutive nights, such time to continue in the same week one and week two pattern as provided for in the school term time, such that the child’s visit with his father in week one of the fortnight be extended to conclude at 3:00pm Sunday and the child’s week two visit with the father be extended to conclude at 3:00pm on Monday.
(f)From the commencement of Term 4 in 2023 and thereafter during school terms:
(i)In week one of each fortnight from the conclusion of school Thursday until the commencement of school Friday;
(ii)In week two of each fortnight from the conclusion of school Friday until the commencement of school the following Monday.
(g)For the school holidays at the conclusion of Term 4 in 2023, for one block period of five nights, such time to commence at 3:00pm on the first Thursday of the holiday period and conclude at 3:00pm on the following Tuesday.
8.For the school holidays at the conclusion of Term 1, 2024 and each school holiday period at the end of Terms 1, 2 and 3 thereafter X shall spend time with his parents as follows:
(a)In odd numbered years, with the mother for the first half of the holiday period and with the father for the second half of the holiday period;
(b)In even numbered years, with the father for the first half of the holiday period and with the mother for the second half of the holiday period.
9.For the school holidays at the conclusion of Term 4 in 2024, 2025 and 2026 X shall spend time with his parents as follows:
(a)In odd numbered years, with the mother for the first, third and fifth weeks of the holiday period and extending to include the seventh week in the event the school holiday period includes more than six weeks;
(b)In odd numbered years, with the father for the second, fourth and sixth weeks of the school holiday period and extending to include the eighth week in the event the school holiday period includes more than six weeks.
(c)In even numbered years, with the mother for the second, fourth and sixth weeks of the school holiday period and extending to include the eighth week in the event the school holiday period includes more than six weeks;
(d)In even numbered years, with the father for the first, third and fifth weeks of the school holiday period and extending to include the seventh week in the event the school holiday period includes more than six weeks;
(e)For the purposes of the above, a week is defined as commencing 3.00pm on Sunday and concluding the following Sunday at 3.00pm.
10.For the school holidays at the conclusion of Term 4 in 2027 and each year school holiday period at the conclusion of Term 4 thereafter, X shall spend time with his parents as follows:
(a)In even numbered years:
(i)With the mother for the first half of the holiday period, such time to commence from the conclusion of school on the last day of school attendance and conclude at 3.00pm on the middle day of the school holiday period.
(ii)With the father for the second half of the holiday period, such time to commence at 3.00pm on the middle day of the school holiday period and conclude at 3.00pm on the Sunday prior to the first day of school attendance.
(a)In odd numbered years:
(i)With the father for the first half of the holiday period, such time to commence from the conclusion of school on the last day of school attendance and conclude at 3.00pm on the middle day of the school holiday period.
(ii)With the mother for the second half of the holiday period, such time to commence at 3.00pm on the middle day of the school holiday period and conclude at the resumption of the school term.
11.For the purpose of facilitating these Orders, the school holiday periods shall be deemed to:
(a)Commence at the conclusion of school on the last day of school attendance;
(b)Conclude at 3.00pm on the Sunday prior to the first day of school attendance; and
(c)Reach the ‘half way’ point at 3.00pm on the middle Saturday of the holiday period.
Special Occasion time
12.Notwithstanding any other order, X shall spend time with his parents as follows:
(a)For Christmas in 2023 and each odd numbered year thereafter:
(i)With his mother from 2.00pm Christmas Day until 2.00pm Boxing Day.
(ii)With his father from 2.00pm Christmas Eve until 2.00pm Christmas Day.
(b)For Christmas in 2024 and each even numbered year thereafter:
(i)With his mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day.
(ii)With his father from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
(c)With his mother on:-
(i)the Mother’s Day weekend from the conclusion of school on the Friday prior to the Mother’s Day weekend until the commencement of school on the day following Mother’s Day;
(ii)Country B Independence Day each year, if a school attendance day from the conclusion of school until 6.00pm, and if a non-school attendance day from 9.00am until 6.00pm.
(d)With his father on:-
(i)the Father’s Day weekend from the conclusion of school on the Friday prior to the Father’s Day weekend until the commencement of school on the day following Father’s Day;
(ii)Country C Independence Day each year, if a school attendance day from the conclusion of school until 6.00pm and if a non-school attendance day from 9.00am until 6.00pm;
(iii)Children’s Day each year, if a school attendance day from the conclusion of school until 6.00pm, and if a non-school attendance day from 9.00am until 6.00pm.
Changeover
13.On school attendance days X’s changeover between the parties shall occur at his school.
14.On non-school attendance days X’s changeover between the parties shall occur at the McDonalds located at the corner of D Street and E Street, Suburb F (“the Suburb F McDonalds”).
15.To facilitate changeover at the Suburb F McDonalds the following shall apply:
(a)The parent who is delivering X to the other parent at changeover shall as far as is practicable, cause X to enter the play area located at the McDonalds at least 5 minutes prior to the changeover time;
(b)The parent who is due to collect X shall remain at the McDonalds for not less 10 minutes following the changeover time;
(c)The parents are restrained from discussing parenting matters at changeover.
16.The father is to do all things possible to ensure that Ms G is not present at contact changeovers occurring at the Suburb F McDonalds.
Communication
17.The parents shall communicate by way of text message and email in the first instance and in the case of emergency only, by telephone.
18.When communicating with each other regarding non-urgent parenting matters, the mother and father shall ensure they do not send more than one email or text message communication to the other parent each fortnight.
Exchange of Information and Attendance at Events
19.Each parent shall notify the other parent of their mobile phone number, residential address and email address and advise the other parent of any change to these contact details within 48 hours of the change.
20.The within 7 days of X commencing at a new educational institution the mother shall authorise the educational institution attended by X to provide to the father the following information and documents at his own cost:
(a)A copy of all school reports and school photo order forms for the child.
(b)Notification for activities that he may decide to attend, such activities being those that parents or carers are ordinarily entitled to or invited by the day-care, preschool or school to attend.
(c)Notification of parent/teacher nights.
(d)In the event of X being taken from the day-care, preschool or school for an emergency, that the father be informed as soon as practicable.
21.The parties are permitted to attend all activities and functions at X’s school.
22.That the father is to do all things to ensure that Ms G does not attend and is not present at any activities or functions that relate to X’s attendance at any educational institution.
23.The parties are permitted to attend all of X’s extra-curricular activities.
24.That until 1 July 2024 the mother is to advise the father not later than 48 hours prior to any extracurricular event if she is not proposing to attend same.
25.That until 1 July 2024 the father shall do all things to ensure that Ms G does not attend any of X’s extracurricular activities unless he receives advice from the mother pursuant to Order 24 above.
26.That as and from 1 July 2024 the father is to advise the mother not later than 48 hours prior to any extracurricular event if Ms G is to attend any such extracurricular event and the father is to do all things necessary to ensure that Ms G does not approach the mother during such extracurricular activity.
27.In the event of X suffering a medical emergency requiring medical attention while spending time with or living with either parent:
(a)The other parent is to be notified as soon as practicable.
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which X attends as soon as practicable.
(c)The medical practitioner or medical facility be advised that the other parent has access to the X’s medical records upon request.
Restraints
28.The parties shall not denigrate the other party in the presence or hearing of X and each party shall ensure that no third party denigrates the other parent in the presence or hearing of X.
29.The parties shall be restrained from physically disciplining X and both parties shall ensure that no third party physically disciplines X.
Airport Watch List Order
30.The parents whether by themselves, or their agents be and are hereby restrained by injunction and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act1975 (Cth), from removing, attempting to remove or causing or permitting the removal or attempted removal of the child X born in 2018 from the Commonwealth of Australia.
31.AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.
32.The costs of the Independent Children’s Lawyer and the parties are reserved for a period of 28 days from the date of these Orders.
33.The appointment of the Independent Children’s Lawyer is otherwise discharged.
34.All extant applications are otherwise dismissed.
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 Galla & Harroun has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to the parenting arrangements for the child X (“X”) currently aged 4 years and 3 months.
The mother is the uncontested resident parent. For determination by the court is the time X is to spend with the father together with ancillary issues including overseas travel and the manner in which the parties are to communicate.
Both parties allege that during the course of the relationship the other party occasioned family violence. The mother alleges that the father engaged in coercive and controlling behaviour and has continued to engage in these behaviours post-separation.
I commend all legal practitioners and the parties on the manner in which this final hearing was conducted. I obtained significant assistance from both counsel for the mother and the Independent Children’s Lawyer in their questions of the witnesses and final submissions made. The father, despite being a litigant in person for most of the hearing, conducted himself in a polite and measured manner. The solicitor for the father came into the hearing on the last day and thus under difficult circumstances. He completed the cross examination of the mother, the court child expert and thereafter made clear and cogent submissions. There is no doubt that I am fortunate in the significant assistance I have received in this matter to determine what is in X’s best interests and I thank the legal practitioners in this regard.
THE COMPETING PROPOSALS
Each of the parties seek extensive orders as to the parenting arrangements for X.
The father has been a litigant in person since October 2020. The relief sought by the father has changed substantially throughout the course of these proceedings and during the final hearing itself. At the listing of the matter for final hearing the father was seeking orders that the parties have equal shared parental responsibility and that X live with each of the parties on a week about basis.
One day prior to the commencement of the final hearing the father’s proposed minute of order sought sole parental responsibility and that X live with him. It did not specify the orders the father sought relating to the time X was to spend with the mother. On the first day of the trial the father advised the court that he sought the same regime for time between X and the mother as that proposed by the Independent Children’s Lawyer for time between X and the father. There being no objection raised, the father was permitted to amend the relief sought by him.
