Jin & Zhen (No 3)
[2024] FedCFamC2F 440
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jin & Zhen (No 3) [2024] FedCFamC2F 440
File number(s): SYC 8638 of 2021 Judgment of: JUDGE BECKHOUSE Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – CHILDREN – Where the mother would not facilitate a meaningful relationship with the father – Change of residence ordered – One-month moratorium of no time with the mother.
FAMILY LAW – COSTS – The mother to pay the costs of the Independent Children’s Lawyer.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAC, 68L, 117 Cases cited: R & R: Children’s Wishes (2000) FLC 93-000 Division: Division 2 Family Law Number of paragraphs: 165 Date of hearing: 14 and 15 March 2024 Place: Sydney Solicitor for the Applicant: Mr Neo of Longton Legal For the Respondent: Self-Represented Litigant Counsel for the Independent Children's Lawyer: Mr Ang Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 8638 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JIN
Applicant
AND: MS ZHEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
12 APRIL 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental responsibility
2.The Father have sole parental responsibility for the child, X born in 2012 (“X”), and in the exercise of sole parental responsibility, the Father shall:
(a)before a final decision is made, provide the Mother with at least seven (7) days’ notice in writing of any long-term decision in relation to X’s care, except in the case of an emergency;
(b)take into genuine consideration any views or opinions expressed by the Mother; and
(c)notify the Mother in writing by email of the final decision as soon as reasonably practicable.
Live with
3.X live with the Father.
The Mother’s time with X for the first month after Orders are made
4.For a period of four (4) weeks from the date of these Orders, X shall spend no time with the Mother (“the moratorium”).
5.During the moratorium, the Mother is restrained, without first obtaining the Father’s prior written consent, from attending or entering:
(a)the Father’s home;
(b)the grounds of any school that X may attend from time to time; and
(c)any after school activity or extracurricular activities that X may participate in from time to time.
6.During the moratorium, the Mother is restrained, without first obtaining the Father’s prior written consent, from communicating directly with X by any means including, but not limited to, telephone, social media messenger service or application, or email.
7.During the moratorium, the Mother will take all necessary steps to ensure that the maternal grandparents do not approach X or communicate with him directly without first obtaining the Father’s prior written consent.
The Mother’s time with X after the one-month moratorium
8.From the conclusion of the moratorium, X shall spend time with the Mother as follows:
(a)During the school term, each alternate weekend from Friday after school (or 3.00 pm if a non-school day) until Wednesday at the beginning of school (or 9.00 am if a non-school day) commencing 10 May 2024.
(b)During NSW school holiday periods commencing from the Term 3, 2024 school holidays:
(i)For half of the NSW gazetted school holidays, being the first half in even numbered years and the second half in odd numbered years.
(ii)For the purposes of calculating time, the school holidays will commence on the first day following the last day of school term at 5.00 pm, and end on the day before the first day of the next school term at 5.00 pm.
(iii)For the purposes of calculating time, the first half of the school holidays will end on the first Sunday of the school holidays at 5.00 pm.
(iv)During school holiday periods the spend time with arrangement set out on Order 8(a) will be suspended.
(c)On X’s birthday as follows:
(i)If his birthday falls on a school day, from after school to 7.00 pm.
(ii)If his birthday falls on a non-school day, from 2.00 pm to 7.00 pm.
(d)On the Mother’s birthday from 3.00 pm to 7.00 pm (or from 2.00 pm to 7.00 pm if a non-school day).
(e)On Mother’s Day, on the weekend from Friday after school (or 3.00 pm if a non-school day) until Sunday 5.00 pm.
(f)Such further time as may be agreed in writing between the Mother and the Father.
9.If X is not already spending time with the Mother, the Mother’s time with X as outlined in Order 8(a) and (b) herein shall otherwise be suspended on the following special occasions:
(a)On Father’s Day, X shall spend time with the Father on the weekend from Friday after school (or 3.00 pm if a non-school day) until Sunday 5.00 pm.
(b)On the day of Lunar New Year:
(i)With the Mother, in even numbered years:
A.On school days, from after school to 9.00 pm.
B.On non-school days, from 9.00 am to 9.00 pm.
(ii)With the Father, in odd numbered years:
A.On school days from after school to 9.00 pm.
B.On non-school days, from 9.00 am to 9.00 pm.
(c)During Christmas:
(i)With the Mother:
A.From 10.00 am on Christmas Eve until 10.00 am on Christmas Day in odd numbered years; and
B.From 10.00 am on Christmas Day until 10.00 am on Boxing Day in even numbered years.
(ii)With the Father:
A.From 10.00 am on Christmas Eve until 10.00 am on Christmas Day in even numbered years; and
B.From 10.00 am on Christmas Day until 10.00 am on Boxing Day in odd numbered years.
Changeover
10.On school days, changeover shall occur at the school X attends from time to time.
11.Unless as otherwise provided in these Orders, on non-school days, changeover shall occur at P Reserve (located at Q Street, Suburb K NSW), otherwise known to the parties as “Suburb K Reserve”, and during changeover, the Father and Mother shall:
(a)speak to each other respectfully; and
(b)limit their conversation to matters that only relate to X’s care, including but not limited to, the matters contained in Orders 21(c), 25, and 26 herein.
12.In the event that X is unwell and unable to attend school or Suburb K Reserve for changeover, the parties will communicate by SMS and make arrangements for the changeover to occur at the residence that X is staying in within 3 hours of the usual changeover time.
Communication
13.Unless otherwise stated or for the purposes of communicating information between the parents, the parents shall communicate with each other:
(a)by phone call in relation to matters of an urgent nature;
(b)by SMS text message about day-to-day matters, including arrangements for each parent to spend time with the child; and
(c)by email when a document or attachment needs to be sent to the other parent.
14.The Father and the Mother shall notify each other of:
(a)any change in telephone contact numbers and email address, and such notification be made in writing by SMS text message and within three (3) days of any change; and
(b)any proposed change to their place of residence, and such notification be made in writing by SMS text message and no less than fourteen (14) days prior to the proposed change.
15.The Father is at liberty to communicate with X directly on his mobile phone at all times when he is not spending time with X, but no more than once a day.
16.Subject to Order 6 herein, the Mother is at liberty to communicate with X directly on his mobile phone at all times when she is not spending time with X, but no more than once a day.
X’s health, education and extracurricular activities
17.Within seven (7) days of the Orders being made, the Mother shall provide to the Father by SMS text message the names and addresses of X’s current treating doctors, including his general practitioner (“GP”).
