Kaligos & Rafael
[2021] FedCFamC2F 104
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaligos & Rafael [2021] FedCFamC2F 104
File number: MLC 4911 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 29 September 2021 Catchwords: FAMILY LAW – final parenting – parental responsibility – party disparages own evidence – effect of ex parte section 68R order – serious allegations made lightly – party restrained from having partner attend changeover. Legislation: Family Law Act 1975 (Cth), ss 4, 11F, 60CC, 61DA, 65DAA, 65DAC, 102NA Division: Division 2 Family Law Number of paragraphs: 53 Date of hearing: 1-2 December 2020 Place: Melbourne The Applicant: Appeared In Person Counsel for the Respondent: Mr G Thistleton Solicitor for the Respondent: Marcou & Associates Pty Ltd ORDERS
MLC 4911 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2
BETWEEN: MR KALIGOS
Applicant
AND: MS RAFAEL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
2 DECEMBER 2020
THE COURT ORDERS THAT:
1.The Mother's application for sole parental responsibility is dismissed
2.Paragraph 7 of the Orders of 17 February 2020 requiring the Father's partner Ms B to effect changeover is discharged.
3.The Mother do all acts and things to cause and ensure that Mr C not attend any changeover.
4.By consent, paragraph 7 of the Orders of 10 September 2018 is discharged and where changeover does not occur at school/daycare, changeover take place at Suburb E McDonalds (D Street, Suburb E)).
5.By consent, paragraph 4(b) of the Orders of 10 September 2018 be amended for the time the child spends with the father be extended to 6.00pm on a Sunday.
6.Paragraph 4(b) of the Orders of 10 September 2018 be varied as follows:
THAT in the event the Mother's employment will not conclude by 5.00pm on any Friday when the child is to be collected by the Father, then provided the Mother notifies the Father by text message on or before 6.30pm the evening prior, then the child's time with the Father commence at 7.00pm on that Friday instead of 6.00pm.
7.Otherwise, the orders of 10 September 2018 be reinstated in full force and effect and to the effect, including the above amendments, as set out hereafter, and in the same fortnightly rotation as has been in place since the Orders of 17 February 2020.
FINAL ORDERS
8.All previous parenting orders be and are discharged
9.The parents have equal shared parental responsibility in respect of X born in 2016 ("X").
10.The child live with the mother.
11.The child shall spend time and communicate with the Father as follows:
(a)Each alternate weekend from 10:00am Saturday until 5.00pm Sunday to be extended to 5:00pm if the Monday following is a public holiday, commencing 15 September 2018.
(b)That from 1 March 2019 the Father's time pursuant to paragraph 4(a) be extended to each alternate weekend from 6.00pm on Friday until 6:00pm on Sunday to be extended to 5:00pm if the Monday following is a public holiday AND THAT in the event the Mother's employment will not conclude by 5.00pm on any Friday when the child is to be collected by the Father, then provided the Mother notifies the Father by text message on or before 6.30pm the evening prior, then the child's time with the Father commence at 7.00pm on that Friday instead of 6.00pm;
(c)By telephone every Tuesday and Thursday between 6:30pm and 7.00pm;
(d)For Easter as agreed and failing agreement:
(i)From 2.00pm. Easter Sunday until 10.00am Tuesday immediately following East Monday in 2019 and each alternate year thereafter,
(ii)From 10.00am Good Friday until 2.00pm Easter Sunday in 2020 and each alternate year thereafter;
(e)For Orthodox Easter from 5.00pm Easter Saturday to 5.00pm Easter Sunday.
(f)For X's birthday for a minimum period of 2 hours by agreement, failing agreement from 4:30pm until 6.30pm. If X's birthday falls on a weekend for a minimum period of 4 hours by agreement, failing agreement from 10.00am to 2.00pm;
(g)For Father's Day weekend from 5.00pm Saturday until 5.00pm Sunday;
(h)For Melbourne Cup Weekend:
(i)from 5.00pm Sunday until 10.00am Tuesday Melbourne Cup Day;
(ii)Should the Father already have X on Melbourne Cup Long Weekend then his time shall be extended to Tuesday 10.00am on Melbourne Cup Day.
(i)At such further times as may be agreed between the parties in writing.
12.The time the Father spends with the children be suspended:
(a)From 4.00pm Saturday of the Mother's Day weekend in each year
(b)For X's Birthday for a minimum period of 2 hours by agreement, failing agreement from 4.30pm until 6.30pm. If X's birthday falls on a weekend for a minimum period of 4 hours by agreement, failing agreement from 10.00am to 2.00pm;
(c)For Easter as agreed and failing agreement,
(i)From 10.00am. Good Friday until 2.00pm Easter Sunday in 2019 and each alternate year thereafter.
(ii)From 2.00pm Easter Sunday until 10.00am Tuesday immediately following Easter Monday in 2020 and each alternate year thereafter.
13.During the Christmas period all time be suspended and the child spend time with the parties as follows:
(a)With the father in all even numbered years from 2.00pm Christmas Eve to 2.00pm Christmas day.
(b)With the mother in all even number years from 2.00pm Christmas Day to 2.00pm Boxing Day.
(c)With the mother in all odd numbered years from 2.00 p.m. Christmas Eve to 2.00pm Christmas day.
(d)With the father in all odd numbered years from 2.00pm Christmas day to 2.00pm Boxing Day.
14.Where changeover does not take place at the child's daycare, kindergarten or school, changeover shall take place at Suburb E McDonald's (D Street, Suburb E) and MR C not attend any changeover.
