IBRAHIM & TEMPLEMAN

FAMILY COURT OF AUSTRALIA

IBRAHIM & TEMPLEMAN

[2013] FamCA 340

FAMILY LAW – CHILDREN – Child’s living arrangements – where the child lives with the mother – where it was in the child’s best interests and reasonably practicable for her to spend substantial and significant time with the father – where the child has a meaningful relationship with both parents – where the child is not at risk of physical or psychological harm from abuse, neglect or family violence in the care of either parent – where the mother was able to meet the child’s emotional needs – where the father could not separate his emotions from those of the child – where the father had inappropriately involved the child in the parenting dispute

FAMILY LAW – CHILDREN – Parental Responsibility – Parents have equal shared parental responsibility for the child – where the presumption of equal shared parental responsibility applied

FAMILY LAW – INJUNCTIONS – Parties restrained from taking the child outside of Australia without the express permission of the other – where the child’s name was removed from the Airport Watch List – where the father had previously threatened to remove the child from Australia – where the parties intended to remain in Australia – where the mother had family overseas – where the father had business associations overseas

FAMILY LAW - DIVORCE – Divorce Orders – Dispute as to the date of final separation – findings made on the balance of probabilities about the date of separation – where the parties lived under the same roof for several short periods following their final separation – where the wife deliberately misled the husband about reconciliation to ensure her interaction with the child

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father’s application for appointment of an Independent Children’s Lawyer was dismissed

Family Law Act 1975 (Cth) s 4, 49, 50, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65Y, 65AA, 65DA, 65DAA, 65DAC and 65DAE
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth)

Re K (1994) FLC 92-461
Goode & Goode (2006) FLC 93-286
Marriage of Clarke (1986) 11 Fam LR 364
Marriage of Spanos (1980) 6 Fam LR 345
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Ibrahim

RESPONDENT:

Mr Templeman

FILE NUMBER:

NCC

3129

2011

DATE DELIVERED:

15 May 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

22, 23 and 24 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B Kelly

SOLICITOR FOR THE APPLICANT:

Derham Houston Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Orders

The Application for Divorce filed on 22 October 2012 is granted and the marriage solemnised between the parties on … September 2001 in …, Malaysia is dissolved.
All former parenting and injunctive orders relating to the child S, born … April 2003, (“the child”) are discharged.
The mother and father shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
a)During New South Wales public school terms, each alternate weekend from the conclusion of school or 3.30 pm Friday (whichever is the earlier) until the commencement of school on Monday, commencing on the first Friday of each term.
b)During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
c)During the New South Wales Christmas school holidays, for the first half of such holidays when the holidays begin in an even numbered year and for the second half of such holidays when the holidays begin in an odd numbered year.
For the purposes of implementation of Order 5, the New South Wales public school holidays are deemed to commence at the conclusion of school or 3.30 pm (whichever is the earlier) on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the following term, and the mid point is the day halfway between those first and last days.
Order 5 hereof is suspended during the following periods:
a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the Father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the Mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years.
b)Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.
For the purposes of implementing Orders 4-7 hereof, the party with whom the child is to live or spend time shall collect the child:
a)From school, whenever such time is to commence following the conclusion of school during school term, or
b)From the other party or his/her nominee at the McDonald’s Restaurant at Suburb B, NSW whenever such time is to commence at a time other than the conclusion of school during school term.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
a)The father each Tuesday and Thursday when the child is living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
b)The mother each Saturday and Wednesday when the child is spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
c)The parent with whom the child is not then staying, on the child’s birthdays, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from leaving the child alone without adult supervision until the child attains 14 years of age.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Any and all former orders which caused or permitted the child’s name to be placed on the Airport Watch List are discharged and each of the parties shall forthwith take all reasonable steps to ensure removal of the child’s name from the Airport Watch List.
Pursuant to s 65Y of the Family Law Act neither party is permitted to remove the child form Australia without the express written consent of the other.
The parties are at liberty to provide a sealed copy of these orders to any authority with control over international departure points in Australia.
The child’s passport shall remain in the custody of the mother other than when the child is travelling internationally with the father.
Within seven days hereof the mother shall cause the child to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to her the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ibrahim & Templeman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3129 of 2011

Ms Ibrahim

Applicant

And

Mr Templeman

Respondent

REASONS FOR JUDGMENT

Issues and background

The applicant mother and respondent father in these proceedings were unable to reach agreement about parenting orders governing arrangements for their only child, S (“the child”). She was born in April 2003 and has just attained 10 years of age.
The parties fell into disagreement about the viability of their marriage in July 2011 and their relationship remained in a state of flux until February 2012 when there was no longer any doubt that their relationship was over.
The child lived predominantly with the father in the period between July 2011 and February 2012, but since February 2012 the child has lived predominantly with the mother.
On 17 February 2012 the mother made an application to the Court for parenting orders in respect of the child. Her Application was made returnable before the Court on 13 March 2012, on which date both parties were legally represented and reached agreement about interim parenting orders.[1]
[1] Mother’s affidavit, paras 69-71; Father’s affidavit, para 150
The interim consent orders essentially provided for:
a)The child to live with the mother;
b)The child to spend time with the father each alternate weekend, from after school on Friday until the commencement of school on Monday, and for half of school holidays;
c)The child’s liberal telephone communication with the parties; and
d)Restraint of the parties from permitting the child to exit Australia.
The matter was transferred by the Federal Magistrates Court to this Court because international relocation of the child was sought by “at least one and possibly both of the parents”.[2]
[2] Order 5 made on 13 March 2012; Mother’s affidavit, para 73
Although it was intended the interim orders would hold only until the parties could be given an interim hearing,[3] no further interim hearing occurred. Upon transfer to this Court a Family Report was ordered in July 2012 and, following provision of the Family Report in November 2012, the matter was fixed for final hearing in February 2013.
[3] Order 4 made on 13 March 2013
In order not to delay determination of the parenting dispute the parties’ respective applications for orders under Part VII of the Family Law Act1975 (Cth) (“the Act”) were severed from their applications for property settlement orders under Part VIII of the Act. It was intended the property dispute would be heard later, but it subsequently settled.
The final hearing of the parenting dispute in February 2013 was displaced by another trial with priority and so the matter was adjourned “not reached” and re-listed for final hearing in April 2013. At the time the hearing was re-listed the following notation was made with the parties’ consent:[4]
The parties inform the Court that they agree they should have equal shared parental responsibility for their child and the extent of their dispute is the time spent by the child with the father. The father contends for an “equal time” residential arrangement whereas the mother contends that the child should spend time with the father generally each alternate weekend and for portions of school holiday periods.
[4] Notation B made on 19 February 2013
Whilst the mother adhered to that agreed position, the father did not. At the commencement of the final hearing the father informed the Court his proposal was for the child to live primarily with him, but he was unable to formulate any proposal about the time the child should spend with the mother.
Apart from their dispute over parenting orders, the mother also applied for her divorce from the father. Her Application for Divorce filed on 22 October 2012 was listed for hearing in conjunction with the parenting dispute. The father opposed the divorce for a number of reasons articulated in his Response to Divorce filed on 1 February 2013.

