Laing & Raimondo
[2024] FedCFamC2F 637
•24 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laing & Raimondo [2024] FedCFamC2F 637
File number: CSC 39 of 2023 Judgment of: JUDGE BROWN Date of judgment: 24 May 2024 Catchwords: FAMILY LAW – Parenting – final hearing – care arrangements for the parties one child aged 11 years old – parties separated in 2014 – high conflict co-parenting relationship – deficits in communication – following separation the mother and child spent two years in the UK with the mother’s family – where the child lives with the mother – where the father works two weeks on two weeks off roster – where the child is experiencing reluctance to spend overnight time with the father – how parental responsibility is to be allocated – best interests of the child – emotional needs of the child Legislation: Australian Passports Act 2005 (Cth)
Child Support (Assessment) Act 1989 (Cth) s 4
Child Support (Registration & Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth) Pt VII, ss 4, 60CA, 60CC, 61B, 61CA, 61D, 61DAA, 61DAB, 64B, 65AA, 65C, 65D
Cases cited: Eden & Eden-Proust [2011] FamCAFC 138
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Re G: (Children’s Schooling) (2000) FLC 93-025
Division: Division 2 Family Law Number of paragraphs: 174 Date of hearing: 20 May 2024 Place: Cairns Applicant: Appeared in person Respondent: Appeared in person ORDERS
CSC 39 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LAING
Applicant
AND: MR RAIMONDO
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
24 MAY 2024
UPON NOTING the applicant mother will continue to encourage the child to consider spending overnight time with the respondent father
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The child of the relationship X born in 2013 (hereinafter referred as “the child”) live with MS LAING (hereinafter referred to as “the mother”).
3.The child remained domiciled in the Commonwealth of Australia notwithstanding any temporary absences from Australia for the purposes of holidays as authorised pursuant to order 11 hereof.
4.The mother is conferred with sole parental responsibility for the child pursuant to this order subject to the condition that she shall notify MR RAIMONDO (hereinafter referred to as “the father”) of all major long-term decisions required to be made in respect of the child twenty-eight (28) days prior to the date by which the relevant decision is required to be made other than in cases of medical emergency in which case the notification is to be forthwith and thereafter use her best endeavours to secure the father’s view about the relevant major long-term decision required to be made.
5.The child spend time with the father, at any time as agreed by both parents in writing which may be in electronic form by email or text message or such other electronic means including WhatsApp or other parenting app as may be agreed between the parties from time to time.
6.The father provide is to provide the mother, seven (7) days’ notice of his intention to spend time with the child.
7.The mother consider and facilitate any reasonable request, by the father to spend time with the child.
8.The mother use her best endeavours to facilitate the child spending time with the father and/or the paternal family at times to be agreed as follows:
(a)On Christmas Day in even numbered years commencing in 2024;
(b)On Christmas Eve in odd numbered years commencing in 2025;
(c)On the Child's birthday;
(d)On Father's Day;
(e)On any other important family occasion concerning the paternal family, as advised by the father to the mother, providing fourteen (14) days’ notice has been provided to the mother.
9.The mother use her best endeavours to facilitate telephone contact between the child and the father, where reasonably requested by the father.
Handovers
10.Wherever possible, handovers will either occur at the child's school or at the child's extracurricular school at the cessation of the child's classes NOTING that if neither of these locations are available, handovers will occur with the parent who has the child in their care delivering and or returning the child to the residence of the other parent.
Overseas travel:
11.The mother be permitted to travel outside the Commonwealth of Australia with the child in accordance with the terms of these orders NOTING THAT she is to provide the father with three (3) months’ notice of her intention to do so, unless in circumstances of emergency, requiring the mother and child to travel overseas at short notice to attend to an urgent situation concerning the maternal family overseas.
12.Any application and/or renewal of the child’s passport is to be made at the mother’s sole expense.
13.That the requirement for the permission and/or consent of the father to the issue of the child’s passport be dispensed with.
14.Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) the Australian Passport Office of the Department of Foreign Affairs and Trade issue a passport in the name of the child upon the filing of the appropriate completed application form exhibiting the permission of the mother.
Communication
15.The parties will communicate with each other via email or text message, except in the case of an emergency where they will communicate via mobile phone with the parties to ensure that such communication is strictly related to the child and associated issues.
16.The parties keep each other informed of, and notify the other parent in writing, within 48 hours of any change to their residential address, phone number or email.
17.Should a medical emergency arise in relation to the said child whilst the said child is in the care of either of her parents then the parent concerned shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and an address of any treating medical practitioner and hospital attended by the child and the location of the child.
Authorities given by these orders
18.Each parent shall have the right to obtain copies of the said child’s school, academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and such information pertaining to the child’s school and school related sports activities.
19.Each parent shall have the right to communicate with and obtain any information concerning the said child’s physical and mental health and welfare direct from any medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker.
Education
20.The child shall continue to be enrolled at B School for the duration of her primary education; unless otherwise agreed by the parents in writing.
21.For the purposes of the child's secondary school enrolment, an 'out of catchment' application is to be submitted on behalf of the child to D School.
22.The father sign the required documentation for the child's school enrolment within seven (7) days of being provided such documentation by the mother.
23.The requirement for the father to sign the child's school enrolment forms be dispensed with in the event he does not sign the required documentation within the time frame set out in these orders.
Injunctions
24.The parties are restrained and injunctions are hereby granted restraining them from:
(a)changing the child’s name from X.
(b)abusing, denigrating or rebuking the other parent in the presence or hearing of the child or from permitting any other person so to do;
(c)discussing these proceedings with or in the presence of the child;
(d)questioning the child about the other parent’s personal life;
(e)requesting the child deliver messages concerning changes in care arrangements, decisions to be made between the parents, or requests for resources or information.
25.All extant applications be dismissed and the matter is finalised.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The parties to these proceedings are Ms Laing (“the mother”) and Mr Raimondo (“the father”). They are the parents of X born in 2013.