15.The mother and father:
(a)Keep each other informed of all medication prescribed to and administered to the child in the 24 hours prior to any changeover;
(b)Advise the other immediately in the event that the child suffers any serious illness or injury.
(c)Keep each other informed of any change of address within 7 days in writing;
(d)Keep each other informed of any change of phone number within 7 days in writing.
(e)Keep the other advised at all times of their current residential address and telephone number;
(f)Authorise any medical practitioner upon which the children may attend from time to time, to communicate with the other in respect to the children's medical condition and/or requirements.
16.Both the Mother and Father do all necessary acts and sign all necessary documents so as to cause
(a)a passport to issue for the child and to be held by the applicant, and
(b)an updated passport to issue for the child at any time that a current passport expires or is due to expire.
If the Father fails or refuses to do so, the requirement for the Fathers' consent will be dispensed with.
17.In the event either parent wishes to travel overseas with the child they must give the other parent 28 days' notice:
(a)provide itinerary and copy of airfare tickets to the other;
(b)provide contact details for all time the child is away;
(c)provide make up time to the Father (if it is the Mother who travels).
18.The mother and father shall authorise, if such authority is required, all schools at which the child may attend, from time to time to:
(a)Provide the other, at the party's expense, copies of all school reports, school notices and school photographs in relation to the child.
(b)Communicate with the parties, either by telephone, in writing or by personal attendance, in respect to the children's progress at their respective schools;
19.Both parties be at liberty to attend any school functions, school information nights, parent teacher interviews, sports days, school plays, and any extra-curricular events or presentations which a parent would normally be entitled to attend.
20.Each of the parties, his/her servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other in the presence or hearing of the child;
(b)Knowingly exposing the child to others that may be under the influence of drugs or alcohol to excess;
(c)Discussing these proceedings to, with or in the presence or hearing of the child and from permitting any other person to do so.
21.Pursuant to ss.62B and 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 Attachment A and these particulars are included in these orders.
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 Kaligos & Rafael has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
.
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These proceedings concern the parenting arrangements for X (‘the child’) who is now aged 5 and was aged 4 at the time of the hearing. The Applicant Father, Mr Kaligos (‘the Father’) is aged 39 and works as a factory worker. The Respondent Mother, Ms Rafael (‘the Mother’) is aged 32 and is a carer.
The matter came before me on 1 and 2 December 2020 when I assisted another Judge by taking his trial list that week. The hearing was heard electronically by Microsoft Teams due to the COVID-19 pandemic. I made final orders and reserved my reasons. These are my reasons. The Father represented himself and the Mother was represented by solicitor and counsel.
BACKGROUND
The relationship between the parents commenced in 2014 and they were married in 2016. The child was born in 2016. The parents separated on a final basis in August 2017 when the child was just over 1 year old.
The Father has re-partnered with Ms B. At the time of the hearing the Father and Ms B were expecting the birth of twins. The Mother has partnered with Mr C and their first child was born in 2020.
The Father initiated the first wave of litigation on 7 May 2018 and the matter was finalised by consent on 10 September 2018. Prior to those orders a 12 month final Intervention Order had been made against the Father for the protection of the Mother.
The Father initiated the second wave of litigation on 28 November 2020 after, he said a Magistrate had suspended the time ordered in the 2018 final orders. This was following an incident between the parents at changeover on 8 November 2019 that resulted in the Magistrates Court suspending some of the final orders of 10 September 2018.
THE FINAL ORDERS OF 10 SEPTEMBER 2018
The final orders made by consent on 10 September 2018 provided:
1. That all previous parenting orders be and are discharged
2.That the parents have equal shared parental responsibility in respect of the child.
3.That the child X born in 2016 (“X”) live with the mother.
4. That the child shall spend time and communicate with the Father as follows:
a.Each alternate weekend from 10:00am.Saturday until 5pm Sunday to be extended to 5:00pm if the Monday following is a public holiday, commencing 15th September 2018.
b.That from 1st March 2019 the father’s time pursuant to paragraph 4a be extended to each alternate weekend from 6 p.m. on Friday until 5:00pm on Sunday to be extended to 5:00pm if the Monday following is a public holiday;
c.By telephone every Tuesday and Thursday between 6:30pm and 7.00p.m.;
d. For Easter as agreed and failing agreement
(i)From 2.00 p.m. Easter Sunday until 10.00 a.m. Tuesday immediately following East Monday in 2019 and each alternate year thereafter,
(ii)From 10.00 a.m. Good Friday until 2.00 p.m. Easter Sunday in 2020 and each alternate year thereafter;
e. For Orthodox Easter from 5pm Easter Saturday to 5pm Easter Sunday.
f.For X’s birthday for a minimum period of 2 hours by agreement, failing agreement from 4:30pm until 6.30 p.m. If X’s birthday falls on a weekend for a minimum period of 4 hours by agreement, failing agreement from 10.00 a.m. to 2.00 p.m;
g.For Father’s Day weekend from 5.00 p.m. Saturday until 5.00 p.m. Sunday;
h. For Melbourne Cup Weekend:
i. from 5:00pm Sunday until 10:00am Tuesday Melbourne Cup Day;
j.Should the Father already have X on Melbourne Cup Long Weekend then his time shall be extended to Tuesday 10am on Melbourne Cup Day.
i. At such further times as may be agreed between the parties in writing.
5. The time the Father spends with the children be suspended:
a. From 4.00 p.m. Saturday of the Mother’s Day weekend in each year
b.For X’s Birthday for a minimum period of 2 hours by agreement, failing agreement from 4.30 p.m. until 6.30 p.m. If X’s birthday falls on a weekend for a minimum period of 4 hours by agreement, failing agreement from 10.00 a.m. to 2.00 p.m;
c. For Easter as agreed and failing agreement,
i.From 10.00 a.m. Good Friday until 2.00 p.m. Easter Sunday in 2019 and each alternate year thereafter.
ii.From 2.00 p.m. Easter Sunday until 10.00 a.m. Tuesday immediately following Easter Monday in 2020 and each alternate year thereafter.
