Madar & McCormack (No 2) - [2022] FedCFamC2F 1405

Federal Circuit and Family Court of Australia
(DIVISION 2)
Madar & McCormack (No 2) [2022] FedCFamC2F 1405

File number(s): ADC 1045 of 2020

Judgment of: JUDGE DICKSON

Date of judgment: 21 October 2022

Catchwords: FAMILY LAW – CHILDREN – 3 years and 5 month old child – allegations of family violence – where there is a final intervention order in place – consideration of best interests of the child – father has previously experienced drug use and mental health issues – where the child continues to be in the mother’s primary care – where there was a unilateral relocation of the child by the mother – where the father seeks for the child to reside closer to where the father currently resides – order for the child to remain living with the mother at the place of their relocation – child to spend time with the father on a gradual and increasing basis – parental responsibility – where the mother seeks sole parental responsibility – order for sole parental responsibility is in the best interests of the child but for the mother to consult with father in relation to decisions she proposes to make

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61B, 61DA

Cases cited:
AMS & AIF (1999) 199 CLR 160

Bale & Bale [2016] FCCA 680

D & SV [2003] FamCA280

Heath & Hemming (No 2) [2011] FamCA 749

Jurchenko & Foster [2014] FamCAFC 127

Malcolm & Monroe & Anor [2011] FamCAFC 16

Mazorski & Albright [2007] FamCA 520

MRR & GR [2010] 240 CLR 461

Oswald & Karrington [2016] FamCAFC 152

U & U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 363

Date of last submission/s: 19 September 2022

Date of hearing: 14-17 June 2022 & 19 September 2022

Place: Adelaide

Counsel for the Applicant: Mr Anderson

Solicitor for the Applicant: Angela Ferdinandy

Counsel for the Respondent: Ms Cocks

Solicitor for the Respondent: David Burrell & Co
ORDERS

ADC 1045 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MADAR

Applicant

AND:
MS MCCORMACK

Respondent

order made by:

JUDGE DICKSON

DATE OF ORDER:

21 October 2022

THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The Mother shall have sole parental responsibility for the child X born in 2019 (‘the child’).
3.In the exercise of parental responsibility the Mother shall:
(a)Inform the Father via email or text message of the major issue that has arisen and invite his written comments with such notice to be given to the Father within seven (7) days of such an issue arising SAVE AND EXCEPT in the event of an emergency in which case such notice shall be as soon as possible;
(b)The Father shall provide his written comments by email to the Mother with seven (7) days; and
(c)The Mother shall take those comments, if made, into account and then make a final decision and inform the Father of that decision.

4.The child shall live with the Mother.
5.The child shall spend time with the Father:-
(a)From the date of these Orders until 2023 (child’s 4th birthday):-
(i)Each alternate Saturday from 8:30am until 4:30pm (with both handovers to take place at City B Police Station);
(ii)Each alternate Sunday from 8:00am until 4:00pm (with both handovers to take place at City B Police Station);
(iii)Each intervening Thursday from 8:30am until 4:30pm (with both handovers to take place at City B Police Station); and
(iv)Each intervening Friday from 8:00am until 4:00pm (with both handovers to take place at City B Police Station).

(b)From 2023 (child’s 4th birthday) until 2023:-
(i)Each alternate weekend from 8:00am on Saturday until 4:00pm on Sunday (with handover at the commencement to take place at City B Police Station and with handover at the conclusion to take place on the lawn area at the front of the Town C Hotel);
(ii)Each intervening Wednesday from 3:15pm (or the conclusion of kindergarten) until 6:30pm (with the Father or a suitable person nominated by the Father in accordance with paragraph 12 to collect the child from kindergarten at the commencement of his time and with handover at the conclusion to take place on the lawn area at the front of the Town C Hotel).

(c)From 2023 until 2024 (child’s 5th birthday):-
(i)Each alternate weekend from 3:15pm (or the conclusion of kindergarten) on Friday until 4:00pm on Sunday (with the Father or a suitable person nominated by the Father in accordance with paragraph 12 to collect the child from kindergarten or the lawn area at the front of the Town C Hotel if a non-kindergarten day at the commencement of his time and with handover at the conclusion to take place at the City B Police Station).
(ii)Each intervening Wednesday from 3:15pm (or the conclusion of kindergarten) until 6:30pm (with the Father or a suitable person nominated by the Father in accordance with paragraph 12 to collect the child from kindergarten at the commencement of his time and with handover at the conclusion to take place on the lawn area at the front of the Town C Hotel).

(d)As and from 2024 (child’s 5th birthday):-
(i)Each alternate weekend from the conclusion of school on Friday (or 4:00pm if a non-school day) to the commencement of school on Monday (or 9:00am if a non-school day) (with handovers to take place at the child’s school);
(ii)Each intervening Wednesday from the conclusion of school (or 3:30pm if a non-school day) until 6:30pm (with the Father or a suitable person nominated by the Father in accordance with paragraph 12 to collect the child from school at the commencement of his time and with handover at the conclusion to take place on the lawn area at the front of the Town C Hotel).

6.The Father shall provide the Mother with no less than 24 hours’ notice via the Divvito Co-Parenting App (‘the parenting app’) of his intention to exercise the time referred to in paragraph 5(b)(ii), 5(c)(ii) and 5(d)(ii) herein.
7.For the purposes of school holidays the child shall spend time with the Father as follows:
(a)For the April 2024 school holidays the time referred to in paragraph 5(d)(i) herein shall be extended to 4:00pm Tuesday;
(b)For the July 2024 school holidays the time referred to in paragraph 5(d)(i) shall be extended to 4:00pm Wednesday;
(c)For the September 2024 school holidays the time referred to in a paragraph 5(d)(i) shall be extended to 4:00pm Thursday;
(d)For the Christmas 2024/2025 school holidays the time referred to in paragraph 5(d)(i) herein shall be extended to 4:00pm Friday;
(e)As and from the April 2025 short school holidays:
(i)With the Father for half of all short school holidays at times to be agreed between the parties in writing or in default of agreement from the conclusion of school Friday to 5:00pm on the middle Saturday following the usual rotation of weekend time; and
(ii)The time referred to in paragraph 5(d)(ii) on each intervening Wednesday is suspended.

(f)As and from the Christmas 2025/2026 school holidays:
(i)For half of the Christmas school holidays at times to be agreed between the parties in writing or in default of agreement on a week about basis from the conclusion of school (or 4:00pm if a non-school day) to 4:00pm on the following Friday, following the usual rotation of weekend time.
(ii)The time referred to in paragraph 5(d)(ii) on each intervening Wednesday is suspended.

8.For the purposes of special occasions the child shall spend time with each of the parties as follows:
(a)For Christmas Day 2022 the child shall spend time with the Father from 9:00am until 5:00pm;
(b)From December 2023 onwards:-
(i)The child shall live with the Mother at Christmas as follows:-
A.From 4:00pm on Christmas Eve until 4:00pm on Christmas Day in the year 2023 and each alternate year thereafter; AND
B.From 4:00pm on Christmas Day until 4:00pm Boxing Day in the year 2024 and each alternate year thereafter.

(ii)The child shall live with the Father at Christmas as follows:-
A.From 4:00pm on Christmas Day until 4:00pm Boxing Day in the year 2023 and each alternate year thereafter; AND
B.From 4:00pm on Christmas Eve until 4:00pm on Christmas Day in the year 2024 and each alternate year thereafter.

(c)That from 2023 onwards the child shall spend time with each party for the Easter long weekend as follows:-
(i)With the Mother:-
A.from 6:00pm on Easter Saturday until 6:00pm on Easter Monday in the year 2023 and each alternate year thereafter; and
B.from the conclusion of school on Easter Thursday (or 6:00pm if a non-school day) until 6:00pm on Easter Saturday in the year 2024 and each alternate year thereafter.

(ii)With the Father:-
A.from the conclusion of school on Easter Thursday (or 6:00pm if a non-school day) until 6:00pm on Easter Saturday in the year 2023 and each alternate year thereafter; and
B.from 6:00pm on Easter Saturday until 6:00pm on Easter Monday in the year 2024 and each alternate year thereafter.

(d)The child shall spend time with the party that does not have the child living with them pursuant to these Orders on the child’s birthday from 11:00am until 4:00pm unless otherwise agreed in advance in writing via the parenting app SAVE AND EXCEPT that if either party is away on holidays, then each party shall facilitate a FaceTime call at 9:00am that day to the other party.
(e)In the event that the child is in the care of the other party on either party’s birthday, the parties shall ensure that the child shall spend time with the party whose birthday it is and if necessary, they shall swap the weekend that the child is in the care of the Father to facilitate same.
(f)In the event that the child is to be with the Father on Mother's Day, the Father’s time on Mother’s Day shall be suspended and the child shall return to the Mother’s care at 6:00pm on the Saturday before Mother’s Day and remain in the Mother’s care until the next time-spend-with period with the Father.
(g)In the event that the child is to be with the Mother on Father's Day the child shall spend time with the Father from 6:00pm on the Saturday before Father’s Day until the commencement of kindergarten or school on the Monday (or such earlier handover time as the parties agree in writing).