Proposal and primary evidence of mother

The mother abandoned the orders set out in her Amended Initiating Application filed on 2 July 2012 and instead advocated for the conversion of most of the interim parenting orders made in March 2012 into final parenting orders, as she formerly indicated to the Family Consultant.[5] A minute of her proposed orders was tendered.[6]
[5] Family Report, para 11
[6] Exhibit M4
In support of her proposal the mother relied upon her affidavit filed on 25 January 2013. The annexures to that affidavit were omitted from the filed copy and were therefore tendered in evidence as a separate exhibit.[7]
[7] Exhibit M1

Proposal and primary evidence of father

The father’s position throughout the proceedings and the hearing was particularly fluid.
In his Amended Response filed on 20 July 2012 the father proposed that the child live with him.
The various proposals he outlined to the Family Consultant in October 2012 involved the child living with the parties for equal time, or alternatively, living primarily with him, even inter-state or overseas.[8]
[8] Family Report, paras 13, 65
In his affidavit filed in February 2013, the father explained his wish for the child to live with the parties on a 50/50 basis, which he believed would be in the child’s best interests.[9]
[9] Father’s affidavit, paras 232, 249
Although he informed the Court at the commencement of the final hearing that his desire was for the child to live primarily with him, he persistently asked the mother in cross-examination if she had previously agreed, or would agree, to a “50/50” residential arrangement.
In final submissions the father proposed that the child live with him and spend time with the mother, just as now occurs under the existing interim orders made in March 2012, albeit in reverse.
It is difficult to discern the logic in the father’s proposal because he gave evidence in cross-examination that he believed the child would not experience either “closure” or “stability” in any residential arrangement other than one in which she lives for equal time with both parties.
The father relied upon his affidavit filed on 11 February 2013.

Additional evidence

Aside from the evidence individually adduced by the parties, they relied upon the documents compiled for the proceedings by the Family Consultant. Those documents were:
(a)The Memorandum dated 13 March 2012;
(b)The Memorandum dated 31 May 2012; and
(c)The Family Report dated 29 October 2012.
The Family Consultant was cross-examined. Despite the father’s dissatisfaction with her evidence, it was logical, balanced and persuasive.

Appointment of an independent children’s lawyer?

In his affidavit filed on 11 February 2013 the father deposed:[10]
I wish there to be an independent child representative appointed. I also think an independent children’s lawyer would be better.
[10] Father’s affidavit, para 241
In his Case Outline document filed on or about 13 February 2013 the father submitted:
9.I also wish for there to be an independent children’s representative appointed as there are issues to contravention of the interim interim orders (sic)
On 18 February 2013 the father filed an Application in a Case seeking a suite of interim orders. Two of the orders he proposed were as follows:
17.I request that an independent childrens lawyer be appointed (sic).
18.If an ICL is not granted I request that [the child] be made available as a wittness in this case (sic).
The father’s application for the appointment of an Independent Children’s Lawyer was heard and dismissed on 19 February 2013. Some other interim orders were then made consistently with the father’s proposals, but the remainder of the father’s application was dismissed.[11] The proposed alternative orders for the appointment of an Independent Children’s Lawyer and permission to call the child as a witness in the proceedings were among those dismissed.
[11] Order 7 made on 19 February 2013
Notwithstanding that unfavourable decision, the father renewed his application for the appointment of an Independent Children’s Lawyer at the commencement of the final hearing on 22 April 2013. His fresh application was also dismissed for reasons which may be simply stated. Firstly, he could offer no explanation of any changed circumstances since the last decision was made on 19 February 2013 that would warrant re-consideration of the former decision. Secondly, the guidelines under which the appointment of an Independent Children’s Lawyer is recommended were explained to him and he conceded none of those facts or circumstances relevantly applied in these proceedings (see Re K (1994) FLC 92-461 at 80,773-80,776). The trial therefore proceeded without an Independent Children’s Lawyer.

Applicable legal principles

Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
These proceedings were commenced in February 2012 and so the amendments to the Act, and in particular to s 60CC thereof, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 do not apply (see Schedule 1, items 44 and 45).

Child’s best interests – primary considerations

Section 60CC(2)(a)

The mother was emphatic the child loves the father and enjoys spending time with him.[12] She said in cross-examination they had a “strong relationship”.
[12] Family Report, para 32
The father deposed the mother was “always a great mother”.[13] He also said in cross-examination “the child definitely loves her mother”, but later added the child’s relationship with the mother “is not what it could be at this stage”. If the father genuinely perceives the child’s relationship with the mother is materially impaired to some degree, his perception is incorrect. Any criticism the child has expressed about the mother is almost certainly attributable to the pressure she felt exerted upon her by the parental conflict, which issue will be elaborated later in these reasons.
[13] Father’s affidavit, para 8
The Family Consultant observed the child “shares mutually warm and loving relationships with both parents”,[14] which I accept as a correct assessment of the nature of the child’s filial relationships. The child wishes to maintain her relationships with both parents,[15] which the Family Consultant considers desirable.
[14] Family Report, para 78
[15] Family Report, para 81
It is beyond doubt the child will benefit from the maintenance and promotion of her meaningful relationships with both parents. So much is obvious from the countervailing proposals of the parties, both of which entail the child living predominantly with one parent and spending substantial and significant time with the other.
The primary consideration about the desirability of the child’s derivation of benefit from her meaningful relationships with both parents is not countermanded by consideration under s 60CC(2)(b) of the Act of any risk the child may suffer harm through exposure or subjection to abuse, neglect, or family violence. There is no such risk, as should now be explained.

