Janco & Riordan
[2023] FedCFamC2F 470
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Janco & Riordan [2023] FedCFamC2F 470
File number(s): CAC 1057 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 28 March 2023 Catchwords: FAMILY LAW – Parenting – Mother seeking to re-visit earlier parenting Orders contending that she consented to them without proper advice and/or that she did not fully or properly understand them; recommendation of Family Consultant that there be no change to the child’s primary living circumstances of living with his Father in Sydney and spending regular time with his Mother in City J; reliance and contentions regarding drawing adverse inference based on principle in Jones v Dunkel; according to authority drawing adverse inferences is not mandatory but remains a discretion of the Court. Legislation: Family Law Act 1975 (Cth) ss. 60B, 60CC(3)(c), (ca), (f), (h), 60CC(6) & 65DAA Cases cited: Australian Securities and Investments Commission v Geary (2018) 126 ACSR 310.
Jones v Dunkel (1959) 101 CLR 298.
Newell; Muriniti v De Costi (2018) 97 NSWLR 398.
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 8 – 9 March 2023 Place: City J Counsel for Applicant: Ms J Treherne Lawyer for the Applicant: Jeanine Lloyd & Associates Counsel for the Respondent: Ms K Beck Lawyer for the Respondent: GPG Lawyers Independent Children’s Lawyer: Mary Burgess ORDERS
CAC 1057 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JANCO
ApplicantAND: MR RIORDAN
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
28 MARCH 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
Name Change
1.The child, X born in 2017, be hereby known as X.
2.For the purpose of Order 1 above, pursuant to Section 19(2)(c) of the Births, Deaths and Marriages Act 1997, the Mother is hereby authorised to apply to the Registrar of Births, Deaths and Marriages to have the child’s change of name recorded on the child’s Birth Certificate and for the child’s name to be registered in the form specified in Order 1 above.
3.(a) For the purpose of Orders 1 and 2 above, the Mother is hereby authorised to provide a copy of these Orders to the Registrar of Births, Deaths and Marriages.
(b) Within 7 days of obtaining it, the Mother is to provide copies of the child’s amended Birth Certificate to the Father and the Court.
4.After the execution of Orders 1 – 3 above, the parties are hereby restrained from applying to the Registrar of Births, Deaths and Marriages to change the child’s name.
Parental Responsibility
5.The Mother and Father have equal shared parental responsibility for X born in 2017 (‘X’).
Live with / Spend time with arrangements
6.Absent any other agreement in writing between the parties, X shall live with the Father.
7.X spend time with the Mother, unless otherwise agreed by the parties in writing, as follows:
a.Each alternate weekend from after school Friday, with the Mother to collect X from school until Sunday 4:00pm, with the Father to collect X from the Mother’s residence;
b.Notwithstanding Order
37(a) above, if the Mother’s time falls on a long weekend, then the time X spends with him shall be extended to Monday at 3:00pm;c.During the Easter festive period in the Term 1 NSW school holiday period;
i.In every even-numbered year, for a ten-day period, which will include Easter Sunday;
ii.In every odd-numbered year, for a ten day period, provided that such time does not commence in the period between 4:00pm on Easter Thursday until 4:00pm on Easter Sunday; and
iii.Changeover is to occur at 4:00pm and the father shall collect X from the mother’s house and the mother shall, at the conclusion of time, collect X from the father’s residence.
d.In the NSW gazetted school holidays in Terms 2 and 3, from 3:00pm on the last day of the school term, with the Mother to collect X from school, until 5:00pm, the second Tuesday of the school holidays, with the Father to collect X from the Mother’s residence;
e.In the NSW gazetted Christmas school holiday period, in the following manner:
i.In even-numbered years, for the first, second and fifth weeks of those holidays;
ii.In odd-numbered years, for the third, fourth and sixth weeks of those holidays;
iii.Changeover is to occur at 4:00pm and the father shall collect X from the mother’s house and the mother shall, at the conclusion of time, collect X from the father’s residence;
iv.Changeovers shall occur on the first Saturday of the aforementioned weeks.
f.During the Easter festive period in the Term 1 NSW school holiday period:
i.in every even-numbered year, for a ten-day period, which will include Easter Sunday;
ii.in every odd-numbered year, for a ten day period, provided that such time does not commence in the period between 4:00pm on Easter Thursday until 4:00pm on Easter Sunday; and
iii.changeover is to occur at 4:00pm and the father shall collect X from the mother’s house and the mother shall, at the conclusion of time, collect X from the father’s residence.
.On Mother’s Day, from after school Friday, with the Mother to collect X from school until Sunday 4:00pm, with the Father to collect X from the Mother’s residence.
g.Should the Mother’s time fall on the weekend of Father’s Day, then the Mother’s time with X is suspended and he shall remain living with the Father for that weekend.
Changeover
8.Unless otherwise agreed between the parties in writing (using the parenting app or by text message or email), or otherwise specified in these Orders, any changeovers not occurring at X’s school shall occur at the Mother’s residence.
Communication
9.X spend time with the parent with whom he is not residing by telephone or Facetime each Monday, Wednesday and Friday between 6:00pm and 6:30pm.
10.The Mother and Father will facilitate any reasonable request for X to telephone the parent with whom he is not currently residing.
11.The parties are to agree upon and use a parenting application for all communication. Within 14 days, being by 11 April 2023, the parties are to notify the Court of which parenting application the parties have agreed upon.
12.Each parent shall keep the other informed at all times of their contact phone number and email address and shall notify the other parent in respect to any change of such contact details within 48 hours or as soon as practicable to do so.
13.Each parent shall advise the other parent in writing via the parenting application of any change to their address within 21 days prior to relocating out the area.
Special Occasions
14.On X’s birthday, should the parent with whom he is not living/spending time with at the time, wish to travel to spend his birthday with him, then they shall notify the other parent of their intention to do so within 7 days prior to the date of his birthday, and that parent shall spend time with X from 3:00pm until 6:00pm on that day.
15.In the event that X is not spending time with a parent on the parents’ respective birthday, the other parent shall arrange for X to communicate with the parent having the birthday by telephone or Facetime with the telephone or Facetime call to commence between 6:00pm and 6:30pm on the other parent’s birthday.
Medical
16.Each parent is permitted to liaise directly with any medical practitioner, dentist, counsellor or other health professional who treats X to obtain information about X’s treatment and these Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats X to provide information normally provided to a parent of a child upon request by either of the Mother or Father.
17.Each parent shall keep one another informed at all times of all organisations, schools, medical practitioners and health workers with whom X attends from time to time or is involved. Each parent is at liberty to attend any of the scheduled appointments about X’s health.
18.Each of the parents shall keep one another informed as soon as reasonably practicable of any of X’s medical procedures or operations to be undertaken prior to those operations or procedures being undertaken except in the case of an emergency.
19.In the event of any serious illness or accident concerning X, the party with whom X is residing/spending time with shall inform the other party as soon as is reasonably practicable.
Schooling and other activities
20.Each parent is permitted to liaise directly with X’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about X’s progress; and these Orders are authority for the school, sporting bodies and/or other organisations to release such information as requested by the parents.