This is a parenting case. The parties agree that that X should continue to live with her mother and remain domiciled in Australia. Domicile is a technical legal term, which is best explained as being a person’s permanent home or place of abode.
The parties have also ostensibly agreed (in my view far from consensually) that X will spend time with her father at times to be agreed upon by them on Mr Raimondo giving seven days’ notice of intention in this regard to Ms Laing.
The reason I have reached the conclusion that this agreement about time spending is far from consensual, stems from the fact that Ms Laing regards Mr Raimondo as incapable of committing to a fixed regime of regular time with X and has frequently let both her and X down in this regard.
It is the father’s perspective that, in order to maintain a relationship with X, he must be beholden to what Ms Laing dictates to him. He characterises Ms Laing as being extraordinarily difficult to deal with and dictatorial in her attitude as to how he pursues his relationship with X. Needless to say, Ms Laing has the same view of Mr Raimondo. This dichotomy is at the heart of all the difficult controversies which arise in this case.
A number of complicated and emotionally laden issues seem to lie behind the extreme conflict between the parties, which are reflected in the current entrenched conflict between the parties. Some of these issues are long-standing and must be regarded as historical but continue to reverberate emotionally for the parties; others are more recent in their origins. These issues can be summarised as follows:
·The circumstances surrounding the mother and X living in the United Kingdom between late 2014 and late 2016;
·The currently poor relationship between the mother and the paternal grandmother, Ms C;
·The fact that the father’s past and current employment takes him away from the City E area for reasonably extended periods of time, on what is sometimes an irregular basis;
·The circumstances surrounding a change in X’s primary school enrolment from G School to B School in late 2022 and early 2023;
·Issues to do with the provision of financial support for X particularly in the context of her orthodontic needs and payment for extracurricular classes and related activities which she attends;
·In this context, X, as a consequence of her talents primarily with the F Centre, has been chosen to be part of a gifted global program. She attends classes up to five or six times a week;
·The father regards this level of commitment as being extreme and designed to restrict him from having an appropriate level of relationship with X. Necessarily, it would seem, he regards it as more of the mother’s priority than of X’s; and
·The failure of the parties to agree on a process to engage in mediation with one another and whether it would be helpful for X to engage in some form of therapy, in the context of the longstanding dispute between her parents.
Around the time that the controversy surrounding which school X should attend, in late 2022, the mother advised the father that X no-longer wished to spend overnight time with him because it was distressing to her (X).
To his credit, Mr Raimondo currently respects X’s wishes in this regard but remains suspicious of them. It is largely in this context that he has asserted, in his evidence to the court, that he must, under sufferance accept what Ms Laing offers to him vis-à-vis his time with X.
However, from other aspects of his evidence, it is apparent to me that he regards the current situation as being unfair to him and the paternal grandmother, whom he characterises as a person who has been closely involved in X’s life since she was a baby. On a number of occasions, Mr Raimondo indicated to me that he was prepared to walk away from X, until she was eighteen because he was over butting heads with Ms Laing.
For obvious reasons, these various factors seem to have added significantly to the level of conflict and suspicion arising between the parties and were matters investigated by a Child Court Expert, Ms J in a Child Impact Report released to the parties in March of 2023.
At this stage, Ms J reported that X had not seen her father for a few months, whilst the controversy about her attending at B School was apparently at its most extreme. This caused Ms J to be concerned that X may have internalised the conflict between her parents to her possible long term emotional detriment.
Certainly, the tenor of Ms J’s report was that the parties communicate poorly and have done so over many years. This has led X herself to be caught in a loyalty bind and to be enmeshed in the endemic conflict between her parents. In this context, Ms J opined as follows:
These types of co-parenting dynamics invariably affect children and their emotional wellbeing, behaviours and developmental trajectory. It is possible that [X] has internalised the current dispute and poor co-parenting relationship, which is being expressed as fear and separation anxiety. Long-term exposure to parental conflict and poor communication has the potential to have a detrimental impact on her own communication and sense of self that may present later in life.[1]
[1] See Child Impact Report dated 21 March 2023 at [35].
Accordingly, both historically and currently, the parties have an extraordinary degree of difficulty in communicating effectively, with one another, and making joint decisions in respect of arrangements for X’s care. There have been many such decisions in the past, in which ones regarding X living outside of Australia and which school she should attend have been the most extreme and problematic.
It also seems to be the case that the parties each agree that the conflict between them is not helpful to X emotionally but sadly, it seems to me, that they each feel powerless as to how to de-fuse this conflict. X herself, as she said to Ms J, feels like piggy in the middle between her parents. She expressed a sense of perplexity at her parents’ attitudes, going on to say I just keep reaching up to try and catch their thoughts and feelings. But I keep missing them.[2]
[2] See Child Impact Report dated 21 March 2023 at [15]
Sadly, X is well aware of the conflict between her parents. How could she not be. It has been the reality of her life, for as long as she can remember. Ms J captured the child’s dilemma, characterised by her obvious love for each of her parents and her dislike for the conflict between them, when she wrote as follows:
[X] finds it hard not to notice that her parents are not friends. It would mean a lot to her if they could be friend.
I would hope not to appear to be patronising or condescending the parties, with whom I have only engaged briefly in the context of the artificial environment of contested family law proceedings. However, if the parties are capable of taking anything from these reasons for judgment, I hope it is this: the only people who are capable of ameliorating their relationship, which realistically can never be based on friendship but hopefully could be become more business-like, practically orientated and child-focussed, are they themselves.
It is evident to me that the parties have quite different backgrounds, personal aspirations and temperaments. However, they agree one thing, which is that they are each stubborn and determined by disposition. In this context, the court is called upon to make a determination regarding how parental responsibility, for decision making, in respect of X, is to be allocated between them.
The emblematic issue of parental responsibility and how it should be allocated is the central legal dispute between the parties and from this issue all the other ancillary disputes between them run – some articulated others not – but all characterised by long-standing acrimony, suspicion and bitterness.
