Lockhart and White

[2018] FCCA 2901

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCKHART & WHITE [2018] FCCA 2901

Catchwords:
FAMILY LAW – Parenting – parental responsibility – where parents have acrimonious relationship – allegations of family violence perpetrated by stepmother – best interests of the child.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS LOCKHART

Respondent: MR WHITE

File Number: MLC 7583 of 2009

Judgment of: Judge Mercuri

Hearing dates: 14 and 15 May 2018

Date of last submission: 15 May 2018

Delivered at: Melbourne

Delivered on: 2 November 2018

REPRESENTATION

Counsel for the applicant: Ms Dwyer

Solicitors for the applicant: Cathleen Corridon & Associates

Advocate for the respondent: In person

Solicitors for the respondent: None

Counsel for the Independent Children’s Lawyer: Mr Gardiner

Solicitors for the Independent Children’s Lawyer: Hartleys Lawyers

ORDERS

1. All previous parenting orders in relation to [X] born 2008 (“the child”) be discharged.

2. The mother have sole parental responsibility for the child and keep the father informed, in writing, with respect to the following:

   (a)any school the child may attend;

   (b)any medical emergency with respect to the child;

   (c)any major medical/dental issues with respect to the child;

   (d)any other major decisions with respect to the child.

3. For the purposes of order 2 herein, in relation to any proposed decision for the child, the mother shall:

   (a)advise the father by email of any proposed decision;

   (b)seek the father’s opinion;

   (c)take the father’s opinion into account in making the decision; and

   (d)advise the father of her decision by email, as soon as practicable.

4. The child live with the mother.

5. The child spend time with and communicate with the father as follows:

   (a)when school is in session in a two week cycle:

   (i)each Wednesday, commencing 7 November 2018 (or 3:30pm if a non-school day) until the commencement of school on Thursday (or 9:00am if a non-school day), such time to be spent at the father’s home in Suburb A; and

   (ii)each alternate weekend commencing 9 November 2018 from after school Friday (or 3:30pm if a non-school day) until the commencement of school on Monday (or 9:00am if a non-school day) with such time generally to be spent with the father at his family farm at Town 1, Victoria;

   (b)during school term holidays (other than the long summer holidays):

   (i)in odd numbered years for the second half of the school term holidays from 5:00pm on the middle Saturday until the commencement of school at the beginning of the next term; and

   (ii)in even numbered years, for the first half of the school term holidays from after school on the last day of term until 5:00pm on the middle Saturday of the school term holidays;

   (c)subject to paragraph 16 below, during the long summer school holidays:

   (i)in odd numbered years for the second half of the long summer holidays commencing at 5:00pm on the middle Saturday until the commencement of school the following year; and

   (ii)in even numbered years for the first half of the long summer holidays commencing after school on the last day of term until 5:00pm on the middle Saturday of the long summer holidays;

   (d)if the child is not otherwise spending time with the father on the father’s birthday/Father’s Day pursuant to these orders, the child will spend time with the father:

   (i)on Father’s Day weekend, from 5:00pm on the Saturday prior to Father’s Day until the commencement of school on the Monday after Father’s Day;

   (ii)on the father’s birthday:

   A.from after school on the father’s birthday until the commencement of school the following day if it falls on a school day; and

   B.if it falls on a non-school day, from 10:00am until 4:00pm;

   (e)in the event that the Easter period does not wholly or substantially fall within school term holidays:

   (i)the child will spend the first half of the Easter period with the father on the first occasion that it so falls and on each alternate occasion thereafter, such time to commence from after school on the Thursday prior to the Easter period;

   (ii)the child will spend the second half of the Easter period with the father on the second occasion that it so falls and on each alternate occasion thereafter, such time to conclude at the commencement of school the day after the Easter period; and

   (iii)changeover in relation to the Easter period shall occur at 6:00pm on Easter Saturday;

   (f)for the avoidance of doubt, where the Easter period falls within school term holidays, the child’s time with the father is regulated by order 5(b) above and order 5(e) will not apply;

   (g)during the Christmas period each year:

   (i)in even numbered years, from 5:00pm on Christmas Eve until 5:00pm on Christmas Day; and

   (ii)in odd numbered years, from 5:00pm on Christmas Day until 5:00pm on Boxing Day save and except for the proposed travel in 2019 during which the father’s time shall be suspended; and

   (h)otherwise as agreed between the mother and the father in writing.

6. If the child is in the care of the father on the mother’s birthday/Mother’s Day weekend, the father’s time shall be suspended and the child shall spend time with the mother:

   (a)on the Mother’s Day weekend, from 5:00pm on the Saturday prior to Mother’s Day until the commencement of school on the Monday after Mother’s Day; and

   (b)on the mother’s birthday:

   (i)from after school on the mother’s birthday until the commencement of school the following day if it falls on a school day; and

   (ii)if it falls on a non-school day, from 10:00am from 4:00pm.

7. For the purposes of changeover:

   (a)if a school day, changeover is to occur at school; and

   (b)if a non-school day, then changeover is to occur inside McDonald’s Family Restaurant, Suburb B or as otherwise agreed in writing between the parties.

8. The parents, their servants and agents are hereby restrained by injunction from:

   (a)abusing, rebuking, belittling or otherwise denigrating each other or any member of the other’s household, in the presence or hearing of the child nor permitting any other person to do so;

   (b)discussing these proceedings or any parenting matters in the presence or hearing of the child nor permitting any other person to do so; and

   (c)physically disciplining the child, allowing any other person to physically discipline the child or exposing the child to any form of family violence.

9. The mother and father keep the other informed of any medical emergency, illness or injury suffered by the child whilst in their respective care and authorise the other to liaise with any treating health professional of the child.

10. The mother authorise the child’s treating general practitioner or any other health professional to discuss matters relating to the child’s health with the father.

11. The mother authorise any school the child attends to forward to the father (at the father’s expense and request, if any) copies of school reports, photographs, newsletters and any other material a parent may normally receive.

12. The father be permitted to attend school events, functions, parent-teacher interviews and any other school event to which parents are ordinarily invited.

13. Save as otherwise permitted in these orders, both parents, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child from the Commonwealth of Australia.

14. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.

15. The court requests that the Australian Federal Police place the name of the child on the Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.  This order ceases to have effect on 1 December 2019.

16. Notwithstanding orders 13 to 15 herein, the mother be permitted to travel to (country omitted) with the child for a period of up to four weeks during the summer school holidays, such period to coincide principally with the period during which the child spends time in her care (“the proposed travel”), provided that:

    (a)the proposed travel not occur before 1 December 2019 and thereafter, no more frequently than once every three years;

    (b)to the extent that the proposed travel reduces the father’s time with the child, the child will spend an equivalent amount of time by way of make-up time with the father, such make up time to occur during the immediately following school term holidays; 

    (c)not less than 60 days prior to the proposed travel, the mother provides to the father in writing:

    (i)details of the proposed travel, including departure and arrival dates and times (including flight or ship details);

    (ii)a copy of return airfare tickets for the child;

    (iii)an itinerary of where she and the child will be staying; and

    (iv)the addresses at which the child will reside and a telephone/Skype/Facetime number on which the father can communicate with the child; and

    (d)not less than 28 days prior to the proposed travel:

    (i)the mother deposit a surety in the sum of $15,000 to the Melbourne Registry of the Federal Circuit Court of Australia (“the Registry”), to be released upon the return of the child to Australia; and

    (ii)the mother provide written evidence to the father of having deposited this amount with the Registry.