21.Each parent may obtain from X’s school copies of newsletters, school reports, order forms for school photographs and any other information usually provided to parents.
22.Each parent is at liberty to attend all of X’s school, sporting and/or extra-curricular events to which parents are invited to attend and for this purpose, the Mother must provide the Father with notice of X’s events at least 72 hours prior to the commencement of the event.
23.Each parent shall keep the other informed of their current contact details including residential address, email and phone number and will notify the other of any changes to the same within 24 hours of those changes.
Travel
24.Each parent shall be at liberty to travel outside the Commonwealth of Australia with X at such times they are living with or spending time with X pursuant to these orders, subject to the following:
(a)The travelling parent shall provide the other parent no less than 30 days’ written notice of their intention to travel;
(b)The travelling parent shall no less than 14 days prior to travel provide the other parent a copy of return travel tickets, itinerary for travel and emergency contact details whilst travelling;
(c)Each parent shall sign any documents and give any consents necessary within 7 days of a written request to do so in order to facilitate the obtaining of visa or any other travel documentation to facilitate such travel.
25.Each parent shall within 7 days of a written request made by the other parent sign all documents and do all things necessary to cause X to be issued a current Passport:
(a)The Father shall hold the original passport and provide the Mother within 48 hours of receipt of the passport a certified copy of the passport;
(b)In the event the Mother wishes to travel with X pursuant to these orders, the Father shall provide the original passport to the Mother within 7 days of the mother providing the Father written notification of his intention to travel.
Resolution of disagreements
26.In the event of disagreement as to the application of these Orders or X’s future parenting arrangements, the parents shall in the first instance engage in Family Dispute Resolution to seek to resolve such matters.
Restraints
27.The Father and Mother, their servants and agents be hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party, including on any social media platform; and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of X, or any of them, and from permitting any other person to do so.
28.Without admissions, both parties are hereby restrained from consuming alcohol to excess (being more than the legal driving limit) or consuming illicit drugs whilst X is in their care.
29.Each parent shall ensure that X is not exposed to family violence during any times that X is living with or spending time with them.
30.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
31.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
32.The Independent Children’s Lawyer be discharged.
33.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
THE COURT NOTES THAT:
A.In the event the Mother and Father live geographically closer to each other in the future, it is likely that an equal-time/shared care arrangement would be implemented.
B.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Janco & Riordan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
1A relatively short time ago, I delivered oral reasons for the Orders made on 28th March 2023. What follows are those reasons revised from the transcript.
2Young X, who will turn 6 this year, lives with his Father (and his de facto partner in Sydney) and spends time regularly with his Mother in City J. For the even earlier part of his life, X lived primarily with his Mother and spent time with his Father, and for a relatively short time, he lived in a shared-care arrangement between his parents. Indeed, I mentioned to the parties during the trial on a number of occasions that if they lived closer to one another, it would be more likely than not that there would be a shared care arrangement again.
3X is very fortunate to have the caring and energetic parents that he does. This is even more so the case because, notwithstanding some occasional hiccups in communication (and some other matters noted later), the parties actually get on quite well, and certainly have X’s best interests at heart. By every report, he is doing extremely well. This is, in my view (unsurprisingly) a significant factor. It also seemed to be a very significant factor for the highly experienced Independent Children’s Lawyer (“ICL”).
4The Mother seeks that X return to her primary care. She has, to some degree, a level of grievance that, somehow, she was tricked into X moving to live in Sydney with his Father. Put another way: the Mother contends that she did not understand, or was otherwise not advised (or properly advised) by her then lawyer of the effect of certain Orders that had been agreed to by the parties and made by consent, which resulted in X going to live primarily with his Father in Sydney. It was never suggested that the Mother has ever made any Application to set aside those earlier Consent Orders on the basis that she was duped, ill-advised, or that she did not understand the Orders she had consented to.
5The recommendations of the Family Consultant (in her Report of August 2022, which became Exhibit CM1, and in her oral evidence), on balance, favour the stability of X remaining in the primary care of his Father. The ICL supports the same view. She put it largely in terms of there being no firm or compelling reason why there should be another significant change in X’s living arrangements. For essentially the same or similar reasons set out in more detail later, and noting that X has a good and close relationship with both parents under the current, reasonably long-standing arrangements, I agree that it is in X’s best interests to remain living primarily with his Father and his partner in Sydney and to spend regular time with his Mother in City J, plus (a) significant holiday time with the Mother in City J, and (b) whatever other times are agreed between the parents.
Applicant’s orders sought
6The Applicant’s orders sought were contained in a Case Summary Document filed 6th March 2023; they were as follows (emphasis in original):
Parental responsibility
1.That the mother and father have equal shared parental responsibility for the child, [X] born [in] 2017 ([X]).
Live with / Spend time with arrangements
2.That [X] live with the mother.
3.That [X] spend time with the father, unless otherwise agreed by the parties in writing, as follows:
(a) Each alternate weekend from after school Friday, with the father to collect [X] from school until Sunday 4:00pm, with the mother to collect the child from the father’s residence;
(b) Notwithstanding order 3(a) above, if the father’s time falls on a long weekend, then the time [X] spends with him shall be extended to Monday at 3:00pm;
(c) In the ACT gazetted school holidays in Terms 2 and 3, from 3:00pm on the last day of the school term, with the father to collect [X] from school, until 5:00pm, the second Tuesday of the school holidays, with the mother to collect [X] from the father’s residence;
(d) In the ACT gazetted Christmas school holiday period, in the following manner:
(i)In even-numbered years, for the first, second and fifth weeks of those holidays;
(ii)In odd-numbered years, for the third, fourth and sixth weeks of those holidays;
(iii)changeover is to occur at 4:00pm and the father shall collect [X] from the mother’s house and the mother shall, at the conclusion of time, collect [X] from the father’s residence;
(iv)Changeovers shall occur on the first Saturday of the aforementioned weeks;
(e) During the Easter festive period in the Term 1 ACT school holiday period:
(i)in every even-numbered year, for a ten-day period, which will include Easter Sunday;
(ii)in every odd-numbered year, for a ten day period, provided that such time does not commence in the period between 4:00pm on Easter Thursday until 4:00pm on Easter Sunday; and
(iii)changeover is to occur at 4:00pm and the father shall collect X from the mother’s house and the mother shall, at the conclusion of time, collect [X] from the father’s residence.
(f) On Father’s Day, from after school Friday, with the father to collect [X] from school until Sunday 4:00pm, with the mother to collect the child from the father’s residence;
4.That should the father’s time fall on the weekend of Mother’s Day, then the father’s time with [X] is suspended and he shall remain living with the mother for that weekend.
5.That [X] spend time with the parent with whom he is not residing by telephone or Facetime each Monday, Wednesday and Friday between 6:00pm and 6:30pm.
6.That the mother and father will facilitate any reasonable request for [X] to telephone the parent with whom he is not currently residing.
7.That on [X]’s birthday, should the parent with whom he is not living/spending time with at the time, wish to travel to spend his birthday with him, then they shall notify the other parent of their intention to do so within 7 days of the date of his birthday, and that parent shall spend time with [X] from 3:00pm until 6:00pm on that day.