9.All handovers shall take place as specified in paragraph 10 out herein unless otherwise agreed in advance by the parties in writing via the parenting app.
10.That unless otherwise provided for herein, any handovers not occurring at the said child’s kindergarten or school shall take place by the party who is coming to collect the child from either the lawn area at the front of the Town C Hotel or the City B Police Station as the case may be and the party to whom the child is returning to shall collect the child from the other party’s relevant handover location at the conclusion thereof NOTING THAT the parties are at liberty to vary the point of handover as agreed in writing via the parenting app.
11.Either party is at liberty to have an agent conduct handovers on their behalf should they so elect.
12.Suitable alternative persons for conducting handover shall be:-
(a)In the case of the Father, his mother, his brother’s partner Ms D or his niece V;
(b)In the case of the Mother, either her mother or father or her partner Mr E and
(c)Such other person as agreed between the parties via the parenting app.

13.Each of the parties are at liberty to have one of the agreed suitable alternative persons specified in paragraph 12 herein attend with them or on their behalf at any handover.
14.From the date of these Orders, the Mother shall facilitate the child having a FaceTime video call with the Father each alternate Monday (after the child has been in the care of the Mother for the weekend) at 5:00pm with such video call not to exceed sixty (60) minutes in length.
15.As and from January 2024 both parties shall facilitate the child communicating with the other party by telephone in accordance with the child’s express wishes in addition to the FaceTime referred to in paragraph 14 herein.
16.The child shall attend F School for kindergarten and school unless otherwise agreed between the parties in writing.
17.The Mother (and if necessary the Father) shall do all such things and sign all such documents required to enrol the child in F School and the Mother shall confirm the child’s enrolment and acceptance of enrolment with the Father within seven (7) days of receipt of same.
18.The Mother shall do all such things and sign all such documents required to authorise the school to provide copies of relevant school notices, school reports and school communications to the Father directly.
19.The Father be at liberty to attend any special events at the child’s kindergarten / school such as sports days, special school assemblies, parent/teacher interviews and other such events that parties are invited to attend on the following conditions:-
(a)That the Father shall provide written notification to the Mother of his intention to attend such event at least seventy-two (72) hours prior via the parenting app; and
(b)That the parties shall behave in a courteous manner to each other at such events.

20.The parties do communicate with each other by way of the parenting app, SAVE AND EXCEPT in the event of an emergency where such communication shall be by way of telephone.
21.The Father shall notify the Mother via the parenting app of any change to his residential address at least fourteen (14) days prior to moving to any new address.
22.In the event that the Mother intends on moving from the Region C area, the Mother shall notify the Father via the parenting app of any intended change of residential area at least sixty (60) days prior to moving to any new area.
23.Each party shall forthwith inform the other via the parenting app of any serious illness or injuries sustained by the child whilst in their care including the details of any treating medical provider.
24.The parties authorise any medical practitioner or other specialist health care professional seen by the child to contact the other party so as to provide him or her at his or her expense with any information about the child that either party should seek.
25.Each party shall forthwith inform the other any serious illness or injuries sustained by the child whilst in their care and permit the other to attend any hospital or other facility at which the child is admitted or treated.
26.At handover of the child, each party shall provide the other with:
(a)Particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient; and
(b)Any prescriptions or prescribed medications for the child and the other party shall administer those medications during periods when the child is living with him or her.

27.Each party shall provide the other with particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
28.In the event that the child is invited to a party or other special occasion at a time when the child is to spend time with the other party, the Mother or the Father, as the case may be, shall forthwith upon receiving such invitation provide the other party with a copy of such invitation to enable the other party to respond to the invitation as they may choose.
29.Neither party shall unreasonably withhold providing the other party with additional time with the child to enable the child to attend special family events.
30.The Father is at liberty to facilitate the child attending any extra-curricular sports or other activities that the child is enrolled to participate in if such activities fall on a day that the child is in the Father’s care, with the Father to provide the Mother with no less than 24 hours of his intention to do so via the parenting app NOTING THAT there is no requirement that he do so if the parties continue to reside in excess of 1 hours drive from each other’s homes.
31.The parties are each at liberty to attend any extra-curricular or club sports or other activities that the child may be participating in (notwithstanding who has the child in their care) on the following conditions:-
(a)That the Father shall provide written notification to the Mother of his intention to attend such event at least seventy-two (72) hours prior via the parenting app; and
(b)That the parties are to behave in a civil and courteous manner to each other.

32.The parties are restrained and injunctions are hereby granted restraining each of them from:-
(a)discussing adult issues including disseminating information pertaining to these proceedings with or in the presence of the child or allowing any other third party to do so;
(b)denigrating the other party, the other party’s spouse/partner or any of the other party’s extended family to or in the presence of the child or allowing any other third party to do so;
(c)recording each other at handovers (whether it be by audio or video) or from allowing any other person to do so.

33.On a without admission basis the Father be restrained and an injunction do be granted restraining the Father from:-
(a)consuming any illicit substances for at least forty-eight (48) hours prior to the child coming into his care and throughout the period that the child is in his care; and
(b)drinking alcohol to excess in the twenty-four (24) hours prior to the child coming into his care and throughout the entirety of the period that the child is in his care.

34.All extant applications be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Madar & McCormack (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION

The proceedings between Mr Madar (‘the father’) and Ms McCormack (‘the mother’) involves competing parenting applications in relation to future arrangements for their one child X (‘the child’) born in 2019.
At the date of Trial the child was aged 3 years and 5 months of age.
DOCUMENTS RELIED UPON AT TRIAL
Court Documents
The father relies upon the following documents:
(1)Amended Initiating Application filed 19 May 2022;
(2)Trial affidavits filed 18 May 2022 and 14 June 2022;
(3)Trial affidavit of Ms G, paternal grandmother, filed 23 May 2022;
(4)Affidavit of Angela Johanna Boylan, solicitor filed 24 May 2022 (annexing reports from Mr H); and
(5)An Outline of Case Document.

