Gambetto & Farrelli (No 2)
[2023] FedCFamC1F 863
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gambetto & Farrelli (No 2) [2023] FedCFamC1F 863
File number(s): SYC 4559 of 2021 Judgment of: ALTOBELLI J Date of judgment: 13 October 2023 Catchwords: FAMILY LAW – PARENTING – Where the father seeks equal time and the mother seeks alternate weekends and half of school holidays – Where the mother seeks sole parental responsibility and the father seeks equal shared responsibility – Where there are allegations of family violence by both parties, including coercive control and litigation abuse – Finding that both parties were coercively controlling to some degree – Where equal time and equal shared parental responsibility are found to be unworkable – The mother is given sole parental responsibility for education and health only – The child is to spend time with the father each alternate weekend and half of school holidays – Child to be put on the Airport Watchlist – Vexatious proceedings order made. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 102QB(2), 102QE Cases cited: Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
F v M [2021] EWFC 4
Gambetto & Farrelli [2023] FedCFamC1F 465
Helbig & Rowe and Ors [2016] FamCAFC 117
Illgen & Yike [2018] FamCA 17
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Potier v Attorney-General (2015) 89 NSWLR 284; [2015] NSWCA 129
Ramzi & Moussa [2022] FedCFamC2F 1473
State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81–423
Division: Division 1 First Instance Number of paragraphs: 154 Date of hearing: 4–6 September 2023 Place: Sydney Solicitor for the Applicant: Swan Lawyers Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Worland Family Lawyers Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 4559 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GAMBETTO
Applicant
AND: MS FARRELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
Parental responsibility
1.The Respondent mother (“the mother”) have sole parental responsibility for the child, X born 2013 (“the child”), limited to decisions about the child’s education and health.
2.In exercise of her responsibility pursuant to the preceding order, the mother notify the Applicant father (“the father”) within 24 hours of:
(a)Any decision made by her;
(b)Any medical assessment conducted or reports prepared in respect of the child, and the identity of such medical service provider;
(c)Any significant illness or injury suffered by the child requiring medical treatment or medication, and the identity of any medical practitioner providing medical attention to the child; and
(d)Any change to the child’s education or enrolment in any educational institution.
3.The father and the mother will otherwise have equal shared parental responsibility for making decisions about any remaining issues relating to the long-term care, welfare and development of the child.
4.In exercise of their responsibility pursuant to the preceding order, the mother and the father must consult each other and make a genuine effort to come to a joint decision.
Living and time arrangements
5.The child shall live with the mother.
6.If the child continues to be homeschooled, the child shall spend time with the father during New South Wales gazetted public school terms as follows:
(a)Each Thursday from 10.00 am to 6.00 pm; and
(b)Each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday.
7.If the child commences mainstream school, the child shall spend time with the father during New South Wales gazetted public school terms as follows:
(a)Each Thursday from after school to the commencement of school on Friday; and
(b)Each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday.
8.The child shall spend time with the father for half of each New South Wales gazetted public school period, being the first half in odd numbered years, commencing Term 4 2023, and the second half in even numbered years, commencing Term 1 2024.
Special occasions
9.Notwithstanding the above orders, the child shall spend additional time with each parent on special occasions as follows:
(a)If Mother’s Day falls on a weekend when the child is not already spending time with the mother, from 10.00 am to 6.00 pm on Mother’s Day;
(b)If Father’s Day falls on a weekend when the child is not already spending time with the father, from 10.00 am to 6.00 pm on Father’s Day;
(c)On each parents’ birthday, if the child is not already in their care, from the conclusion of homeschooling or school to 7.00 pm if it falls on a weekday, or from 10.00 am to 5.00 pm if it falls on a non-homeschooling or school day;
(d)On the child’s birthday, if the child is not already in the father’s care, from the conclusion of homeschooling or school to 7.00 pm if it falls on a weekday, or from 2.00 pm to 7.00 pm if it falls on a non-homeschooling or school day;
(e)The child shall spend the first and second night of Orthodox Easter with the father in 2024, if the child is not already in his care, and each even year thereafter; and
(f)The child shall spend Orthodox Christmas with the father in 2023, if the child is not already in his care and each odd year thereafter.
Changeover
10.If the child continues to be homeschooled, where practical, the mother will deliver the child to the father at a school-type activity organised by the father, and the father will return the child to the mother at a school-type activity organised by the mother.
11.Where such an activity is not reasonably available, the mother will deliver the child to the father’s residence at the start of his time with the child, and the father will return the child to the mother’s residence at the conclusion of his time.
12.If the child commences mainstream school, changeover will occur at the child’s school during the school term and at each parent’s residence as above during school holidays.
Communication, authorities and restraints
13.The child shall be at liberty to communicate with either parent while he is not in their care.
14.When the child is living with either parent for a period of greater than seven days, that party shall facilitate a telephone call from the child to the other party at least once per week.
15.Each parent shall notify the other as soon as reasonably practicable upon becoming aware that the child has been involved in a medical emergency, or any other medical or health issues affecting the child whilst in their care.
16.Each parent shall communicate all non-urgent parenting matters via the OurFamilyWizard application only, and all urgent communication should be made immediately via text message or email.
17.Each parent shall keep the other informed of their mobile telephone number, email address and residential address and advise the other of any change to the same within 48 hours.
18.Each parent will only be at liberty to attend any of the child’s homeschooling, school, sporting or extra-curricular activities during the time in which they are caring for the child.
19.Each party is authorised and permitted to contact any medical practitioner, health professional, member of the NSW Education Standards (or their delegate), or the child’s school if he attends mainstream school, to ascertain information about the child’s welfare, progress and development as either of them reasonably request, without derogation from such professional’s discretion as to what information is provided.
20.Both parents are restrained from:
(a)Denigrating the other parent or any member of that parent’s family or household, in the presence or hearing of the child, and shall forthwith remove the child from the presence of any other person who does so;
(b)Discussing these proceedings in the presence or hearing of the child, and shall forthwith remove the child from the presence of any other person who does so; and
(c)Showing the child any document pertaining to these proceedings.
21.The child shall be known as “X” and the parties are restrained by injunction from taking any steps to formally change his name or any part of with the NSW Registrar of Births, Deaths and Marriages, or otherwise engaging in the use of a different name or any part of it.
22.Until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (“the Act”) each party, MR GAMBETTO born 1983 and MS FARRELLI born 1981, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child, X born 2013, male, from the Commonwealth of Australia until 2029, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.
Miscellaneous
23.As a condition of the parenting arrangements in Orders 1–9, each parent forthwith cause the child, X born 2013, to enrol in and complete the AA Program conducted by BB Services.
24.Upon the father providing the mother with no less than 21 days’ notice of the days nominated by him, the child shall spend time with the father during the day on three occasions between the date of these orders and 1 December 2024 for the purpose of taking the child to the orientation days of three high schools of the father’s choosing.
Vexatious proceedings order
25.Pursuant to s 102QB(2) of the Act the father is prohibited from instituting further proceedings under this Act in a court having jurisdiction under this Act, without first obtaining leave pursuant to s 102QE of the Act.