6.During the Christmas period all time be suspended and the child spend time with the parties as follows:
a.With the father in all even numbered years from 2.00 p.m. Christmas Eve to 2.00 p.m. Christmas day.
b.With the mother in all even number years from 2.00 p.m. Christmas Day to 2.00 p.m. Boxing Day.
c.With the mother in all odd numbered years from 2.00 p.m. Christmas Eve to 2.00 p.m. Christmas day.
d.With the father in all odd numbered years from 2.00 p.m. Christmas day to 2.00 p.m. Boxing Day.
7.The changeover, where it does not occur at school/daycare, take place at BP Petrol Station at F Street, Suburb G. If either parties shall move then the changeover location will be reassessed to a meeting place that is half way between both locations.
8. That the mother and father:
a.Keep each other informed of all medication prescribed to and administered to the child in the 24 hours prior to any changeover;
b.Advise the other immediately in the event that the child suffers any serious illness or injury.
c.Keep each other informed of any change of address within 7 days in writing;
d.Keep each other informed of any change of phone number within 7 days in writing.
e.Keep the other advised at all times of their current residential address and telephone number;
f.Authorise any medical practitioner upon which the children may attend from time to time, to communicate with the other in respect to the children’s medical condition and/or requirements.
9.That both the Mother and Father do all necessary acts and sign all necessary documents so as to cause
a. a passport to issue for the child and to be held by the applicant, and
b.an updated passport to issue for the child at any time that a current passport expires or is due to expire.
If the Father fails or refuses to do so, the requirement for the Fathers’ consent will be dispensed with.
10.That in the event either parent wishes to travel overseas with the child they must give the other parent 28 days’ notice:
a. provide itinerary and copy of airfare tickets to the other;
b. provide contact details for all time the child is away;
c. provide make up time to the Father (if it is the Mother who travels).
11.The mother and father shall authorise, if such authority is required, all schools at which the child may attend, from time to time to:
a.Provide the other, at the party’s expense, copies of all school reports, school notices and school photographs in relation to the child.
b.Communicate with the parties, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools;
12.Both parties be at liberty to attend any school functions, school information nights, parent teacher interviews, sports days, school plays, and any extra-curricular events or presentations which a parent would normally be entitled to attend.
13.Each of the parties, his/her servants and agents be and are hereby restrained by injunction from:
a.Abusing, insulting, belittling, rebuking or otherwise denigrating the other in the presence or hearing of the child;
b.Knowingly exposing the child to others that may be under the influence of drugs or alcohol to excess;
c.Discussing these proceedings to, with or in the presence or hearing of the child and from permitting any other person to do so.
14.Pursuant to ss.62B and 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 Attachment A and these particulars are included in these orders.
THE COMPETING PROPOSALS
The hearing before me could be characterised as the Mother’s application to change the final orders. Counsel for the Mother told me that I would be required to determine the changes the Mother was seeking to the final orders. The Mother sought:
(a)Sole parental responsibility for the child; and
(b)For the Father’s weekend time to commence 10.00am Saturday morning rather than 5.00pm Friday evening; and
(c)The changeover arrangements.
The Father told me that he was seeking for the final orders of 2018 to be reinstated.
MATERIAL RELIED UPON
The Mother relied upon the following documents;
(a)An outline of case filed 23 November 2020;
(b)Her Amended Response filed 16 November 2020; and
(c)Her Affidavit filed 16 November 2020
The Father relied upon the following documents;
(a)An outline of case filed 26 November 2020;
(b)His Affidavit filed 26 November 2020;
(c)Affidavit of Ms C filed 26 November 2020; and
(d)His Affidavit filed 28 November 2019.
THE 8 NOVEMBER 2019 INCIDENT:
The incident that triggered this wave of litigation between the parties occurred at a changeover on Friday 8 November 2019. Pursuant to the final orders, the parties had attended the BP service station at Suburb G for the Father’s weekend time to commence. The Mother attended with the child, her partner Mr C and the maternal grandmother. The Father attended with his partner Ms B.
The Mother deposes to her version of events in her affidavit filed 16 November 2020. The Mother states that the child became distressed and did not want to go with the Father.
65.…X was extremely distressed and did not want to go with the father. I was trying to cairn her and encourage her to spend time with the father.
66.The father became impatient and began saying to me, in a derogatory tone “Ms Rafael, can I have my daughter”. When I politely said to the father “Mr Kaligos, can you wait until X calms down”, the father replied “Ms Rafael, I want my daughter or I'm going to call the Police”.
67. I continued to comfort and encourage X to spend time with the father.
68.When my mother exited the car, X ran to her. This was when the father stormed past me, barging me out of his way. I was five months pregnant with Mia at the time.
69.The father snatched X from my mother. X was screaming and crying at the time.
The Father deposes to his version of events in his affidavit filed 28 November 2019. The Father states that after the child became distressed, the maternal grandmother handed the child to him and then deposes to Mr C becoming aggressive.
25.Whilst walking back to my car, I walked past Ms Rafael and said: “Ms Rafael, don’t do this again”.
26.Whilst I was walking to my car, I heard Ms Rafael’s car door open. I turned around and saw Mr C throw his seatbelt off.
27. Mr C came charging toward me. At this stage, the maternal grandmother said something to Mr C but I did not hear exactly what she said.