18.Within a further seven (7) days of the Mother complying with Order 17 herein, the Father shall:
(a)attend upon X’s GP, or in the event X does not have a usual GP, the Father’s own GP, for the purposes of obtaining a referral for X for psychological treatment by a mental health professional in relation to managing the change in living circumstances;
(b)provide a sealed copy of these Orders and Reasons for Judgment to the referred mental health professional; and
(c)ensure that X attends upon any referred mental health professional for as long as recommended by them.
19.The Father and the Mother shall:
(a)by SMS text message, provide the other parent with the names and addresses of X’s treating doctors;
(b)by SMS text message, inform the other parent as soon as practicable of any specialist medical appointments, including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to X; and
(c)by email, ensure that the other parent is provided a copy of any report by any such specialist medical consultant in relation to X within fourteen (14) days of the parent’s receipt of such report.
20.Both parents shall be entitled to discuss X’s condition with any treating doctor or specialist medical consultant.
21.Both parents shall ensure that the other parent is notified by SMS text message or phone call as soon as practicable if, while in their care:
(a)X is admitted to hospital; or
(b)X is involved in a medical emergency; or
(c)X is prescribed medication, they shall provide to the other parent sufficient medication to cover the period that X spends with the other parent, in which case the parent shall advise the other parent of the following:
(i)the name of the prescribed medication that X must take; and
(ii)the reasons why X is taking this prescribed medication.
22.This Order shall act as an authority for the parties to obtain copies of X’s school reports, newsletters, to obtain information from the principal and class teacher as to X’s progress, and for obtaining any health records for X.
23.The Father shall provide a sealed copy of these Orders to X’s school, B School, or any other school that X may attend from time to time.
24.Each of the parents shall use their best endeavours to ensure that X remains enrolled in and attends each of the extracurricular activities that he is currently enrolled in for the remainder of 2024.
25.From 2025, if either parent enrols X in an extracurricular activity that falls on a day where the other parent has care of X, that parent shall:
(a)inform the other parent as soon as practicable of the extracurricular activity X has been enrolled in;
(b)provide the other parent of the schedule of this extracurricular activity, including times for any lessons, events, concerts, and/or competitions; and
(c)ensure that X takes with him any item/s he requires to properly attend, engage and/or participate in the extracurricular activity, and the other parent shall use their best endeavours to ensure that X returns with such item/s.
26.Unless prior written consent by SMS text message is provided, only the parent with whom X is living with shall attend any school event, assemblies, performances, parent-teacher interviews or other occasion parents are usually invited, as well as any extracurricular activities outlined in Order 25(c) herein, that fall on the days X is in their care.
Overseas travel
27.Each of the parents are permitted to travel overseas out of the territorial limits of the Commonwealth of Australia, provided always that:
(a)the parent intending to travel with X (“the travelling parent”) shall provide the other parent a written notice of the proposed travel at least 28 days prior to the date of departure from Australia, including but not limited to, the following:
(i)dates of departure and arrival;
(ii)destination/s of travel;
(iii)arrangements for the care and supervision of X during the period of proposed travel.
(b)the period of proposed travel shall, as far as practicable, not affect X’s attendance at school and/or such other extracurricular activities as X is enrolled;
(c)where the period of proposed travel will affect the other parent’s obligation to spend time with X, the travelling parent shall propose a suitable make up time for the other parent to comply with their obligations to spend time; and
(d)where the period of proposed travel is for bereavement purposes or other circumstances of family emergency, the notice period in Order 27(a) herein shall be reduced to 48 hours.
28.Within seven (7) days of the Orders being made, the parents are to do all things necessary to sign and give all consent required for X to obtain an Australian passport.
29.The Father shall retain X’s passport and shall make X’s passport available to the Mother upon compliance with Orders 27(a)-(d) herein.
Restraints
30.During the time that X is with either parent, that parent shall:
(a)speak of the other parent respectfully;
(b)not denigrate or insult the other parent or any member of the other parent’s household or immediate family in the presence or hearing of X; and
(c)use their best endeavours to ensure that other persons do not denigrate or insult the other parent or any member of the other parent’s household or immediate family in the presence or hearing of X.
31.Without admission, each parent shall refrain from:
(a)swearing or using obscenities in front of X or within X’s hearing; and
(b)using physical force to discipline X.
Costs
32.The amount of $30,000 currently held on trust by the Sydney Registry of the Federal Circuit and Family Court of Australia, security for the costs and disbursements in accordance with the Orders made on 7 December 2023 be distributed in the following manner and in order of priority:
(a)$8,780 to the proper officer of Legal Aid NSW.
(b)In payment to the Child Support Agency of any monies currently outstanding in relation to child support assessed for X.
(c)The remainder to the Mother.
Independent Children’s Lawyer
33.The Independent Children’s Lawyer is discharged at the conclusion of the moratorium period referred to in Order 4 herein.
THE COURT NOTES THAT:
A.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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings involve parenting arrangements for X, who is currently 12 years old.
The applicant father, Mr Jin (“the father”), seeks for a change of residence to occur, for X to live with him and to spend time with the mother for five nights each fortnight. The respondent mother, Ms Zhen (“the mother”), seeks for X to live with her, and for X to spend time with the father in accordance with his wishes. The parties are also in dispute about X’s ability to travel internationally with each parent.
ISSUES IN DISPUTE
The issues that remain for determination are as follows:
(a)Which parent X should live with;
(b)How much time X should spend with the parent he is not living with;
(c)How parental responsibility for long-term decisions about X be allocated; and
(d)International travel.
EVIDENCE
The father was legally represented at the final hearing.
He relied upon the following documents:
·Case Outline filed 7 March 2024
·Amended Initiating Application filed 19 February 2024
·Affidavit of Mr Jin filed 19 February 2024
The mother was self-represented and had the assistance of an interpreter.
The mother has a history of non-compliance with orders for the filing of material. She did not file any material in compliance with the trial directions made on 6 November 2023. She told the Court that she relied upon the following documents:
·Response filed 10 May 2022
·Affidavit of Ms Zhen filed 10 May 2022
·Notice of Child Abuse, Family Violence or Risk filed 10 May 2022
·Affidavit of Ms Zhen filed 6 September 2023
To assist the mother to prosecute her case, the Court arranged for the mother to have copies of all the material relied upon as noted above, copies of the relevant sections of the Family Law Act 1975 (Cth) (“the Act”), and the Single Expert Report completed by Ms C (“the single expert”) on 13 December 2023 (“the Expert Report”).
The Court had the benefit of an Independent Children’s Lawyer (“ICL”) who filed a Case Outline document on 13 March 2024.