Costs
26.Each party will pay one half of the Independent Children’s Lawyer’s costs of these proceedings, the total sum being fixed at $29,251.50, or such lower sum as may have been advised by Legal Aid New South Wales in writing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gambetto & Farrelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about X, born 2013, who is presently 10 years old. These reasons for judgment explain the orders that the Court has made in relation to X and his parents. The father is the applicant (“the father”) and the mother is the respondent (“the mother”).
The Court believes that the Independent Children’s Lawyer has accurately described the litigation between the parents about X as a “power battle”. Both parents allege that the other has been coercively controlling, mainly, but not limited to the issue of X’s time with the other parent. Whilst the Court has formed the view that, for now, X is a resilient child, the Court has also formed the view that the uncontained, intractable conflict between his parents about him presents a future risk of harm to him. X has been, and currently continues to be, caught in the metaphorical “crossfire” of this intense battle between his parents for control of him. X must travel through a metaphorical “no man’s land” every time he moves from the mother’s household to that of the father, and then back. The Court faces the challenge of, somehow, crafting a set of orders for the benefit of X that will assist him to continue to enjoy a good relationship with both of his parents without being adversely affected by the parental warfare that is happening around him.
BACKGROUND
The father is 40 years old and describes himself as a finance professional, although he states that he is self-employed and is involved in various endeavours. The mother is 42 years old, is employed as a professional and works from home. The parties met in 2005, commenced cohabitation in 2006 and married in 2010. X was born in Sydney in 2013. The parties moved to Perth in 2015. On 26 January 2016 the parties separated but remained living under one roof, and the mother left the matrimonial home with X in late 2016. The mother relocated to Sydney from Perth in 2018, and the father relocated to Sydney from Perth in 2019. The mother met her new partner, Mr CC in 2021 and they now live together with X.
The father commenced proceedings in this Court when he filed an Initiating Application on 21 June 2021. The operative interim orders were made on 28 September 2021 and varied on 20 December 2022, which provide for X to live with the mother and spend time with the father each Thursday from 10.00 am until 6.00 pm, each alternate weekend, on special occasions, and from 3.00 pm on Fridays to 10.00am on Thursdays each alternate week during the school holidays. The orders also include provisions for X to communicate with either parent at his request, for the parents to notify each other in the case of serious illness or injury of X, for the mother to provide the father with copies of documents such as school and medical reports, and for a restraint on the father changing X’s name.
The mother and the father are highly intelligent and articulate individuals who deeply love X and enjoy the benefit of his reciprocating love. They are both successful people in their own right. Until separation they appear to have enjoyed a happy family life. Indeed, before separation the father was significantly involved in the care of X in circumstances where the mother continued to work almost full time in her career until X was around two and a half years old. This is not to diminish her important role, but it is a finding that reflects what appears to have been the division of labour that both parents agreed to. Even for a period after the date of separation, what could loosely be described as a shared care arrangement was implemented between them. As the parents progressively individuated from their own relationship, the father’s time with X gradually, but inexorably, reduced to the point where it largely only occurred when the mother allowed. Indeed, the evidence before the Court is marked with examples of the mother summarily and arbitrarily changing arrangements that had been put in place for X to spend time with the father (e.g. Exhibit A14). The father’s increasing frustration with this led to the commencement of the present proceedings and, more significantly, the initiation of a relentless campaign of litigation and complaints against the mother, her lawyer, the Independent Children’s Lawyers appointed for X, and even the single joint expert.
On 8 June 2023 a “vexatious proceedings” order was made by the Court of its own volition against the father under s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”). This arose in circumstances where the father filed numerous Applications in a Proceeding, appeals and review applications which the Court ultimately found to be vexatious. The purpose of making the vexatious proceedings order was to protect the mother directly, X indirectly, the Independent Children’s Lawyer and the Court from unnecessary proceedings which consume substantial public and private cost, in the context of a Court which has limited resources available to meet the needs of the litigating public.
The final hearing came before me from 4–6 September 2023. The father was represented by an experienced solicitor, the mother was represented by counsel, and the Independent Children’s Lawyer appeared on his own behalf. Consent orders were made on the final day of the hearing, which provided for each parent to cause X to enrol in and complete the AA Program conducted by BB Services. Also on the final day of the hearing, the father indicated that he would file an undertaking with the Court, which he did in fact do later that day. The undertaking stated that the father would not institute proceedings in the Federal Circuit and Family Court of Australia (“the FCFCoA”) in the current matter or commence any new proceedings without first obtaining legal advice, and that any application he makes will be filed with an affidavit by the practitioner who gave him legal advice, confirming that this advice was given.
COMPETING PROPOSALS
By the conclusion of closing submissions, all parties’ proposals differed from the final orders that they originally sought.
In his case outline filed 1 September 2023, the Independent Children’s Lawyer’s position was that the mother should be granted sole parental responsibility for X, and that X should live with the mother and spend time with the father as determined by the Court (for example alternate weekends from Friday afternoon to Monday morning). On the final day of hearing the Independent Children’s Lawyer provided an updated Minute of Order, which proposes that the mother have sole parental responsibility for X’s education and health, but that the orders remain silent on other aspects of parental responsibility. He proposes that X live with the mother and spend time with the father. He provides three alternative options for the time X is to spend with the father. His preferred option would be for X to spend time with the father each Thursday from 10.00 am to 6.00 pm and each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday. The Independent Children’s Lawyer explained that this effectively mirrored the current arrangement, albeit extending the time from Sunday to Monday. The second proposal is for X to spend time with the father each Friday from 8.00 am to 6.00 pm and every alternate weekend that time shall extend from Friday at 8.00 am to Monday at 8.00 am. The Independent Children’s Lawyer advised that this aligned with the expert, Ms Y’s alternate position which she articulated during cross-examination. The third proposal is for X to spend time with the father each alternate weekend from 8.00 am on Friday to 8.00 am on Monday, which is largely in accordance with Ms Y’s recommendations in the Report. The Independent Children’s Lawyer proposes that X spend half of each school holiday period with the father, as well as special occasions. He suggests that changeover should be at a “school type” activity which the mother is to organise, or otherwise at each party’s residence. He further proposes that each party keep the other informed of their contact information, notify the other party about any serious illness or injury suffered by X, and that each of the parties be authorised to contact any medical practitioner or member of the NSW Education Standards to obtain information about X’s welfare or development. Lastly, he proposes that X’s name remain “X”, that his name be placed on the Airport Watchlist until he reaches 16 years of age, and that on three occasions between the date of these orders and 1 December 2024 X spend time with the father for the purposes of attending orientations days for prospective high schools.