Section 60CC(2)(b)

Despite the issue not having been raised at any time in the past, the father alleged during his cross-examination that the child was at risk of harm through her physical abuse by the mother. The father later resiled from the allegation, conceding in final submissions the mother did not pose any risk of physical abuse to the child.
Although there was an undercurrent of controversy in the evidence about the parties’ hostile treatment of one another, “family violence” was not a salient issue in the proceedings, save for two specific instances which will be separately addressed.
The mother was clear to inform the Family Consultant the father had never physically assaulted her. Rather, her grievance about the father was his alleged verbal abuse, denigration and intimidation.[16] The father denied his behaviour could be properly characterised in that way,[17] but his denials either manifest a remarkable lack of insight or constitute deceit. Objective analysis of the evidence is consistent with the contrary interpretations of his behaviour by both the mother and Family Consultant.
[16] Family Report, paras 19, 25-27
[17] Family Report, para 56; Father’s affidavit, para 247
Whilst I accept the mother was troubled by the father’s behaviour, there is no evidence which reasonably permits a finding the father’s conduct caused the mother to be reasonably fearful or apprehensive about her personal wellbeing or safety, in which case the relevant historical definition of “family violence” is not engaged. The mother must concede as much since she did not advocate there was any evidence of the father’s commission of family violence so as to justify displacement of the presumption of equal shared parental responsibility for the child (s 61DA(2)(b)).
Such observations are not intended to trivialise the nature of the father’s conduct towards the mother, which she found annoying and intrusive, but it is important to record that such conduct is a relevant consideration under s 60CC(3) of the Act and will be discussed under that provision, not as a “primary” consideration under s 60CC(2) of the Act.
One incident capable of amounting to “family violence” occurred in December 2011 when the father alleged the mother said to him during an argument “I’ll have you knocked off”.[18] Although not mentioned at all during the cross-examination of either party or in submissions, the father presumably adduced the evidence to prove the mother threatened to have him killed. Even if such a threat was made as alleged, the father treated it with the contempt it deserved and ignored it. For several months afterwards he desperately tried to persuade the mother to reconcile the marriage with him and later agreed to interim orders under which the child lived primarily with the mother. He would surely not have conducted himself in that way if he was genuinely frightened for his safety. The incident did not therefore amount to “family violence” and has no influence on the parenting orders.
[18] Father’s affidavit, para 86
The other incident capable of amounting to “family violence” occurred at the time the parties’ relationship disintegrated in July 2011. The father inspected messages on the mother’s mobile telephone, causing him to suspect her infidelity. The mother alleged the father exploded with rage and threatened to kill her,[19] which allegation the father refuted.[20]
[19] Family Report, para 20; Mother’s affidavit, para 14
[20] Father’s affidavit, paras 28, 153; Family Report, para 49
I have little doubt the father made the remarks attributed to him by the mother. It was reprehensible for him to describe her as “shark bait”, but the mother well knew he loved her deeply and most probably realised he was distraught at the prospective loss of her companionship. I doubt she was genuinely fearful the father was capable of murdering her. If she was, the genuineness of her perception must have been ephemeral because she voluntarily continued to live in the same household as the father for several more weeks until September 2011, as she wanted to prevent the father making good on other threats he made to flee the country with the child.[21] Consequently, that incident did not relevantly amount to “family violence” either.
[21] Family Report, para 21
Such findings are vindicated by neither party ultimately submitting that the alleged reciprocal threats amounted to “family violence”.
There is no doubt the father made frightening threats to the mother’s paramour (“[Mr C]”) in July 2011 about “coming after [him]”,[22] which were so virulent the father was charged and found guilty of using a telecommunication service to menace, harass, or offend.[23] Nevertheless, those events could not constitute family violence because the victim was not a member of the child’s family (s 4(1AB)).
[22] Father’s affidavit, para 34
[23] Family Report, para 49; Mother’s aff, para 90; Father’s aff, paras 128, 237; Exhibit M3
The father ultimately submitted the child was neglected by the mother, as evidenced by the mother occasionally leaving the child alone at home without adult supervision. While I accept the child was neglected by the mother in that manner on several past occasions, the evidence falls considerably short of proving the child thereby suffered either physical or psychological harm as a consequence, which means s 60CC(2)(b) of the Act is not engaged. Nonetheless the issue needs to be addressed, even if only under s 60CC(3) of the Act, as a shortcoming in the mother’s parenting capacity.
The mother conceded having left the child unattended in their home on a few occasions in the past when she went to the local shop to buy some comestibles. The mother also conceded having left the child alone and unattended for the whole day on a couple of occasions when she had to attend work. When those events occurred the child was no older than nine years of age. Even though the apartment in which the mother lives with the child has perimeter security, it was foolish for the mother to have left the child alone in such circumstances. The child was certainly too young and immature to cope with any unforeseen emergency.
I accept the mother was chastened by such criticism. She consented to the imposition of an injunction restraining her from acting that way again.[24] I am persuaded that is the most efficient way to deal with the issue. I reject the father’s submission that such intermittent past events justify reversal of the child’s residence, which would be a disproportionate reaction to the problem.
[24] Exhibit M4, Order 18