The ICL relied upon the following:
·The Child Impact Report completed by Ms D on 2 August 2022 (“the Child Impact Report”)
·The Expert Report
Both parties were cross-examined. Ms E (“the maternal grandmother”) attended the final hearing and supported the mother.
RELEVANT FACTS AND PROCEDURAL BACKGROUND
The mother filed limited material, and it was not clear whether she agreed with some of the history of the relationship as deposed by the father. The mother gave the single expert an account of the relationship and relevant events for the Expert Report, and this has been relied upon in constructing a summary of the relevant facts and background.
Mr F (“the maternal grandfather”) was born in 1957. He is currently 67 years old.
The maternal grandmother was born in 1957. She is currently 66 years old.
The father was born in 1979 in Country G and was 44 years old at the time of the final hearing.
The mother was born in 1982 in Country G and was 41 years old at the time of the final hearing.
In 2005, the mother’s first child, Mr H was born. He is 18 years old. The mother reported to the single expert that she spends regular time with Mr H, who lives with his father in Suburb J. The father disputed that this is the case, but it is immaterial to the determinations before the Court now.
The parties commenced cohabitation in 2009. The father claimed that the parties were married in 2010, however, the mother denied that they were ever legally married in Australia.
X was born in 2012.
During the marriage, both parties worked long hours. The maternal grandparents have lived in the same household as X for most of his life and have provided significant day-to-day care of him.
In 2014, the father claimed that X stayed with his paternal family in Country G for a period of six months, and while he was there, he was able to build a strong relationship with his paternal family.
In 2019, the mother claimed that the father restrained her by grabbing her hands. This occurred after she had asked him to take down cameras that he had placed around their home. The parties appeared to agree that this was the only physical altercation that took place during the marriage. The father did also accuse the mother of throwing things around and yelling when she was upset.
The parties separated on a final basis in early 2020.
The father filed an Initiating Application on 19 November 2021, seeking parenting orders and to adjust interests in property. The matter was bifurcated on 15 May 2023. The property proceedings were finalised on 18 September 2023.
On 4 August 2022, the Child Impact Report was released to the parties.
On 23 August 2022, interim orders were made by a Senior Judicial Registrar for X to live with the mother and spend time with the father. By the time of the hearing, X’s time with the father had incrementally increased to Sunday from 9.00 am until Monday when school commences, with changeovers taking place at Suburb K Reserve (or at X’s school on school days) (“the August 2022 Orders”). An order was also made for telephone communication to occur between X and the father each Wednesday from 6.30 pm to 7.00 pm. The August 2022 Orders remain the current interim parenting arrangement between the parties.
The father claimed that the mother did not facilitate time and communication with X in accordance with these Orders. He asserted that he was unable to reach the mother or X for his telephone time from 31 August 2022 to the final hearing. The father also alleged that the mother either refused to facilitate his time with X, or that X allegedly did not want to spend time with him. The mother confirmed that X was resistant to spending time with the father and noted that the father could initiate the calls to X’s mobile himself.
In late 2022, the father deposed that he received a phone call from Suburb L Police and was informed that he could attend Suburb L Police Station as the mother and X were there. The father attempted to speak with X but was later informed that X did not want to spend time with him.
On 21 October 2022, the father filed a Contravention Application, claiming that the mother had breached the August 2022 Orders nine times.
On 28 April 2023, a Senior Judicial Registrar found that the mother had contravened the August 2022 Orders on all nine counts (“the April 2023 Orders”). Consequently, compensatory time was ordered between the father and X, and the mother was placed on a bond with $5,000 security for a period of 12 months, with conditions of good behaviour and compliance with any current or future parenting orders.
The August 2022 Orders were also varied to ensure that the mother specified when X was unable to spend time with the father due to illness. The parties were also ordered to complete a Parenting After Separation course as referred by M Centre.
On 28 April 2023, the father spent time with X for the first time in two years. After the father contacted X’s school, the school principal arranged an introductory session with X to tour the school and classroom.
In mid-2023, the father completed a Parenting After Separation course pursuant to the April 2023 Orders.
In mid-2023, the mother completed a Parenting After Separation course pursuant to the April 2023 Orders.
In mid-2023, the father received a letter from Services Australia advising him that the mother’s application to end his child support assessment for X had been accepted. He was therefore no longer liable to pay child support for X and has not paid since this date.
The mother and X moved in with the maternal grandparents after the former matrimonial home was sold in late 2023.
On 6 November 2023, this matter was placed into the Sydney Rolling List for a two-day final hearing, which commenced on 14 March 2024.
On 19 December 2023, the Expert Report was released to the parties.
On 14 March 2024, the parties were before Judge Murdoch for a trial management hearing. Her Honour ordered the parties and the ICL to attend a dispute resolution conference. The mother disclosed that she had not read the Expert Report and was afforded time to read the Expert Report with the assistance of an interpreter.
PROPOSALS
The father sought the following orders, that:
(a)The parties have equal shared responsibility for X.
(b)X live with the father.
(c)X spend time with the mother:
(i)During the school term: each alternate week from 3.00 pm Wednesday until 9.00 am the following Monday;
(ii)Half the school holidays.
(d)The parties ensure that X remains enrolled and attends any extracurricular activities he is enrolled in.
(e)The parties are at liberty to contact or otherwise communicate with X when he is not in their care.
(f)Both parties be permitted to travel internationally with X.
(g)The parties be restrained by injunction from:
(i)Denigrating each other, any partner and members of the other party’s family to or in the presence of or hearing of X or allowing any person to do so.
(ii)Commenting upon, discussing or referring to any proceedings between the parties to or in the presence of or hearing of X.
(iii)Showing or leaving accessible to X any document connected with these proceedings.
(h)The mother must enrol and complete a Parenting After Separation – Focus on Kids course provided by M Centre.
(i)The mother pay for the father’s costs.
It was difficult to precisely record the orders sought by the mother. By the time of the hearing, she advised the Court that she no longer pressed for the orders as set out in her Response. Yet she did not file a Minute of Order or other document that reflected her position. Her oral evidence suggested her position was that:
(a)She conceded that the parties would share parental responsibility for X, but she sought sole parental responsibility in relation to international travel and the issuing of travel documentation, including X’s passport.
(b)X live with her.
(c)X spend time with the father in accordance with his wishes and only during the day.
(d)Changeovers be facilitated by the maternal grandparents, or for X to take himself to and from the parties’ residences.
(e)X contact and communicate with the father in accordance with his wishes.
(f)X be permitted to travel internationally with the mother only.
The ICL provided a Minute of Order after the evidence was closed. The following recommended orders were proposed, that:
(a)The father have sole parental responsibility for X in consultation with the mother.