17. Within 7 days from the date of these orders, the child’s passport is to be delivered to and held by the Registry and released to the mother not less than 7 days prior to the proposed travel upon compliance with order 16(d) herein.

18. For a period of 12 months after these orders are made, the father be in substantial attendance whilst the child is in his care and he be restrained by injunction from leaving the child in the sole care and supervision of the child’s stepmother, Ms M.

19. The father be restrained by injunction from leaving the child alone with his adopted son, [A].

20. The father and Ms M undertake a step families program as directed by the Independent Children’s Lawyer to help the child re-establish a relationship with Ms M.

21. Upon the Independent Children’s Lawyer issuing a direction pursuant to order 20 herein, the order for the appointment of the Independent Children’s Lawyer be discharged.

22. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Lockhart  & White is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7583 of 2009

MS LOCKHART

Applicant

And

MR WHITE

Respondent

REASONS FOR JUDGMENT

Summary

1. This is an application for parenting orders in respect of the child, [X] born 2008 (“the child”).

2. For the reasons set out below, I am satisfied that it is in the child’s best interests for orders to be made providing for:

   a)the mother to have sole parental responsibility for the child;

   b)the child to live with the mother and spend time with the father:

   i)each week from after school on Wednesday until the commencement of school on Thursday, such time may be spent at the father’s residence in Suburb A;

   ii)each alternate weekend from after school on Friday until the commencement of school on Monday, with such time to be principally spent at the father’s farm at Town 1, Victoria (“the family farm”);

   iii)half of school holidays; and

   iv)equal time for Christmas and Easter where it does not otherwise fall within school holidays;

   c)mutual restraints on the parties; and

   d)the mother be permitted to travel to (country omitted) with the child after 1 December 2019 once every three years for a period of up to four weeks subject to the mother depositing a surety with the court and providing the requisite information to the father prior to any such travel. Any encroachment on the father’s time is to be made up in the immediately following term holidays.

3. For the reasons set out below and given the history of this matter, reducing the opportunity for dispute between these parents is in the child’s best interests.   

4. The orders therefore do not provide for any other make-up time. Nor do they expressly require either parent to take the child to any extra-curricular activities which they do not support whilst the child is in their care.

Background

1. There is a long history to the legal proceedings between these parties.  I will refer to that history only to the extent necessary to contextualise the issues now in dispute and the reasons for my decision in the present application.

2. The applicant mother was born on 1976 and the respondent father was born on 1955.  The parents married on 2005 and the child was born approximately three years later. The parents separated in August 2009 and divorced in December 2010. 

3. Final parenting orders were made in this court on 8 March 2012 (“the March 2012 final orders”). In essence, those orders provided for:

   a)the mother to have sole parental responsibility for the child, although she was required to consult the father about any significant medical treatment and any choice of school which she proposed sending the child to;

   b)the child to live with the mother and spend time with the father on a graduated basis which culminated in the child spending time with the father each alternate weekend from 9:00am on Saturday to 9:00am Monday and each Wednesday from after school until the commencement of school on Thursday; and

   c)time between the father and child during school holidays and on special days. 

4. In addition, the March 2012 final orders provided that:

   a)the parties were to engage with a counsellor to assist them to mediate any matters of disagreement about the child;

   b)all changeovers were to occur at Berry Street Children’s Contact Service (“Berry Street”) or Suburb B police station;

   c)the father was not to leave the child alone with the father’s adopted son, [A]; and

   d)the watch list order initially granted on 14 September 2010 was to remain in full force and effect.

5. Following the making of the March 2012 final orders, the following proceedings have been initiated by either one of the parties:

   a)May 2012: contravention application filed by the father;

   b)June 2012: contravention application filed by the father;

   c)July 2014: initiating application filed by the mother in which she sought permission to remove the watch list order and travel overseas with the child;

   d)September 2014: contravention application filed by the father; and

   e)February 2015: contravention application filed by the father.

6. It was against this background that in August 2015, the mother issued the current proceedings in which she sought a suspension of the child’s time with his father on the basis that the child was at risk of verbal and emotional abuse and was being exposed to family violence in the father’s care.  The mother alleged that the father’s current wife had been abusive towards the child and the father had failed to protect him. 

7. In his response to the mother’s application, the father sought orders for sole parental responsibility and that the child live with him and spend supervised time with the mother. 

8. In the course of the present proceedings, the mother filed:

   a)an application in a case on 28 December 2016 seeking recovery of the child on the basis that the father had overheld the child after spending time with him on Christmas Day;

   b)an amended application in a case on 3 January 2017;

   c)a contravention application on 22 March 2017;

   d)an amended initiating application on 23 March 2017;

   e)a further application in a case on 14 July 2017 seeking urgent recovery of the child on the basis that the father had not returned the child at the end of time spent; and

   f)a further amended initiating application on 5 December 2017. 

9. The mother’s proposal is ultimately that she continue to have sole parental responsibility for the child and the child continue to live with her. In terms of time spent with the father, the mother proposes that the time be limited to prevent the child from being exposed to further abuse by the father’s wife and also to allow the child to continue attending his various extra-curricular activities on Friday evening and Saturday morning.

10. The mother’s proposal also seeks:

    a)all non-school changeovers occur at Berry Street or if Berry Street is closed, at McDonald’s in Suburb C;

    b)the parties be restrained from denigrating each other;

    c)the father be permitted to attend the child’s school activities as per the school’s usual policies;

    d)the father be restrained from leaving the child unsupervised in the care of the father’s wife and his adopted son, [A];

    e)the parties notify the other of any illness or accident of the child whilst in their respective care; and

    f)the mother be permitted to travel to (country omitted) every second year with the child for approximately six weeks between mid-December to the end of January subject to providing relevant information to the father.

11. The three key issues for the mother were:

    a)the child being exposed to the father’s wife, Ms M;

    b)the amount of time that the child travels to and from the father’s farm while spending time with the father; and

    c)the child’s ability to participate in his sporting activities whilst in the care of the father.

12. During closing submissions, the mother’s counsel indicated that of the three, her main concern was about the child being exposed to abuse by Ms M. Counsel for the mother said:

    …she’s concerned about the child’s emotional and psychological wellbeing, spending time in a house where the child believes that he’s not wanted and that Ms M doesn’t like him.[1]

    [1] Transcript page 110 at lines 3 to 5.

13. In order to address those concerns, the mother sought orders for the child to have dinner with the father each Wednesday and then return him to the mother, which would avoid any need for him to be at the father’s home in Suburb A and then spend the weekend at the farm.  The mother’s counsel went on to say in her closing submissions:

    … if he has to stay (at the farm) till Monday morning, that’s less of a concern for her in – the travel – as opposed to the child going to Suburb A and spending time with Ms M.[2]

    [2] Transcript page 112 at lines 11 to 13.

