Innes & Athina

[2023] FedCFamC1F 929

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Innes & Athina [2023] FedCFamC1F 929

File number(s):	PAC 6357 of 2021
Judgment of:	RIETHMULLER J
Date of judgment:	21 September 2023
Catchwords:	FAMILY LAW – PARENTING – Limited issue – Where the parties reached a consent position at final hearing with respect to the care of the child, but for issues concerning the parents’ attendance at the child’s sporting events – Best interests of the child – No matters of principle – Conditions on attendance by parents
Division:	Division 1 First Instance
Number of paragraphs:	17
Date of hearing:	20-21 September 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Kearney SC
Solicitor for the Applicant:	Barkus Doolan Winning
Counsel for the Respondent:	Mr Duane and Ms Van Oosterom
Solicitor for the Respondent:	Chamberlains Law Firm
Counsel for the Independent Children’s Lawyer:	Mr Cairns
Solicitor for the Independent Children’s Lawyer:	Holmes Donnelly & Co Solicitors

ORDERS

PAC 6357 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS INNES

Applicant

AND:

MR ATHINA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	21 SEPTEMBER 2023

BY CONSENT, ON A FINAL BASIS, THE COURT ORDERS THAT:

Parental Responsibility

1.That the parties have equal shared parental responsibility for the child X, born 2014 (“the child”).

2.That the mother be permitted to relocate the child’s residence to Brisbane, Queensland upon the conclusion of Term 4, 2023.

3.That pending the commencement of Term 1, 2024 the Orders of 10 June 2022 continue to operate.

Term/School Time

4.That from the commencement of Term 1, 2024, on the basis that the father is resident in Brisbane, and continuing up until the commencement of Term 1 in 2026, unless otherwise agreed in writing between the parties, the child live with the parties during school term time in the following 2 week rotation:

(a)In the first week following the commencement of each school term, with the Father from the conclusion of school or 3:00pm on Wednesday, to the commencement of school or 9:00am the following Friday;

(b)In the second week, with the Father from the conclusion of school or 3:00pm on Wednesday to the commencement of school or 9:00am the following Monday; and

(c)At all other times with the Mother.

5.As and from the commencement of Term 1, 2026, the child live with the parties on a week about basis with changeover occurring upon the conclusion of school or 3.00pm each Friday and with the child living for the first week of each school term with the parent with whom they have not spent the second half of the immediately preceding school holiday period.

School Holidays

6.That notwithstanding any other order, during the school holidays commencing as and from 2024, the child shall live with each parent for one half of each school holiday period as agreed and failing agreement as follows:

(a)with the mother for the first half in 2024 and each alternate year thereafter;

(b)with the father for the second half in 2024 and each alternate year thereafter;

(c)with the father for the first half in 2025 and each alternate year thereafter;

(d)with the mother for the second half in 2025 and each alternate year thereafter;

(e)school holiday time will commence from the conclusion of the child’s last day of the school term and conclude at the commencement of the child’s first day of the next school term, with changeover to occur at 9am on the midpoint day. In the event of 2 midpoint days, changeover is to occur at 9am on the second midpoint day.

Special Occasions

7.Notwithstanding any other provision of these Orders, the child shall spend Christmas with each of the parties as follows:

(a)In 2024 and each alternate year thereafter, from 3:00pm on 23 December until 3:00pm on 27 December with the father;

(b)In 2025 and each alternate year thereafter, from 3:00pm on 23 December until 3:00pm on 27 December with the mother.

8.Notwithstanding any other provision of these Orders, the child will spend the Mother’s Day weekend with the Mother from the conclusion of school (or 3pm) Friday until the commencement of School (or 9am) the following Monday.

9.Notwithstanding any other provision of these Orders, the child will spend the Father’s Day weekend with the Father from the conclusion of school (or 3pm) Friday until the commencement of school (or 9am) the following Monday.

10.Notwithstanding any other provision of these Orders, on the child’s birthday, the child will spend time with the party with whom they do not wake with on that day from the conclusion of school or 3.00pm until 6.00pm if a school day and from 12.00pm to 4.00pm if a non-school day.