(b)X live with the father.
(c)X spend no time with the mother for a period of four weeks from the date of the orders.
(d)After a period of four weeks, the mother spend time with X as follows:
(i)During the school term, each alternative weekend from after school Friday (or 3.00 pm if a non-school day) to the commencement of school on Wednesday (or 9.00 am if a non-school day);
(ii)During the school holidays, for the first half in even numbered years and the second half in odd numbered years; and
(iii)On special occasions.
(e)Changeovers to occur at X’s school.
(f)Within seven days of the orders, the father attend upon a GP for the purposes of obtaining a referral for X for psychological treatment in relation to managing the change in living circumstances.
(g)The parties shall ensure that X remains enrolled and attends his extracurricular activities he is presently enrolled in for Terms 1 and 2, 2024.
(h)Both parties are permitted to travel internationally with X, and the father to hold X’s passport.
(i)The parties pay the ICL’s costs of $8,780 equally.
THE EXPERT EVIDENCE
The single expert interviewed the parties and X on 16 September 2023. She observed that it may have been helpful to interview the maternal grandparents, but this was not possible as a professional interpreter was not made available by the parties, despite her requests to the parties.
She completed the Expert Report on 13 December 2023, and at that time, made the following recommendations (at paragraphs 125 to 130 of the Expert Report):
(a)The parties share parental responsibility for X.
(b)X live with the mother.
(c)X spend time with the father each alternate weekend, from after school on Friday to before school on Wednesday.
(d)X spend half the school holidays with each parent.
(e)The mother be ordered to complete a post separation group parenting program of four to six weeks duration.
(f)The orders made should include an order that each parent is to ensure that X attends his extracurricular activities when they are in his care.
Given the level of parental conflict between the parties and their demonstrated inability to communicate with each other, the single expert also recommended that any orders made by the Court be unambiguous and detailed to avoid further conflict. She recommended that the orders should also clearly outline the spend time arrangements, how changeovers are to be facilitated, when school holiday times with each parent commence and finish, X’s extracurricular activities, which parent is to pay for what in relation to X’s upkeep, and how communication between the parties is to occur.
At the hearing, after counsel for the ICL updated her on the evidence heard during cross-examination and the parties’ current circumstances, the single expert changed her recommendations. She was particularly concerned that the mother had not read the Expert Report in its entirety since it was released in December 2023, that she continued to speak negatively about the father to X, and that she maintained in cross-examination that there was no benefit to X having a relationship with the father. The single expert opined that X would not feel comfortable spending time with the father while living with the mother because the mother would never give him “psychological permission” to do so.
The single expert, on reflection, believed it may be in X’s best interests to live with his father. If the Court was minded to change residences for X, the single expert made the following recommendations:
(a)The father have sole parental responsibility for X, but consult with the mother before reaching a decision.
(b)X live with the father for nine nights and spend time with the mother and maternal grandparents for the other five nights.
(c)The change in residences from the mother to the father should happen quickly rather than gradually because of the nature of the parental conflict and X’s age.
(d)X should not see the mother for a short period of around one month to settle him in the father’s home and minimise the negative impact of the mother’s distress on him.
(e)X should attend counselling to assist him to manage this change.
X
Before applying the law, information as to X must first be captured.
X is currently 12 years old and is in year 7 at B School in Suburb N.
Both his parents described X as “a kind, gentle and respectful child”. Like many children his age, X has many interests. The father reported that X has developed a growing interest in computers.
The single expert reported that X presented as “a polite, quietly spoken child who was anxious about the parental conflict”. This presentation was also noted by Ms D in her observations of X for the Child Impact Report in 2022.
He was described by the single expert as a sensitive child, who was highly attuned to the feelings of others and therefore resistant to hurting or distressing anyone by disagreeing with them, especially his mother.
X impressed upon the single expert that he was lonely, “primarily in his mother’s home”. She described X as having an “underlying loneliness”. He acknowledged that his mother does not take him to many places.
At the time of the interviews with the single expert, he was in year 6. He spoke positively about his school experience to the single expert. His school reports indicate that he is excelling in his studies. There are no reported issues about his health, behaviour, or development.
The mother described X as “very smart” but complained that his academic performance fell when he began spending overnight time with the father. She claimed that X has become “very quiet” and appears to have lost confidence. However, there was no other evidence before the Court that supported this contention.
The parental conflict
There is no doubt that both parties love X very much. However, it is also very clear that X is acutely aware of the parental conflict and, most alarmingly, these proceedings.
X reported to the single expert that his mother “talks about the court stuff a lot”. He also reported that his mother speaks negatively about his father which makes him feel sad.
The mother, under cross-examination, said she did not believe that X would have said this. However, she conceded that on at least one occasion, X had heard the maternal grandmother speak negatively about the father. She thought it was when the former matrimonial home was on the market for sale in accordance with Court Orders.
It is the view of the single expert that X has been unacceptably involved in the parental conflict and has been left to feel responsible for his parents’ reactions to and feelings about each other for far too long.
The father described X as conflict avoidant and claimed that he will not respond to any communication from either parent when he is staying with the other. He also reported that X refuses to talk about his time with the mother to him. The mother gave evidence that X is required to pass on messages between her and the father.
As a result of their inability to communicate, X appears to have been further placed at the centre of the parental conflict. This is unacceptable, and only further exacerbates the parties’ intractable conflict at the expense of X’s wellbeing. When asked about the impact of this on X, the single expert maintained (at paragraph 105 of the Expert Report):
[X] presented as withdrawn and anxious about [the mother] and the parental conflict. Involving/exposing children to post separation parental conflict can significantly negative[ly] impact children’s short and long-term well-being. It can cause children to feel worried about the well-being of one or both parents, feel false guilt if they believe they are the cause of parental dispute and/or feel they are being drawn into loyalty conflicts in which the only way this can be resolved is to align with one parent and minimise or deny their relationship with the other parent. Chronic exposure to parental conflict can lead to children developing depression and/or anxiety in the short, medium and long-term. It increases the likelihood that the child will develop problems managing strong affect such as sadness and anger and it can negatively impact their educational attainment.
(As per the original)
The evidence given by both parties highlighted their incapacity to communicate on any matter concerning X. The mother, for example, openly accepted that she had not consulted with the father about the high school that X would attend. It was not that she even found it surprising that she would need to do so. She simply does not accept that she should.
Although the August 2022 Orders stipulate that the parties are to communicate using a parenting application in relation to X’s care, they have not done so. This raises a concern about how they will communicate about X in the future.
