Kavanagh and Cobb
[2018] FCCA 971
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
KAVANAGH & COBB [2018] FCCA 971
Catchwords:
FAMILY LAW – Application for final parenting orders – child 6 years – father seeking order for equal shared parental responsibility and equal time – mother seeking order for sole parental responsibility and for father to spend time from 10 am Saturday until 9 am Monday each alternate weekend and from Thursday at the conclusion of school until Friday at the commencement of school in the off week with a gradual increase in school holiday time – feature of the parties’ relationship is poor communication and a past inability to resolve disputes – parties have markedly different parenting styles – father seeking “parallel parenting arrangement” – order for equal time determined not to be in the child’s best interests – order made for child to live with the mother and spend substantial and significant time with the father determined to be in the child’s best interests.
Legislation:
Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65D, 65DAA(1), 65DAA(2), 65DAA(5), 65DAC
Cases cited:
Bryant & Stapleton [2010] FamCAFC 5
Eldred & Eldred [2015] FamCA 61
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Moses & Downing [2009] FamCA 1270
H & H (2003) 176 FLR 35
Johns & Jasapas [2016] FamCA 471
Applicant: MR KAVANAGH
Respondent: MS COBB
File Number: CAC 422 of 2014
Judgment of: Judge Tonkin
Hearing dates: 6 & 7 November 2017
Date of Last Submission: 7 November 2017
Delivered at: Canberra
Delivered on: 20 April 2018 REPRESENTATION
Counsel for the Applicant: Self-Represented
Counsel for the Respondent: Ms Curran
Solicitors for the Respondent: Strong Law ORDERS
(1)All previous orders be and are hereby discharged.
(2)The parties shall have equal shared parental responsibility for the child [X] (“[X]”) born (omitted) 2012.
(3)[X] shall live with her mother.
(4)[X] shall spend time with her father:
(a)During school terms:
(i)Commencing 3 May 2018 from the conclusion of school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Monday (or Tuesday if a long weekend) and each alternate week thereafter; and
(ii)Commencing 26 April 2018 from the conclusion of school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Friday and each alternate week thereafter.
(b)During school holidays:
(i)For one half of each of the school holiday periods falling at the end of Terms 1, 2 and 3 as agreed and failing agreement for the first half in years ending in zero or an even number and for the second half in years ending in an odd number;
(ii)Each alternate week during the Christmas school holiday period in 2018 as agreed and failing agreement for the first, third and fifth weeks of those school holidays;
(iii)Each alternate week during the Christmas school holiday period in 2019 as agreed and failing agreement for the second, fourth and sixth weeks of those school holidays;
(iv)Commencing 2020 as agreed and failing agreement for the first half of the Christmas school holiday period and thereafter in years ending in zero or an even number and for the second half of the Christmas school holiday period commencing 2021 and thereafter in years ending in an odd number.
(v)[X] will spend time the remainder of all school holiday periods with her mother.
(5)For the purpose of these orders, Order 4(a) shall be suspended during school holiday periods. The father shall resume spending time with [X] at the commencement of the next block of time when he would ordinarily have been spending time with her but for the intervention of the school holidays.
(6)School holiday periods are deemed to commence at 3.00 pm on the day which is gazetted as the last day of school term and conclude at 5.30 pm on the Sunday preceding the commencement of the new school term.
(7)For the purpose of Order 4(b)(i) the first half of the holidays shall conclude at 5.30 pm on the middle Saturday and the second half of the holidays shall conclude at 5.30 pm on the Sunday prior to the commencement of the new school term.
(8)For the purpose of Orders 4(b)(ii), (iii) and (iv) the Christmas school holiday periods shall be deemed to commence at 3.00pm on the day which is gazetted as the last day of Term 4 or at 3.00pm on 20th December, whichever date is the later and shall conclude at 5.30pm on the Sunday preceding the commencement of the new school term.
(9)For the purpose of Order 4(b)(iv) the first half of the Christmas school holidays shall commence at 3.00 pm on the day which is gazetted as the last day of Term 4 or at 3.00 pm on 20 December, whichever date is later and shall conclude at 5.30 pm on the middle Saturday (being approximately three weeks after the commencement of time) and the second half of the Christmas school holidays shall commence at 5.30 pm on the middle Saturday (being approximately three weeks after the commencement of time) and conclude at 5.30 pm on the Sunday prior to the commencement of the new school term.
(10)For the purpose of Order 4(b)(iv), in the event that the total number of days for the Christmas school holiday periods comprise an uneven number of days, the father shall have the extra day in the years ending in an even number or zero and the mother shall have the extra day in the years ending in an odd number.
(11)Notwithstanding these Orders:
(a)The Father shall spend time with [X] on Father's Day from 10.00am until 5.30 pm and the Mother shall spend time with [X] on Mother's Day from 10.00 am until 5.30 pm;
(b)Unless otherwise agreed the parent with whom [X] is not spending Christmas Day in accordance with these orders, shall spend time with [X] from 9.00 am Boxing Day until 5.00 p.m. on 27 December.
(12)For the purpose of handover when not occurring at the school, the parent receiving the child shall collect her from the other parent's home, unless otherwise agreed in writing.
(13)In the event that either parent needs to utilise before and/or after school care or vacation care (including home based day-care), each parent shall ensure that the same placement(s) are used for the child with each parent entering into his or her own contract for services.
(14)Each party is permitted to remove [X] from the Commonwealth of Australia during periods when she is living with or spending time with that party, on the following conditions:
(a)The relevant party shall notify the other party in writing at least four weeks prior to the date of intended international travel. That upon booking overseas travel the travelling parent will forthwith notify the party in writing and shall provide them with an itemised itinerary for that travel period including:
(i)details of itineraries including copies of all travel bookings which include departure and return dates for all flights and details of the airline/cruise companies;
(ii)telephone numbers on which [X] can be contacted;
(iii)details of [X]’s accommodation during her absence from the country; and
(iv)details of necessary immunisations and travel insurance including copies of the relevant documents.