The father’s proposal in closing submissions largely mirrored what was contained in his Minute of Order received on 30 August 2023. That is, for the parents to have equal shared parental responsibility, and for X to live with each parent in an equal time arrangement, with X living with the father in week one from Wednesday afternoon to Friday morning, and in week two from Wednesday afternoon to Monday morning, as well as half of school holidays and additional time on special occasions and orthodox holidays. In closing submissions the father’s solicitor indicated that as a secondary alternate position the father would accept the Independent Children’s Lawyer’s first proposal that X spend time with the father each Thursday from 10.00 am to 6.00 pm and each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday, although he would want the time on Thursdays to become overnight time and extend to 10.00 am on Friday. Also during closing submissions, the father’s solicitor indicated that the father was willing to allow the mother to have sole parental responsibility for X in relation to medical issues to eliminate further conflict, but still pressed equal shared parental responsibility for other issues including education. In his Minute of Order the father proposed that X attend DD School in Suburb EE starting from Term 1 2024, or attend an educational and developmental psychologist as well as a Family Dispute Resolution Practitioner if they cannot agree on an appropriate school. However, during closing submissions the father agreed with the Independent Children’s Lawyer for X to spend time with the father on three occasions to attend high school orientation days. The father also sought an order for the mother to be required to inform him about X’s education, particularly if he is not to be otherwise involved. Similar to his initial position, in closing submissions it was proposed that if orders were made more in line with the Independent Children’s Lawyer’s or mother’s proposal, the father would seek weekly telephone communication with X. The father agreed with the Independent Children’s Lawyer’s proposal for X’s name to remain as it is, for additional time on special occasions, to notify the other parent of any changes in contact details or about any illness or injury X suffers, and that changeover occur at a “school-type activity”. The father also did not press his proposed order that both parents be allowed to travel overseas with X and agreed to the Independent Children’s Lawyer’s proposal for X to be put on the Airport Watchlist until he reaches 16 years of age. He also agreed to X being enrolled in the AA Program at BB Services. It is unclear whether the father presses his proposed order that neither parent be permitted to relocate outside of 50 kilometres of the centre of Sydney NSW, but the Court would nevertheless decline to make this order as unnecessarily prescriptive and beyond the scope of the evidence.
The mother’s proposal is contained in her case outline filed 1 September 2023 and differs markedly from the orders originally sought in her Further Amended Response filed 11 August 2023. She originally sought sole parental responsibility and that X have no contact or communication with the father unless it is initiated by her. The mother now proposes that she have sole parental responsibility for X, and that X live with her and spend time with the father. This time is to occur each alternate weekend from 5.00 pm on Friday to 8.00 am on Monday, and half of each school holiday period, with additional time with each parent on Mother’s Day and Father’s Day. Changeover is to occur at each parent’s home, and communication will be in an emergency only and occur via text. Both parents are to notify the other in the event of an emergency requiring X to go to the hospital, or if X is suffering from a serious illness, and are to keep each other informed of any change in phone number or address. The mother also seeks a continuing vexatious proceedings order under s 102QB(2) of the Act. By closing submissions, the mother also agreed with the Independent Children’s Lawyer’s proposal for X’s name to be put on the Airport Watchlist until he reaches 16 years of age, as well as X being enrolled in the AA Program at BB Services.
THE ISSUES FOR DETERMINATION
The issues for determination will be as follows:
(1)Whether the parties’ conduct during cross-examination affects their credibility;
(2)Whether there is a risk of harm to X from which he needs to be protected;
(3)Whether there has been family violence, including coercive control;
(4)What consideration should be given to the views of X;
(5)The nature of X’s relationship with each of the parents;
(6)How each party has participated in the decision making about, and spending time/communicating with X;
(7)Each parent’s parental capacity and their attitudes to X and their responsibilities of parenthood;
(8)The likely effect of any change in X’s circumstances;
(9)Which orders will be least likely to lead to further litigation; and
(10)Whether the vexatious proceedings order currently in place should be extended.
EVIDENCE BEFORE THE COURT
In support of his case, the father relied upon the following material:
(a)Case outline filed 30 August 2023;
(b)Amended Initiating Application filed 18 August 2023;
(c)His affidavit filed 18 August 2023;
(d)Affidavit of Ms FF filed 18 August 2023;
(e)Affidavit of Ms GG filed 25 August 2023; and
(f)Various documents tendered during the proceeding and marked as Exhibits A1–A58.
In support of her case, the mother relied upon the following material:
(a)Case outline filed 1 September 2023;
(b)Further Amended Response to an Initiating Application filed 11 August 2023;
(c)Her affidavit filed 11 August 2023;
(d)Affidavit of Mr CC filed 11 August 2023; and
(e)Various documents tendered during the proceedings and marked as Exhibits R1–R10.
In support of his case, the Independent Children’s Lawyer relied upon the following material:
(a)Case outline filed 1 September 2023;
(b)Single Expert Report of Ms Y dated 4 December 2022; and
(c)Various documents tendered during the proceedings and marked as Exhibits ICL1–ICL2.
Those required for cross-examination included the father, the mother and the single joint expert, Ms Y. The mother did not require the father’s two witnesses, Ms FF and Ms GG, for cross-examination, although their affidavits were read and relied upon. Mr CC was also not required for cross-examination, although his affidavit was also read and relied upon.
APPLICABLE LAW
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children 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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)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
(b)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
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)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 the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The words “coerces” and “controls” can be found in the definition of family violence as set out in s 4AB(1) of the Act. However, these words are not defined in the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ and Campton J in Carter & Wilson (2023) FLC 94-129 (“Carter & Wilson”) at [17]:
The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary depending on the context (Carter & Wilson at [71]). Therefore findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
OBSERVATIONS ABOUT THE WITNESSES
The evidence given by both the mother and the father in cross-examination must be understood through the lens of the mental health conditions they both experience. They both told the single joint expert that they suffered from anxiety. The father also reported possible depression. The mother reported panic attacks. The mother acknowledged the anxiety she experienced in connection to the litigation. In his affidavit filed 18 August 2023 the father states that he commenced seeing a psychologist in about July 2016 after the parties separated and the mother moved out with X. During cross-examination he said that he now speaks to a psychologist in Perth on an “as-needs” basis and last had a telephone call with the psychologist in July 2023. In her affidavit filed 11 August 2023 the mother states that she attends upon a psychologist at HH Psychology to deal with her anxiety and during cross-examination she said that she sees the psychologist “off-and-on”. She also said that her partner is a psychotherapist and provides her with emotional support.
Both parties were often unresponsive to the questions they were asked in cross-examination. In the mother’s case, this was pervasively so. Both were given warnings about this, in the mother’s case several times, with little impact. The Court will give them the benefit of the doubt in that such unresponsiveness will be understood in the context of the anxiety that they both experience and the importance to them of the issues before the Court, rather than any adverse credit findings. Both gave evidence in cross-examination with a firm view to advancing their own case narrative.[1] Both were convinced of the merits of their case, but oblivious to what seemed to the Court to be quite obvious issues with their case.[2]
[1] For example, the father said that he believes X is at risk of neglect in the mother’s household because he spends too much time on YouTube. He also denied exerting any control over X and said that X is “at the risk of developing anxiety due to mother’s control”. In the mother’s case, she accused the father of being more concerned about his business endeavours than X. She also took every opportunity to shift blame to the father, for example, implying that X did not eat lunch with other children at Country Z school because he was anxious, which she says arose during “a couple of months when [the father] was very aggressive”.
[2] For example, the father said he did not believe that there would be continuous conflict if the parents had equal shared parental responsibility because they had been able to cooperate in the past. The mother disagreed that the father’s parental role had lessened because she reduced his time with X and instead said it is “100 per cent because of the father’s conduct that his time with [X] is minimised”.
