Gallion & Kaplin
[2024] FedCFamC2F 621
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gallion & Kaplin [2024] FedCFamC2F 621
File number(s): MLC 3557 of 2022 Judgment of: JUDGE GLASS Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – PARENTING – arrangements for two year old child to spend with her father – allocation of parental responsibility Legislation: Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61C, 61CA, 61DA, 65DAC, 70NAD
Family Law Amendment Act 2023 (Cth), sch 1, items 12, 25
Cases cited: Boyle & Zahur & Anor (2017) FLC 93-814
Denham & Newsham (2021) FLC 94-043
Eastley & Eastley (2022) FLC 94-094
French & Fatala [2014] FamCAFC 57
Maclean & Greenwood (2022) FLC 94-117
Muldoon & Carlyle (2012) FLC 93-513
Oberlin & Infeld (2021) FLC 94-017
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 90 Date of hearing: 29-30 January 2024 & 9 May 2024 Place: Melbourne Counsel for the Applicant: Self-Represented Litigant Counsel for the Respondent: Mr Moore Solicitor for the Respondent: Wightons Lawyers ORDERS
MLC 3557 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GALLION
Applicant
AND: MS KAPLIN
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
Amended pursuant to sub-rule 10.13(h) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
1.All previous parenting Orders in relation to X born in 2021 be discharged.
2.X live with the Mother.
3.X spend time with the Father as agreed and failing agreement as follows:
(a)from the date of these Orders:
(i)each Tuesday from 12.00pm until 5.00pm;
(ii)each Thursday from 8.00am until 12.00pm in the event the Father is able to make appropriate arrangements with his employer or, in the event the Father is unable to make appropriate arrangements for time to occur on a Thursday, then such time shall otherwise occur on a Friday; and
(iii)each alternate weekend from 8:30am Saturday until 12.00pm Sunday;
(b)from 30 September 2024:
(i)each Tuesday from 12.00pm until 5.00pm;
(ii)each Thursday from 8.00am until 12.00pm in the event the Father is able to make appropriate arrangements with his employer or, in the event the Father is unable to make appropriate arrangements for time to occur on a Thursday, then such time shall otherwise occur on a Friday; and
(iii)each alternate weekend from 8:30am Saturday until 5.00pm Sunday;
(c)from 30 March 2025:
(i)each Tuesday from 12.00pm until 8:00am Wednesday; and
(ii)each alternate weekend from 8:30am Saturday until 5.00pm Sunday, extending to 8:00am Monday in the event Monday is a public holiday;
(d)from 30 September 2025:
(i)each Tuesday from 12.00pm until 8:00am Wednesday; and
(ii)each alternate weekend from 8:30am Saturday until 8:00am Monday;
(e)from 1 January 2027:
(i)during school term:
A.each Tuesday from after school (or 12.00pm if a non-school day) until before school (or 8:00am if a non-school day) Wednesday; and
B.each alternate weekend from after school (or 3:00pm if a non-school day) Friday until before school (or 8:00am if a non-school day) Monday;
(ii)during school holidays commencing in 2027 each alternate week from 3:00pm on the Friday when X would otherwise commence her weekend time with her father until 3:00pm the following Friday;
(iii)during school holidays commencing in 2028:
A.for one half of the regular school term holidays at such times as the parents may agree in writing and in default of agreement the first half in odd numbered years and the second half in even numbered years; and
B.for one half of the long summer holidays at such times as the parents may agree in writing and in default of agreement the first half in odd numbered years and the second half in even numbered years.
4.Notwithstanding anything contrary in these Orders, X spend time with each parent on special occasions agreed, and failing agreement, as follows:
(a)for Christmas:
(i)X spend time with the Mother in even years from 12.00pm Christmas Eve until 3.00pm Christmas Day;
(ii)X spend time with the Father in even years from 3.00pm Christmas Day until 12.00pm Boxing Day;
(iii)X spend time with the Father in odd years from 12.00pm Christmas Eve until 3.00pm Christmas Day; and
(iv)X spend time with the Mother in odd years from 3.00pm Christmas Day until 12.00pm Boxing Day;
(b)for Easter:
(i)X spend time with the Father in even years from 4:00pm Good Friday until 3.00pm Easter Saturday;
(ii)X spend time with the Mother in even years from 3:00pm Easter Saturday until 4:00pm Easter Sunday;
(iii)X spend time with the Mother in odd years from 4:00pm Good Friday until 3.00pm Easter Saturday; and
(iv)X spend time with the Father in odd years from 3:00pm Easter Saturday until 4:00pm Easter Sunday;
(c)for X’s birthday:
(i)X spend time with the Mother in even years from 5.00pm the day before X's birthday to 12.00pm on X's birthday;
(ii)X spend time with the Father in even years from 12.00pm on X's birthday until 8.30am the following day;
(iii)X spend time with the Father in odd years from 5.00pm the day before X's birthday to 12.00pm on X 's birthday; and
(iv)X spend time with the
FatherMother in odd years from 12.00pm on X's birthday to 8.30am the following day;
(d)on Father's Day X spend time with the Father from 3.00pm the day preceding Father's Day until 3.00pm Father's Day; and
(e)on Mother's Day X spend time with the Mother from 3.00pm the day preceding Mother's Day until 3.00pm Mother's Day.