(15)If either party intends to take [X] interstate for any overnight period extending beyond seven nights, he or she shall notify the other party in writing no less than 3 days beforehand of the dates of travel, including the accommodation address where [X] will be staying together with a contact phone number.
(16)The parties shall each ensure that [X] attends the (omitted) Medical Centre or such other medical practice as may be agreed between them in writing and they shall ensure that [X] attends upon a preferred general practitioner within the agreed medical practice for all medical treatment save in the case of an emergency.
(17)In the event of any medical emergency and/or injury requiring hospitalisation for [X] the party who has care of [X] at that time shall immediately notify the other party.
(18)Each party shall communicate with the other party with respect to all issues concerning [X] by email, text or by application.[1]
[1] The following applications are available for parents to use where communication is difficult “Our Family Wizard”, “Talking parents”, and “2 Houses” however there may be a cost attached to these applications.
(19)Both parties are permitted to attend all school functions and events for [X] that parents are ordinarily invited to and both parties are permitted to attend all sporting events and extra-curricular activities attended by [X] at all times.
(20)Provided that the parties agree in writing that [X] be enrolled in any particular extracurricular activity, each party shall ensure that [X] attends that activity regularly.
(21)Each party shall sign passport applications for [X] as and when required.
(22)Each party shall notify the other party in writing within 7 days of any change of address, mobile telephone number or other contact information.
(23)Each party is restrained from criticising and/or speaking negatively about the other party in the presence of the child or from permitting any other person to do so.
(24)When [X] is not spending time with a parent, the other parent is permitted to communicate with [X] by telephone between 7.15 pm and 7.30 pm on Sunday, on [X]’s birthday and on Christmas Day. The party who wishes to contact [X] shall call the other parent’s mobile phone and the other parent shall ensure that their phone is made available for [X] to receive the call.
(25)In the event that the mother wishes to spend time away from Canberra with [X] during winter she shall provide the father with the following:
(a)A medical certificate in support of any medical condition she suffers from requiring her to spend time away from Canberra;
(b)An itinerary including when and where the mother intends to spend time and what arrangements will be made for [X] to communicate with her father during this period; and
(c)A proposal for the father to have make up time with respect to the time [X] would ordinarily be in her father’s care but is unavailable due to time away with her mother.
(26)With respect to Order 25 hereof, upon the father being provided with the relevant information in accordance with that order, he shall not unreasonably withhold his consent to the mother spending time away from Canberra.
(27)Each party shall engage in mediation (either through Relationships Australia or such other appropriate public or private mediation service) prior to filing any application with respect to any issue arising from these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kavanagh & Cobb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 422 of 2014
MR KAVANAGH Applicant
And
MS COBB Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an application for parenting orders in relation to the child [X] (“[X]”) born (omitted) 2012. The father seeks a week about arrangement to commence immediately whereas the mother seeks that [X] spend time with the father on alternate weekends, Thursday overnight in the off-week with a gradual increase in school holiday time. The father seeks an order for equal shared parental responsibility and the mother seeks an order for sole parental responsibility for [X].
Background
2.The parties met in (omitted) 2006 and commenced cohabitation in approximately (omitted) 2008. They separated on 20 February 2009 and did not resume cohabitation until 20 November 2009. The parties separated on a final basis on 24 April 2012. The mother has two children from a previous relationship Mr B (19) and [A] (16). [A] lives with his mother and spends every second weekend with his father from Friday after school until Sunday evening and 5 weeks of school holiday periods. In her affidavit the mother said that Mr B recently moved out of her home, however during cross-examination, the mother conceded that she had asked Mr B to leave.[2] The mother has re -partnered and is engaged to Mr C. They have been in a relationship for about 3 years. He has a daughter [B] aged 5.
[2] Transcript of Proceedings, p 117.
3.The father has two children from a previous relationship Mr A (21) and Ms L (20) [3]. Mr A lives in Western Australia and Ms L spends time with her father. The father has also re- partnered.
[3] Affidavit of Ms Cobb (filed 16 Oct 2017) [4].
4.[X] currently lives with her mother and spends time with her father in accordance with interim Consent Orders made by Judge Neville on 18 August 2015, being in week one from 8:30am Thursday until 5:30pm Friday and in week two from 8:30am Saturday until 5:30pm Monday.
Documents Relied On
5.The father relied on the following documents:
(a)Father’s Case Outline Document – Issue 2 filed 25 October 2017;
(b)Affidavit of Mr Kavanagh filed 16 October 2017;
(c)Two affidavits of Mr Kavanagh both filed 23 October 2017;
(d)Affidavit of Ms P filed 29 September 2017;
(e)Affidavit of Ms L filed 29 September 2017;
(f)Affidavit of Ms H filed 29 September 2017;
(g)Affidavit of Ms B filed 29 September 2017; and
(h)Affidavit of Mr J filed 29 September 2017.
6.The mother relied on the following documents:
(a)Case Outline Document filed 31 October 2017;
(b)Mother’s affidavit filed 16 October 2017; and
(c)Affidavit of Mr C filed 16 October 2017.
Competing applications
7.The applicant father sought the following orders:
1. That [X]’s time with her father immediately increase by one night each week.
2. From the commencement of the 2017 December school holidays, that [X] lives in a week about arrangement between both parents with changeovers taking place each Friday as follows:
(a) The parents are to collect [X] from her school at the end of the school day when she is at school and at an independent location with CCTV Surveillance at 5.00pm on those days when she is not at school on the day of the changeover.
(b) The weekends that the father has [X]- coincides with the weekends he has his eldest daughter Ms L.
3. That [X]’s school holidays are equally shared with the following provisions:
(a) That the father and mother are to provide the other parent with at least one month written notice including the dates for any proposed holiday of more than one (1) week duration seeking the other parent’s agreement.
(b) Any extended holiday period of more than one (1) week duration with one parent is to be made equally available to the other parent in the same or next school holiday period.