They both experienced the actions and inactions of the other to be coercive and controlling to the point where even relatively innocuous and innocent events were magnified into threatening actions and abusive behaviour. The lens through which each parent was able to interpret the actions of the other was nearly opaque. Each attributed to the other a malevolent intent that was sometimes there, but often not. They often only saw the worst of each other.[3]
[3] For example, the father (through his solicitor’s cross-examination of the mother) implied that the mother moved further away from him because she wanted him out of her life, while the mother insists she moved because of the noise of the flight path and because she had wanted to move to the area for a long time. The mother accused the father of financial control when he set up dual authorisation for withdrawals from their joint bank account, while the father’s solicitor indicated that he only implemented this post-separation after the mother had herself withdrawn more than $200,000.
Cross-examination of parents often gives the Court the best possible insight into the character and personality of the parent. The mother had a distinct tendency to embellish and exaggerate, sometimes to the point of histrionics, save for the reality that it was driven by her anxiety.[4] She did not like to be told what to do, either by the Court in terms of answering questions, or by the father as perceived through her opaque lens. The father did not like to be told what to do, either by the Court in terms of, for example, costs orders of which there were several, or by the mother. The mother was often inflexible and imperious in her edicts about when the father could spend time with X and the father was relentless in his campaign of litigation and complaints against the mother and others who, he perceived, did not share his views about X.
[4] For example, the mother often reiterated that X was “terrified” of the father and described X as “screaming”, “crying”, “hysterical” and “in tears” over the prospect of spending overnight time with the father, when other evidence suggests X is perfectly happy with the arrangements. She said that the father has made it impossible for her to maximise his role in X’s life through his “torture” of her. She also said that the constant threats of litigation were “killing” her, that she will be “basically suicidal” if the father is in X’s life, and that she has to “sacrifice [herself]” so that X can have the father in his life. When she was asked about why she wants sole parental responsibility for X’s passport applications she said “because [the father] comes from [Country Z], you might as well come from North Korea”.
These negative attributes inevitably reflect adversely on their insight and attunement to the needs of X, especially to have both parents in his life. The reliability of their evidence is undermined by all these factors.
THE EXPERT EVIDENCE
Ms Y provided a single expert report in this matter, which is dated 4 December 2022 (“the Report”). The following is a summary of the Report.
Ms Y indicated that while neither parent described a significant history of physical violence, they described one another as coercive and controlling. The father explained to Ms Y that he is concerned about potential psychological harm to X because of alienation from him. He is also concerned about X’s socialisation, as well as poor supervision during the day. The mother said she is concerned about the father pushing X out of his comfort zone, that the father will try and take X away, and that she is worried about a murder-suicide in which the father kills X and himself. Ms Y wrote that there is no information to suggest that the father has contemplated harming X. During cross-examination the mother said she was still concerned about this possibility and that she feels unsafe when X is with the father, however Ms Y during cross‑examination said that this is likely to be a catastrophisation.
Ms Y observed that during her interview with X he presented as confident and appeared to think seriously, and sometimes cautiously, about what he said. X said he is home-schooled and that he might attend a formal school in the future, but he thinks that neither of his parents want that. X explained that he likes the current live with and spends time arrangements, was very clear that he would not want to be prevented from spending time with either parent, and was concerned about this possibility. However, Ms Y also pointed out that X does not yet have the cognitive capacity to understand the long-term implications of the decisions that need to be made by the Court, or the risk each parent poses to his mental health. During the interview X confirmed a dilemma which the parents had described. That is, he is afraid of telling either parent certain things that he does with the other parenting during their time because he does not think the other parent would approve. X asked Ms Y not to tell the parents about these “things” and appeared quite concerned about this. Ms Y also wrote that while the mother believes that X does not want to spend overnight time with the father, it is possible that X tells the mother what he thinks she wants to hear. Ms Y opined that each parent needs to build a relationship with X to help him trust that they will not react adversely in this sort of situation, and that both parents need to accept that X will be exposed to differences in each household and that they cannot control every aspect of his life.
During Ms Y’s observation of X with the father, she described that X appeared more relaxed than he had been earlier at the mother’s house, that he was comfortable with his father and that the father was calm and engaging. She said that when the father opened the front door X “ran toward him and jumped into his arms, giving him a hug” (paragraph 42 of the Report). Ms Y ceased her observation when it appeared that X was annoyed about being observed.
Ms Y described the father as polite and cooperative during the report process and said that he appeared to accept negative feedback about his actions, for example, specifically agreeing to stop recording X/changeovers. She wrote that while the father remained distracted by the conflict, he was also interested in coming to an agreement and was ultimately concerned about his relationship with X. Ms Y reported that after her last conversation with the father, he sent her a text message complaining that it was not a fair or proper process that she spoke to the mother first. Ms Y suggested that this is likely an example of how the father reacts when he is anxious. She also explained that the father was open about how the poor relationship he has with the mother is a trigger for painful memories about his relationship with his own parents, as well as his fear that X will have the same experiences. When the father was asked why he had been dropping X to the mother later than ordered, he explained that it is because the mother has moved further away since the orders were made and it now takes longer to get to her house. Ms Y said that the father did not think that his decision, and subsequent annoyance for the mother, impacts X. The father further indicated that he does not think that the mother values him as a parent.
Ms Y also described the mother as polite and cooperative during the report process. She said that the mother appeared nervous and unsure about specifics such as the sequence of events and dates, and that she appeared upset and frustrated during her final interview. The mother told Ms Y that there have been issues at changeover with the father screaming at her. She explained that she had tried to reduce the number of changeovers (rather than the time X spent with the father), but that that has not been successful. The mother also said that she deserves a break from the stress that the conflict causes her. The mother acknowledged that X would be “traumatised” if he were not allowed to spend time with the father, but again reiterated her concern that if the father did not get the parenting orders that he wanted he might kill X. She also described the ongoing emotional and financial pressure of the father’s relentless litigation.
Ms Y interviewed Mr CC, the mother’s new partner. Mr CC was supportive of the mother and concerned about the impact on her of the ongoing litigation but was also aware of the important role that the father plays in X’s life and supports X spending time with the father. Mr CC said that he thinks X is anxious about the father knowing about some of his activities because he thinks the father would not approve. He also said that he does not really think that the mother does not want X to spend time with the father, but instead that she does not know what else to suggest stopping his harassment of her.
Ms Y opined that on the surface X appears unaffected and has a good relationship with both parents, although he is acutely aware of the conflict and indicated that he does not feel free to be himself with either parent. He is fearful of upsetting them, but more so his father. Ms Y clarified that this does not appear to be a fear of physical abuse, but rather that since both parents’ beliefs about what is good for him are so strong, X fears disappointing them if he chooses a path that they do not want for him. Ms Y cautioned that this will not allow X to develop independence and will be having a negative impact on his self-esteem and developing a sense of self, which ironically is something that both parents think they are promoting positively. She emphasised that children who are exposed to parental conflict often develop mental health issues such as anxiety and depression, which can lead to risk-taking behaviours such as drug or alcohol abuse or self-harm.