The mother relies upon the following documents:
(1)Further Amended Response to Initiating Application filed 6 June 2022;
(2)Trial affidavit filed 3 June 2022;
(3)Trial affidavit of Mr E, mother’s partner, filed 3 June 2022;
(4)Trial affidavit of Ms J (mother’s psychologist) filed 8 June 2022;
(5)Trial affidavit of Ms K, maternal grandmother, filed 9 June 2022;
(6)Affidavit of Ms L, solicitor filed 14 June 2022 annexing copies of documents produced pursuant to Subpoena to SAPOL;
(7)Trial affidavit of Ms M filed 4 May 2022 (annexing copy of the Family Report dated 2 May 2022);
(8)Child Dispute Conference Memorandum dated 3 August 2020; and
(9)Child Impact Report dated 25 October 2021.
Exhibits
The parties also tendered by way of Exhibit:
Mother
(a)Audio file of recording made by the maternal grandmother on 1 December 2019 (Parts 1 and 2) (Exhibit M1);
(b)Undated SMS messages between the parties in relation to exercises and gym attendance (Exhibit M2);
(c)Bundle of Bank N statements concession account in the name of the mother for the period 3 December 2019 to 2 June 2020 (Exhibit M3);
(d)Text message from the mother to paternal grandmother dated 26 December 2018 (Exhibit M4);
(e)Agreed transcription of voice recordings dated 1 December 2019 (Exhibit M5); and
(f)Letter from Mr O dated 8 June 2022 in relation to the mother’s employment terms and conditions (Exhibit M6).
Father
(a)Report of Dr P dated 18 May 2020 (Exhibit F1);
(b)Mobile Drug and DNA test result for the father dated 8 June 2022 (Exhibit F2);
(c)Email communications between the solicitors for the parties dated 3 July 2020 in relation to effecting handovers between the father and the child (Exhibit F3);
(d)File Note dated 21 September 2021 which was created by Ms Q, the mother’s previous solicitor (Exhibit F4); and
(e)Father’s List of Authorities (Exhibit F5).
ISSUES IN DISPUTE
The parties are at odds with respect to the final orders sought by each of them in relation to the child at Trial.
The issues in dispute can be summarised as follows:
(1)Whether or not the mother should have an order for sole parental responsibility for the child or in the alternative whether or not an order should be made for equal shared parental responsibility;
(2)Living arrangements between the child and each of his parents. The father aspires to a shared care arrangement by the time the child turns 4 years of age. The mother proposes increased time spending in accordance with that recommended in the Family Assessment Report on a graduating and increasing basis; and
(3)Whether or not the mother and the child should be ordered to return to reside within a 65 kilometre radius of City B or whether or not the mother and the child should be permitted to remain living in Town C, South Australia. Town C is situated in regional South Australia approximately 1¾ hours from City B where the father currently resides.
BACKGROUND
The father was born in 1984 and is currently aged 37 years.
The mother was born in 1988 and is currently aged 34 years.
The parties commenced a de facto relationship in or about 2009 or 2010.
The parties were married in 2016 and separated for the final time on 29 November 2019.
The parties have one child subject to these proceedings, who was almost 3½ years of age at the date of Trial. The child was only 10 months of age when the parties separated for the final time.
The mother is a qualified finance professional. The father is a self-employed tradesman.
Since separation, the mother has formed a relationship with Mr E (‘Mr E’). Mr E is a fifth generation farmer based at Town C in the State of South Australia.
Following a significant period of marital disharmony, the parties separated for the final time on 29 November 2019. At separation, the mother and the child moved in with the maternal grandparents. Shortly after being advised that the mother and child were at the home of the maternal grandparents, the father arrived. The father conceded that he was upset at the time of his arrival. The specific details of the impact of what occurred on this occasion are referred to further in this Judgment.
On 30 November 2019, the father spent time with the child in the presence of the maternal grandfather. Again, this visit occurred at the home of the maternal grandparents.
On 1 December 2019, the father had a gun confiscated by the South Australian Police (“SAPOL”) from the former matrimonial home. The father was subsequently arrested and charged with possession of an unregistered firearm but no conviction was recorded.
On 2 December 2019 an incident occurred culminating in the attendance by officers from SAPOL at the home of the maternal grandparents where the mother and the child were resident.
On 3 December 2019, the mother received advice to “go into hiding”. The mother and the child subsequently moved with the maternal grandmother to a “safe house” interstate.
On 3 December 2019, a notification was made to the Department for Child Protection (‘the Department’).
On 4 and 5 December 2019, the father communicated with the maternal grandfather by text message and in person. The tone of the text messages suggested that the father was contemplating self-harm.
On 6 December 2019, the father reported the mother as a missing person to SAPOL. The father also reported the motor vehicle used by the mother as stolen. The father was aware at the time of the motor vehicles being reported stolen by him that the motor vehicle was being used by the mother and had not been stolen.
On 18 December 2019, the mother secured an ex parte Interim Intervention Order listing both the child and herself as protected persons.
On 19 December 2019, the father was served with the said Intervention Order.
On 25 January 2020, officers of SAPOL conducted a welfare check on the father at the request of the mother.
On 3 February 2020, the father obtained a Mental Health Care Plan via his General Practitioner. The father was subsequently diagnosed with depression.
In February 2020, the mother met Mr E on an online dating site and thereafter they commenced a relationship.
On 18 March 2020, the Intervention Order was confirmed on a final basis. The final Intervention Order included only the mother but contained conditions which prevented the father from attending within 50 metres of any education or care facility that the child may attend.
The father was subsequently charged but no conviction was recorded for two breaches of the Intervention Order in relation to the mother. The breaches of the Intervention Order occurred when the parties were inadvertently connected via a dating platform called “R” and when the father telephoned the mother on her mobile telephone.
On 11 March 2020, the father initiated proceedings in the Federal Circuit Court (as it then was).
On 30 March 2020, the father made an appointment to meet with Mr H, a specialist in men’s behaviour.
On 3 August 2020, the parties attended a Child Dispute Conference with Family Consultant S.
On 31 October 2020, the mother introduced the child to Mr E for the first time.
In or around June or July 2021, the mother and Mr E decided to purchase a property at Town C as their joint home although the property was only registered in the name of Mr E.
In or around October 2021, the mother and child moved from City B to Town C to commence cohabitation with Mr E permanently. The mother moved to Town C having received advice from her (then) solicitor that the father should be informed of her decision to move a significant distance away from the father and in the face of ongoing court litigation.
The father was not so advised by the mother that she was moving to Town C with the child.
On 25 October 2021, a Child Impact Report was prepared by Court Child Expert Dr T.
On 2 May 2022, Court Child Expert Ms M published a Family Report as a jointly instructed expert by the parties.
THE MOTHER’S POSITION
At Trial, the mother sought the following orders
PARENTAL RESPONSIBILITY
1.That the Mother shall have sole parental responsibility for the child [X] born in [2019] (“the child”).
LIVING ARRANGEMENTS
2.That the child shall live with the Mother at [Town C] at all times save as specifically provided hereunder.
3.That the child shall spend time with the father:-
a)From the date of these Orders until [2023] (child’s 4^th birthday):-
i)Each alternate Saturday from 8.30am until 4.30pm (with both handovers to take place at [City B] Police Station);
ii)Each alternate Sunday from 8.00am until 4.00pm (with both handovers to take place at [City B] Police Station);
iii)Each intervening Thursday from 8.30am until 4.30pm (with both handovers to take place at [City B] Police Station); and
iv)Each intervening Friday from 8.00am until 4.00pm (with both handovers to take place at [City B] Police Station);
b)From [2023] (child’s 4^th birthday) until 2023:-
i)Each alternate weekend from 8.00am on Saturday until 4.00pm on Sunday (with handover at the commencement to take place at [City B] Police Station and with handover at the conclusion to take place on the lawn area out the front of the [Town C Hotel]);
ii)Each intervening Wednesday from 3.15pm (or the conclusion of kindergarten) until 6.30 pm (with the father to collect the child from kindergarten at the commencement of his time and with handover at the conclusion to take place on the lawn area out the front of the [Town C Hotel]).
c)From [2023] until [2024] (child’s 5^th birthday):-
i)Each alternate weekend from 3.15 pm (or the conclusion of kindergarten) on Friday until 4.00 pm on Sunday (with the father to collect the child from kindergarten or the lawn area out the front of the [Town C Hotel] if a non-kindy day at the commencement of his time and with handover at the conclusion to take place on the lawn area out the front of the [Town C Hotel]);
ii)Each intervening Wednesday from 3.15pm (or the conclusion of kindergarten) until 6.30 pm (with the father to collect the child from kindergarten at the commencement of his time and with handover at the conclusion to take place on the lawn area out the front of the [Town C Hotel]).
d)As and from [2024] (child’s 5^th birthday):-
i)Each alternate weekend from the conclusion of school on Friday (or 4:00 pm if a non-school day) t the commencement of school on Monday (or 9.00am if a non-school day) (with handovers to take place at the child’s school);
ii)Each intervening Wednesday from 3.15pm (or the conclusion of kindergarten) until 6.30 pm (with the father to collect the child from kindergarten at the commencement of his time and with handover at the conclusion to take place on the lawn area out the front of the [Town C Hotel]).
4.Regardless of where the child may be living or spending time from time to time in accordance with these Orders the arrangements for school holidays and special occasions shall be as follows unless otherwise agreed in advance in writing between the parties (and to the extent necessary the operation of paragraph 3 hereof shall be suspended during these periods):-
SCHOOL HOLIDAYS
a)The child shall spend time with the father in the school holidays in accordance with the time-spending orders set out in paragraph 3 herein.
CHRISTMAS
b)From the date of these Orders until December 2026:-
i)The child shall live with the Mother for Christmas Day in the year 2023 and 2025 and if the child is in the care of the Father pursuant to paragraph 3 herein on Christmas Eve he shall be returned to the Mother’s care at 6.00 pm on Christmas Eve;
ii)The child shall spend time with the Father for Christmas Day in the year 2022 and 2024 and in the event that the child is in the care of the Mother pursuant to paragraph 3 herein on Christmas Day, the mother shall make the child available to send time with the father from 9.00 am on Christmas Day until 5.00 pm in those years.
c)From December 2026 onwards:-
i)The child shall live with the Mother at Christmas as follows:-