28.Mr C was swearing at me and kept coming towards me in an intimidating way. He was very aggressive. At one stage I thought he was going to punch me.
29.Throughout this, I still had X in my arms. I said to Mr C: “Mate, are you going to do this in front of X?” Mr C said: “I don’t give a fucking shit!”
30.I was trying to get away from Mr C and take X to the car, when Mr C said: “If anything happens to X or Ms Rafael, I know where you live. I’ll come get ya.”
31.I just ignored Mr C, but was anxious about the situation as I consider that Mr C was threatening to kill me or harm me.
32.At this stage, Ms Rafael involved herself in the situation between Mr C and I saying: “You’re a dog. Mr C is the only father figure in X’s life. She doesn’t want to go with you.”
33.Ms Rafael got out of the car to come and assist me with X as X was crying and Mr C said words to the following effect to Ms Rafael: “You should run while you can.”
34.I then said to Mr C: “Just go back to your car.” Mr C said: “You started this, you yelled at Ms Rafael!” I replied: “Mate please get back in your car, don’t do this in front of X.” Mr C said: “I don’t care. I’ll come for you”.
35.Mr C and Ms Rafael then started walking back to their car. Whilst walking back to the car, Ms Rafael was yelling: “You watch out!”
36.I placed X in the back of my car and drove out of the service station.
37.Normally, Ms Rafael leaves the service station in the opposite direction, however on this occasion they continued to follow me for approximately 3 kilometres.
38.I was concerned for oue safety. Ms Rafael called 000 again from my phone whilst I was driving.
39.The Police spoke with Ms Rafael and advised her that there were no cars available. They instructed that we attend upon the Suburb H Police Station where I spoke with (Constable #...)
Following this incident a wave of Police investigation and Intervention Order proceedings took place and in the following order.
·On 8 November 2019, soon after the incident, the Father (as described at his [39]) attended the Suburb H Police station and reported the incident to Constable #.... While the Father was at Suburb H Police Station the Mother attended Suburb J Police Station and complained of the Father’s behaviour and she was, she said, referred to apply for an Intervention Order. While there that Police Officer rang the Father for a “welfare check” of the child and the Father facilitated the two Police officers, in different stations, speaking to each other on his telephone.
·Soon after, that evening, Constable #...files an application for an intervention order against the Mother’s partner for the protection of the Father and, I infer, arranges for service on the Mother’s partner.
·On 10 November 2019 at about noon the Mother made a statement to the Victoria Police at Suburb H (Constable #...) alleging the Father was “very angry” and “charged between the cars” and “deliberately bumped into me” and that her partner got out of the car and told the Father to “back off” and “that he “was just defending me like any partner would…”
·On 14 November 2019 on the application of Victoria Police (Constable ...) a two year final intervention order was made against the Mother’s partner relating to the events of 8 November 2019.
·On 18 November 2019 the Father was interviewed (Constable #...) about the assault alleged by the Mother (CB77 of 472) and denied the allegations.
·On 19 November 2019 the Mother attended the Suburb H Magistrates Court and applied for an Intervention order against the Father for the protection of the Mother and the child and, ex parte (see page 4 of 15 of Mother’s Outline of case and [47] of Father’s affidavit) the court made an interim order pursuant to sect 68R of the Family Law Act 1975 suspending the Father’s time with the child set out in the 2018 final orders. The matter was then listed for a return on 3 Dec 2019 at Suburb H Magistrates Court.
·On 28 November 2019 the Father filed his application in this court seeking that the matter be listed for urgent hearing (that application was refused) and seeking that the 2018 final orders be re-instated which was listed for first return on 17 February 2020.
·On 3 December 2019, on the return of the ex parte order, a further interim Intervention order was made against the Father, and the that order (page 58 of 70 of Mother’s affidavit) records that the Father had been served with the Application and summons and was at court but did not agree with the order, i.e. this was not ex parte, and that order suspended the Father’s time with the child pursuant to the 2018 final orders. That intervention order continued the suspension of paragraphs 4, 6 and 7 of the final parenting orders of 10 September 2018. That is, the Father’s time with the children, the Christmas period time and the changeovers were all suspended.
·On 10 December 2019 the Victoria Police (Constable ...) decided not to charge the Father for the assault alleged by the Mother and wrote to the Mother about the 8 November 2019 incident and said among other comments, “This matter has been thoroughly investigated through the Suburb H Police Station and at this stage there appears to be insufficient evidence to proceed with prosecution at court.”
Following this unfortunate chain of events the child did not spend any time with the Father or her sibling, the Father’s second child with his new partner. At the time of the hearing before me the Mother’s application for an intervention order was still pending a final hearing.
RECENT COURT HISTORY
The Father’s application was first listed before this court on 17 February 2020 before then Judge Baker. The orders made that day included the following:
…
3. The orders made 10 September 2018 remain in full force and effect.
4.X born in 2016 (“the child”) spend time with the father from 10:00am to 12:00pm on Sunday 23 February 2020.
5.In accordance with the 10 September 2018 orders, the child’s time resume with the father on Friday 28 February 2020.
6.Changeover take place at K Contact Centre when that becomes available, in the interim changeover take place at McDonalds Suburb K.
7.The father’s partner, Ms Rafael, is to effect changeover at McDonalds Suburb K on behalf of the father unless otherwise agreed.
8.Each party forthwith do all acts and things to enrol in Community Plus Suburb K Children’s Contact Service for the purpose of changeover.
9.Pursuant to s.68Q of the Family Law Act 1975 (Cth), to the extent that any of the parenting arrangements in these orders are inconsistent with any existing intervention orders, these orders take precedence over any existing orders including the intervention orders dated 14 November 2019.