Child’s best interests – additional considerations

It is uncontroversial the father cared for the child predominantly in the period between July 2011 and February 2012. There is no criticism of his capacity to meet all of the child’s physical and intellectual needs, which capacity he adequately proved in that period. The mother instead contended the father had little capacity to cater to the child’s emotional needs.
That aspect of impingement of the father’s parenting capacity, and the extent to which it might be compounded by his own emotional instability, was the focal point of this litigation.
The evidence comfortably proves the father needlessly involved the child in the litigation and conscripted her as an ally in his conflict with the mother. It makes little difference whether the father did so intentionally or inadvertently because the deleterious consequences for the child are the same.
Given my acceptance of the mother’s denial of informing the child,[25] there is no rational explanation for the sudden change in the child’s temperament towards either the mother or the father’s financial predicament other than her acquisition of details about the conflict from the father. For example, the child uncharacteristically made remarks to the mother, which are incompatible with her young age and immaturity, such as:[26]
You took all dad’s money
You’re a bitch
Why do you have a solicitor?
Why did you put me on airport list? (sic)
Why don’t you pay the mortgage?
Daddy won’t have a house
You need to borrow money from [the maternal grandfather] to pay the mortgage or daddy won’t have a house
Mum can you please call the bank so they don’t chase dad out of the house so he’s not homeless on the streets
[25] Mother’s affidavit, paras 106-108
[26] Family Report, paras 30-31; Mother’s affidavit, para 105
The child also became aware of the mother’s relationship with Mr C through the father. The father actually took the child to Mr C’s home to enable the child to confront the mother while he waited in the car.[27] During that confrontation the child told the mother “You are a fucking whore, you are a slut!”.[28] The father yelled similar profanity at the mother from the street.[29] The language the child used about the mother and Mr C plainly was, as described by the mother to the Family Consultant, “incongruous with her age”. The child categorically explained to the Family Consultant how she never wanted to see Mr C again and how the adverse opinion held by both her and the father about him could not be altered because he “broke up the family”.[30] The child’s asserted animosity towards the mother and Mr C is inexplicable other than by the father’s denigration of them in her presence.
[27] Mother’s affidavit, paras 94-99; Father’s affidavit, paras 58-62
[28] Exhibit M1, Annexure F (para 6)
[29] Exhibit M1, Annexure F (para 8)
[30] Family Report, paras 29, 71
The mother was concerned about the frequency of the communication between the father and child,[31] which concern the father airily dismissed as being unremarkable.[32] Leaving to one side for the moment the issue of the frequency of their communication, the content of their communication is both remarkable and astonishing. The child, who was still only nine years of age at the time it occurred, sent text messages to the father in August 2012 profanely describing the mother as a “CUNT” and a “lump of fuck” who could “die in hell alive”.[33]
[31] Mother’s affidavit, para 101
[32] Father’s affidavit, para 205
[33] Father’s affidavit, para 206, Annexure AD
The father was impelled to admit in cross-examination it was extraordinary for a nine year old child who loved her mother to send text messages saying such things about her, and further, the child must have been under considerable emotional stress to do so. Surprisingly, the father revealed the child “swears and uses the F word a lot”. The Family Consultant said such behaviour shows the child must be aware her parents are “at war”, which opinion I accept as valid.
The father identified the child as holding identical views to him about the mother’s perfidy and the outcome of these proceedings. The evidence abounds with examples, but only few need be mentioned.
In email correspondence between the mother and father on 13 October 2011 the father said the following to the mother:[34]
I would like you to see [the child] as well, but unfortunately she does not want to see you. You made your choice and you chose someone else, [the child] made this clear to you. You have done nothing but lie to her and me and she knows this.
I have to be honest with [the child] as she knows exactly what is going and if I lie to here or not tell the full truth what chance do I have as a father confiding in her?? [The child] has opened right up to me and we are very close as you know and she is very protective of me…[The child] wanted to throw the card away you gave to her just like you did to me, she says that it means nothing to her, you chose someone else over her and me (sic).
I spoke with [the child] about this last night and for you to spend time with [the child] is when I’m around and when we have had counselling…She does not want to see you whilst you are seeing him and that’s final. She also has that right (sic).
[The mother], you have lied again, I don’t trust you at all! Either does [the child]! You are unstable and I have never stopes you from seeing [the child] but [the child] herself has wants what she wants and she also has rights. We are moving to Malaysia and that’s final. [The child] and I are willing to give you time. [The child] has given you five years now to come back to be her mum if not she wants mento find another (sic).
[34] Exhibit M1, Annexure C (pages 6, 7, and 8 of 16)
The conflation by the father of the child’s emotions with his own emotional response to the disintegration of the matrimonial relationship is astounding. I accept the validity of the Family Consultant’s opinion that the father cannot separate the child’s needs from his own.[35]
[35] Family Report, para 63
Regrettably, the passage of time has not assuaged the father’s pain or improved his insight.

