Kelly & Hutchens
[2024] FedCFamC1F 662
•1 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kelly & Hutchens [2024] FedCFamC1F 662
File number: MLC 8290 of 2021 Judgment of: MCNAB J Date of judgment: 1 October 2024 Catchwords: FAMILY LAW – PARENTING – Where the children live with the mother and spend time with the father – Where the children have spent limited overnight time with the father – Where there is a high level of animosity between the parties – Where neither party presents as a risk to the children’s safety – Where the scope of the dispute is narrow – Orders for the children to live with the mother and spend significant time with the father – Parties to have joint decision-making responsibility. Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61CA, 61D, 61DAA, 61DAB, 64B, 65D
Explanatory Memorandum, Family Law Amendment Bill 2023
Cases cited: In the Marriage of Chandler (1981) FLC 91-008
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 120 Date of hearing: 27-31 May 2024, 4 June 2024 Place: Melbourne Counsel for the Applicant: Ms Dellidis SC Solicitor for the Applicant: Operational Legal Australia Counsel for the Respondent: Mr Puckey KC Solicitor for the Respondent: Lighthouse Family Lawyers Pty Ltd ORDERS
MLC 8290 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KELLY
Applicant
AND: MS HUTCHENS
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
1 OCTOBER 2024
THE COURT ORDERS THAT:
1.The father and the mother have joint parental responsibility for all major long-term issues regarding the children X born in 2012 and Y born in 2017 (“the children”).
LIVING ARRANGEMENTS
2.The children live with the mother.
School Terms
3.The children spend time with the father in Term 4, 2024:
(a)For the first 4 weeks:
(i)Each alternate weekend from the conclusion of school on Friday (or 3:30pm Thursday if a non-school day) until Sunday 5:00pm; and
(ii)Each Thursday from the conclusion of school (or 9:30am if a non-school day) until 8pm.
(b)For the balance of Term 4:
(i)Each alternate weekend from the conclusion of school on Friday (or 3:30pm Thursday if a non-school day) until the commencement of school on Monday (or Tuesday if Monday is a non-school day); and
(ii)Each Thursday from the conclusion of school (or 9:30am if a non-school day) until 8pm.
4.The children spend time with the father during school terms from Term 1 2025 and thereafter as follows:
(a)each alternate weekend from the conclusion of school on Thursday (or 9.30am if a non-school day) until the commencement of school on Monday (or Tuesday if a non-school day); and
(b)each alternate Thursday from the conclusion of school (or 9.30am if a non- school day) until the commencement of school on Friday (or 5.00pm if a non-school day).
School Term Holidays
5.The children spend time with the father during school term holidays as follows:
(a)for the Term 1 and 2 holidays from 2025 and thereafter:
(i)from the conclusion of school on the final day of term until 8.00pm on the middle day; and
(ii)if in calculating the “middle day” there is an uneven number of nights, the children spend the additional night with the father,
(b)for the Term 3 holidays from 2025 and thereafter:
(i)from the conclusion of school on the final day of term until the commencement of school on the first day of Term 4.
Long Summer Holidays
6.The children spend time with the father during the long summer holidays:
(a)In the first week of the holiday period, from 9:00am on the first Saturday of the holiday period to 5:00pm the following Thursday in 2024/2025 and to 5:00pm the following Saturday from 2025/2026 onwards.
(b)In the third week of the holiday period, from 9:00am on the third Saturday of the holiday period to 5:00pm the following Thursday in 2024/2025 and to 5:00pm the following Saturday from 2025/2026 onwards
(c)In the seventh/second last week of the holiday period, from 9:00am on the seventh Saturday of the holiday period to 5:00pm the following Thursday in 2025 and to 5:00pm the following Saturday from 2026 onwards.
And for the avoidance of doubt, Order 4 is suspended during the school holiday period and resumes where it left off in the following term. Where the last day of school term is different for either of the children, then the later of the two days is taken to be the last day of school.
SPECIAL OCCASIONS
7.Notwithstanding any order to the contrary, the children spend time with each parent during the following special occasions as follows:
Father’s/Mother’s Day
(a)with the mother for Mother’s Day from 7.30pm Mother’s Day Eve until the commencement of school Monday;
(b)with the father for Father’s Day from 7.30pm Father’s Day Eve until the commencement of school Monday.
Children’s Birthdays
(c)with the parent in whose care they will not be spending overnight on the night of the children’s birthday:
(i)if a school day, from the conclusion of school until 7.30pm; and
(ii)If a non-school day, from 9.30am until 2.30pm or as otherwise agreed between the parties in writing, and this overrides Order 7(b) concerning Father’s Day.
Parent’s Birthday
(d)with the mother on her birthday from conclusion of school (or 3.30pm if a non‑school day) until the commencement of school the following day (or 9.30am if a non-school day);
(e)with the father on his birthday from 3.30pm until 9.30am the following day;
Anzac Day
(f)with the father from after school (or 5.00pm if a non-school day) on the day before ANZAC Day until 3.00pm on ANZAC Day, unless otherwise agreed between the parties;
Christmas
(g)in even numbered years, with the father from 5.00pm on Christmas Eve until 5.00pm on Christmas Day and with the mother from 5.00pm on Christmas Day until 5.00pm on Boxing Day;
(h)in odd numbered years, with the mother from 5.00pm on Christmas Eve until 5.00pm on Christmas Day and with the father from 5.00pm on Christmas Day until 5.00pm on Boxing Day;
Father’s wedding
(i)from late 2024 until early 2025 for the purposes of the children attending the father’s wedding in City B, subject to Order 12 below.
CHANGEOVERS
8.Changeovers take place:
(a)at the children’s school on a school day;
(b)if a non-school day, the mother deliver the children to the father’s residence at the commencement of their time with him, and the father deliver the children to the mother’s residence at the conclusion of time.
COMMUNICATION WITH CHILDREN
9.Each party permit and facilitate the children when in their care to communicate with the other parent via Facetime or telephone at all reasonable times the children may request and provide the children privacy during such communication.
PASSPORTS AND OVERSEAS TRAVEL
10.Within 7 days of these Orders, the parties do all things necessary to cause the father to hold Y’s passport and the mother to hold X’s passport, when the children are not travelling overseas.
11.The parties do all things and sign all documents necessary to renew the children’s Australian passports as required, at their equal expense and each party will sign the passport application within 7 days of being provided with the relevant application form.
12.Each party be at liberty to take the children on a holiday outside the Commonwealth of Australia to countries or areas which are classified as Level 1 or Level 2 by the Australian Government Smarttraveller.gov.au during any period they have the care of the children pursuant to these orders or at any other time by written agreement, provided that the travelling party must provide to the non-travelling party:
(a)at least 42 days written notice of the proposed travel;
(b)at least 21 days prior to the proposed travel, a copy of the return airline ticket to Australia and an itinerary of the cities and towns the children will be staying at; and
(c)at least 14 days prior to the proposed travel, a copy of the travel insurance policy covering the children for the duration of such travel.