The father deposed that on one occasion when he rang the mother to speak with X, the mother said words to the effect of, “the Court Orders will not help solve our issues”, then hung up the call. While the August 2022 Orders provide that the father speak to X over the phone each Wednesday, it was agreed that this has not taken place.
The ability of the parties to communicate about X was explored with the mother during cross-examination with little resolution:
JUDGE: What method of communication is best for you?
MOTHER: None.
JUDGE: If the order requires you to communicate with the father – it could be something like, [X] is very sick and you need to tell him, how are you going to do that?
MOTHER: If it’s very serious, I will ask hospital to call him.
JUDGE: Are you telling the Court that you are unable to communicate with the father in any way?
MOTHER: I can try to use message, but he will put that in his affidavit as evidence.
JUDGE: But the court proceedings will finish – this is after court proceedings, because you will have at least another five years of [X] being at school and needing to communicate with the father.
MOTHER: I have already tried for 12 years.
…
MOTHER: I did try to send SMS and also asked [X] to send his dad a SMS before I drop him off, if I’m late. And I also tried to make a phone call on Sunday try to remind [X] and to also call his dad to remind him – basically the school activity. But it is quite challenging because there are some orders that are very clear – I cannot, basically, to talk to his dad in some way that I shouldn’t. But if I need to contact him, probably the only opportunity I have to go to police station because he hangs up my mobile.
There was a difficult dispute that occurred between the parties in X’s presence in early 2021. The father claimed that the mother had called him 20 times and attended his residence with X at 4.00 am. When the father tried to get the mother to return his keys, the mother left with X. The father followed them and tried to get the set of keys back. The mother claimed that she and X were chased down a busy road by the father. It was not necessary for me to determine this factual controversy.
The mother maintained that X does not want to spend time with the father. The ICL was unable to advise the Court if this was consistent with their discussions because the mother had not arranged for the ICL to meet X, despite the ICL’s requests.
X did express to the single expert some reservations about spending time with the father because he sensed that the mother is uncomfortable with him doing so. He also expressed that he is reluctant to change his primary residence because his mother would be “very annoyed”. This is despite him noting that he feels stressed when the mother talks about “the Court stuff a lot”. He appeared hesitant when asked by the single expert about increasing his time with the father, as “currently there is a bit too much conflict” and his parents needed some time to “calm down and get along”. X is also very much aware that the mother is “definitely stressed about the Court stuff”. He reported to the single expert that he feels sad when the mother speaks negatively about the father and is also aware that the father is “grumpy” at the mother. He did note, however, that the father does not speak negatively about the mother nor about the Court proceedings to him.
The father
The father is employed full-time as a professional and earns $215,000 a year. He deposed that he mostly works from home and therefore has the flexibility to manage meetings and work commitments around his responsibilities to care for X.
He currently lives in Suburb O in an apartment with a small study. His home is 10 minutes from X’s school. When X is spending time with him, they share a king size bed. He had initially slept on the lounge but said that X felt guilty about this and asked that his father share the bed.
The father intends to rent or buy a larger premises to allow X to have his own room. It appeared that he was waiting for the Court’s determination of parenting matters before he committed to long-term accommodation.
The father was not X’s primary caregiver throughout the marriage. However, he has participated in X’s care and upbringing. His contribution tended to be focused on coaching X and taking him to school and other activities.
After the parties separated, the mother moved out of the former matrimonial home, and he remained there with X and the maternal grandparents. The parties said that they had an equal shared care arrangement for X during this time.
The father moved out of the former matrimonial home in late 2020. Since then, the father alleged that his time with X had been restricted by the mother. The mother claimed that the father was not interested in spending time with X.
The father claimed that he was only able to see X on four occasions between late 2020 and mid-2021. He commenced these proceedings seeking to spend time with and have a relationship with X.
Despite the August 2022 Orders, the father’s time with X did not commence as he had hoped. The mother did not facilitate time and communication with X per these Orders and X was drawn into their dispute. For example, in late 2022, the father deposed that he received a phone call from Suburb L Police and was informed that he could attend the police station as the mother and X were there. The father attempted to speak with X but was later informed that X did not want to spend time with him.
The father filed a Contravention Application. It seems that it was only after a finding was made that the mother had contravened the August 2022 Orders that his time with X commenced without incident. On 28 April 2023, the father spent time with X for the first time in two years. The father sensibly and proactively contacted X’s school, and the principal arranged an introductory session with X to tour the school and classroom before his time with X commenced.
The father gave evidence about the range of activities he engages in with X during their time together. They appear to be enjoying the time they spend together, and it has been without incident.
However, the father still contended (and it was not disputed by the mother) that the mother has failed to involve him in any decisions about X, such as the high school he currently attends. The father was asked about the extracurricular activities undertaken by X. Whilst the father was aware of them, he had not been involved in any discussions about them. He was also concerned that the mother will not facilitate his relationship with X. The single expert observed that although the father is not hostile towards the mother, he appeared to be frustrated at her conduct and behaviour.
The father denied that he has perpetrated any family violence towards the mother, however, he did concede that he had on one occasion restrained the mother’s hands. He also conceded that he had shouted and sworn at her during arguments. There was insufficient evidence that would allow a finding in relation to family violence to be made.
The father has consistently paid child support for X until his assessment was recently cancelled by the mother. The father claimed that there is now a debt of child support that the mother is required to pay back to him of $5,204.61.
Conclusions
On the basis of the evidence before me, I make the following findings about the father:
(a)He has played a peripheral role in the day-to-day care of X to date but has a willingness and ability to take on much greater responsibility.
(b)He has displayed an appropriate attitude to his responsibilities as a parent to X.
(c)He has displayed a consistent desire to remain a part of X’s life and to be a part of the decision-making process for him.
The mother
The mother and X currently live with the maternal grandparents in Suburb N. X’s school is a 7-minute walk from their home.
She works as a professional and has been in employment throughout the marriage with some breaks. She had a break from work in 2023 but has recently resumed full-time employment.
The mother claimed that she has always been X’s primary carer. However, the single expert described her presence and involvement in X’s life to be “in the background” over the last few years.
In cross-examination, the mother accepted that she had little time to spend with X. She works five days a week from 9.00 am to 5.00 pm and said that at night, she is often studying until late for what she described as “learning and improvement”. She also plays sports in the evenings. As X spends each Sunday with the father, Saturday is the only day she can enjoy quality time with X.
The father complained that X attends his home with “old, ill-fitting clothes and broken shoes”, and that X goes more than a week without showering in the mother’s home. He also alleged that X could play video games for up to 4 hours each day.