Even some 18 months later, on the eve of the final hearing in April 2013, the father sent an email to the mother in which he said the following to the mother:[36]
[The child] has had enough of this. She knows that you are doing this out of spite and no other reason.
She told me that you buy her things after she has been with me, she said that you are trying to buy her love.
…you may get you way in court but you will lose [the child’s] respect, she has told me this (sic).
I will fight for [the child] and myself if we don’t get what is right! She made me promise and if we don’t get 50/50 to go for 100%
[36] Exhibit M2
It hardly needs articulation, but the Family Consultant explained how the child’s behaviour, as described by the father in that email, was greatly concerning because it proved the child was embroiled in the parental conflict and the litigious process. Notwithstanding the child’s ignorance of the complexity of the situation, she feels responsible for ensuring equity between her parents. The emotional burden for her must be almost intolerable.
The Family Consultant reported the child told her she “sometimes tells each parent what she believes they want to hear with respect to views about parenting arrangements or her parental relationships”.[37] The Family Consultant explained in cross-examination it was not uncommon for a child to make contradictory statements to both parents because the child is attuned to what each parent wants to hear and wants to protect each parent’s feelings. Relevantly in this case, the Family Consultant said the child was “very sensitive to the father’s emotional state”.
[37] Memorandum 31/5/12, page 2
The Family Consultant offered the following insight into the child’s propensity to tell each party what she perceives they want to hear, which I accept as correct:[38]
It would also be considered consistent with a child who may be experiencing significant loyalty demands due to ongoing exposure to conflict, acrimony, and/or unregulated emotional issues of adults.
[38] Memorandum 31/5/12, page 2
During cross-examination the father finally acknowledged the child had said untruthful things in the past and he admitted the child may try to “play one [parent] off against the other [parent]”. In the face of his concessions it was surprising he would purport to interpret the child’s statements to him so literally.
The incessant pressure exerted upon the child by the conflict effectively rendered her an emissary for the father. She articulated the father’s worries as her own worries. She told the Family Consultant her greatest concern within the family was “the mother not communicating with the father”. She knew as much because the father informed her of his difficulty in establishing effective communication with the mother.[39] The child’s sentiments mirrored the complaints of the father and demonstrated how she felt compelled to advocate the father’s cause. The father was undoubtedly the source of the child’s anxiety about the lack of communication between the parties. The father repeatedly challenged the mother in cross-examination about her failure to communicate effectively with him and he also asserted in final submissions that “there has always been a communication problem”.
[39] Family Report, para 68
The child also informed the Family Consultant how the father had discussed with her the mother’s former procurement of the imposition of a “passport watch” on her because the mother suspected the father would abduct her. The child had in the past been distressed about the father’s proposal to move abroad with her,[40] so the father’s perpetuation of the child’s belief in the mother’s anxiety and the need for the existence of an airport watch list order for her safety could only have caused her continuing alarm.[41]
[40] Memorandum 31/5/12, page 2
[41] Family Report, paras 63, 69
The Family Consultant formed the view, entirely correctly on the evidence, that the father failed to appreciate he had inappropriately imparted information to the child about his dispute with the mother which improperly drew the child into the dispute and “adversely affected her emotional state”, enhanced her “feelings of responsibility for the issues in her family”, and undermined the nature and security of her relationship with the mother.[42] The father’s failure to recognise as much was very telling in the assessment of his lack of insight.
[42] Family Report, paras 40, 43, 84
The father’s protestation that he has “tried very hard to protect” the child from exposure to the parental conflict over the litigation and his denial of discussing the issues in the dispute with the child are impossible to accept as correct.[43] I doubt the father lied outrageously about that. Rather, I am inclined to the view that his lack of insight is extraordinarily acute.
[43] Father’s affidavit, paras 207, 246
The father’s mental state was a concern to the Family Consultant over the period she was involved with the family during 2012. She found him “extremely labile” with some aspects of “tangentiality and disorganisation in his thought patterns”.[44] Even though the father denied any history of mental ill health to the Family Consultant, he did admit to her that his emotional state was “not good at all”.[45]
[44] Family Report, paras 39, 82, 83, 84
[45] Family Report, para 40

The Family Consultant recommended in March and May 2012 for the father to obtain counselling to assist him deal with his emotional torment. The Family Consultant told the father directly during his questions to her in cross-examination she had earlier recommended his submission to therapy because he was “unable to understand the impact of [his] stress on the child”.
Unfortunately, her advice was largely ignored. The father only perfunctorily sought out some counselling[46] and conceded to the Family Consultant in October 2012 he “did not sustain the intervention”.[47] Without any useful therapy the father’s condition did not materially improve. The father admitted in cross-examination to swearing an affidavit in these proceedings as recently as January 2013 in which he deposed “I have been suffering extremely poor mental health”.
[46] Father’s affidavit, para 252
[47] Family Report, para 40
The Family Consultant’s opinion must surely be correct when she observed:[48]
…the father’s capacity for insight, empathy or focus for [the child’s] needs and experiences appears to be heavily impaired by his current emotional state and preoccupation with his own feelings of injustice.
[48] Family Report, para 84
The father’s denial of that conclusion is both facile and erroneous.[49]
[49] Father’s affidavit, para 248
The manner in which the father has persistently harassed the mother is indicative of how his perception is warped by his loss of emotional equilibrium. If he could acquire even a modicum of detachment and appreciate the adverse effects of his behaviour upon the mother the situation would most likely improve. Hence, an objective summary of his lamentable behaviour is the only plausible way to focus his attention on the problem.
The father admitted he verbally abused the mother in disparaging terms.[50] His subsequent assertion of “never” abusing the mother was plainly false.[51] When he makes such contradictory statements about his treatment of the mother it is understandably difficult for her to repose any trust in him.
[50] Father’s affidavit, para 26
[51] Father’s affidavit, para 159
Despite the former existence of an apprehended violence order protecting the mother from the father,[52] the father continued to approach the mother without warning, permission or cause.[53] It is immaterial that the apprehended violence order was subsequently revoked, about which fact the father was rather obsessive. The significance of the evidence is simply that whilst the order was in existence the father flouted it. The mother did not use the order as a tactical ploy against the father, despite his suspicion she did, because she told the police she did not want the order so long as the father “behaves himself”.[54]
[52] Mother’s affidavit, paras 7-8, 88; Exhibit M1, Annexures B, E
[53] Family Report, para 61; Mother’s aff, para 61; Exhibit M3 (page 1); Father’s aff, para 127
[54] Father’s affidavit, para 115
In the latter months of 2011 the father conceded he occasionally used electronic devices to track the mother’s location and confront her without warning.[55] Records produced by police on subpoena also inferred the father had watched the mother’s apartment to monitor her movements, had stalked her and was “playing mind games with her”.[56]
[55] Family Report, paras 26, 58; Mother’s affidavit, para 17; Father’s aff, paras 41-45, 239
[56] Family Report, paras 59, 64
The mother deposed to occasionally receiving repeated telephone calls and text messages from the father in a single day.[57] The father considers it necessary to telephone, message and email the mother repeatedly because she does not respond.[58] He explained in cross-examination the police had informed him he was not restricted from communicating with the mother. He obviously construed that advice literally and cannot understand why the mother feels vulnerable and considers his persistent communication an annoyance.
[57] Mother’s affidavit, para 145; Family Report, para 25
[58] Father’s affidavit, para 222
The father has demonstrated an unwillingness or incapacity to resolve even simple issues with the mother. He seems to relish perpetuation of the conflict. For example, the child was formerly anxious about arrangements for the exchange of her belongings when she moved from one household to the other via school.[59] The Family Consultant brokered an agreement between the parents for the child’s bag to be left in the school office, but after only one occasion of compliance the father insisted the bag be transferred directly between the parties. The interpretation of his manipulation and control of the mother seems quite appropriate.[60]
[59] Memorandum 31/5/12, page 2
[60] Family Report, paras 24, 60
By comparison, the mother has demonstrated considerable insight into the family’s predicament. She understood the child’s negative views about Mr C were “heavily influenced” by the father, empathised with the child’s grief and confusion, accepted some responsibility and did not blame the father for all of their ills, and voluntarily sought out counselling to help her maintain a clear understanding and response to the child’s needs.[61] Save for the criticism about occasionally leaving the child alone and unattended, the mother is obviously much better equipped than the father to provide for the child’s emotional needs.
[61] Family Report, paras 29, 33-35
The position ultimately adopted in final submissions by the father was to emphasise his allegedly superior capacity to physically care for the child on a daily basis. He contended the mother’s full-time employment precluded her from affording the child with the level of care he was able to offer.
The mother remains in full-time employment. She is reliant upon the child attending after-school care in the hours between the child’s completion of school and her completion of work at around 5.00 pm. The problem is accentuated during school holidays if the mother is unable to take corresponding leave.
The father asserted he did not have similar limitations. He has not been in regular employment for some time. He has continued to support himself and meet the child’s private school fees from the income he earns in a business role and from money advanced to him by an associate in Singapore. He is available to convey the child to and from school each day and be available to care for her during the school holidays.
Undoubtedly the father has a greater capacity to physically care for the child without assistance from others, but the superiority of his capacity is not as pronounced as he asserted. There are some advantages to the child attending after-school care, which the mother identified as her involvement in a regular routine and the opportunity for her to socialise and complete homework tasks with her peers. The mother said she thrives in that environment, about which there is no reason for doubt.
Finally, comment must be made about the child’s expressed views and the reasons why no weight should be attributed to them.
I accept the correctness of the Family Consultant’s opinion that the father has discussed the issues in the litigation with the child, that the child is at an age and level of maturity where she is focussed on fairness and equality, and that the father has unduly influenced the child’s views about the nature of the family relationships.[62] Any view she expresses is therefore likely a reflection of the father’s view.
[62] Family Report, paras 67, 75; Memorandum 31/5/12, page 2
In any event, the veracity of her views is unknown because of the inconsistency in her representations. Her statements to the mother oscillated between wanting the status quo and an equal time arrangement.[63] She led the father to believe she wanted an equal time arrangement because he said in cross-examination “we all know that 50/50 is what [the child] and I want”. Finally, she told the Family Consultant she wanted “fifty-fifty so it’s fair”, but was also emphatic she wanted to live predominantly with the mother rather than the father if the Court was not disposed to order an outcome of equal time.[64]