13.If a party’s time with the children as prescribed in these orders is suspended as a result of the other party travelling outside the Commonwealth of Australia then that party shall have make up time for the same period as the suspended period as agreed and failing agreement that make up time shall be taken from the other party’s time in the following school holiday periods as nominated in writing by the party whose time was suspended.
14.Upon compliance with Order 12 herein, the non-travelling party provide to the travelling party the child’s passport in their possession, no later than 7 days prior to the proposed travel and the travelling party return the passports to the non-travelling party within 7 days of their return to Australia.
15.In the event of one party’s non-compliance with Order 11, pursuant to s 11(1)(b)(i) of the Australia Passports Act 2005 (Cth) the requirements that the consent of the non‑complying party to the children’s passports being issued or replaced be dispensed with, and compliant party be able to solely renew or obtain the children’s passports.
COMMUNICATION BETWEEN PARENTS
16.The parents do all things to forthwith commence utilising the platform ‘AppClose’ to communicate regarding the children and these orders, unless otherwise agreed in writing.
CONTACT DETAILS
17.Each party provide to the other 21 days’ written notice of any proposed change of address.
18.Each party keep the other informed at all times of their contact telephone number and shall notify the other in respect to any change in writing within 2 days.
MEDICAL
19.Each party notify the other as soon as practicable of
(a)any illness or injury suffered by the children requiring medical or allied health treatment, together with the contact details of the medical or allied health practitioner; and
(b)any medical emergency, medical condition, significant health issue or significant illness suffered by either child.
20.Each party provide all authorities and give all necessary consents to authorise any medical or allied health practitioner upon whom the children attend to communicate with, and provide information and any reports regarding the children’s health, to the other parent.
21.Each party is at liberty to attend upon the children’s medical and allied health practitioners to discuss the children’s health.
22.Each party:
(a)facilitate the child X’s continued attendance upon Dr C, paediatrician (or such other paediatrician as recommended by Dr C); and
(b)administer any medication as prescribed by Dr C (or such other paediatrician as recommended by Dr C).
23.Each party have leave to provide a copy of these orders to Dr C, or any other paediatrician upon whom the children may attend.
EDUCATION
24.Each party provide all authorities and give all necessary consents to authorise the children’s schools to communicate with, and provide information and any reports, regarding the children’s education, to the other parent.
25.Each party is at liberty to attend at the children’s schools to discuss the children’s education and all school events and co-curricular events organised by the children’s schools, to which parents are invited.
EXTRA-CURRICULAR ACTIVITIES
26.Each party is at liberty to enrol the children in extra-curricular activities that occur during their periods of care of the children and keep the other party advised of the details.
27.Each party provide all authorities and give all necessary consents to authorise all extra-curricular providers to communicate with, and provide information and any reports regarding the children’s activities, to the other parent.
28.Each party is at liberty to attend to spectate any special extra-curricular events such as grand finals or end of year performances or concerts in which the children are participating, irrespective of whose care the children are in.
29.The parties do all acts and things reasonably necessary to ensure the children’s attendance at their existing extra-curricular activities, and any successor activities, during the time they are with that parent.
COUNSELLING/COURSES
30.The father do all things to engage with Dr D as soon as practicable on a fortnightly basis for at least six months and he:
(a)have leave to provide to such psychologist the following:
(i)a copy of these orders; and
(ii)the Family Report of Ms E dated 10 May 2024,
(b)notify the mother with whom he has commenced counselling and confirm he has complied with Order 30(a) herein; and
(c)provide to the mother a letter from the psychologist at the conclusion of his engagement, confirming the dates of his attendance and his compliance with Order 30 herein.
OTHER INJUNCTIONS
31.Each party, their servants and agents be restrained from denigrating the other parent or their family members or discussing these proceedings or the issues in these proceedings, within the presence or hearing of the children and shall remove the children from any place in which the other party is being denigrated by any other person.
32.All extant applications be otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Kelly & Hutchens has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCNAB J
This matter concerns the parenting arrangements to the children, X born in 2012, aged 12 years and Y born in 2017, aged 6 years collectively (“the children”), between the applicant father Mr Kelly born in 1977 and the respondent mother Ms Hutchens born in 1980.
The father has since re-partnered with Ms F and they have a son, G born in 2021, aged 2 years.
The points of difference between the parties that requires judicial determination are:
(a)whether the father ought to spend 7 days or 4 nights per fortnight with the children; and
(b)whether the parents should have joint parental responsibility or after consultation in accordance with s 61CA of the Family Law Act 1975 (“the Act”) if the parties are unable to agree on major long-term decisions in relation to the children, the mother have sole parental responsibility.
Whilst the parties have spent legal costs resolving financial matters, the parenting aspect of the dispute occupied six days of the Court’s time. This relatively narrow dispute has caused the mother to incur, according to the respective costs notices filed, $440,888.17 in costs with estimated future costs of $110,325 and the father costs of $364,020.70 with estimated future costs of $119,500.
In the context of the very heightened and sustained conflict between the parties as seen during their relationship, post separation and in the course of very hard-fought litigation, including throughout the hearing, it is important that the views of the children should be bought to the fore so as to try and put some perspective on the dispute and the impacts on the children and the parties.
When interviewed for the Family Report prepared by Ms E dated 5 April 2024, X said this about his parents:
152.[X] said that the best thing about his mother is that she supports him in everything he does. He added, she is “relaxed unless it’s dangerous”. He indicated that his mother is happy if they are happy and sad if they are sad. His mother will worry if they are hurt, could get hurt, or are in a bad situation. She becomes angry if they are naughty but she “[calms] down through distraction”.
153.[X] said that his mother says that his father is more fun than her, but that he is more likely to approach her if hurt or worried and can talk to her about anything. He agrees that this is the case.
154.[X] described his father as funny, kind, caring, a good drawer and musician, smart, sporty […] and quick to respond to a problem. He especially enjoys listening to music and hanging out with his father, jumping in the pool, go‑karting and watching [videos]. The best thing about his father is that his father likes the same things that he does and the worst thing about his father is that when he asks his father something, his father becomes sidetracked and says irrelevant things.
Y said the following:
169.[Y] described her mother as brave, smart, and helpful. She believes that if bad things happen, her mother will not let her get hurt. She enjoys playing 20 questions, solving puzzles, drawing, and spending time with her mother. The best thing about her mother is that she helps her and is loving. She could not think of anything bad to say about her mother. [Y] said her mother gets angry when they do not listen to her and will walk away and do something else to calm down.
170.[Y] described her father as good a[t] drawing, and smart. She said he will help her when she is hurt, and she enjoys climbing and crafts with him. The best thing about her father is that he cares about her, is there when she needs somethings, and will do it for her. She could not think of anything bad about her father. She said that he becomes angry when they do something they are not supposed to do and will become “serious”.
171.[Y] said she had never been scared or worried with either parent.
Clearly the children love each of the parents and wish to spend time with them. Notwithstanding these clear statements, the parties subjected themselves to a process of mutual psychological evisceration despite the persistent urging of the Court to avoid same.