Essentially each of the parties portrays him/herself as the victim of the other’s self-centred and unreasonable behaviour, over many years. In evidentiary terms, this is the central issue for the court, namely who of the parties is more responsible for driving the conflict between them, which must be regarded as unacceptable so far as the service of X’s best interest is concerned.
The best outcome for X is axiomatically one in which her parents begin to communicate more effectively and parent more cooperatively. As the Full Court of the Family Court has remarked, the simple fact that a judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests.
Rather:
… what is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[3]
[3] See Zahawi & Rayne [2016] FamCAFC 90 at [47].
As I will detail in greater detail, as the judgment unfolds, there is no viable co-parenting relationship between Mr Raimondo and Ms Laing, and it is questionable whether one has ever existed. As a consequence, each party views the other’s motives and actions with mistrust. Regrettably, it is difficult to see that there any circuit breaker can be devised to break this sad state of affairs for X, who is obviously loved and cherished by each of her parents.
At its core, this case is about parental responsibility and whether it is likely to be in X’s best interests for the optimal arrangement for parental responsibility to be made, namely that the parties jointly and respectfully make decisions relating to X or whether the reality of the situation – both now and for the foreseeable future – renders such an outcome impractical, unworkable and indeed detrimental to X’s emotional well-being because of its potential to expose her to conflict.
If this latter option is found to be the optimal one for X, it in turn will be characterised by the obvious deficit that the parent who is deprived of parental responsibility will feel aggrieved and this of itself is likely to further drive the conflict between the parties in a continuing cycle of recrimination.
It is the mother’s case that the parties’ relationship is characterised by so many intractable differences that only one parent should be conferred with responsibility for making major long-term decisions for X and it should be her, given that X lives predominantly with her and she is more insightful and responsible parent.
In this context, she seeks the following orders:
·The mother have sole parental responsibility for X;
·The mother advise the father regarding any major decision in respect of X and in this context consider the father’s opinion.[4]
[4] See Case Outline of Ms Laing filed 14 May 2024.
Mr Raimondo does not agree with such a proposal, which he regards as tokenistic and exclusionary. It is his position that he should be consulted and kept informed about all significant issues to do with X so that he can have some input into the ultimate decision made, which can be consensual in nature. It is his case that in the past, the mother has actively excluded him from significant decisions in respect of X and he needs to be kept involved so proper decisions can be made about the child.
In this context, he seeks the following orders:
·The parties each have parental authority for X – by necessary implication of equal weight in respect of making decisions in respect of her;
·The mother advise the father of any major decisions in respect of X so that the parties (X’s parents) may come to an agreement together.[5]
[5] See Amended Response of Mr Raimondo filed 20 March 2024.
It is the mother’s case that there is no realistic prospect of the parties agreeing on anything significant to do with X because of the father’s long-standing ill-will and anger directed towards her. She asserts that, to utilise her terminology, the father will weaponize any capacity he has to take part in parental decision-making for X as a mechanism to coerce, bully and control her, which he has done so in the past.
In this context, it is her case that the father does not prioritise his relationship with X but puts his work, sporting and recreational needs before those of X. She asserts that he is incapable of committing to a fixed regime of spending time with X and frequently lets her down at the last minute. She asserts that if told of a major decision, he will, as a matter of course, adopt a contrary position or obfuscate and avoid it. Necessarily each of the parties characterises the other as incapable of feeling any degree of empathy for the situation or feelings of the other.
Essentially, Ms Laing characterises Mr Raimondo as an unreliable parent, who lacks parental insight, which has been most recently demonstrated by his threat to abandon X, until she is eighteen. In her view, such an attitude is obviously irresponsible and would be emotionally devastating for X, who loves her father.
Underpinning her position in the case is her assertion that she is the parent with the greater level of insight into the emotional and educational needs of X, which is most eloquently demonstrated by the fact that, notwithstanding the endemic conflict between her and Mr Raimondo, she has ensured X has maintained a level of relationship with her father.
On the other hand, it is Mr Raimondo’s case that the mother, up until this stage, has frequently acted unilaterally in respect of major issues to do with X and, as a consequence, he feels excluded and dictated to by Ms Laing. He characterises her as unreliable and manipulative and as a person who does not keep her word.
THE HEARING OF 20 MAY 2024
The issues arising before the court have occurred over many years. Both Ms Laing and Mr Raimondo presented as being worn out, both emotionally and financially. Both elected to appear on their own behalf before the court.
Ms Laing is a professional, who is employed by H Company in the CBD of City E. Accordingly, she is well versed in many of the concepts arising under the Family Law Act 1975, which is the legislation which the court must apply to resolve the various disputes between the parties. She had prepared her own lengthy and comprehensive court documents and presented as articulate and well-prepared.
Mr Raimondo has had a variety of jobs over the years but mainly he has worked as a labourer. His father has a business and he started working for his father, whilst still at school. He has also worked in the hospitality field, at various venues in and around City E.
Currently, he is employed as a labourer by K Pty Ltd, which operates out of Region L. He works fourteen days on/fourteen days off. It seems common ground between the parties that over the years he has been away with work for reasonably lengthy periods in the past. Although, as with everything to do with their relationship the parties disagree about the extent of this. It being the father’s position that he took up hospitality work, in City E, to enable him to be close to X.
Mr Raimondo was not as comfortable in the court room setting as Ms Laing and his documents were not as well-prepared. He complained that the court system was rigged against him because of his remote work and its failure to fix a hearing which fitted better with his work roster. Although he was polite to me, for which I am grateful, he presented as a person with a chip on his shoulder.
The catalyst for the current proceedings relates to the controversy surrounding X moving from G School to B School. Until 2022, Ms Laing and X lived in the suburbs of City E, close to G School.
Mr Raimondo has lived with his mother, in a house in Suburb M since at least 2014. X has a bedroom in the home. Mr Raimondo has another child from a subsequent relationship, which has also ended.