Medical
8.That each parent is permitted to liaise directly with any medical practitioner, dentist, counsellor or other health professional who treats [X] to obtain information about [X]’s treatment and these Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats [X] to provide information normally provided to a parent of a child upon request by either of the mother or father.
9.That each parent shall keep one another informed at all times of all organisations, schools, medical practitioners and health workers with whom [X] attends from time to time or is involved. Each parent is at liberty to attend any of the scheduled appointments about [X]’s health.
10.That each of the parents shall keep one another informed as soon as reasonably practicable of any of the children’s medical procedures or operations to be undertaken prior to those operations or procedures being undertaken except in the case of an emergency.
11.That in the event of any serious illness or accident concerning [X], the party with whom [X] is residing/spending time with shall inform the other party as soon as is reasonably practicable.
Schooling and other activities
12.Each parent is permitted to liaise directly with [X]’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about [X]’s progress; and these Orders are authority for the school, sporting bodies and/or other organisations to release such information as requested by the parents.
13.Each parent may obtain from [X]’s school copies of newsletters, school reports, order forms for school photographs and any other information usually provided to parents.
14.Each parent is at liberty to attend all of [X]’s school, sporting and/or extra-curricular events to which parents are invited to attend and for this purpose, the mother must provide the father with notice of [X]’s events at least 72 hours prior to the commencement of the event.
15.That each parent shall keep the other informed of their current contact details including residential address, email and phone number and will notify the other of any changes to the same within 24 hours of those changes.
Travel
16.Each parent shall be at liberty to travel outside the Commonwealth of Australia with [X] at such times they are living with or spending time with [X] pursuant to these orders, subject to the following:
(a) The travelling parent shall provide the other parent no less than 30 days’ written notice of their intention to travel;
(b) The travelling parent shall no less than 14 days prior to travel provide the other parent a copy of return travel tickets, itinerary for travel and emergency contact details whilst travelling;
(c) Each parent shall sign any documents and give any consents necessary within 7 days of a written request to do so in order to facilitate the obtaining of visa or any other travel documentation to facilitate such travel.
17.Each parent shall within 7 days of a written request made by the other parent sign all documents and do all things necessary to cause [X] to be issued a current Passport:
(a) The mother shall hold the original passport and provide the father within 48 hours of receipt of the passport a certified copy of the passport;
(b) In the event the father wishes to travel with [X] pursuant to these orders, the mother shall provide the original passport to the father within 7 days of the father providing the mother written notification of his intention to travel.
18.In the event of disagreement as to the application of these orders or [X]’s future parenting arrangements, the parents shall in the first instance engage in Family Dispute Resolution to seek to resolve such matters.
Restraints
19.That the applicant father and the respondent mother, their servants and agents be hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking, or otherwise denigrating the other party, including on any social media platform; and
(b) discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
20.That without admissions, both parties are hereby restrained from consuming alcohol to excess (being more than the legal driving limit) or consuming illicit drugs whilst the children are in their care.
21.That pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Respondent’s orders sought
7The Respondent’s orders sought were separately filed on 1st March 2023; they were as follows (emphasis in original):
PARENTAL RESPONSIBILITY
1.The Father has sole parental responsibility for medical decisions for the Child [X] (also known as [X] ) (born [in] 2017) (the Child) and for the purpose of this Order:
1.1. the Father shall consult with the Mother in writing (including by text message or email) in relation to major medical decisions for the Child;
1.2. within 48 hours of receiving the notice referred to in Order 1.1 above, the Mother shall reply to the Father with her views, if any, in relation to the medical decision to be made for the Child; and
1.3. Upon receipt of the Mother’s response referred to in Order 1.2 above, the Father shall take the Mother’s views, if any, into consideration when making the decision for the Child; and
1.4. The Father shall notify the Mother in writing (including by text message or email) of the decision made for the Child within 24 hours of making such decision; and
1.5. In the event that the Mother does not respond to the Father within 48 hours of receiving the notice referred to in Order 1.1 above, the Father shall be at liberty to make a decision for the Child in the absence of the Mother’s views.
2.The Child shall be known as [X].
3.For the purpose of Order 2 above, pursuant to Section 19(2)(c) of the Births, Deaths and Marriages Act 1997, the Father is hereby authorised to apply to the Registrar of Births, Deaths and Marriages to have the Child’s change of name recorded on the Child’s Birth Certificate and for the Child’s name to be registered in the form specified in Order 2 above.
4.That for the purpose of Orders 2 and 3 above, the Father is hereby authorised to provide a copy of these Orders to the Registrar of Births, Deaths and Marriages.
5.The Mother is hereby restrained from applying to the Registrar of Births, Deaths and Marriages to change the Child’s name except with the express written authority of the Father.
6.Subject to Order 1 above, the parties shall have equal shared parental responsibility for all other major long term decisions for the Child.
7.The Father is hereby restrained from relocating outside of the Sydney/Greater Sydney area except:
7.1. with the express written agreement of the Mother in writing or leave of the Court; or
7.2. Where the Father is relocating with the Child to a location geographically closer to the Mother’s location.
LIVING ARRANGEMENTS AND SPEND TIME ARRANGEMENTS
8.The Child is to live with the Father.
9.Unless otherwise agreed between the parties in writing, the child shall spend time with the Mother each alternate weekend from the conclusion of school or 3:00pm on Friday to 5:00pm on the following Sunday.
CHANGEOVERS
10.Unless otherwise agreed between the parties in writing (including by text message or email), any changeovers not occurring at the Child’s school shall occur at the Mother’s residence.
SCHOOL HOLIDAYS
11.During the Term 1, Term 2 and Term 3 NSW gazetted school holidays, the child shall spend time with the parents as agreed in writing, but failing agreement the following Orders shall apply:
11.1. In even-numbered years:
11.1.1.the Child shall spend time with the Mother from the conclusion of school on the last day of the school term until 12:00pm on the middle Saturday in the school holiday period;
11.1.2.the Child shall spend time with the Father from 12:00pm on the middle Saturday in the school holiday period until the commencement of school on the first day of the next school term.
11.2. In odd-numbered years:
11.2.1.the Child shall spend time with the Father from the conclusion of school on the last day of the school term until 12:00pm on the middle Saturday in the school holiday period; and
11.2.2.The Child shall spend time with the Mother from 12:00pm on the middle Saturday in the school holiday period until 5:00pm on the Saturday immediately before the commencement of the new school term.
12.During the Christmas-New Year Holiday period the child shall spend time with the parents as agreed in writing, but failing agreement the following Orders shall apply:
12.1. In holiday periods commencing in even-numbered years, the Child shall spend time with the parents as follows:
12.1.1.With the Father from the conclusion of school on the last school day of Term 4 for a period of two (2) consecutive weeks until 5:00pm on Saturday at the end of the second week;
12.1.2.With the Father during the second last week of the gazetted NSW school holiday period in January commencing at 12:00pm on the Saturday until 12:00pm the following Saturday; and
12.1.3.With the Mother at all other times during the holiday period.