5.Unless otherwise agreed between the parties in writing, save for changeovers that occur at X’s childcare, kindergarten or school, changeovers take place at Suburb C McDonald’s.
6.X be permitted to telephone or video call either parent if reasonably requested, and the parent with whom she is with will facilitate such call via an agreed video calling application.
7.The parties shall do all such acts to download the "AppClose" parenting app (or such other agreed application) and thereafter the parties shall use such parenting app to communicate in relation to any issues pertaining to X.
8.The parties do all such acts and things and sign all such documents to consent and authorise any childcare, kindergarten or school at which X attends from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent teacher interviews and other information relating to X’s education to both parents at their own expense.
9.The Father be authorised to access the B Application or any other parent information application used by X’s childcare, kindergarten or school, relating to X’s education.
10.The parties both be permitted to attend all childcare, kindergarten and school activities normally attended by parents, including but not limited to school concerts, school plays, excursions and parent-teacher interviews.
11.The parties do all such acts and things required to list the Father as secondary contact at any childcare, kindergarten or school at which X attends.
12.The parties shall immediately (or as soon as is reasonably practicable) inform the other of any serious injury or illness sustained by X whilst in their care and further provide any particulars of any treatment required or received by X together with the names and addresses of the treatment provider and/or the location at which X is a patient.
13.Each parent be authorised to liaise with and obtain information in relation to X from any medical and/or allied health professional X attends upon and each parent give all necessary consents and authority to enable the other party together with the names and addresses of the treatment provider and/or the location at which the child is a patient.
14.The parties shall each make available to the other any medication prescribed for X to enable the other party to administer such medication to X and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom X is living or spending time.
15.Without admitting the necessity for same, the parties, their servants and/or agents be and are hereby restrained from:
(a)denigrating the other parent to or in the presence of or hearing of X or allowing any third person to engage in such a conduct in the presence of or hearing of X;
(b)physically disciplining X;
(c)verbally abusing X; and
(d)discussing the family law proceedings, or intervention order proceedings or child support issues with X in the presence of or hearing of X.
16.The Father be restrained from bringing X into contact with or leaving X in the care of Ms D or Mr E without the Mother's written consent.
17.Each party be at liberty to provide a copy of these Orders to any childcare, kindergarten or school X attends and any of X’s treating medical or health practitioners.
18.All extant applications be 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
X was born in 2021 and is now two years old. Her parents separated in early 2022, when she was approximately six months’ old.
It is agreed that X will continue to live primarily with her mother, Ms Kaplin.
X’s father, Mr Gallion, proposes that X spend time with him for three nights each fortnight, gradually increasing to week about time at the end of 2026, when X will be five years old. The particulars of his proposal are contained in his Amended Initiating Application filed 8 January 2024, as amended orally during the hearing.
Ms Kaplin proposes that X spend time with Mr Gallion for one night each fortnight, increasing to two nights per fortnight in March 2026. She proposes the parties thereafter attend dispute resolution to discuss future changes to arrangements for X. The particulars of her proposal are contained in her Further Amended Response filed 16 January 2024 as amended during her Counsel’s opening address.
The parties rely on the documents referred to in their Outlines of Case.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). Because this final hearing commenced prior to amendments to that Part, which commenced on 6 May 2024, those amendments are essentially inapplicable.[1]
[1] Family Law Amendment Act 2023 (Cth), sch 1, items 12 and 25.
I am guided by the objects of that Part and the principles underlying those objects.[2] X’s best interests are the paramount consideration.[3] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
PRIMARY CONSIDERATIONS
[2] Family Law Act 1975 (Cth), s 60B.
[3] Family Law Act 1975 (Cth), s 60CA.
The benefit to X of having a meaningful relationship with both of her parents
It is common ground that X will continue to reside primarily with Ms Kaplin and spend increasing time with Mr Gallion. Ms Kaplin proposes that the current time of one overnight each alternate weekend and four to five hours on two weekdays essentially continue until March 2026, when the alternate weekend time is proposed to increase to two nights. Mr Gallion proposes that X’s time with him extend immediately to three nights per fortnight, increasing to four nights each fortnight in March 2025, five nights per fortnight in September 2025, and seven nights per fortnight from December 2026.
The Family Report writer, Consultant Ms F, opines that increasing X’s time with her father will allow him to be more actively involved in her life and future extracurricular activities. It would “also undoubtedly enable [X] and her father to develop a more meaningful relationship”, and support “[X]’s identity, her sense of belonging and [her] connection to paternal family (particularly her half-siblings)”.[4] Absent any effective challenge to that evidence, I find that X will benefit from the development of more meaningful relationship with her father. I also accept Consultant Ms F’s evidence that the “nature and quality” of X’s time with her father will be crucial.[5]
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[4] Family Report of Ms F dated 28 July 2023 (“Family Report”), paragraph 82.
[5] Family Report, paragraph 84.
It is not contended by either party that the other poses an unacceptable risk of harm in the relevant sense to X. Both propose that X live with Ms Kaplin and spend unsupervised overnight time with Mr Gallion. I am not satisfied that the need to protect X from statutorily prescribed harm leads to a conclusion that X’s time with her father should increase in a more limited fashion.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as her maturity or level of understanding) that are relevant to the weight to be given to her views
X is now two years old. In July 2023, Consultant Ms F opined that given her young age, she was “too young to articulate her wishes and views in this matter”.[6] Neither party now contends otherwise. I am not satisfied any weight ought now be given to any views expressed by X.