Extensive cross examination of each of the parties was undertaken. The hearing was not able to be contained to the three days allocated and was adjourned part-heard for a short period of time for the father to finish his cross examination of the mother, for the court child expert to give oral evidence and final submissions to be made.
A solicitor appeared for the father on the final day of the hearing. Prior to the cross examination of the court child expert a further Minute of Order was tendered by the father without objection. An order for equal shared parental responsibility was still pressed, however the father abandoned his application that X live with him and instead now seeks orders that X spend time with him on a graduating basis.
Prior to final submissions commencing the father advised the court that he would consent to an order that the mother have sole parental responsibility for X in the terms proposed by the Independent Children’s Lawyer.
The father’s proposal is broadly that X’s time with him will progress in four stages with each stage continuing for a period of three months so that:-
·Stage one will see X move from spending one day and one overnight with the father each fortnight to one day and two overnights each fortnight and an additional four night block in the holiday period.
·Stage two increases X’s time with the father to two afternoons and three overnights each fortnight and an additional five night block in the holiday period.
·Stage three increases X’s time with the father to one afternoon and four overnights with an additional six night block in the holiday period.
·Then from July 2023 X would spend each Wednesday overnight with the father together with three overnights each alternate weekend; being five nights each fortnight together with a block of one half of all school holiday periods.
Thus the father’s proposal is that in a six month period X will progress from spending one day and one night a fortnight with no block periods of time to five nights a fortnight and block periods of half of each school holiday. X’s time with the father from July 2023 will require X to move between the parties’ households on four occasions in a one week period.
The mother seeks orders on a final basis that she have sole parental responsibility for X who will live with her. The mother sought orders that X spend time with the father broadly as follows:-
·Pursuant to the current regime each alternate weekend from Friday overnight until Saturday and for one day only on the Saturday in the alternate week until 1 January 2023.
·From 1 January 2023 until the commencement of Term 2 2023, each alternate weekend from the conclusion of school on Friday until 3:00pm Sunday. Thus during the school term, time with the father would move from one day and one night to two overnights each fortnight but this would occur in one block period only.
·Thereafter, X would spend each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday. X would not spend any mid-week face-to-face time with the father but would have one FaceTime with the father each week.
·The short school holiday periods would be gradually increased by extending the alternate weekend time by two nights up to five nights in total on a graduating basis.
·The end of term 4 school holiday periods would alternate yearly until 2026 and then be spent with each of the parents for one half block period.
The Independent Children’s Lawyer seeks orders that the mother have sole parental responsibility for X subject to notification and consideration of the father’s views and that X live with the mother. Broadly, and in circumstances where judgment would not be delivered prior to Christmas holiday period, the Independent Children’s Lawyer seeks orders that X continue to spend the same time as he is currently until the commencement of Term 2, 2023. Then X’s term time with the father will increase on a graduated basis so that he spends:-
·From Term 2, 2023 each fortnight for one night overnight midweek and one weekend from Friday to Saturday. Thus X’s time would progress from one overnight to two overnights per fortnight.
·From Term 3, 2023 X’s time each fortnight would continue to be one overnight midweek and the weekend time would increase by a further one night to Sunday. Thus X would progress to three overnights per fortnight.
·Thereafter X would spend each fortnight one overnight midweek and the weekend time would increase by a further night so that X would spend from the conclusion of school on Friday to the commencement of school Monday morning.
·X’s time with the father during the short school holidays would extend by one night each holiday period so that by the conclusion of the Term 1 2024, X is spending one half of such holiday period with each parent.
·X’s time with the parties during the long school holiday period would be shared on a week about basis until 2026 when X spends half of each such period in one block with each parent.
THE ISSUES
The agreed list of issues as provided to the court has now been superseded by the parties’ amending proposals and concessions made throughout the course of the hearing. Thus the issues requiring determination are:-
·Whether either party has perpetrated family violence upon the other.
·Whether X is at psychological risk of harm as a result of the perpetration of family violence or being exposed to the parties’ conflict and if so, how such risk may be mitigated.
·Whether the allocation of sole parental responsibility to the mother should include a requirement that the mother communicate such issue and obtain the father’s input prior to making a decision.
·The regime of graduating time X is to spend with the father including holiday time and whether such progression of time should be dependent upon the father purchasing a separate motor vehicle to that currently shared with his new partner.
·Whether it is in X’s best interests to spend face to face mid-week time with the father or mid-week FaceTime.
·What orders should be made regarding X’s movement between each of the parties.
·Whether an order is to be made for X to spend make up time in the event he misses time with a parent due to illness or misadventure.
·Whether an order is to be made that if one parent is unable to care for X the other parent be given first option.
·The manner in which the parties should communicate with each other.
·Whether any orders should be made as to X’s ability to travel.
·Whether an order should be made restraining the parties from relocating with X outside of the Region W, Sydney.
·Whether an order should be made that any of X’s personal effects are returned to the party to whom they belong at changeover times.
·What orders, if any, are to be made, with respect to the attendance at school and extracurricular events of X by the father’s partner.
·What, if any, orders should be made restraining the behaviour of the parties.
I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, but do not propose to traverse all of the evidence in these reasons and instead will address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48.
BACKGROUND
The parties provided the Court with an agreed chronology as follows:
1989
Applicant Father born in Country C. The Applicant Father is currently aged 33 years.
1994
Respondent Mother born in City H, Country B. The Respondent Mother is currently aged 28 years.
2017
The parties commence a relationship.
2018
Child of the relationship, X born. X is currently aged 4 years and 3 months old.
9 December 2018
The father moves out of the home.
08 January 2020
The father commences proceedings.
26 March 2020
Interim Orders are made providing for X to live with the mother and spend time with the father each Saturday, with changeover to occur at the father’s home.
23 June 2021
Father files Contravention Application.
3 September 2021
Court determines Contravention Application. Court finds that alleged contraventions on 19 June 2021, 12 June 2021, 13 March 2021 and 6 March 2021 are proved, but as the Mother had a reasonable excuse, they are dismissed.
Court varies changeover order so that changeover can be facilitated by the Suburb J Children’s Contact Service.
26 April 2022
By consent orders are made for X’s time with his father to increase.
For three months – in week one from 10am until 3pm on Saturday, in week two 11am until 4.30pm Tuesday and from 10am until 3pm Saturday.
At the expiration of three months – in week from 10am until 3pm Saturday and in week two from 5pm Friday until 3pm Saturday.
Changeovers to continue at Suburb J Children’s Contact Service.
Matter is allocated Final Hearing dates.
23.06.2022
Father files Enforcement Application.
17-19.10.2022
Matter is listed for Final Hearing.
THE CHILD
X has lived with the mother subsequent to the separation of the parties in either July or December 2018. X’s time with the father has not been consistent since this time with the mother ceasing his time from 5 June 2021 to 6 November 2021.
Pursuant to the interim orders made by consent on 26 April 2022, X currently spends time with the father each alternate weekend from 5:00pm Friday until 3:00pm Saturday and from 10:00am to 3:00pm each alternate Saturday. Thus X does not currently spend any mid-week time with the father.
At the time of the interviews for the Family Report X was attending day-care two days per week. There is no dispute that X is to commence kindergarten at the K School at Suburb L, New South Wales in 2023.
The father describes X as an active and engaging child. The mother says that X is smart, caring and interacts very well with others. The court child expert recorded that X presented as a happy child whose manner and presentation seemed consistent with his chronological age, although he was observed as speaking less than would be expected for a child of his age. X has been engaging in speech pathology with Ms M.
It is the mother’s case that X is a sensitive child. The father does not appear to concede that this is the case and put it to the court child expert that this was not something she put in her report. The court child expert disagreed, and noted in her oral evidence that her report recorded that X would not go with the court child expert and thus the play interaction did not proceed:
When the family consultant asked [X] to accompany her for a play X shook his head and put his arms around [Mr Galla]. [Mr Galla] attempted to get [X] to let go of him and [X] became distressed. When this was attempted a second time without success, the Family Consultant made the decision to forgo individual play interaction with [X].”[1]
[1] Family Report of Ms O dated 7 September 2020, paragraph 65 (“Family Report”).
I accept the evidence of the mother and the court child expert that X is a sensitive child.
THE PARTIES
The father gave his evidence in an exceptionally careful, controlled and measured manner. He considered each question, thought about his answer and then took a breath prior to giving it.
He was exceedingly polite throughout the proceedings. A standard response after consideration of each question was: “With respect, I disagree” or “Respectfully, no.” Counsel for the wife in submissions stated that “…frankly, he was a difficult witness to cross examine because he didn’t give those crumbs that you normally get from a witness, where they answer a question and they answer it with a little bit extra.”
The father was afforded the opportunity to give updating oral evidence in circumstances where the trial affidavits were filed in April 2022. At this time the court, the mother and the Independent Children’s Lawyer were advised for the first time that the father has moved into a four-bedroom rented townhouse at Suburb N with his current partner, Ms G despite the father’s evidence that this occurred in July 2021, some 9 months prior to the filing of his trial affidavit. The father intended from as early as January 2021 – some 2 months prior to the interviews for the Family Report – to live with Ms G and had been actively looking for places to live together since this time.
The father gave evidence that he had entered into a 12 month lease at that time and this lease was renewed again in July 2022. A copy of the lease was called for by the mother and the father was told to produce the lease when the matter resumed at 2:15pm after adjourning for the lunch break.
The lease was subsequently produced by the father to the mother and the Independent Children’s Lawyer. Upon the matter recommencing the father conceded that he had entered into the renewal of the lease agreement over the luncheon adjournment and not in July 2022 as originally stated by him. The father’s evidence was that he was of the view that he had entered into an updating lease agreement electronically but became aware that this was not formally entering into a renewal of the lease.
When questioned about the incorrect nature of his evidence as to the lease agreement the father asserted that the mother was aware that Ms G and her two children were living with him in any event as the mother herself referred to this in correspondence from her solicitor.