12.2. In holiday periods commencing in odd-numbered years, the Child shall spend time with the parents as follows:
12.2.1.With the Mother from the conclusion of school on the last school day of Term 4 for a period of two (2) consecutive weeks until 5:00pm on Saturday at the end of the second week;
12.2.2.With the Mother during the second last week of the gazetted NSW school holiday period in January commencing on 12:00pm Saturday until 12:00pm the following Saturday; and
12.2.3.With the Father at all other times during the holiday period.
SPECIAL OCCASIONS
13.In the event the children are not already spending time with the Father on Father’s Day, the children shall spend time with the Father from 3pm on the Saturday immediately prior to Father’s Day until 5:00pm on Father’s Day.
14.In the event the children are not already spending time with the Mother on Mother’s Day, the children shall spend time with the Mother from 3pm on the Saturday immediately prior to Mother’s Day until 5:00pm on Mother’s Day.
15.That on the Child’s birthday, the parent with whom the child is not spending time shall be permitted to contact the child by telephone or Facetime with the Facetime or telephone call to commence between 6:00pm and 6:30pm and for the purpose of this Order, the parent who is not spending time with the Child shall initiate the call and the parent with care of the Child at that time shall accept the call and make the Child available.
16.In the event that the Child is not spending time with a parent on the parents’ respective birthday, the other parent shall arrange for the Child to communicate with the parent having the birthday by telephone or Facetime with the telephone or Facetime call to commence between 6:00pm and 6:30pm on the other parent’s birthday.
COMMUNICATION
17.Unless otherwise agreed between the parties in writing (including by text message or email), the Mother shall communicate with the Child by telephone and/or Facetime every Tuesday and Thursday with the telephone or Facetime communication to commence between 6:00pm and 6:30pm and for the purpose of this Order, the Mother shall initiate the call to the Father and the Father will accept such calls and make the child available.
17.1. It is not intended to mean that the telephone or Facetime communication should occur for a period of third (30) minutes.
18.Each parent shall keep the other informed at all times of their contact phone number and email address and shall notify the other parent in respect to any change of such contact details within 48 hours or as soon as practicable to do so.
19.Each parent shall advise the other parent in writing of any change to their address within 21 days prior to relocating out the areas.
MEDICAL DECISIONS
20.The parents shall inform each other by telephone as soon as possible in an emergency and within 48 hours in writing (including by text message or email) in any other circumstance of any illness, injury or accident involving the Child save for minor injury or illnesses and will inform the other parent as soon as possible and within 48 hours of any attendances upon any health professional (including General Practitioner; specialist; dentist etc) and of the treating practitioner’s details.
21.The parents shall inform the other of any change to the Child’s medical practice(s) and details of other treating medical professionals within five (5) business days of any change.
22.Each parent is hereby authorised to obtain at their own expense from the Child’s treating doctors, general practitioner, dentist, psychologist, counsellor and other medical or allied health professional, the Child’s medical records including all assessments, reports and other information pertaining to the Child’s health and wellbeing.
23.Each parent is hereby authorised to discuss with the Child’s health professionals all matters pertaining to the children’s health and wellbeing upon a request made by that party with the requesting party to be responsible for any fees associated with such a request.
24.For the purpose of Orders 22 and 23 above, the parties are granted leave to provide a copy of these Orders to the Child’s treating doctors, general practitioner, dentist, psychologist, counsellor and other or allied medical practitioners.
COMMUNICATION WITH THE CHILD’S SCHOOL
25.Each parent is hereby authorised to obtain from the children’s school, all notices, letters, school reports, and school photographs at the requesting parent’s cost.
26.Each parent is hereby authorised to attend parent-teacher interviews, assemblies, concerts, performances, award ceremonies or other school or sporting activities to which parents are invited or would ordinarily attend.
27.Each parent is permitted to provide a copy of these Orders to the Child’s school and/or day care.
PARENTING COURSES
28.The parents will within 21 days from the date of these Orders enrol in the [B Program] in their respective locality.
TRAVEL
29.Each party is at liberty to take the Child interstate during the Child’s time with each parent.
30.Should either parent wish to apply for a passport for the Child, the parent wishing to apply for the Passport shall provide to the other parent, the passport application for that parent’s signature and that parent shall, within 14 days, do all acts and things necessary to sign the application and return the signed application form to the requesting parent and facilitate the issuing of the Passport.
31.The parent making the passport application shall solely incur the costs of such application.
32.The Child’s passport, once issued, shall remain in the possession of the Father and the Father will provide the Child’s passport to the Mother within 7 days of receipt of a request by her for such passport and details of proposed travel in accordance with Order 34 below, and the Mother will return the Child’s passport to the Father within seven days of returning from travel.
33.The parents are permitted to travel with the Child out of the Commonwealth of Australia for holidays and neither parent will unreasonably refuse the other parent’s request to travel with the Child outside the Commonwealth of Australia.
34.For the purpose of Order 33 above, the parent wishing to take the Child overseas is to:
34.1. provide to the other parent in writing, the details of the proposed itinerary and period of such travel no less than 60 days prior to the planned departure date, unless in case of an emergency such as the death or serious illness of an immediate family member with the parent providing evidence of the need for the emergency travel provided to the non-travelling parent at the time of seeking to make those arrangements and before the arrangements are made;
34.2. provide the other parent no less than 21 days prior to travel, copies of return travel tickets, full street address of where the Child will be staying and contact information including a mobile or landline telephone number and email address; and
34.3. ensure that the Child has adequate travel insurance cover for accidents, illness, medical care and lost luggage at least 21 days prior to travel and is to provide the other parent with a copy of such travel insurance.
35.The travelling parent will be responsible for the Child’s travel and accommodation costs.
36.For the period the Child is overseas, the non travelling parent is permitted to have some reasonable means of communication with the Child and that the travelling parent facilitate this request on a schedule to be agreed prior to travel.
37.Neither parent is to travel with the Child to any destination that has a Level 3 or grater traveller alert issued by the Australian Department of Foreign Affairs and Trade (or equivalent department as it may be known at the time of travel) at the time of travel or to a non-Hague Convention country except with the express written consent of the other parent.
RESTRAINTS
38.Each parent is restrained from making critical, derogatory or denigrating remarks in relation to the other parent or members of that parent’s family to or in the presence of the Child and each parent shall do all things necessary to ensure that no third party makes critical, derogatory or denigrating remarks in relation to the other parent, or members of that parent’s family, to or in the presence of the Child.
39.Each parent shall ensure that the Child is not exposed to family violence during any times that the Child is living with or spending time with them.
40.Each parent is restrained from discussing family law matters or adult issues with the Child.
EFFECT OF ORDERS
41.That both parties do such necessary acts and things to give effect to these Orders.
42.That in the event of any dispute as to the interpretation, implementation or enforcement of these Orders, including any claim by a party that they should be varied, the parties shall first attend family dispute resolution (FDR) with an FDR Practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
43.The parties are to share equally the cost of any FDR.