This child is N born in 2017. N lives with his mother and attends G School. It is agreed that X and N are close. In these circumstances it was Mr Raimondo’s view that it was contrary to X’s interests to attend a different school to her half-brother.
In mid-2022, Ms Laing purchased a home at Suburb O, which is in the suburbs of City E. It is her evidence that she had long aspired to buy her own home but could not afford to buy in the suburbs of City E.
X apparently finished out the school year of 2022 at G School, but a decision had to be made where she would go in 2023. It is Ms Laing’s evidence that it was difficult for her to continue to get X to school at G School, given her other work commitments.
It is evident that the parties did not have the capacity to resolve this issue. It is also apparent that Mr Raimondo, who was born and raised in City E in contrast to Ms Laing, who was born in the United Kingdom, has a dim view of schools in the suburbs of City E. As I will point out in greater detail, it is neither my function nor my areas of expertise to differentiate between different state funded schools.
It is Ms Laing’s evidence that she informed Mr Raimondo promptly of her new home soon after its acquisition and invited him to a formal process of mediation. Mr Raimondo proposed a number of professional mediators. Ms Laing proposed P Centre, which was unacceptable to Mr Raimondo and suggested another mediation service. He also indicated that he would be away for work.
What is apparent that although both parties, ostensibly at least, were open to mediating the school issue, such mediation did not occur, with each party blaming the other for this state of affairs. Things came to a head in late 2022, when Ms Laing wrote the following email:
This has been raised as an issue for over a year ago.
Your continued tactics to delay or avoid the discussion are negatively impacting [X]’s daily life. I will be moving forward with a school enrolment. I appreciate you are not happy with this decision and would prefer her to stay at [G School], however I am taking this decision in what I believe to be [X]’s best interests…[6]
[6] See Annexure 12 to affidavit of Ms Laing filed 23 January 2023.
In this context, Ms Laing enrolled X at B School in late 2022 and in the above correspondence informed the father to this effect. It is her case that the father unilaterally unenrolled the child in the few days before the school year was due to commence in January 2023, leaving her without a place at school.
Needless to say, it is Mr Raimondo’s perception that his views went unregarded and, once again, Ms Laing got her own way. It is apparent from Ms J’s report that this conflict had a negative effect on X herself. Whilst Ms Laing regards what she would characterise as the father’s obfuscation and denial about the issue a prime example of his passive resistance to being engaged in a constructive way, with her, about issues to do with X.
In these unhappy circumstances, the mother commenced the current proceedings on 23 January 2023 so that there could be clarity about the issue. She prepared her own application, which centred solely on the school issue. She also sought a formal order for mediation.
The father consulted a solicitor in regard to this application. He filed his response on 3 February 2023. On an interim basis, the father did not oppose the mother’s application that X should remain at B School, regarding the decision to be a fait accompli, which had been made without any proper level of discussion between the parties. However, he did seek an urgent Child Impact Report to provide expert input into the issue. On a final basis, he sought that X return to G School.
He filed an affidavit in which he set out his view of the parties’ relationship, to which he annexed one document only, which is dated 1 August 2014 and described as an agreement between the parties relating to X leaving Australia with her mother. It is my finding that this agreement and Mr Raimondo’s perception that Ms Laing breached it, with no concomitant sanction, has totemic significance for the father. The mother seems to agree. It is the effect of her evidence that Mr Raimondo is fixated with what happened and is incapable of moving on from it in a constructive and child-focussed manner.
It is common ground between the parties that mediation occurred between the parties in late 2018, which resulted in them agreeing to a parenting plan for X’s care. This plan envisaged X spending time with her father, on fortnightly basis, of five nights, with handovers to occur at school. The arrangement was envisaged to continue in school holidays and arrangements were made to share Christmas.
Significantly, the plan envisaged Ms Laing being able to travel to the UK, with X, on one occasion every two years, provided notice was given. The father deposed that, until recently the plan had worked reasonably well. The mother does not agree asserting that the father did not follow it in good faith. Certainly, it is my perception that the school issue ended any previous viability which the plan had.
In his professionally prepared response, the orders sought by Mr Raimondo were directed towards formalising the parenting plan and adding to its provisions with greater specificity. He sought specific orders for Father’s Day and Mother’s Day and an extension of Christmas arrangements.
Ultimately, the parties’ competing interim applications, particularly in regard to which school X should attend, came before a Senior Judicial Registrar on 22 March 2023. At this stage, a consent order was made which granted the parties equal shared parental responsibility for X and directed that she remain enrolled at B School. As will be indicated in due course, this phraseology is now redundant, given recent amendments to the Family Law Act.
In the interim, it was agreed that X would spend time with her father, as agreed between her parents in writing, but failing agreement, during school holidays, for up to 11 hours on up to three days, in alternate seven-day blocks, as well as during the day on her birthday.
Other issues were not agreed between the parties. In this context, the Senior Judicial Registrar ordered that X should spend time with her father, during school terms, as follows:
·From after school until 8.00pm on Friday each week;
·From the conclusion of X’s extracurricular classes until 8.00pm on Saturday, or from 9.00am to 8.00pm, if she did not have a class; and
·From 9.00am until 12.00pm each alternate Sunday.
These orders were made in light of the Child Impact Report of Ms J. In this context, it was ordered that both parties should do all things necessary to facilitate X attending upon a suitably qualified therapist, who had the capacity to facilitate reunification counselling/therapy. In this context, Mr Raimondo was to provide to Ms Laing the names of three therapists of which she was to select one.
The parties were also ordered to attend a court-based process of mediation. It is common ground between the parties that the ordered therapy did not occur and neither did the court‑based mediation. In his evidence to the court, the father indicated to me that he did not think that the therapy ordered by the court would be helpful, as he did not need to be reunified with X. It was clear to me that he considered the concept of such therapy deeply offensive.
