Gilbey & Park

[2021] FCCA 1814

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gilbey & Park [2021] FCCA 1814

File number:

MLC 5407 of 2021

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

6 August 2021

Catchwords:

FAMILY LAW – interim parenting – child’s spend time arrangements with father – child lives with mother – where child has autism spectrum disorder – mother’s unilateral determination of care arrangements

Legislation:

Family Law Act 1975 (Cth), ss 60CC, 65DAA

Cases cited:

Boyd & Sage (2020) 61 Fam LR 211

Goode & Goode [2006] FLC ¶93-286

Number of paragraphs:

92

Date of hearing:

16 July 2021

Place:

Melbourne

Counsel for the Applicant:

Ms A Goldthorp

Solicitor for the Applicant:

KHQ Lawyers

Counsel for the Respondent:

Ms B Kildea

Solicitor for the Respondent:

Sayer Jones

ORDERS

MLC 5407 of 2021

BETWEEN:

MR GILBEY

Applicant

AND:

MR PARK

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	16 JULY 2021

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

1.The parties have equal shared parental responsibility for the child X

("X") born in 2007.

2.X live with the Mother.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

3.X spend time with the Father during school term periods as follows:

(a)In week 1, from the conclusion of school or 2:50pm on Monday until the commencement of school or 8:30am on Wednesday; and

(b)In week 1/2, from the conclusion of school or 2:50pm on Friday to the commencement of school or 8:30am on Wednesday;

(c)as otherwise agreed between the parties in writing.

4.All school holiday periods shall be shared between the parties equally, and in default of agreement:

(a)With the Father to have the first half of each school term period;

(b)With the parties to share the care of X on a week about basis during the long summer holiday period.

5.For the purpose of these Orders:

(a)the number of nights in each school holiday period shall be used to calculate one half of the school holiday period; and

(b)if there is an uneven number of nights the Father shall retain the additional night in even numbered years and the Mother shall retain the additional night in odd numbered years.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

Special Occasions

6.X spend time with each parent on the following special occasions (and the other party's time pursuant to these Orders be suspended):

(a)On X's birthdays each year, as agreed between the parties in writing and in default of agreement the parent who is not otherwise spending time with X will spend time with the X from 4pm to 7:30pm.

(b)Over Easter:

(i)In odd numbered years:

A.With the Father, from 2:00pm on Easter Saturday to 2:00pm on Easter Sunday;

B.With the Mother, from 2:00pm on Easter Sunday to 2:00pm on Easter Monday;

(ii)In even numbered years:

A.With the Mother, from 2:00pm on Easter Saturday to 2:00pm on Easter Sunday;

B.With the Father, from 2:00pm on Easter Sunday to 2:00pm on Easter Monday;

(c)On Mother's Day, with the Mother, from 5:00pm proceeding Mother's Day until 5:00pm on Sunday

(d)On Father's Day, with the Father, from 5:00pm proceeding Father's Day until 5:00pm on Sunday

(e)Over Christmas:

(i)In even numbered years:

A.With the Father, from 3:00pm on Christmas Eve to 3:00pm on Christmas Day;

B.With the Mother, from 3:00pm on Christmas Day to 3:00pm on Boxing Day, with the regular arrangements pursuant to these Orders to resume thereafter

(ii)In odd numbered years:

A.With the Mother from 3:00pm on Christmas Eve to 3:00pm on Christmas Day;

B.With the Father, from 3:00pm on Christmas Day to 3:00pm on Boxing Day, with the regular arrangements pursuant to these Orders to resume thereafter.

(f)All other times and occasions as may be agreed between the parties in writing.

Changeover

7.Where changeover does not coincide with the commencement or conclusion of school, the parent who is commencing time is to collect X from the other parents home at the commencement of time or such other place as agreed between the parties in writing.

Communication

8.Each party shall facilitate telephone communication between X and the other parent during times X is in their care at all times reasonably requested by X and the parent with whom X is spending time with ensure that X is provided appropriate privacy.

9.Each party shall ensure that the other party is kept advised of their current residential address and phone number and notify the other party in writing of any respective changes to them within 24 hours of such taking effect.

10.The parties communicate with each other by text message or email as to matters pertaining to X unless in the case of an emergency in which case the parties will communicate via telephone.

Travel

11.As soon as practicable the solicitor for the Mother serve a sealed copy of this Order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED that the Australian Federal Police give force and effect to this Order to remove the X from the Airport Watch List.