The nature of X’s relationships with each of her parents and other people, including any grandparent or other relative
[6] Family Report, paragraph 80.
In the opinion of Consultant Ms F, X “demonstrated a strong and secure attachment to both parties”.[7] She observed X to have “transitioned easily between both her parents, and she did not show any distress or concern at moving between the care of either party.”[8]
[7] Family Report, paragraph 80.
[8] Family Report, paragraph 65.
In terms of X’s relationship with her mother, Consultant Ms F reports that “X appeared to be extremely confident and settled with her mother”,[9] and “appeared extremely comfortable with reciprocal displays of overt and covert signs of affection between them.”[10]
[9] Family Report, paragraph 66.
[10] Family Report, paragraph 67.
With respect to X’s relationship with her father, Consultant Ms F observed X “to seek close physical proximity”[11] to him. She considers X “appeared to be extremely confident and settled with her father.”[12]
[11] Family Report, paragraph 68.
[12] Family Report, paragraph 68.
Absent any relevant challenge to Consultant Ms F’s evidence, or submission to the contrary, I find X to be strongly and securely attached to, and confident and settled with, both parties.
Mr Gallion has two older children, G and H, who are now aged 11 and 8 years old respectively. They live with their mother in Town J, near City K, and spend time with him each alternate weekend, as well as for half school holiday periods. He gives evidence that G and H’s mother has been accommodating and flexible, and has supported the children’s time with X where possible. He gave evidence that they have an amicable coparenting relationship. Ms Kaplin suggested to him that such a characterisation was wildly optimistic having regard to Departmental records from 2019, which suggestion was credibly denied by him. I accept Mr Gallion’s evidence, which was not contradicted by Ms Kaplin.
Ms Kaplin has an older son, L, who is now six years old. He lives primarily with his father, and currently spends five nights per fortnight with Ms Kaplin. He will commence spending equal time with each of his parents next year.
It is not suggested that X’s relationship with her half-siblings is anything other than loving and appropriate.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to her, to spend time with her, and to communicate with her
It is not suggested that either parent has failed to take opportunities to participate in making major long-term decisions in relation to X, spending time or communicating with her.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain her
It is common ground that Mr Gallion pays child support as administratively assessed.
The likely effect of any changes in X’s circumstances, including the likely effect on her of any separation from either of her parents, or any other child or other person, including grandparent or other relative, with whom she has been living
Consultant Ms F considers that X “clearly views her mother as a safe base, given she has been her primary caregiver and thus [her] main attachment figure during the early years of [her] life.”[13] She considers that “any disruption or sudden alteration to this arrangement has the potential to impact upon [X]’s sense of emotional security, her psychological well-being and the quality of her relationships with her parents.”[14] I accept that opinion which was not the subject of any challenge.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
[13] Family Report, paragraph 83.
[14] Family Report, paragraph 83.
Mr Gallion lives in Suburb M and Ms Kaplin lives in Suburb N. Ms Kaplin deposes to the parties living approximately 25 to 35 minutes from each other. Mr Gallion does not claim otherwise. There is no suggestion of any practical difficulty or expense in X being able to spend time and communicate with each of her parents.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of hers, to provide for her needs, including emotional and intellectual needs
Consultant Ms F opines that Ms Kaplin “seemed to be highly attuned to [X]’s needs across all domains of parenting”,[15] “appeared particularly aware of [X]’s emotional needs” and “demonstrated a high level of attunement to [X]’s well-being.”[16] She reports that “[Ms Kaplin] was observed to be a highly attuned and responsive parent; she reacted appropriately to [X]’s cues, and [X] responded by evidencing a high level of confidence, closeness and happiness in all interactions with her mother.”[17] She also reports that she has no information “to suggest that [Ms Kaplin]’s mental health may currently impact negatively upon her care of [X]”.[18] Her evidence in those respects was not the subject of any successful challenge and I accept it, noting that it is common ground Ms Kaplin will remain X’s primary caregiver in the short and medium term.
[15] Family Report, paragraph 24.
[16] Family Report, paragraph 54.
[17] Family Report, paragraph 67.
[18] Family Report, paragraph 76.
Consultant Ms F reports that Mr Gallion “struggled to see the perspective of others”.[19] His evidence to the Court was consistent with that conclusion. His evidence attributed unfounded motivations on Ms Kaplin.
[19] Family Report, paragraph 74.
In early 2022, Ms Kaplin made an application for an Intervention Order. In early 2022, Mr Gallion’s Initiating Application to this Court was accepted for filing. It was served on Ms Kaplin in early 2022. Despite that uncontroversial chronology, Mr Gallion deposes as follows:
In response to this application for Parenting Orders, [Ms Kaplin] made false allegations of family violence about me to both Court[s], in order to attempt to deny access to our daughter, which she had repeatedly threatened to do as part of her emotional and psychological abuse towards me, and place herself in a position of power and control in regards to making parenting arrangements for our daughter.[20]
Mr Gallion clarified in oral evidence that the claimed emotional and psychological abuse was Ms Kaplin’s threat that he would never see his daughter again.
[20] Affidavit of Mr Gallion filed 8 January 2024, paragraph 40.