14. Notwithstanding orders requiring it, the father did not file a case outline.  At the commencement of his evidence, the father was asked to confirm what orders he sought and he said that:

    a)he was content to follow the recommendation of the family consultant that the current arrangements continue, namely the child spend time with him:

    i)from after school on Friday to the commencement of school on Monday each alternate weekend, such time generally to be spent at the family farm; and

    ii)from after school on Wednesday until the commencement of school on Thursday, such time to be spent at the father’s home in Suburb A;

    b)he sought an order restraining the mother from continuing to say that he had perpetrated family violence against her;

    c)in addition, the father sought to address the question of make-up time; and

    d)he sought to lift the restraint on the child coming into contact with his adopted son, [A].

1. The Independent Children’s Lawyer’s (“ICL”) proposal was essentially that the orders ought to remain as they currently are, namely that:

   a)the mother retain sole parental responsibility;

   b)the child live with the mother;

   c)the child spend time with the father:

   i)each Wednesday after school until Thursday before school;

   ii)each alternate weekend from after school on Friday to before school on Monday; and

   iii)time between the father and child on Wednesday occur at the father’s home in Suburb A and time between the father and child on weekends occur at the family farm;

   d)in relation to extra-curricular activities, the child attend the activity supported by each parent whilst in that parent’s care; and

   e)the father be restrained from leaving the child unsupervised in the care of the father’s wife or adopted son, [A].

Issues

1. The issues in dispute between the parties are:

   a)whether the mother should retain sole parental responsibility or whether the father’s application for equal shared parental responsibility ought to be granted;

   b)whether the child’s time on alternate weekends with the father should commence after school on Friday and conclude at the commencement of school on Monday or take place from 12:00 noon on Saturday until 5:00pm on Sunday (this issue also gave rise to a question about the extra-curricular activities which the child is engaged in and the amount of travel required to be undertaken by the child whilst in the father’s care);

   c)whether the child’s time with the father on Wednesday should be limited to after school until 6:30pm or whether it should take place from after school on Wednesday until the commencement of school on Thursday morning (this issue also gave rise to the question of where the child’s time with the father on a Wednesday should be spent, and in particular whether it should be spent in the father’s home in Suburb A);

   d)whether the father should be restrained from allowing the child to come into contact with either his wife or his adopted son, [A];

   e)how the child’s time should be divided between the mother and father over school holidays and on special occasions such as Christmas and Easter;

   f)whether the mother should be permitted to travel with the child to (country omitted) and if so, how often and for what duration should such travel be permitted; and

   g)whether an order should be made to deal with make-up time in the event either parent is unable or otherwise misses their allocated time with the child.

The parents and the child

1. As is evident from the summary of the parties’ history of litigation, it is apparent that the parents have absolutely no trust in each other.  The course of this litigation has done little to improve that situation. 

2. The child is the only child of the relationship between the parties to this proceeding. The mother has not re-partnered post-separation and has no other children. She is originally from (country omitted) and her family continues to live there. 

3. The father has six older daughters from three previous relationships and one adopted son. He has remarried post-separation. He and his wife, Ms M have two children together; a son aged 3 years and a daughter who is now about 12 months old. 

4. It is common ground that the father’s adopted son, [A], has had a history of drug issues and associated mental health problems. There remains a dispute between the parties as to [A]’s current state of health and whether he poses a risk to the child.

5. In the course of the present proceedings, the child participated in two section 11F child inclusive conferences and attended two interviews with Ms D, family consultant. 

6. In her family report dated 19 May 2017, Ms D made the following observations about the child:

   [39] He presented as an engaging and personable child and his responses and engagement were developmentally appropriate and consistent.

   …

   [41] [X] is aware of the animosity between his parents and reports being aware that they do not think positively about each other.  He advises he has heard them each speak negatively about his other parent.

   …

   [47]  Most of the time, [X] feels sadness, anger and some courage.  He feels sadness about things that make him stressed all the time.  He identifies this as being his parent’s conflict and Ms M making threats to hurt him.  He feels angry about Court as ‘some people who listen aren’t very good listeners.’

   [48]  In regard to his interests and activities, [X] advises that he engages in many things however he mostly loves (sport).  Mr and Mrs White do not take him to (sport)… [X] feels sad and angry that he has missed grading’s and is behind in his (sports) as Mr White has not facilitated him going in the past. 

   [49]  If [X] … could determine his own arrangements, he would choose to spend time with both of his parents.  ‘I want to see my dad mostly because I want to see [B].  I like being with my mum because she’s a nice person and I like being with her.’  If [X] had special magic powers to use for his family, he would wish for everyone to get along and that ‘we wouldn’t be enemies’. (emphasis added)

7. In her updated family report dated 10 April 2018, Ms D made the following further observations:

   [18]  [X]’s emotional well-being is assessed as being compromised by the co-parenting dynamics and attitudes of his parents. Their co-parenting dysfunction leads to [X]’s opportunities to experience continuity in his extra-curricular activities being unmet, as well as a focus on his needs and wants being overshadowed by parental preferences/acrimony.  His opportunity to express his genuine feelings about his relationships across both homes is also compromised as a consequence of the parent’s overt and entrenched negative attitudes towards each other.  (emphasis added)

   …

   [59] Notwithstanding the co-parenting vulnerabilities, both Ms Lockhart and Mr White possess strengths in their individual interactions with [X], such as to contribute to [X] sharing a positive relationship with them both and identifying them as people of security to him.  At this time, in spite of [X]’s exposure to the adult issues, he continues to share a level of quality and meaningfulness in his relationships with each parent, and this outweighs the burdens of his parents co-parenting deficits. Each parent proactively striving to not increase [X]’s involvement in and exposure of their adult issues will assist [X] to continue to strengthen and find fulfilment in his respective relationships with each parent.  An escalation of poor behaviours by either or both parents however is likely to result in [X] electing to spend little to no time with one or both parents as he enters and transitions through his adolescents (sic).  (emphasis added)

Findings of fact and credit of the parties

1. The following factual issues are in dispute:

   a)the travel time from the father’s farm to the child’s home and/or school;

   b)what extra-curricular activities the child wishes to undertake (the mother’s case is that the child enjoys (sport) which the father does not support; the father’s case is that the child enjoys (sport) which the mother does not support);

   c)whether Ms M in fact posed and continues to pose a risk of harm to the child; and

   d)whether the father’s adopted son, [A] posed and continues to pose any risk to the child.

2. Each of these factual issues will be addressed in turn below.

Travel time and distance

1. There was a dispute between the parties as to the distance between the father’s home and the family farm. This issue is indicative of the lack of trust between the parties and their inability to reach agreement on the most basic of matters. 

2. It was common ground that the father owns a farm at Town 1, Victoria. Notwithstanding this, the parties disputed the distance of the family farm from both the father’s home and the child’s school, and importantly how long it takes to travel to and from the family farm when the child is in the father’s care. 