The father also raised concerns about the mother’s mental health and the impact it has on her parenting capacity. He claimed that the mother has difficulties controlling her anger and smashed objects around the home. The mother denied this. She reported to the single expert that she does not believe that her stress “is to the degree that she is suffering with a mental health difficulty”.
The father commented on the mother’s lack of insight to the single expert, saying that the mother “is oblivious to the psychological distress she causes others, particularly X” and that “she always considers herself a victim.”
The single expert found it concerning that the mother “clearly lacks insight into the negative emotional and psychological impact on X for her failure to conceal her own hostility and stress” from X. A startling example of this is when the single expert had to intervene and stop the mother from making further comments about the Child Impact Report in front of X. The mother complained that Ms D had misunderstood X’s views, and that X was “forced” to spend time with the father. The single expert opined that the mother “appears to have failed to accurately understand X’s genuine feelings about his relationship with [the father] and the time they spend together”. She impressed as likely to struggle with giving X permission to enjoy his relationship with the father.
On 23 April 2023, the mother was found to have contravened the August 2022 Orders on nine occasions without reasonable excuse. One of the penalties imposed was that she and the father complete a Parenting After Separation course. The mother did so on 4 June 2023.
The single expert also strongly recommended, at paragraph 107 of the Expert Report, that the mother complete a post separation parenting program to:
…assist her to develop greater insight into the impact on [X] of exposing him to her negative views about [the father] and encourage her to explicitly give [X] psychological permission to enjoy his time with his father.
Despite the mother completing such a program, she appeared to have gained no insight into these matters.
Conclusions
Based on the evidence, I make the following findings about the mother:
(a)The primary day-to-day physical care for X continues to be provided by the maternal grandparents and the mother currently plays a “supervisory” role in X’s upbringing.
(b)There was insufficient evidence to allow any findings to be made about the mother’s mental health. However, the proceedings have caused her a great deal of stress.
(c)The mother continues to place X at the centre of the parental conflict.
(d)The mother has been unable to shield X from the hostility and stress that she feels for the father. She also does not understand nor have insight into the negative emotional and psychological impact this has on X.
The maternal grandparents
The maternal grandmother works part-time as an allied health worker, and the maternal grandfather is retired.
The father claimed that X’s grasp and fluency of Country G language is “basic”, and he is only able to engage in “simple communications” with his grandparents.
The maternal grandparents are heavily involved in the care of X and have been throughout his life. They appear to cook most meals, look after the garden and pool, and ensure that X is delivered and collected from school and other activities. The father believes that the maternal grandparents are currently X’s primary carers. This was confirmed by X, who impressed on the single expert that he viewed the maternal grandparents as his primary carers. No concerns were raised about the level of physical care they provide to X.
X appears to have a positive and loving relationship with the maternal grandparents.
The maternal grandmother was present during the hearing to support the mother and I formed the impression that she cared deeply about the outcome.
The father alleged that the maternal grandparents speak negatively about him to X. He contended that, like the mother, the maternal grandmother was prone to outbursts where she broke things in front of X. He also complained that the maternal grandfather had smashed his computer monitors and car windows and has acted in an aggressive manner towards him.
The mother admitted that the maternal grandmother had spoken negatively about the father in the presence of X on at least one occasion.
THE RELEVANT LEGAL PRINCIPLES
Part VII of the Act guides the process in relation to the making of a parenting order.
Pursuant to s 60CA of the Act, the Court must regard the best interests of the child as the paramount consideration when making a parenting order.
Subsections 60CC(2) and (3) set out the particular matters that the Court must take into account when determining the child’s best interests.
There are two primary considerations. As stated in s 60CC(2), the best interests of the child are met by ensuring they benefit from both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests, and protecting them from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.
There are also 13 additional considerations for determining what is in the child’s best interests, which are set out in s 60CC(3) of the Act. Those considerations relevant to the issues in dispute have been addressed throughout this judgment.
WHAT PARENTING ORDERS ARE IN X’S BEST INTERESTS?
Section 61DA of the Act provides for the application of a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child when making a parenting order. Relevantly for this case, s 61DA(4) of the Act permits the presumption to be rebutted when the Court is satisfied by the evidence that it would not be in the best interests of the child for their parents to have equal shared parental responsibility for them.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. Where the exercise of parental responsibility involves deciding about a major long-term issue, this section requires three things of the parents:
(a)the parents consult the other in relation to the decision to be made;
(b)the parents make “a genuine effort to come to a joint decision about that issue”; and
(c)the decision be made jointly by the parents.
The parties have an inability to parent cooperatively and reach agreement in relation to decisions affecting X’s care, welfare and development.
There was no evidence to support the proposition that they could jointly make major long-term decisions about X. In those circumstances, the only alternative is to have one parent exercise sole parental responsibility. That parent should be the parent with whom X spends the majority of his time. The parent who exercises parental responsibility will be required to consult with the other parent before making a decision, genuinely consider their perspective and advise them of the final decision.
I will therefore proceed to determine the issue of who X should live with.
LIVE WITH AND SPEND TIME WITH ARRANGEMENTS
When the single expert asked X about spending more time with the father, she said that X withdrew and required prompting to provide his answers. He eventually told the single expert that “if his mother was more comfortable with him seeing his father, he would feel more comfortable doing so”. He also said that his parents need to first “calm down and get along” for him to feel more comfortable spending time with the father.
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court noted at [54]:
54. … There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is understandable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
X is now 12 and of sufficient maturity for the Court to place weight on his views. However, I am not satisfied that the views that he has expressed should be determinative. The single expert opined that X’s statements about wanting to remain living with the mother should not be given much weight as he appeared to be influenced by the mother’s reaction and view of the father. I agree with this.
The Court will therefore determine what arrangements are in X’s best interests independent of his views.
The strengths and weaknesses of the father’s proposals
The father’s proposal represents a significant and untested change to the current living arrangements for X. The strengths of making orders in accordance with the father’s proposal are that:
(a)The father is more likely to be the parent more emotionally and physically available to X as he gets older. X will be less lonely in the father’s care.
(b)The father is the parent most likely to promote and support the mother’s relationship with X.
(c)It would involve little upheaval outside of the home. X will continue to attend the same school and participate in the same extracurricular activities.
(d)X is more likely to be able to develop and maintain a healthy relationship with his extended paternal family if he lives with the father.
(e)X will continue to progress well at school. Indeed, his performance may improve with the father’s support and less screentime.
The weaknesses of making orders in accordance with the father’s proposal are that:
(a)X will be separated from the maternal grandparents who have provided consistent care to him throughout most of his life. This may cause stress to him.
(b)The father has not been tested in relation to having X with him for more than a night.
(c)The father has not yet established accommodation suitable for X to live with him on a full-time basis.