BACKGROUND
The parties met in 2007 when they worked together. They commenced co-habitation in 2010 and moved into a rental property. The mother gives evidence that the relationship was unhappy, and this is corroborated by the father who says that he purchased a flat in 2011 and was intending to leave the relationship.
In 2011, one of the father’s relatives was killed in an accident in Country H.
In 2012, the mother advised the father that she was pregnant and both offered differing recollections as to the father’s reaction. The mother stated that the father exclaimed that “[his] life is over”[1] whereas the father recalls that he “pledged [his] life to [his] unborn son”[2] and the parties resolved to remain together.
[1] Mother’s trial affidavit filed 8 April 2024 ‘Mother’s Affidavit’ at [9].
[2] Father’s trial affidavit filed 20 March 2024 ‘Father’s Affidavit’ at [20].
In 2018 the father received a settlement from the Commonwealth government relating to the death of his relative.
X was born in 2012 and the parties, again, offer widely different accounts of the events following the birth of X. The father deposes to being involved in the care duties of X with the mother having become hyper-vigilant and anxious during this time. The mother states that she was largely the primary carer of X and despite moments of love and care, the father was mostly apathetic in the care of X.
The parties briefly separated in around June 2013, before reconciling and re-commencing their relationship.
In 2013, the mother recalls an incident where after finishing maternity leave and returning to work in the middle of 2013, the mother provided a ‘run sheet’ to assist in the care of X, which allegedly caused the father to disparage the mother. Conversely, the father says that during this time he was constantly denigrated by the mother and that she was physically aggressive.
In 2013, the parties moved to Brisbane together and a property was purchased in Suburb J. The father says that this was to allow the mother to be closer to her extended family, but that he had no family or friends in Brisbane.
The mother wished to have another baby around this time and raised with the father the possibility of IVF treatment. The mother gives evidence that the father was against the treatment. The mother stated that the father then agreed to the treatment if the parties could return to Melbourne, which she was agreeable to. The father says that the return to Melbourne was due to the mother having received an opportunity for career advancement with the business she was employed at in the Melbourne office rather than any agreement.
In any case, the parties did return to Melbourne in 2016 and Y was born thereafter. The mother alleges that during the pregnancy of Y the parties’ relationship significantly deteriorated and she informed the father of their separation by email on 5 November 2017. The mother states that the parties came to an agreement that they will live and co-parent under one roof and when it arises that the father developed a relationship with another person who he wished for the child to meet, he would then move, which is what she says occurred as his relationship with Ms F progressed.
This is denied by the father who asserts that following the birth of Y the parties, although dysfunctional and toxic, remained together and that when applying for loan applications in 2020 the mother described the parties as married.
The father says that he was upset and desperate at the dynamic between himself and the mother and in 2020 he sought police assistance and obtained a permit to travel under Covid-19 restrictions to stay at alternate accommodation.
The father states that he vacated the family home on 16 October 2020 and that this is the date of separation between the parties.
Immediately following separation, the mother says that she acted co-operatively to ensure the children spent time with the father. The father states that he had calls with the children and spent time with them during the day on weekends, although this was tightly controlled by the mother.
In 2021, the father made an application for an intervention order against the mother on the basis that his time with the children was being controlled by the mother. This stemmed from the summer holiday period where the mother went on holiday with the children and the father says he was prevented from communicating with the children. The court declined to make the order and the application was adjourned.
In 2021, Victoria Police made an application for an intervention order on behalf of the mother, this was due to the mother feeling harassed and intimidated and an incident where X was allegedly pushed through a doorway which is discussed further below at [57].
The father spent limited time with the children throughout 2021, the evidence of both parties appears to indicate that this is due to them being unable to come to agreements on proposals. The mother says that the father sought to have changeover occur at Police stations, whilst the father deposes to the mother having requested him to sign an undertaking that he will return the child before his time with X proceeded. The mother states that it is a constant theme that the father refuses to spend time with the children if it does not occur entirely on his terms.
The father commenced proceedings in the Federal Circuit Court (as it then was) on 26 July 2021 by way of an Application for Final Orders. By that application he sought parenting and property orders that provided in substance:
1.That there be a just and equitable division of the assets of the parties, inclusive of superannuation pursuant to section 79 of the Family Law Act 1975.
…
2.The children, [X] and [Y] to spend time with the applicant father as follows:
a.To stay at the Applicant Father’s [Suburb K] property on alternate weekends;
…
c.On the weekends when the children are with the Respondent Mother, there are to be FaceTime calls with the Applicant Father at the children’s discretion, with the same principle to apply when the children stay with the Applicant Father.
On 11 October 2021, Judicial Registrar Piekarski made orders by consent which provided for the children to live with the mother and for limited graduating time for the father with the children, in addition to various procedural orders.
In 2021, the father alleged that the mother was placing some of his possessions in the driveway when dropping off X for spend time and that this was not the first time it had occurred. The father sent the mother an email on the same date stating that he had informed Suburb L Police Station and to refrain from placing his possession on the street. The mother reported this as a breach of the intervention order and the father was charged on the basis that the communication regarding the items being left on his driveway was not a communication about the children which was the species of communication permitted by the Order.
In 2022, Ms F applied for and successfully obtained an intervention order against the mother. This followed an incident where the mother attended the father’s and Ms F’s residence and allegedly banged on the door with Ms F receiving correspondence from the mother’s lawyer afterwards making allegations against Ms F.
In 2022, the father’s IVO application was listed for hearing and he instructed his lawyers prior to the appearance that he sought to withdraw the application. The Magistrate delivered judgment and labelled the application as frivolous, vexatious and in bad faith.
The father says that between January 2022 and March 2022 (with the exception of a date in February 2022), the mother did not facilitate any time for the children with the father as the intervention order by Ms F placed her in “intolerable legal jeopardy.”[3]
[3] Father’s Affidavit at [139].
In 2022, the father consented on a without admissions basis to a final intervention order.
Since separation, the children have largely lived with the mother and have spent what the father categorises as limited and disrupted time with him.
PROPOSALS
The father sought the following final orders:
PARENTAL RESPONSIBILITY
1.The father and mother make joint decisions for all major long-term issues regarding the children, [X] born […] 2012 and [Y] born […] 2017.
LIVING ARRANGEMENTS
2. The children live with the mother.
School terms
3. The children spend time with the father during school terms:
3.1. For the balance of Term 2, 2024 (Stage 1)
3.1.1.Each alternate weekend from Saturday 8:30am to Sunday 5pm
3.1.2.Each Thursday from conclusion of school (or 9:30am if a non-school day) until 8pm
3.2. In Term 3, 2024
3.2.1. For the first 4 weeks (Stage 2)
3.2.2.1.Each alternate weekend from Friday conclusion of school (or 3:30pm Thursday if a non-school day) until Monday commencement of school (or Tuesday if Monday is a non-school day);
3.2.2.2.Each Thursday from conclusion of school (or 9:30am if a non-school day) until 8pm;
3.3. From Term 4 2024 and thereafter (Stage 4):
3.3.1.Each alternate weekend from Thursday conclusion of school (or 9.30am if a non-school day) until Monday commencement of school (or Tuesday if a non-school day);
3.3.2.Each alternate Thursday from conclusion of school (or 9.30am if a non-school day) until Friday commencement of school (or 8pm if a non-school day).