3. The father lives in Suburb A. The child goes to school in Suburb D. The family farm is in Town 1. There was some dispute between the parties as to whether the family farm is located in the Region 1 area. This distinction is not relevant per se given that there is no dispute that the family farm is located in Town 1, other than it confirms the level of disputation between these parties.

4. In any event, the father’s evidence is that the family farm is 153 kilometres from the child’s school in Suburb D. The mother refers to a distance of 200 kilometres however, it appears the mother’s measurement is from the child’s school in Suburb D not the father’s home given that she submitted a Google Maps printout showing the distance from Suburb D to Town 1 as 200 kilometres, which would take some two and a half hours.

5. In cross examination, although the father disputed the distance from Suburb D to Town 1 was 200 kilometres and maintained that it was 153 kilometres, he agreed that the travel took about two and a half hours. 

6. I find that the distance between the family farm and the father’s home in Suburb A is 153 kilometres, however I am also satisfied that the distance from the family farm to the child’s school in Suburb A is 200 kilometres. Whilst it is not possible on the basis of the evidence before me to make a definitive finding as to the travel time between the father’s home and the family farm (and indeed this would vary depending on the day and the time of day at which the trip was undertaken), the father himself concedes that the trip would take at least two and a half hours. In addition, if the father was travelling directly to drop the child at school on a Monday morning, there would be additional travel time to get across Melbourne, some of which would occur during peak hour. 

7. The father gave evidence that he prefers to return from the family farm on a Monday morning as there is less traffic.[3] The mother argued that this means that the child is woken very early to make the journey back to Melbourne in time for school to resume on Monday morning resulting in the child being tired. 

   [3] Transcript page 101 at lines 23 to 24.

8. In response, the father gave evidence that the child wakes up at 6:00am anyway and would not be required to wake up any earlier to get to school on time if they left the family farm on a Monday morning.[4] Moreover, the father explained that the child could sleep in the car on the way back from the farm if he was tired.[5] 

   [4] Transcript page 101 at lines 28 to 41.

   [5] Transcript page 101 at lines 44 to 45.

9. The mother conceded in response to some questions from the ICL that the child was doing well at school.[6]

   [6] Transcript page 53 at line 36.

Child’s extra-curricular activities

1. The evidence in relation to the child’s extra-curricular activities is not in dispute. The child participates in (sport) on a Saturday morning, (sport) on a Friday evening and other activities on other days during the week which are not relevant to the present proceedings as they do not fall on days which the child spends with the father. 

2. The father gave evidence that on the weekends where the child spends time with him, the father leaves Suburb A on Friday at about 2:00pm to collect the child from school at 3:30pm, travel back to Suburb A to pick up his son, [B] and then travel to the family farm.[7]  As a result, it is difficult for him to take the child to (sport) on a Friday night.

   [7] Transcript pages 99 to 100.

3. In response to a series of questions from the ICL, the father confirmed that if the mother took the child to (sport) on a Friday evening and then drove him to the father’s house in Suburb A, the father would arrive at the farm at about 9:00pm on Friday evening. 

4. The father’s evidence is that the child also enjoys (sport) and attends (sport) at a club near the family farm on those Saturday mornings when he is in the care of the father. Moreover, the father’s evidence is that the child has attended a number of (sport) championships and was due to participate in the (sport) championships in 2018 but was unable to do so as the mother ‘switched’ the time that he was to spend with the father over the holidays and would not permit him to attend.

5. Leaving aside the practical difficulties of the child having two different activities on a Saturday morning, one in Melbourne and one near the family farm, it is also common ground that the father has a philosophical objection to the child participating in (sport). On the other hand, the mother states that the child loves (sport) and is disappointed that the father does not support this interest which has resulted in the child missing a number of grading sessions and not progressing as quickly as he might otherwise have.

6. Ms D made the following observations in her 2018 family report:

   Regarding his sporting engagements, [X] confirms that he continues to attend (sport) however his father continues to refuse to take him. [X] now attends (sport) on Saturdays with Mr White, and he felt that he ‘might as well’ start this new activity as he knew Mr White would not change his mind about (sport).  He also plays (sport) on Friday evenings however Mr White does not support this. [X] disclosed that Mr White told him, ‘I won’t take you anywhere your mother tells me to, but I’ll do what you want’. Notwithstanding [X] reporting that he told his father he wanted to go to (sport), his father has continued to make excuses not to go and mostly, they go to his father’s workshop Friday evenings. [X] feels ‘disappointed’ about this.[8]

   [8] Family report prepared by Ms D dated 10 April 2018 at paragraph [51].

7. In the course of the hearing, the father stated that he does not believe that the child is actually interested in either (sport) or (sport) but rather thinks that this is something that the mother wants him to do and it is on this basis that he refuses to support these activities, together with his own views about (sport).[9] It is clear that any activity which the mother initiates for the child will be viewed with suspicion by the father and not supported. This is notwithstanding his own evidence that if the child demonstrated a genuine interest in (sport), he would support that. 

   [9] Transcript page 84 at lines 15 to 27. 

8. I am satisfied that the child is genuinely interested in (sports).  I am also satisfied that he has become resigned to the fact that his father will not support his interests in these activities and therefore has reluctantly agreed to take up (sport) when spending time with his father.

9. It would be preferable for the parents to be able to communicate effectively with each other and with the child to work out what activities the child is actually interested in pursuing at this point in time and then both support the child in that pursuit as best they can. That would be a child focused approach. Unfortunately in this case, it appears that these parties simply see the child’s activities as another fertile ground for dispute between them. This places the child in an unenviable position of having to navigate his way through his parents’ dysfunction and ultimately, not be free to decide for himself what, if any, sporting and/or extra-curricular activities to pursue. So much is evident from the comments made by the child to the family consultant earlier this year.

10. As (sport) is a team sport, it would be preferable if the child could continue to participate in this for as long as he wishes on a regular basis.  In relation to (sport), the mother gave evidence that the particular class that the child attends on a Saturday morning is the only class in the week of its kind. Given the limited amount of time which the child spends with his father and his siblings, and given the father’s opposition to (sport), it would be in the child’s best interests for the mother to try and seek out an alternative session for the child to attend if he is keen to pursue this activity on another day which does not require the father’s participation.

11. Similarly, in relation to (sport), the father indicated that the mother did not support the child’s interest in (sport) and therefore the child has missed the opportunity to compete in some (sport) carnivals. 

12. Given the reality of the relationship between these parents and their incapacity to put the child’s interests ahead of their own, the court needs to have regard to the making of orders which limit the potential for further disputation between the parents.  

13. The proposed orders therefore do not require either parent to take the child to any particular extra-curricular activity. It will be up to them to decide what activities the child undertakes whilst in their respective care. Although this is not an ideal solution as it will limit the child’s ability to participate in some activities that he enjoys on a regular basis, this must be weighed against the conflict which is generated by orders requiring the parties to do something they appear to be incapable of. Removing the opportunity for conflict is, in my view, in the child’s best interests.

Alleged risk of harm posed by Ms M

1. One of the central allegations giving rise to the initiation of these proceedings in 2015 relates to Ms M allegedly hitting the child whilst in the father’s home and verbally abusing him.