12.Each party be at liberty to travel interstate with X, and in relation to the travel:

(a)The proposed travel occurs during X's time with the travelling parent, unless otherwise agreed between the parties in writing;

(b)The travelling parent provides the non-travelling parent 14 days' notice of their intention to travel interstate; and

(c)Provide details of where X will be staying.

13.Each party be at liberty to travel with X outside the Commonwealth of Australia, provided:

(a)The proposed travel occurs during X's time with the travelling parent, unless otherwise agreed between the parties in writing; 

(b)The travelling parent provides the non-travelling parent not less than sixty (60) days' notice in writing of any international travel and the travelling parent provide the non-travelling parent with all details of the travel location and the dates on which it is proposed X will depart the Commonwealth of Australia and return to the Commonwealth of Australia;

(c)The travelling parent provides the non-travelling parent no less than twenty-one (21) days before the departure from the Commonwealth of Australia:

(i)an itemised itinerary which shall include contact details whilst overseas;

(ii)a copy of insurance policies,

(iii)details of all accommodation; and

(iv)flight details and a copy of X's return flight details;

(v)The travelling parent provide the non-travelling parent with a contact number on which X can be contacted during the international travel.

14.The non-travelling parents time with X pursuant to these Orders be suspended during any agreed overseas travel to enable the travelling parent to holiday out of the Commonwealth of Australia with X.

15.The non-travelling parent be at liberty to communicate with X via telephone, email or text at all reasonable times during the travel, save in the event of a lack of internet/mobile reception.

16.The parties undertake take all such necessary actions and sign all necessary documents (including electronic) to obtain and otherwise maintain a valid Australian Passport for X and the costs for such shall be equally shared between the parties.

17.In the event that either parent seeks to travel without X, and during times they have X in their respective care, the parent intending to travel shall provide the other parent with reasonable notice of no less than 48 hours of their intention to do so, and the other parent be provided with the first option to care for X.

18.At times when X is not travelling overseas, the Father will retain X's Australian passport.

19.Not less than 7 days prior to departure, or at such time as required to facilitate obtaining travel documents, the father provide X's passport to the mother and the mother return the passport within 7 days of her returning to Australia, or no longer requiring it for the purposes of obtaining travel documents.

Restraint

20.The parties, their servants and/or agents be and are hereby restrained from:

(a)denigrating the other party, their family, partner or friends to and/or in the hearing and/or presence of X and/or X to remain in the presence of any other person doing so.

(b)Discussing these proceedings and/or parenting matters in the presence or hearing of X or permitting any other person to do so; and

(c)Passing messages to the other parent through X.

21.The parties shall be restrained from enrolling X in any extracurricular activities which may occur during X's time with the other parent, save as may be otherwise agreed between the parties in writing and in the event the parties do agree on the enrolment, they shall each facilitate X's attendance during times and on days X is in their care.

22.The mother be restrained from taking the child to any direct action event/protest.

Medical

23.Each parent notify the other parent by way of text message of any significant illness, injury or medical condition affecting X whilst in their respective care including the details of any treatment administered to X and the details of the medical practitioner who administered such treatment

24.Each party provide to the other the names, addresses and telephone numbers of all medical professionals who may treat X and authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received by each party from other medical professionals and authorise them to discuss any aspect of X's health with them.

25.That the parties shall forthwith authorise any school X may attend to provide both parties copies of reports, newsletters and announcements of school activities, or otherwise pertaining to the education of X, or if none have been made available in writing, then the parties shall provide written particulars, which includes by email, of such reports and/or activities to the other within 3 days of such documents or particulars being received by either party from the school, and the parties shall authorise staff members at any school X may attend, to discuss X's progress with the other.

Mediation

26.The parties attend a mediation with G Counsellors to attempt to resolve their issues relating to ongoing care arrangements of the X and any relevant personal and interpersonal issues.

THE COURT ORDERS THAT:

Family Report

27.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child X born in 2007 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 31 March 2022 AND THAT:

(a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child.

(b)The parties comply with all reasonable directions of the Family Consultant.

(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.

28.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.

Trial

29.The proceedings be adjourned to 3 October 2022 at 10.00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit Court of Australia at Melbourne.

30.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.

31.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

32.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 56 days prior to the Final Hearing.

33.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 42 days prior to the Final Hearing.

34.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

35.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.

36.For final hearings, parties are directed to have multiple copies of the documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own.  Electronic court books are encouraged.