3.4.The children’s time during school terms resume after each school holiday period in the same pattern as if the holidays had not intervened.
School term holidays
4.The children spend time with the father during school term holidays:
4.1. For the Term 2 school holidays in 2024 (which are 3 weeks long)
4.1.1.In the first week, from the conclusion of school on the final day of term (Thursday 20 June 2024) to 8pm the following Monday; and
4.1.2.In the third week from Thursday 4 July 9.30am until 8pm the following Monday.
4.2.For the Term 3 2024 holidays and Term 1, 2 and 3 school holidays from 2025
4.2.1.From the conclusion of school on the final day of term until 8pm on the middle day; and
4.2.2.If in calculating the “middle day”, there is an uneven number of nights, the children spend the additional night with the Father.
Long summer holidays
5.The children spend time with the father during the long summer holidays on a week-about basis:
5.1.In 2024, and in even numbered years thereafter, from 9:30am on the second Friday until 9:30am on the third Friday and each alternate week thereafter;
5.2.In 2025 and in odd numbered years thereafter, from 9:30am on the first Friday until 9:30am on the second Friday and each alternate week thereafter
6.The long summer holidays are defined as commencing on the first Friday of the long summer holidays and ending on the last Friday before the commencement of Term 1.
The mother sought the following orders:
Parental responsibility
1.In the event that after consultation pursuant to section 61CA the parents are unable to reach agreement as to any aspect of their exercise of parental responsibility then pursuant to section 61D, the mother has responsibility for sole decision making in relation to each such long term issue.
Living arrangements
2. The children live with the Mother.
3. The children spend time with the Father as follows:
3.1. From the commencement of these Orders, for a period of 60 days:
3.1.1.Commencing on 14 June 2024 and each alternate week thereafter, from the conclusion of school on Friday (or 3pm if a non-school day) to 5pm on Saturday evening (but excluding 12 July 2024); and
3.1.2.Commencing 5 June 2024 and each alternate week thereafter, from the conclusion of school on Wednesday (or 3pm if a non-school day) to 7.30pm.
3.2. Thereafter:
3.2.1. During the school term:
3.2.1.1.From 9 August 2024 and each alternate week thereafter, from the conclusion of school on Friday (or 3pm if a non-school day) Wednesday to 7:30pm.
3.2.1.2.From 14 August and each alternate week thereafter, from the conclusion of school on Wednesday (or 3pm if a non-school day) Wednesday to 7.30pm.
3.2.2. During the terms 1, 2, and 3 school holidays:
3.2.2.1.From the conclusion of school on the final day of the school term, to 5pm the following Wednesday in 2024 and to 5pm seven nights later from 2025 onwards; and
3.2.2.2.Where the holiday period is longer than two weeks, from the final Wednesday in the holiday block to 5pm on the following Saturday.
3.2.3. For all long summer holiday periods:
3.2.3.1.In the first week of the holiday period, from 9am on the first Saturday of the holiday period to 5pm the following Thursday in 2024/2025 and to 5pm the following Saturday from 2025/2026 onwards.
3.2.3.2.In the third week of the holiday period, from 9am on the third Saturday of the holiday period to 5pm the following Thursday in 2024/2025 and to 5pm the following Saturday from 2025/2026 onwards.
3.2.3.3.In the seventh/second last week of the holiday period, from 9am on the seventh Saturday of the holiday period to 5pm the following Thursday in 2025 and to 5pm the following Saturday from 2026 onwards.
And for the avoidance of doubt, Order 3.2.1 is suspended during the school holiday periods and resumes where it left off in the following term. Where the last day of school term is different for each of the children, then the later of the two days is taken to be the last day of school.
EVIDENCE
There is a large volume of evidence in chief tendered by each party which goes into great detail about the range of disputes that have occupied these parties over about 10 years. I will make reference to those matters which are relevant to the determinations that I am required to make and the matters dictated by legislation that I am required to have regard to. A trial judge is not expected to deal with every piece of evidence (see: Whisprun Pty Ltd v Dixon [2003] HCA 48); or grapple with every submission (see: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). I also bear in mind that each party is proposing orders that the children spend time with each parent. The hearing was conducted with very detailed cross examination of each parent and invitations being made in the submissions to make adverse findings about each parent. To the extent that it is possible I will avoid doing that bearing in mind what was said by Nygh J In the Marriage of Chandler (1981) FLC 91-008 at [1]:
1.It is a fundamental principle in this court that, where it is clear from the evidence that the relationship between the children and each of the parents is going to continue, the court should refrain from making any finding, unless absolutely necessary, which adversely reflects upon the self-esteem or integrity of each of the parties.
At the conclusion of the final hearing, the Court requested that the parties file a joint chronology for the assistance of the Court. It appears that the parties were unable to do that and instead the father filed a chronology which goes into great detail of events and incidents between the parties since 2007. Many of the events, including details of the tensions between the parties since the inception of the relationship, do not bear on the limited scope of the decisions that I am required to make.
The scope of the decision regarding spend time arrangements during the school term is summarised in the mother’s closing submissions as follows:
13.…Given the apparent agreement of both parents to adopt a structure of alternate weekends from at least Friday to Sunday and a dinner in the off week, in line with the Family Report writer’s recommendation, the question for the court is whether the addition of overnight time on Thursday and Sunday of the weekend and on the night in the off week is in the children’s best interests.
MATERIALS RELIED UPON
The father relied upon:
(1)Affidavit of Ms E filed 12 May 2024;
(2)Application in a Proceeding filed 3 May 2024;
(3)Affidavit of Dr M filed 21 March 2024;
(4)Amended [Application] filed 20 March 2024;
(5)Affidavit of Mr Kelly filed 20 March 2024;
(6)Affidavit of Ms F filed 20 March 2024; and
(7)Affidavit of Dr N filed 12 July 2022.
The mother relied upon:
(1)Affidavit of Ms E filed 12 May 2024;
(2)Affidavit of Ms P filed 9 May 2024;
(3)Affidavit of Dr C filed 30 April 2024;
(4)Further Amended Response filed 8 April 2024;
(5)Affidavit of Ms Hutchens filed 8 April 2024; and
(6)Affidavit of Dr O filed 11 July 2022.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
These proceedings were heard after 6 May 2024, so the amendments to the Act enacted by the Family Law Amendment Act 2023 (Cth) apply.
In deciding whether to make a particular parenting order in relation to the children, I must regard the best interests of X and Y as the paramount consideration.[4]
[4] Family Law Act 1975 (Cth) s 60CA.