2. The section 11F child inclusive conference memorandum prepared on 24 November 2015 noted that:

   a)the precipitating event which led the mother to commence these proceedings was an allegation of the risk posed by Ms M to the child; and

   b)Ms M denied the allegations and “expressed shock and then upset from first hearing them as she had always thought they had a close relationship”[10].

   [10] Section 11F child inclusive conference memorandum prepared by Ms T dated 24 November 2015 at page 2.

3. In discussing her interview with the child, Ms T made the following comments:

   When talking about his worries in relation to Ms M, [X] expressed how well they had got on before she became sick during the pregnancy and he had felt sad that she shouted a lot after the baby was born.  He identified Ms M as an important person in his life and when asked he wanted to meet with her.

   In observation between Ms M and [X] there was an initial awkwardness which required some intervention by the writer to clear the air.  [X] talked very quietly about wanting to have a relationship with Ms M again before quickly became very animated and keen to talk.  She engaged him in a child focussed way around books and stories encouraging his imagination.  Ms M passed [B] to [X] (sic) for a cuddle prior to leaving and did not express any anxiety in [X]’s handling of his half-brother.  [X] was spontaneously affection (sic) towards both Ms M and to [B] and presented with no fearfulness throughout.[11]

   [11] Section 11F child inclusive conference memorandum prepared by Ms T dated 24 November 2015 at page 3.

4. The mother gave the following evidence in relation to this issue:

   a)she was concerned that the child was at risk while he spent time with his father due to disclosures that the child made that Ms M had made threats to harm him and that he was being exposed to family violence incidences between the father and his wife;[12]

   b)in early 2015, the father and Ms M were treating the child badly, calling him names and making him kneel down to say sorry and telling him he was not wanted in their home and the father’s wife threatening to take him to the farm and lock him there by himself;[13]

   c)when the child went to touch his brother, Ms M grabbed [B] from him saying ‘don’t touch my son you stupid boy’;[14]

   d)on one occasion, Ms M tried to attack the child who ran to his room and then the child and his father were leaning against the door to stop her from entering while she was banging on the door and screaming;[15]

   e)in mid 2015, whilst the child was playfully practising his (sport) moves, Ms M got angry and said she would do something to him ‘which will make your mother wish you never met me’;[16]

   f)Ms M hit the child a couple of times across the face and across the body and would push him away when he was on the sofa and splash her wet hands on him;[17]and

   g)Ms M would give the child the ‘evil eye’ which in (country omitted) means that the person hates them and thinks they are worthless.[18]

   [12] Mother’s affidavit sworn and filed 5 December 2017 at paragraph [6].

   [13] Mother’s affidavit sworn and filed 5 December 2017 at paragraphs [13] and [16].

   [14] Mother’s affidavit sworn and filed 5 December 2017 at paragraph [14].

   [15] Mother’s affidavit sworn and filed 5 December 2017 at paragraph [17].

   [16] Mother’s affidavit sworn and filed 5 December 2017 at paragraph [18].

   [17] Mother’s affidavit sworn and filed 5 December 2017 at paragraph [20].

   [18] Mother’s affidavit sworn and filed 5 December 2017 at paragraph [21].

1. I note that these allegations are dated and largely, if not exclusively, relate to conduct which occurred prior to the mother’s current application. 

2. The father’s evidence is that following the initiation of these proceedings and the mother’s allegations about Ms M, Ms M has avoided any interactions with the child. The father has also arranged to spend most of his time with the child at the family farm rather than in Suburb A to avoid the opportunity for any further allegations to be levelled against his wife, despite noting that the allegations are entirely without basis.

3. In response to some questions about the child’s time at the Suburb A home on Wednesday evenings, the following exchange occurred between the father and the ICL:

   ICL:When (the children) are at Suburb A, where is Ms M at that time?

   Mr White:Well, she has been staying in… the bedroom… but she doesn’t come into contact with [X], because we knew that the allegations that she had – she would hit [X] were coming… So to avoid that we decided that she would stay in the bedroom while [X] was there, until court proceedings finish and we can start getting things back to normal. 

   ICL:[X] is 10 years old or approaching 10 years of age… so there’s quite some time to go before [X] moves out on his own… do you expect that to continue into the future?

   Mr White:No

   ICL:Well what do you say is the solution to the difficulty?

   Mr White:Well, we will have to engage a psychologist and get advice on how to proceed.

   ICL:You would do that yourself at your expense?

   Mr White:Yes.[19]

   [19] Transcript page 96 at lines 1 to 19.

4. Notwithstanding the father’s view that there is no substance to the allegations that his wife has subjected the child to any family violence, it is evident from the family reports that the child has himself disclosed to the family consultant that Ms M “…has actually hit me”, and further:

   …screamed at him, snatched [B] away from him the first time he went to touch him, he and Ms M have previously had to lock themselves in a room to stop Ms M also coming in after them, and she told him that ‘your mum’s going to regret that you ever met me’[20]

   [20] Family report prepared by Ms D dated 19 May 2017 at paragraph [45].

5. The family consultant went on to note in her 2017 report:

   These incidents have led to [X] being fearful to fall asleep and about going to spend time at their home.  Following [X] talking about these things in the past, he reports that Mr White and Ms M argued about it, she started to ignore him and not talk to him at all, and he and Mr White stared spending their time together ‘at the farm’ without Ms M.[21]

   [21] Family report prepared by Ms D dated 19 May 2017 at paragraph [45].

6. To the extent that the child’s current views on this question are before the court, he told the family consultant in 2018 that he was spending some Wednesday evenings at his father’s home in Suburb A and his weekends at the farm. She further noted that the child:

   …identified that he feels safe at Suburb A as he has no direct contact with Ms M.  He has a separate bedroom where he can sleep, and he also feels confident that Mr White will protect him… [X] feels comfortable to continue to spend time in the Suburb A house because of his sense of safety with his father.  He is unsure about how he feels recommencing direct contact with Ms M, however identifies that he remains feeling fearful of her because of her past actions and behaviour towards him.[22]

   [22] Family report prepared by Ms D dated 10 April 2018 at paragraph [47].

7. The family consultant also noted:

   From [X]’s perspective, the travel in the car out to the farm where he spends time with Mr White is ‘very far’. He would prefer to spend his time with Mr White in Suburb A for this reason.[23]

   [23] Family report prepared by Ms D dated 10 April 2018 at paragraph [50].

8. The mother deposes as follows:

   Since the last court orders, [X]’s step mother has hit him twice, verbally abused and threatened him, continuously refuse to speak to him when [X] attempted to be close to her, and continuously told him and his father that she does not want [X] in the household and he should be taken to the farm.  When [X] disclosed the hitting he asked me to promise not to tell anyone and he said it was because his dad had told him if he tells me he will not see [B] again and him, and kept on telling him he will also take me to jail.[24]

   [24] Mother’s affidavit filed 22 March 2017 at paragraph [10].