It is clear that Ms Kaplin did not, and could not have, made her application for an Intervention Order “in response to” Mr Gallion’s parenting application with which she had not yet been served.
Mr Gallion orally sought to explain his evidence by asserting that he was previously unaware of the date on which Ms Kaplin had made her application for an Intervention Order. That explanation is inconsistent with his own chronology in which he asserts that he was advised in early 2022 that an Intervention Order had been granted against him and he attended the City O Police Station to collect a copy of it.[21]
[21] Mr Gallion’s Outline of Case filed 27 January 2024, page 2.
Mr Gallion’s quoted evidence also erroneously attributes to Ms Kaplin an intention to “attempt to deny access to our daughter”. Her application successfully sought exceptions to the Interim Intervention Order which permitted X to spend time with her father in accordance with an order or written agreement, as well as permitting the negotiations of such arrangements. Mr Gallion gave oral evidence that such agreements would have been required regardless of the Intervention Order.
Consultant Ms F also opined that “[Mr Gallion]’s understanding of behaviour and attitudes which may constitute family violence were noted to be substantially lacking”.[22] His evidence to the Court was consistent with that opinion. Family violence is defined to include behaviour that causes a family member to be fearful.[23]
[22] Family Report, paragraph 74.
[23] Family Law Act 1975 (Cth), ss 4AB(1).
In early 2022, Police attended the parties’ home. Mr Gallion gives evidence that the Police “assessed this incident as relating to child custody issues and not family violence”.[24] In support of that contention, he annexes a Victoria Police “Family Violence Report”.[25] He seeks to rely on the contents of the report which state “verbal dispute, nil violence, threats or property damage”. [26] However, crucially, the report records “this incident was verbal only with civil action advised” and that Ms Kaplin was “in fear”.[27] It is also recorded that the Police Informant was to make an application for an Intervention Order “to protect” Ms Kaplin from “further” family violence.[28] The Police Report does not establish Mr Gallion’s assertion that the Police concluded the incident was not family violence.
[24] Affidavit of Mr Gallion filed 8 January 2024, paragraph 43.
[25] Affidavit of Mr Gallion filed 8 January 2024, Annexure B.
[26] Affidavit of Mr Gallion filed 8 January 2024, Annexure B.
[27] Affidavit of Mr Gallion filed 8 January 2024, Annexure B.
[28] Affidavit of Mr Gallion filed 8 January 2024, Annexure B.
In oral evidence, Mr Gallion sought to further explain his evidence by reference to a report from the Department of Families, Fairness and Housing, in which it is reported that the “incident was assessed as relating to child custody issues and [Ms Kaplin] left the home with [X] while Police were in attendance”.[29] He ignores other aspects of that report, including that he had “become verbally aggressive”.[30] Further, as he conceded in oral evidence, there is no basis in that report for concluding that the incident was assessed by Police as being “not family violence”, as he deposes to.
[29] Department of Families, Fairness and Housing section 67Z Report dated 7 June 2022, page 7.
[30] Department of Families, Fairness and Housing section 67Z Report dated 7 June 2022, page 7.
Not only does Mr Gallion’s evidence misconstrue the objective evidence on which he relies to support his conclusion, it denies the clear report by Ms Kaplin that she was in fear as a result of his behaviour. He concedes that he would not allow her to leave the home with X on that occasion. Mr Gallion’s evidence demonstrates both an inability to see Ms Kaplin’s perspective, and also a misapprehension of the nature of family violence.
Nevertheless, Mr Gallion has acted upon Consultant Ms F’s recommendation that he undertake a Circle of Security program, which program she considers will assist him recognise and gain an understanding of X’s emotional needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of her parents, and any other relevant characteristics of X
Ms F observed that “[X] presented as a bright and alert child, who readily engaged with both parties and appeared comfortable in their respective presence.”[31] She opines that X appears “to be developing in alignment with expectations of her age and stage of development” and “presented as being assertive and self-assured in the presence of both her parents, and she was confidently able to articulate her needs and feelings, in both a verbal and non-verbal manner.”[32] She considers that slight increases in X’s time with her father will support X holding Mr Gallion in her mind on “a more gradual yet consistent basis”.[33] I accept that unchallenged evidence.
If X is an Aboriginal child or a Torres Strait Islander child, her right to enjoy her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
[31] Family Report, paragraph 65.
[32] Family Report, paragraph 12.
[33] Family Report, paragraph 84.
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of her parents
Ms F observes that Mr Gallion was “occasionally disparaging of [Ms Kaplin] and her parenting of [X]”, and that he “conveyed an impression of himself as being without reproach, and he struggled to demonstrate adequate insight or responsibility for his role in the deterioration in the parental relationship”.[34] She considers that he was unable in reality to demonstrate his “flexibility and negotiability in terms of progressing spend time arrangements with [X]”.[35]
[34] Family Report, paragraph 22.
[35] Family Report, paragraph 23.
By contrast, Consultant Ms F observed that Ms Kaplin “demonstrated good insight and a capacity for introspection when considering patterns of behaviour and dynamics within her relationship with [Mr Gallion].”[36] In Consultant Ms F’s view, she “presented as being supportive of [Mr Gallion]’s ongoing relationship with [X], though she was vague as to how she could support this given her expressed mistrust of [Mr Gallion].”[37] Further, she “presented as being authentic in her commitment to [X] and to promoting her best interests.” [38]
[36] Family Report, paragraph 24.