Section 60CC(2) of the Act sets out the list of matters that the Court must consider in determining what is in the children's best interests.
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B). The objects of Part VII of the Family Law Act 1975 (“the Act”) are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child of 20 November 1989.[5] My decision is guided by those objects.
[5] Family Law Act 1975 (Cth) s 60B.
The Act confirms that safety includes safety from family violence, abuse, neglect or other harm.[6] Family violence and abuse are defined in the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.[7] Examples of such behaviour include assaults, repeated derogatory taunts, intentionally damaging property, unreasonably withholding financial support and preventing a family member from keeping connections with his or her family and friends.
[6] Family Law Act 1975 (Cth) s 60CC(2)(a).
[7] Family Law Act 1975 (Cth) s 4AB(1).
The Explanatory Memorandum indicates further that “other harm” allows me to consider whether these children are affected by issues such as inter-parental conflict.[8]
[8]Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 20 at [36].
“Safety” is not defined in the Act. I note that the Explanatory Memorandum to the Family Law Amendment Act 2023 states that s 60B(a) of the Act is “intended to make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child.”[9] It goes on to state that Courts should consider “what arrangements would encourage or support a removal, reduction or avoidance of harm”.[10]
[9] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 18 at [17].
[10] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 19 at [30].
In considering these matters I must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child; and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.[11]
[11] Family Law Act 1975 (Cth) s 60CC(2A)
Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.
CHILDREN’S BEST INTERESTS
Section 60CC(2)(a)
What arrangements would promote the safety of the child (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)
Section 60CC(2A)
In considering the matters set out in paragraph (2)(a) the Court must include consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child) and any family violence order that applies or has applied to the child or a member of the child’s family
The parties finally physically separated on 16 October 2020 when the father vacated the home. A number of the allegations of family violence between the parties occurred in 2019 when the parties were alleged by the mother to be separated under the one roof at a time of significant tension.
Each party describes a volatile and very unhappy household with each party alleging that they were being surveilled by way of filming and recording on phones and doing so after intentionally provoking a reaction that would then be recorded. There was a litany of aggravations and insults, such as the mother’s removal of parts of a piece of kitchen equipment so that it would not work for the husband and arguments about the use of whitegoods.
There was an incident in 2019 where the father says he threw an object in exasperation following an argument with the mother and where he accidentally hit a window but did so in the absence of the mother and the children. The mother says that he threw the object in her presence but not in the children’s presence although they saw the damaged glass panel of a door. I do not understand this to have had any impact on the children and I accept the father’s evidence that he did not intend to damage the glass door panel. The incident was raised by the mother as an example of the father’s lack of control.
The situation between the parties descended to a point that in 2019, the parties got into a physical argument. The father asserts at [57] of his trial affidavit that he was restraining the mother to prevent her from assaulting him and that she released the tension and his and her hand made contact with her. The mother asserts at [46][j] of her trial affidavit that the father assaulted her. Given the conflict of the accounts it is difficult to determine what had happened in what was an angry scuffle, however, I do not accept that if the father had deliberately assaulted the mother intending to do harm that she would not have made a report to the police and obtained an intervention order. I say this because both parties have sought intervention orders on the basis of what are objectively far more trivial grounds.
The experience of coping with the fact that each party actively disliked the other was not assisted by the effects of the covid lockdown where the mother was working at home and the evidence given by each party indicates that each of them used what means were in each of their control to aggravate and upset the other.
A matter that received particular attention occurred in 2020 when the father is said to have handled X roughly after returning from a walk. The father’s account is that he had been taking the children to the local park when X had walked onto a road without looking. The father was upset with the child and had cut short the walk and went home keeping his hand on the child and in his words “talking about child safety”. When they got back to the house, the father says that he still had his hand on the child when the mother opened the door and the child stumbled and fell into the house. The child said at the time that the father “threw him through the door”. The father denies doing this and apologised to the child. As with many parts of these parties’ lives, the child and the father’s reaction was recorded (noting it is alleged that both parties were regularly recording and photographing the other and events that occurred in the house). The recording was played to the Court. The mother says that she started recording the father and the children when she heard the father “screaming out in the street”. The mother also had the recording transcribed and that transcription was produced.[12] The recording reveals everyone in a heightened state including the parents. The father speaks to the child and rather than calming him down talks loudly “I hope you turn your brain on. I have asked you about a million times. You just piss people off”.
[12] Court Book (“CB”) 723.
The impression that I got from the recording is that the adults and the child were upset. The father had reacted to the child walking onto the street but that had carried into an overreaction. The father likely prodded the child through the door but had not intended for him to fall over or to hurt the child (noting that the mother produced photographs of bruising on the child as a result of the fall). I did not get the impression that the mother tried to calm things down and that her involvement was more directed at evidence gathering rather than calming the child or father down.
I note that at [157] of the Family report, Ms E states:
157.[X] remembered that his father used to often “lose it” when his parents were together. [X] would stay away at such times as it was “kind of scary” until his father calmed down. He said that his father “loses it less now” and could not recall the last time it occurred. He indicated that he is no longer scared when with his father. He remembered his father grabbing him […] and said that it “hurt a tiny bit” but could not recall his parents using physical discipline otherwise. He did not mention the time he sustained bruises when the father allegedly pushed him through the doorway, and he fell.
The fact that the child does not mention the incident when he recalled another incident does not diminish the importance of the evaluation of risk arising from any finding that the father was rough with the child, however, in this instance, it appears to not have impacted the child and he did not refer to any particular incident occurring since or when his father last “lost it”. I do not find that the father intended the child to fall over or to otherwise hurt the child.
There has been a plethora of intervention order proceedings brought by each party. These applications have been bought at various times for strategic purposes rather than because there was a genuine fear regarding the conduct of the other party or there being a necessity for the orders sought.
In 2021, the father made an application for an intervention order against the mother. The application for the intervention order has not been produced. He says at [98] of his trial affidavit that:
98.I made an application [in] 2021 for an intervention order against [Ms Hutchens]. At this stage I was very distressed that my time with the children appeared to be completely controlled by [Ms Hutchens]. The court declined to make an interim IVO, and my application was adjourned to [later in] 2021.
There is no evidence given by the father as to why an intervention order was the appropriate course rather than seeking orders in this Court to spend time with his children. The father accepts in his affidavit at [120] that he should have withdrawn the application sooner and properly focused on family law matters. Subsequently, an order was made for the father to pay the mother’s costs of this application and the various associated court hearings on a solicitor/ client basis (as opposed to the Court scale).
In 2021, the police filed an application for an intervention order against the father and an interim ex parte intervention order was made against the father with the mother and children named as protected persons. The application referred to incidents of family violence by the father alleged during the course of the relationship. The intervention order contained a term that the father not approach within a prescribed distance of the mother. The mother raised a complaint with the police that the father had allegedly breached the minimum distance when attending court.
In 2021, when the matter was listed for a mention in the Magistrates’ Court regarding the father’s application for an intervention order against the mother, the mother alleged that the father had breached the intervention order by coming within the minimum distance of her and her lawyers.