9. This affidavit was filed more than 12 months after she now says the alleged ‘hitting’ incident occurred. In that affidavit, there is no reference to Ms M slapping [X] across the face. The ‘slapping’ allegation was first made in her further affidavit filed on 5 December 2017, in which the mother alleged that the child had disclosed that his stepmother had hit him a couple of times across the face and that this disclosure occurred after the interim orders made on 26 November 2015.

10. In her earlier report, the family consultant observed:

    Ms Lockhart… advises that [X] was reporting to her that he was being exposed to conflict between Mr and Mrs White, that Ms M was denigrating him to Mr White, and that Ms M was behaving in ways he did not life (sic) such as putting spices in his pancake mixture and flicking water in his face.  These behaviours and incidents have reportedly ceased since early 2016 when Mr White commenced taking [X] to the ‘farm’ to spend his time with him, without Ms M being present.[25]

    [25] Family report prepared by Ms D dated 19 May 2017 at paragraph [23].

11. The family consultant also noted the child’s views in relation to Ms M:

    Now, [X] would describe Ms M as ‘a horrible stepmother’.  He holds this view as she has ‘actually hit me’’…[26]

    [26] Family report prepared by Ms D dated 19 May 2017 at paragraph [45].

12. On the basis of the evidence before me, I am satisfied that in the period after the birth of [B], Ms M may well have engaged in some of the conduct alleged by the child. Although it is plausible that at some point Ms M may have physically hit the child, I am not satisfied on the basis of the evidence before me that Ms M slapped the child on the face as alleged. Although I accept that the child did report some conduct which left him feeling uncomfortable, including possibly some physical contact, I find that the mother has exaggerated the child’s concerns to support her claim. 

13. In any event, the child has now said that he feels safe in the father’s home and the focus should be on trying to reintegrate him into that home and repair his relationship with Ms M. Concerns that may arise in relation to Ms M can be addressed by orders requiring the father to be in substantial attendance while the child is in his home, at least initially and a restraint on either Mr or Mrs White engaging in any form of physical discipline of the child. 

14. Having said that, I recognise that a significant amount of work will need to be undertaken by both the father and Ms M, supported by the mother, to repair the child’s relationship with Ms M. To his credit, the father has indicated he is prepared to engage professional support to assist in this process.[27] I find that the child clearly has a warm and loving relationship with his siblings and supporting these relationships are important to his continued wellbeing.

    [27] Transcript page 96 at lines 16 to 17.

15. When interviewed by the family consultant on 10 April 2018, the father indicated that it was not his intention to facilitate any time between the child and Ms M as a protective measure to avoid any allegations being made against her by the child, or perhaps more accurately, by the mother. 

16. After speaking with Ms M, the family consultant also noted the following:

    It is Ms M’s position that she has not and will not re-initiate any efforts to rebuild a relationship with [X] as there is too great a risk that allegations could be remade in the future.  She does not trust Ms Lockhart in this context.  The impacts of the allegations and the stress of the circumstances has created undue stress on Ms M, as well as her relationship with Mr White.  Ms M implores that the allegations have a profound impact on her and she feels she has no choice but to concede that Mr White will have an autonomous relationship with [X].  She reports being supportive of [X] spending time with his siblings and offers, ‘I’m only staying out of the picture to avoid any more allegations.’[28]

    [28] Family report prepared by Ms D dated 10 April 2018 at paragraph [45].

17. Whilst it would have been preferable for Ms M to have given evidence directly to this court, I have had regard to the comments that she made to the family consultant that she has effectively withdrawn from having a relationship with the child to avoid what she considers to be unfounded allegations being made against her. 

18. Although this may provide some comfort to the mother and father (as it essentially removes the opportunity for any allegations to be made against either of them), it is ultimately not in the child’s best interests for him not to have a relationship with his stepmother, particularly in relation to:

    a)the impact it has on the child’s ability to feel part of the father’s family; and

    b)the capacity to facilitate the child’s relationship with his siblings. 

19. Given that the allegations against Ms M relate to conduct which occurred in 2015, and in the context of:

    a)a new baby having arrived in the family with the attendant stresses and challenges that that would inevitably bring; and

    b)the child’s reporting that he feels safe when spending time with the father at his home in Suburb A and that he is comfortable that his father would act protectively should the need arise,

    I am satisfied that there is no ongoing risk to the child if he were to spend time in the father’s home. Nor do I find that there is a need for any restraint on the child being in the care of Ms M in the long-term. 

20. Notwithstanding the warmth that the child clearly expressed towards Ms M when he met with her during the child inclusive conference on 25 November 2015, it is clear from his comments subsequently that some work will need to be done to re-establish his relationship with Ms M. 

21. It is appropriate for the orders to provide that the father will be in substantial attendance whilst the child spends time with him in the Suburb A home for the first 12 months. In addition, it would be appropriate for the father and Ms M to undertake a step family program to assist them in dealing with any issues which might arise.

22. It is also hoped that once the parties read this decision, each of the adults in this child’s life are able to reflect on their conduct and see what they can do to facilitate and support the child having a meaningful relationship not only with both parents, but also with his stepmother and siblings, all of whom are now part of his family.

Alleged risk of harm posed by [A]

1. As stated, it is common ground that the father’s adopted son, [A], has a history of drug and related mental health issues. The father concedes as much, but says that he knows when [A] is unwell and when he is well, he poses no risk to the child.  The father seeks that the order with respect to [A] be discharged. 

2. The mother objects to this and states that she is concerned about the child being left in [A]’s care due to his ill mental health and drug related issues. 

3. The mother’s evidence in relation to [A] is as follows:

   a)[A] suffers from drug induced psychosis and has done since he was a teenager;

   b)he is now in his late 20s and is regularly admitted to the High Dependency Unit at the Hospital;

   c)the father has taken the child to visit [A] on occasion whilst he has been in hospital; and

   d)in 2016, the father left the child in [A]’s care at the family farm.

4. The mother conceded in her oral evidence that she had not seen [A] since 2016 and her views of his current state of health are based on what the child has told her.[29]

   [29] Transcript page 57.

5. The father’s evidence in relation to [A] is as follows:

   a)he concedes that [A] has a history or drug and related mental health issues;

   b)he also concedes that at times this has resulted in [A] being hospitalised and that he sometimes suffers from drug induced psychosis;

   c)he can tell whether [A] is under the influence of drugs at any point in time and also whether he is suffering from a psychosis; and

   d)he ought to be able to exercise his judgement as to when the child should spend time with [A] and he would act protectively in making that decision.

6. I am satisfied on the basis of the concessions made by the father that [A] does suffer from drug and mental health issues from time to time. In the absence of any medical evidence as to the nature of those issues and whether they are being managed appropriately, it is not possible to make an assessment as to whether the child would be at risk if left in [A]’s care. 

7. I accept the father’s evidence that he would act protectively with regard to assessing whether the child ought to be in [A]’s care.

8. In this case however, given the high level of conflict between the parents, the concession with respect to [A]’s current state of health and the fact that there is no evidence of any need for the father to leave the child in [A]’s care without the father being in attendance, it is preferable to retain the injunction on the father leaving the child in [A]’s care. 