[37] Family Report, paragraph 25.
[38] Family Report, paragraph 25.
Nevertheless, Consultant Ms F observed that:
[Ms Kaplin] showed some understanding of her previous poor mental health, and the consequence of this upon her willingness to allow [X] to spend time with her father. [Ms Kaplin] presented with a level of anxiety and a need to control her environment and familial dynamics. [Ms Kaplin] also struggled to accept that [X] will be unable to develop a meaningful relationship with her father if she is only able to spend time with him in small increments over the coming years.[39]
[39] Family Report, paragraph 55.
Despite the passage of time since the release of the Family Report, Ms Kaplin was regrettably unable to conceive of any significant increase in X’s time with her father by the conclusion of the final hearing. It is also regrettable that the parties have been unable to improve their interactions in the “co-operative and congenial manner, regardless of their thoughts or feelings about the other party” which was opined by Consultant Ms F to be “crucial”.[40] The parties’ co-parenting relationship seems to be no further advanced from when the parties saw Consultant Ms F, and it is also regrettable that Ms Kaplin was unable to identify any strategies for its improvement in her oral evidence.
[40] Family Report, paragraph 75.
Ms Kaplin devoted significant forensic attention to an email sent by Mr Gallion to her solicitors in January 2024, on the Wednesday afternoon prior to the commencement of the final hearing the following Monday. In that email, he indicated that he would be “seeking primary care of [X] due to [Ms Kaplin]’s demonstrated inability to support and facilitate a meaningful relationship for [X] with myself and her extended family and the negative affect this has on [X]”.[41] Mr Gallion acknowledged he was responding to Ms Kaplin’s proposal which he felt was unfair. He denied intending to cause Ms Kaplin distress or anxiety, although accepted that would be a possible outcome. Certainly Mr Gallion’s email was unhelpful, and he acknowledges he could do better, but I am not satisfied it is a matter of particular significance in the determination of these proceedings.
[41] Exhibit R1.
Ms Kaplin has also communicated with Mr Gallion in inappropriate ways that she regrets. She accepts that by accusing Mr Gallion of not caring about X and being solely motivated to spend time with her because of G, she was upset and not managing her anger or communication effectively.
Any family violence involving X or a member of her family
Despite neither party alleging that X is now at unacceptable risk of family violence in the other’s care, both parties have previously engaged in family violence.
In around 2019, Ms Kaplin assaulted L’s father in L’s presence. She admitted in oral evidence that she has been emotionally and verbally abusive towards Mr Gallion.
Consultant Ms F opines that:
… it seems undeniable that [X] has been exposed to substantial violence across all domains, which was perpetrated against her mother. This violence was apparently characterised by physical, sexual, emotional, economic, psychological and social forms of abuse, which reportedly began in the first year of the relationship and escalated during [Ms Kaplin]’s pregnancy with [X]. [Ms Kaplin]’s allegations appear consistent with information provided by [Mr Gallion]’s ex-wife during previous proceedings. Given the similarity of information reported by [Ms Kaplin] and [Mr Gallion]’s ex-wife, [Ms Kaplin]’s reports of family violence perpetrated by [Mr Gallion] potentially need to be given some credence.[42]
[42] Family Report, paragraph 72.
I ultimately do not consider it necessary to resolve disputed allegations of family violence in the parties’ relatively brief relationship that concluded more than two years ago. Neither Consultant Ms F, nor Ms Kaplin, contended that the history of family violence is of particular significance to what future parenting orders are now in X’s best interests.
Mr Gallion gives unchallenged evidence that he has addressed concerns about his use of family violence by participating “in a number of programs, the men’s behavioural change program, parenting programs, post-separation programs, men’s violence against women programs, counselling for a couple of years”.
If a family violence order applies, or has applied, to X or a member of her family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
In 2019, an Intervention Order was made to protect H and G’s mother from Mr Gallion. The order was made by consent.
As has been observed, in early 2022, Ms Kaplin applied for an Intervention Order against Mr Gallion. An ex-parte interim Order was made. The proceedings were resolved by way of an Undertaking.
I was not asked to draw any inferences from the making of those Orders, and I decline to do so.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
Ms Kaplin seeks an order in the following terms:
Prior to [X]'s commencement of Prep but no earlier than [early] 2026 and no later than [late] 2026, the parties engage in dispute resolution to discuss any change to the Father's spend time arrangements, school holiday arrangements and travel arrangements with [X], with such dispute resolution to be undertaken at the joint expense of the parties.[43]
[43] Ms Kaplin’s Further Amended Response filed 16 January 2024, paragraph 3.
Mr Gallion questions the basis on which it could be suggested the parties will be able to mediate successfully in the future. Whilst the parties have reached interim agreements during the course of these proceedings, they have been unable to finally agree on parenting arrangements for X. I consider the prospect of them reaching further agreements in two years’ time to be low. If I make the order sought by Ms Kaplin, there is accordingly an increased likelihood of the institution of further proceedings.
Although Consultant Ms F was hesitant to make firm recommendations for appropriate arrangements upon X commencing school given her young age, I consider it preferrable for X to have the benefit of long-term parenting orders now being made. It will minimise the risk of further conflict between her parents, which conflict is itself contrary to her best interests. Consultant Ms F also considers there to be a risk of a deterioration in Ms Kaplin’s mental health in the event of further disputation about X’s care arrangements.