In 2022, an incident occurred whereby whilst spending time with the children, the father was driving on a freeway. Whilst he was driving, the father gives evidence that he heard Y unbuckle her seatbelt and he concedes that he verbally disciplined Y about the risks of unbuckling her seatbelt.[13] The mother says that when the children returned to her care that evening, X became distraught and told her what had occurred in the car, including comments made by the father “don’t tell your fucking mother or she will tell her fucking lawyers and the police, and I’ll go to jail.”[14] The mother also stated that when Y asked to spend overnight time with the father and she responded no, Y replied “Daddy says that’s how mummies get killed.”[15] The maternal grandmother gave evidence that maintained she heard the comments from Y and made a police report.
[13]Father’s Affidavit at [151].
[14]Mother’s Affidavit at [53].
[15]Mother’s Affidavit at [55].
In 2022, the mother reported this to Victoria Police and later in 2022, the father says that he received a text from Suburb L Police Station and he was subsequently informed that the mother alleged that he had breached the intervention order. The police did not press charges against the father as the mother says she declined to allow them to interview Y, however, the father was charged with a breach of the intervention order in relation to an unrelated email he had sent.[16]
[16]Mother’s Affidavit at [56].
In relation to the incident on the freeway and the comments by Y, the father denies making the comment repeated by Y and he agrees that it was a not good idea to discipline the children on the freeway in that manner. If the mother had been concerned that the father made that comment, she would have stopped the father’s time with the child immediately and that did not occur.
In any case, it does not feature in the submissions made by the mother in any detail and I do not accept that the father suggested that he was ever going to hurt the mother, either to the children or otherwise.
As to the father being charged with a breach of an intervention order, in 2021, the father sent the mother an email asking her not to leave possessions in the driveway when she dropped the children off to the father’s house.[17] That charge was defended, and the father was found not guilty of breaching the intervention order as it was held that the sending of the email fell within the permitted family law order exceptions. A costs order of over $30,000 was made in the father’s favour by the magistrate.
[17]Father’s Affidavit at [150].
There was a side issue which had developed between the mother and the father’s partner, Ms F. In 2021 at a changeover, the father gave a copy of Ms F’s business card to the mother. The mother took grave offence to this.
At [317] of her trial affidavit the mother gave the following evidence of her response to being handed that business card:
317.As to [Ms F]’s business card, [Mr Kelly] gave this to me [in] 2021, when [Mr Kelly] brought [X] home, [Mr Kelly] held her business card for [Q Ltd] out for me to take. [Mr Kelly] was holding out her business card, and he said, “you really should talk to [Ms F]”, and “they have a gig that might interest you.” I said, “I am not mixing this and work.” By “this”, in context, I was referring to the family law situation. [Mr Kelly] again referred to “a gig” and I said words to the effect of, “What kind of a gig?” [Mr Kelly] said “A [work] gig.” [Mr Kelly] said, “You know [Q Ltd] are one of your [employer]’s biggest clients.” I took the business card to bring the encounter to an end. [Mr Kelly] knew that I do not work in [a specific field]. Further, it is wholly implausible that if a […] group like [Q Ltd] had a [work opportunity] that an appropriate channel of communication […] would be via the boyfriend of a person [Ms F]’s position in [Q Ltd], to a [professional], who is the former spouse of said boyfriend, rather than the ordinary, orthodox channels of communication. I consider that [Mr Kelly] manufactured this conversation to threaten and intimidate me. He manufactured an opportunity to make the point that [Q Ltd], [Ms F]’s employer, is “one of [my employer]’s biggest clients”, and thereby impliedly threatened to damage my standing and/or that of her [work], with a client. I reported this incident to my [employer].
In 2021, the mother made a police report regarding the business card. It was around this time that the mother suspended the child’s time with the father until later in 2021.
In his evidence, the father denied any ulterior motive in passing on the business card and he saw it as an ‘olive branch’.
In 2021, the mother was advised that Ms F was expecting a child and the child would be born that year. The father’s and Ms F’s son was born in late 2021. Also in 2021, Ms F received a letter from the mother’s solicitors in relation to the business card that was handed to the mother earlier in 2021 and a post made by Ms F online in 2021.[18] The letter makes extremely serious allegations against Ms F alleging that she had given the father “one of [her] deleted business cards to support him in his threatening and intimidating behaviour”.
[18] Exhibit A4
The letter goes on to state that Ms F made a post online for the purposes of intimidating the mother and to undermine the mother’s professional reputation with her professional colleagues and clients.
The letter threatens legal proceedings against Ms F in the most strident terms and threatens to involve her employer. The letter states relevantly:
Our client considers your behaviour to warrant a Personal Safety Intervention Order for the protection of our client and/or an order against you as an additional respondent (when Victoria police seek a final intervention order against the father) […]. To the extent that you continue to act in the above manner or similar, our client will be forced to consider the options available to address your behaviour.
…
Our client puts you on notice that legal proceedings involving our client and [the father] are on foot and by reason of your behaviour, legal proceedings against you are now reasonably anticipated. It is an offence to delete or destroy such documents.
We recommend you seek independent legal advice in relation to the contents of this letter.
Our client instructs that she regrets the need to send this letter, but stresses to you that her distress from your behaviour is genuine and deeply felt. Our client instructs that she wishes you well […] following the arrival of your first child, and hopes that in future, you and our client may work cooperatively to help facilitate close and loving connections between your child and our client’s children as siblings.
The receipt of that letter would have been understandably grossly offensive and intimidating to Ms F and the father. If the behaviour of Ms F was so concerning to the mother, it begs the question as to why she did not raise that concern with Ms F in early 2021 rather than waiting until after Ms F gave birth in late 2021 and was dealing with a very young baby. Further, if the conduct of Ms F in 2021 was so impactful on the mother’s relationship with her professional cohort and clients why did she not act earlier in order to protect her position. Ms F gave evidence that at the time of receiving that letter her son was in his infancy and that she felt very intimidated and frightened. As a result of this, she started experiencing difficulty producing quality breastmilk and had to transition the child to bottle feeding. That feeling was entirely understandable.
In the course of the cross examination of Ms F, it was not put to her by senior counsel that she had instructed the father to make the comments attributed to her in the correspondence or that she was aware at the time that she had made those comments. I accept Ms F’s evidence that she had no intention of interfering with the mother’s professional connections whether as a result of the father passing on her business card or by any post online.
Ms F gives evidence at [57] of her affidavit that she applied for and was granted an intervention order against the mother in 2022. The intervention order also named her child as a protected person.
At the urging of both parties, the Court was subjected to the evidence of a video recording of an interview which was conducted at the father’s home with Victoria Police in 2022. Ms F was present with her young baby. This interview was conducted in relation to an alleged breach of the intervention order by the father in sending a communication to the mother regarding her leaving items on the driveway of his house. The father is shown being spoken to by a police officer raising the issue of his communication. Ms F is shown holding her young child. The video showed two people who were entirely exasperated and exhausted by the process of the dispute.