9. That of course does not mean that the child and [A] cannot spend time together at the father’s home or at other family gatherings.  It simply means that the father is not to leave the child in [A]’s care. It is hoped that this will go some way to alleviating the mother’s concerns in this regard and will remove another issue of potential dispute between the parents.  The less opportunity there is for the parents to argue, the better it will be for the child.

Make-up time

1. The father seeks an order dealing with make-up time. 

2. In response to questions from the ICL, the father conceded that where he had been unable to see the child for some reason, he requested make-up time.  When the mother refused it, he simply overheld the child, providing further opportunity for conflict between himself and the mother.[30]

   [30] Transcript page 98 to 99.

3. In his closing submissions, the father sought an order providing make-up time for either parent who may be unable to spend their allocated time with the child.  The basis of this application was, in the father’s words, as follows:

   …because for the last eight years, the only way you get that time made up has been to come to court.

   …

   …not being able to get make-up time – has actually caused conflict… I understand that there could be an argument about when the make-up time would be, but, at least, you know, there’s some provision for it where there’s nothing now.  And there has been no makeup time ever in eight years.  So as far as time missed is concerned, that’s - … that’s time lost you don’t get it back.[31]

   [31] Transcript page 109.

4. In relation to the question of make-up time, the following exchange occurred between the father and the ICL:

   ICL:… if you can’t attend time with [X], would it not be better to just leave things as they were and then there wouldn’t be so much conflict?

   Mr White:I think it would be better if the court ordered that whatever time is missed is made up. …

   ICL:And how do you propose a court determines whether or not the time that you miss out is genuine or not?

   Mr White:Well, that could be the… mother as well.  Could also be in a same situation where she might not be able to do something …[32]

   [32] Transcript page 98 at lines 28 to 36.

5. Whilst it would be preferable for the parents to communicate to accommodate unforeseen circumstances arising from time to time which may adversely affect either parent’s ability to spend time with the child and adjust that time to accommodate those circumstances, it is clear from the evidence that this does not appear possible for these parents. 

6. In those circumstances, it is necessary that the orders clearly define the parties’ obligations to avoid confusion and scope for further dispute. The flexibility which the father seeks in relation to make-up time is not consistent with such certainty. 

The child’s wishes generally

1. This parents separated when the child was an infant. The level of conflict between them since, has been high. 

2. It is against that background that the child’s wishes need to be considered. The family consultant observed in her most recent report:

   Regarding his views and wishes, [X] advised that he would like things to remain unchanged.  He wants the Wednesday nights to occur at Suburb A however, and not out at the farm.  He wants the Friday to Monday days to remain unchanged and he would not reduce or increase his time with Mr White.  He reports not wanting additional nights with his father from what he currently has.[33]

   [33] Family report prepared by Ms D dated 10 April 2018 at paragraph [54].

3. To his credit, the father has revised his application whereby he now seeks that the child continue to live with the mother and spend alternate weekend time and one mid-week overnight with him.

Easter

1. Although no evidence was led with respect to the Easter holidays, it was agreed between the parties that the child should spend the whole of the Easter period each year with one parent, alternating from year to year.[34] The practical difficulty with this is that Easter generally falls within the school holidays.

   [34] Transcript page 121.

2. On balance, and in the interest of crafting orders which provide certainty and avoid conflict, I am of the view that when the Easter period falls in the school holidays, the time should be dealt with in the same way as any other school holiday. In the rare event that the Easter period falls outside the school holidays, the child will spend half with each parent.

Watch list order

1. As stated above, a watch list order made by consent on 14 September 2010 and continued by the March 2012 final orders prevents either parent from removing the child from Australia.

2. The mother is from (country omitted) and deposes that her family all still live there. On 24 September 2014, orders were made:

   a)permitting the mother to obtain an Australian passport for the child without the written consent of the father;

   b)permitting the mother to travel with the child over a specified period, subject to having provided 21 days’ prior notice of the intended travel and depositing a surety in the sum of $15,000 to the court registry to be released upon the child’s return and the return of the child’s passport, also to the court registry; and

   c)suspending the watch list order to permit this travel.

3. In her present application, the mother seeks an order permitting her to travel to (country omitted) every two years with the child for a six week period from mid December to the end of January to allow her and the child to spend time with the maternal family. 

4. In oral evidence, the mother said:

   I’ve travelled to (country omitted) by the order of this court … and I came back.  It was never my intention, your Honour, … I’m never a flight risk, because I wouldn’t do that to my son, and I know it is against the law, and I cannot live hiding throughout my life, and I will never run away.  My aim is to take [X] to (country omitted) as that’s where the maternal family is and for him to have a relationship with his grandparents, which the father doesn’t allow.[35]

   [35] Transcript page 36 at lines 11 to 17.

5. In closing submissions, counsel for the mother stated that the mother had instructed her that:

   …if the court allows her to go she would be prepared to put up a surety.  And she has travelled there before by order of the court, with the child and returned.  There’s no reason to suggest that she won’t return this time.  She has a good job here.  She has been here a long time.  She’s an Australian citizen.[36]

   [36] Transcript page 112 at lines 20 to 24.

1. In response to a question of how much of a surety, she indicated that she would be prepared to provide a surety of $15,000.[37]

   [37] Transcript page 112 at line 30.

2. The father objected to the mother’s proposal to travel with the child to (country omitted).  He gave evidence that he considers the mother to be a flight risk. He also made serious allegations about the appropriateness of the mother’s family members. In the orders which the father seeks, he states that the child not be permitted to leave Australia “…for any reason other than a school excursion and that the mother not be allowed to travel with any such excursion.”

3. He also submitted:

   a)(country omitted) is not a signatory to the Hague Convention; and

   b)the mother owns a number of properties in (country omitted) and none in Australia and consequently she is a flight risk and therefore ought not be permitted to travel to (country omitted) with the child. 

4. During cross examination, the father conceded that the mother had travelled with the child to (country omitted) in 2015 pursuant to court orders and returned.  When asked if a requirement that the mother leave a surety again would provide the father with some comfort in relation to any travel, the father replied, “provided it was, say, a couple of hundred thousand dollars.”[38]

   [38] Transcript page 93 at lines 41 to 43.

5. The father also conceded that the mother was an Australian citizen, had a good job in Australia and had been living here for some 11 to 12 years.  He acknowledged that the child would benefit from the opportunity of experiencing his mother’s cultural heritage, but maintained that he considered her to be a flight risk. 

6. The ICL’s position in relation to the travel order sought by the mother is that a surety of $15,000 is sufficient. The ICL was supportive of the mother travelling to (country omitted) with the child every second year.

7. The family consultant made the following observations in relation to this aspect of the mother’s claim:

   With regard to [X]’s opportunity to travel to (country omitted), it is likely that the Court will be guided by any evidence before them around the risks posed to [X] should this occur. Ms Lockhart connection to her culture and capacity to share this with [X], her family’s opportunity to travel to spend time with [X] in Australia, and [X]’s awareness of the mistrust between the parties are other relevant considerations for [X] from a social science perspective.  It is likely that [X]’s anxiety about travelling will be high in the context of his parents (sic) difficulties in not sheltering him from their personal views and grievances and in this regard, the emotional pressure of such travel occur (sic) could undermine the benefits posed to him in the first instance.[39]

   [39] Family report prepared by Ms D dated 19 May 2017 at paragraph [59].