10.The father is restrained from consuming alcohol or illicit drugs while the child is in his care.
11. The Applicant and Respondent:
a.Attend and complete, as soon as practicable, a Post Separation Parenting Program.
b.Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
c.Pay and otherwise be responsible for all costs associated with the program.
d.Provide evidence to the other parties’ or their solicitors that they have enrolled in the program.
e.Provide evidence to the other parties’ or their solicitors that they have successfully completed the program.
On 7 May 2020 the parties attended upon a family consultant pursuant to section 11F of the Act for the purposes of a Child Inclusive Conference and memorandum. Relevant paragraphs of the memorandum include:
12.Both parties reported a history of conflict during their relationship with Ms Rafael making allegations of historical family violence. Since separation, to their credit, it appears that the parties have for the most part, been able to agree on parenting plans that have met X’s needs. Communication between them appears to have been minimal, however and consist mainly of text messages, with little information being shared in relation to X’s day to day care needs. Neither party indicated to the writer having attempted to share parental responsibility decision-making, with Ms Rafael having taken on responsibility primarily due to X being in her care for the majority of the time.
13.Both parties reported that generally, X copes quite well at changeover. There appears to be little discussion or communication between the adults to assist her however the parties have remained civil. The parties’ willingness/capacity to engage appropriately with each other has broken down however when X has experienced difficulty moving from one parent’s care to the other. The parties have responded with verbal conflict which has allegedly escalated into violence. Both parties appear to have used Intervention Orders as a means of resolving or minimising the conflict rather than mediation or negotiation. This has then impacted Mr Kaligos time with X which has resulted in the current application.
14.It is Mr Kaligos position that Ms Rafael is seeking to control his time with X through the use of Intervention Orders and reduce his parental role in X’s life. It is Ms Rafael’s position that Mr Kaligos poses a risk to X, and uses communication about X or changeover as an opportunity to engage in further family violence.
15.X is three years old. Despite their mutual allegations, X has lived with her mother and had fortnightly contact with her father since her parent’s separated when she was 18 months old. According to both parties X generally copes well with changeover. Ms Rafael has noted to the writer that X is a child who thrives on routines.
16.X has recently experienced significant change in her home environment with the arrival of a new sibling. In such a situation, it is developmentally appropriate (and even expected) that X may take some time to adjust to her new role in the family, and loss of being the only child and centre of attention. In such situations many children of X’s age show mild (and temporary) regression in their behaviour and seek additional emotional support and reassurance from their caregiver. Therefore it is not unlikely that for the next few months (or possibly longer) X may be “clingy” to her primary carer, (in this case, Ms Rafael) and require adult support to assist her in moving between her parent’s households.
17. It is important for X’s emotional wellbeing that changeover between households is sensitively handled by all adults involved and emotionally supportive, and that indicators of distress by X do not result in further conflict or violence between her parents.
…
19.X to remain living with her mother, and spending every second weekend with her father as per the current Court order.
20.Pending evidence to the contrary being presented to the Court, X’s time with (the Father) does not require supervision…
THE FATHER’S TIME
The issue to determine was whether the Father’s weekend time should commence on the Saturday morning or the Friday evening.
CHANGEOVERS
The current arrangement pursuant to the orders of 17 February 2020 was that the Father’s partner Ms B was to effect changeover on behalf of the Father unless otherwise agreed.
At the time of the hearing Ms B was pregnant with twins due in 2021 and the Father said it would be impractical for that arrangement to continue and I accepted that position.
The Mother advised on the second day of the hearing that she had received a job offer the day before and the new hours would be 12.00pm to 6.30pm five days per week. As a result, the Mother says she would have difficulty in delivering the child on Friday evenings because of this work commitment (see: p.68 of the transcript of 2 December 2020).
The Mother had not addressed this until vive voce evidence in chief. When this occurred the Father quickly proposed 7.00pm as a changeover time, and the Mother, in cross examination without pausing for reflection, dismissed such a proposition and said that would be too late and that it is out of the child’s routine.
THE EVIDENCE
Apart from the 8 November 2019 incident the Mother’s evidence included a number of complaints based on what she said the child had said that included she did not enjoy her time at her Father’s, that he did not care for her and that he gave her beer to drink. The Mother said the child’s behaviour was disturbed upon returning from her Father’s home. The Father denied the allegations. It was also alleged by the Mother that the child described the Father in terms said to be swear words in the Greek language, that being the heritage of the Father. The Mother’s case was that the vulgar descriptions of the Father by the child were “in context.”
As to the 8 November 2019 incident apart from the Mother and Father’s disparate accounts the Father’s partner, Ms B, had sworn a detailed affidavit and attended the hearing from the same place as the Father. She was not required for cross examination. Her evidence was only challenged in the sense that the Mother’s account in her affidavit was entirely inconsistent with the Father’s partner’s evidence.