Orders sought by the Independent Children’s Lawyer
8The Independent Children’s Lawyer’s orders sought were contained in an Outline of Case Document filed 3rd March 2023; they were as follows (emphasis in original):
Parental Responsibility
1.The parents shall have equal shared responsibility for the child [X] born [in] 2018, save in relation to medical decisions.
2.The parents shall do all things necessary to cause the child’s birth certificate to be amended to record his name as “[X] [Janco Riordan]”.
3.The father shall have sole parental responsibility in relation to medical decisions. He shall keep the mother informed about all medical issues relating to [X] and shall take into account any view expressed by the mother but shall make any final decision in consultation with medical professionals.
4.The father shall notify the mother of any medical issue and advise her as to the advice and treatment he has received.
5.The father shall keep the mother informed in advance of all non GP appointments. The mother shall be at liberty to attend such appointments.
6.The father shall keep the mother advised about all medications required by [X] and shall provide medication for the mother to use when [X] is in her care unless such medication can be purchased without a prescription when the mother shall keep her own supply of such medication.
7.Each of the parents shall participate in, and complete, “[B Program]” within 12 months of these orders and shall provide evidence of their completion of the course to the other parent.
Living Arrangements
8.[X] shall live with his father.
9.[X] shall spend time and communicate with the mother as follows:
a.From 3pm Friday until 3pm Sunday at the end of the 1st, 4th, and 7th week of each school term;
b.For up to 24 hours in Sydney during school terms if the mother is able to travel to Sydney providing she makes sure [X] attends school or any pre-arranged activity or commitment. She shall advise the father at least 3 days in advance of her intention to exercise such time; the father shall not unreasonably refuse. The mother shall not use such time to include the whole of [X]’s birthday.
c.From 3pm on the final day of each of terms 1 and 3 until 3pm on the middle Saturday of the holidays.
d.From 3pm on the final day of terms 2 until 3pm on the Sunday before school resumes.
e.For one half of the term 4 school holidays each year at times agreed between the parents to include Christmas Day in odd numbered years but excluding Christmas Day in even numbered years.
f.By video call each Tuesday and Thursday at 6:30pm with the parents not to engage with each other beyond general greetings during [X]’s calls. The mother shall initiate the call. The call shall conclude when [X] is ready but shall not extend beyond 15 minutes.
Handovers
10.The mother shall collect [X] from school if applicable, and otherwise from the father’s home in Sydney at the commencement of her time with [X] unless otherwise agreed. The mother may, if necessary, arrange a third party to collect [X] providing that person is known to [X] and the father.
11.The father shall collect [X] from the mother’s home in [City J] at the conclusion of the mother’s time unless otherwise agreed. The father may, if necessary, arrange a third party to deliver [X] providing that person is known to [X] and the mother.
Special Occasions
12.The parent who has the care of [X] on any special occasions such as Christmas; Mother’s Day; Father’s Day; or the birthday of a parent, step-parent, sibling, or [X] himself; shall ensure X is assisted to make or receive a video call with the relevant person on the day.
Restraints
13.The parents are restrained from yelling or swearing at each other, or each other’s partners, in the presence or hearing of [X] and from allowing any other person to do so.
14.The parents shall not say rude, unkind, or negative things about the other parent to, or in front of, [X].
Some particular matters of evidence
9The matter could be said to be very finely balanced. It was and remains so. There is little doubt that X will continue to thrive wherever he lives, and with either parent. For the reasons given by the Family Consultant, and by the ICL, and in the light of the evidence of the parties, in my view, it is in X’s best interests to remain living primarily with his Father.
10In making this decision, there should not be any suggestion that I favour one parent over the other, or that one of them is better than the other. They each bring quite different parenting styles and gifts to X’s life. In general terms, the Mother seems to have significant verve and energy, as well as a subtly flamboyant character who wears her heart on her sleeve, as the saying goes. The Father is a somewhat more unassuming, more measured character. Clearly, X benefits hugely from the complementary gifts and talents of both of his parents. Further, he benefits from the generally civil, co-operative and quite friendly interactions between his parents. In fact, the Mother confirmed that, at her invitation, the Father regularly dines at her household when he brings X to City J.[1]
[1] See Transcript (8th – 9th May 2023) at p.22. Hereafter, such references will simply be “T” followed by the page number.
11Further still, the Mother has two older children (only one of whom is still at home), while the Father plans on commencing a family with his partner, Ms C. It is unclear and generally unknown if Ms C is aware of the Father’s family plans.[2] Were the Father and Ms C to have any children, this would be a significant further consideration. However, because there are no children of this relationship at the present time, I cannot and do not take account of the expectation and expression of intention by the Father here.
[2] T 126.
12It is convenient and important to note here that Ms C did not appear at the hearing, or provide an affidavit in support of the Father’s case. Very candidly, the Father said that his legal advice was that there was no need for her to give evidence.[3] While his Counsel tried valiantly to steer the Court away from the almost inevitable adverse inference that necessarily arises from this glaring omission (i.e. that her evidence was unlikely to assist the Father’s case), it should at least be noted that this omission was, at least, most unfortunate. If such advice was in fact given, in my view, it was deeply flawed and should never have been provided. Among other things, it deprived the Court of observing, and asking questions of, the person who effectively shares the care of X in the Father’s household and has done so for some time.[4] Such a matter is a relevant consideration under Part VII of the FLA.
[3] T 86 – 87.
[4] The adverse inference, of course, refers to the long-standing principle set out in Jones v Dunkel (1959) 101 CLR 298
13In short, apart from a relatively brief telephone conversation with her, recorded in the Family Report, there was nothing from Ms C. To be terribly repetitive: the omission in the Father’s case of any evidence (affidavit and oral) of such a crucial person in X’s life in the Father’s household, was startling, indeed remarkable. No less so was the almost sanguine acceptance of this omission, complete with so little explanation regarding how and why this had occurred. At the very least, it was an astonishing error of judgment. The Court usually has to fend off the parade of witnesses proffered in family law matters; here there was no such surfeit, only a singular and deeply unfortunate deficit. As case law commenting on the principle(s) in Jones v Dunkel make clear, the potential adverse inference involves something of a discretion because the inference “may”, not “must”, be drawn.[5]
[5] See, for example, Australian Securities and Investments Commission v Geary (2018) 126 ACSR 310 at [252] and [257]. In Newell; Muriniti v De Costi (2018) 97 NSWLR 398, at [78] – [80], the Court of Appeal (Beazley P; Gleeson and White JJ agreeing) said: “The rule in Jones v Dunkel allows for a form of inferential reasoning to be applied in the fact-finding process. It does not compel the drawing of inferences.”