8. The mother seeks an order that she be permitted to travel with the child for six weeks over the summer school holidays. She proposed that if permitted to take the child overseas during this period, the father would be entitled to make up time over the course of the remainder of the year. It became apparent that if the mother did take the child overseas for six weeks, the child would therefore spend the entire summer holidays with the mother and then each of the school holidays the following year with the father.

Best interests of the child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

4. The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

5. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

6. I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is in this child’s interests to have a meaningful relationship with both parents. The level of acrimony between the parents of this child is such that neither of them appears capable of putting their own concerns and issues about the other aside for the benefit of the child. Much has been revealed in the length and nature of this litigation.

2. Notwithstanding this, the child has a relationship with both parents and on the basis of the totality of the evidence before me, both of those relationships ought to continue to be fostered and encouraged.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Much of the mother’s case raised concerns about the child’s exposure to family violence in the father’s home, principally at the hands of Ms M and potentially, [A]. 

2. I have dealt with these matters above. 

3. In balancing the factors set out in sections 60CC(a) and (b) above, I am satisfied that the father will act protectively and that the orders that I make provide for an appropriate balance, having regard to the child’s interests in developing a relationship with his stepmother and his new siblings.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child’s views as expressed to the family consultant have been considered in formulating the proposed orders. 

2. They reflect the child’s desire to continue spending time with his father and his new siblings with whom he has a developing relationship as well as his desires to continue to live with his mother.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. I have described the child’s relationship with each of his parents and other significant people in his life above. 

2. It is evident from the child’s comments to the family consultant that he is acutely aware of the conflict between his parents. That conflict, if it remains unabated, has the potential to damage not only his relationship with one or both of his parents but also his relationship with his siblings. 

3. These parents really need to look at what each of them can do to support this child in strengthening these crucial relationships. 

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)  to communicate with the child

1. The mother has been granted sole parental responsibility for the child and therefore makes most of the day-to-day decisions relating to his care, welfare and development. 

2. The father has also demonstrated, through proceedings in this court, his desire to continue to communicate with and participate in the child’s life. 

3. The criticism that each parent makes about the other’s failure to support the child’s interests in various sports and activities is disappointing and petty.  This child is 10 years old and for much of his life, has been exposed to the dysfunctional and highly conflictual relationship between his parents.  The damage that this undoubtedly has done and will continue to do, will outweigh any disappointment that the child may experience as a result of not fully participating in one or other of the extra-curricular activities that he is currently engaged in.

4. It is hoped that at some point, these parents will understand this and refocus their attention to what the child actually needs rather than simply refusing to support or participate in something because to do so may be perceived as an act of weakness in their war against the other parent.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Each parent has met the child’s needs to the extent that they provide for his basic daily requirements.

2. Having said that, I repeat my comments above about the failure of both parents to avoid ongoing conflict and the impact that this had on the child.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The proposed orders do not result in any substantial change to the child’s living or time spend arrangements with either parent. It is hoped that these orders will allow the child to repair his relationship with Ms M and deepen his relationship with his siblings in his father’s home.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The issue of travel to the father’s family farm during time has been discussed above.

2. I am satisfied that the proposed orders address these difficulties adequately. Whilst it is a fair distance from the child’s school to the family farm, it is not unusual for children whose parents have a holiday home to travel such distances on weekends and there is no evidence before this court that the commute is having an undue impact on the child’s education.

3. To the extent that it impacts upon the child’s ability to participate in (sport) on a Saturday morning, the child seems to have adapted to this and as stated above, the mother has the option to explore whether there are alternatives available on a weekday which will not impact the child’s time with the father.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. Whilst I accept that each parent has the capacity to provide for the child’s needs in many respects, whether physical, emotional or psychological, neither parent appears to be able to manage their disdain and lack of trust in the other to co-parent without acrimony. This ongoing and incessant conflict in itself has the capacity to damage the child’s emotional wellbeing. Unfortunately, neither parent appears to be able to appreciate this nor regulate their own behaviour if they do recognise it.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. This factor is not a relevant consideration in this case.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor is not a relevant consideration in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. As discussed above, both parents have demonstrated that they are able to and do accept the responsibility of parenthood. However, for the reasons discussed above, their inability to avoid and/or resolve conflict between themselves has hindered their capacity to act in a child focused manner.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. Questions of family violence have been explored above and have been taken into account in determining what orders would be in the child’s best interests.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

1. No current family violence orders apply in this case.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The proposed orders recognise that these parents cannot co-parent and therefore presumes that they will ‘parallel parent’ this child. This will inevitably have some detrimental impact on the child including for example, his inability to commit to participating in particular team sports and other extra-curricular activities if both parents do not support those activities. However, this impact must be weighed against the tension and conflict which will inevitably flow from any order requiring the parents’ mutual support for an activity which they each believe the child is not really interested in but is simply doing for the other parent’s benefit.

2. The proposed orders are therefore aimed at minimising ongoing conflict and litigation. 

3. It is hoped that these orders provide sufficient clarity to avoid the need for future litigation. 

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. In relation to the orders the mother seeks to permit her to travel to (country omitted) with the child and the order sought by the father for the current watch list order to remain in place, I have had regard to the following factors:

   a)the maternal family lives in (country omitted) and the child has had limited opportunity to date to develop a relationship with them;

   b)the mother has previously been permitted by this court to take the child to (country omitted) and has complied with court orders regarding such travel; and

   c)weighed against this are the father’s concerns about the mother’s potential not to return the child to Australia.

2. I am satisfied that an order permitting the mother to travel to (country omitted) with the child once every three years is in the child’s best interests and strikes the right balance between the competing concerns raised.

3. I have had regard to the conflict between the parties and the concern the father has expressed about the mother being a flight risk. The proposed orders strike a balance between those concerns and the child’s ability to develop a relationship with the maternal family. The mother has demonstrated a preparedness to comply with an order requiring her to return to Australia with the child when given the opportunity to travel to (country omitted).

4. In those circumstances, I propose ordering that the watch list order will remain in place until 1 December 2019. That will provide the parents with just over 12 months post-litigation to settle into the arrangement specified in the new orders. Thereafter, the mother is permitted to travel to (country omitted) with the child once every three years, subject to providing the father with prior notice and paying a surety to the court of $15,000.

5. The child’s passport is otherwise to remain held in the registry of this court.  

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note:     The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. Given the level of conflict between these parties, I am satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility. I therefore find that it is appropriate for the mother to retain sole parental responsibility.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of section 65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent.

2. Having come to my views in relation to parental responsibility, it is not necessary for me to consider the child spending equal or substantial and significant time, with each parent.

Conclusion

1. For each of these reasons, I find that the proposed orders are in the child’s best interests and I make the orders set out at the beginning of these reasons for judgment.

I certify that the preceding one-hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:     2 November 2018