4. That each parent have sole parental responsibility for [X]’s day to day care and welfare when [X] is in their care.
5. That [X] communicates via telephone with the parent she is not with on two occasions each week.
6. That [X] is to alternate her time with the father/mother on both Christmas Day and Easter Sunday. Alternative arrangements for any given year are permitted only if both parents freely agree otherwise this default arrangement applies.
7. That [X] attends public schooling only and only attends private schooling if the mother is prepared to pay for all the costs associated with private schooling.
8. That neither parent shall permanently remove [X] from the ACT/(omitted) region without the consent of the other parent.
Separate Order Sought.
9. That Ms Cobb’s full time earning capacity with the Department of Housing is used to calculate Mr Kavanagh’s child support liability for [X].
8.The respondent mother sought the following orders:
1. That all previous Orders in relation to the child [X] (“[X]”) born (omitted) 2012 be discharged.
2. That the Mother have sole parental responsibility for [X].
3. That notwithstanding Order 2 herein the Mother shall: ·
(a) Inform the Father of details of the treating medical health practitioners for [X] and shall authorise those practitioners to provide the Father with any information as is ordinarily provided to parents;
(b) Inform the Father of any medical treatment required by [X];
(c) Inform the Father of the school [X] will be attending;
(d) Authorise [X]'s school in writing to provide the Father, at his expense, with such newsletters, school reports, photos and any information requested by him, which is ordinarily provided to parents.
4. That the Father will spend time with [X] as follows:
(a) On each alternate weekend from 10.00am on Saturday until 9.00am or the commencement of school on the Monday;
(b)On the Thursday following a weekend when [X] spends time with her father then from 3.00pm or the conclusion of school on Thursday until. 9.00am or the commencement of school on Friday;
(c) From the commencement of [X]’s formal schooling in Kindergarten in 2018 then:
(i) on each alternate weekend from the conclusion of school or 3.00 pm on Friday until 9.00am or the commencement of school on Monday or on Tuesday on a long weekend;
(ii) on each Thursday following a weekend when [X] spends time with her father from 3.00pm or the conclusion of school on Thursday until 9.00am or the commencement of school on Friday.
(d) During each school holiday period as follows:
(i) At the end of Term 1 in 2018 from 8.00am on the middle Friday until 5.30pm on the following Tuesday;
(ii) At the end of Term 2 in 2018 from 8.00am on the middle Friday until 5.30pm on the following Wednesday;
(iii) At the end of Term 3 in 2018 from 8.00am on the middle Friday until 5.30pm on the following Thursday;
(iv) From 2019 for one half of each of the holiday periods falling at the end of Terms 1, 2 and 3 as agreed and failing agreement with the Father for the first week in years ending in an odd number and for the second week in years ending in an even number;
(v) In each alternate week during each of the Christmas school holidays commencing in 2018 and 2019 as agreed and failing agreement with the Father for the first week in years ending in an odd number and for the second week in years ending in an even number;
(vi) For each Christmas school holiday period from 2020 onwards for 1 week and 2 week alternating block periods, with the Father spending time with [X] in the first 1 week block in years ending in an odd number and for the second 1 week block in years ending in an even number. The alternating blocks shall occur in the sequence of 1 week, 1 week, 2 weeks, 2 weeks with the last period being shorter if it does not conclude prior to the end of the holiday period.
(e) At other times as are agreed in writing
5. For the purpose of these Orders the times in Order 4 (a), (b) and (c) shall be suspended during school holiday periods. The Father shall resume spending time with [X] at the commencement of the next block of time when he would ordinarily have been spending time with her but for the intervention of the school holidays.
6. School holiday periods are deemed to commence at 3.00pm on the day which is gazetted as the last day of school term and conclude at 5.30 pm on the Sunday preceding the commencement of the new school term.
7. For the purpose of Order 4 (d) (iv) herein the first half of the holidays shall conclude at 5.30 pm on the middle Saturday and the second half of the holidays shall conclude at 5.30 pm on the Sunday prior to the commencement of the new school term.
8. For the purpose of Order 4(d) (v) and (vi) the Christmas school holiday periods shall be deemed to commence at 3.00pm on the day which is gazetted as the last day of Term 4 or at 3.00pm on 20th December, whichever date is the later and shall conclude at 5.30pm on the Sunday preceding the commencement of the new school term.
9. That notwithstanding these Orders:
(a) The Father will spend time with [X] on Father's Day from 10.00 am until 5.30 pm and the Mother will spend time with [X] on Mother's Day from 10.00 am until 5.30 pm.
(b)The father will spend time with [X] during the Christmas school holidays commencing in 2017;
(i) From 5.30pm on 23 December 2017 until 5.30pm on 26 December 2017;
(ii) From 5.30pm 28 December 2017 until 5.30pm on 29 December 2017;
(iii) For the balance of that Christmas school holiday period to resume the usual cycle of time in accordance with Order 4(a) and 4(b).
(c) When the Easter weekend is not wholly included in a school holiday period:
(i) The Mother will spend time with [X] from the conclusion of school or 3.00pm on Holy Thursday until 5.30pm on Easter Saturday in odd numbered years and from 5.30pm on Easter Saturday until 5.30pm on Easter Monday in even numbered years.
(ii) The Father will spend time with [X] from the conclusion of school or 3.00pm on Holy Thursday until 5.30pm on Easter Saturday in even numbered years and from 5.30pm on Easter Saturday until 5.30pm on Easter Monday in odd numbered years.
(d) The parent who is not spending Christmas Day with [X] in accordance with these orders shall spend time with [X] for her birthday from the conclusion of school or 3.00pm on 17th December until the conclusion of school or 3.00pm on 19th December.
10. For the purpose of handovers when they are not occurring at the school the parent receiving [X] shall collect her from the other parent's home, unless otherwise agreed in writing.
11. During the time that the Father spends with [X], in the event that he needs to utilise before and/or after school care or vacation care (including home based day-care), he shall ensure that he uses the same placement as is used by the Mother and he will enter into his own contract with them for payment on those days.