From the mother’s perspective, the father’s opposition to the therapy, which in her view was clearly inappropriate, given the contents of Ms J’s Child Impact Report, is further evidence of the father’s lack of child focus and difficulty in being able to differentiate his emotional needs from those of X.
After these orders were made, it is evident that Mr Raimondo started to act on his behalf. In his evidence to me, he indicated his dissatisfaction with the outcome of the interim proceedings, which had been very expensive for him. It is my perception that this was yet again another factor, which has driven the on-going acrimony between the parties.
During the course of the subsequent proceedings, the mother has continued to represent herself and has filed two amended applications, which set out the final orders, which she seeks in respect of X. These orders can be summarised as follows:
·She have sole parental responsibility for X provided she informs the father of any major decision required to be made and, as previously indicated, considers the father’s opinion;
·The child live with her;
·The child remain domiciled in Australia;
·The father spend time with X, at any time as agreed by both parents in writing;
·She use her best endeavours to facilitate X spending the following special occasions with the father and X’s paternal family:
·Christmas Day in even numbered years;
·Christmas Eve in odd numbered years;
·Her (X’s) birthday;
·Father’s Day;
·Any other occasions of special significance to the father’s family provided 14 days notice is provided.
·The mother again use her best endeavours to facilitate phone contact between X and the father, on the latter’s request, on the giving of 24 hours notice;
·Changeovers to occur at X’s school or extracurricular activities or when such locations are not available, at one or other of the parent’s residences;
·The mother be permitted to travel overseas with X without the father’s consent provided she gives three months written notice of such travel other than in circumstances of emergency relating to her family overseas;
·Any requirement for the father to execute passport documents for X be dispensed with;
·The parties keep the other informed of their residential addresses, phone numbers and/or emails;
·The parties contact the other in the event that the child becomes ill or is hospitalised or suffers an accident;
·The parties communicate electronically via text message or email other than in an emergency, when communication would be permitted via mobile telephone;
·Each party is authorised to obtain information from X’s school and any medical or allied health professional;
·The child continue to attend B School for her primary education and an enrolment be attempted for her at D School for her secondary education;
·The parties not denigrate the other in the presence or hearing of the child or discuss these proceedings with her or permit any other person to do so.
Underpinning these various orders, is the mother’s submission that, in extraordinarily difficult circumstances, which have lasted for very many years, she has ensured that X has maintained a relationship with her father. It is her further submission that these orders represent the best possible outcome for X given that she (Ms Laing) is, in effect, undertaking to both the court and the father, that she will accommodate any reasonable request, from Mr Raimondo, to spend time with X and thus ensure the child will maintain a meaningful level of relationship with him. To her credit, she does not dispute that X loves her father and is also emotionally close to her half-sibling, N.
Shortly after the interim orders were made in the case, another significant controversy arose between the parties, which related to Ms Laing’s desire to take X to Country Q, in mid-2023, for what was described as a family celebration. Mr Raimondo had declined to sign the necessary passport application. As noted above, given X’s absence from Australia, between 2014 and 2016, this issue was a highly controversial and emotional one from his perspective.
Ultimately, this application was listed before Judge Firth, on 14 June 2023. Mr Raimondo personally filed two brief affidavits setting out his opposition to the proposed trip. It is my apprehension that he has filed no further detailed affidavits, in the proceedings, in the period since.
The decision of the court, in respect of the proposed travel to Country Q, was to approve the trip, which was scheduled to take place in late 2023. The mother was not required to obtain Mr Raimondo’s consent for the travel and pursuant to the relevant provision of the Australian Passports Act 2005 (Cth)¸ it was not necessary for Mr Raimondo to sign the necessary passport application for X.
Ms Laing was ordered to deposit the sum of $5,000.00, with the court, as security to ensure her return to this country – a sum which Mr Raimondo characterised as woefully inadequate. In these circumstances, on 14 August 2023, Mr Raimondo filed an application seeking to increase the security.
His application was listed before the court on 18 September 2023, which was after the travel had actually occurred and the mother had returned. Mr Raimondo did not attend court. I can understand why. However, it is my perception that this did little to dispel his sense of alienation from the court process.
Thereafter, the court record indicates that Mr Raimondo seems to have disengaged from the court process. He did not attend the schedule court-based Dispute Resolution Conference on 13 and 16 November 2023 and a court hearing 4 December 2023, on which occasion it was ordered that the matter be listed for an undefended hearing on 15 February 2024 in the court’s registry in City E.
Mr Raimondo did attend court on 15 February 2024 on which occasion the Senior Judicial Registrar ordered that he provide an affidavit setting out why he had not appeared at court and specify the reasons why he had not otherwise meaningfully engaged in the proceedings. Mr Raimondo has not complied with this order. The relevant order contained the following notations:
The father raised concerns today that the Court never works around his availability which he advised the Court today was that he would work 2 weeks at a time, but would not turn down other work offered to him.
The matter was stood down to obtain the assistance from a duty lawyer to assist the Mother and negotiate final orders with the Father, after two hours, the Court was advised by both parties that there was no agreement reached. The matter was stood down shortly thereafter.
When the matter was called back on to pronounce orders and the reasons for those orders, the Court was advised through security via the Associate, that the father had left the building.
The father has reiterated these complaints to me. I accept that he works remotely in arduous and sometimes dangerous circumstances. He does not always have a reliable internet connection.
Although an obviously intelligent and articulate person, he is not comfortable with the preparation of lengthy written materials. His intellectual strengths are mathematics and practical things. As a consequence, he feels disadvantaged in these proceedings and approaches them reactively and guardedly.
On 22 March 2024, there was a further telephone mention, before Judge Bowrey, which both Ms Laing and Mr Raimondo attended. On this occasion, the case was listed before me for a two-day final hearing scheduled for 20 May 2024. This is the hearing which took place before me on the day scheduled. A short time later, on 27 March 2024, the parties were each directed to file any affidavit material for the trial. The mother has filed a further affidavit. The father has not filed any further affidavit material.