14Accepting the remarkable omission of evidence from Ms C, apart from the discussion over the phone with the Family Consultant, the following matters militate against taking a decidedly draconian approach to this omission and make the most negative inference that the Mother would obviously seek to have the Court take, having regard to all of the circumstances of the matter, those mitigating factors are:
(a)There is no question that X remains in a close, loving relationship with both of his parents. This is so even after having lived with his Father and Ms C for a not insignificant time. If there was anything untoward arising from X living in the same household as Ms C, apart from a verbal altercation between the Mother and Ms C a number of Christmases ago, one might reasonably have expected someone (notably the Mother) to have raised it in her material well before the trial;
(b)Whatever the poor advice given to the Father to the effect that Ms C was really not required to put on any evidence in support of the Father’s case (assuming that such inept advice was in fact given), ultimately the Court is required to make Orders that are in the child’s best interests. Provided the absence of Ms C’s evidence does not adversely impact upon making such Orders for X’s benefit, which appears quite clearly to be the case, in my view, the adverse inference that may otherwise be drawn pursuant to the principles in Jones v Dunkel, need not occur or be taken;
(c)Presumably, too, both the Mother, and the Court, may take it that, absent any evidence to the contrary (and there is none), the Father would not consciously put X at any relevant risk, such as living with a person who, for example, might have a deleterious impact upon the child. There is no suggestion in any of the material that Ms C poses any risk to the child or otherwise does not assist the Father in the care and welfare of X;
(d)The Court may also be comforted by the Father’s evidence that he plans to have children with Ms C; whether she knows about this intention or not at the moment is not immediately relevant.[6] The reasonable inference, I suggest, is that the Father would not be contemplating, let alone announcing to the Court, his plan to have children to someone who might not be a good and reliable Mother, not only of X, but also of children to appear sometime in the not too distant future – one might reasonably assume.
[6] T 126.
15For completeness, I note the following from Ms D’s Report regarding her discussion with Ms C over the phone. To state the obvious: having recorded already the significant error in not having Ms C on Affidavit, to an obviously limited extent, there was some evidence from the Father’s partner, thus (pars.54 – 57):
[Ms C] was interviewed via telephone. She appeared polite and happy to engage in the interview.
[Ms C] described a positive and respectful relationship with [Mr Riordan], with no significant conflict. She spoke positively about her relationship with [X], identifying that they enjoy [crafts] together. She said that she does need to 'discipline' [X], as he listens well when in her care. She explained that [Ms Janco] has asked that [Ms C] is not involved in discipline practices for [X], so if she is concerned about [X]’s behaviour, she will suggest to [Mr Riordan] that [X] goes to his room for five minutes.
[Ms C] reported that [X] does not often speak about his mother with her, but said she responds positively if he mentions her. She added that she thinks [X] was aware that there was tension between her and [Ms Janco], but that she thinks [X]’s understanding has changed recently. She said that [X] had made a comment about his mother, and [Ms C] asked him, "Did that happen? Shall I call Mum and check?" She said that [X] seemed surprised that [Ms C] had his mother telephone number, and that they could speak with one another.
[Ms C] believes that [X] generally enjoys his time with his mother, and believes the current arrangement is working well. She said that she has concerns about [Mr E], describing him as "very violent". She alleged that, recently, [Mr E] had told [X] about breaking his hand by punching a wall, which she does not believe was appropriate for [X] to hear. Additionally, she raised concerns about [Ms Janco]'s decision-making, giving an example of her telling [X] that they could take a dog for a walk, after the dog had previously attacked [Ms Janco].
The parties’ evidence
16The parties’ evidence was generally unexceptional. It is not a criticism to observe that it added very little to what the Court already knew (based in part upon the Court’s engagement with the parties on earlier occasions), or what had been recorded or assessed by others, notably by family consultants, Ms D (most recently) and earlier (separately) by Ms F and Ms G. Some now largely historical matters concerning medical treatment for X were canvassed at a little length, notably that both parents obtained and relied upon somewhat differing expert medical advice regarding the removal (or not) of X’s medical condition, and in relation to asthma medication. Notwithstanding some hiccups and a few tense exchanges, the matter then resolved, although some medical issues remain, as they will into the future with any child.
17Indeed, to speak generally, the very limited issues between the parties fell into two categories: (a) historical, notably regarding the medical issue already recorded, and (b) the Mother’s more generalised complaint about the Father being hostile or antagonistic towards her. Indeed, the Mother complained that there was a risk of X being “alienated” from her.[7] There was not the slightest evidence to support such a claim. It seemed that, on a number of fronts, what I will call (without criticism) the idiosyncrasies of the parties, together with one historical factor, are, in large measure, at the heart of much of the problems here. Moreover, which is of little comfort perhaps to the parties, the issues in dispute here are few and quite modest compared to most other parenting cases.
[7] See T 13, 19 & 30.
18The historical issue is the fact that the Mother contends that she was effectively tricked into signing consent Orders that resulted in X moving to Sydney with the Father. This is a variation of the observation made earlier about the Mother not understanding the Orders, and/or not having them explained to her by her then lawyer.[8] There is no evidence to support either variation of this general claim by the Mother. And as noted earlier, the Mother never took any action to challenge the earlier Orders that she now complains about.
[8] T 35 – 36. See also the Mother’s Affidavit of 21st May 2021, par.21.
19The particular or specific issue of communication arises this way. Even though it was uncontested that the Father communicates regularly with the Mother (including sending photos of X (to the Mother), including the Mother in invitations to school events, and the like) the Mother complains that the Father does not follow up his SMS messages with a telephone call. She said that the Father knows that the Mother does not always look at her SMS messages.[9] It remains unclear to me how or why the Father should be required to take extra steps to ensure that the Mother has received, read, and understood any message sent by him regarding X. Each party has her and his own life. In my view, the only responsibility any parent has is to communicate with the other parent clearly, politely, and in a timely way regarding matters involving the child. It would be remarkable to insist that there be follow-up inquiries to ensure that the other parent had read and understood the primary message. Both parties acknowledged that using a parenting App would likely help their communication.
[9] T 13 – 14 & 54 – 55.
20Accordingly, there will be an Order that the parties agree upon obtaining and using a parenting App for communication. Within 14 days of the date of these Orders, the parties are to notify the Court what parenting App they have agreed upon to use.
21Moreover, as already noted, the contention of “alienation” and related matters have even less substance given the gracious and regularly accepted invitations by the Mother to the Father to dine with her and X, plus the previously noted instances of the Father sending photographs of the child to the Mother and notifying her of significant school events and the like. One could hardly mount a claim of alienation when the parents reasonably regularly dine together and communicate reasonably well. It seems that there is a basic misunderstanding as to what “alienate” means in parenting matters. There was certainly no evidence of it before the Court here.
22The same misunderstanding was apparent when there was a contention that the Father was “weaponising” the child against the Mother, sort of using him as something of a “pawn”.[10] The comments already made about the parties somewhat regularly dining together at the Mother’s residence, and spending time together at significant events, such as X’s first day of school for which there were some lovely photographs of the parents with a plainly very happy X, again hardly supports any such alienating or weaponising conduct. The reality is that, on all the evidence, X has a good and close relationship with both of his parents, and that, for the most part, the parents co-operate reasonably well regarding issues relating to X. The issue is simply that the Mother wants X to return to live with her in City J, and that, in her view, for this to occur, she has to show that the earlier consent Orders were not properly explained to her. At the time of making them, the Mother was legally represented, thereby making it very difficult for her to sustain her complaint in the absence of evidence to support it. No such evidence was provided.
[10] T 3.