37.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].

38.The reasons for judgment otherwise be reserved.

AND THE COURT NOTES THAT:

A.The parties agree for the purposes of these orders a 'direct action event/protest' involves the participants engaging in physical actions such as sit-ins, physical attachment to buildings and/or environmental places/things in the context of a protest.

B.The parties agree that X's time with the father will commence today pursuant to paragraph 3b herein byway of the father collecting X from the mother's home at 2pm.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Gilbey & Park is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

BACKGROUND

1. In this matter, I am required to determine the interim or short-term living arrangements for X (‘the child’), now aged 14.  X has a degree of autism spectrum disorder and may have other conditions.  The Applicant Father, Mr Gilbey (‘the Father’) is aged 41 and is a building supervisor.  The Respondent Mother, Ms Park (‘the Mother’), is currently not in paid employment, but is actively involved in caring for the child, and also significantly involved altruistically in political activism.  The Mother has adult children from a previous relationship who spend significant time with her, and one of those adults also lives with her and the child.  The Father has re-partnered and has a four year old son with his wife, Ms Gilbey.

2. The parents commenced cohabitation in about 2006 and separated in about 2010.  The Father issued proceedings in May 2021 after a crisis arose when one of the parents acted unilaterally and commenced to dictate the parenting arrangements to the other parent in April 2021. 

   PROCEDURAL HISTORY

3. The proceedings the Father issued were returnable in Court on 15 June 2021.  On that day, a registrar made an order for the Mother to file a response, an affidavit, and a notice of child abuse, family violence or risk.  In addition, there was an order for what is known as a section 11F report to be undertaken by interviews by a family consultant of the Federal Court of Australia.  The 11F interviews were to be conducted on 16 June 2021.  Otherwise, the proceedings were adjourned for interim defended hearing to this Court on 14 July 2021.

4. The Mother filed material as ordered on 9 July 2021.  The Father then filed a substantial affidavit of a total of 68 paragraphs over 10 pages, plus a further 19 pages containing five annexures, on the night before the Court hearing, at 8.36 pm.

5. The matter returned before me on 14 July 2021 in a busy list with a number of matters and some significant time pressures for hearing.

6. The Father sought to rely on the late-served affidavit and this was objected to.  I did not read the affidavit until I heard submissions as to whether it could be relied upon or not.  After hearing submissions, I decided that it was necessary to have regard to the affidavit and its contents to determine whether or not I should permit it to be relied upon.  After reading the affidavit, I determined that the Father should be permitted to rely upon it, but that it was procedurally unfair to expect the Mother to provide instructions to the various matters contained within it to her counsel to enable consideration of dealing with the matters raised.

7. Due to the next outbreak of COVID-19 in Victoria, the hearing was being conducted via Microsoft Teams.  Counsel were in their chambers and the parties in their homes.  Not only does this make a hearing clunky and more time-consuming, but the reality is it makes it significantly more difficult for a party to provide cohesive instructions to their counsel in regard to a large document.

8. In those circumstances and for the purpose of enabling the Mother to contemplate the contents of the affidavit and provide instructions to her counsel in a less-pressured manner, I adjourned the matter to 16 July 2021 for further hearing.  I advised the Mother's counsel that I did not expect a response to the late-filed affidavit on affidavit, but rather would apply the usual practice in a duty list where late-filed material is permitted to be relied upon, of permitting instructions, where carefully obtained, to be put from the bar table.

9. When the matter resumed before me on 16 July 2021, the Mother had provided to my associate a bundle of text messages of 25 pages passing between the parties in June 2021 and a further bundle of 15 text messages passing between the parties in July 2021.

10. I then heard submissions from both parties, including the Mother's counsel putting instructions as to matters raised in the Father's late-filed reply affidavit.

1. This is an interim hearing and I follow the pathway and guidelines laid down by the Full Court in Goode & Goode [2006] FLC ¶93-286, including the observations of the Court at paragraph [73], [81]-[82] and [68]. At paragraph [68], the Full Court made the following statements:

   [68]…The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. At paragraph [73], the Court observed as follows:

   [73]That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

3. At paragraphs [81]-[82], the Court observed as follows:

   [81]In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   [82]     In an interim case that would involve the following:

   (a)       identifying the competing proposals of the parties;

   (b)       identifying the issues in dispute in the interim hearing;

   (c)       identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

4. There are a number of matters in dispute as to the past care arrangement for the child.  The Father asserted in his original affidavit that since 2013, the child had lived with him from the conclusion of school each Monday and Tuesday to the commencement of school the following day in each week, and each alternate weekend from the conclusion of school Friday to Sunday evening.  That observation was controversial upon the filing of the Mother's affidavit on 9 July a few days before the hearing. 