Ms B’s evidence included the following:
[5]On Friday 8th November 2019 another incident occurred, when Ms Rafael accompanied by her partner Mr C and her mother Ms L arrived to drop off X. I remained in the car as Mr Kaligos got out to go get X, I had seen that there was some kind of issue as Mr Kaligos continued to wait near our car and Ms Rafael seemed to be delaying the drop off as X had started to cry. I proceeded to get out of the car after Mr Kaligos came to the window and said "She is refusing to giveme X". Mr Kaligos then proceeded to walk closer to Ms Rafael car to get X, X had run off to her grandmother and it was around this point Ms Rafael said to Mr Kaligos "she doesn't want to come to you because you're an asshole" X was then with her grandmother Ms L, Mr Kaligos just walked past Ms Rafael and asked Ms L for X, which she did without argument and Mr Kaligos began to walk back to the car. As Mr Kaligos walked past Ms Rafael to come back to the car he said" Ms Rafael please don't do this again". This was when I witnessed Mr C quickly get out of his car and commence aggressively yelling out to Mr Kaligos, Ms L then went over to Mr C stood in front of him as if she were holding him back and was saying something to him. It appeared as if she were trying to calm him down. He seemed to ignore her as he then proceeded to charger after Mr Kaligos aggressively yelling out to him. Mr Kaligos ignored it and proceeded to walk to his car and started putting X in the child seat on the back. Mr C stood over the other side of the car and continued to make threats to Mr Kaligos, saying things like “if something happens to her, I know where you like” ect. I was starting to get really frightened and worried he was going to hit Mr Kaligos and asked Mr C twice to please stop and mind him own business and go back to his car". Mr Kaligos also asked him to go back to his car and not to do this in front of X, however be just seemed to ignore this also and kept going on about how Mr Kaligos had yelled at Ms Rafael when I was there and it was not the case, eventually he did go back to his car. This is when he and Ms Rafael began to yell things back at us. Once Mr Kaligos and I had gotten back in the car and began to drive off we were really shaken up and noticed they were still behind us so we decided to call the police.
The Mother’s partner was not a witness and had not deposed to any event. The Mother’s mother was not a witness and had not deposed to any event.
Another controversy was who was teaching the child to swear in Greek about the Father. It was common ground the child, then 4, had used swear words in both households. The Mother’s evidence was that the Father was of Greek heritage and she and her partner were of Country N heritage.
The Father deposed to his belief that it was the Mother’s partner who had taught the child to use swear words to describe him, her father. If correct this is appalling and reprehensible behaviour. The Father’s partners evidence included the following:
[8]On Tuesday 14th July Mr Kaligos and I were on a video call with X and in the middle of the conversation she again came out with "Don't pull mummies hair again daddy, otherwise Mr Cs' going to be very angry with you" Mr Kaligos and I were in total shock and tried to continue a normal conversation with her. A few minutes later she was telling Mr Kaligos about her Where's Wally books and Mr Kaligos joking around said "what about daddy? Do I get a Wally book" X then innocently proceeded to call out to Mr C and say "Mr C do you have a Wally book for Malaka" (which means wanker in Greek). This was not the first time as on a couple of occasions X has told us that "Mr C told her to call daddy a Malaka".
[9]Since I have been doing the pickups and drop offs, I have noticed that Ms Rafael's behaviour when Mr C is not around is different. When he is not there, we often have conversations for 5-10 minutes and they are pleasant. When he is there her demeanour is somewhat cold and she is very short with me. On the odd occasion she has tried to discuss court matters for example “hoping this is the last time we have to go to court” and also made the statement once that if “Mr Kaligos wasn’t so impatient” on Friday 8th November things would have been different. I have just tried to brush off these conversations and change the subject as they make me feel uncomfortable and I don’t think X needs to be hearing any of this.
The Mother’s evidence included annexure 3 of her 16 November 2020 affidavit being a letter from the childcare/kindergarten that the child attended. In oral evidence the Mother said she worked at this same childcare centre and the day before had received an offer of more work on the Friday evening at this child care centre that she proposed to accept.
There was no objection to the letter being in evidence by (the litigant in person) Father, nor was it proposed that the letter writer swear to the contents or be available for cross examination. The letter writer was not of Greek heritage and her letter stated:
Since the start of this year we have notice X gets very unsettled when she arrives at the centre and does not want to let Ms Rafael go, at times X will dropped herself onto the floor and starts to kick the door. It would take X a good 5 minutes before she would settle for her educators and start joining in with her peers. X uses her words more often now and would let educators and her peers know how she is feeling. X is starting to show more aggressive behaviour towards her peers, for example she would hit and push children for no reason.
On many occasions X would tell her educators she loves "mummy and daddy Mr C'' and let educators know what they did over the weekend", X has also mention daddy Mr Kaligos, when speaking about her dad, X will use many inappropriate words in her sentences such as daddy is a "malaka", a "dick head" a "fucking idiot". Educators have spoken to X that using inappropriate language is not appreciated at the centre and have spoken to Ms Rafael in regards to her language. Previously X would say that she loves M and loves to play with M her step brother, however a few weeks ago X has been saying M is a "dickhead" and has repeatedly said this on many occasions.
X’s behaviour has not been consistent throughout this year, like most 3 year old children X would have her good days and her bad, X is also using more profanities in her language,
X is a caring and loving child who would always give the educators cuddles and hugs when she arrives, when X sees her peers upset she would cuddle them to make them feel better.
At the conclusion of the Father’s brief cross examination of the Mother I asked the Mother some questions and I recite the following passage of evidence:
HIS HONOUR: All right. Thank you. Then, my other question is – reading on from the evidence of your affidavit:
On many occasions X would tell her educators she loves Mummy and Daddy and let educators know what they did over the weekend. X would also mention Daddy Mr Kaligos when speaking about her dad. X would use many inappropriate words in her sentences, such as, “Daddy is a malaka, a dickhead, a fucking idiot.” Educators have spoken to X about using appropriate language – it’s not appreciated at the centre- and have spoken to Ms Rafael in regards to her language.
Now, I read that description there as meaning that it was Daddy Mr Kaligos (the Father) who was the malaka, and the dickhead and the fucking idiot, as opposed to Daddy Mr C; am I right in that interpretation of that document?
MOTHER: The – from how I’m reading it, she’s saying it about her father, Mr Kaligos.