12. That the alternate weekend time when [X] spends time with her Father is to coincide with the weekends on which the Mother's other children are not spending time with the Mother. It is noted that this is currently consistent with the weekends that the Father has his other children.
13. That the Mother is permitted to take [X] on holiday for a 3 week block during winter and she shall give the Father at least two week's written notice of her intention to do so. For this purpose the holiday may include international travel and the Mother will comply with Orders 14(a)(i) -{iv).
14. That the parties will be permitted to remove [X] from the Commonwealth of Australia, during periods when she is living with them, on the following conditions:
(a) The relevant party shall notify the other party in writing at least four weeks prior to the date of intended international travel. That upon booking overseas travel the travelling parent will forthwith notify the party in writing and shall provide them with an itemised itinerary for that travel period including:
(i) details of itineraries including copies of all travel bookings which include departure and return dates for all flights and details of the airline/cruise companies;
(ii) telephone numbers on which [X] can be contacted;
(iii) details of [X]’s accommodation during her absence from the country;
(iv) details of necessary immunisations and travel insurance including copies of the relevant documents.
15. That if either party intends to take [X] interstate for any overnight periods they will notify the other party in writing no less than 3 days beforehand of the dates of travel, including the accommodation address where [X] will be staying together with a contact phone number.
16. That the Mother and Father shall each ensure that when they seek general practitioner treatment for [X] they do so at the (omitted) Medical Centre or such other practice which is elected by the Mother to be [X]’s usual medical practice, unless in an emergency.
17. Each party shall notify the other as soon as practicable of any medical emergency and/or injury requiring medical treatment for [X].
18. That both parties are at liberty to attend all sporting events and extra-curricular activities attended by [X] in the other party’s time with her.
19. Provided that the parties agree in writing that [X] may be enrolled in particular extra curricular activity/ies then each party shall ensure that [X] attends that activity regularly .while she is in their respective care.
20. Both parties are at liberty to attend all school functions and events to which parents are ordinarily invited.
21. That each party will sign passport applications for [X] as and when they are required.
22. That each party will notify the other party in writing within 7 days of any change of address, mobile telephone number or other contact information.
23. That each party is restrained from criticising and/or speaking negatively about the other party in the presence of the child or from permitting her siblings or any other person to do so.
24. That each party is entitled to communicate with [X] by telephone between 7.15pm and 7.30pm on each Sunday when [X] is not otherwise with them and also on her ·birthday and on Christmas Day. For this purpose the party who wishes to contact [X] shall call the other parents' mobile phone and the other parent shall ensure that their phone is made available for [X] to receive the call.
NOTATIONS:
It is noted that the purpose of Orders 8 and 9 (c) is to ensure that:
(a) Each parent spends time with [X] at Christmas in alternating years for an uninterrupted block period which includes at least Christmas Eve through 27th December;
(b) Each parent spends block time with [X] on her birthday in alternating years when they are not spending Christmas with her;
(c) The commencement of the school holiday arrangement for the Christmas period is such that there is certainty for each parent about having a whole week which includes the uninterrupted Christmas period.
History of the Proceedings
9.This matter has a lengthy litigation history. The father filed an initiating application and three applications in a case over an 18 month period and filed twelve affidavits. The mother filed a response, amended response and a response to one of the applications in a case and five affidavits.
10.The father commenced proceedings on 26 March 2014. In his application he sought orders that [X] spend equal time with each of her parents on a final basis. He sought an immediate reinstatement of his time on an interim basis and a requirement that the mother undertake a mental health assessment “to determine the reason(s) why she is relentless in discrediting and undermining the fathers of her children ability to parent the children she is the mother of.”
11.Regarding his request that the mother undergo a mental health assessment he said the mother had a history of depression and according to him the mother was unwilling to allow the father of her other two children to spend time with his children.
12.The father raised concerns in his affidavit that the parties had different parenting styles, that the mother demonstrated a negative attitude towards “fathers’ being able to bring up children,” that the mother’s child [A] had required psychiatric assistance and that the mother was both controlling and extremely regimented in her approach to parenting.
13.At the time he commenced proceedings, [X] was about 15 months old. The father had not spent any time with [X] for a period of about 10 months.
14.The mother filed her response on 22 April 2014 supported by affidavit. She challenged the father’s assertion that she was unwilling to facilitate a relationship between [X] and her father. She said on 28 February 2013 she had provided the father with a compact disc containing 90 photos of [X] and both parties had attended [X]’s christening on (omitted) 2013.
15.She deposed that after visits with the father in February 2013, [X] appeared overtired, difficult to settle and would not feed. She also dropped in weight. Up until 12 April 2013 the father had seen [X] about twice each week. On 26 April 2013 the father sent her draft consent orders and on 3 May 2013 she advised him that they should rethink the visits due to her concerns that [X] may be suffering trauma.
16.She said between 3 May 2013 and 25 June 2013 she attended an initial session with Relationships Australia and there were several communications between them regarding the father’s time.
17.On 12 November 2013 the parties attended mediation. Discussions about [X] spending time with her father continued.
18.She denied that she failed to facilitate a relationship between her former husband and their children. She said during the 6 years that he did not spend regular time with the children she regularly took the children to visit the paternal family.
19.She said she suffered from Raynaud’s phenomenon which caused pain throughout her body during colder weather generally between April and September. During this time she would travel away from Canberra to warmer places. She accepted that she had suffered from depression in the past.
20.Orders were made by Judge Neville on 19 May 2014 reinstating the father’s time initially in the presence of Ms B.
21.On 30 July 2014 the father filed an application in a case seeking a gradual increase in his time with [X] including overnights. He relied on two affidavits one filed on 13 June 2014 (less than a month after orders were made) and one filed on 24 July 2014 in addition to an affidavit from Ms B.
22.In his affidavit filed on 13 June 2014, the father responded at length to the mother’s April 2014 affidavit. He said he found the mother unreasonable and controlling. He indicated “I fully believe that a separate parallel parenting arrangement is the healthiest and normal situation given [X]’s parents separated situation.”