Such correspondence was called upon by the mother. The letter produced did not refer to Ms G or the children living with the father and in fact was a letter written prior to the father and Ms G commencing to live together. The father finally conceded that he did not send any notification to the mother that Ms G and the children were living with him.
The father conceded further that at the time of his interviews with the court child expert:-
·He understood that an issue raised by the mother was Ms G becoming involved in the video communications between X and the father.
·He was aware that the mother had raised other issues regarding Ms G and the court child expert wrote about such allegations.
·He accepted that in those circumstances the court child expert would have found it very important to know that he was intending to live with Ms G and that if he had told her this it would have appeared in her report. Despite this concession the father asserted that he had told the court child expert that he intended to move in with Ms G and would not accept that he might be mistaken in this.
·He accepted that he only told the court, the mother and the Independent children’s lawyer that he was planning to move in with Ms G on the first day of the final hearing. He accepted that this did not then permit any evidence as to Ms G’s criminal records or any material from Department of Communities and Justice to be subpoenaed for the purposes of the final hearing.
·He conceded that Ms G could have typed up a document by way of an Affidavit and that she had not done so.
The father was adamant that he had advised the court child expert that he was planning to move in with his current partner. The court child expert was clear in her evidence that if she had been made aware that the father intended to live with Ms G she would have sought to interview her. I accept the evidence of the court child expert in this regard. I reject the father’s contention that he advised the court child expert of his plans to move in with his current partner.
Despite moving in with his current partner to a home in Suburb N in July 2021, all of the material filed by the father in these proceedings still lists as his address for service his prior residential address in Suburb P. The father made an oral application to the court prior to the listing of the matter for final hearing to have an updating family report prepared on the basis that he had moved residence. The court was not advised at the time of such application that the father’s change of residence involved him moving in with his current partner and her two children and was therefore refused. I find that this was not an inadvertent error on the father’s behalf, but a deliberate failure to disclose important factual matters to the court. This failure is amplified in circumstances where such failure to disclose was, until the final day of the trial, in the midst of a dispute as to where X was to live. It does the father little credit.
There are consequences that flow from the court and court child expert not being advised as to the change in the father’s living arrangements. There is no evidence before the court as to the relationship X has with Ms G’s children Q and R, other than the single assertion made by the father in the witness box on the first day of the hearing. There is no independent evidence as to X’s relationship with Ms G. The mother and the Independent children’s lawyer have not been afforded the opportunity to obtain any relevant material and information with respect to Ms G. She is not on Affidavit.
The court child expert gave evidence that the failure to disclose information causes her to be more cautious in her recommendations as to time between X and the father as: “I would question as to why it would be something that needed to not be disclosed.”
The mother submits that as a result of the father’s evidence as outlined above I should exercise caution with respect to the father’s evidence and to the extent that there is an inconsistency between the father’s and the mother’s evidence, I would prefer the mother’s evidence.
The father’s oral evidence was that he works on a full-time basis from home and has flexibility in his work practices to move meetings and work engagements so that he will be able to deliver and collect X from school. Ms G has two sons, Q aged seven years and R aged 14 years. Q and R do not spend any time with their father. It was the father’s evidence that the two boys and X have a warm and friendly relationship.
The mother lives with X in a rented, three bedroom unit in Suburb N. She is not in paid employment and is in receipt of government assistance. English is her second language. She is not in a relationship. The mother has an older child, S, who is 12 years of age. S lives with his father in Melbourne and spends time with the mother during school holidays and regularly communicates with her via Skype. It is uncontested that S and X have a good relationship.
The mother was cross examined by the father in person. She gave her evidence in a measured and considered manner and was responsive to questions asked of her, even if they did not necessarily paint her parenting capacity in the most positive light.
A criticism made by the mother of the father is that he has acted unilaterally with respect to aspects of X’s parenting. One example given by the mother was that she only became aware that the father and Ms G had taken X to the doctor in relation to a cold/flu on 25 July 2020 and asked for a referral to a paediatrician a month after the appointment. The mother’s evidence was that it was upsetting that the father did not take X to his usual general practitioner and did not communicate this to her.
During the course of cross examination the mother conceded, upon being shown material produced under subpoena from the T Medical Clinic, that she had in fact rung the clinic three days later on 28 July 2020 and discussed the appointment X and the father had attended with them. The mother eventually further conceded that the father had in fact contacted her shortly after the appointment and told her of it. The mother’s evidence in this regard was clearly untrue.
Having regard to my findings as set out later in these reasons, I cannot take the position as sought by the mother that I would accept the mother’s evidence over that of the father when it conflicts. I find that both parties gave evidence that was inconsistent with independent evidence tendered throughout the course of the hearing.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms O, a court child expert of some eight years’ experience in Children’s psychology (“the court child expert”). She has tertiary qualifications including a Bachelor of Psychology (Honours). The court child expert has had extensive experience in child psychology and child protection. There was no challenge to her expertise and I am satisfied she is suitably qualified to provide her opinion to the court.
The court child expert interviewed each of the parties on separate occasions in March 2021 via video as a result of the COVID-19 pandemic. A further telephone call with each of the parties was conducted on 23 June 2021. X was observed by the court child expert with both of the parties separately and in person at the Parramatta Registry on 15 March 2021. The court child expert had access to and read a wide range of material including material produced under subpoena.
At the time of the time of the preparation of the report the father was seeking orders that X live with each of the parties on a week about basis, or in the alternative, that X spend time with the father on a two weekly cycle from Sunday to Wednesday in week one and from Wednesday to Sunday in week two. He was further proposing that the parties share equal parental responsibility for X. Each of the parties was alleging that there were risk issues for X in the other party’s care.
The court child expert recommended that:-
·The mother have sole parental responsibility for X.
·If it is determined that X is not at unacceptable risk of harm spending time with the father, that the time X spends with the father begin to increase over a period of six months. Initially X’s time with the father should continue as it is currently, then increasing to two full days and one overnight before culminating in the time as recommended on a final basis, being each alternate weekend from Friday afternoon until Monday morning and for one night in the alternate week.
·That X’s routine be adjusted so that it minimises the difficulty he is currently experiencing at changeover.
·That the parties may benefit from attending a parenting program.
·That each parent be restrained from denigrating or discussing court proceedings in the presence of X.
·That the mother attend counselling if she experiences anxiety about the father spending time with X.
The court child expert attended court and was cross-examined. In the course of her cross-examination, the court child expert confirmed that she had read the trial affidavit of each of the parties.
I found the court child expert’s oral evidence to be clear, thoughtful and reasoned. Having read the updating material she affirmed her continued support of her written recommendations as contained within the Family Report save for some further clarifications and amendments dependent upon the findings of fact made by the court which will be discussed further below.
Whilst ultimately it is a matter for the court to review the evidence and make findings as to factual issues significantly in dispute, I give significant weight to the court child expert’s report and oral evidence which was not challenged in any significant manner.
THE LAW
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA.
The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The objects of the Act as set out in s 60B is to ensure that the best interests of the child are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(e)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(f)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(h)parents should agree about the future parenting of their children; and
(i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the child from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them. The Full Court has adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…[2]
[2] McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92
Thus, I am not to assume that there is a benefit to X in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to him in the circumstances of such a relationship.
The court child expert opines that in the absence of an unacceptable risk of harm it will be important for X to have a relationship with the father as this is likely to increase his well-being; both psychologically and physically:
When a father is involved in an affectionate and supportive relationship with the child it greatly affects a child’s cognitive and social development. It also instils an overall sense of well-being and self-confidence, thereby reducing the chances for [X]in engaging in risk-taking or aggressive behaviour.[3]
[3] Family Report, paragraph 77.
Both of the parties and the Independent Children’s Lawyer agree that X should live with the mother and spend time with the father on a graduating basis. All parties propose that X will spend weekend and block holiday time with the father.
The father and the Independent Children’s Lawyer seeks orders for X to have mid-week time with the father, the mother does not. Whilst the mother does not propose mid-week time, the court child expert agreed during cross examination that the mother’s proposal still provides for a meaningful relationship between X and the father.
Family Violence
Both of the parties in this matter make allegations that the other party has perpetrated family violence. Each party denies the other party’s allegations.
The mother makes various allegations of an unparticularised or broad nature as to the father engaging in family violence including coercive and controlling behaviour. I am unable to safely make a finding with respect to these allegations grounded on the broad nature of the mother’s evidence and will focus on the incidents particularised and/or raised by the parties during the course of final submissions.
The parties made submissions with respect to three specific incidents of alleged family violence. The standard of proof with respect to such findings is the balance of probabilities: see s140 of the Evidence Act 1995 (Cth). Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 FamLR 268, 282 at [88]; [2009] FamCAFC 196.
Family violence is defined in s 4AB (1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…., or causes the family member to be fearful.”
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46.
The October 2017 Incident
It is the mother’s written evidence that in approximately October 2017 she and the father were driving home from Suburb U after having spent some time with the father’s friends. The father was telling the mother that she had to stop speaking to one of his friends and said to her:
You are too close to my other friend. I hate it, you are embarrassing me. Cease contact with him now! If you don’t stop talking to him, the next time we are in the car I will kill us.” [4]
[4] Affidavit of Ms Harroun filed 14 April 2022, paragraph 13 (“Mother’s Affidavit”).
The mother deposes that the father swerved the car as he said this and she felt scared. She deposes that the father ordered her to delete his friend’s number from her phone and to block him from all social media and never have any communication with his friend again. The mother complied with this demand as she felt scared. The mother was unequivocal in her oral evidence when it was put to her that this event simply did not occur, that it did. It was submitted on behalf of the mother that the mother’s evidence in this regard had:
A ring of truth, your Honour. Otherwise, what it is, is the mother making this story up and frankly, your Honour, she didn’t impress as a witness who seemed to make things up as she went along.