(1)From 4.00pm on Christmas Eve until 4.00pm on Christmas Day in the year 2027 and each alternate year thereafter; AND
(2)From 4.00pm on Christmas Day until 4.00pm Boxing Day in the year 2026 and each alternate year thereafter.
ii)The child shall live with the Father at Christmas as follows:-
(1)From 4.00pm on Christmas Day until 4.00pm Boxing Day in the year 2027 and each alternate year thereafter; AND
(2)From 4.00pm on Christmas Eve until 4.00pm on Christmas Day in the year 2026 and each alternate year thereafter.
EASTER
d)That from 2025 onwards the child shall spend time with each parent for the Easter long weekend as follows:-
i)With the Mother:-
(1)from the conclusion of school on Easter Thursday (or 6.00pm if a non-school day) until 6.00pm on Easter Saturday in the year 2024 and each alternate year thereafter;
(2)from 6.00pm on Easter Saturday until 6.00pm on Easter Monday in the year 2025 and each alternate year thereafter.
ii)With the Father:-
(1)from the conclusion of school on Easter Thursday (or 6.00pm if a non-school day) until 6.00pm on Easter Saturday in the year 2025 and each alternate year thereafter; and
(2)from 6.00pm on Easter Saturday until 6.00pm on Easter Monday in the year 2024 and each alternate year thereafter.
BIRTHDAYS
e)That the child spend time with the parent that does not have the child living with them pursuant to these Orders on the child’s birthday from 11.00am until 4.00pm unless otherwise agreed in advance in writing via the parenting app.
f)That in the event that the child is in the care of the other parent on either parent’s birthday, the parties shall ensure that the child shall spend time with the parent whose birthday it is and if necessary, they shall swap the weekend that the child is in the care of the father to facilitate same.
MOTHER’S DAY
g)In the event that the child is to be with the Father on Mother’s Day, the father’s time on Mother’s Day shall be suspended and the child shall return to the mother’s care at pm on the Saturday before mother’s day and remain in the mother’s care until the next time-spend-with period with the father.
FATHER’S DAY
h)In the event that the child is to be with the mother on Father’s Day the child shall spend time with the Father from 9.00am until 5.00pm on Father’s Day until January 2024 and thereafter the child shall spend time with the father on Father’s Day from 6.00pm on the Saturday before Father’s day until the commencement of school on Monday.
HANDOVERS
5.That all handovers shall take place as specified in the paragraphs set out herein under the heading “living Arrangements” unless otherwise agreed in advance by the parties in writing via the parenting app.
6.That all handovers for special occasion that fall outside of the usual living arrangements (such as birthdays and Christmas) shall take place as agreed between the parties in advance via the parenting app or in default of agreement, the parent who the child is coming to shall collect the child from either the lawn area out the front of the [Town C Hotel] or the [City B] Police Station as the case may be and the parent to whom the child is returning to shall collect the child from the other party’s relevant handover location at the conclusion.
7.That all handovers shall be conducted by the parties personally unless otherwise agreed between the parties in advance and in writing via the parenting app.
8.If either of the parties are unable to personally attend handover then suitable alternative persons for conducting handover shall be:-
a)In the case of the father, his mother, his brother’s partner [Ms D] or his niece [V]; and
b)In the case of the mother, either her mother or father, her partner [Mr E], or any member of [Mr E]’s family living in [Town C].
9.That each of the parties are at liberty to have one of the agreed suitable alternative persons specified in paragraph 8 herein attend any handover with them.
10.That neither party shall bring any other adult party to handover save and except for the persons specified in paragraph 8 herein without the prior written consent of the other parent.
COMMUNICATION
11.That from the date of these Orders the mother shall facilitate the child having FaceTime video call with the father each alternate Monday (after the child has been in the care of the mother for the weekend) at 5.00pm with such video call not to exceed (60) minutes in length.
12.That as and from January 2024 both parties shall facilitate [X] communicating with the other parent by telephone in accordance with [X]’s express wishes.
SCHOOLING
13.That the child shall attend [F] School for kindergarten and school.
14.That the mother (and if necessary the father) shall do all such things and sign all such documents required to enrol the child in [F] School and the mother shall confirm the child’s enrolment and acceptance of enrolment with the father within seven (7) days of receipt of same.
15.That the mother shall do all such things and sign all such documents required to authorise the school to provide copies of relevant school notices, school reports and school communications to the father directly.
16.That the father be at liberty to attend any special events at the child’s kindy / school such as sports days, special school assemblies and other such events that parents are invited to attend on the following conditions:-
a)That the father shall provide written notification to the mother of his intention to attend such event at least seventy-two (72) hours prior via the parenting app; and
b)That the father shall not approach the mother or come within 20m of the mother, the mother’s partner, the mother’s parents or any other person who may be in attendance with the mother at such event.
ON-GOING COUNSELLING / THERAPY FOR THE FATHER
17.That within twenty-one days of final orders being made, the father do enrol in a domestic violence awareness course and that the father do provide proof of completion of that course to the mother’s solicitors within seven (7) days of completing same.
18.That within twenty-one days of final orders being made, the father do enrol in a drug and alcohol awareness course and that the father do provide proof of completion of that course to the mother’s solicitors within seven (7) days of completing same.
19.That the father do continue to attend on-going therapeutic counselling with Mr H (or such other qualified psychologist as the parties may agree) for at least six (6) sessions per year until the child attains 5.5 years of age.
RESIDENTIAL ADDRESS DETAILS
20.That the father shall notify the mother via the parenting app of any change to his residential address at least fourteen (14) days prior to moving to any new address.
21.That in the event that the mother intends on moving from the [Town C] area or surrounding areas, that the mother shall notify the father via the parenting app of any intended change of residential area at least fourteen (14) days prior to moving to any new area.
ANNUAL VACATIONS
22.That the mother shall be at liberty to take the child on a holiday at least annually for a continuous period of fourteen (14) days provided that the mother provide forty-two (42) days’ written notice of her intention to travel to the father via the parenting app.
23.When giving notice of any intended holiday the mother shall provide the father with the following information:
a)An itinerary;
b)Flight details (if applicable); and
c)Contact details for the duration of the holiday.
24.The mother shall facilitate telephone communication between the child and the father on at least two (2) occasions each week whilst on the holiday.
EXTENDED HOLIDAYS
25.That in addition to the annual vacation referred to in 22 herein, the mother shall be at liberty to take the child on an extended holiday (including overseas) once in every two (2) year period for a minimum period of three (3) weeks and a maximum period of six (6) weeks provided that the mother provides fifty-six (56) days’ written notice of her intention to take such an extended holiday via the parenting app.
26.That the father shall sign and return any documents required to allow the mother to take the child on an extended holiday within seven (7) days of same being presented to him by the mother including but not limited to any Passport application or Visa application.
27.When giving notice of any intended extended holiday the mother shall provide the father with the following information:
a)An itinerary;
b)Flight details (if applicable); and
c)Contact details for the duration of the holiday.
28.The mother shall facilitate telephone / facetime communication between the child and the father on at lest two (2) occasion each week whilst on the extended holiday.
HEALTH ISSUES
29.Each parent shall forthwith inform the other via the parenting communication app of any serious illness or injuries sustained by the child whilst in their care.
30.Each parent shall provide the other with particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
31.Each parent shall provide the other with any prescriptions or prescribed medications for the child and the other parent shall administer those medications during periods when the child is living with them.
SPECIAL EVENTS
32.That in the event that the child is invited to a party or other special occasion at a time when the child is to spend time the other parent the Mother or the Father as the case may be shall forthwith upon receiving such invitation provide the other parent with a copy of such invitation to enable the other parent to respond to the invitation as they may choose.
33.That neither parent shall unreasonably withhold providing the other parent with additional time with the child to enable the child to attend special family events.
EXTRA-CURRICULAR ACTIVITIES
34.That the father shall ensure that the child attends any extra-curricular sports or other activities that the child is enrolled to participate in if such activities fall on a day that the child is in the father’s care unless otherwise agreed in advance in writing with the other via the parenting app.
35.That the parents are each at liberty to attend any extra-curricular or club sports or other activities that the child may be participating in (notwithstanding who has the child in there are) on the following conditions:-
a)That the father shall provide written notification to the mother of his intention to attend such event at least seventy-two (72) hours prior via the parenting app; and
b)That the father shall not approach the mother or come within 20m of the mother, the mother’s partner, the mother’s parents or any other person who may be in attendance with the mother at such event.
INJUNCTIONS
36.That the parents are restrained and an injunction is granted restraining the parents from:
a)discussing adult issues including disseminating information pertaining to these proceedings with or in the presence of the child or allowing any other third party to do so;
b)denigrating the other parent, the other parent’s spouse/partner or any of the other parent’s extended family to or in the presence of the child or allowing any other third party to do so.
37.That the father be restrained and an injunction do issue restraining the father from:-
a)consuming any illicit substances for at least 48 hours prior to the child coming into his care and throughout the entirety of the period that the child is in his care;
b)drinking any alcohol in the 24 hours prior to the child coming into his care and throughout the entirety of the period that the child is in his care;
c)bringing his brother [Mr Y] to any handover or any school event or other even at which the mother shall be present;
d)enrolling the child in any extra-curricular activity outside of [Town C] that may impact on the mother’s time with the child without the express written consent of the mother.
THE FATHER’S POSITION