(d)It is likely that, in the short-term, X will worry about his mother and be concerned that she blames him for the outcome.
(e)It would be contrary to X’s expressed views.
(f)The Court cannot be certain about whether X will be able to cope with such a major change.
The strengths and weaknesses of the mother’s proposal
The mother proposed no significant change to the current status quo of X’s living and care arrangements.
The strengths of a status quo outcome are that:
(a)It will accord with the express wishes of X.
(b)X will continue to live with the mother and the maternal grandparents who provide good physical care for him and love him.
The weaknesses of a status quo outcome are that:
(a)X will continue to live in a household with family members who are openly negative about the father. Leaving him in the primary care of the mother is likely to further expose X to the mother and the maternal grandparent’s negative attitudes.
(b)It is unlikely that in the future the mother will support X’s relationship with the father.
(c)At 12, X is at a critical stage of his development and unless orders are made to change the status quo, it is likely that the current arrangements will impact on his relationship with his father. He may find it easier to avoid the conflict and tension by spending no time with his father.
(d)The single expert opined that there is a possibility that as X gets older, he may not be able to relate with the grandparents and may find being in their continued care difficult and tiring. She also felt that X may feel some frustration with remaining with them.
(e)It may lead to further litigation due to the mother’s attitude towards the father and her inability to accept that there is any benefit to X in having a relationship with his father.
Conclusions about live with orders
This is a finely balanced case. There are strengths in each of the proposals made by the parties.
During the final hearing, the father mooted the possibility of an equal time arrangement. It was not his preferred position, but he noted that it would allow a parallel parenting situation where the parents did not need to cooperate on a weekly basis. I formed the view, after hearing from the single expert, that an equal time arrangement would not be suitable for X due to the high parental conflict and the parties’ inability to communicate with each other.
The primary consideration for me is what order will most likely ensure that X has the benefit of a meaningful relationship with each parent. Under cross-examination, the single expert reflected that X wants and needs his mother to give him psychological permission to have a relationship with his father. I formed the view that it is unlikely that she will do so in the future if X remains living with her.
In reaching a conclusion about what outcome would be in the child’s best interests, I am minded that s 60B of the Act sets out a range of objects and principles underlying them. These include:
(a)Ensuring that the children have the benefit and involvement of both of their parents having a meaningful involvement in their lives: I am concerned that the mother’s proposal will not ensure the meaningful involvement of the father in X’s life to the maximum extent. By contrast, the father’s proposal will.
(b)Ensuring that the child receives adequate and proper parenting to help them achieve their full potential: I am concerned that the mother’s proposal will not ensure that X receives adequate and proper parenting to help him achieve his full potential. Again, by contrast, the father’s proposal will.
(c)When I reflect on the principles underlying these objects that are set out in s 60B(2), I am also satisfied that the father’s proposal best achieves these objects.
Weighing up all of the considerations under s 60CC of the Act, there are some factors that lead me to support the difficult decision to make orders that X live with the father. The most persuasive reasons are that:
(a)The mother has demonstrated no capacity to shield X from these proceedings and the negative views she has of the father. Leaving X to live with his mother will most likely result in a reduction of the time that he spends with his father, a poor relationship with the father, and this might be emotionally harmful for him. I am, however, more confident that the father will better ensure that X enjoys a meaningful relationship with each parent in the future.
(b)It will most likely result in X spending reduced time with the maternal grandparents; however, he would be likely to continue to maintain a significant relationship with them.
(c)The single expert observed that X was “moderately” resilient and that, while he was doing well and appeared to be thriving, it was clear that he was “under quite some pressure” in the current arrangement. She also noted that because X is a sensitive child, it is inevitable that he would be affected negatively and experience some discomfort and distress initially. However, she suggested that a change to the father’s care may have a more positive impact as he progresses into adolescence.
(d)I am confident that the father will support X through these changes and seek out professional assistance. The orders made will require this and will allow the release of the orders and reasons for judgment for this purpose.
(e)I am also confident that the father has given considerable thought to suitable living arrangements for X and will make appropriate changes to allow him to provide optimal care for X.
Implementation of these changes
Accordingly, an order for sole parental responsibility will be made in favour of the father for the reasons set out previously.
On 19 March 2024, an order was made that the parties and X attend upon the Registry when judgment is handed down. As the ICL has not established a relationship with X, the Orders will be explained to X with the assistance of a Child Court Expert, if required.
I accept the advice of the single expert that there should be a period after X transitions into the father’s care in which he spends no time with the mother at all. This is an appropriate order. Without such a moratorium, I consider that X will not have the opportunity to settle emotionally into the care of the father. There is also the risk that the mother may not support compliance with the Orders. The mother and maternal grandparents will no doubt be distressed by the outcome of these proceedings. X should not be exposed to their distress while it is still raw. This break will allow X and the father to settle into the new care regime without distraction and without risking further negative involvement and influence of the mother.
I consider it appropriate for a moratorium period between X and the mother to be in place for one month. This means that X will spend the school holiday period in the care of his father. Over the school holiday period, the father can focus on acquiring uniforms, clothing, and other items that X will need to live with him. He should expect no cooperation from the mother. When he returns to school, he will then have a two-week period to settle into a new term before his time with the mother recommences.
During the moratorium period, the mother will not be permitted to attend or enter (unless with the father’s written consent):
(a)the father’s home;
(b)the grounds of X’s school; and
(c)any after school activity or extracurricular activities that X may participate in from time to time.
Spend time with orders
At the conclusion of the moratorium period, X will recommence spending time with the mother. The first occasion will be from the last Friday of the second week of the school term. The mother will collect X from school and return him to school the following Wednesday morning. Thereafter, she will spend five nights each fortnight with X from Friday after school until Wednesday.
I consider a nine-night /five-night split between the parties to be an appropriate arrangement for X. It still allows for the mother and maternal grandparents to play a substantial and significant role in X’s life.
In addition, the Orders will make provision for special days and occasions, as well as for X to spend equal time in each household during school holiday periods commencing from the end of Term 3 in 2024.
INTERNATIONAL TRAVEL
Both parties seek to travel internationally with X.
The father is a New Zealand citizen and has lived in Australia since 2007. He claimed that he no longer has Country G citizenship and intends to remain in Australia. The father sought orders that both parents be able to travel overseas with X. Prior to separation, X did travel to Country G to see his paternal grandparents.
The father claimed that X has strong, persisting ties with the paternal family who live in Country G. He would like to travel with X to ensure that he remains connected to his rich cultural heritage. The mother conceded that X did travel to see his paternal grandparents once a year before they separated.