The father during the course of his cross examination denied the events of October 2017 as asserted by the mother. He denied that he swerved the car. He denied that he had ever been physically or verbally abusive to the mother. Both parties were firm in their evidence.
I am unable to make a positive finding based on the evidence that this event occurred as alleged by the mother.
The 9 December 2018 Incident
It is the mother’s written evidence that on 9 December 2018 during the course of an argument the father “shoved me into a wall and choked me”. The mother called the police and they attended and spoke to the mother. The mother conceded during the course of cross examination that she only told the police that it was her hand that was hurting; she did not mention the father choking her as “she did not feel pain” around her throat afterwards and that “so much was happening, I must have missed that out.”
The father was cross examined about the police records in relation to this. He denied the mother’s version of the events. It is the father’s written evidence with respect to this incident that it was the mother that instigated the incident by yelling at him and trying to take X out of his arms. He was taken into custody and detained for several hours and his motor vehicle was searched for a gun because the mother had told police that he may be in possession of a firearm. The father deposes that he found this incident extremely traumatising.
The police did not lay any criminal charges with respect to this incident.
Having regard to the inconsistent statements given by the mother as to this alleged incident, I cannot safely find that this event occurred.
The 4 April 2020 incident
Documents produced by the New South Wales Police and forming part of the mother’s tender bundle records the father contacting the Police on 4 April 2020 alleging that he and the mother had an argument during which time the mother assaulted Ms G. Again no charges were laid. The mother denies this in her affidavit. The father was cross-examined as to this incident. He confirmed his version of events as set out in the police records and did not accept that he had contacted the police to merely make an allegation against the mother. The mother was not cross-examined on this incident. I cannot on the evidence safely make a finding that this occurred as alleged by the father.
The October 2020 incident
It is the mother’s written evidence that she arrived late to deliver X to the father on 24 October 2020 as X had woken up late. Upon arriving at the father’s home the father appeared to be angry. She tried to hand the father X’s police car toy however he refused to take it. X was upset and was reaching for his toy. The father then took the toy from the mother and threw it on the ground. The mother says she bent down to pick up the toy car and the father pushed her as she did this. X continued to cry and reach for the toy but the father would not take it. The mother tried put the car into X’s bag which the father was holding. As she tried to put the car in the bag the mother asserts that the father pushed the bag towards her right shoulder and punched her. The father was holding X during all of this period.[5]
[5] Mother’s Affidavit, paragraph 50.
The mother called the police and met with them at her home. The police took a statement but the father was not charged. The mother deposes that this incident caused her to fear for her safety if she was to continue attending changeover at the father’s home and she resolved that changeover should thereafter occur at a contact Centre. The mother’s solicitors wrote to the father on 26 October 2020 proposing that changeover take place at Suburb J children’s contact Centre. The father responded on 26 October 2020 proposing that changeover take place at a police station. In that correspondence the father revealed that he records the mother at every changeover and asserted that the mother was acting like “a crazy person”.[6]
[6] Mother’s Affidavit, paragraph 53.
X did not spend time with the father on 31 October 2020. On 6 November 2020 the mother’s solicitor proposed that changeover take place at the McDonald’s restaurant in Suburb N and following negotiations it was agreed that changeover would take place at McDonald’s Suburb P.[7]
[7] Mother’s Affidavit, paragraph 55.
The mother was cross examined by the father as to this event. The father’s suggestion that the mother was the aggressive person and that he did not punch her was denied by the mother. The mother did not agree with the records of the New South Wales Police that state that an audio recording contained the mother raising her voice. She did not state who the female raising her voice was in the recording. In further cross examination by the father’s solicitor she agreed that the version she provided to the police was different to that contained within her affidavit.
Whilst I agree with the submissions made by the mother that the documents produced under subpoena must be taken with some circumspection as it is a summary of events taken by a third party who was not available for the purposes of cross examination, this submission does not assist the mother in circumstances where the mother bears the onus of establishing the father perpetrated an assault upon her as alleged. The mother had the opportunity to call the Police Officer to give evidence. I am not satisfied having observed each of the parties in the witness box and having regard to the apparent contradictory version of events given by the mother that I can safely accept that the father perpetrated an assault upon the mother as alleged on this occasion.
X’s Back Pack and Jacket
The mother’s oral evidence was that on 16 July 2022 X returned back from spending time with the father with his backpack torn. She took photographs as this was not the first time he had returned with a ripped backpack and X told her “Daddy took the back pack and sat on the chair and took scissors to the backpack.” The mother tendered evidence of a photograph of X’s jacket and alleges that the father also deliberately damaged it and that she took the photo as she noticed a pattern of behaviour by the father.
The father denied damaging the backpack or jacket and stated that he knows that this would place financial pressure on the mother. He does not accept that X told the mother a few days after the backpack came back damaged that he used scissors on the bag. His explanation as to how the bag was damaged was that it is “directly related” to where X’s water bottle sits. He does not accept that X’s jacket was cut. Photographs of the bag and jacket were tendered by the mother. I accept that both items are damaged. I cannot be satisfied however that the items were deliberately damaged as asserted by the mother. Having regard to the father’s firm denials, I cannot safely make a finding that the damage was caused by him.
Whilst I am unable to make a positive finding that either of the parties has engaged in family violence, I agree with the submission made by the Independent Children’s Lawyer that the court’s task in assessing and determining risk in a parenting matter does not require positive findings to be made as to individual events. This will be discussed later in these reasons.
Whilst I have not made any findings as to the perpetration of family violence by either of the parties, even if such a finding had been made I accept the court child expert’s opinion from each of the accounts provided that:
While there are elements of control reported, it would appear that the behaviour described is more consistent with a relationship characterised by high conflict. It appears that [Mr Galla] and [Ms Harroun] have experienced ongoing disagreements, mistrust over parenting styles, a high level of hostility and physical altercations on occasions with neither parent appearing to be particularly afraid or similarly fearful of the other…… It is positive that since the current to spend time arrangements have been in place there have been no reported incident of family violence between them. If the status quo continues it would seem that family violence is not a significant factor that would impact consideration.[8]
[8] Family Report, paragraph 71.
The Nature of the Parties’ Relationship
Both parties make significant complaint as to the other’s conduct. The mother and the Independent Children’s Lawyer agree that the parties’ parental relationship is one of high conflict. It appears that whilst the father concedes that there has been conflict between the parties in the past, he appears to be more hopeful that the parties will be able to improve their parenting relationship moving forward to a point where they can communicate with each other.
Several incidents were raised by the parties that go directly to the issue of the nature of the parties’ parenting relationship.
The Cutting of X’s Hair
On the 5 June 2021 the father cut X’s hair whilst X was in his care. Whilst this may not seem a significant act, this was done one day after the father received correspondence from the mother’s solicitor specifically requesting that he refrain from making any changes to X’s appearance without the mother’s consent and “ To make such changes would clearly only serve to inflame the conflict.” It is the mother’s evidence that this caused her considerable distress as she felt like the father only did this to prove that he was in control.[9]
[9] Mother’s Affidavit, paragraph 69 to 70.
The father conceded during the course of cross examination that he did this as he wanted to show that he is the child’s father and he could make decisions for him. He further conceded that this was done in the face of a letter specifically asking him not to. The father’s evidence was that he had instructed his solicitors to forward to the mother’s solicitors a letter prior to 5 June 2022 to advise them that he was going to cut the child’s hair but the solicitor did not send the letter out in time. Thus the evidence was not that he wished to discuss with the mother the question of cutting the child’s hair, but that he was simply informing her that that was what he was going to do. Having had the opportunity to reflect on this action the father stated that the only thing he would have done differently was that he would have waited for the correspondence to go to the mother and then he would have cut X’s hair. This action reflects poorly on the father and has clearly intensified the level of conflict and mistrust between the parties. These are not the actions that imbue the court with confidence that the parties will be able to co-parent in a meaningful manner moving forward.
Medical Appointments
The mother criticises the father for taking X to see a doctor without her prior approval. During the course of cross examination the mother conceded that there was no order in place stopping the father from taking X to the doctor but believes it should have been discussed with her prior to the appointment.
I am satisfied on the mother’s own concessions that she does not contact the father prior to taking X to a medical appointment and instead provides him with the required information after the event. It appears that the mother does not feel that she should provide the same courtesies to the father as she expects from him.
Changeover of X between the Parties
The movement of X between the parties’ respective households has caused considerable conflict between them.
Both parties criticise the other for being late to changeover of X between their households. Whilst both are critical of this, each party seeks to excuse their own lateness for reasons that they perceive as acceptable and legitimate including that X was sleeping and they did not want to wake him up. I am satisfied that both parties have been late to changeovers. The court child expert opines that “not adhering to agreed changeover times can be perceived as disrespectful and devaluing of the other parent’s time and the child’s relationship with that other parent. Therefore, with the goal of improving and preserving the co-parenting relationship, attending changeovers in a timely manner is likely to be in the child’s best interests.”[10] It is hoped that the parties have now had the opportunity to reflect on the effects of their actions on the other party and the detrimental affect it has clearly has on the nature of the parties’ parenting relationship. Both parties must realise that it is their responsibility to ensure that X is delivered and collected on time and this may involve X unfortunately having to be woken up whilst he is taken to the car to be transported.
[10] Family Report, Paragraph 74.
It is the mother’s clear evidence that the presence of Ms G at changeover causes conflict and her distress. Ms G has been present at changeovers of X between the households on various occasions including on 1 August 2020 despite the father conceding that there had been prior arguments between the mother and Ms G at these times. To the father’s credit he now concedes that it is not appropriate that Ms G be present at the times X is moving between households.