5. The Mother asserted that she had been the child’s primary carer all his life and that the arrangement described by the Father exaggerated the time he had spent in the Father's care.  In terms of the precise arrangement specified by the father, the mother asserted that a version close to this, but not identical, had only been in place for the period of February 2021 to April 2021. 

6. The Mother asserted that from April 2021, the child had mostly spent time with the Father on each Wednesday from the conclusion of school to the commencement of school on Thursday, and each alternate weekend from the conclusion of school on Friday until 5pm on Sunday, and for four consecutive nights during the two school term holidays, as agreed.  The Mother opined that these arrangements were working well.

7. As I will recite shortly, these arrangements were as dictated by the Mother to the Father in April 2021 and I find that he sensibly acquiesced in those arrangements, rather than have a second wave of unilateral care arrangements imposed on the child.  It was central to the Mother's case that in her opinion, the child was unsettled during the February-to-April regime.  Further, the Mother stated that notwithstanding that the child had been with his Father on Tuesday nights, as asserted by the Father, she had in fact picked him up from the school bus on Tuesday afternoon and that she would then drive him to a halfway point.

8. In regard to the annexures to the reply affidavit, one of those is a letter reciting school bus arrangements dated 19 April 2021, from the business manager at C School.  In the end, each party relied upon that letter as corroborating his or her assertion of the past history.

9. It seems clear enough that that letter corroborates the Mother's assertion of collecting the child from the school bus and delivering him to the Father's home of a Tuesday night, which would contradict the Father's implied assertion that he was with him from after school on the Tuesday night, as well as the Monday night.

10. The Mother asserted in her affidavit of 9 July 2021 that the care arrangements for the child had changed frequently between 2013 to the current date.  She also asserted that she had become increasingly frustrated with the ongoing changes as she felt that this was unsettling for the child.  The Mother also asserted that the child experiences difficulties when there are sudden changes to his routine; as well as socialising and interacting with people that he is not comfortable with.  The Mother also deposed that she was concerned for the child routine and wanted consistency for him. 

11. The Mother deposed that between 2016 the child had spent overnight time with the Father most Tuesday and Thursday nights and sometimes over the weekends. 

12. The Mother deposed that between 2017 and 2018 the child had spent overnight time with the Father most Monday and Thursday nights during the week and sometimes over the weekends.

13. The Mother deposed that between 2018 and 2019 the child had spent time with the Father most Monday and Tuesday nights during the week and sometimes over the weekends.  She also deposed that on many occasions the Father was unable to care for the child during the week and the child remained in her care throughout the school week. 

14. The Mother deposed that commencing in 2020, due to COVID-19 restrictions, the child spent most days during the week in her care and that the child sometimes went to the Father's residence on Monday.  She deposed that during this time she and the Father did not have set care arrangements and that she recalled the child would spend time with the Father each week for one or two nights. 

15. Hence, there is a dispute as to the precise arrangements, and it was submitted by the Mother's counsel that I should accept that the care arrangements for the child were fluid but with the Mother always being the backstop for those arrangements.

16. Despite this disagreement as to the precise history, it is clear that save as interrupted by COVID-19, it is not disputed that for many years the child has spent weekend time with his Father, albeit not every weekend and not necessarily every alternate weekend, and, in addition, has for many years spent two nights overnight with his Father in each week of school term.

    THE COMPETING PROPOSALS

17. The competing proposals of the parties, with the assistance of experienced counsel, had narrowed substantially by 16 July 2021 when I came to determine the matter.

18. Counsel had helpfully prepared one minute of the orders that were sought whereby the different orders where there was a dispute were both marked on the one document with the orders the Mother sought being highlighted in red and with the orders that the Father sought being highlighted in blue.