Concerningly, at paragraph 104 of the Report Ms Y indicated that:
Both parents, in their approach to one another pose a risk of psychological harm to [X]. [The father] and [the mother] are at pains to demonstrate how the other poses a risk to [X] but neither parent appears willing to look at their own behaviour or have insight into their impact upon [X] in this regard.
She gave an example of the above as the mother having talked about the financial and emotional stress on her because of the numerous applications that the father has initiated, yet the mother had only recently lodged a contravention application herself which served to exacerbate the conflict. The contravention application was in relation to X not attending extra-curricular activities, and Ms Y stated that there were other options but neither parent wants to give in, which has caused X to miss out. She gives a further example of the father raising concerns about X not having contact with other children, yet also deciding not to take X to certain activities purely because the mother has chosen them as they are in the time that X spends with him. This, the Court observes, demonstrates how neither parent is able to put aside their feelings and grievances towards one another in the best interests of X. The Court acknowledges that the contravention application was later withdrawn. One wonders whether this had more to do with the potential for the said application to derail the final hearing than the substantive issue of concern to the mother. The concerns expressed by Ms Y remain valid.
Ms Y wrote that the parties’ behaviour is not child focused and that both feel the litigation they initiate or the lack of compromise on their part is justified. She noted that while both parents appear to love X very much, their actions undermine their commitment to him as they become self-focused. For example, Ms Y pointed out that while the mother acknowledged X would be traumatised if he were prevented from seeing the father, this is exactly what she proposed. Ms Y said that the father has recorded his conversations with X and recorded changeovers which likely would have made X feel uncomfortable and self-conscious. While the father was given feedback about this and stopped recording, Ms Y said that in a follow-up phone call the father indicated that he is not sure that he should have stopped the recording, referring to comments he found in subpoena material made by the mother about him having been violent in the past. Ms Y noted that this does not justify making X uncomfortable. She emphasised that the risk of harm to X through exposure to parental conflict is a strong theme in this case and that the Court may be required to make a finding of whether the risk of psychological harm in either household is unacceptable. While the Court certainly agrees that X has been exposed to parental conflict, it does not find that the risk of psychological harm is unacceptable in either household if the parents are able to follow the carefully considered final orders this Court will make.
Ms Y outlined that both parents have been diagnosed with anxiety. She explained that people who experience anxiety often feel a need to control their environment and do not trust others to manage things as well as they do, they overthink issues and plan for the worst. She wrote that the mother has had total control over X’s life post-separation and likely feels threatened by the father’s attempts to be involved in X’s life. She posited that the anxiety that both parents experience is likely to impact their willingness to allow X to individuate, and that if the control they exert over X does not lessen over time, he may rebel or develop anxiety and/or depression himself.
Ms Y explained that even though the mother has restricted X’s time with the father, she has also facilitated time between them. It is her opinion that X is not alienated from the father, and that he loves the father and wants to spend time with him. She explained that while the mother would like to sever X’s relationship with the father due to what she considers the father’s harassment of her, in the past restricting their time appeared to be related to her parenting approach and her lack of willingness to share the role. The Court notes that the mother ultimately changed her proposal so that X does spend time with his father. The Court agrees with the opinion of Ms Y that X is not alienated from his father.
Ultimately, Ms Y recommended that the parent who X predominantly lives with should have sole parental responsibility. This is because the parents do not agree on X’s care which is likely to place him at risk, and because shared parental responsibility is likely to keep X in the middle of the conflict which is not in his best interests.
She said that the current live with arrangements (in which X lives with the mother) should remain, as he is settled with the mother, has not lived with the father for seven years, and the conflict between the parents is a contraindicator of a successful equal time arrangement. Ms Y indicated that unless the Court finds that one or both parents pose an unacceptable level of risk to X, he should continue to spend time with both parents. If X lives with the mother, as suggested by Ms Y, the father should be able to spend substantial and significant time with X on alternate weekends from Friday morning to Monday morning, and one full day in the other week, as well as block time in the school holidays. She explained that given the high level of conflict, a parallel parenting approach is likely to be necessary, where the parents interact as little as possible, and to reduce conflict any changeovers should be at an activity. She also stated that the father should have access to information regarding X’s education and medical care.
Ms Y suggested that while there have been allegations of financial control and minor physical violence in the past, the only issue that remains of a concern to X is potential coercion and control, but she said that orders which clearly determine the role and responsibilities of the parents and the amount of time that X spends with each parent may address this issue. Ms Y cautioned that if the conflict continues, X will likely “vote with his feet” in the future.
Ms Y was an impressive witness who manifested a deep appreciation of the facts of the case and a deep understanding of the parents and X. She demonstrated knowledge about the relevant social science principles and how they applied to this case. She was responsive in evidence, open to alternative scenarios, and both flexible and responsive in relation to her recommendations.
She was appraised of the proposals of the parents as at the time she was cross-examined, and of the updating evidence that had been filed.
Despite the diligent efforts of those representing the father, Ms Y was resolute in her rejection of any contention that an order for equal time would be in the best interests of X. She based this on the history of the matter, what each parent had told her, the material before her, and the impressions that she formed based on her professional knowledge and experience. She clearly and consistently indicated to the Court that the level of conflict between the parents, the litigation history, and the highly problematic communication between them all strongly contraindicate the making of an order for equal time.
Given that these matters are so well supported by the evidence before the Court, almost to the point of being self-evident, the finding that equal time is not in the best interests of X is one of the clearest findings that this Court can make. That the father even pursued this at the final hearing reflects poorly on his insight, and possibly even his attitudes as a parent, and this will be discussed below.
Ms Y firmly rejected the suggestion that X was at risk of harm of murder-suicide at the instigation of the father. There was simply no evidence to support this other than the mother’s repeated assertions. It was inconsistent with the evidence of the father, and about his mental health. It was not put to him in cross-examination. Ms Y explained the mother’s evidence an anxiety-driven catastrophization. But for that evidence, the Court would have found it to be histrionics. That the mother even pursued this claim at the final hearing in the absence of any evidence including in her own affidavit, reflects poorly on her insight, and possibly even her attitudes as a parent, and this too will be discussed below.
Ms Y was asked to elaborate on paragraph 104 of the Report which was reproduced above. She explained that the risk of psychological harm to X was derived from the absence of any flexibility in the approach of either parent to the litigation, their absolute certainty about the virtues of their proposals and their palpable combative natures. She conceded the possibility that the mother’s recent abandonment of her proposal for no time might reflect a change in her attitude.
The Court observes that the matters which Ms Y identifies were all clearly apparent to the Court. Indeed, it was only at the final hearing that there appeared the faintest glimpses of insight by the parents about the impact of their behaviour on both X and the other parent, especially by the father. For example, the father filed an undertaking on 6 September 2023 stating he would not institute any further proceedings without first obtaining legal advice. He further conceded that these proceedings and any future proceedings would be harmful to the X, although he added that it would be more harmful if he did not commence proceedings. He also accepted that the litigation conducted by him would have been difficult on the mother and conceded that the impact it would have had on her did not cross his mind at the time because he was “afraid of losing [his] son”. Further, when the Independent Children’s Lawyer described the father’s conduct in accusing Ms Y, the Independent Children’s Lawyers and other judicial officers of collusion, bias, misconduct, and contempt during these proceedings, he responded “when you put it to me like that, yes I am embarrassed about those particular things and absolutely I could have done better”.