23The only other matter to note from the parents’ evidence, about which there is little or no contest, related to the religious education of X. The Mother is Catholic, in no critical way, mainly by tradition than conventional, weekly practice. The same is true, on the Father’s evidence, of his partner, Ms C. The Father himself is not Catholic. He did not profess to adhere to any particular religious tradition.[11] He said that he had arranged for X to have scripture classes each week. In fact, X’s school provides them.[12]
[11] T 88.
[12] T 117.
24By way of observation, nothing else, there was no acknowledgement or exploration with either parent why, other than presumably for either historical, cultural or personal/family affiliation, it was hoped that X’s education would be in the Catholic tradition. Perhaps, indeed hopefully, X’s parents appreciate that Christianity is more than a set of devotional practices or a moral code. It seems that X’s religious affiliation was a joint decision; there certainly was no dissension about this course. As a suggestion, and following the lead of, and simple comment by, Marcus Brodie in Indiana Jones & the Last Crusade of the search for the divine in some form by all members of the human family, X might enjoy some now almost classic children’s animated movies, with remarkable, very prominent actors and actresses providing the voice-work, such as The Prince of Egypt, and Joseph, King of Dreams (both early products of the Dreamworks group). Just suggestions, as X’s parents guide him along the path of life looking for truth, goodness and beauty – among other things.
25One matter that was canvassed a number of times, primarily by the Court, was that if the parties lived closer together, it was more likely than not that an equal-time/shared care arrangement would be implemented. Perhaps this is something that might be considered in the future, for example when the Mother’s youngest child from a previous relationship now in Year 11 leaves school. A note to this effect will be added to the Orders.
26Two other issues can be canvassed briefly.
27First, the Mother’s heritage is Country H. I do not doubt its importance to the Mother. However, there was very little evidence before the Court that could reasonably elevate this issue above those already identified. Moreover, the Father and the child are both Aboriginal. I need not canvass this further other than to note that both parents agreed the child should be enrolled in Aboriginal programs through school and that the significant educator in this area is the paternal Grandmother, who appears to spend time with the child while he is in the Mother’s care.[13]
[13] Plainly, such matters come within the considerations in s.60CC(3)(h) and s.60CC(3)(6). T 59.
28Secondly, there was also an issue regarding X’s surname. The Mother seeks to have her surname hyphenated with the Father’s – her name already being part of X’s middle names. Apart from the length of the combined name, there was little reason proffered by the Father that would warrant the “identification” and heritage aspects of the Mother’s surname not being included simply by way of a “hyphen.” While it may be an issue that, in certain respects, this is a matter of appeasement for the Mother, in my view, it is the “Country H heritage” aspect that is proper for the Court to consider in X’s best interests rather than perhaps how long it might take him to write his name – assuming that such things occur today, as opposed to typing it. To properly recognise the Mother’s heritage, there will be an Order for the hyphenation of X’s surname and the necessary consequential Orders to enable that name change.[14]
[14] I note that the Father sought an Order to add his name to the child’s birth certificate. He also said that, in his view, it was sufficient if the Mother’s name was included among the child’s middle names.
29Returning to matters under s.60CC(3), obviously in light of the geography involved, wherever X lives, issues of practicality and travel cost and resources will remain.[15]
[15] Generally, see s.60CC(3)(e).
30A crucial matter that was canvassed with both parents was that, whatever the historical and legal circumstances of X moving from the primary care of the Mother to live with his Father in Sydney, if there was any change in this situation which has been in place now for a few years, given his age, schooling, friendship groups and the like, there would be significant disruption to X should he be uprooted and return to his Mother’s primary care.
31Apart from the two issues mentioned, because the parents’ evidence otherwise did not really assist me, and was explored relatively lightly (none of these comments are criticisms of anyone), in my view, it is unnecessary to go into it further. I need only record how much both parents plainly love X and, for the most part, put his interests above their own. Both parents were child-focussed, albeit with different emphases and strengths.
The Report of Ms D
32I note the following from Ms D’s Report, dated 12th August 2022.
33First, she noted the following interactions with X, at pars.63 and 64 in the following terms:
[X] entered the observation room happily with his mother, who had brought age appropriate toys with which [X] could play. [X] initially challenged his mother, making comments such as, "I told you to do it stop lying" and, "You have to make the whole thing by yourself', but soon agreed to help make the Lego set with his mother. He frequently turned to his mother for advice and assistance, while she supported him to create the Lego set. [X]was noticeably breathing through his mouth throughout the observation sessions, and held his breath at times while concentrating. [X]remained focused on the Lego build for 30 minutes, and seemed happy for his mother to assist him. [Ms Janco] complimented him regularly during the observation, praising his building abilities. At the end of the observation session, [Ms Janco] suggested that [X] could complete the Lego task with his father, but [X] said that he wanted to finish it with his mother. [Ms Janco] then assisted [X] to complete the build quickly, and asked [X] for a kiss before he left. [X] gave his mother a kiss, and entered the observation room cheerfully with his father.
[X] interacted comfortably with his father, and requested assistance when needed. [Mr Riordan] frequently encouraged [X] to demonstrate his skills and tell the assessor about his experiences, asking [X] whether he had told the assessor about visiting the dinosaur museum, asking him mathematical questions, and asking him to write '[his surname]’ on a piece of paper, [Mr Riordan] praised [X] regularly, and provided appropriate guidance, such as telling him to face the 'nerf gun' away from the assessor, and reminding [X] not to throw crayons. At the end of the observation session, [Mr Riordan] asked [X] to assist in tidying the toys, and told [X] that he would need to have a nap or miss out on playing 'Roblox' if he did not help. The parents interacted amicably after the observation sessions, and left the registry together.
34The “Evaluation” section of the Report was as follows (pars.65 – 72):
Based on [X]’s age and stage of development, the priorities for him will be to have: a safe and stable home environment; warm, emotionally sensitive relationships with his caregivers; a meaningful relationship with each of his parents; and a child-focused routine with opportunities to engage in early learning. As an Aboriginal child, it will also be important for [X] to have opportunities to connect with his cultural identity.
[X]’s parents have had ongoing disagreements about [X]’s medical needs, with [Ms Janco] believing that [X]’s breathing difficulties are due to asthma, and [Mr Riordan] believing the issues are due to [his medical condition]. This disagreement appears to have been driven by a lack of effective communication between the parents, and a mistrust of the health professionals by both parents. It appears that, at times, [X]’s health has been placed at risk by this disagreement, such as [Ms Janco] reporting that she could not provide [X] with Ventolin, even when advised to do so, and [Mr Riordan] reporting that [X]’s surgery has been delayed. [Mr Riordan] has alleged that [Ms Janco] has given [X] non-prescribed medication, though [Ms Janco] reported that this was a misunderstanding. [Ms Janco] believes [Mr Riordan] has not complied with giving [X] his medication, which [Mr Riordan] denies. This lack of trust, and potential noncompliance with medical advice will make it difficult for [X]’s medical team to provide quality assessment and medical care for him. An additional difficulty appears to have been conflict during or following medical appointments, which also has the capacity to interfere with the medical care [X] receives, as well as adding an additional element of distress for [X].