19. The parties had sensibly agreed to about two dozen other orders.

20. The Mother sought that the child live with her and spend time during the school term on a fortnightly basis, being from after school Wednesday until the commencement of school on the Thursday in each week and each alternate weekend from the conclusion of school on Friday until 4pm on Sunday and, in the alternate week, from after school Wednesday until the commencement of school Friday, that is, two nights in that week;  hence, the arrangement that the Mother sought was effectively for five nights per fortnight during school term.  That is for one night more per fortnight that had been in place since April 2021.  The Mother sought that the school term and long summer holidays be as agreed between the parties and, in default of agreement, for seven nights over two separate blocks or periods and, failing agreement, with five nights in one block with two nights in another block.

21. The Father sought orders that the child spend time with him on a two-week basis with the first week being from the conclusion of school on Monday until the commencement of school on Wednesday, that is, two nights during that week and, in the other week, from the conclusion of school on Friday to the commencement of school on Wednesday.  Essentially, five nights in one week plus two nights in the other. 

22. Upon the Father's case, the difference between the orders that he sought and what he asserted was the longstanding arrangement was that instead of the child being returned to his Mother's care on the Sunday evening of each alternate weekend and then coming back into his Father's care on the Monday after school he would remain with his Father on that Sunday evening of the weekend so that the time period become one block of five nights rather than two blocks of two nights separated by one night.  In the other week, the Father sought the continuation of what he said was the same arrangement that is two nights in that week.

23. In terms of identifying the agreed or uncontested facts, it was agreed and uncontested that the child had spent some weekend time with his Father and two nights overnight in each school week for many years save as interrupted by COVID-19.

24. I am unable to determine whether the Mother has more accurately described the arrangement or whether the father has more accurately described the arrangement.

25. The other matter that is uncontested is that the parents had reached these arrangements over the many years, whichever version is correct, by agreement between them.  This demonstrates a high degree of cooperation and a responsible attitude to everyday parenting. 

26. The manner in which the parties had worked it out for themselves, what was essentially a shared care arrangement although not equal shared care, was entirely consistent with a principle under the Family Law Act 1975 (Cth) (‘the Family Law Act’); that parents should, where possible, agree on their children’s arrangements.

27. The recent events that give rise to the current dispute commence in the lead-up to Christmas of 2020.  The Mother asserts, and it is not disputed, that she resigned from her job.  She said that was because she was under a lot of pressure from falling behind in her work due to leaving work early to meet the child at the bus stop each day and organising care arrangements during the school holidays and on curriculum days.  The Father's position is that the Mother resigned her job to have more time to pursue her altruistic politic activism.  I am unable to determine that dispute, and even if I were, that would not inform the decision that I must make.  The Mother deposes that after resigning from her job she believed that she was paying a greater share of the child expenses.  It is common ground that until shortly after the mother resigned her job the parents had, for many years, a private agreed arrangement for child support.  It was common ground that up till that time the father had been paying $150 per fortnight to the Mother's bank account with some sharing of other expenses.  It must be recalled that it is the Mother's case that the care arrangement that the father asserts was only in place for a short period of February to April 2021.

    THE MOTHER’S UNILATERAL DETERMINATION

28. On 12 April 2021, there was a detailed and articulate statement by the Mother to the Father of her decisions in regard to child support and the child's care.

29. The other central dispute between the parties is whether the Mother's undisputed unilateral determination of care arrangements was driven solely by the Mother's concern that the then-existing arrangements were unsettling for X and not in his best interests or whether, as the Father asserts, they were driven by the Mother's motivation to maximise her child support arrangements.  I am unable to determine which of those potential motivations is correct or whether it is a mixture of the two on this interim hearing. 

30. However, the events of 12 April 2021 are clear enough.  At 11.29 am, the Mother sent a detailed text message to the Father which, on its face, conflated care arrangements with child support and which went as follows:

    Mother:From next Tuesday, I am picking X up from school.  I cannot survive on 350 dollars a week, and no child support is coming through.  So the care percentage will change.  You can have him every Monday and fortnightly Fri and Sat night.  School holidays he is with me most of the time, which you didn't take into account.  I have emailed the school.  Child support will contact you.

    Father:You can't do that. 

    Mother:        I already have. 

    Father:Well, you're going to have a fight on your hands.  You can't dictate terms…

    Mother:You and Ms Gilbey have fucked me over financially.  I have to do what I must to ensure my kids have a roof over their heads.

    Then take me to court.

    Father:…your gonna use X as ransom instead of getting a job.  Good one… Good parenting. 

    Mother:How dare you try to force me to work by screwing me over financially.  That's none of your business.  Why don't you pay the arrears?