Despite it being consistent with Consultant Ms F’s recommendation, I decline to grant the relief sought by Ms Kaplin. I find X’s bests interests to be served by a final determination of the dispute. That is of course not to say that circumstances may not change significantly such that those arrangements ought be revisited in the future.
Any other relevant fact or circumstance
Not applicable.
PARENTAL RESPONSIBILITY
Although both parties initially contended that they should have equal shared parental responsibility for X, Ms Kaplin ultimately sought sole parental responsibility for X, subject to giving Mr Gallion prior notice of any decision she intends to make and considering his views in relation to the decision.[44] Although he expressed some prevarication during his evidence, Mr Gallion maintained that the parties should have equal shared parental responsibility for X. I afforded both parties the opportunity to address the possibility of no order being made allocating parental responsibility.
[44] Exhibit R2.
It is presumed to be in X’s best interests for her parents to have equal shared parental responsibility for her.[45] The effect of such an order is that the parties are required to make joint decisions in relation to major-long term issues relating to X, to consult with each other and make a genuine effort to come to a joint decision about such issues.[46] I am not satisfied that the parties can or would comply with those mandatory requirements in light of their conflict and lack of cooperation.[47]
[45] Family Law Act 1975 (Cth), s 61DA.
[46] Family Law Act 1975 (Cth), s 65DAC.
[47] Boyle & Zahur & Anor (2017) FLC 93-814 at [22].
Consultant Ms F opines that there is “currently minimal communication between” the parties.[48] The evidence before the Court is consistent with that conclusion. Neither party contended otherwise.
[48] Family Report, paragraph 63.
The parties were unable to effectively communicate in relation to their preferences for X’s education. Ms Kaplin proposed a change in childcare centre in 2023, but failed to advise Mr Gallion of the location of the proposed new childcare centre. I reject the criticism sought to be made of Mr Gallion in cross-examination for failing to enquire further into Ms Kaplin’s proposal. On the other hand, Mr Gallion amended his proposal for X’s schooling during his opening address. He conceded that he had not communicated his change of proposal to Ms Kaplin at any prior point in time.
I am satisfied that it is not in X’s best interests for her parents to have equal shared parental responsibility for her.[49]
[49] Family Law Act 1975 (Cth), ss 61DA(4).
By virtue of her proposal, Ms Kaplin proposes that Mr Gallion be deprived of parental responsibility with which he is invested by law.[50] Consultant Ms F orally expressed her concerns about Ms Kaplin’s proposal as follows:
I’ve always got concerns about one party being excluded from decision making, I guess particularly when there has been a pattern of the other party not being included in decision making. I’m also not entirely sure that if the mother in this matter had sole parental responsibility and she was ordered to include the father in decision making beforehand or to advise him of decisions made afterwards, I’m not entirely sure that that would happen.
[50] Family Law Act 1975 (Cth), s 61C.
Whilst Ms Kaplin proposes to be bound by an order that requires her to consult in relation to the making of major long-term decisions for X, I am also satisfied that she may not do so given her past failures to comply with the Court’s Orders. Ms Kaplin admitted that she has failed to comply with Orders that provide for X to have makeup time with her father in the event she does not spend time with him due to illness.
As I canvassed with the parties, one option would be to make no order with respect to the allocation of parental responsibility. As Ms Kaplin’s Counsel correctly submits, that would now leave the parties in the position of being encouraged, where it is safe to do so, to consult with each other about major long-term issues in relation to X, and have regard to her best interests as the paramount consideration.[51] I am satisfied that encouragement, whilst not amounting to an enforceable obligation, is consistent with X’s best interests in light of the parties’ inability to meaningful interact to make joint decisions about major long-term issues affecting her.
[51] Family Law Act 1975 (as amended from 6 May 2024), s 61CA, Family Law Amendment Act 2023 (Cth), sch 1, item 25(2).
I am not satisfied that X’s best interests are now served by Ms Kaplin being solely authorised to make final decisions for her.
Mr Gallion did not pursue the order sought in his Amended Initiating Application for X’s childcare not be changed without written agreement between the parties.
Mr Gallion proposes that the parties do all things necessary to enrol X at P School, Suburb Q. His Amended Initiating Application filed on 8 January 2024 proposed that she attend R School for both primary and secondary schools. His position was amended in opening address.
The evidence Mr Gallion adduces in support of the order sought for X to attend P School is that given L will be attending that school, it “would make sense” for Ms Kaplin to be able to drop X and L “off in the same area before going to work instead of making multiple trips”.[52] Further, he deposes to supporting X attending the same school as L “so that the children can share in the same school community”.[53]
[52] Affidavit of Mr Gallion filed 22 January 2024, paragraph 55.
[53] Affidavit of Mr Gallion filed 22 January 2024, paragraph 55.
Mr Gallion gave oral evidence he had made no enquiries of P School prior to the commencement of the hearing. He adduced no evidence of the fees associated with X attending P School. That omission is significant in circumstances where he proposes both parties equally pay the associated fees. Ms Kaplin’s unchallenged evidence is that she cannot financially afford the fees associated with R School kindergarten or College, or private school education generally. I accordingly cannot be satisfied that it is financially viable for X to attend P School. I am accordingly unable to conclude that her attendance at that school is in her best interests.