It was put that the recording showed Ms F making comments that she would breach orders of the Court. I do not accept this to be the case. It was plain that the Ms F was expressing her frustration and if she had a genuine intention to breach orders, she would not have declared this to the police. Ms F was required to watch the recording of the interview while she sat in the witness box to give evidence. She sat with her head bowed and with fingers in her ears in a state of deep distress.
Following Ms F obtaining an intervention order in 2022, the mother made an application later that year for revocation of Ms F’s intervention order against the mother. Again in 2022, the mother filed an application in the Magistrates’ Court for a Personal Safety Intervention Order (“PSIO”) against Ms F. The matter of these cross applications was mentioned before the Magistrates’ Court that year and the mother’s application for an interim PSIO against Ms F was refused. At a further Magistrates’ Court mention of the PSIO cross applications, the mother’s application for an interim PSIO against Ms F was refused. Later in 2022, the mother and Ms F withdrew their respective PSIO applications.
I set out this history as it demonstrates how entrenched and hard fought this matter has been. No final submission was made that Ms F is a risk to the children and in any case the evidence does not support a finding that she is.
The history of intervention orders between the father and mother is equally complex and considerable time was spent in cross examination of both the mother and the father in relation to their pursuit of these matters even apparently to their own detriment.
The behaviours of each of the father and the mother must be viewed against the conflict and stress created by these types of proceedings and, at times, the responses of each of them which reflect poorly have to be viewed through that prism.
It is the case that there has been significant tension between the parties and that has manifested itself in a lot of conflictual behaviour, some of which is petty and some of concern, in particular, where the parties became physically violent towards one another when they lived together. Both parties have engaged in conduct through legal proceedings in the Magistrates’ Court directed to one another and towards Ms F which could be described as vexatious and to cause distress. The costs orders made in the Magistrates’ Court against each party reflect this.
Such conduct must be viewed against the orders that are being sought and the relatively narrow dispute that now remains in relation to spend time arrangements and parental responsibility.
I have set out the matters of significance as to allegations that have been made in relation to family violence that occurred prior to separation and the claims and counterclaims surrounding the various intervention orders that have been applied for and obtained.
Section 60CC(2)(b)
Any views expressed by the children
The children have both expressed a strong interest and pleasure in spending time with both parents as set out above.
Section 60CC(2)(c)
The developmental, psychological, emotional and cultural needs of the children
X has received a diagnosis of ADHD which is set out in a report by Dr C dated 2021. X will require medication to manage his symptoms. The orders made reflect this.
Otherwise, there are no particular developmental, psychological, emotional needs of the children identified by the parties or in the Family Report.
The father must be mindful of the needs of his child with ADHD and consider the best approach in allocating tasks, giving instructions and admonishment where necessary. He should consult with the paediatrician if he is frustrated or confused regarding the best approach.
Section 60CC(2)(d)
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
In terms of the capacity of each of the parents who both propose to have parental responsibility for the children, at trial it was not submitted that either party lacked the capacity to have parental responsibility. Whilst there has been a lot of time spent in competing opinions as between Dr N and Dr O considering whether the father has any diagnosable mental health conditions, those matters were surveyed by Ms E at [124]-[135 ] of the Family Report. Ms E concluded at [134] that the father does not present with a diagnosable psychiatric disorder according to the DSM-5-TR although he does have certain symptoms.
The father presented as defensive when giving evidence and was very focused on trying to outpace counsel who was conducting the cross examination and attempted to have the last word. None of those qualities are unusual in people giving evidence in these types of proceedings, although, these qualities were somewhat exaggerated in the father. The orders proposed by the father make provision for him to engage with a psychologist on a regular basis over a six-month period and the Court makes those orders. The mother proposed that he engage with a psychologist over a 12-month period and provide the psychologist with the reports from the psychiatrists who have assessed him in these proceedings. The substance of those reports are summarised in the long report from Ms E and in my view that report is sufficient for the purpose of providing an objective outline for the purposes of assisting the psychologist. I also accept that 6 months is sufficient time for the father to obtain assistance.
The mother submits that given the conflict between the parties she have sole parental responsibility subject to consultation pursuant to s 61CA of the Act. She points to the father’s attitude in relation to dealing with the children’s health and schooling.
The mother is concerned regarding the father’s response to X’s treating paediatrician, Dr C. Dr C’s affidavit sets out three reports that he has prepared where he provides answers to questions in relation to his treatment of X for ADHD since 2022. In a report dated 2021, Dr C sets out the times that he saw X both in person and by telehealth up to that date. He states that he spoke with the father by telephone in 2021 for over an hour and had detailed email communications with the father over a period of months in 2021. He stated that he repeatedly asked the father to attend an appointment with him in person in order to take a direct history of X from the father and to discuss the complex issues which apply and answer any questions or concerns that he might have. The father declined those invitations.
In that same report, Dr C expressed the view that there was little doubt that X presents with specific symptoms and that this has been a fundamental factor in the problems he has encountered over the last three or so years. He also made reference to other factors which were likely to have contributed to the problems including his parents’ separation and parental conflict over earlier years. Dr C did not attach the diagnostic label ADHD and explained his reasons for not doing so at length, however, he did say that if X underwent a more specific assessment for ADHD, that most or all other assessing clinicians would conclude that his presentation meets the criteria for ADHD.
Further in his report, Dr C sets out the substance of exchanges between him and the father in early 2021 where the father is pressing him as to whether or not X has been diagnosed with ADHD and in doing so seems to have not engaged with the reasoning provided by Dr C for not applying that label. In a second email from the father in 2021, the father stated:
As you will also be aware an independent children's lawyer has (invoking the coercive powers of the court) the ability to, among other things, examine medical records. It will therefore speed up the process if you can provide [X]'s medical records to my lawyer now (you will in the ordinary course have to provide them to the independent children's lawyer, my lawyer and [Ms Hutchens]' lawyer - should she appoint one at some stage).
Lastly, given you strongly recommend an independent children's lawyer be appointed, I also assume you will also contact your insurers and that they may appoint counsel for you. Could you also please advise [Mr R] (and [Ms Hutchens]) in those circumstances at your earliest convenience. This will streamline communications.
Dr C sought clarification from the father as to what he meant by those remarks and in particular if he was alleging medical negligence. He noted in that report that he had not received any further communication from the father since early 2021 and he had received no indication that he was willing to attend a consultation or engage in any meaningful discussion of any sort with the doctor.
Arising from that exchange and the father’s lack of engagement with the doctor, the mother raises concerns that the father is either unwilling or unable to cooperate in matters of the children’s health. The father at [270]–[271] of his trial affidavit states:
270.My concern was that [Dr C] had not been provided all relevant information to form his view about [X]. He was clear in his communications that there is a link between home environment and behaviour.
271.I am not hostile towards [Dr C]. I have since met with [Dr C] in person to discuss [X] and I have no difficulty with accepting [Dr C]’s views or with administering [X]’s prescribed medication.