    Father:You choose not to work.  That's on you.  You can't use X as a weapon and stop him seeing his father which is exactly what you're doing.  And I will pay what's fair because the last couple of school holidays he has mainly been with me.

    Mother:        Fair?? So you get to decide what's fair and not child support?

    Father:          Child support decides what's fair based on evidence provided.

31. The parties continued to exchange text messages throughout that day in a similar vein, but that included:

    Father:Then we're going to court.  I have a meeting next week.  It's clear as day you're doing this for money, not for X's benefit.  The courts will see through that in seconds.

    Mother:Whatever.

    They will see a rich family who hasn't paid what's due.  A rich family trying to get out of paying a mother what she is entitled to.  Go for it, Mr Gilbey.  Drag me and my kids through court.  You have no idea how it works.  I suggest you talk to Mr D and Mr E.  They always paid even when it wasn't fair.  Be prepared for the outcome to be worse for you. 

    Father:          I guess we will see. 

    Mother:        X is not coming. 

32. The Mother then sent by text a child support statement which showed arrears of child support (based upon the Mother's recent position to child support on what had been the time arrangements) of arrears of $2872.  The text message included the Mother asserting:

    …which does not include the last few years.  X doesn't want to come to your place either.

    2872.86

33. And the last text message in evidence is from the Mother:

    Do not contact me anymore.  Check your email shortly.  And give your lawyer my number.  I have nothing more to say to you.

34. However, in addition to that flurry and exchange of text messages, at 5.34 pm on the same day the Mother sent a long and detailed email setting out her account of events which included the following:

    …This is what is happening from now on.  X will not be coming back to you until you have paid arrears in child support from several years ago.  You have wealthy parents and you yourself have an expensive car.  There is no excuse why you cannot pay.  You have the capacity.  When you have made the arrangements to pay the arrears, you will have X every second weekend and one weekday night per week.  This will give me primary care of X (which I have always had) and enable me to get back on my feet and continue to provide a roof over the heads of my three children.  When I see this happening, maybe then I will be able to forgive you for what you have done … Tell your lawyer to contact me directly as I no longer will engage with you.

    (emphasis added)

35. Following these events, on 15 April 2021 the Father's lawyers wrote to the Mother stating that the Father would accept the time that had been offered for the child that weekend and that he would collect the child for the conclusion of school on Friday, 23 April 2021.

36. Shortly following that exchange of correspondence, and the Mother setting the parameters of the Father's care of the child by simply dictating that to him it is common ground that the Mother left the child in the care of her adult daughter Ms F and went away for two or three weeks on a continuation of her altruistic political activities.

37. Without consulting the Father, the Mother left instructions for her adult daughter as to how the child was to be cared for, and in the circumstances where the Mother's daughter had her own life and work obligations, and set out how other people including Ms G, Ms H and Ms J as well the Mother's son Mr K would care for the child in the Mother's absence.  The Father asserts that he was willing and able to care for the child during that two or three week period.  The Mother asserts it was only two weeks and asserts that it was necessary to leave the child in the care of her daughter and not the Father because she wished to create stability for him.

38. It is very much to the Father's credit that rather than creating a scene, as is too frequently seen from time to time, the Father acquiesced in the care arrangements that the Mother dictated.

39. Further, the text message evidence shows that the Father communicated in a sensible, friendly and respectful manner with the Mother's daughter Ms F as to those care arrangements and was at all times prepared to assist her with the care of the child. 

40. Although this is an interim hearing, I am unable to accept that the Mother's motivation for the unilateral change of care and the leaving of the child in the care of her adult daughter while she travelled away was solely motivated by her concern for the child’s best interests.

41. On the other hand, I am unable to and do not accept, for the purpose of this hearing, the Father's contention that these arrangements were made solely for the purpose of advancing the Mother's child support position.

42. Whatever the motivation, such an arrangement being dictated by the Mother was not consistent with the child’s need for routine and consistency, which the parties both, in substance, assert X needs.

1. Following those events, the Father proposed a mediator, and the Mother refused to attend that mediator and proposed another.  The net result was the parties did not attend mediation and the proceedings overtook attempts at mediation.

2. It is heartening that the parties have now agreed that they should proceed by way of mediation.  The agreed minute did not provide for the future conduct of this litigation, and I will fix a mention intended to be after the parties have attended mediation with B Counsellors.

3. It may be that the parties' history of sensible arrangements of care being made between themselves will return with the assistance of that service.