CONCLUSIONS
Consultant Ms F opines that “it is clearly in [X]’s best interests to live primarily with her mother”.[54] The evidence of a suitably qualified expert, based on appropriate foundation, carries substantial weight.[55] Neither party challenged Consultant’s Ms F expertise to offer the opinions she does, nor the foundation for any of her opinions. I am accordingly satisfied that her evidence ought be given substantial weight.
[54] Family Report, paragraph 84.
[55] Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases there cited.
Whilst it is well established that I am not obliged to act on Consultant Ms F’s recommendations,[56] departure from them requires explanation.[57] Ms Kaplin submits that I am in a better position to make the relevant assessment given the passage of time since Consultant Ms F’s report. I am not satisfied that the passage of time logically leads to any reduction in the weight that I am satisfied ought be accorded to her report. Neither party provided an any explanation for why they contend I ought to depart from Consultant Ms F’s recommendations.
[56] Vigano & Desmond (2012) FLC 93-509 at [79]; French & Fatala [2014] FamCAFC 57 at [31].
[57] Denham & Newsham (2021) FLC 94-043 at [35] and the cases there cited; Maclean & Greenwood (2022) FLC 94-117 at [33].
Mr Gallion submits that his proposal for week about time is “something to be considered in due course”, and that he thinks the parties “should both be able to be involved in [X]’s life, school and extracurricular activities in a way that supports her”. I am not satisfied that it is now in X’s best interests for an order to be made for week about time in December 2026. Mr Gallion did not directly raise the prospect of progressing to an equal time arrangement with Consultant Ms F, and such an outcome is contrary to her recommendation that X remain living primarily with Ms Kaplin. I accept Consultant Ms F’s recommendation that X’s primary living arrangement should remain undisturbed. I reach that conclusion despite her recommendation that there should be no progression “beyond [X] spending every second weekend with [Mr Gallion] and one overnight each week” until X commences primary school.[58] She proposes family therapy or mediation to negotiate arrangements thereafter. I have not accepted that proposal for reasons already given.
[58] Family Report, paragraph 92.
Mr Gallion proposes that X spend time with him as agreed, and failing agreement, in accordance with a specified regime. Ms Kaplin proposes that X spend time with her father at specified times, or at such other times as may be agreed. I prefer Mr Gallion’s proposal which makes it clear that the parties are at liberty to reach alternative agreements in relation to X’s care, and that the Court Orders provide a default position in the event no such agreement is reached. That is important given X’s young age and the numerous changes that will inevitably occur in her life into the future.
Ms Kaplin sought to bring to the Court’s attention the pattern of weekends in closing address. There was no dispute between the parties as to who has been responsible for X’s care on particular weekends. I am not satisfied it is necessary for the Court’s Orders to specify the rotation of weekends given that agreement. No such proposal was formally advanced by either party.
Consultant Ms F recommends that the time specified in the interim Orders made 7 March 2023 continue until 30 September 2024. Those interim Orders currently provide for time for four or five hours on two mid-week occasions, and one overnight each alternate weekend. I am satisfied that recommendation is in X’s best interests, as it provides regular and frequent time with her father and continues to afford X the opportunity to spend overnight time with him. Mr Gallion has not satisfied me that an immediate progression to three nights per fortnight is in X’s best interests, contrary to Consultant Ms F’s recommendation.
Consultant Ms F recommends that from 30 September 2024, X continue to spend time with Mr Gallion on two occasions mid-week, with the alternate weekend overnight time extending to 8:30am Saturday until 5:00pm Sunday. I am satisfied that recommendation is in X’s best interests, contrary to Mr Gallion’s proposal for more time, and Ms Kaplin’s proposal for less time.
Consultant Ms F recommends that from 30 March 2025, X could commence spending an additional overnight with Mr Gallion each Tuesday evening until 8:00am Wednesday. I am also satisfied that recommendation is in X’s best interests. Ms Kaplin then proposes that the alternate weekend time extend to 8:00am Monday in the event of a public holiday. I am satisfied that proposal is also in X’s best interests. It will mean X has the benefit of either three or four overnights with her father from the age of three and a half years.
Consultant Ms F recommends that spend time arrangements “could continue to incrementally increase”[59] prior to X commencing primary school. It is common ground that X is likely to commence school in 2027. I consider that upon X turning four in 2025, the alternate weekends should extend to Monday morning on each occasion. That will afford her the opportunity to consistently spend four overnights with her father each fortnight.
[59] Family Report, paragraph 92.
Consultant Ms F gave oral evidence that by the commencement of school, alternate weekend time from after school Friday until before school Monday would be appropriate. Ms Kaplin raises concern that Mr Gallion is driving for an extended period of time on Friday afternoons to collect G and H from Suburb S. Consultant Ms F did not share that concern given likely changes over coming years, including the possibility that G may then be old enough to catch a train. I am not satisfied that the current arrangements for Mr Gallion to collect H and G from Suburb S are such that X should be prevented from spending an entire weekend with her father. I determine X’s best interests are served by spending alternate weekend time with her father for three nights from the commencement of 2027.
Mr Gallion proposes X spend extended block periods of time with him during school holiday periods. That proposal is contrary to Consultant Ms F’s oral opinion that she thinks “it’s really important for younger children, like kids that are perhaps not at school age yet, to be not having blocks of time away from their primary carer.” That opinion was not the subject of any successful challenge and I accept it. I am not satisfied X spending block time with Mr Gallion during holidays is in her best interests prior to the commencement of school.