That evidence was disparaged as a last minute and insincere purported epiphany which did not reflect the father’s true position at the time, being one of entrenched opposition and scepticism about the diagnosis of Dr C of X having ADHD, however it was described.
The father acted very poorly in making a threat of litigation against the paediatrician, and whilst there was some confusion in the hearing about the words the father spoke in the witness box, I accept that in response to a question from the Court about his letter to the doctor, he said that he would not do that again as it clearly had not worked when he did. The letter was written at a time of great stress, the father was concerned about the child being prescribed medication for a condition where there was uncertainty regarding the diagnosis. The doctor’s responses to the question as to whether or not the child was diagnosed with that condition were discursive (as they are in the Report referred to above) and the exchanges with Dr C form part of the conflicts between the parties. It is apparent that Dr C has become involved in the conflict as between the parents in a way that is far greater than one would ordinarily see from a medical specialist and where he has commented on matters unrelated to the treatment of the child and this was the subject of comment by Ms E at [189] of the Family Report.
The father has subsequently attended a course to assist parents with children with ADHD.
There have been tensions between the parents in relation to the child Y changing schools but that no longer seems to be an issue. X is settled in his schooling and there are no issues in relation to him attending the school he is currently enrolled in.
Section 60CC(2)(e)
The benefit to the children of being able to have a relationship with the children’s parents, and other people who are significant to the child, where it is safe to do so
It is agreed between the parties that the children benefit from having a meaningful relationship with each of them. The Family Report writer set out extensively in her Report, and which has been set out above, the positive interactions between the children and the parties. Both these parents have real strengths with varied interests. They are well educated and have an opportunity to nurture talented children if they choose to focus on that.
I agree with the evidence of Ms E that it would be in the best interests of the children to spend time travelling with the father, Ms F, their step sibling and other family for a trip to City B in 2024 for the father’s and Ms F’s wedding. Ms E gave evidence that in her opinion, it would be tragic if the children were not able to go on that holiday. Whilst I do not adopt that language, I do agree that this will be an important and enjoyable family occasion for the children. The mother enjoys time with the children and her family in Town S in the holidays for extended periods and it is important for the children to enjoy this holiday after what must have been a difficult period since the separation of their parents.
The orders make provision for the mother to spend more extended time with the children in Town S (or wherever she chooses) over the long summer holidays as is her annual tradition to spend time with the extended family. It was put to the mother during cross-examination about make up time for the father with the children in circumstances where he will essentially lose a week of spend time during the long summer holidays to accommodate for the mother’s travel. This was raised by senior counsel for the mother during closing submissions where he said that the mother accepted in cross examination that she was open to the father having make up time in the September (Term 3) school holidays and that this a preferred alternative to other possible orders that the Court may consider:
Mr Puckey KC The other solution in September is an order your Honour can make. It would be based on a concession that was put to my client and accepted in the witness box and it would solve the problem.
I will adopt this proposal allowing the mother extended time in the long summer holidays to facilitate the children spending time with the extended family and in return the father will have the entirety of the two weeks of the Term 3 school holidays which will accommodate him for the one week he would lose in the long summer holidays.
Section 60CC(2)(f)
Anything else that is relevant to the particular circumstances of the children
There was nothing further relevant to the circumstances of the children that was raised by either party.
Parental Responsibility
Section 61C of the Act provides that:
1.Each of the parents of a child who is not 18 has parental responsibility for the child.
2.Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or remarrying.
3.Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
The difference between the proposals in relation to family responsibility is that the mother seeks an order that she be able to make a final decision on long-term issues in relation to the children after consultation with the father and making a genuine effort to come to a joint decision.
The father opposes that order on the basis that he has the capacity to make decisions about the long-term issues that may affect the children. The mother points to the father’s conflict with Dr C and the initial conflict that arose over a change of schools. The father has given evidence that he accepts that X has been diagnosed with ADHD (or to adopt Dr C’s explanation) that he has symptoms that most medical experts would identify as those which would meet the diagnostic descriptions of ADHD and is able to administer medication.
The issue in relation to schooling has passed and I do not accept that the parents are unable to make joint decisions about long-term issues affecting the children. The Family Report writer expressed the opinion that parental responsibility should be equally shared at [193] of her Report in the following terms:
193.The mother and father both present as competent and confident parents with a strong bond with the children. The quality of the father’s interaction with the children was superior to that of the mother during both family report evaluations. The mother was not observed to be fearful of the father and it is she who has been in a position of power, controlling arrangements since separating. The children are seeking increased time with their father, and it is difficult to understand why overnight time has not professed to date, except on a single occasion. In line with the children’s wishes, the assessor believes that the children should be spending substantive time with the father, and that the power imbalance should be rectified with parental responsibility being equally shared.
In her evidence before the Court, the mother states that following the conclusion of these proceedings that the dynamic between the parties will be vastly different and by that I took that to mean that she thought that the dynamic would improve. Both parents are going to have to undergo reflection.
The Family Report writer referred to the parents adopting a parallel parenting approach with neither parent interfering with the other parent’s time with the children and with both parents making long terms decisions.
I agree that it is appropriate that each parent should have parental responsibility and the parents are to comply with s 61CA of the Act and are encouraged to consult with each other about major long term decisions in relation to the children and to have regard to the best interests of the children as a paramount consideration.
In making the order, the Court has regard to the expressions of good will that were present in the proceedings including the father’s acknowledgement in the course of his evidence of the mother’s skills as a parent. I also note the comment made on the mother’s instructions in the letter to Ms F which provided a sense of a wish to work cooperatively. Given that comment I assume that both parents will be able to parent in the best interests of their children and exercise joint parental responsibility for the children.
CONCLUSION
In making orders, the best interests of the children would be served by the children spending significant time with each parent, including during holidays, and to that end the orders proposed by the father in relation to spend time arrangement address the best interests of the children. It was put to Ms E by senior counsel for the mother that the children have a good relationship with the father notwithstanding the lack of overnight time with him and significant gaps in spending time with him in the three and a half years since separation. On that basis it was put that the limited time of four nights per fortnight with time spent on weekends is sufficient. Ms E disagreed and said that this was not sufficient time to maintain a relationship and that the children’s emotional and developmental needs were such that they needed to spend more time with the father and that the additional time would support the needs and wishes expressed by the children to spend more time with the father and their best interests. I agree with Ms E in that regard. Once these parents remove themselves from this ligation and give themselves and the other parent the opportunity to spend time with the children without the spectre of ongoing proceedings influencing conduct and making the children feel that they are the ‘meat in the sandwich’, then it will be better for the children and the parents. I do not agree with the proposals put by the mother that these children need a more extended period over which their time with the father increases.
The father sought and Ms E recommended orders for the mother to immediately stop co‑sleeping with Y. In her oral evidence the mother said that she had taken steps to stop this happening but at the date of hearing she was continuing to co-sleep with the child. I accept the mother’s evidence that she intends to stop co-sleeping with the child.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 1 October 2024
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