At Trial, the father sought the following orders:-
Parental responsibility
1.That the parties have equal shared parental responsibility for the child [X] born 2019.
Care arrangements
~~That upon the child commencing kindergarten, the child live with the parties on a week about basis, with handovers to take place at the conclusion of school or 5.00pm on Friday.~~
2.        That the child spend time with the father:-
2.1.     commencing immediately and for a period of 8 weeks,
2.1.1.   ln week one,
(a)       Thursday from 9am until 6pm, and
(b)       Friday from 9am until 6pm:
2.1.2.   In week two, from Saturday at 12.00pm until Sunday at 4pm.
2.2.     That for a period of eight weeks:-
2.2.1.from 12noon on Thursday until 4pm on Friday in week one: and
2.2.2.   from 12noon on Saturday until 4pm Sunday in week two:
2.3.     Thereafter and until the child commences kindergarten:-
2.3.1.   in week one from 9.00am Thursday until 6.00pm Friday: and
2.3.2.   In week two from 9.00am Friday until 6.00pm Sunday.
2.4.     That upon the child commencing kindergarten:-
2.4.1.In week one from 3.00pm Wednesday (or the conclusion of kindergarten) until 1O.OOam (or the commencement of kindergarten) Friday in week one:
2.4.2.   in week two from 4.00pm Friday to 4.00pm Sunday:
2.5.From September 2023, and until term 2 of the child's first year of school;
2.5.1.In week one from 4.00pm (or t e conclusion of kindergarten) Thursday until 10.00am (or the commencement of kindergarten) on Friday.
2.5.2.In week two from the conclusion of kindergarten on Thursday (or 3.00pm) until 4pm Sunday.
2.6.That as and from Term 2 of the commencement of the child's primary schooling:-
2.6.1.   During school terms
(a)In week one from the conclusion of school Wednesday until the conclusion of school on Friday: and
(b)In week two from the conclusion of school Wednesday until the commencement of school on the following Monday.
2.6.2.   During school holidays:
(a)from the commencement of t e father's usual on a Wednesday time pursuant to paragraph 2.6.1(b) above until the following Wednesday and on a week about basis thereafter,
(b)That all other time be suspended for the duration of the school holiday period.
3.That as and from the commencement of the child's primary schooling   the mother ensure the child’s residence is no further than 65 kilometres from [City B].
4.That the parties shall enrol the child to commence primary schooling in the [Region Z] or greater Adelaide Metropolitan area.
5.That handover occur that do not occur at the children's kindergarten school at the father's home, or such other public place as may be agreed in writing.
Special occasions
2.That in addition to paragraph 2, the child spend time with the parties on special occasions as follows:
7.1With respect to Christmas:
7.1.1In 2021 and each alternate year thereafter, with the Father from 6.00pm on Christmas Eve until 12:00pm on Christmas Day, and with the mother from 12.00pm Christmas Day until 6.00pm Boxing Day.
7.1.2In 2022 and each alternate year thereafter, with the Mother from 6.00pm on Christmas Eve until 12.00pm on Christmas Day, with the Father from 12.00pm on Christmas Day until 6.00pm Boxing Day.
7.2On the child's birthday, with the parent who does not have care of the child on that day as follows:-
7.2.1If on a school day, from the conclusion of school until 8.00pm; and
7.2.2If a non-school day, from 12.00pm until 8.00pm.
7.3On each of the parents birthdays, in the event the child is not otherwise living with them the child shall spend time with the parent celebrating the birthday from 10am until 2pm if a non-school day, or 3pm until 6 pm if a school day.
7.4On Mother's Day, if the child is to be in the care of the father pursuant to these Orders, with the Mother from 6.00pm on the Saturday immediately preceding Mother's Day until the commencement of school on the Monday following Mother's Day.
7.5On Father's Day, if the child is to be in the care of the Mother pursuant to these Orders, With the Father from 6.00pm on the Saturday immediately preceding Father's Day until the commencement of school on the Monday following Father's Day.
Ancillary issues
3.That the parties do communicate by way of the Divvito co-parenting application, except in the case of emergency where communication is to be by way of telephone.
4.That the parties authorise any medical practitioner or other specialist health care professional seen by the children to contact the other parent so as to provide him or her at his or her expense with any information about the children that either party should seek.
5.Each parent shall forthwith inform the other any serious illness or injuries sustained by the children whilst in their care and permit the other to attend any hospital or other facility at which the children are admitted or treated.
6.        At handover of the children, each parent shall provide the other with:
5.1.Particulars of any treatment required or received by the children together with the name and address of the treatment provider and/or location at which the children are a patient; and
5.2.11.2 Any prescriptions or prescribed medications for the children and the other parent shall administer those medications during periods when the children are living with him or her.
THE EVIDENCE
The father
The father adopted the evidence in his Trial affidavits and gave no further evidence in chief. A significant portion of the cross examination of the father by the mother’s counsel was directed to the father’s conduct towards the mother both pre and post separation.
The father conceded under cross examination that at the date of final separation he was “very upset”. The father agreed that at the time he had reported the mother’s vehicle stolen to SAPOL, he knew that the motor vehicle was in the possession of the mother and was not stolen. The father denied being angry or distressed when making the report but agreed that his decision to make the report in the first place was “not justified”.
The father denied using the term “fat mother’s group” to the mother prior to separation. The father conceded however that he was concerned about the mother’s involvement with the mother’s group to the extent that he considered that one of the mother’s friends was interfering in their relationship. The father agreed that he felt “excluded” by the mother’s participation in the mother’s group because it then prevented him in participating in activities with the child. The father agreed he saw the mother’s involvement with the mother’s group as excluding him. The father denied that he was jealous of the mother’s relationships with other women through the mother’s group. He denied engaging in controlling behaviour.
The father denied being critical of the mother’s decision to breastfeed the child. Any disputation was said only to relate to the mother leaving emergency bottles of milk for the child in the freezer so that he could be fed by the father. The father denied using the words that he “could not forgive the mother” for allegedly frustrating his bonding with the child.
The father agreed that prior to separation the child was very rarely left in his sole care by the mother. The father denied that the basis for this was as a result of his use of cannabis. The father’s evidence in relation to his cannabis use was that he commenced smoking cannabis at around the age of 16 years following the death of his father. The father conceded that the mother opposed his use of cannabis and that he had ignored the mother’s requests to cease using it. The father described needing cannabis for “stress and sleep”.
The father conceded that the parties would argue over his use of cannabis which was usually administered by use of an implement called a “vape”. The father denied that his use of cannabis would have impacted on the child as he smoked it at night when the child was asleep. The father stated the he smoked cannabis every two to three nights.
The father gave candid evidence that he believed his failure to cease smoking marijuana was the catalyst for the end of the parties’ relationship. In hindsight, the father understood the mother’s concerns about his cannabis use, both around the child or at all. The father conceded that he was wrong to have smoked cannabis during the relationship and that he had not smoked cannabis since the date of separation.
The father described the parties having “a lot of different views on different things” with drug consumption being but one of those differing views.
The father agreed that the parties’ relationship had deteriorated since separation and that they now only communicated with one another via a parenting app. The father expressed frustration that he did not receive all necessary information in relation to the child’s care from the mother. The father stated that the parties have not communicated personally with one another since late January 2020.
The father was cross examined about an incident which occurred on 29 November 2019 being the final date of separation. The father conceded that on arriving at the home of the maternal grandparents, he was emotional and frustrated. The father agreed that he arrived at the home unannounced and walked into the home of the maternal grandparents and picked the child up off of the floor whereupon that the mother and the maternal grandmother became upset. Candidly, the father conceded that from his “body language” it would have been evident to those present that he was in an “aggressive and angry” mood.
The father’s evidence was that he was able to “calm himself” for his son but conceded that his emotional state was dysregulated on arrival. He denied swearing at the mother or using swear words in front of the child at this visit.