The court child expert states that if there is veracity to the mother’s claim that the father’s partner is overstepping boundaries by attempting to participate in changeover and placing herself into a parenting role then this could be perceived as disrespectful and could damage the co-parenting relationship between the parties. The court child expert’s clear evidence was that it is in the child’s best interests that Ms G not be present at contact changeover if I found that her presence at times causes an increase in tension and conflict. The court child expert recommends in that circumstances that the father participate in changeovers alone or that there is the use of a contact Centre to facilitate changeovers that do not require the parties to have face-to-face contact.
The father conceded during the course of cross examination with Independent Children’s Lawyer that X has been exposed to conflict at changeover. He accepts that he has to do the best he can do at changeover so that his current partner Ms G is not involved. The father further conceded that it is best not to have the police involved and conceded that the police have been called unnecessarily.
Further Issues
The court child expert opined that the father failing to disclose that he was living current partner, Ms G from July 2021 would exacerbate the parental conflict. It further shows that there is a dysfunctional co-parenting relationship that does not indicate ongoing equal shared parental responsibility is appropriate.
Whilst I am unable to make a finding that the father has engaged in cutting the child’s bag and jacket, I am satisfied that the mother herself believes that this act was perpetrated by the father. This unfortunately does nothing to assist in the conflictual and toxic nature of the relationship between these parties.
Having regard to the evidence as discussed above, I accept the submissions of the Independent Children’s Lawyer that both parties have in the past acted in a directive manner to the other party with respect to their parenting of X. Both parties have told the other party what they were going to do rather than discussing it first. Both parties clearly tell the other party what they think the other party should do with respect to particular aspects of X’s parenting.
The court child expert opines that ongoing conflict between the parties is detrimental to X’s psychological and physical wellbeing. It may result in X “feeling he needs to choose one parent over the other in an effort to protect himself from the conflict. This is likely to place considerable stress on X’s emotional well-being.” [11] In her oral evidence the court child expert gave evidence that placing a child in the middle of a conflict can lead to dysregulation within the child in terms of understanding their own emotions, their ability to manage conflict with their own peers and can impact school performance. Further they can have more anxiety and depression. The court child expert stated that she would take a more cautious approach if X was more emotionally dysregulated.
[11] Family Report paragraph 73.
I am satisfied that the parties’ parenting relationship is highly conflictual and toxic. I am unable to make a finding on the evidence that X is emotionally dysregulated. I am satisfied that the level of dysfunction and mistrust is a risk to X’s psychological well-being and that orders should be made to mitigate such risks as much as possible. Having said that, the parties must accept that each of their behaviour and actions have contributed to this poor relationship and ensure that they amend their behaviour moving forward.
Alcohol and Cannabis Use
The mother raised concerns with the court child expert as to the father’s alcohol and cannabis use. In circumstances where the mother does not seek any orders restraining the father’s behaviour in this regard and the mother seeks that X spend unsupervised overnight time with the father I am not satisfied that there are risk issues arising in this regard.
Physical Chastisement of X
The mother raised issue with the court child expert that the father is physically chastising X. She does not give any evidence as to any specific incidences to support this allegation. I am satisfied that it is in X’s best interests as sought by the Independent Children’s Lawyer and both the parties to make an order restraining each of the parties from physically disciplining X and this order sufficiently ameliorates any such risk issues for X in this regard.
Medical Care and Treatment
In his Outline of Case document the father asserts that X is at an unacceptable risk of physical and psychological harm if he were to live with the mother. A significant amount of time was spent during the course of the final hearing on cross examination as to issues relating to the medical care and treatment that X has received to date in the mother’s care. Further extensive cross examination occurred of the mother relating to his assertion as to past allegations made by her and the general care that she provides X. This was in the context of the father seeking that X live with him. No submissions were made by the father or the Independent Children’s Lawyer that X is at an unacceptable risk of harm in the mother’s care.
In circumstances where by the finality of the hearing the father had conceded both that it is in X’s best interests that he live with the mother and that she have sole parental responsibility, I will not canvass the allegations and evidence on this issue as it is not necessary to ground the reasons for the decisions I have to make and will potentially only cause a further increase in tensions and hostility between the parties which is clearly not in X’s best interests.
THE ADDITIONAL CONSIDERATIONS
Turning now to the additional relevant considerations as set out in s 60CC (3).
Any views expressed by the child
X is too young to express his views and any such view would have little weight in any event.
The nature of the child’s relationship with the parents and other significant persons
The father conceded during the course of cross examination that X did not have regular time with him from December 2018 until April 2019 and he did not spend any time with X between June and November 2021. Despite this, the court child expert opined that it appears that both the parties have an established relationship with X and “have each demonstrated warm, sensitive and attuned interactions.”[12] The mother agreed during the course of cross examination that X has a good relationship with his father.
[12] Family Report, paragraph 73.
I find that X has an established relationship with each of the parties. I accept the court child expert’s opinion that the most beneficial arrangement for X is one in which he is able to enjoy a relationship with both the parties and where further each party supports his relationship with each of his parents.[13]
The extent to which the parents have taken the opportunity to participate in making decisions about major long-term issues or spend time or communicate with the child
[13] Ibid.
As discussed above each of the parties have criticised the other part for making unilateral decisions as to X’s care whilst at the same time making unilateral decisions themselves. The father criticised the mother for unilaterally deciding that X will attend K School at Suburb L commencing this year, although he does not raise an issue with X attending this school.
The capacity of each parent to provide for X’s needs, including emotional and intellectual needs
The mother unilaterally ceased X’s time with the father from 5 June 2021 to 6 November 2021. The mother’s evidence was that she made this decision for two reasons- the father cutting X’s hair and the father being constantly late to changeover. It was the mother’s oral evidence that X did not say anything about the father during this period of time. I agree with the submissions made by the Independent Children’s Lawyer that it is of some concern that the mother did not consider that X not spending time with his father for some five months would be problematic for him.
The mother asserts that whenever she and the father have an issue the father will contact the police and request that a welfare check of X be conducted. It is the mother’s evidence that this has caused X to be “ a little” scared of the police because on one occasion X had woken up and been scared by the presence of the police at the mother’s home.
On 31 August 2020 there was a FaceTime conversation between X and the father pursuant to the interim orders. The conversation was terminated in circumstances where the father concedes that X dropped his iPad. He then called the police to conduct a welfare check on X. The father asserts that he did this as the mother was behaving aggressively towards the X during the call and he was unsuccessful in contacting the mother or X again to re-engage in the call. The father would not concede that having the police attend the home would be a scary thing for X to witness. He denied that he had the police conduct a welfare check to make sure that the mother conducted the face time calls between himself and X in a manner that he wished.
Despite the mother’s criticism of the father contacting the police to conduct welfare checks on X resulting in him now being scared of the police, she herself conceded in cross examination that she contacted the police to examine X’s mouth asserting that X suffered an injury to his mouth which significantly misaligned his teeth.[14]
[14] Mother’s Affidavit, Annexure L.
The father in cross examination originally denied contacting the Department of Communities and Justice on 7 September 2020 with respect to X. He ultimately conceded that he had done so after being shown documents produced under subpoena by the Department. He further conceded at the time of his report there was ongoing conflict between he and the mother with respect to changeover of X of a Saturday between the respective households.
The father asserts that the mother has and will actively undermine the relationship between the X and the father such that the child does not enjoy a meaningful relationship with the father. The father conceded that despite X not having seen him for a period of five months between June and November 2021 his time with X went well – X came to him willingly and that the mother must have prepared X well for him to see the father again. It was the mother’s updating oral evidence that overnight time between the child and the father commenced on 12 August 2022. To prepare the child for such overnight time she commenced telling him approximately two weeks prior that it was going to be fun and reminded him that he needed to “pee” before bed. She sent the father an email regarding the child’s routine and “did that to support the dad.” The father accepted that by these actions the mother must have encouraged X to see the father and thus is trying to facilitate a loving relationship. Despite this concession the father still asserts that the mother is actively undermining the relationship between X and himself. I am not satisfied that the evidence grounds a finding that the mother is actively undermining the relationship between X and the father.
The attitude to the child and responsibilities of parenthood demonstrated by the parents
Each of the parties have attended post separation parenting courses. The mother attended ‘Parenting after Separation: Focus on the Kids’ course run by V Counsellors on 23 August 2021.[15] The father attended the same course on 17 January 2022 and indicated that he had intentions of completing the ‘Circle of Security for Children’ course in April of 2022.[16]
[15] Mother’s Affidavit, paragraph 97.
[16] Father’s Affidavit, paragraph 64.
Despite this attendance both parties appear to lack insight into their actions and be able to shoulder any responsibility for the nature of the parenting relationship that exists. It was the mother’s evidence that she was implementing the things she had learnt at the post separation parenting course and the father was not, and that was the reason for the continued difficulties.
The father would not concede that his failure to advise the mother of his new living arrangements was a failure to adhere to his responsibilities as a parent as he would not be moved from his view that the mother was somehow aware of this. This failure to advise the mother of pertinent information as to both X’s location and living arrangements when he is spending time with him devalues the mother’s role in parenting X.
The father during the course of his oral evidence was unable to tell the court as to any positive attributes he says the mother has as a parent other than his belief that both parents should be a part of X’s life. When asked as to how he would encourage X to have a loving relationship with the mother if X were to live with him the father was not able to verbalise how he would positively encourage this relationship with X directly but rather gave evidence that he would ensure he kept the mother informed about decisions he made concerning X’s care, that he would be flexible with the time X spent with the mother and he would move to a co-parenting style of parenting with the mother. Hopefully the father has now formed the view that the mother has a positive contribution to make in the parenting of X in circumstances where he has conceded that it is in X’s best interests that he continue to live with the mother.