The mother is an Australian citizen and claims that she is no longer a citizen of Country G. She informed the single expert that both she and the maternal grandparents intend to remain in Australia. She originally sought for orders that X only travel overseas with her, perhaps because she believed that X becomes distressed when he is away from her for too long. In closing submissions, however, she appeared to concede that the father could travel with X but only if he returned with X safely.
The ICL made no submissions in relation to this issue but sought orders in line with the father’s position, that is, that both parties be permitted to travel with X.
I will make orders allowing X to travel internationally with each parent during their scheduled time with him. The father, as the primary carer for X, will hold X’s passport.
OTHER ORDERS
Due to the parental conflict between the parties and their inability to communicate with each other, the single expert recommended that any orders made should be unambiguous and detailed. The Orders made reflect this recommendation to minimise the potential impact of exposing X to further conflict between the parties and to ensure that X continues to thrive.
Changeover
Currently, the parties conduct changeovers at P Reserve, located at Q Street, Suburb K, which the parties have referred to as “Suburb K Reserve”. The ICL and the father both submitted that changeovers should continue to be conducted at Suburb K Reserve and at X’s school. The mother submitted that this was no longer appropriate and that changeovers should occur at a police station. She did not provide a reason as to why this was no longer appropriate. The mother also gave evidence that X is self-sufficient and able to take himself to and from school.
I am unconvinced that it would be in X’s best interests to change the location for changeovers. I have therefore ordered that changeovers occur at school on the days X attends school and for changeovers to continue to occur at the Suburb K Reserve on non-school days. Having changeovers at school eliminates the need for the parties to encounter each other, and continuing changeovers at Suburb K Reserve will provide a sense of normalcy to X’s routine, albeit a small one.
I have also made Orders where both parties are required to provide a medical certificate in the event X is unable to attend school on changeover days. This is to reduce further conflict between the parents and was adopted from Orders made on 28 April 2023.
Communication
A key part of the parental conflict has been the parties’ inability to communicate effectively and productively with each other. The parties both conceded that communication has been difficult. The mother also submitted that she is afraid to communicate with the father because he has used past communications between them in these proceedings.
The August 2022 Orders also stipulated that the parties communicate by the OurFamilyWizard parenting application, and this did not occur. I have therefore made orders in line with the ICL’s proposed Minute of Order and specified in the Orders by what means of communication the parties are to use if required.
I have also made orders that the parties be at liberty to communicate with X directly, rather than have the other parent facilitate any calls.
X’s health
In line with the single expert’s recommendations, I have made orders for X to attend counselling to assist him with this change of residence. I have also made orders for a copy of these Orders and the Reasons for Judgment to be provided to any mental health professional referred to assist X.
X’s education and extracurricular activities
X is a curious child and appears to have an interest in a wide range of activities. It would be unfair to limit his access to activities where he has the opportunity to explore such interests while he is at school.
The parties informed the Court that X is currently enrolled in some extracurricular activities at school. I have therefore made orders for the parties, in their best endeavours, to ensure that X attends the extracurricular activities he is currently enrolled in for the rest of his 2024 school year.
The parties are also to use their best endeavours not to enrol X in any further extracurricular activities that may fall during their time with X. However, I have also made ancillary orders for the parties to communicate and ensure X is prepared for any extracurricular activity if this cannot be maintained.
The parties also appeared to have difficulty ensuring that X had all day-to-day items that he requires when there was a change of care. This would obviously cause X some discomfort and stress if he does forget items at the other parent’s home, especially if he requires them for school. I have no faith that the parents, at least for now, can coordinate drop-offs at each other’s homes for any items that X may need. The parties will be required to ensure that X takes between households any items he requires to properly attend, engage and participate in his extracurricular activities.
Restraints
Orders restraining the parties from denigrating each other in front of or in the hearing of X have been in place since the August 2022 Orders were made. It is disappointing that such Orders have not been followed or promoted by the mother.
Indeed, although it may seem futile to make this order, I have done so to minimise any further exposure to X of the mother and the maternal grandparent’s negative views of the father. I am confident that the father will continue to restrain himself from speaking negatively about the mother or the maternal grandparents in front of X.
COSTS
The ICL sought their costs of $8,780, and for this to be borne equally between the parties.
Pursuant to s 68L(2) of the Act, an ICL is appointed because the Court has found that it is in the best interests of the child or children subject of the proceedings that they be independently represented.
Section 117(4)(b) of the Act confers the statutory power not to make a costs order under s117(2) against a party if the Court considers that such a party would suffer hardship.
The ICL has been brought into this litigation by Court order and has undertaken substantial activities leading to the resolution of the parenting issues since they took carriage of this matter in June 2023. In my view, it is appropriate to recognise that the costs and disbursements rendered by the ICL should be met in this case in the manner contemplated by s 117(3).
The father also sought for his costs of $11,000 to be paid by the mother. However, in answer to the ICL’s application for costs, the legal representative for the father submitted to the Court that they would not press his application if the Court was minded for the mother to pay the entirety of the ICL’s costs.
The mother appears to have limited funds and has deposed that she has had inconsistent and unstable employment since the proceedings began.
Pursuant to Orders made on 7 December 2023, the parties have $30,000 sitting in the trust of the father’s legal representative as security for the father’s costs and disbursements in relation to the parenting aspect of these proceedings. This Order was made by consent of both parties in relation to finalising the property proceedings.
The $30,000 sitting in trust will be distributed in the following manner and in order of priority:
(a)$8,780 to the ICL in payment of all costs and disbursements arising from these proceedings.
(b)In payment to the Child Support Agency of any money outstanding from any assessments from child support in relation to X.
(c)The balance remaining to the mother.
The monies in trust referred to above were set aside as security for costs and disbursements that might arise in respect of the parenting aspect of the proceedings. The costs associated with the work undertaken by the ICL are an appropriate application of these funds. I also heard evidence that the father may be owed up to $5,204.61 of child support by the mother. Given that the father will now incur a range of costs arising from the implementation of these Orders, it seems reasonable that any amount currently outstanding is repaid from these funds. The balance then remaining will be paid to the mother.
I also make an order to discharge the ICL at the conclusion of the moratorium period.
CONCLUSIONS
There is no doubt that the mother and maternal grandparents have been devoted to X’s care and that he loves them very much. These Orders are not made with the intention of eliminating or limiting them from X’s life. The one-month moratorium is not only to ensure that X adjusts to the father’s care, but also for the mother and maternal grandparents to adjust to this change.
These Orders signify an end to these proceedings between the parties. They will provide a sense of stability for X and give him much needed respite from the parental conflict.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 12 April 2024
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