4. The evidence also demonstrates that notwithstanding that the Mother had announced an eviction party at the home where she lives, she was not being evicted, and as happens from time to time, the landlord of the premises she rents, lawfully, sought an alternative use.  The Mother's counsel tell me, and I accept, that the Mother will retain suitable alternative accommodation along the child's bus route to enable her to continue to care for the child as she has done for many years.

   THE SECTION 11F MEMORANDUM

5. The other matter that I had before me was the helpful section 11F child inclusive conference memorandum.

6. Frequently an section 11F memorandum will assist the parties by allaying their fears about the welfare of the child and/or the motivations of the other parent and promote an agreement.  That was not the case in these circumstances.  That is not to suggest that the memorandum containing the opinions and observations of the family consultant must determine the matter.

7. A child inclusive conference is as described by Bennett J in Boyd & Sage (2020) 61 Fam LR 211 at [15]:

   [15]…That assessment is a “Child Inclusive Conference” which is a meeting with a Family Consultant, the adults and the children involved in the matter and is ordered by the Court.  Lawyers are not included.  The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren’s experience…

8. The section 11F family report writer saw the family on 16 June 2021 and saw the family in person.  At this time the arrangement that the Mother had put in place, which, it is common ground, was less time for the child with his Father than had been the case historically, whichever version is true, for about two months.

9. This judgment endeavours to live up to the hope expressed of this Court by the senior child practitioner.

10. The 11F memorandum observed at 13:

    13.Throughout the interviews, both Ms Park and Mr Gilbey spoke about each other in a respectful and genuine way, both acknowledging that they have been able to manage X’s spend time arrangements between themselves for a period of nine years.

11. And at 14:

    14.Previously the parties had a private child support arrangement; however, in December 2020 Ms Park requested Mr Gilbey pay a higher amount, reportedly in line with the statewide guidelines. The current conflict appears to be as a result of conflict regarding child support payments, which escalated to a point in which X was not returned to the care of Mr Gilbey as had been agreed. During the interview with Ms Park, she showed remorse for this decision, advising that she knew now that withholding X was the wrong thing to do, however was frightened by the letters from Mr Gilbeys legal representative and made a poor decision. 

12. Those statements to the report writer do not sit comfortably with the chronology of the events of 12 April 2021 and the circumstance of the first lawyer's letter following those events, being on 15 April 2021, following the communications of 12 April 2021.   

13. It may be that at a final hearing with cross-examination of the parties the explanation for that statement, which I accept was made, is more transparent.  Most importantly, the child was spoken to as follows:

    17.X is 14-year-old boy who presented as engaging during his conversation with the writer. X spoke about school, advising that he enjoyed P.E, and art the most out his classes. He expressed that he enjoyed going to school, particularly to see his friends, and missed this during the COVID-19 lockdown periods. X advised the writer that he has a special interest in DJing, and is wanting to pursue a career in this when he is older.

    18.X spoke fondly of both of his parents, and was able to describe what each household was like. X advised that ideally, he would like to spend more time with both of them, and expressed that his go to trusted adult was Ms Park.

14. As to the Mother, the report writer observed as follows:

    22.It is clear that Ms Park is engaged in activism, demonstrating a passion for human rights issues. Although this is positive, X’s care, and well-being need to take precedence over any competing demands she may have. Ms Park was highly emotional throughout the interview with the writer. Although the writer empathises this is a highly emotive topic, it could be beneficial for Ms Park to engage in regular counselling. This would provide her with a safe space to discuss, understand and process difficult emotions.

15. As to future directions, the report writer included the following.

    25.The court may consider spend time between X and Mr Gilbey reverting to the previous arrangement of two nights per week (in one block), and every second weekend.

16. The other recommendations of the family report writer seem wise and well-considered.

17. In addition, I had a section 67Z response dated 11 June 2021 from the Department of Families, Fairness and Housing (DFFH) which had been made available to the parties, and notwithstanding some observations relating to a 2010 report of the emotional instability of one of the parents, the section 67Z report had opined: 

    There are no significant concerns identified for X in the care of either of his parents.  It is hoped that the Federal Circuit Court will determine the most suitable contact arrangements, in a way that prioritises X's ongoing safety and wellbeing.

18. This judgment endeavours to live up to the hope expressed of this Court by the senior child practitioner.

    CONSIDERATION

19. The parties' counsel addressed me efficiently but persuasively on the basis that it was taken as read that I would apply Part VII of the Family Law Act and the best interests of the child as the paramount consideration and sections 60CC(2), (2A) and section 60CC(3) to the extent relevant. I do so. I am grateful to counsel for the efficiency of their submissions in what was a busy list.