The mother showed a glimpse of insight during cross-examination when she was asked what she took from paragraph 101 of the Report. This paragraph reads:
On the surface [X] appears unaffected and seems to have good relationships with both parents. However, he is acutely aware of the conflict and indicated that he does not feel free to be himself with both parents. [X] is fearful of upsetting either parent, but more so of upsetting his father. This does not appear to be a fear of physical abuse, rather, both parents are so strong in their beliefs about what is good or not for [X], that [X] fears disappointing them if he chooses a path that they do not want for him. This will not allow him to develop independence and will be having a negative impact on his self-esteem and developing sense of self, something both parents think that they are promoting positively.
The mother responded:
“I completely agree with this statement – that [X] has been exposed to conflict for many many years and I agree with this…[X] is acutely aware of our disagreement and just like he doesn’t want to disappoint me, he doesn’t want to disappoint the father. He is in the middle of it. He hates it, and I know that”.
The mother also showed some insight when she was asked “do you see that your refusal to allow [the father] to have overnight time at an age-appropriate stage when he was five years old might well have made [the father] feel that his role as a father was undermined”, the mother responded “yes, I see that”.
In any event the Court notes it is important to understand paragraph 104 of the Report in the context of the further comments at paragraphs 105–108 about psychological harm to X:
105.For example, [Ms Farrelli] talked about the financial and emotional stress on her, because of the numerous applications that [Mr Gambetto] has initiated, yet she has only recently lodged a contravention application herself. This has further exacerbated the conflict. Both parents advise that the contravention is in relation to [X] not attending [extra-curricular activities]. There are other options, but neither parent wants to give in. Meanwhile, [X] misses out. [Mr Gambetto] raises concerns about [X] not having enough contact with other children, yet he has decided not to take [X] to these activities, purely because [Ms Farrelli] chose them, and they are held in the time that [X] spends with him. This is not child focussed. Both parents feel that the litigation they initiate or lack of compromise on their part is justified.
106. [Ms Farrelli] said that [X] would be traumatised if he were to be prevented from seeing his father, yet she is proposing exactly that. [Mr Gambetto] has recorded his conversations with [X] and recorded changeovers. This is likely to have made [X] feel uncomfortable and self-conscious. [Mr Gambetto] was given feedback about this, and he said that he has stopped. In a recent telephone call [Mr Gambetto] indicated that he is not sure that he should have stopped the recording and referred to comments that he found in subpoena material made by [Ms Farrelli] about him having been violent in the past. That does not justify making [X] feel uncomfortable.
107. As noted above, and what has become a strong theme in this matter is the risk of harm to [X] through exposure to parental conflict. If the matter proceeds, the Court may be required to make a finding of whether the risk of psychological harm in either household is unacceptable.
108. [Ms Farrelli] said that she fears that [Mr Gambetto] will kill [X] and possibly himself if he does not get what he wants [equal time and shared parental responsibility]. There is no information to suggest that [Mr Gambetto] has contemplated harming [X]. His psychologist and doctor’s notes show that he has not spoken about self-harm.
Ms Y acknowledged that one of the most important issues for X was how parental responsibility was to be allocated between his parents. This recognises the reality for X that for many years to come major long-term decisions will probably need to be made about him, but his parents have manifested a grossly inadequate capacity to make joint decisions.
Ms Y advocated for parallel parenting in relation to X. She believes that provided there is clarity in relation to issues such as education, the parents could actually work together, but she acknowledged some reservations about their capacity to do so. Parallel parenting means that each parent would operate independently of the other but within the scope of clearly defined parameters. Thus, she contended that, for example, aspects of parental responsibility could be divided between the parents. One might have sole parental responsibility in relation to education, and the other in relation to health. The orders would need to define what she described as “no go” areas such as in relation to international travel, where the parents were in intractable disagreement.
The issue of international travel can be dealt with specifically, and as a discrete issue. By the time of closing submissions there seemed to be a somewhat reluctant acknowledgement by all parties that because each parent could not trust the other’s international travel plans, unless they could otherwise agree X would not be able to travel internationally until he turned 16 years of age. Even if the Court has misunderstood the situation, it would still conclude that X cannot travel internationally until he turned 16 years of age unless the parents agree, or the Court makes an order. As Ms Y noted, this would be a “real shame” for X but, the Court finds, it is an inevitable consequence of their mutual intractable mistrust for each other. X will have to pay the price for this.
Ms Y acknowledged that giving sole parental responsibility in relation to a discrete issue to one parent would, as a practical matter on the facts of this case, prevent the other parent from having input into decision-making. The Court completely agrees. Whether the father, or the mother, has sole parental responsibility in relation to a discrete issue, even if consultation were ordered, the Court recognises the risk that it would be superficial and cursory. The parents have neither listened to each other, nor respected each other’s views. The evidence is littered with communication between the parents that manifested inflexibility, subtle attempts at control, lack of respect, and an inability to understand any other perspective than their own.[5] Nonetheless, the obligation to consult will be enshrined in the relevant orders in the hope and expectation that parental conflict will reduce after final orders are made.
[5] For example, on 15 June 2023 the father sent a text to the mother implying that her new partner could be a paedophile (affidavit of Mr CC filed 11 August 2023, paragraph 39; Exhibit R10). On 25 May 2021 the father sent an email to the mother saying “In the interest of transparency and in my right as a parent, I request that you provide [the child’s] daily routine to me. Specifically, what he is engaged in and with whom whilst in your care, by the hour. Please provide by 1pm tomorrow, Wed 26 May 2021” (mother’s affidavit filed 11 August 2023, paragraph 56). When the mother moved out of the matrimonial home with X in late 2016 she sent a message to the father saying “[X] and I have moved to a different place. I can’t give you the address. I think we should take about a week before you see [X]” (father’s affidavit filed 18 August 2023, paragraph 104). On 2 September 2020 she sent a message to the father unilaterally outlining the time the father was to spend time with X (father’s affidavit filed 18 August 2023, paragraph 10). Lastly, the mother demonstrated a level of inflexibility and unnecessary control when she sent an email to the father instructing him to provide X with a specific diet (Exhibit A29).
Ms Y acknowledged that this was not an academic issue. For example, in relation to education, whilst each parent agreed to home-schooling (indeed with seeming benefit to X and success in terms of implementation) the mother wanted to continue this (subject to X’s views), but the father preferred for X to enjoy the benefits of mainstream schooling. The Court observes that each view is legitimate. From the perspective of Ms Y, however, she was concerned that any decision made by one parent was likely to be undermined by the other if they did not agree. Given the litigation history of this matter, the Court agrees. Each parent demonstrated capacity to be manipulative and self-focused rather than child focused.
Ms Y did provide some general guidelines to the Court about education. For example, if X were ordered to live primarily with the mother, it made more practical sense for her to decide about education, but it was important that every opportunity be given to the father to be involved in X’s education, whether that be home-schooling or in a mainstream school.