23.He indicated that [X] enjoyed spending time with him. He disputed a number of claims made by the mother denying he said that he did not change the child because he did not have a nappy. He denied recording any conversation. He claimed that the mother held financial wealth in high regard. He said the mother was obsessed “in minimising a father’s involvement in parenting their children.”
24.In his later affidavit he complained that the mother was attempting to undermine his relationship with [X]. He annexed a number of email exchanges between the mother, the father and the day carer. He interpreted the mother’s enquiries about the child as overly intrusive and an attempt “to make up excuses to try and stop him seeing [X].”
25.Orders were made on 19 August 2014 for the mother to file written submissions in response to the father’s one page written submissions.
26.Orders were made by Judge Neville on 26 September 2014 for the father to spend unsupervised time with [X] increasing to an arrangement for [X] to spend time with her father for two consecutive days and one overnight each week once she turned two and a half. The weekend overnight time was to coincide with the time the father’s two children, Ms L and Mr A, spent time with him. Provision was made for the mother to spend holiday time with [X] with make - up time for the father if necessary.
27.Further procedural orders and orders for travel time were made in November 2014.
28.On 10 March 2015 the father filed a further application in a case seeking an increase in time on an interim basis.
29.In his affidavit filed on 10 March 2015 he complained that the mother continued “to send written statements to me projecting her negative views regarding my parenting ability, the enjoyment and benefit [X] gains through having independent time with me and the implementation of court orders.” He annexed numerous emails between the parties containing allegations and counter allegations. On one occasion the mother wrote “Having witnessed firsthand the trauma your other children endured and your lack of support to them during those regular occupancies offers no comfort. A child traumatised under three well we both know the behaviours created and that you can’t/won’t handle it.” He deposed that the mother complained that [X] suffered as a result of the diet he provided her and as a consequence she suffered a number of health issues. He complained that the mother took the child to a different doctor. The father did not respond to the mother’s various complaints.
30.The mother filed an affidavit on 12 March 2015. At that time [X] was spending one overnight a week with her father alternating between Thursday and Saturday. She noted that the father had not spent any time with [X] between 19 August and 24 September 2014 (5 weeks). She said the father declined to see the child on 20 October but saw her on 23 October 2014. The mother said this was in breach of the orders. He spent no time with [X] on 22 November 2014.
31.The mother opposed any increase in the child spending more than one overnight with her father each week and argued that overnight should increase when [X] turned 3 to two consecutive overnights. She said the parties had been unable to agree on a co-parenting arrangement and were unable to communicate regarding issues impacting on the child including her diet and consequential health issues. She also sought permission to travel overseas with the child. She indicated that the father had refused to attend the Conflict Resolution Service on 4 December 2014 to discuss the child’s health needs.
32.On 19 March 2015 the mother filed an amended response. She sought an order for equal shared parental responsibility and for [X] to spend time with the father from 9.00 a.m. Friday until 5.00 p.m. Saturday each week and once [X] commenced school that [X] spend time from Friday after school until Monday before school each alternate week with her father and school holiday time be gradually increased. Otherwise she sought an order for [X] to live with her mother. In addition she sought an order allowing her to travel with [X] including travelling overseas.
33.Orders were made by Judge Neville on 9 April 2015.
34.On 12 August 2015 the father filed a further affidavit. That affidavit addressed a memorandum from Ms S. In addition the father sought an order that his name be included as part of the child’s surname and sought orders permitting him to take [X] to visit the paternal family in Queensland. He complained that the mother was exerting unreasonable control over [X] including denying him the opportunity to take [X] on holiday.
35.As can be seen from the emails annexed to the parties’ various affidavits, they continued to engage in unhelpful, critical and at times hostile exchanges. The father had responded to the mother on 19 July 2015 “your written communication in the communication book on 18 July 2015 is concerning (referencing the comment about the Tarot reading and [X]’s card being the sword of cruelty). I will bring it to the attention of the authorities currently dealing with [X]’s best interests.”
36.Orders were made on 18 August 2015 by Consent to continue the father’s time with [X] until 18 December 2015 and thereafter to increase the father’s time.
37.On 9 September 2015 the father filed a further affidavit. That affidavit contained a reference to a single paediatric appointment for [X] on 4 September 2015.
38.On 22 October 2015 the mother filed an affidavit responding to the father’s affidavit and addressing [X]’s health issues.
39.Orders were made on 12 November 2015 by Judge Neville that the child’s surname is to include the father’s surname and the mother was to elect how the surname would be described and advise the Court. In the event that no further applications were filed, the current applications would be dismissed.
40.On 24 November 2015 the father filed a further application in a case and affidavit in support. He requested that final orders be made such that by the time [X] was 5 she would spend equal time with her parents.
41.On 21 April 2016 the father filed a further affidavit. He complained that the mother had refused all four requests made by him to sign documents requiring the Registrar of Births, Deaths and Marriages to change the child’s surname.
42.The mother filed a response on 12 August 2016 to the father’s application in a case. She sought an order for equal shared parental responsibility and for [X] to live with her and spend time with her father on alternate Thursdays from 8.00 a.m. to 5.30 p.m. and during the following week from 10.00 a.m. Saturday to 5.30 p.m. Monday. This arrangement was to change once [X] commenced school in February 2018 such that she would spend time with her father from after school Friday until before school Monday each alternate weekend with a gradual increase in school holiday time until 2020 when [X] would spend time with her father for one week during the term school holidays. In 2021 [X] would spend time with her father in a pattern of one week, two weeks twice during those holidays.
43.In support of her response the mother filed an affidavit on 12 August 2016 in which she deposed to concerns about [X]’s irregular bowel movements in December 2015 when the child commenced day care and also her tiredness. She claimed that this health issue presented once [X] commenced spending overnight with the father. She complained that the father refused to communicate regarding these issues.