The mother was cross examined as to the enrolment application for the child’s preschool, which was tendered and marked as Exhibit F9. The enrolment form evidences that the mother did not put the father’s details down under “parent 2.” The mother’s explanation for this was that the father was supposed to attend the preschool with her to complete the enrolment forms. She gave him three weeks’ notice of the appointment date however the father did not attend at the appointment time; he was running late. The mother completed her portion of the forms and then left as she felt it was up to the father to attend and complete his details: “he said he was coming and he was coming to fill out his details.” When asked why she did not put him down as an emergency contact the mother’s response was illuminating:
Because I rely on my family members compared to him. If anything was to happen to [X] I rely on my mum. My mum would actually take time off like she did two weeks ago when [X] was sick and support me with [X], but his dad would not and he has done it before where he left us hanging. So my family members will actually help me compared to him and I’m going to put someone that I rely on, as a single parent that will leave anything that they are doing to support my son. So that’s why I chose family members for that.
I accept the mother’s evidence in this regard.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The mother deposes that the father is assessed to pay child support in the amount of $1,083.42. She asserts that the father does not consistently pay child support and instead, she receives inconsistent sums of money being $30, $70, or $300 each month. The mother further deposes that as at the date of swearing her affidavit, the father was in arrears of child support in the amount of $2,777.75.[17]
[17] Mother’s Affidavit, paragraph 101.
The mother was cross-examined on this issue by the father. The mother affirmed her written evidence that the payment of child support by the father is not consistent. The father asserted that at the date of the hearing, he was not in arrears of his child support statements but was unable to provide evidence of same.
I am unable to make a finding on this issue on the evidence before me in the absence of any independent documentary evidence.
The likely effect of any changes in the child’s circumstances
The father concedes that the mother has been X’s primary carer since birth. The mother is the uncontested resident parent. All parties and the Independent Children’s Lawyer agree that it is in X’s best interests that his time with the father be increased on a graduating basis. The father concedes that he still seeks a significant change in X’s time with him; from one night a fortnight to five nights a fortnight.
The parties agree that X is a child who has some difficulty adapting to change including changes to his routine. X’s difficulties in transitioning to pre-school appeared to have manifested itself in his refusal to sleep and a difficulty in engaging in play with other children whilst at pre-school.
It is not disputed that X is a fussy eater who does not adapt well to new foods. X was not eating regularly when at pre-school and would become emotional when offered food. He further had trouble recognising his need to drink water.
The parties disagree as to the cause of X’s eating issues. The father asserts that X has always had eating issues which arose from him being “force fed” by the mother at an earlier age.
During the course of cross examination the mother gave evidence that X’s eating issues manifests itself when X is not in her care as “it’s an attachment thing” and arises when he is in the father’s care. She expressed to the court child expert her concerns that X is not being fed adequately when in the father’s care. The mother deposes that when collecting X after spending time with the father he will tell her that he is hungry and he does not eat when at the father’s home. It was her oral evidence that when X returns to her from the father he is so weak that he cannot even shower and that once he has been fed by her he is “fine”. Whilst not conceding that X may be telling her things to please her, the mother did ultimately concede that X may not provide the most accurate report of events. She further conceded that:-
·It may be that the father offers X food and he refuses to accept it.
·She has spoken to a medical practitioner about X’s issues with eating and there has been no issue with his weight or appearance based on his “Blue Book” details.
·The doctor suggested a physical examination by a dietician but she did not make an appointment in this regard.
·X is now more settled at pre-school; he has started to engage with teachers and his peers. He has also started to eat a little more.
·X’s unsettled periods of sleep are not unique to times when he is transitioning between the parties’ households.
I cannot make a finding that the father is not adequately feeding X whilst in his care as I cannot be satisfied that a child of X’s age is reporting accurately his lived experiences. I further cannot safely make a finding that X is returning from the father’s so weak that he cannot even shower in circumstances where the mother is not alleging that X is at unacceptable risk of harm in the father’s care. I can accept, on balance, that it is possible that the father experiences the same difficulties with X’s eating as his pre-school teachers.
I accept that X’s difficulties with eating and sleeping have not increased subsequent to his moving from one household to the other; his issues have remained fairly constant although they may become more acute for periods of time when there are changes in his routine. The court child expert gave evidence that these type of behaviours are not unexpected for young children who are going through change and they did not cause her such concern that she would vary her recommendations “as a child is likely to experience some difficulty with transition but once a routine is in place and they get used of those things those difficulties tend to usually to go away.”
I am however satisfied that I must still consider X’s sensitivity, difficulties in adapting to change and eating issues when determining what orders are in his best interests. It was suggested to the mother that perhaps a more helpful strategy to cope with the child’s eating issues in circumstances where the mother asserts that this is arising from the child’s attachment to her and his attachment issues, is for the child to spend more time with the father so that he forms a strong attachment to him also. The mother was clear in her evidence that this would not be a helpful strategy in circumstances where the father is not patient with the child and his eating issues as required. The mother does not feel that this is something the father could do at all as she has asked him and spoken to him about these issues but things have not changed. The court child expert opined that X spending more time away from his primary carer based on this theory is likely to increase X’s anxiety if it is not undertaken an a supportive manner.
The maturity, sex, lifestyle and background including lifestyle, culture and traditions of the child and the child’s parents
The father was born in Country C and moved to live in Australia in 2017. The mother was born in Country B and moved to Australia in approximately 2006 when she was 12 years of age.
It is uncontested that there are several Country C cultural events each year: Country C Independence Day and Children’s Day. The mother consents to X spending these days with the father each year as long as they do not impact on his attendance at school. It was agreed that … is a public holiday each year. There is a national day each year celebrated in Country B. The father accepts that it is in X’s best interest to spend this day with the mother.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child
Having regard to the conflictual nature of the parties’ relationship it would be preferable to make orders that would be least likely to lead to the institution of further proceedings. Each party argues that the orders sought by the other party are more likely to lead to the institution of further proceedings.
PARENTAL RESPONSIBILITY
It is uncontested that the mother as the resident parent should have sole parental responsibility for X. There is a dispute between the parties as to the form that the sole parental responsibility order should take. The father and Independent children’s lawyer both propose that the order should be subject to the mother providing the father with notification of an issue and allowing him to provide her one email with respect to his views as to same. The mother is to consider those views and then inform the father again in writing of her decision. It does not require the mother to proactively consult or discuss such a decision with the father.
The mother seeks an order for sole parental responsibility with notification being provided to the father of decisions she has made. The mother submits that anything that requires the parties to engage in communication is likely to exacerbate conflict and therefore the orders as proposed by the mother regarding notification is the preferable order.
Having regard to my findings above as to the allegations of family violence, I must apply a presumption that it is in X’s best interests for the parties to have equal shared parental responsibility. This presumption may be rebutted however if I am satisfied that such an order would not be in X’s best interests.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child.
I am satisfied having regard to the evidence that the court child expert is correct in her opinion that it appears unlikely that the parties will be able to cooperatively make significant decisions for X. The court child expert’s opinion is that “the least detrimental alternative would be for the parent with who[m] X primarily lives to have sole parental responsibility for him.[18] Having regard to the findings of the conflictual nature of the relationship between the parties made, I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning X’s care. I am satisfied that as the resident parent the mother should have sole parental responsibility for X.
[18] Family Report, paragraph 78.
Turning then as to the nature of any consultation that should occur in the exercise by the mother of her parental responsibility. The Independent Children’s Lawyer submits that it is very clear that a significant source of conflict has been the father’s perception that he has been shut out of certain aspects of the X’s life. I accept that the decision-making for X has largely fallen to the mother, not necessarily by the father’s choice. The enrolment of X in school by the mother without discussing this with the father is just one example. It is clear that neither party has felt it appropriate or necessary to engage in a consultative process with the other party. I agree with the Independent Children’s Lawyer that is it important for X that each of his parents recognises that the other parent’s view may have value for X.
I accept the submissions of the Independent Children’s Lawyer that the past difficulties of the parties in communicating should alleviate their requirement as parents in the future to try in very limited and confined circumstances to have the ability to express their positions and consider each other’s view point. The orders as sought by the Independent Children’s Lawyer and the father do not require the mother to actively engage in an ongoing discourse with the father but to merely allow him a limited ability to express his views. Each of X’s parents have valid insights as to what is best for X and it is the responsibility of the mother as the resident parent to at least consider the father’s input. The father has the obligation to respect both the boundaries of his ability to articulate his views to the mother and to accept her ultimate decision. The court expects that the parents will engage in this process in a proper manner as that is what is in X’s best interests.
In those circumstances I will make the order as sought by the father and the Independent Children’s Lawyer.
ASSESSMENT OF RISK
I must now undertake an assessment of the potential risks of harm to X having regard to each of the parties’ parenting proposals. This assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97. The concept of “unacceptable risk” falls within the broader issue of determining what is in X’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient: see M & M (1988) FLC 91-979; [1988] HCA 68 and B & B (1993) FLC 92-357.
Having regard to my findings above I accept the position of the parties and the Independent Children’s Lawyer that X is not an unacceptable risk of harm in either parties’ care.
In light of my findings above I am satisfied that X’s best interests are served by minimising his exposure to the toxic and conflictual nature of the parties’ parenting relationship. I am further satisfied that X’s sensitivity, difficulties with adapting to changes in his routine and eating issues require a considered, conservative approach to the increase in time he spends with the father.
The father submits that his concession as to the issue of parental responsibility has to be an indication that he will respect the decisions the mother makes and thus the court should be hopeful that the parties can communicate in the future. This ensuing reduction of conflict would lead the court to find that the orders for time as sought by the father are in X’s best interests.