The father agreed that post separation he had blocked the mother’s use of bankcards and access to finances. Whilst the father forwarded money to the mother approximately seven days after separation, he acknowledged having “frozen” the parties’ joint bank accounts so as to stop the accounts from being “drained”. The father described this as a “precaution” and denied his behaviour was controlling towards the mother. The father conceded that he had not asked the mother about any inconvenience to her if funds were withdrawn stating that “the mother never asked me about the convenience of withdrawing contact with my son”. The father stated that he was “hurt in the moment” but did not act in such a way so as to “punish the mother”.
In relation to an attendance at the maternal home on 30 November 2019, the father conceded that he remained upset about the parties’ separation, stating that there had been no proper conversation about what was going on. The father agreed that he had become angry with the mother when SAPOL attended to remove his firearm. The father conceded that he had said to the mother that he “no longer trusted her” and that he was upset that an “ornamental firearm” which had been owned by his grandfather had been removed from the back of a wardrobe. The father denied threatening the mother on this occasion.
On 1 December 2019 an argument occurred at the parties’ home between the parties. The maternal grandmother and the child were also present. Central to the argument was the confiscation by SAPOL of the father’s firearm the preceding day. The father conceded that the mother would have been frightened by his behaviour, acknowledging that he had been aggressive and angry. The father denied that there was a subsequent angry exchange although he conceded that he had been “loud and blunt”. The father denied threatening the mother.
The mother’s counsel specifically asked the father whether he agreed that even if the child had been in the next room, then the child would have heard the argument and therefore been exposed to the family violence. The father evaded the question by answering that he agreed “the child had been exposed to an argument between his parents”.
The audio recording which is Exhibit M1 was produced on the second day of Trial and during the father’s evidence. The audio recording captures the incident on 1 December 2019 was audio recorded by the maternal grandmother without the father’s knowledge or consent. The mother was however aware of the maternal grandmother’s actions. It is evident from listening to the audio recording (Exhibit M1) that the child was present as he can be heard in the background despite the argument taking place between the parties.
The content of the audio recording was at odds with evidence given by the father before it was produced. During the audio recording the father can be heard screaming and yelling and using profane language towards the mother in the presence of the child. The audio recording is transcribed as follows (noting it was confirmed by counsel that the italicised text is the mother and the non-italicised text is the father):
…I did not force him …
You didn’t want him there [Ms McCormack]…
Get [Mr Y] to help get [Mr Y] to help get [Mr Y] to help.
So I sent him to [Mr Y’s] and he fucking died…
Because he’s an incompetent cunt.
So how is that my fault? I looked … I helped look after him for 4 years.
Because you cried and bitched and fuckin’ complained for so long it wasn’t funny…
I did not.
And then made a big deal and said “we were the ones that looked after him… fuck you [Mr Y], we looked after him”…
All I asked for was some help once in a blue moon so we could have a break every now and then … after 4 years …
Yes, so I sent him off so I could fucking propose, that’s why I sent him off and then he’s fucking died … so then I had to wait and still follow through…
And if it wasn’t for him, I would have fucking regretted the whole lot.
(clinking noise)
Like I told you a thousand times before … everything for him … it had to happen … now …
Don’t give a fuck… I was…
You got my messages…
I wanted to… and I don’t know if this is just some ruse to get the gun taken because of your paranoid-arsed parents…
(child whinges)
I didn’t even bring it up [Mr Madar]… that’s not … I didn’t do this at all…
Well why did she even fucking ask, [Ms McCormack]? Unless you made it out that I was a violent person…
It’s just a standard … honestly, a standard question they ask, I don’t know…
Oh … okay … derr, my husband’s … argues with me once in a while … uh, but does he have a weapon? Could’ve fucking killed her? …
I’ve got a weapon [Ms McCormack] …
(noise of cutlery drawer opening)
There’s weapons here…
Do you want to take these too?..
(noise of cutlery being dropped/thrown)
I could fucking kill you with that you spaz patient …
(more noise … cutlery being dropped, cutlery drawer being slammed shut)
Instead you take an ornamental gun that doesn’t even have a fucking firing pin in it…
I didn’t try to do anything with that … I …
Well they’re fucking cluey cunts because I could poison you with shit!
(child cries)
If I really wanted to fucking do it …
(child cries)
(In the background, different voice: better go) (child cries, rattle)
There’s nothing there … because you haven’t been buying anything …
(clinking noise of something being dropped)
… It’s like you’ve had this shit planned for fucking months … (clinking noise of something being dropped)
Saying you’ve got half his clothes at your parents’ house already … Keep seeing him in shit I’ve never seen him in …
It’s [Ms AB]’s …
It’s all l new stuff from [Ms AB]… (child whinges…rattle…)
You know why I’m unhappy, [Ms McCormack]? Because you’re never fucking home…. You’re at their house…
Why …
You’re at their house …
Do you think I …
Do you know why I fucking drink?
Do you think I …
Because I have to deal with that shit … that I never get to see my kid …
…or that I have to fucking … pay all the fucking bills for the last 10 years… Because what did you pay for? Food?
And your fucking debt … for your stupid fucking horse…that you rode once.
I’ve always purchased all food and contributed bills (mumbled) ...
You’ve didn’t contribute shit on bills …
…other than when I’ve been on maternity leave.
You paid like one electricity bill if that … you’ve never paid any fucking rent.
And you’ve always earned way more than me …
No I haven’t!
Look at my taxable income… 70, 80, 60, 70 … it’s not fucking 150…
You earn a hundred … you earn fucking 70 and 60 … you earn as much as me!
You didn’t pay your way…10 years of me picking up the bill … and now trying to pay my fucking tax…
Now I’m like 20 grand behind again … because you decided not to work …
…which, I can’t make you work, he’s still young ...
(child crying)
For the last fucking 3 months you could have done some part time [Ms McCormack]…
You could have got your fucking business money that I helped pay for … cos I paid for your licences and shit … but no, you don’t do anything…
(child crying loudly)
You socialise! You spend your days at fucking mother’s groups and fucking day care and all the rest of the shit and then go have your lunches and shit.
You spend more than I do during the week on fucking food … and then when you do go to the supermarket you buy your food…
Take all your yoghurt [Ms McCormack], there’s like 50 bucks worth of shit in there that’s yours. I don’t fucking eat it...
Never have...
The food you buy me is some shit.
(child whinging throughout increasing towards end) (do you want his dummy?)
This was amicable to start with and now …
Well I kind of …
That’s what I mean … don’t go to a fucking therapist … don’t go to a government therapist …
I only said a couple of days so I could think …because things haven’t been good …
What did you think would happen when you talk to a fucking government stranger?
…Well because things couldn’t really keep going the way they were …
What’s your problem?
Was that a normal …
<tape ends>
The father conceded that the recorded portion of the argument was only some part of it and that the argument had gone on “longer than that”. The father attempted to excuse his conduct by explaining that he was unaware that the child was behind a curtain and could overhear the argument. This answer given by the father is at odds with the fact that the child can be heard audibly throughout the recording and was clearly nearby. The father conceded that he had been reckless in using profane language during the course of the argument.
The recording was played in open Court. Counsel for the mother put to the father that he had been untruthful in the evidence given on the first day of Trial and that evidence was at odds with the words uttered in the audio recording. The father conceded that the evidence he had given on 14 June 2022 in relation to the incident on 1 December 2019 was inaccurate.
The father conceded that in all likelihood the child would have been able to hear the argument.
The father disagreed that he was now attempting to change his evidence because he had been “caught in a lie”. The father stated again that his perception and memory of what had occurred on 1 December 2019 was obviously wrong having heard the audio recording. The father agreed that during the argument he had spoken over the top of the mother and that he was shouting. The father attempted to explain that this argument was not representative of arguments which had occurred previously between the parties. The father described most arguments as taking place with “both of us screaming” or “one at the other”. The father agreed that the argument on 1 December 2019 would have been frightening for the mother.
It was put to the father by the mother’s counsel that this was the first time in his evidence that he had acknowledged that his behaviour may have caused the mother to become frightened for her safety. The father acknowledged that the separation and the events which transpired thereafter were likely frightening for the mother but stated that he had “acknowledged it to myself before”.