44.She complained that the father would not permit [X] to participate in extra curricula activities on a weekend because “they have other family things on.” Further she complained that the father took the child to the G.P and advised the mother after the fact. She said the father did not allow the mother to speak to [X] on Mother’s Day until 7.00 p.m. as he did not answer his phone when she called.
45.The mother complained that when both parents were present in the paediatrician’s surgery the father did not respond to [X] when she said “look Mummy is here.” She complained that although the father did not oppose [X]’s enrolment in a (omitted) school he refused to contribute financial towards school fees.
46.Although both parents attended the ARCK program according to the mother the father disengaged twice. She complained that the father would not communicate with her or look at her at changeover and this negatively impacted on [X].
47.Orders were made by Judge Neville on 16 August 2016 permitting either party to remove the child from the Commonwealth in addition to a number of procedural orders.
48.Orders were made by Judge Neville on 16 March 2017 listing the matter before Judge Tonkin on 6 November 2017 for hearing.
49.The father filed an affidavit on 12 September 2017 addressing an issue whether the child should attend a public or private school.
The trial
50.As is apparent from the extensive litigious history of this matter the parties in the past were unable to agree on multiple issues concerning [X] including her surname, health, diet, medical treatment, schooling and the time she spent with her father. By November 2017 when the matter proceeded to trial there were few “new” issues between them, most issues having been resolved. The primary issue for determination centred on parental responsibility and time. The mother was seeking an order for sole parental responsibility in her favour notwithstanding that she sought an order for equal shared parental responsibility throughout the proceedings including during interviews with the Family Consultant.
Father’s evidence
51.The father filed his trial affidavit on 16 October 2017 complaining that the mother “used dominant personality and her greater wealth as a means of control and intimidation over the father at times.” By way of example, he referred to the budget principle document which he said she gave him when they first started living together.[4] The document was attached as Annexure 1 of his affidavit filed on 16 October 2017. He said the mother kept very detailed records of joint expenditure during the relationship. According to the father, the mother was hostile towards him after the parties conducted their first reconciliation of expenses and she insisted expenditure had to be proportional to each party’s assets. She established a 70:30 ratio in her favour. This was put to the father in cross-examination and he conceded that the 70:30 ratio was never actually put into practice because the relationship ended soon after this discussion. The father said the mother told him on at least two occasions that she was in a better financial position than him.[5] In my view there was no sufficient evidence to support a finding that the mother used “greater wealth” as a means of control and intimidation over the father.
[4] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [8].
[5] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [10] – [11].
52.The father agreed that he had raised the issue of [X] being adopted. He said he made this suggestion for two reasons: first, because he was adopted and he found that to be a positive experience. Second, he was concerned that the mother would not be amenable to an equal-time arrangement given her “relentless” attempts to “undermine and stop the father of her older children from having independent time with them”.[6] In support of this he relied, in part, on the mother’s 6 December 2008 Will (Annexure 5 of the father’s affidavit of 16 October 2017). Clause 8(c) reads:
“In the event that my partner [the father] seeks residence of the said children [Mr B and [A]], it should be considered by my Trustee to be in the children’s best interest for them to reside with MS B and MR V to prosecute and / or defend an Application for Residence of my infant children. In making this request I express concern, as at the date of making my Will, as to MR KAVANAGH’S, willingness and / or ability to truly care and provide for both infant children and without a bias or double standard with his own biological children”.
[6] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [10] – [17].
53.This Will was drafted not long before the parties’ first period of separation on 20 February 2009. The context in which it was created was not explored. The father had interpreted the Will as an intention by the mother to prevent the children’s father (and the father) from caring for those children full time. As discussed later in this judgment, the relationship between the mother and the father of her older children had been difficult with family violence and mental health issues featuring in that relationship. I do not accept the father’s interpretation of the Will as justifying a conclusion that the mother was “relentless” in her attempts to “undermine and stop the father of her older children from having independent time with them”.
54.The father gave several examples of communication between the parents that he believed illustrated the mother’s perceived greater parenting competence extracted from the parties’ Communication Book (Annexure 8). The mother frequently questioned his competence as a parent and made highly derogatory and critical remarks about him including “I wonder how you can lie straight in bed your fraudulence, lies and apparent lack of safety provisions for [X] don’t provide much trust.” However the father did not demonstrate any reluctance in defending himself against the hostile exchanges. He advised the mother in the communication book “to refrain from communicating your opinions about yourself and your opinions about me to me in [X]’s communication book.”
55.He referred to his relationship with his ex-partner Ms N as foundation for the proposition that he is able to form a child-focused co-parenting relationship. In his view it was possible that this relationship could be fostered with the mother. He attached a document he said was prepared by Ms N titled “Parenting Character Reference for Mr Kavanagh” (Annexure 10). The mother disputed that the father took an active part in sharing the care of his children with Ms N and said from her observations, the father left most of the major parenting decisions to Ms N.
56.The father complained that the mother had in the past not allowed [X] to spend more than two consecutive nights with him and made it difficult for him to travel with [X] to visit his extended family.[7] He provided correspondence between himself and the mother’s solicitors, and extracts of the Communication Book to support this (see Annexure 12). He annexed a written record of communication (from the Communication Book and text messages) that he said evidenced the mother’s reasons for trying to stop him taking [X] away for the weekend. He also referred to his voluminous affidavit filed 10 March 2015 which he said contained more examples of the mother’s negative view of the father’s parenting.[8] I agree that the mother had been highly critical of what she perceived to be the father’s lack of parenting competencies in a number of exchanges with the father.
[7] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [40].
[8] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [70].
57.The mother’s many concerns seem to focus on the father not providing her with the degree of information she considered to be sufficient regarding matters concerning [X]. For example she complained about the lack of information provided for his proposed trip with [X] (see Annexure 13). In response the father’s raised “fairness” and said he had allowed the mother to take [X] on three overseas holidays and several interstate holidays for periods up to three weeks in duration whilst she refused him make-up time with respect to these trips.