Ms Y expressed concern at the mother’s suggestion that she would do what X wants in terms of high school. Ms Y emphasised that X has no concept of ever having attended a mainstream school and, quite apart from whether any decision he makes is an informed one, it was simply unfair to ask him. It was legitimate to ask X which high school he might wish to attend, but not whether he should attend a mainstream school or continue to be home-schooled.
Ms Y acknowledged that her proposal reduced the amount of time that X currently spends with the father. She considered, nonetheless, that it was more helpful for X’s relationship with the father to have block time given the highly conflictual parental relationship, and the desirability of reducing the movements from one home to the other. Nonetheless, it was clear that Ms Y was not inflexibly welded to her proposal and that, for example, there could be benefit to X in spending time with the father in the other week.
Ms Y expressed what the Court considers to be an important professional opinion. She explained that her recommendations would not change if the Court were to be concerned about the mother’s capacity to foster and encourage a relationship between X and the father. As it turns out, and for reasons that will be set out fulsomely below, the Court does precisely have these concerns, but ultimately agrees with Ms Y that in the overall scheme of this case it makes no difference. Despite the earnest attempts of those representing the father to convince Ms Y to change her recommendations because the Court would find that the mother had not, and probably could not in the future, foster and encourage X’s relationship with the father, Ms Y remained resolute, for reasons which the Court accepts. The clear finding of this Court is that X does have a good relationship with his father, a fact quite inconsistent with the contention made above.
Ms Y frankly acknowledged that the father had made a complaint about her in relation to the Report by filing a contempt application that, the Court notes, was ultimately withdrawn.[6] She also explained that the father had made it very clear to her that he was unhappy with the approach she had adopted. She explained that it was not uncommon to have complaints from parents in an evaluative process such as an expert report. The mother too had complained. She put all this aside. The Court has no doubt that Ms Y has expressed a professional opinion based on the evidence without reference to, and uninfluenced by, any complaint or application made by either parent.
[6] The father attempted to file a Contempt Application on 3 February 2023, however this was rejected for filing by a Deputy Registrar. On 20 February 2023 the father filed an Application for Review of this decision, but this was withdrawn and dismissed by consent on 3 August 2023.
In cross-examination by counsel for the mother Ms Y was asked whether she was aware of the nature and extent of the father’s litigation history and his complaints and accusations against the mother and others. She was aware of this. She knew that the mother had stated that the father’s conduct adversely affected her mental health. She was aware that the mother was also concerned about future litigation. Ms Y rejected the contention that it was impossible to co‑parent with the father but accepted that compromise would be very difficult and that, for example, shared parental responsibility would likely cause conflict to which X might be exposed. This might create short, medium and long-term adverse impacts on him including anxiety, a weakened capacity to form relationships, depression, and difficulties with socialisation.
Ms Y accepted the possibility that the evidence supporting some of the mother’s contentions about coercive control might not be substantiated by findings of the Court. An example was in relation to the mother’s assertion of financial control. She deferred to the Court’s findings. She emphasised the subtlety of coercion and control including, for example, simply failing to agree to something. Ms Y expressed that both parents have equally tried to maintain and exert control, particularly with regards to X. She explained that this was in circumstances where the mother thinks her parenting approach is best and any deviation will be detrimental, and where the father has exerted control in his desperation to have input, for example through the litigation process.
There was no specific timeframe outlined in the undertaking, so it is unclear whether it is the father’s intention to adhere to the above after final orders are made. Even assuming that the undertaking was intended to be a continuing final one, it is in problematic terms. Any advice from a solicitor or barrister would be privileged. Whatever advice is given is dependent on the father’s instructions. There is no requirement, for example, that the solicitor or barrister specialise in family law. The undertaking is limited to this Court only, but the father has also litigated in the District Court. In any event the undertaking is so inconsistent with the father’s litigation history that any underlying change in attitude lacks plausibility. The Court does not accept his undertaking.
Vexatious litigant issue
In the mother’s Minute of Order contained in her case outline filed 1 September 2023, she seeks a vexatious proceedings order under s 102QB(2) of the Act.
The father’s litigation history, which culminated in the making of a vexatious proceedings order against him on 8 June 2023 is not in dispute. Those representing the father quite frankly, and appropriately, acknowledged the inappropriateness of his actions. They sought to put this in context however, and that was that the father’s actions were a response, albeit a desperate response, to the mother’s resolute and unreasonable refusal to allow him to spend time with X on a regular and consistent basis. The father’s vexatious litigation, as the Court found, represents a gross and completely inappropriate and disproportionate response to the frustration that the father, perhaps understandably, experienced because of the mother’s controlling behaviour in relation to his time with X. But it was also an abuse of power and an abuse of process which wound up impacting innocent people who were simply doing their job. It was a purported response to a private issue that had significant public ramifications because public resources were applied.
What has changed since the vexatious proceedings order was made, albeit on a limited basis?
While the father retained legal representation for the final hearing and that seems to have curbed his behaviour, his representation filed a Notice of Withdrawal on 25 September 2023. This does not give the Court confidence about the father’s future litigious behaviour.
The father has offered an undertaking in the terms described above at [125]. In context, this might be viewed as a last-minute attempt to address the concern that the Court had clearly articulated throughout the hearing, and which was an issue raised by both the mother and the Independent Children’s Lawyer.
The father demonstrated little insight about the impact of his behaviour, including his vexatious litigation, on the mother and others. In his affidavit at paragraph 238, under the heading “Communication between [Ms Farrelli] and me”, he states: “On reflection, I agree that I have not at all times engaged adequately with [Ms Farrelli] immediately prior to and since the proceedings have been instituted”. At paragraph 241 he indicates that he intends to complete a course in effective co-parenting and that “[c]ommunicating via my Family Wizard should also resolve any issues”. There is no remorse, or reflection about his litigation elsewhere in his affidavit.
In cross-examination the father said little to give the Court any confidence that he has gained some insight about the inappropriateness of his litigation behaviour. Although, when it was put to him by the mother’s counsel that he is not afraid of filing proceedings he said “I’m not afraid of filing proceedings however I recognise the fact that I should have obtained legal advice early on”, and he later agreed that the current proceedings and any further proceedings would be harmful to X. The father also accepted that the litigation conducted by him would have been difficult for the mother.
The criteria for making a vexatious proceedings order has been discussed in my reasons for judgment on 8 June 2023 reported as Gambetto & Farrelli [2023] FedCFamC1F 465 at paragraphs [87]–[93]. Nonetheless they bear repeating in the present context to see whether anything has changed.
The definition of “vexatious proceedings” is found in s 102Q of the Act as follows:
vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The word “proceedings” is defined in s 4 of the Act as follows:
Proceedings means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
Section 102QB of the Act states:
102QB Making vexatious proceedings orders
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
Note:Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney‑General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The consequences on a person who is declared to be a vexatious litigant is set out in s 102QE of the Act:
102QE Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2)The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3)The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
In the often cited authority of State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81–423, Giles CJ (Supreme Court of NSW Commercial Division) provides a helpful review of the authorities relating to abuse of process. In summary, a proceeding may be an abuse of process where:
(1)The proceedings are unreasonably oppressive and unfair to the other party;
(2)The proceedings will bring the administration of justice into disrepute; and/or
(3)The party seeks to re-litigate an issue that has already been determined in previous proceedings.