The mother submits that the lack of parental insight and coercive and controlling family violence perpetrated by father demonstrates a lack of insight and ability to prefer X’s interests over his own. The mother submits that the father’s past behaviours are indicative of his future behaviours and thus a conservative approach in line with the mother’s proposal is in X’s best interests.
The Independent Children’s lawyer submits that the highly conflictual nature of the parties’ relationship needs to be mitigated in the best interests of X. The Independent Children’s Lawyer submits that the orders sought by the Independent Children’s lawyer adequately mitigate the conflict for X through minimising X’s exposure to conflict via the use of independent changeover venues, by the mother holding sole parental responsibility and the cautious approach to the increase in time proposed.
Live with Orders
The mother is the uncontested resident parent. The court child expert recommends that unless it was determined that X is at an unacceptable risk of harm living with the mother, changing residence would represent a distressing considerable change for him that is not recommended. I am satisfied that it is in X’s best interests to make the order sought by all parties and the Independent Children’s Lawyer that X is to continue living with the mother.
Time with Orders
To their credit, both parties agree with the Independent Children’s Lawyer that it is in X’s best interests that his time with the father increase on a graduating basis. The time frame proposed by the father is that this time will increase so that within a period of six months X progresses from one day and one night a fortnight with the father with no periods of block time to five nights a fortnight and one half of the school holiday periods. The mother’s proposal largely accords with that of the Independent Children’s Lawyer such that there is a more gradual build-up of time. The mother does not agree that X should spend mid-week time with the father as sought by the father and the Independent Children’s Lawyer.
The court child expert’s opinion that the most important focus for X is ensuring that the stages of increases in time are managed so that he is not having multiple changes or happening at the same time was not successfully challenged and I accept that this is so. I further accept from the court child expert’s observations and opinion that each party has demonstrated a capacity to assist and support X through changes in his life.
It was the court child expert’s clear and unequivocal evidence that when there is a young child starting school such as X she would always recommend that any change occur after allowing the child to have some time to settle into the new change and then to make additional night changes three on four months after school starts. Thus Term 2 of 2023 would be an appropriate transition time. This evidence was not successfully challenged by the father and I accept that it is in X’s best interests that the increase in time with his father will not commence until Term 2, 2023.
Term Time
The father’s proposal is that after the graduating period of six months X would spend five nights a fortnight with the father. The orders as sought will require X to move between the parties’ households on no less than four occasions in one week. The court child expert was of the opinion that if X has difficulty in adapting to change, this would have the potential to impact his well-being. In those circumstances, transitioning less if possible between the households would be in his best interests.
The father submitted that perhaps to alleviate this issue for X that his time with the father could be extended in the second week so that X would still spend five nights a fortnight with the father. The father submits that such a proposal will increase his time and his bond with his son and allow him to engage in a meaningful manner in all of X’s developmental milestones as opposed to the more restrictive nature of the mother’s proposal. I am not satisfied that there is evidence to support this proposal; the court child expert as canvassed above had concerns with X spending too much time away from his primary caregiver.
The mother’s proposal is that X will eventually spend three nights a fortnight with the father in one block period over an extended weekend. She does not propose that X see his father in the alternate week on a face to face basis. The mother submits that three nights a fortnight balances appropriately X having a meaningful relationship with the father with protecting him from the potential harm caused to him by being exposed to the parties’ conflictual relationship.
It was submitted on behalf of the mother that face to face mid-week time has the potential to increase conflict. The mother was clear during the course of her oral evidence that she could not see any benefit to X having mid-week face to face time with the father. It was her evidence that:-
·It is best to have a phone call conversation in the off week rather than face-to-face time as there is “a lot happening during the week and we live far away.”
·It is important for the father to be involved in X’s schooling including helping him with his homework but this could be done via FaceTime.
·The father cannot have four to five nights per fortnight during the school terms as X needs structure, consistency and stability during the school term. The mother did not agree that the father would provide the child with consistency and stability that he would enjoy in her household.
·The mother does not want the child’s schooling to be interrupted during the week as it is “a better structure for is X if it occurs just on weekends.”
·She did not agree that it was important for X to see the father regularly without gaps but conceded that spending time with the father each week is an important part of establishing a bond.
·There is benefit in the father collecting X from school midweek but this might happen later; perhaps when X is at high school.
·X has not transitioned smoothly to overnight time and he comes home tired with changed sleeping patterns. She conceded when questioned by the Independent children’s lawyer though was that this was not indication of some problem in the X’s relationship with the father but rather a change his environment and a change to his routine.
The court child expert in her oral evidence stated that having time in the alternate week can not only minimise the length of time between not seeing someone who is important in their life, it also gives opportunity for that non-lived with parent to participate in activities such as picking up the child from school and meeting the teacher. The court child expert sees a benefit in the mid-week visits being an overnight visit so as to reduce the possibility of X’s exposure to conflict between the parents with the majority of changeovers occurring at X’s school. I accept her evidence.
I accept the submissions made on behalf of the father that FaceTime or other electronic means does not provide the same level of engagement as the father would have with X on a face to face basis.
I am not satisfied that the mother during the course of her evidence was able to proffer a sound reason for X’s time with the father being restricted to once a fortnight. It is clear on the evidence that the FaceTime arrangements are not working and have caused further conflict between the parties. I am satisfied that having regard to the issues caused by FaceTime in the past, that this is not in X’s best interests. I am satisfied that it is in X’s best interests that he see the father on a face to face basis in the week that he does not see him of a weekend.
Holiday Time
It is not in issue and I accept the court child expert’s opinion that X will receive a benefit from spending relaxing time with the father during school holidays as opposed to the more structured routine that is necessary during school terms.
During the course of her oral evidence the court child expert affirmed her expert written opinion that it is beneficial for X to build up to spending one half block of school holiday periods with the each of the parties so as to give him more time to acclimatise and be comfortable with the new arrangement. The parties disagree as to the form this graduating increase in time should take.
Based on her assessment and experience the court child expert opines that an increase could occur each holiday period. Thus the April school holiday period could be used to build in one night, the July school holidays could build on another night, and the September school holidays could build in another night. This allows two things to occur. Firstly X is getting older and more used to the school routine and being away from his parents for a longer period of time. Secondly as X develops his ability to cope with that increase, his understanding of the arrangement increases at the same time.
It is the court child expert’s opinion that from the age of eight or nine years a child should be able to cope with a longer period away from that primary parent. A three-week period away from a primary parent is too long for a child prior to this time. Thus in terms of the longer school holidays in Christmas it would be in X’s best interests to have a week about arrangement during his infant school years. I accept the court child expert’s expert evidence in this regard.
The orders sought by the Independent Children’s Lawyer is consistent with the court child expert’s recommendations as X’s time with the father is incrementally increased one night each school holiday period. It allows for a trial period of an extra overnight during the school holidays prior to the next school term commencing. I will make the orders as proposed by the Independent Children’s Lawyer as I am satisfied they are in X’s best interests.
Changeover
Whilst there is dispute between the parties as to whether there are ongoing difficulties with changeovers subsequent to it occurring at a public location, by final submissions both parties agreed with the Independent Children’s Lawyer’s proposal that X’s changeover between the parties occur at a public place; being the children’s playground at McDonald’s, when not otherwise able to occur at X’s school. It was not disputed that it would be best for X to be in the play area prior to and subsequent to his moving from one party to the other for a period of time.
I am satisfied that it is in X’s best interests having regard to the conflict that has arisen at these times between the parties for changeover to occur at a specified place being the Suburb F McDonalds as this has a play area for X to play on during changeover. The court child expert gave clear and unequivocal evidence that if it was found that the presence of Ms G at changeover is a source of conflict for the parties, X’s best interests would best be met by ensuring she is not present at changeovers between the parties.
In circumstances where the presence of Ms G has in the past exacerbated the conflict between the parties, the father conceded during the course of submissions that he would not press for his current partner to be present when changeover occurs at the McDonalds. I am satisfied that this is in X’s best interests. There is no issue when changeover is to occur at X’s school as the mother should not be present during such times.
I am satisfied therefore that it will be only the parties that are to be present at changeovers of X between their households when occurring at the Suburb F McDonalds. I am satisfied that an order should be made that the father is to do all things necessary to ensure that Ms G is not present at these times.
FaceTime Calls
The mother formally seeks an order for midweek FaceTime in circumstances where she opposes X spending face to face mid-week time with the father. In her oral evidence the mother deposed that this will allow X and the father to engage in school activities together mid-week such as homework supervision although she conceded that this would be difficult to do in this format. In submissions the court was advised that the mother is not “pushing that order hard at all. In fact, there is evidence to suggest your Honour should not make that order.” This is not sought by the father or the Independent Children’s Lawyer.
Both parties agree that there has been issues with FaceTime in the past. It was the father’s evidence that such calls have not been going well since 2021. The mother’s oral evidence was that the FaceTime calls take a lot of encouragement – X knows they occur at 5:00pm and she has to “bribe him” to talk to the father as he does not want to. Both parties agree that such calls are a source of ongoing conflict between them.
The court child expert opined that a young child such as X might find it difficult to do homework with a parent over FaceTime and that it would benefit the bond between X and the father for this to be undertaken in person.
As X will be seeing the father mid-week pursuant to the orders I am not satisfied that there would be a benefit to X at this stage in having additional FaceTime as it may expose X to further conflict between his parents and I refuse to make such an order.
Communication between the Parties
Communication between the parties has caused conflict. The mother’s evidence is that the father communicates with the mother by sending numerous text messages or emails to which she does not respond to avoid conflict between the parties. The mother further deposes that on occasion where she has attempted to contact the father to discuss X’s arrangements, he is unresponsive. [19] The mother accepts that the parties have had difficulty communicating in a child focussed manner but contents that she has done “her best” to communicate in a child focused manner in the face of substantial adversity from the father’s method and manner of communicating with her.