HIS HONOUR: Yes, that’s what I thought. Yes. Now, in terms of where she got the idea that her father, Mr Kaligos, okay, is a malaka, or a dickhead or a fucking idiot, okay, where do you say she got that idea from?
MOTHER:I understand it looks bad on my end, your Honour, but this language actually continues, and the way she uses these words now – she uses it in the correct – correct context. And she could be having a conversation, and she shocked me when it just arises.
HIS HONOUR: All right. Different question. I just want to go back to this; okay? You say that it looks bad for you – that’s not my question. My question was, and I will give you another chance to answer it, where do you think she learnt to refer to Daddy Mr Kaligos as a malaka, a dickhead or a fucking idiot?
MOTHER:So I’m not saying that I don’t swear, nor does Mr C. She probably has picked it up from one of us hearing the words. So she knows how to put it into a context.
HIS HONOUR: What do you mean by that?
MOTHER:So she – it used to be, like, maybe she will just say the F-word, here and there, just for kind of no reason. But, for example, the other day, your Honour, she said something about M ... but she just said – he did something, and I can’t remember what – exactly she said about M. And I said, “Well, that’s not very nice,” and then her response was, “Yes, well, he’s a effing idiot like his father,” and she just catches me off guard like that. Your Honour
HIS HONOUR: I think what you’re saying is the context to her describing her father thus on the three statements that we have recorded – is you’re saying she could have or has heard you or Mr C use the words “malaka”, “dickhead” and “fucking idiot”, and that she has of her own knowledge, or context or views, added those phrases to Daddy Mr Kaligos; is that what you’re saying – that it’s her idea to call Daddy Mr Kaligos a malaka, a dickhead and a fucking idiot?
MOTHER:No, your Honour.
HIS HONOUR: Okay? .....
One inference that’s available in this document is that she has learnt that from your household?
MOTHER:No, your Honour, that’s not my ethnicity. I am not Greek background. We do not use that word.
HIS HONOUR: Well, hang on. You just told me that “probably she picked it up from one of us” and probably would know how to put it into a context, you know. So you told me that she had heard those words in your household; okay? You’ve raised ethnicity. You’re not Greek, or you are Greek or ?
MOTHER:No, I’m not, your Honour.
HIS HONOUR: Okay. And Mr C?
MOTHER: He is Country N background, and so am I.
HIS HONOUR: Okay. To your knowledge in 2019 – I don’t mean your knowledge now, I mean go back to 2019. To your knowledge, in Greek what did the word “malaka” mean?
MOTHER:I don’t know, your Honour. I know it’s a Greek word, but I don’t actually know what it means. And when I – when I say with the language, I could be having a conversation or Mr C could have had a conversation with me and he could have dropped the F-bomb or something, and maybe X has overheard and she – she is like a parrot.
HIS HONOUR: Yes. That’s one possibility. Thank you. But do you accept that it’s unlikely that the father would be describing himself as a malaka ?
MOTHER:No, your Honour
HIS HONOUR: or a dickhead ?
MOTHER: No, your Honour. Like, she calls me
HIS HONOUR: or a fucking idiot?
MOTHER:No, your Honour. She calls me names. I get called an effing bitch and things from her as well.
I then referred the Mother to the letter she annexed to her affidavit from the childcare and recited at 31 herein and the following passage of evidence occurred:
HIS HONOUR: So what’s your explanation for how X came to be calling Daddy Mr Kaligos a malaka, a dickhead and a fucking idiot at child care?
MOTHER:Your Honour, to be honest, this is one of the reasons why I have also left the company. The coordinator of the centre – I’m also thinking of withdrawing X out of that centre – she, I don’t – she’s not – she is my boss – well, she was my boss; she is no longer my boss. You know, she likes to make false allegations, and the amount of lies that comes out of her – I don’t even know if that could be true what she’s saying about X – and, also, her husband is Greek.
(see: p 72 of the transcript dated 2 December 2020)
The gist of the Mother’s evidence was that as a result of the Father’s poor parenting the child, correctly and in context, describes the Father in terms of insulting swear words in the Father’s language. When the concept was explored the Mother described the writer of the letter she had up to then relied upon as unreliable and someone who makes false accusations and swears in the hearing of children.
I asked the Mother about the 11F memorandum writer’s opinion expressed at paragraph 16 of the memorandum and recited at paragraph 18 herein as follows:
HIS HONOUR: Yes, but that’s not my question. This behaviour you observe – that you say you have observed, okay – what I’m trying to get at is the explanation for that behaviour. What the report writer said in the 11F; that is the change in X’s household, okay, with the new sibling; or are you trying to – are you asking me to find that it’s because of the manner in which Mr Kaligos parents her when she is with him. That’s what I’m trying to get at?
MOTHER:I don’t know what happens in his household, your Honour.
HIS HONOUR: Okay. All right. So you don’t know, and you’re raising it and leaving it for me to work out what is behind it?
MOTHER:Your Honour, X raises thing like her father kisses her on the lips, and now a question to ask me, is he grooming her, is it trying to get closer to her.
HIS HONOUR: Okay. What’s wrong with a father kissing his daughter on the lips?
MOTHER:Nothing, if she thinks it’s okay to do it to everyone else, and I don’t agree with that.
HIS HONOUR: Okay. Where did you get the idea – you asked, is he grooming her?
MOTHER:I’m asking that. As a mandatory reporter, I am asking that as a question. Do I go to – should I be going to DHHS next, if they’re going to do anything.
HIS HONOUR: I can’t give you any advice about that.
MOTHER: All right.
HIS HONOUR: Thank you. Mr Thistleton, over to you. Any re-examination, given I raised another topic?