The father agreed that on 2 December 2019 he had attended at the home of the maternal grandparents in order to spend time with the child. The father stated that upon arrival he had apologised for his behaviour the preceding day. However, the father had then become annoyed because the mother would not agree to unsupervised time taking place and he had left the maternal grandparents home.
Prior to departing the home, the father had stated to the mother that if she would not agree to unsupervised time, that he would initiate legal proceedings. It was put to the father by the mother’s counsel that this constituted a “threat”. The father denied this and described it as a “statement of the way forward”. The father explained that he was angry because he was not able to spend time with his son in the manner he wished stating that he was the child’s father and couldn’t understand the mother’s concern. The father agreed that his frustration at the situation thereafter escalated.
The father conceded that his actions following separation would have made the mother very concerned but went on to state that his anger was never directed towards the child. The father agreed that he said that he was not doing “supervised bullshit”.
The father suggested that the only occasion when he had lost his temper was the occasion on which he was audio recorded on 1 December 2019.
The father conceded that he said words to the mother to the effect of “if I have to spend $100,000 to see my kid, I will”. The father then remarked in his evidence “which I have done”.
The father was questioned as to why he considered that applying for an equal shared care arrangement for a child who was then only five or six months of age could have possibly been in the child’s best interests. The father indicated that he sought such an order on “advice” understanding that it was better to “ask high” so that the decision fell somewhere in the “middle ground”.
The Court asked the father what qualities he considered were necessary for a successful shared care for a child. The father did not directly answer this question but responded by saying that he thought that he and the mother could “parallel parent” and that this could be achieved using the parenting app.
The father conceded that in seeking an order for equal shared care at the time the child was still being breastfed and not yet 12 months of age, it was likely to have been viewed by the mother as “inappropriate and threatening”. The father explained that he asked for “50/50 as a tactic” and that it was “not meant as a threat”.
The father agreed that he now realised that asking for shared care for a child of one year of age was “ridiculous”.
The father conceded that on 3 December 2019 he had asked the mother to step away from her own mother so that he could “speak to my wife about our child”. The father denied using the term “my wife” as a possessory term. The father stated that he wanted the mother’s parents away from the conversation as they always wanted to “put their two cents worth in”. When I remarked to the father that he appeared to have a negative attitude towards the maternal grandmother, he agreed and stated that he and the maternal grandmother have “never had the best relationship”.
The father denied stating to the mother that he would “ruin her career” or that he would “take cash jobs” to diminish his income. The father denied threatening to “burn the mother’s belongings” but acknowledged that he changed the locks to the former matrimonial home post separation to prevent her from gaining access.
The father conceded that he had attempted to have the mother’s motor vehicle confiscated post separation as it was a vehicle registered through his business. He justified this by stating that the maternal grandparents had three cars and the mother could use one of theirs. The father agreed that this behaviour was “really stupid” and acknowledged that things then “escalated really quickly” between the parties. The father acknowledged that “subconsciously” his attempt to remove the motor vehicle was likely to be intended as a “punishment” to the mother in circumstances where he saw that the child had been removed from him. The same applied to the father’s threat to remove the mother’s mobile telephone noting that it was a company telephone. The father acknowledged that his actions in this regard were “petty” and that it was “knee jerk reaction”.
On 2 December 2019, the father and paternal grandmother arrived at the home of the maternal grandparents. The father denied that he had raised his voice towards the maternal grandmother, but agreed that both he and his mother were upset and wanting to see the child. The father denied that his mother was “screaming” but described her as being “blunt”. The father conceded that what he described as a “screaming match” then took place between the maternal grandparents and the paternal grandmother and the parties in the presence of the child.
The father agreed that the paternal grandmother had considered that the mother should return home to sort things out with him “as a husband and wife”, commenting that his mother is “old school” and that “marriage was for life and that parents shouldn’t interfere”.
SAPOL were called. The father agreed that he had become “argumentative” when asked to leave and had engaged in “petty behaviour”. The father also agreed that at the time his mother was “very upset” describing the incident as an “intense situation”.
The father agreed when challenged by the mother’s counsel that the mother’s offer for time spending in early December 2019 was “reasonable” given the child’s very young age.
The father was cross examined about his use of alcohol during the relationship. The father denied drinking to excess but stated that he drank in order to “cope with the stresses of our relationship”.
The father strongly denied threatening to kill himself or threatening to leave a letter for the child with a solicitor regarding him taking his own life.
The father’s evidence regarding his desire for the mother to lose weight post pregnancy was unconvincing. The father stated that he was not critical of the mother having gained weight during pregnancy. His suggestion to her of doing “abdominal exercises” post the birth of the child was simply trying to encourage her in this regard.
The father conceded leaving a message on Facebook describing it as a “cry for help”. The father became distressed when telling the Court that he was saved by officers from the SAPOL who had been called to attend at his home by concerned persons who read the Facebook post.
There was significant cross examination of the timing of the father’s payments for financial support for the child. The father agreed that his first actual Child Support payment was made on 11 May 2020 and was then paid weekly thereafter. The father, to his credit, has continued to pay the sum of $120.00 per week for the financial support of the child. The mother has not made an application for assessment of Child Support through the Child Support Agency and the parties have continued this informal arrangement without disruption for two years.
The father acknowledged that for the last few years prior to separation the mother had raised with him her concerns about his use of marijuana and alcohol and his anger. These issues had remained as festering and without redress up and until the final date of separation.
The father was cross examined about Annexure A to the mother’s Trial affidavit which formed part of a series of messages sent by the father to the mother. It was put to the father that the content of the SMS messages were a “threat” to the mother. The father suggested that the words were “a turn of phrase” on several occasions during this passage of his evidence, but ultimately acknowledged that his conduct in sending the SMS to the mother as identified therein was not justified.
In relation to Annexure G to the mother’s Trial affidavit being a Facebook post, the father accepted that that post was directed towards the mother and acknowledged that the mother would have been frightened both for herself and the child due to its contents. The father then agreed that the mother had acted protectively for herself and the child in obtaining an Intervention Order on 18 December 2020. The father described the Intervention Order as a means to “stop me running off with the child”.
The father was cross examined about his attempts post separation to report the mother as missing to SAPOL. The father described being “screamed at” by SAPOL officers when he attended at the City B Police Station. He described being treated as a “wife beater from day one”. When asked why he had reported the mother missing when she had informed him of the need to take a break from their relationship, the father stated “I was a distraught father having no information about my child. I acted irrationally and I went to the police for help”.
The father conceded that when he attended at the City B Police Station on 6 December 2019, he was informed by the police that the mother and child were safe and well and not missing. The father agreed that he had been described by SAPOL officers as presenting on that occasion as “aggressive” but justified this by stating that he was discriminated against and that the officers on duty that day were “feminists”. The father again described himself as being “blunt” with the police officers before eventually conceding that he had in fact been “shouting”.
The father agreed that thereafter he had driven past the maternal grandparent’s house but having seen no motor vehicles present had driven away. The father could not understand why this behaviour would be construed as “stalking”.
In relation to the father’s personal circumstances, he conceded that he is currently employed as a self-employed tradesman. He resides in rented accommodation in City B. The father denied that he could move to Town C stating that his “whole family” lived in the Region Z. This was later qualified by acknowledging that his two sisters resided in City AC and Queensland respectively.
The father acknowledged that he had not met Mr E, the mother’s new de facto partner. The objection to the mother residing with Mr E was not to do with the relationship per se but the location of where they resided.
The father accepted under cross examination that Mr E is a farmer with skills but would not be drawn into accepting that Mr E runs a fifth generation family farm in the Town C area and that it would be difficult for Mr E to move.
Significantly, the father accepted that it would be a “good thing” for the child if the mother was a happy parent. Despite this, the father could not see how the mother moving back to City B could make her “unhappy”. The father disputed that he could commute for work from Town AD in order to move closer to Town C. The father, whilst residing in City B described most of his work being undertaken in Town AE being “down the hill” from City B. Whilst willing to move “down the hill” towards Town AE, the father would not countenance moving “up the hill” towards Town C.
The father conceded that he had no connection with City B save and accept it was where the parties resided in the years prior to separation and where the handovers now occur.
The father stated that if the child remained living in Town C at the conclusion of the Trial then paradoxically he would “consider moving out” of City B. If the child remained at Town C, then he would move away “down the hill” and not closer to Town C. The father conceded that he was not running a case to Trial suggesting or alleging that the mother had formed a relationship deliberately in order to reduce his time with the child. The father stated “I would assume” to a question posed to him as to whether or not he accepted that the mother has a genuine and committed relationship with the Mr E.
The father was cross examined about a handover which occurred on 28 April 2022. This handover, according to all parties was traumatic and took place for a period of over three hours. The parties are also in agreement that there have been no further incidents at handover since that time. Handovers are now conducted between the father and the maternal grandparents. The father conceded that both he and the mother could have behaved better on that occasion and that they had both contributed to the child becoming distressed.
The father agreed that he had made no enquiries at the Town C School and the only information available to him to inform him as to the school’s viability was that contained in the mother’s Trial affidavit. In response to a question put by the Court, the father conceded that he had not made any enquiries of the Town C School because he did not want the child to attend that school in the future.
Significantly, the father conceded that to his knowledge the child had never spent one night away from his mother and continued to be breastfed and co-slept during the relationship. The father acknowledged that the child’s breastfeeding continued for “comfort feeds” and that the overnight time with the child should be gradual as recommended in the Family Report.
The father was observed by the Court as being distressed at times during his evidence and during portions of the Trial when other evidence was being given. He presented as defensive at times during his evidence particularly when being challenged about topics which I assess the father understood may be detrimental to his case. The father’s initial evidence about the argument with the mother on 1 December 2019 which was recorded by the maternal grandmother was clearly misleading and it was only when challenged by the audiotape that the father then conceded his previous evidence was incorrect.
The Court assesses the father as loving the child and wanting to be an important presence in the child’s life to the extent that he is able to do so.
Dr P, Psychiatrist
The report of Dr P dated 18 May 2020 was tendered into evidence by consent and marked ‘Exhibit F1’. Dr P was not required for cross examination.
Dr P is a Psychiatrist in private practice. Dr P was engaged to provide an independent psychiatric opinion in relation to the father’s mental health and an interview with the father occurred on 18 May 2020.
During the course of interview, the father acknowledged using marijuana during the course of the relationship but stated that he did not use marijuana near the child. He is reported as saying to Dr P “I am not a retard, I didn’t use it near my son”. He added that he used it for “back pain and stress”.[1]
[1] See Exhibit F1 being report of Dr P at 4.
The father reported to Dr P that “everything she has accused me of has been a lie, except that suicide stuff”.[2] Further, that the mother and her parents were “twisting my words so I can’t see my son and then she plays the victim”.[3]
[2] Ibid.
[3] Ibid 5.
Dr P records asking the father as to how the arguing between the parties could have affected the child. Showing a lack of insight, the father is reported as saying “I don’t know why people would say that it would affect a one year old”.[4]
[4] Ibid.
Under the heading “Current Situation” the father is reported as stating to Dr P that his main problems as the date of interview were:
•“I am going to get f…d over in Court because I am male”
•“I won’t get to see my son as much as I want”[5]
[5] Ibid 7.
Under the heading “Drug and Alcohol History” at the time of interview the father reported that:
•He drank 15-20 standard drinks of alcohol per week but denied any alcohol caused problems.
•He said he last used illegal drugs (marijuana) at the time he and [Ms McCormack] separated. He had previously used ecstasy many years ago.
•He drank 5 caffeine contained beverages per day.[6]
[6] Ibid 10.
Under the heading “Statement of Opinions and Reasons” Dr P provides the following:
25.2 [Mr Madar] is not currently suffering from a psychiatric disorder and there are no psychiatric factors interfering with his functioning.
25.3… [Mr Madar] has a number of unhelpful personality traits.[7]
[7] Ibid 15-16.
Dr P noted a history of “anger and difficulties managing it”. The father appeared angry when interviewed and was described as being “generally suspicious of people involved in the Court process”[8]
[8] Ibid 16.
Even though the father did not meet the diagnostic criteria for a psychiatric diagnosis, Dr P went on to recommend that he see Mr H or a psychologist with expertise in helping people manage angry feelings.[9]
[9] Ibid 17.
Dr P expressed a view that “based upon (the father’s) history, there is a low probability that (the father) would act out angry impulses that would create an unsafe situation for X”[10]
[10] Ibid 20.
Mr H, Social Worker
Mr H relied upon his reports dated 15 May 2020, 9 September 2020, 19 November 2020, 15 October 2021 and 22 May 2022 annexed to the affidavit of the father’s solicitor Ms Boylan filed 24 May 2022. Mr H also gave brief updating evidence in chief.
Mr H was appointed by way of Court order to meet with the father in relation to anger management issues. To date he has prepared five reports, as outlined. Mr H noted that he had seen the father for one subsequent appointment since the date of his last report. This appointment occurred on 13 June 2022 and involved discussion of various topics. Included in this was the father looking over his relationship with the mother and acknowledging that he “could have done better” and that there were “shortcomings in his behaviour”.
I found Mr H to be a helpful and balanced witness. He was prepared to make appropriate concessions where that was warranted in relation to his treatment of the father and what constituted “coercive and controlling family violence”.
Mr H observed that the father had demonstrated a willingness to engage in lengthy therapy and that he would be prepared to continue to treat the father after the Trial had concluded and Judgment delivered.
Mr H was cross examined by the mother’s counsel. Mr H was shown an SMS which was sent by the father to the mother on 27 June 2019 and six months prior to the parties separation. The text message which is Annexure A to the mother’s Trial affidavit says as follows:
Im not saying you have to go to work in the sence of going to it and leaving him. I mean take advantage or the opportunity of them offering to work from home. Yiu can do 10-20 a week from home easy you go help your mum for 5 hours when she wants you to but you wont help pay for the house you live in. be reasonable. Not only that you could save me 4000 by doing my tax. sending me to [Ms AF] is [Mr AG] me telling you to get a [tradesman] in to fix something. If you cant see that or even want to help so I don’t blow my brains out then there is no point I would rather pay child support and just make my income nothing so I pay fuck all.
…
Or you can just milk it more and i will kill myself and then your fuck either way.
Mr H agreed with the proposition put by the mother’s counsel that the SMS could be categorised as “emotional manipulation of the mother”. Mr H stated that “certainly where there is a threat to suicide, then extremely so”.
In relation to Annexure G to the mother’s Trial affidavit being the undated Facebook post, but said to be in the days after the mother went “into hiding”, which reads as follows:
When i end it he will know its her fault. Pills prob the easiest dont know if i could cut myself deep enought. Dont think anyone would care. I am sorry to my family. Take my son from me ill take his father from him and its your fault.
Mr H confirmed that if the Court found that the Facebook post was directed towards the mother then this message could be seen as emotionally manipulative and another example of the father exerting coercive control over the mother. It is hard to see this post as anything other than a message to be sent to the mother given the final words as described above.