The assessment of whether vexatious proceedings have been frequently instituted or conducted is not determined solely, or even necessarily, by the number of proceedings. As the Court of Appeal, Supreme Court of NSW in Potier v Attorney-General (2015) 89 NSWLR 284 concluded at [114] and [116]: “…‘frequently’ is a relatively low threshold” and “…both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency”.
The Full Court of the Family Court in Pencious & Searle (2017) FLC 93-805 cited with approval the decision of Perram J in the Federal Court of Australia in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at 77,694–77,695 (“Gargan”), in which his Honour identified some well-established principles and indicia relevant to the determination of whether or not to make a “vexatious proceeding order”. They are:
First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made.
Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
Fourthly, the qualities of vexation…in the commencement by the litigant of proceedings which lack reasonable grounds...
Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
Seventhly, ['frequently' institutes or conducts vexatious proceedings].
Eighthly, each of these notions — the want of reasonable grounds…[and the frequent] institution — are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto - so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court's power to make the order, once enlivened, should be exercised.
Finally, once it is concluded that the Court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise.
The Court finds that a vexatious proceedings order is a necessary final order in this matter. As stated by Peram J above, “[w]here a litigant displays insight into their previous litigious history this will…be relevant for it will suggest…a diminution in the risk posed to the public”. The father has not sufficiently demonstrated this insight. Instead, the way the father has conducted himself throughout the entirety of these proceedings has thrown light on whether the commencement of further vexatious proceedings is likely. While the father may subjectively view his litigious conduct as being justified and in the best interests X, viewed objectively the frequently instituted proceedings in this Court and other courts can be seen as an abuse of process which were instituted to harass or annoy, and which were pursued without reasonable ground. What this matter needs are orders that are least likely to lead to further litigation which will bring finality and stability to X’s life. The Court will therefore make an order under s 102QB(2)(b) of the Act.
ORDERS IN THE BEST INTERESTS OF THE CHILD
Orders will be made largely in line with the Independent Children’s Lawyer’s Minute of Order received on 6 September 2023.
The mother will have sole parental responsibility in relation to X’s education and health. The parties have persistently had issues with agreeing on X’s schooling, so the Court needs to make a decision, and the “least bad” option is the mother having sole parental responsibility. The mother seems to be as invested in X’s education as the father is, even though their participation is qualitatively different. Having made this decision, it is not necessary for the Court to consider the specific issues proposed by the father about schooling. The mother will also have sole parental responsibility for X’s health, as occasions may arise in the future where the parents cannot agree and one of them will need to make the ultimate decision. The person best placed to make this decision is the parent who X lives with, which will be the mother. However, she will still need to consult the father about these decisions, and the father will be authorised and permitted to contact any medical practitioner, health professional or member of the NSW Education Standards (or X’s school if he attends mainstream school) to ascertain information about X’s progress and development.
The parties will have equal shared parental responsibility regarding other long-term issues which relate to the child (such as religious and cultural upbringing). While the Court is conscious of the high level of conflict and difficulty in communication between the parties, the Court has reservations about the mother’s ability to properly manage sole parental responsibility, which is evidenced in examples given above of the mother acting arbitrarily in relation to decision-making. It is noted that the mother proposed sole parental responsibility for the remaining issues, while the father proposed equal shared responsibility. Both parents will need to consult each other and make a genuine effort to come to a joint decision, and otherwise advise the other, as necessary or practical, of their decisions.
X will live with the mother. As had already been explained, for example at [54] and [119], the Court rejects the father’s proposal for equal time as the inevitable result of the application of s 65DAA(5) of the Act and the continuing conflict between the parties. The Independent Children’s Lawyer made three alternate proposals for the time X should spend with the father. The father agreed with the first proposal as an alternative position, which the Court also considers to be the most appropriate option. This is for X to spend time with the father each Thursday from 10.00 am to 6.00 pm, and each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday. This proposal only works whilst X is being homeschooled, so if he commences mainstream school the time during the week will become from after school on Thursday to the commencement of school on Friday. X will also spend time with the father for one half of each New South Wales gazetted public school holiday period, being the first half in odd numbered years, commencing Term 4 2023, and the second half in even numbered years, commencing Term 1 2024. This will provide the father with larger blocks of time with X than the orders currently in place. There will be additional time on special occasions.
X will also be at liberty to communicate with either parent when he wishes, and when X is with either parent for a period of greater than seven days, that parent shall facilitate a phone call from X to the other parent on no less than a weekly basis. Each parent will keep the other informed and notify the other of any changes to their residential address, email address and phone numbers within 48 hours of this change.
If X continues to be homeschooled, where practical, the mother will deliver X to the father at a school-type activity organised by the father, and the father will return X to the mother at a school-type activity organised by the mother. Where such an activity is not reasonably available, the mother will deliver X to the father’s residence at the start of his time with X, and the father will return X to the mother’s residence at the conclusion of his time. If X attends mainstream school, changeover will occur at X’s school during the school term and at each parent’s residence as above during school holidays.
Both parents will communicate all non-urgent parenting matters via the OurFamilyWizard application only, and all urgent communication should be made immediately via text message or email. Each parent will only be at liberty to attend any of X’s sporting, school or extra‑curricular events during the time in which they are caring for X.
The Court will make the Independent Children’s Lawyer’s proposed order for X to spend time with the father during the day on three occasions between the date of these orders and 1 December 2024, for the purpose of taking X to the orientation days of three high schools of the father’s choosing. However, the Court is cognisant that pursuant to these orders the mother will have sole parental responsibility for X’s education. As the evidence indicates that one of the main factors she will take into account when making a decision about schooling are X’s wishes (which the Ms Y found to be inappropriate), the exposure of X to three high schools simply gives him the opportunity to form a view which he can then communicate to the mother for her to take into account. Ultimately, the Court still sees this as an appropriate order, as it allows the father to have some involvement and allows the parties to explore educational alternatives.
X’s name is to remain as “X”. It is noted that the father conceded to this order during the final hearing.
X’s name will also be placed on the Airport Watchlist until he reaches the age of 16. This order was conceded to by all parties by the time of closing submissions.
Interim consent orders were made on 6 September 2023 for each parent to cause X to be enrolled in and complete the AA Program conducted by BB Services, as a condition of the existing parenting arrangements. This will be repeated and continue to be a final order, as a condition of the lives with and spends time arrangements in these orders.
A vexatious proceedings order will be made pursuant to s 102QB(2) of the Act, prohibiting the father from instituting further proceedings under this Act in a court having jurisdiction under the Act. The father may apply to the Court for leave to institute further proceedings. This order is broader than that proposed by the mother, however the Court regards it as necessary because the father’s litigious conduct related not only to parenting orders or other orders in relation to the child, but also to evidence, practice and procedure.
Each party will pay one half of the Independent Children’s Lawyer’s costs of these proceedings, the total sum being fixed at $29,251.50, or such lower sum as may have been advised by Legal Aid New South Wales in writing.
I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 13 October 2023
7
1