Due to the mistrust between the parents, both parents have had instances where they have withheld [X] from the other parent, claiming they are concerned about the other parents' capacity to meet [X]’s needs. This has led to significant disruptions in [X]’s routines and relationships with each of his parents. It will be vital that, into the future, [X] has a stable routine in which he can maintain his expectations of when he will spend time with each parent. This will be particularly important once [X] begins primary school. Both parents may benefit from engaging in an attachment-based parenting program, such as the [B program], to better understand [X]’s emotional and relationship needs.
[Ms Janco] believes that she is more available for [X], physically and emotionally. She also believes that she is better positioned to maintain X's relationships with his extended family, who mostly reside in [City J]. However, significant concerns have been raised by [Mr Riordan] about [Ms Janco]'s capacity to provide stability and appropriate care for [X]. [Mr Riordan] acknowledged that [X] enjoys spending time with his mother, but believes [Ms Janco] does not manage his behaviour appropriately. [Ms Janco] did not indicate that she has issues managing [X]’s behaviour, but did state that [X] displays inappropriate behaviours with her, which [Mr Riordan] reports do not occur in his care. During the observation session, both parents appeared to guide [X]’s behaviour appropriately.
[Mr Riordan] also raised concerns about [Ms Janco]'s emotional regulation, alleging that he frequently yelled at him during the relationship and during handovers. [Ms Janco] aclalowledged that she had yelled at, and threatened, [Ms C], in front of [X]. It appears that, at times, [Ms Janco] has struggled to regulate her emotions when frustrated, which has exposed [X] to high levels of conflict. These difficulties could have been exacerbated by untreated ADHD and possibly PTSD. Since these incidents, [Ms Janco] has sought assessment and treatment for her mental health, which will hopefully mean increased emotional stability. It will be important for [Ms Janco] to maintain her mental health through ongoing supports and monitoring.
[X] appears settled in his father's care, and has spent the majority of weekday time with his father over the past two years. [Ms Janco] is concerned about [Mr Riordan’s] availability, but it appears he has structured his work hours to ensure he has time to spend with [X]. [Mr Riordan] also indicated that he has explored opportunities for [X] to connect with his Aboriginal culture through the local school, and can also assist [X]'s cultural connections through his extended family members. [Ms Janco] is concerned that [Mr Riordan] does not offer the same emotional support that she does, and that he does not allow [X] to express himself. The parents appear to have different parenting approaches. While it will be important for [Ms Janco] to learn to maintain clear behavioural boundaries with [X], it will also be important for [Mr Riordan] to support [X]’s emotions and self-expression. The parents will also benefit from accepting some differences in their parenting approaches, and recognising that they support [X]’s needs in complementary ways.
The parents reported that their communication and co-parenting dynamic has fluctuated since their separation, but is currently reasonably effective. As the parents have both had significant involvement throughout [X]’s life, and both contribute to his wellbeing in complementary ways, it would be beneficial for the parents to share parental responsibility for [X]. However, both parents acknowledged that they have not been able to collaborate to make decisions about [X]’s medical care, which has negatively affected [X]’s health. The Court may wish to consider ordering that only one parent holds parental responsibility for [X]’s medical needs, to ensure [X] receives timely and appropriate medical care into the future. Both parents appear to have contributed to addressing [X]’s medical needs, as well as to hindering his medical care through their disagreement. However, if only one parent holds responsibility for [X]’s medical decisions, practically it makes sense that this should be the parent, with whom [X] primarily lives.
[Ms Janco] believes that it is in [X]’s best interests to return to live with her in [City J], due to her increased availability, and her belief that she can best meet [X]’s emotional needs. [Mr Riordan] believes that [X] is settled in his current home and routine, and that he is best placed to provide quality day-to-day care to [X]. Due to the distance between the homes, [X] will need to reside primarily with one parent, and spend weekend and school holiday time with the other parent. On balance, it seems to be least disruptive for him to remain living primarily with his father, who appears well placed to meet [X]’s physical, emotional, educational and cultural needs. [X] will benefit from regular time with his mother, as frequently as is practical due to the distances between the homes. The current arrangement of spending alternate weekends appears manageable, and could increase to include longer periods during school holidays. It will be important that there is also scheduled FaceTime contact between [X] and his mother, and that the parents ensure that [X] is not exposed to hostility between [X]’s caregivers during these calls.
Par.72 of her Report summarised her position and view; it equally summarised the view she expressed in the witness box.
Critically, and in keeping with the fine balance of the evidence, Ms D confirmed in her oral evidence that there was nothing, as it were, that would enable her to pick one parent over the other on the basis of the “capacity” of the parent.[16] “Capacity” of course, is one of a number of related “considerations” under s.60CC(3)(f), which also include matters such as communication and spend time with (sub-paragraphs (c) and (ca)).
[16] T 141.
Consideration & disposition
Given how genuinely limited the issues were between the parties, and given also how well the parents generally co-parent, together with the very good and close relationship that X has with both of his parents, I have deliberately confined these reasons essentially only to the issues in dispute. Put another way, while the Court could have perhaps waxed lyrical about this case or that case, and traversed many parts of s.60CC(3), the only thing the parties needed (and X likewise) was simply to have the very limited issues in dispute determined in the most expeditious way possible. Noting the confined issues, together with areas of agreement, the confined nature of these reasons seemed most apposite in all of the circumstances.
Plainly, as noted by Ms D, stability and certainty are crucial aspects to the lives of everyone but that children in particular need these things. It was primarily for these reasons of stability and certainty that she proposed or advised that X remain living with his Father.[17] It was for the same considerations that the experienced ICL advocated similarly. It is for the exact same reasons why, in my view, it is best for X to remain living with his Father in Sydney and spend regular time with his Mother in City J, or whenever she happens to be in Sydney also.
[17] T 141
In my view, for the reason given, the Orders proposed by the Father, for X to [continue to] live primarily with him, and spend regular time with his Mother, with some significant “tweaking” including a range of other orders sought by the Mother and the ICL, are in X’s best interests. In short, X will continue to live with his Father in Sydney and spend each alternate weekend with his Mother in City J. There will be an Order for equal shared parental responsibility.
In my view, the Orders I have indicated will best facilitate and ensure that X will continue to have a meaningful relationship with both of his parents. As the jurisprudence makes plain, the object of Part VII of the Family Law Act 1975 (ss.60B and 60CC(2)(a)) is to ensure that the child has a meaningful (as opposed to optimal) relationship with both parents, to the degree that it is in his best interests for this to occur. An “optimal relationship” here would be readily achievable if the parents lived much closer to each other. However, geographical distance is the principal impediment to “optimising” the relationship between X and his parents. Such are the vagaries of life. Otherwise, for separated parents, generally they get on with each other really quite well. Most importantly, X has an undisputedly good and close relationship with both of his parents.
The vicissitudes of distance and travel, otherwise known as “reasonable practicality” for the purposes of s.65DAA(5), militate against an equal time arrangement at the present time while-ever the parents live so far apart.
For the somewhat abbreviated reasons given, the Orders proposed by the Father, and generally supported by the ICL, are in X’s best interests.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 28 March 2023
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