He complains that he was until recently unfamiliar with the electronic portal on which court orders and documents, relating to family law files, are stored. In addition, he has indicated that he has been busy with his work away and has not had sufficient time to prepare any documents. In this context, it is noteworthy that there is no affidavit material from the paternal grandmother, who is obviously a person who is deeply interested in these proceedings and everything else to do with X.
Mr Raimondo has however filed a case outline document, which he did on 14 May 2024. He has also filed an amended response on 20 March 2024. Ostensibly, he largely agrees with the various orders proposed by Ms Laing, other than those which relate to parental responsibility. As noted above, I have already delineated the differences between the parties’ different proposals.
In his case outline document, Mr Raimondo has written the following under the heading Parental Responsibility and Best Interests printed on the proforma document:
Parental responsibility
1.All major decisions to be agreed upon by both parties etc. school, health.
2.Which ever parent the child is with is agreed upon to make the right judgment for the child.
3.Neither parent is to withhold visitation from other parent.
4.Schooling to be choosen (sic) on what is best for the child not which ever school is closer.
Best interests
1.That the child doesn’t need to see a therapist.
2.That the childs name is not to be changed or altered in any way.[7]
[7] See Case Outline of Mr Raimondo filed 14 May 2024.
It was Ms Laing’s position, during the hearing before me, that she was unaware that the father was concerned about any prospective change in X’s name. In these circumstances, she said she had no intention to change any aspects of X’s name and was prepared to abide by an injunction to this effect.
In all these circumstances, although there are apparently no significant issues between the parties, it is my apprehension that Mr Raimondo has not come to his position with any great enthusiasm for it. Rather, in my estimation, his position is influenced by a range of emotions, which include the following.
Firstly, as he has indicated, he is exhausted by the litigation. Secondly, he does not believe that he will be heard by the court. Thirdly, he is deeply resentful about what he considers Ms Laing’s conduct towards him in the past. Essentially, in my view, his consent is not genuinely offered, and, in these circumstances, I do not have any confidence that it will result in any diminution in the level of conflict between the parties.
The hearing before me took place for around four hours on 20 May 2024. During this hearing, Mr Raimondo and Ms Laing were the only witnesses who gave evidence. No notice had been given to Ms J and accordingly she was not available to answer any questions put to her by the parties.
I hope each of the parties was able to put their respective positions to me. Given their unrepresented status, I asked each of them many questions. My impression is that X is a delightful and talented child, who is loved by both her parents. It also clear from the Child Impact Report that she knows her father well.
In many ways, this made the case even more disheartening to me than it otherwise might have been. What was clear to me, from engaging with the parties over this relatively extended period, was their palpable dislike for one another and their continuing resentment at how they each perceived the other had behaved, over very many years. This impression was particularly heightened insofar as Mr Raimondo was concerned.
BACKGROUND
Ms Laing was born in 1987 in the United Kingdom. Mr Raimondo was born in 1988. He has lived in the City E area for the majority of his life. As I understand it, Ms Laing gained her qualifications in this country and is now an Australian citizen. Her salary is approximately $100,000.00 per annum.
The parties met in Region R, Queensland at some time in 2011/2012. At the time, Mr Raimondo was working in his father’s business and Ms Laing was on a working holiday in Australia. She got a job which led to them beginning a relationship together shortly afterwards.
The parties began to live together in 2012 and separated in controversial circumstances in late 2014. During this comparatively brief relationship, Ms Laing travelled to the UK to visit her parents with Mr Raimondo. It was during this trip that she discovered that she was pregnant with X.
Ms Laing returned to City E from the UK in 2012. In 2013, the parties began to live with the paternal grandmother, at her home in City E. Mr Raimondo was frequently away with work for his employment. It is the effect of Ms Laing’s evidence that she became deeply unhappy. Her immigration status was uncertain. Due to her advanced pregnancy, she was unable to work and had no money and no friends in City E, where she felt alone.
It is the effect of the mother’s evidence that, at this stage, she became aware that she and Mr Raimondo had different values and expectations. After X was born, it was also her apprehension that she and Mr Raimondo approached the parenting of X in different ways.
In these difficult circumstances, in mid-2013, when X was a babe in arms, Ms Laing returned to the United Kingdom to visit her family, with X. She decided she wanted to remain in the United Kingdom. Mr Raimondo was not happy about this proposal and Ms Laing returned to City E.
In early 2014, the parties started to rent a unit in Suburb S, City E. Ms Laing deposes that Mr Raimondo was working long hours operating out of City E and she was frequently alone.
It seems apparent that she did not always get on easily with the paternal grandmother. In mid‑2014, Mr Raimondo returned to live with his mother. A few months later, the owner of the Suburb S apartment told Ms Laing that her lease would be terminated because the property was going to be sold.
It is the effect of Ms Laing’s evidence that she felt it was untenable for her to remain living in City E because she was not coping with the parenting of an infant and felt she had very limited practical and social supports. She wanted to go home. She had earlier booked a return ticket between Australia and the United Kingdom, so that she could once again visit her family.
It is in this context that the parties’ relationship finally broke down and ultimately Ms Laing and X returned to live in the UK for approximately 2 years. Apparently, some form of informal agreement was brokered through a community legal service, which each of the parents signed. The agreement was as follows:
The following document is an agreement between [Ms Laing] ([born] 1987) and [Mr Raimondo] ([born] 1988) in regards to the care of their daughter [X] ([born] 2013)
•[Mr Raimondo] gives consent for [X] to reside in England with [Ms Laing], as of [late] 2014
•[Ms Laing] agrees to allow [Mr Raimondo] to visit [X] in England at any time, contributing where necessary and practicable to travel and accommodation costs and all other reasonable expenses.
•[Mr Raimondo] agrees to visit in [X] in England when practicable.