20. I determined that the orders should be as sought by the Father. 

21. In this case, I regard the best interests of the child as the paramount consideration.  The primary consideration is the benefit to the child of having a meaningful relationship with both of his parents.  I am satisfied from the history of the many years of care post-separation that it is very much to the child’s benefit to have a meaningful relationship with both of his parents.  I also take into account and place significant weight on the observations of the section 11F report writer.

22. In this case, I do not find that there is any need to protect the child from physical or psychological harm in the care of either parent to the extent that it determines these orders. 

23. I share with the report writer a concern that the child may become involved in the adult parenting matters of disputes about child support indirectly. 

24. However, I have no doubt that both parents care deeply for the child and would not intentionally harm him. 

25. I take into account the child’s views, as expressed to the report writer, of seeking more time with both parents. 

26. To the extent that I can, I take into account that the child has a good and close and appropriate relationship with each of his parents.  It may be that the history of his Mother being the primary carer or, at least, the carer on more nights than the Father when the child was younger may mean that he has a closer relationship with his Mother.  I am unable to determine that on this interim hearing.  I am satisfied that both parents have taken every opportunity to spend time with the child and to make major decisions about long-term care.  The change that I will make to the child’s arrangements from what was in place previously is that he will spend more time with his Father, that is, the Sunday night and Monday morning to school, than he previously had prior to the interruption of the consensual arrangements in April 2021 and more time than has been recently in place. 

27. I am satisfied that this change is in the child’s best interests because of the sadly significantly deteriorated relationship between the parents following the events of 12 April 2021.  In that circumstance, I find that it is not in the child’s interest to return to the Mother's home on the Sunday evening to be taken to school and then returned to his Father's care following school on the Monday evening.  That is how things have been in the past and at least were in the period February to April 2021. 

28. I find that is in the child’s best interests, taking all of these matters into account, to link up those two blocks of time into the one block of time.  This will promote stability and consistency for the child in the care of each of his parents.  I have taken into account the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.

29. I am concerned that either of these parents would unilaterally, after many years of consensually making arrangements between themselves, dictate to the other what the arrangements should be.

30. There is no evidence before me that this has occurred prior to April 2021.  It may be that the events of 12 April 2021 and following are an aberration.

31. However, for either party to unilaterally dictate to the other, after many years of consensual arrangement, demonstrates a less than appropriate attitude to the child and the responsibilities of parenthood.  One of the heavy burdens and responsibilities of parenthood is the manner in which care arrangements for children are sorted out with the other parent.  I must apply the Family Law Act and one of the principles underlying that Act include that parents jointly share duties and responsibilities concerning the care, welfare and development of their children, and parents should agree about the future parenting on their children.  Either parent unilaterally dictating arrangements to the other, in the face of a long history of consensual arrangements, is entirely inconsistent with those principles and that is whatever the motivation.

32. In this case, the presumption of equal shared parental responsibility does not arise.  In this case, it was also agreed by consent that the parties should have equal shared parental responsibility.

33. That the parents agreed to that order is a positive for the child’s future and implicit in it is that each fundamentally has a regard for the other's judgment as a parent.

34. Such an order triggers section 65DAA of the Family Law Act.  In this case, I must consider whether the child spending equal time with the parents in the child's best interest and is reasonably practicable.

35. If that is not in the child's best interest and reasonably practicable, I must consider whether the child spending substantial and significant time would be in the child's best interests and reasonably practicable.

36. In considering that, I must not lightly disregard the direction of Parliament to “consider” meaning to consider positively.

37. However, in this case, the consequence of joining up one night in what had been, at least at times, the care arrangements for the child ends up with time being approximately equal.

38. However, notwithstanding the command to consider such arrangement, my primary determination of why it is in the child’s best interest for the orders that I have made, is because of the history of the sharing of care for the child and the recent deterioration in the parties' arrangements.  I also take into account that the child is now older and would be better suited to longer blocks of time with each parent than when the prior arrangement was put in place. 

39. Hence, my consideration of section 65DAA(1) of the Family Law Act 1975 is consistent with and parallel with my determinations of X's best interests, by otherwise applying section 60CC(2) and (3).

I certify that the preceding ninety-two (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate: 

Dated:       6 August 2021