11.On the condition that such time does not fall on the weekend of Mother’s Day, then, if not otherwise with the father, the child will spend from the conclusion of school or 3:00pm on 9 May, until the conclusion of school or 3:00pm on 11 May, with the father. In the event such period of time falls on the weekend of Mother’s Day and the child is not otherwise with the father, the child will spend from the conclusion of school or 3:00pm on Friday until the conclusion of school or 3:00pm on Monday on the weekend immediately following the weekend of Mother’s Day, with the father.

12.That, as and from the commencement of the 2024 school year, on two occasions each calendar year with at least six (6) weeks’ prior notice, or three (3) days’ prior notice of a funeral of a grandparent of the child, either party may nominate a day and time for the child to attend any formal family event, such as funerals, weddings and the like, with such time to be no longer than twenty-four hours in duration, and in relation to same:

(a)Such time is not to interfere with Mother’s Day weekend, Father’s Day weekend, arrangements for the child’s birthday pursuant to these Orders and school holiday time;

(b)The child’s time with the father pursuant to Order 11 is to count for one of the nominations to be made by the father pursuant to this Order if the child is not to already be spending time with the father pursuant to these Orders;

(c)Such time is not to interfere with pre-existing travel plans in respect of which notice has already been given pursuant to these Orders;

(d)In the event there is a clash in the nominations made by the parties pursuant to these Orders, then:

(i)the mother’s nominated times will take priority in 2024 and each alternate year thereafter;

(ii)the father’s nominated times will take priority in 2025 and each alternate year thereafter.

13.That the child attend B School in Brisbane, Queensland and the parties shall forthwith do all things and sign all documents necessary to effect his enrolment as and from Term 1, 2024.

Changeover

14.All changeovers will occur at school or in the event that it is not a school day, at a location agreed by the parties in writing, and failing agreement, at the mother’s residential address.

Passport and Travel

15.Within twenty-one (21) days of the date of these Orders the parties do all acts and sign all documents necessary to cause the child to be issued with a passport (the costs of which will be paid for by the father) and shall do all acts and sign all documents necessary to renew the passport as and when such renewal falls due (the costs of which will be paid for by the father).

16.That the mother retain the child’s passport and provide the child’s passport to the father within 7 days of being notified of intended international travel by the father, and the father is to return the child’s passport to the mother within 7 days of his return from overseas.

17.That each of the mother and the father may travel overseas with the child during any period of time that the child is in their care.

18.That the parent proposing to travel overseas with the child must:

(a)Provide to the other parent at least 1 months’ noting in writing of the overseas travel plans;

(b)Provide to the other parent a copy of the travel itinerary and contact details for the child whilst overseas;

(c)Not propose to take the child to a country listed on the Australian Government Smart Traveller website as posing a travel or safety risk;

(d)Not propose to take the child to a country which is not a signatory to the Hague Convention (Child Abduction) Convention.

19.That each of the mother and the father may travel interstate with the child during any period of time that the child is in their care, with the travelling parent to provide at least 14 days’ notice in writing should such interstate travel occur other than between New South Wales and Queensland.

Restraints

20.The parties are restrained, and an injunction is granted preventing them from:

(a)Criticising or making derogatory statements about the other party or party’s family or member of their household, in the presence or hearing of any of the child or permitting the child to remain in the presence of any other person doing so.

(b)Discussing with the child or in his presence or hearing, any aspect of the dispute between the parents, and each parent shall use their best endeavours to ensure no third party does so.

Communication and Authorities

21.That both Parties communicate with the other in writing via the “our family wizard” app in relation to matters regarding the care, welfare and development of the child at such frequency as is reasonably necessary, regarding topics including but not limited to the child’s:

(a)Education;

(b)Routines;

(c)Medical and safety issues; and

(d)Demeanour and emotional wellbeing.

22.That each party provide such consents and authorities to allow the provision to the other party of any medical report(s) in relation to the child as required by the medical practitioner(s).

23.In the event that the child is in need of urgent medical attention each party will notify the other of the location of the treating professional and details of medical emergency and proposed treatment as soon as practicable.