MR THISTLETON: No. Thanks, your Honour.
(see: p. 78 of the transcript dated 2 December 2020)
I was troubled by the manner and content of the Mother’s evidence. Her prompt denunciation of her own evidence when merely asked about it, albeit for more than three questions, the nature of the now denounced evidence and her manner when giving evidence, after making allowance for the difficulty of trial on video link and the disinhibition that can come from giving evidence from one’s own home, made me doubt the Mother’s evidence. I did not accept her evidence about the swearing matter.
I was troubled by the manner and content of the Mother’s “grooming” suspicion evidence. The context and tone and circumstances of it, including expressing a concern never previously raised, showed her capacity to make serious accusations very easily. The Mother is capable of making very serious allegations very lightly. I do not accept her evidence about risk of harm from “grooming” behaviour. The nature and manner of how and when this matter was raised also made me doubt the reliability of the Mother’s evidence.
CONCLUSION AS TO THE EVIDENCE
As to the incident on 8 November 2019 I was unable to find exactly what happened. In a skilled and subtle cross examination of the Father by the Mother’s counsel the following passage occurred.
MR THISTLETON: So what I’m suggesting is that that conversation:
Can I take her –
etcetera, just happened straightaway. You waited a minute and then there was that interchange between you and Ms Rafael; is that right?
FATHER: Roughly a minute or no. Like I said, it has been a – it had been a long time. So we – we – we will say yes to that question.
MR THISTLETON: All right. Do you agree that at that stage X appeared to be distressed?
FATHER: Well, from my understanding, it’s distress for other reasons.
HIS HONOUR: No, just listen ?
FATHER: Okay. No.
MR THISTLETON: Well – sorry – do you or do you not agree that X appeared distressed at that stage?
FATHER: Appeared to be distressed, yes.
MR THISTLETON: All right. Now, you said that she waited another minute, and then you said:
Can I please have X? We have a Federal Court order. I would like my daughter.
Is that what you said?
FATHER: Yes, I did say that.
MR THISTLETON: All right. Well, look, I’m just wondering this
HIS HONOUR: Hang on – isn’t – yes. Sorry. Yes, Mr Thistleton. Sorry. I was on the wrong page. Thank you.
MR THISTLETON: I’m sorry, your Honour.
I’m just wondering this: might it not have been appropriate to simply wait ..... X wasn’t distressed and just ready to come over to you, rather than say:
Can I please have X? We have a Federal Court order. I would like my daughter.
Do you think it might have been better just to wait a little while until X was calm and ready to come over to you?
FATHER: Yes. So let me – just can I have a moment to think about that.
MR THISTLETON: Sure?
FATHER: Maybe under the circumstances it could have.
(see p.40-41 of the transcript dated 2 December 2020).
I found the Father to be a co-operative and frank witness and by and large was truthful and only shaped his evidence to fit his case to a minor degree.
I found there was substance in the assertion that the Father was overly hasty in trying to obtain the child and a wiser course would have been to allow the Mother time to effect the changeover. However in the circumstances of:
·The Mother’s partner not being called as a witness;
·The detailed account from the Father’s partner;
·The Father’s partner not being required for cross examination;
·The Mother’s manner of giving evidence overall; and
·The Mother’s evidence about the child care centre manager and the swearing; and
·The Mother’s manner and evidence about “grooming”;
I did not accept the Mother’s evidence about the events of the 8 November 2019 incident. I found that the Mother’s partner acted aggressively and in a threatening and confrontational manner on that occasion.
LEGAL PRINCIPLES TO BE APPLIED
In this parenting order, I must take into account Part VII of the Act. Section 60CA states:
60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(2), (2A) and (3) of the Act state:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
PARENTAL RESPONSIBILITY
Section 61DA of Act states:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 65DAA of the Act states:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
…
Section 65DAC of the Act states:
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Major long term issues is defined at section 4 of the Act:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
I took into account all of those legal requirements. A reduction of time was not in the child’s best interests. Her relationship with the Father was appropriate. She was too young for her wishes to carry any weight. Changeovers will be less trouble without the Mother’s partner.
I do not find that there is an unacceptable risk of harm to the child in the Father’s care. In any event the serious allegations made by the Mother did not inform the start Saturday morning or Friday evening issue.
One of the significant issues that emerged was the Mother’s attitude to the child having a meaningful relationship with both parents and to the responsibilities of parenthood. One of the responsibilities of parenthood is the manner in which information about the child is processed and the degree of care taken to process information about the child even when the relationship between the parents is poor. If the Mother’s statements were genuine, and I was not convinced that all were, she showed a capacity to leap to the worst possible conclusion regarding the Father’s care of the child.
In all of the circumstances I found that it was not in the child’s interest for either parent to have the parental power of sole responsibility for the broad suite of matters long term issues entail. I found that is so notwithstanding the difficulty for the parents to communicate. I did not apply the presumption of equal shared parental responsibility. I find it was in the child’s best interest for the weight of parental responsibility for long term issues to be borne equally.
In the circumstances where I determined the orders would provide for the parents to have equal shared parental responsibility I considered (for a mere moment) equal time. Neither party sought equal time, it was not practical nor in the child’s best interests.
I considered substantial and significant time. The extent of time in the 2018 orders was as much as was practical. Neither party sought more time than those 2018 orders provided for. The time set out in those orders was in the child’s best interests.
CONCLUSION AS TO ORDERS
I took into account all the above matters and the evidence of the parties. I concluded in all the circumstances that a return to the previously agreed orders as made on 2 December 2020 were in the best interests of the child.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 29 September 2021
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