•Whilst [X] resides in England with [Ms Laing]; [Ms Laing] agrees to maintain regular contact between [X] and [Mr Raimondo]; with a minimum commitment to:
•Skype twice per week
•Telephone contact twice per week
•Written communication once per week
•Printed photographs once per month
•[Ms Laing] agrees to maintain as much contact between [Mr Raimondo] and [X] as is reasonably practicable, and is requested by [Mr Raimondo] or [X]. This extends to contact between [X] and her paternal grandparents.
•[Mr Raimondo] agrees to maintain regular and meaningful contact with [X]
•[Ms Laing] and [Mr Raimondo] agree to review this agreement in February 2015 and create a new agreement in the best interests of [X]
The parties now fervently disagree about what this agreement meant and what were the implications of collateral discussions between them, which informed it. In my view, it is not a particularly clear document. It is somewhat ambiguous in its nature and was said to be subject to review in February of 2015.
The father has given evidence that he attempted to secure the mother and X’s return to Australia but could not afford to bring a Hague Convention case. It is also his position that in difficult circumstances, he maintained his relationship with X via skype, getting up in the early hours of the morning to do so.
Given that the document is now almost 10 years old, and Ms Laing has returned to this country, in my view, it is not useful for the court to try and unpack this issue. However, as noted above, it is not an issue which Mr Raimondo is able to let go. From my perspective, what is significant about the issue is Mr Raimondo’s singular inability to have any empathy for the situation which Ms Laing has described for herself in 2014.
More significantly, Mr Raimondo has no capacity whatsoever to give Ms Laing any credit for returning to Australia with X when she was apparently 3 years of age and thereafter fostering a relationship between her and her father, which was ultimately recorded in the parenting plan of October of 2018.
In my assessment it is to the mother’s credit that X has been able to maintain her relationship with her father notwithstanding all the difficulties between the parties and their marked difference in approach so far as parenting is concerned.
Ms Laing has re-partnered. Her current partner is Mr V. The mother and Mr V have been in a de facto relationship since early-2017 and jointly own their home at Suburb O. Although he was born in Country W, Mr V has been an Australian citizen since 1982, as are his mother and brother, who live in Brisbane.
THE CHILD IMPACT REPORT
Ms J described X as an extremely confident, vivacious child, who was able to articulate her views. In this context, X expressed her concerns about sleepovers with her dad because of nighttime anxieties.
X was positive to Ms J about her mother and Mr V. She described her father as demanding. In this context, Ms J recorded the following verbatim comments of X:
[X] is afraid to tell [Mr Raimondo] things, “Because I’m scared of what he will think of me”. She said when he hears something he does not want the hear he gets really angry. “I find it hard to talk to Dad because he sees things as either wrong or right. “Dad’s a bit angry with me at the moment.” [X]’s biggest worry is hurting her Mum and Dad’s feelings. “I just feel like piggy in the middle between my parents and I just keep reaching up to try to catch their thoughts and feelings and words. But I keep missing them”. [X] finds it hard not to notice that her parents are not friends. It would mean a lot to her if they could be friends.[8]
[8] See Child Impact Report dated 21 March 2023 at [15].
X’s view of her father accords with my own impression of him. In my assessment, Mr Raimondo sees things in black and white terms. People are either for him or against him. As noted above, at present, X is worried that her father is angry with her. It is my finding that Mr Raimondo is currently very angry about these proceedings and X has picked up on this.
Significantly, Ms J did not think that Ms Laing was encouraging X to be disinclined to spend over nighttime with her father or to be stoking the child’s anxieties about overnight time with her father. Rather, Ms J considered that X and her mother had a natural alignment with one another, which may have stemmed from their shared interests, particularly in her extracurricular activities. Overall, Ms J considered that the mother presented as the more attuned parent.[9]
[9] See Child Impact Report dated 21 March 2023 at [30]-[31].
The issue of extracurricular activities, for X, is particularly controversial between the parties. From Mr Raimondo’s perspective, X is doing too much each week, and this cannot be regarded as normal. He is also somewhat resentful that he has been called upon to assist in paying for classes, which he regards as being exorbitant in price. He has also expressed his concern that his time with X is spent driving her to and from her various extramural commitments.
He himself is a sports person. As such, he would characterise himself as a person who is supportive of children having what he would regard as a normal level of involvement with physical activity. In this context, it is apparent that Mr Raimondo does not think that there is any proper comparison between what he regards as a normal level of commitment to a sport and the level of X’s current commitment to her extracurricular classes.
In the greater scheme of things this might be regarded as a comparatively minor matter but given X’s apparent passion for her classes and her mother’s obvious vicarious support of it, it becomes yet another area of conflict between the parties, which in my view has the potential to test X’s loyalties. It confirms my view, which Mr Raimondo confirmed that the parties are chalk and cheese.
Ms J’s impression was that Mr Raimondo adopted an authoritarian style of parenting, which was influenced by his mother. In this context, she opined that X required a parent who is both physical and emotionally attentive to her needs. Mr Raimondo does not appear to be attuned in this regard.[10]
[10] See Child Impact Report dated 21 March 2023 at [29].
As previously noted, Ms J recommended that the parties participate in mediation and that there be some consideration of the possibility of father and daughter engaging in family therapy to repair their relationship. As noted above, Mr Raimondo is not open to either of these proposals.
LEGAL CONSIDERATIONS
Part VII of the Act deals with orders relating to children. This Part has recently been subject to significant amendment. However, it remains the case that before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[11]
[11] Family Law Act 1975 (Cth) ss 60CA and 65AA.
How a court determines what is in a particular child’s best interests is by reference to a list of six matters contained in section 60CC(2) which can be summarised as follows:
·The arrangement which will best promote the safety of a child particularly from being subject to family violence, abuse, neglect or other harm;
·Any views expressed by the child;
·The developmental, psychological, emotional and cultural needs of the child;
·The parental capacity of each person who has or is proposed to have parental responsibility to promote such developmental, psychological, emotional and cultural needs;
·The benefits accruing to the child of being able to have a relationship with those who are significant to the child, where it is safe to do so;
·Anything else that is relevant to the particular circumstances of the child.