24.That a copy of these Orders shall be sufficient authority for the school of the child to enable each party to receive reports, school photographs or any other notices relating to the child, to permit both parties to attend the school of the child for the purpose of attending special events involving the child and/or to speak to the teachers of the child concerning the school performance of the child or either of them.

25.That each party provide such requisite consents and authorities to permit the other to attend the school of the child at all reasonable times subject to the direction of the Principal of the subject school.

26.That the parties supply one another with their current telephone number and address and any change thereof within 24 hours of such change.

27.No Order as to costs as and between the mother and the father.

FURTHER, THE COURT ORDERS THAT:

28.That the parent that the child is not living with, or spending time with, is restrained from attending upon any of the child’s extracurricular activities when the child’s attendance at such activities is being facilitated by the other parent, save for occasions when the child is playing in a semi-final or grand-final, in which case the said parent be permitted to attend to observe the semi-final or grand-final provided that they:

(a)Remain on the opposite side of the field/pitch or oval from the other parent (and move to remain on the opposite side even if the other parent moves around the field/pitch or oval);

(b)Not enter the sports ground or arena earlier than ten minutes before the start time of the match;

(c)Leave the sports ground or arena immediately upon conclusion of the match; and

(d)Do not attempt to approach or speak to the other parent, attend to the child’s needs, or assist the organisers of the match, unless specifically requested to do so by the other parent.

Costs of the Independent Children’s Lawyer

29.Within 3 months of the date of these Orders, the mother pay the costs of the Independent Children’s Lawyer in the sum of $7,051.

30.Within 3 months of the date of these Orders, the father pay the costs of the Independent Children’s Lawyer in the sum of $5,401.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

RIETHMULLER J:

INTRODUCTION

1. This is an application concerning parenting orders for a young boy, X, who is nine years of age. Fortunately for X, the parties have settled the bulk of the dispute during the course of the day and I have made consent orders in that regard. There remained one limited issue outstanding concerning the attendance of the parents at the child’s sporting events, and whether or not that should be limited depending upon which parent the child was residing with or spending time with at the time of the particular sporting event.

2. The nature of the parenting orders that have been entered into by consent will result in the child effectively spending one weekend in two with each of the parents. Thus, effectively week‑about, the parents will be able to attend X’s sporting events when they occur on weekends.

3. The case has had a long and difficult history and has had significant impact upon X, as will be discussed below. For that reason, I thought it particularly important to proceed to give an ex tempore judgment immediately so that hopefully, tonight, X can be told that the entirety of the dispute has come to an end. I will therefore to give brief reasons for the orders that I will make.

   BACKGROUND

4. The father was born in 1972 and is 52 years of age. The mother was born in 1978 and is 45 years of age. The parties commenced living together in 2007 or thereabouts when they were both in Sydney, and were married in 2011. X, who was born in 2014, is their only child. The parties separated under one roof for a period in early 2021, after which they have lived separately.

5. Initially, the parties reached some agreement with respect to time and care arrangements for X at a mediation. However, this was not a durable arrangement. It seems that the level of conflict between the parties led to impacts on X’s behaviour including, most disconcertingly, that he commenced to display some motor tics by late 2021.

6. The mother commenced Court proceedings. By May 2023, the parties had finally resolved their property settlement issues and entered into consent orders in that regard. In September of 2022, however, the mother gave the father notice that she wished to move to Brisbane, Queensland on a permanent basis. The mother’s family live in Brisbane and she now has employment in Brisbane. In late 2022, the mother filed an Amended Application. By December 2022, the child’s motor tics had returned.

7. The parental conflict in this matter is deep-seated and flows from a number of difficult issues that the parties have confronted. In around 2017, the father commenced gambling, using moneys from his business and, on the material, ultimately lost around $5 million, resulting in him entering into a personal insolvency agreement. Whilst there was considerable conflict in the relationship towards the end of the relationship, it appears that the mother was unaware of the gambling difficulties and the tensions that it must have brought until after the parties separated. The interactions between the parties, at least at the end of their relationship, were far from pleasant, often abusive and controlling.