Conclusions and orders

[63] Family Report, para 32

[64] Family Report, paras 73-74

Parental responsibility

Neither party submitted the presumption of equal shared parental responsibility either did not apply (s 61DA(2)) or was rebutted (s 61DA(4)). Both parties proposed they have equal shared parental responsibility for the child.
The Family Consultant was reluctant to recommend how parental responsibility for the child should be allocated, leaving that decision to the Court, but indicated a preference for sole parental responsibility to the mother if the child was to live with her and the father’s harassment of her was proven.[65]
[65] Family Report, paras 89, 91
The mother expressed ambivalence to the Family Consultant and doubts in her affidavit about her ability to communicate effectively with the father,[66] but she said in cross-examination she realised it is crucial for parents to remain child-focussed and to communicate well if the child’s interests are to be served. She was sincerely hopeful she and the father would be able to communicate with one another better in the future than they had in the past and acknowledged improvement in the tone of their communication would be advantageous for the child. For his part, the father was certainly willing to consult with the mother about the child.[67]
[66] Family Report, para 36; Mother’s affidavit, paras 137-140
[67] Father’s affidavit, paras 216, 229
On the strength of that evidence I am persuaded to allocate equal shared parental responsibility to the parties, consistently with their mutual proposal.

Residence

Having allocated equal shared parental responsibility, the Court is obliged to consider residential regimes for the child under which she lives for “equal time” with both parents, or alternatively, lives primarily with one and spends “substantial and significant time” with the other (s 65DAA).
The level of parental co-operation required to successfully implement a shared care arrangement for a child is considerably deeper than that required for the implementation of equal shared parental responsibility. In cross-examination the Family Consultant explained that unless parents have a high level of co-operation, trust and communication, a shared care residential arrangement is a burden rather than a boon for a child.
The Family Consultant said, and I accept, that the current “poor quality of the co-parenting relationship” between the parties renders a shared care residential arrangement for the child inapposite.[68] The repercussions for the child in such a situation, which inevitably introduces conflict, are high anxiety, poor emotional health and an impaired ability to function socially. It is consequently not in the child’s best interests to live for “equal time” with the parties. It is inevitable the child should live predominantly with one party.
[68] Family Report, para 85
Each party contended they were the more worthy residential option. The father’s final submission for the child to live primarily with him was perplexing because his evidence was contradictory. He asserted in his affidavit that a weekly rotation of equal time would be in the child’s best interests[69] and he said in cross-examination that an equal time arrangement was “the best outcome for the three of us”.
[69] Father’s affidavit, para 213
I accept the validity of the Family Consultant’s recommendation that the child’s best interests dictate that she live with the mother.[70] The father has been unable to cater adequately to the child’s emotional needs and shows no potential to materially improve that aspect of his parenting capacity. The impairment of the father’s capacity to meet the child’s emotional needs is a factor of far greater weight in the outcome of the proceedings than the marginal superiority of his ability to cater to the child’s day-to-day physical needs.
[70] Family Report, paras 90, 92