58.The father said that the ARCK program “recommends parallel parenting” for conflictual separated parent relationships. He said it is a form of parenting that “implies that the parents must be guarded with how they choose to communicate (e.g. business-like manner) because of potential conflict”.[9] He said that [X] had been brought up in a parallel separated parenting arrangement since 19 May 2014.[10] He said that the mother is “distrusting, intensely scrutinising and covertly hostile towards him, this is ‘one-way’ and he does not reciprocate.”[11] He suggested a parallel parenting approach as a way to minimise the conflict between the parties. The mother opposed a parallel parenting arrangement for [X].
[9] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [47].
[10] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [50].
[11] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [48], [170] – [171].
59.The father deposed to never stopping relevant communication, only “irrelevant and hostile communication”. He provided examples of such relevant communication[12] and irrelevant and hostile communication to which he did not respond.[13] Notwithstanding that the father said he did not respond, the excerpts provided indicated that he often responds. By way of example:
[12] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [71] – [85], [174].
[13] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [86] – [129].
“[96] Ms Cobb’s statement – “Please provide full daily food intake for [X], not just the last meal & be specific i.e. is cheese a le snack, cheese slice; what is on her sandwich” …
“[97] Mr Kavanagh’s response – “There is no requirement for us to be micro managing food” …
“[98] Ms Cobb’s response to Mr Kavanagh's Response – “I have simply requested that you revert back to providing her daily intake as I provide to you as that is required due to her ongoing constipation issues” …
“[99] Mr Kavanagh's Response to Ms Cobb's Response – “The paediatrician and doctor have assessed [X] as being a perfectly normal, fit and healthy child. There is no requirement to increase recording of food intake and bowel movements while [X] is fit and healthy. The requirement/need to record food, bowel and sleep will reduce with age while [X] remains fit and healthy” …
60.I find that communication between the parties in the past has been fraught with the parties disagreeing on numerous occasions however the reality is as two separated parents, they will need to develop an appropriate communication mechanism to share information regarding [X]. Both have participated in the ARCK program. Both should now be fully regarding the negative impact parental conflict has on their child.
61.Regarding the health issues raised by the mother, the father rejected that [X]’s bowel issues were attributable to the diet he provided for her. He said on 20 December 2012 he took [X] to a doctor who advised him that the diet he provided for her was “well-balanced”.[14] Notwithstanding this, the father accepted that [X] did have irregular bowel movements as asserted by the mother. He said that a paediatrician that the mother took [X] to on 4 September 2015 advised that fluctuations in children’s bowel movements were normal.[15] Despite [X]’s bowel movements being assessed as normal, he complied with the mother’s demands to provide details of [X]’s bowel movements in the Communication Book up until [X] started pre-school.[16]
[14] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [132]..
[15] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [133].
[16] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [138].
62.The father said that he visited Kidsafe in January 2013 and 16 August 2014. On both occasions Kidsafe advised him that the car seat he had installed for [X] was installed correctly. When he purchased his second car seat in May 2015 he rang Kidsafe who advised that it was a good brand and that there was no need for him to come in to have it installed as he would be using the same mounting points as he did for his previous car seat. He advised the mother of the details of the new car seat.[17] It would appear that notwithstanding the alleged difficulties in communication, the father did take the matters raised by the mother seriously, followed those matters up and communicated to her how these were addressed.
[17] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [151].
63.The father disagreed with the mother’s position that his expectations of time with [X] were unreasonable. He provided a reference to academic literature in support of his position about time with [X].[18] The article referred to by the father “Post Separation parenting arrangements: Patterns and developmental outcomes: Studies of two risk groups” by Ms J, Mr B, Ms M, Ms W and Ms C was not before the Court. He had extracted an isolated paragraph from the article in support of his proposal for equal time. He appeared to ignore a key finding within the article that “shared care is likely to be especially developmentally challenging for infants and pre – schoolers and involves many logistical and relationship challenges; it is a skilful undertaking.” He appears to have taken an ideological view that the Court should impose an equal time arrangement. It was put to the father that his position had always been that he wanted a “fifty-fifty arrangement” with respect to [X] and that he believed that was in [X]’s best interests. He agreed and said he had wanted a 50:50 arrangement since before [X] was born.
[18] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [156].
64.I accept that the mother found the father’s expectation for [X] unreasonable particularly in light of the poor relationship between the parties.
65.The father said that the mother had previously sought to suspend [X]’s time with him when [X] was unwell. She attempted to do this on 25 September 2015 when she told him that [X] could not spend time with him independently as she was unwell and provided the father a medical certificate stating that it was in [X]’s best interests to stay with her mother until she was better.[19] He said that 7 days later the mother still refused to let [X] spend time with him so he made an appointment with [X]’s doctor on 1 October 2015 and obtained a certificate from the doctor stating that [X] was well enough to be with her father and that Court orders should be followed.[20] The father said that he always follows medical professionals’ direction but accepts that he made “minor errors” on two occasions. He says he intends to undertake a first aid refresher course.[21] I accept that the father may have construed the mother’s attitude as controlling and limiting of his time in this regard.
[19] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [165].
[20] Affidavit of Mr Kavanagh (filed 16 Oct 2017) Annex 22.
[21] Affidavit of Mr Kavanagh (filed 16 Oct 2017) [166].
66.The father relied on two further affidavits both filed on 23 October 2017. One of the affidavits specifically addressed the material in the mother’s affidavit filed on 16 October 2017. Much of the content of this affidavit repeated earlier affidavits filed by him, most disputes between the parties having been addressed above.
67.In his response he said he attended all Marymead ARCK program requirements and annexed a certificate of attendance dated 13 February 2015. He agreed that he had sought a reduction in child support on the basis that the assessment did not accurately reflect (in his view) the mother’s income earning capacity. He disputed that the mother suffered from Raynaud’s phenomenon. He disputed that [X] suffered detrimental health and development issues as a consequence of spending time with him. His additional affidavit addressed matters raised in the affidavit filed by Mr C.
68.The father relied on a number of affidavits from supporting witnesses including Ms B addressing his parenting capacity and his relationship with [X] in addition to other matters.