In this particular matter, I consider that the most important consideration is the need to protect X’s emotional integrity by minimising the risk of her being exposed to the endemic conflict between her parents, which in my view has jeopardised her emotional welfare.
In this context, although I appreciate it will be painful for Mr Raimondo to read this, it is my assessment that Ms Laing is the parent who has the greater level of understanding of X’s developmental, emotional and psychological needs. To his credit, Mr Raimondo has acknowledged in his evidence to me that Ms Laing is an excellent parent other than in the manner in which she interacts with him.
Clearly X knows her father and paternal grandmother and other members of her father’s family well. In these circumstances, in my view, there must be a balance between protecting X from being exposed to parental conflict and the benefits arising from a sense of connection she will derive from interacting regularly with her dad.
In my view, this is not an easy balance to find in the current case. In this context, I considered whether it was practical for there to be carved out some minimum guaranteed time, which X could regularly spend with her father, notwithstanding the fact that Mr Raimondo’s present proposal is that he spend time with her in line with Ms Laing’s position on an agreed basis.
From Ms Laing’s perspective, which I accept, Mr Raimondo currently has a fixed regime of time to which he does not adhere to, and his past conduct has been to be inconsistent and unreliable in regard to X, prioritising work, sport and other matters. In my assessment, Ms Laing has supported X’s relationship with her father.
In evidentiary terms, I assess Ms Laing to be the more credible historian of the parties’ past relationship. I accept that she cannot be regarded as being completely dispassionate or removed, so far as Mr Raimondo is concerned. However, I consider her to still have a far greater overall level of objectivity in her evidence than Mr Raimondo, who remains locked in past grievances.
Regretfully, it is my conclusion that he is the parent more responsible for driving the conflict between the parties, which is marked by passive aggression and a lack of insight. I accept Ms Laing’s view that Mr Raimondo is frequently impossible to deal with and has little or no capacity to empathise with the challenges she faces in her life. These are sad conclusions to reach but, in my view, must be central to the primary legal issue in the case, namely parental responsibility and its allocation.
The concept of parental responsibility is complex to explain and often subject to misconceptions. How responsibility for the parenting of a child is formally conferred upon a person, in proceedings conducted under the Act, is through the making of a parenting order. In general terms, it means all the duties, powers, responsibilities and authority, which by law, parents have in relation to children.[12]
[12] See Family Law Act 1975 (Cth) s 61B.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions.[13]
[13] See Family Law Act 1975 (Cth) s 64B(2).
Pursuant to section 65C of the Act, a child’s parents; the child; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, each party has the legislative authority to seek the orders, which they do in respect of parental responsibility. It is self-apparent that both parents are fervently interested in matters to do with X’s care, welfare and development.
Section 61CA encourages parents to consult about major long-term issues in relation to their child within the overall parameter of what is in that child’s best interests. Major long-term issues are defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
In her orders Ms Laing has indicted her openness to X spending special occasions with her father and paternal family. However she would like some notice in this regard. Her proposal of fourteen days does not appear to me to be unreasonable. In respect of telephone time, I agree with Mr Raimondo’s position that it can be largely spontaneous.
Handovers in recent times have been problematic. This has related to controversies arising between the mother and paternal grandmother. Ms Laing has alleged that she has been videoed outside her home. At this stage, it seems preferable that handovers be restricted to the parties themselves. Ms Laing has objections to the parties utilising the Z Venue carpark. The parties agree to use the neutral location of school or extracurricular classes wherever possible or failing that equally between the parties’ respective homes seems to me to an even-handed approach.
I will keep the mother to her word about the notation regarding her encouraging X to consider resuming overnight time with her father. In my view, such an outcome is likely to be helpful to the reduction of tensions between the parties and the sooner rather than later normalisation of arrangements for X’s care.
The evidence indicates that X spent some time with her father on the Sunday prior to the hearing. She is likely to have been aware, in, I hope, only the most general of terms, of the forthcoming case. Somewhat dramatically, the father indicted that he considered this occasion to be an opportunity for him and his mother to say goodbye to X until she was eighteen.
This was not a helpful or insightful comment and I hope it was an ill-considered throwaway line. It would be devastating for X if she thought she had been abandoned by her father. It is clear from Ms J’s report that she loves him. She said so explicitly to Ms J. I do not really believe that Mr Raimondo would be inclined to abandon X. Rather, I think his comments, in this regard, are another example of his false bravado, which is not a constructive trait, given the context of the parties’ difficult parenting dynamic.
Regardless of how parental authority is conferred, it will still be necessary for the parties to communicate with one another from time to time, not least to arrange times for X to see her father. Such communications needs to be formal and subject to record. The best mechanism is electronically through email or text message. If the parties wish to utilise a parenting app, this should be by mutual agreement but not formally mandated.
Ms Laing has sought a range of comprehensive orders dealing with non-denigration and directed towards removing the potential for X to assume responsibility for the parental conflict which sadly has arisen in her life and for which she is not responsible, in any way, shape or form.
In my view, these orders, although to some extent aspirational, so far as the parties are concerned, are essential to underline to each party how it is expected that they should interact with one another as separated parents of an emotionally vulnerable child. I will make the order proposed by the mother.
Axiomatically, it is not in X’s best interests for the parties to denigrate one another to X or attempt to enlist her in respect of their respective preferred outcomes in the case. X should never be the direct conduit for important parenting information to be conveyed. In my view, the parents themselves should conduct handovers, given the current animosity between the mother and paternal grandmother. I will also make the agreed injunction regarding any change in X’s name.
As noted above, each party provided me with a minute of the orders sought by them. In the father’s case, these largely mirrored those of the mother, but not completely so. I have attempted to closely read each draft and provide a reconciliation of them, which is intended to minimise, as far as possible, potential areas of conflict between the parties. In this context, I have tried to make the orders as clear as possible.
For all these reasons, the orders of the court will be set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 24 May 2024
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