Spending time and communication

The mother and child continue to live at Town D while the father continues to live in the former matrimonial home at Town E. Both localities are situated on the Central Coast of NSW and the two households are separated by a drive of approximately 45 minutes duration.[71] It is therefore reasonably practicable for the child to spend substantial and significant time with the father.
[71] Family Report, para 9
I also accept the mother’s submission that it is additionally in the child’s best interests to spend substantial and significant time with the father. Her submission coincides with the Family Consultant’s recommendation, who adopts her proposal.[72] The parties’ reciprocal proposals about the time to be spent by the child with the non-residential parent were identical, albeit reversed, so the father’s views were inferentially consistent.
[72] Family Report, para 93
The child’s expenditure of substantial and significant time with the father will enable her to retain her meaningful relationship with him.
The level of communication between the father and the child has been unnecessarily frequent. It might have suited the father, but it has not suited the child. She complained to the Family Consultant about how the frequency of the father’s telephone calls was one of her principal concerns.[73] I impute her concern was about the calls being too frequent rather than too infrequent. The orders therefore provide for the child to have up to two telephone calls per week with the parent with whom she is not then living or spending time, consistently with the mother’s proposal.[74]
[73] Memorandum 31/5/12, page 2
[74] Mother’s affidavit, para 109

Injunctions

The father specifically sought two injunctions. They related to the intended prohibition of the child’s interaction with Mr C and an organisation called “[Organisation F]”, to which organisation the father believed the mother had some nefarious link. His application for the injunctions is refused for the following reasons.
The father alleged the child saw Mr C’s penis on an occasion when he took the child to his home in September 2011,[75] which the mother flatly denied.[76] That was apparently the basis for the father initially seeking an injunction precluding the child from being brought into contact with Mr C. The mother agreed to the injunction on an interim basis only,[77] but she now seeks its revocation.[78] Even if the child did once inadvertently see Mr C’s penis, which I do not accept, the father was unable to convincingly articulate the nature of any continuing risk of harm posed by Mr C to the child.[79] The mother has since terminated her relationship with him anyway,[80] which the father acknowledged.[81] The evidence falls far short of establishing a need for the injunction on a final basis.
[75] Father’s affidavit, paras 59-62
[76] Mother’s affidavit, paras 91-99; Exhibit M1, Annexure F (para 10)
[77] Mother’s affidavit, paras 74-75
[78] Family Report, para 11
[79] Family Report, para 54
[80] Mother’s affidavit, paras 115-116
[81] Father’s affidavit, paras 200, 236
The father’s purported concern about the child’s potential involvement, through the mother, with “[Organisation F]” is even more difficult to understand. He admitted he had little idea about the organisation, which he histrionically referred to as a “cult”.[82] The mother gave uncontradicted evidence it was nothing more than an internet website advertising holistic therapies in which she is interested.[83] The injunction proposed by the father is meaningless,[84] even though it seeks to replicate an earlier interim order made with the parties’ consent.[85] It is impossible to enforce any injunction which purports to preclude the child from being “brought into contact” with nothing more than a name. “[Organisation F]” is merely a name. There is no evidence it is a legal entity. Even if it was a legal entity, surely it would only be specific persons associated with the organisation that would pique the father’s concern.
[82] Father’s affidavit, paras 64, 67, 203, 235; Family Report, paras 50-51
[83] Mother’s affidavit, paras 78-86; Family Report, para 28
[84] Amended Response, Order 12
[85] Order 1.19 made on 13 March 2012
The prospect of a third injunction restricting the child’s departure from Australia was mooted throughout the hearing. While the father’s preferences about the terms of such an injunction were malleable, no injunction was finally sought by either him or the mother. The father ultimately discarded his various alternative ideas about permanently maintaining the child’s name on the airport watch list, an order permitting the child’s travel to only those countries which are signatories to the Hague Convention, and an order requiring the payment of a substantial monetary bond by the parent who wishes to take the child outside Australia to fund any subsequent litigation by the other to recover the child.
Both parties intend to remain permanently resident in Australia. Neither has any intention to move from their current homes. The mother’s extended family live in Malaysia and the father acknowledged the child will benefit from her occasional travel to Malaysia to visit the maternal family. The father also wants the freedom to take the child overseas on holidays.
Both parties finally acknowledged the child could be taken outside Australia by either of them with the other’s consent. Given their allocation of equal shared parental responsibility for the child, that consensus is no more than recognition of the law, which imposes criminal sanction for any contravention (s 65Y). It is appropriate for the mother to retain the child’s passport as she is the residential parent.
The order precluding the parties’ exposure of the child to denigration of them is consistent with the mother’s proposal and the interim orders to which the parties previously consented.
The injunction prohibiting the parties from leaving the child alone without adult supervision is made consistently with both the mother’s concession in evidence and her proposed order.[86] The prohibition ends when the child attains 14 years of age, by which stage the child will likely have sufficient maturity to not need constant adult supervision. It would be unreasonable to impose such an injunction until the child attains her majority.
[86] Exhibit M4, Order 18

Divorce

The parties offer significantly different versions about occurrences in their lives in the period between July 2011 and February 2012.
Wherever there is discrepancy in their evidence, absent independent corroboration, I accept the mother’s evidence in preference to the father’s. The mother was a model of discretion and restraint, making her an impressive witness. By comparison, the father presented as frantic and obsessive. He generally endeavoured to do his best to give truthful and accurate evidence, but his perception of events appeared distorted through a prism of distress and puzzlement at the loss of his cherished family unit. I therefore find the following facts established on the balance of probabilities.
The parties’ relationship was generally untroubled until 21 July 2011 when the mother told the father she regarded the marriage as over and would be moving out.[87] But she did not do so immediately.
[87] Mother’s affidavit, para 12
Some days later on 26 July 2011 the parties argued heatedly about the mother’s relationship with Mr C, causing the mother to vacate the matrimonial home for several days. The mother returned to the matrimonial home on 31 July 2011[88] and, despite the fracture of the marital relationship, the parties remained living in the same household for several more weeks.
[88] Father’s affidavit, para 47
On 9 September 2011 the mother decided she could no longer live in the same household with the father. She vacated the former matrimonial home and rented separate premises in which to live,[89] describing that event as their separation for the “final time”.[90]
[89] Mother’s affidavit, para 21
[90] Mother’s affidavit, para 6