Cross-examination of the Father
69.The father accepted that on his proposal [X] would be five years old when the week about arrangement commenced.
70.He said his relationship with his ex-partner, Ms N, was good and that he and Ms N separated when their children, Mr A and Ms L, were 6 and 8 respectively. Ms N had been the primary carer during the relationship and he and Ms N had been able to communicate well about the children post-separation. Post-separation there had been a week-about arrangement in place, including equal shared care during the school holidays and he relied on the fact that he had managed an equal time arrangement with his other children. I find that the father is an experienced parent with respect to his older children.
71.He accepted that the mother was a “good mum” and that she is [X]’s primary attachment figure. With respect to Mr B and Mr A, he said the mother was “not a bad mum”. I accept the father’s opinion that the mother is a good mum and he has confidence in her ability to adequately care for [X].
72.He agreed that there was an extended period of almost a year commencing May 2013 when he did not spend any time with [X] at all. He was asked how it came to be that he stopped seeing [X] between May 2013 and March 2014. He said that occurred in response to an email sent by the mother to the father on 3 May 2013 in which she stated that “any time [X] spends away from (her mother) can be introducing trauma to her.” The mother suggested she call the father on Sunday next “when ([X]) is feeding so we can establish the time she will be ready and you can come here and spend time with her in the front lounge room.” The email made reference to the father choosing to stop seeing [X] in the mother’s home.
73.The email also referenced issues the mother had encountered with respect to car seats, nappies and [X] being tired and hungry. The father said that prior to receiving that email he had been spending time with [X] regularly by agreement with the mother – first at the mother’s home and then, after receiving an email from the mother asking him not to discuss the issue of the sale of the motorcycles with her children, at the father’s home. The father explained that he had been spending unsupervised time with [X] at his home when the child was not yet 2 months old. He said from 10 February to 1 May 2013 he spent two hours with [X] in his home between breast feeding by the mother on at least one or two occasions per week. Changeovers were amicable. On 29 April 2013 at the mother’s request the father took [X] to have her immunisation shots.
74.On 2 May 2013 the father spent time with [X] in his home. Thereafter he spent no time until March 2014. The parties disagree on the reasons that the father did not spend time with [X] during this period. He maintained that the mother was not allowing him to have independent time with [X].
75.The father listed in his affidavit the many communication exchanges between the parties regarding the father spending time. He said he made arrangements to engage with Relationships Australia. He deposed that there was one mediation session held in November 2013 and he was then issued with a section 60I certificate.
76.In November 2013 he discovered that [X] was attending Ms B for child care. He requested the child carer facilitate a reintroduction of his time with [X]. He said the mother refused this request.
77.On 20 December 2013 the father advised the mother that he would commence proceedings. He filed his application on 26 March 2014 not having spent time with [X] for 10 months.
78.The father was shown an email from the mother in which the mother confirmed that the father wanted to wait for Judge Neville’s orders before resuming time. He said it was the mother’s preference to have an order formalised but that an offer for the father to spend time with [X] remained open to the father – including time in the mother’s front room, at a park and a coffee shop. The father agreed the mother had offered this but said that this was not unsupervised time – the mother would be present – and on that basis he declined. He said he did not feel “secure” being in the presence of the mother and preferred independent time “given the history” between the parties. In response to the mother’s claim that [X] was not settled, the father said [X] was settled when with him and that he had not noticed her being over-tired in his care. It was put to the father that he chose to have no time with [X] if it was not independent. He agreed.
79.The father was asked about a second mediation that was scheduled to occur between the parties in December 2013, after some months of him not seeing [X]. The father said that he cancelled the mediation and advised the mother of this via email. He said that the mediator had provided the father with a certificate to enable him to go to court because the parties could not get agreement. The father accepted he sent an email to the mother saying words to the effect of, “I’ve cancelled the mediation. I’m taking this to court”.
80.I find the father’s response to the email of 3 May 2013 an overreaction on his part. It would appear that he placed more importance on disputing the matter with the mother rather than continuing to be involved in [X]’s life. He was determined to have independent time which I understand to mean without the mother being present. [X] was between 5 months and 15 months old during this period.
81.The father commenced proceedings in March 2014. He was not asked and provided no explanation as to why he did not commence proceedings earlier to ensure he had a continuing relationship with [X]. I find that both parties were equally responsible for the father not spending regular time with [X] during this period.
82.The father said he started seeing [X] again in May 2014 by way of re-introduction and that time was supervised by Ms B in accordance with Judge Neville’s orders. He recounted that the visits went well. He spent Thursdays and Saturdays with [X] during this period. He said both parties followed his Honour’s orders but he disagreed that the mother “encouraged” [X] to see him. In support of this, he said “To say she encouraged it when Ms B told Ms Cobb how well it was going, after Ms Cobb asked, Ms Cobb then took [X] out of child care with Ms B. At that point in time, she took [X] out of child care with Ms B, so I don’t see how she encouraged it”.[22] He said the mother claimed that [X] was confused as a result of seeing the father for the reintroduction given this was the same place she went to daycare – that is, Ms B’s house. Notwithstanding this he continued to spend time with [X].
[22] Transcript of Proceedings, p 33.
83.The father accepted that there was a period in 2015 of a further 5 weeks wherein he did not see [X]. With respect to this period, he said the mother provided him with an ultimatum in an email in which, on the father’s account, the mother offered the father supervised time with [X] but no unsupervised time. This was about two days after the interim hearing before Judge Neville. The father further accepted that at the interim hearing, the mother’s solicitor offered that the father could spend supervised time with [X]. He agreed with this proposition and said he declined that offer as he “preferred to wait for Judge Neville to make interim orders”, which the father understood would take two days. He said he spent no time with [X] during this period as he declined to accept the mother’s proposal. Regarding the significant absence of the father from [X]’s life, I find that the father showed limited insight into [X]’s need to maintain an ongoing relationship with her father and the benefits she would have derived from maintaining continuity in that relationship in whatever form it was provided.
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