8. Since separation, the father has taken some steps, for example, completing a parenting after separation course and a Triple-P Positive Parenting Program. The father says that he has also been attending a D Program through C Hospital. In her material, the mother sets out a long history of difficulties in the parties’ relationship, commencing soon after the child X was born. For example, saying that the father had yelled at her to stop X from crying; that in around 2015, the father had started filming her without her consent, an allegation that he accepted when being cross-examined. The mother says the father also made various other threats towards her. She describes him having become enraged in arguments, and he admitted to having called her by obscene names, although says that she had at times responded likewise. Due to the point of the trial in which the matter had settled, I did not have the opportunity to see the mother give evidence, only the father.

9. The mother sets out that by the time she left the matrimonial home, she no longer felt safe. On the evidence before the Court, one can well understand her views in this regard. The mother also sets out that the parties have been unable to reach agreement about many things, and often, if they cannot reach agreement, there is ongoing dialogue with the father sending emails or messages. Indeed, even once they had started using an online parenting app, he engaged in such conduct, continuing to send emails after it seems that an interaction sufficient to terminate the issue had been engaged in between the parents.

   Attendance at sporting events

10. More specifically, given that the focus of this particular determination is sporting events, there have been difficulties when the parents attend at the same sporting events with the child. The mother finds the father’s interactions with her at these events to be dominating or domineering. The father’s invasion of the mother’s personal space causes her to be anxious and stressed and feel like the father is either controlling or overbearing at times when she is present at the events. For example, despite the obviously serious acrimony between the parties, particularly given the effect it was having upon X, the father stood next to the mother on the beach when they went to lessons (mother’s affidavit filed 5 June 2023, paragraph 167). The mother recounts events that took place at other sporting events where she was there supporting the child and then the father also intervened (for example, as discussed in the mother’s affidavit, paragraph 175). In light of the material, it is not surprising that the single expert, Mr E, noted that the ability of the mother to participate in the child’s sporting activities in an appropriate parental way is affected when the father is present (see single expert report of Mr E dated 27 March 2023, paragraph 7 (the second report by Mr E)).

11. These issues arose very early, as was noted in paragraph 34 of the Child Impact Report dated 16 March 2022 (the first report in the proceedings), where the report writer said:

    34. One of the key issues that may need swift resolution is regarding [X’s] extra curricular activities. It may be necessary to consider an arrangement that minimises the parents coming into direct contact, at least at this stage, as it would appear that there is likely to be ongoing difficulties and/or conflict as the parents navigate litigation. This may result in [X’s] unnecessary exposure to his parents’ conflict during his extra curricular activities.

    The issue received attention in Mr E’s second single expert report as well.

1. A number of paragraphs of Mr E’s single expert reports are worth repeating, in particular:

   50. Possibly most concerning of all was the array of quite pronounced motor and verbal tics displayed by [X]. He showed quite a pronounced neck stretch, blinking of his eyes and other repetitive behaviour; he tended to repeat a word in a seemingly unconscious, echolalic manner; I observed that he mimicked the behaviour of his parents in terms of head movements and facial grimaces, and that this was almost a continuous feature of his physical presentation.

   …

   54. At a superficial level the same was also true of his interaction with me. He was however extraordinarily controlling, and effectively sought to direct the nature of our conversation, the topics of discussion and sought to present to me reassurance that his parents were of equal importance, equal significance and were of equal relevance; his efforts to be absolutely equal in his description of his love for them was excessive. He told me that he thought the reason for our meeting was to help his parents to be more cooperative, for them to learn more about him, and for them to better understand him and his feelings. Despite me having asked him directly what his parents had told him to share with me, he responded that neither parent had spoken to him about anything, although, when asked what I thought was important for him to tell me about his parents, he spontaneously told me that every time he was picked up by his father he would run to him and jump into his father’s arms, this almost exactly replicating what [the mother] told me that [the father] had told [X] to share. [X] however told me that he shows similar affection to his mother, that he always gives to her a big hug and that he is always excited to see her.