[19] Mother’s Affidavit, paragraph 81.
It is not disputed that the parties will only communicate with each via telephone in cases of emergency. The father proposes that otherwise the parties will communicate by way of a parenting application. Both the mother and the Independent Children’s lawyer press that communication in the normal course occur by way of email or text with there to be a limit to the frequency of such communications.
Whilst submissions were made as to the parenting application the father proposes, there was no evidence as to its cost or requirements for use.
During cross examination the father acknowledged that:-
·The mother raises concerns as to the volume of material sent by him to her.
·It is in the best interests of X for him to support the mother in her care of him so that she can be the best carer she can.
·He could work on ways that he communicates with the mother with one of those ways being to possibly limit the number of emails he sends her. He would be able to limit his communication with the mother to approximately once a fortnight by way of email unless it is urgent.
·He has a tendency to tell the mother what is going to happen rather than engaging with her on an issue and he could work on the way in which he presents information to the mother.
Having regard to the father’s concessions and the lack of evidence as to the proposed parenting application, I am satisfied that limiting communication between the parties as proposed by the Independent Children’s Lawyer will assist in managing causes of conflict between the parties and is therefore in X’s best interests.
Makeup Time
The father presses an order for an order that the parties shall facilitate make-up time equal to any time missed by a party with X due to illness or misadventure within 14 days of such missed time.
The mother agreed during the course of her oral evidence to X having to make up time with the father if he was too sick to exercise his time with him, as long as it did not affect his schooling. The mother’s concern as ventilated during the course of final submissions is that it may be a tool leading to further conflict and litigation. If the court was minded to make such an order the mother submits that there needs to be more flexibility and that a period of 28 days or longer should be allowed.
I must weigh up both the potential for an order such as this to both increase and reduce conflict. I am concerned that issues may arise if X is delivered or returned to either party late as has occurred in the past and this causing a disagreement as to whether this time should then be made up. The order as sought by the father is not prescriptive and the court would not, as submitted by the Independent Children’s Lawyer, have any confidence that these parties would be able to arrange the makeup time in a sensible manner thus causing further significant conflict. Not making any orders for make-up time could potentially lead to contravention applications being filed if there is a dispute as to whether there was a reasonable excuse for X being withheld from a parent and makeup time was not built in to the current suite of orders.
Balancing all of these competing considerations, I am satisfied that the orders as sought by the father has the potential to cause significant future conflict as to their interpretation and meaning and would thus not be in X’s best interests and I refuse to make such an order.
Passport and Overseas Travel
The father seeks orders that the parties will do all things necessary to obtain both an Australian and Country C passport for X with the mother to retain the Australian passport in her possession and the father to retain the Country C passport. He further seeks orders that from Term 4, 2024 X is to be removed from the Airport Watch List and both parties be at liberty to travel with X overseas. The only limitations to such travel is that it is not to occur for more than three weeks during school holidays on one occasion each year and that the travelling party shall use their best endeavours to facilitate makeup time with X with the non-travelling parent.
The father’s submissions on this issue were restricted as a result of his limited evidence to ground the relief sought. It was submitted that there would be a benefit to X in travelling and that concerns as to his non return to Australia would apply equally to the mother.
The mother vehemently opposes the father being able to travel overseas with X to Country C. Her evidence was that she would uncomfortable and concerned that the father would not return X in circumstances where a member of the father’s father took their child overseas and “the FBI became involved.” She was not challenged on this evidence.
The issue of overseas travel requires me to assess the degree of risk, if any, of X not being returned to Australia by the father and a consideration of the appropriateness of requiring any security for X’s return: see Line & Line (1997) FLC 92-729. I am required to consider: -
·The existence or otherwise of continuing ties between the departing parent and Australia;
·The existence and strength of possible motives not to return;
·The existence and strength of possible motives to remain in the other nominated country;
·Whether the country of travel is a signatory to the Hague Convention; and
·Other section 60CC considerations as are relevant.
Whilst the court child expert’s evidence was that connection to family is always important and overseas travel would be an experience that X would benefit from, it was her opinion that this benefit would depend on a number of factors including X’s age. She agreed that it would be more appropriate that international travel was not permitted until the end of 2024.
The father proposes that there be unlimited ability to travel overseas with X as long as notification is given and that is no longer than a certain period of time. There is no evidence before the court as to the existence and strength of possible motives not to return as compared to the existence and strength of possible motives to remain in countries such as Country C. Country C is a non-Hague convention country. The existence or otherwise of continuing ties between the father and Australia is unknown in circumstances where he chose not to put evidence before the court as to the current relationship and living arrangements with his current partner. In those circumstances I cannot be satisfied that there is sufficient evidence to ground the orders sought by the father for overseas travel and I decline to make such an order.
Having regard to the above, I am satisfied that the child should be placed on the airport watch list and will make such an order. Whilst this is not an order sought by either of the parties or the Independent Children’s Lawyer I am not bound by the parties’ proposals. The issue as to overseas travel and airport watch list orders was the subject of submissions and I am satisfied that procedural fairness has been afforded to the parties in this regard. This does not in any way preclude the parties in the future agreeing for overseas travel to occur and submitting terms of settlement to the court or an application being made by either of the parties together with satisfactory evidence to enable a determination to be made.
Attendance at School and Extra Curricular Events
It is uncontested that it is in X’s best interests that both parties be permitted to attend X’s school and extra-curricular activities and similar orders are sought in this regard.
Although an issue arising during the course of the hearing as to the possible attendance at these events by Ms G, neither party nor does the Independent Children’s Lawyer seek any injunctive orders in this regard.
It was the court child expert’s clear and unequivocal evidence that if the presence of Ms G at extra-curricular activities and school events causes an increase in tension and conflict between the parties then she should not attend as this is not in X’s best interests.
The father accepted during the course of the hearing that having his current partner attend such events when the mother was present could cause her some discomfort. He gave evidence that he would check prior to such events occurring to ascertain if the mother was attending and if she was, then Ms G would not attend. The mother to her credit accepted that whilst this might cause her some discomfort, Ms G will have a role to play in X’s life and that her discomfort must be kept separate from X. She will engage in counselling if required to assist her in this regard.
Whilst not specifically sought, this issue was clear during evidence and submissions were made. I am conscious of balancing the risk to X of being exposed to further conflict as against Ms G potentially having a long term and important role to play in X’s life. The evidence of course with respect to Ms G is non-existent as outlined earlier in these reasons. I am satisfied that for a period of 18 months Ms G should not be in attendance at any of X’s other extracurricular activities if the mother is to be there so as to minimise the potential for conflict, and orders will be made in that regard together with an order that the father do all things necessary to ensure that Ms G does not approach the mother at these times.
The Purchase of a Motor Vehicle
Counsel for the mother appropriately did not press in any meaningful manner the order sought by her that X’s progression of time with the father would be dependent upon his purchase of a separate motor vehicle to that shared with his current partner so as to transport X to and from school.
No submissions were made as to the head of power relied upon to ground the order sought by the mother. I am not satisfied that I have the power to make such an order. Even if I did, I am not satisfied the mother has met the onus she bears to satisfy me that such an order is in X’s best interests. I refuse to make the order as sought.
Relocation Injunctive Order
The father seeks an order restraining the parties from relocating outside of the Region W Sydney. This is opposed by the mother. The Independent Children’s Lawyer did not wish to be heard on this issue.
The father submitted that the order should be made to ensure that an order that X spend five nights a fortnight with the father is not rendered ineffective if the mother was to relocate outside the Region W Sydney. If orders were made more aligned with the mother’s proposal, the order should still be made as it is not in X’s best interests to be driving long distances to and from school. It was further submitted that the making of such an order would make it less likely to be the further institution of further proceedings.
There is no evidence that either of the parties are proposing to relocate. The father is, in effect, seeking to “build in’ enforcement of orders made as to the time X is to spend with him. There is no evidentiary foundation to ground the relief sought by the father and I refuse to make it. In the event a party’s proposed relocation in the future renders the orders made impractical or not in X’s best interests then an application can be made to the court in the normal course.
Order re providing X’s belongings
The father pressed for an order requiring the return of X’s items purchased by that parent and submitted that it is better for more prescriptive orders to be made. The order is opposed by the mother who submits that: “it’s going to be a tool for tyranny, rather than for good.”
In circumstances where the court child expert opined that if the court found the parties have a highly conflictual relationship this would potentially exacerbate such conflict, I am not satisfied the father has met his evidentiary onus of establishing that such an order is in X’s best interests and it will not be made.
Further Orders
It is not disputed that it is in X’s best interests that orders be made that:-
·Each parent will keep the other informed as to their email address, residential address and mobile number and any changes to same;
·Each parent is retrained from denigrating the other parent or any member of the parent’s household to or in the presence of the child;
·Each parent is restrained from physically disciplining the child;
I will make such orders as I am satisfied on the evidence that they are in X’s best interests.
CONCLUSION
It is hoped that the hearing has enabled each of the parties to reflect and reach an understanding of the effect of their actions both upon the other party and on X. X clearly has an established loving relationship with each of his parents. Each of the parties, whilst in the past at times adopting a rigid and limited view on how X should be parented, love X and both have a positive contribution to make to his upbringing and care. It is not for X to have to verbalise his need for a relationship with each of his parents. This court has clearly found that these relationships are in X’s best interests. The parties must develop a more holistic understanding of X’s needs which importantly includes not being exposed to conflict between his two loved caregivers.
Having regard to my findings of fact and discussion above, I will make orders largely as sought by the Independent Children’s Lawyer as I am satisfied that they are in X’s best interests.
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 2 February 2023
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