The mother did not then travel overseas with the father and child on a pre-arranged trip to Malaysia.[91]
[91] Mother’s affidavit, para 25
Both before and after the trip to Malaysia the father made frequent offers for the child to spend time with the mother, but only on conditions unilaterally imposed by him, which included supervision by him and the child not staying overnight with the mother. The father’s demands culminated with an ultimatum to the mother in early October 2011 to the effect he would not allow the child to spend any more time with her unless she reconciled the marriage.[92]
[92] Mother’s affidavit, paras 22-27
The mother was adamant she would not reconcile. She told the father in an email on 13 October 2011:[93]
Please understand our marriage is over. I have my own life now just as you have yours. I now have my own partner and I am moving forward with life…
In July 2011 when I left you, I came back only because it was getting increasingly difficult to gain access to [the child] and she was not allowed to spend half of her time with me. I also felt cornered and was made to feel the only way for a peaceful solution was for me to go back home. After a month and a bit (in which during that time you would almost on a daily basis talk about how this is destroying the family and that I was selfish etc. I was made to feel guilty and that I did not have much choice), I finally left for good (sic).
[93] Exhibit M1, Annexure C (page 6 of 16)
The parties had little or no contact until 20 November 2011, when the father allowed the child to spend some time with the mother.[94] The parties then began to reside together with the child at a resort location for the next three weeks.
[94] Father’s affidavit, paras 69-78
On 14 December 2011 the mother took the child to Malaysia to visit family. The father travelled separately and did not stay with the maternal family.[95] While overseas the parties discussed the prospect of their “proper” reconciliation upon their return to Australia. The parties returned to Australia separately in January 2012.[96]
[95] Father’s affidavit, paras 83-85; Mother’s affidavit, para 42
[96] Father’s affidavit, paras 101-104; Mother’s affidavit, para 43
The mother had already arranged to lease an apartment back in Australia.[97] The father admitted he had been unaware she had made such advance plans and when he learned of them he found the mother had arranged the lease in her sole name.[98]
[97] Mother’s affidavit, para 47
[98] Father’s affidavit, para 105
The father assisted the mother to move furniture and contents from the former matrimonial home into that apartment in the days following their return to Australia. During that process the mother instructed the father to depart the apartment or she would call the police, which then occurred.[99]
[99] Father’s affidavit, paras 107-116; Mother’s affidavit, paras 49-57
In evidence the father identified 7 February 2012 as the date of the parties’ final separation, but curiously identified 8 February 2012 as the correct date in his Response to Divorce. The discrepancy is immaterial as the dates coincide with the mother summoning the police to the new apartment, which he perceives was the catalyst for their final separation.
However, the father’s perception is erroneous. While the parties may have slept under the one roof, perhaps even in the same bed, on occasions between 26 July 2011 and 8 February 2012, those facts are not determinative of the issue. The finality of their separation is more reliably proven by evidence about the termination of their consortium vitae.
The Act expressly contemplates the prospect of the parties being separated for matrimonial purposes notwithstanding the continuity of their joint residence and the rendering of household services (s 49(2)). Consequently, severance of the matrimonial relationship is integral to “separation” for the purposes of their divorce. The severance of the matrimonial relationship necessarily requires a conscious decision by at least one of the spouses to terminate the marital accord and, once that occurs, there is no resumption of the relationship (or “cohabitation” as described in s 50 of the Act) merely because the spouses choose to again live in the same household (see Marriage of Clarke (1986) 11 Fam LR 364 at 369-370). The spouses’ subsequent participation in sexual intercourse does not decisively signal any resumption of the matrimonial relationship (see Marriage of Spanos (1980) 6 Fam LR 345 at 350).
The mother openly conceded both to the Family Consultant and in evidence that she deceived the father on the few brief occasions she occupied the same premises with him after 26 July 2011. She deliberately induced the father to believe in the chance of their reconciliation for several reasons: to prevent the father fulfilling his threats to internationally abduct the child, to ensure she was able to see the child, and to “keep the peace”.[100]
[100] Family Report, paras 21-22
Although the father believed otherwise, the mother clearly regarded their marriage as terminated much earlier than February 2012. The written explanation she provided to the father in her email on 13 October 2011 could not have been clearer. I am satisfied on the balance of probabilities that the mother regarded the marriage as having broken down irretrievably on 26 July 2011, as evidenced by her departure from the matrimonial home on that day, and any brief period during which the parties thereafter lived and consorted in the same household occurred only for the pragmatic reasons explained by the mother. There was no reconciliation of the marital accord from the mother’s perspective.
Such finding is generally consistent with at least part of the father’s evidence. He regarded himself as being the sole full-time carer of the child from July 2011 until February 2012.[101] He would not logically have held such a view unless he regarded himself as separated from the mother from July 2011, for otherwise he would have acknowledged the mother was the carer of the child for at least part of the time during that period.
[101] Father’s affidavit, para 17
The father said in evidence he wanted to arrange the parties’ divorce in accordance with Islamic practices. He asserted in his Response to Divorce that he had intended to do so “in Malaysia late February early March [2013]”, but he conceded he did not fulfil his stated intention. The father’s desire to terminate their marriage in that way is not an impediment to their divorce on grounds properly established by the mother.
I make the following findings on the evidence:
a)At the time the mother filed the Application for Divorce on 22 October 2012 she was ordinarily resident in Australia and had been so for the immediately preceding 12 months;
b)The parties were married at …, Malaysia on … September 2011;
c)The Application for Divorce was filed by the mother more than two years after the marriage;
d)The parties separated on 26 July 2011;
e)Following separation, taking into account the meaning of “separation”, the parties thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the filing of the Application for Divorce on 22 October 2012;
f)The parties’ marriage has broken down irretrievably and there is no likelihood of cohabitation being resumed; and
g)It is appropriate to declare that, by reason of the orders made in these proceedings pursuant to Part VII of the Act, proper arrangements have been made for the care, welfare and development of the parties’ only child.
For those reasons, the parties’ marriage is dissolved.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 May 2013.

Associate:

Date: 15 May 2013

[2013] FamCA 340

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Res Judicata

Offer and Acceptance