I am, however, satisfied that X’s best interests are served by equally sharing her school holidays with each of her parents upon the commencement of school. I consider that an initial position whereby X spends week about time with her parents during school holidays in her first year of school is in her bests interests, extending to half those holiday periods in her second year of school. I note that Mr Gallion had proposed such a configuration of holiday time, albeit on a more accelerated timetable. Ms Kaplin made no submissions with respect to that proposal.
Both parties made proposals for X to share special occasion time with each of her parents. Neither made any submissions in relation to them. Their proposals are substantially similar. Mr Gallion proposes that the parties’ alternating time at Christmas extend to 3:00pm Boxing Day, whereas Ms Kaplin proposes it extend only to 12:00pm on Boxing Day. Given the specific arrangements are agreed commence at 12:00pm on Christmas Eve, I prefer Ms Kaplin’s proposal which means the overall special time for X will be from midday on Christmas Eve until midday on Boxing Day. I prefer Ms Kaplin’s proposal for Easter, which will afford X the opportunity to spend time with both of her parents on that occasion of significance each year. I also prefer Ms Kaplin’s proposal for more limited special time with each parent on X’s birthday, Mother’s Day and Father’s Day, which will impose less disruption on her usual routine.
The parties agree that communication between them should be via a parenting application. Mr Gallion proposes one such application. Ms Kaplin proposes another, being the application currently in use between the parties. Mr Gallion advanced no reasons why the application needs to change, nor did he adduce any evidence in support of his position. I accordingly cannot be satisfied that the change sought by him is in X’s best interests, and I will make the order sought by Ms Kaplin.
Mr Gallion proposes that X be permitted to call either parent. Ms Kaplin does not agree with the proposal. I prefer Mr Gallion’s proposal which imposes no obligation on either parent to do anything other than facilitate any request by X to speak to her other parent. I consider a facilitation of her doing so to be in her best interests.
The parties agree on arrangements for changeover, the exchange of information, and their mutual attendance at educational events normally attended by parents, which agreed orders I consider to be in X’s best interests. I prefer Mr Gallion’s formulation of the proposed order that requires the exchange of more particularised information in relation to X’s medical treatment in circumstances where Ms Kaplin has previously failed to advise him of medical information in relation to X, including refusing to consent to him meeting with X’s Maternal Child Health Nurse, or advising him of her attending a podiatrist.
Mr Gallion also proposes that both parties be at liberty to attend all extracurricular activities undertaken by X. Ms Kaplin opposes the relief sought. I am not satisfied it is in X’s best interests for both parents to have the opportunity to attend each of her extracurricular activities, which might include weekly training or private lessons, given the conflict between them.
Ms Kaplin seeks an order that she notify Mr Gallion in the event X is medically unfit to spend time with the father. I decline to make the order. There is no basis to conclude Mr Gallion is unable to care for X in the event she is unwell. I do not consider it appropriate to make an order that would suggest the pre-determination of any subsequent claim by Ms Kaplin that she has a reasonable excuse for any contravention of the Orders.[60]
[60] Family Law Act 1975 (as amended from 6 May 2024), s 70NAD.
Mr Gallion proposes broader injunctive relief than Ms Kaplin, including restraints on the parties “abusing, insulting, rebuking” the other parent, whereas Ms Kaplin proposes restraints on the parties denigrating each other in X’s presence or hearing. There is no evidence to support the need for the broader injunctive relief proposed by Mr Gallion. I accordingly prefer Ms Kaplin’s proposal.
Ms Kaplin seeks to restrain Mr Gallion from bringing X into contact with her maternal grandparents or maternal aunt Ms T, without Ms Kaplin’s consent. Whilst Mr Gallion describes the relief as “extraordinary”,[61] I do not accept his evidence that this is indicative of “controlling behaviour” by Ms Kaplin.[62] Ms Kaplin deposes to the breakdown of her relationship with her parents. I am not satisfied it is in X’s best interests to meet Ms Kaplin’s parents in that circumstance without her consent. However, I do accept Mr Gallion’s evidence that Ms Kaplin has provided no rationale for adding her sister Ms T to the injunctive relief sought, other than her oral evidence that Ms T is close to her parents. That evidence does not satisfy me X’s best interests are served by extending the injunction to include Ms T.
[61] Affidavit of Mr Gallion filed 8 January 2024, paragraph 57.
[62] Affidavit of Mr Gallion filed 22 January 2024, paragraph 49.
I agree with Mr Gallion that it is in X’s best interests for her parents to be at liberty to provide a copy of the Court’s Orders to relevant educational institutions or medical practitioners.
Mr Gallion proposes that Ms Kaplin attend a psychologist, social worker, or family support worker. Such a stand-alone order is likely to be beyond power,[63] and I decline to make it. Absent any recommendation from Consultant Ms F for Ms Kaplin to do so, I also decline to make the order sought by Mr Gallion for Ms Kaplin to complete a Parenting After Separation program.
[63] Oberlin & Infeld (2021) FLC 94-017 at [51]-[52] and the cases there cited; Eastley & Eastley (2022) FLC 94-094 at [58].
I decline to make the notations sought by Mr Gallion which could not be of any binding effect.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 20 May 2024
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