   …

   59. Despite this idealised presentation of family life, [X] also revealed themes of anger, frustration and triangulation, amidst his parents’ conflict. He told me that he wished that they could agree on something, explaining that their conflict and the dispute around him playing sport was particularly upsetting to him. I noted that he was anxious and actively avoided discussing any emotional topic; I was left with a very strong clinical impression that his was a veneer of functioning. He tried to reassure me that the family was doing well, that there were no problems with having separated parents, that nothing about his parents or their conflict was difficult for him, although his mother calling him “mate and dude” and trying to reassure him was a source of provocation and annoyance. When I unpacked his concerns, [X] acknowledged that his parents were extremely angry at each other, that they both think that the other is to blame, that both think that the other is bad, and that they obviously do not like each other. [X] spoke about his distress at his parents’ conflict, his understanding of their message of restraint, and the impossible feeling of conflicted loyalties knowing the extent of his parents’ dislike of each other, amidst an ever present expectation that he align himself to them. He explained that having separated parents caused him to worry intensely, that he worried about the future and what it would mean for him, that he feared that their dislike of each other might somehow translate to a dislike of him, and consequently his anger. It may well be that in one sense, the sense of identification felt by [the father] towards [X] and felt by [X] and possibly described by [the mother] translates to [X] feeling a sense of his mother’s anger, criticism, negativity and a fear of rejection and his father’s hostility, negativity and wish to punish [the mother] for leaving him. With these considerations in mind, [X]’s statements around self-harm, his anger and feelings of hopelessness take on an added and amplified significance. He spoke about concern that his parents, as a consequence of their separation, would continue to fight; despite this, he tried to reassure me that his parents’ separation has had no impact, that it was not a source of concern, and was not a source of distress to him; the reality of his presentation suggested quite the opposite.

   (Single Expert Report of [Mr E] dated 20 May 2022)

   (Emphasis in original)

2. It is telling that one of the things X wanted was for his parents to be able to agree on something, which has been a task that has presented them with almost overwhelming difficulties. Indeed, it seems likely that the agreed orders entered into today are the first substantial agreement the parents may have reached for a very long time.

3. In this context, it is not surprising that Mr E came to the view that, in this case, parallel parenting was the best option in order to enable X to have a space within which to live and grow up and reach his potential in life. It seems to me that the issues that present themselves in this regard concern the impact of the conflict between the parents upon X, particularly given the past impact of it upon his development, and the potential impact upon the mother and her capacity to participate in X’s sporting activities and feel able to participate in those activities, and thus, her capacity to parent him in this particular domain. Certainly, the examples in the past where the father appears to have inserted himself into the sporting arrangements when they were at the mother’s time, or placed himself near the mother when it is clear that there is very significant conflict between them and no desire of the mother to have any interaction with him, is lacking in insight at the very least, if not an aspect of attempts to control or intimidate.

4. I also take into account that children generally wish to have their parents observe when they are undertaking activities and, in particular, to be able to discuss activities that they have taken part in with their parents, to regale their glories and to commiserate over things that do not go so well. It is clear that X has a good relationship with each parent; the parents participate actively in his life. I draw the inference that X would wish the parents to be able to see him in any major sporting endeavours or any major activities in which he participates due to the nature of that relationship.

   CONCLUSION

5. When I consider the matter as a whole, I am ultimately not persuaded that it is in his best interests for the father to be able to attend at X’s sporting activities generally when it is on days when the mother is facilitating his attendance at those activities. It seems to me that the potential for conflict, the potential for impact upon the mother’s participation outweighs the potential benefits to the child of having both parents present on a regular basis. I note that this is in the context that, in this case, both parents will regularly be attending such events due to the parenting arrangements, and it is not a situation where one parent has relatively limited interactions with or participation in his sports.

6. However, I also have turned my mind to the question of semi-finals and finals in sporting activities, which are generally particularly important, not only to children but all sportspeople. The importance of having parents being able to observe such activities and to be able to talk to them about such activities afterwards is significant for a child. In this more limited domain, it seems to me that X’s best interests are served by both his parents being able to at least watch him play those major games should the teams he is in end up participating at the end of the competitions, provided that there are adequate safeguards in place. For the limited number of games that would be involved, it seems to me that stringent conditions can be put in place to ensure sufficient safeguards in this regard. As a result, I propose to make orders to that effect.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Riethmuller.

Associate:

Dated:       1 November 2023