The presumption of equal shared parental responsibility shall not apply if the Court is satisfied that there has been family violence or abuse of a child. Alternatively, the presumption can be rebutted if there is evidence that satisfies the Court that such an order would not be in the child’s best interests.
In this case, the father proposes an order for equal shared parental responsibility. The mother proposes an order for sole parental responsibility in her favour. The mother argues that it is open on the evidence to find the father has engaged in family violence within the definition set out in section 4AB of the Act and as such the presumption should be rebutted.
Family Violence is defined in section 4AB of the Act as:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.[35]
[35] Ibid s 4AB.
I accept the submission made by the mother’s counsel that the evidence of family violence in this case is “overwhelming and irresistible”. Even on the conduct admitted by the father, a finding that he has engaged in family violence to the mother and in the presence of the child is easily made.
The father may not view his past behaviour as falling within the definition of family violence as set out in the Act. But just because the father may not view it this way, does not make it so. The father argues that there are no allegations of physical violence. Furthermore, the father asks the Court to accept that either the alleged family violence was situational or exaggerated by the mother at Trial to assist her case.
I have already made findings that I accept the mother’s allegations of family violence as being truthful. I further accept that the father’s conduct has caused the mother to be fearful. Her reactions in the witness box were visceral and compelling.
Accordingly, I have little difficulty in finding that the father engaged in behaviour which falls within the definition described in the Act as constituting “family violence”. The presumption of equal shared parental responsibility must therefore be rebutted. An order will be made granting the mother sole parental responsibility but also with the provision for her to consult with the father and to take on board his views. I accept the submission made by the mother’s counsel that an order is required to enable decisions to be made about the child. The father concedes that the mother is a good parent. The Court has confidence that the mother will continue to diligently discharge her responsibilities for the child into the future.
I should record that even if the Court had acceded to the father’s argument that the presumption was not rebutted on the basis of family violence, the Court would have had little difficulty in finding that the presumption should be rebutted pursuant to section 61DA(4) of the Act. The parties have poor communication and do not trust one another. They have not communicated directly since 2020. There is a final Intervention Order in place. In the circumstances, the Court would have found that it was not in the child’s best interests for an order to be made for equal shared parental responsibility.
Section 60CC factors
Section 60CC of the Act sets out two classes of considerations which apply to the Court’s determination as to how a child’s interests will best be served. They are described as ‘primary considerations’ and ‘additional considerations’.
The two primary considerations in s 60CC(2) are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse and neglect or family violence.[36]
[36] Ibid 60CC(2).
Section 60CC(2A) of the Act directs the Court that in applying the primary considerations, to give greater weight to section 60CC(2)(b) which is the primary consideration directing the Court to protect children from physical or psychological harm, or from being subjected to or exposed to neglect, abuse or family violence.
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child's parents
In Mazorski & Albright,[37] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.[38] In Jurchenko & Foster,[39] the Full Court also noted in “having a meaningful relationship with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.”[40]
[37] Mazorski & Albright [2007] FamCA 520.
[38] Ibid [26].
[39] Jurchenko & Foster [2014] FamCAFC 127.
[40] Ibid [123].
The father ultimately aspires to an equal shared care arrangement. The mother promotes orders which reflect largely what is recommended in the Family Report. By their terms, the party’s respective positions invite a finding that they promote orders acknowledging the benefit of the child having a meaningful relationship with each of them.
The issue in this case is how the meaningful relationship is to be supported given the complex factual matrix at Trial and the mother’s application to remain living in Town C. The mother did acknowledge that if the Court ordered the child to return to reside in the City B area, then she would follow. The mother was not cross examined as to whether or not she altered her position if ordered to return to a distance closer to the father.
Section 60CC(2)(b) – Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father’s case is that the child is not at risk of harm of any description in either party’s care.
The mother maintained in her evidence that the child continued to be at risk of harm in the father’s care. When challenged, however, it became apparent that the mother’s contentions were based on historical events exacerbated by the complete lack of trust and lack of meaningful direct contact between the parties since final separation.
I do not consider that the child is at risk of physical or psychological harm or from being exposed to abuse, neglect or family violence in either party’s care on the evidence available at Trial subject to two qualifying factors. The first is the conduct of the parties or others at handovers. I propose to make orders regulating handovers as best that can be done to ameliorate this possibility. The second is the ability of the father to accept the decision of the Court and to move on with his life. It is imperative that as the child matures he is not exposed to stories about what happened between the parties post separation or allegations arising from these proceedings. The father is encouraged to continue his therapy with Mr H so that he can be the best parent to the child that he can possibly be. Orders will be made restraining the parties from engaging in such conduct in the future.
Section 60CC(3) – Additional considerations
In considering the additional considerations, pursuant to section 60CC(3) of the Act, I bring to account the following:
(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
The child is only three years of age. There is no evidence relevant as to his views and even if there were, he is too young for such views to be given any weight.
(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);
The child has a close and loving relationship with his mother who has been his primary caregiver since birth. The father conceded in his evidence that the mother was a good and competent parent. No real issue was taken with the child’s relationship with his maternal and paternal family.
The child was observed to have a comfortable and familiar relationship with his father when observed by the Court Child Expert. The relationship between father and son has been constrained because of a number of factors, some of which were beyond the control of the parties such as the Covid-19 Pandemic.
The evidence supports a finding that the child is developing a warm and loving relationship with his father commensurate with his stage of development whilst maintaining a primary attachment to his mother.
(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
The parties separated when the child was 10 months of age. Prior to separation the decisions for the child’s care were largely made by the mother as she breastfed the child and took maternity leave. Post separation the mother has been the parent charged with the primary responsibility for making decisions about the child’s long term care. This comes about in part due to the slow progression of the father’s time given the child’s tender years and the need for increases in time to bring to account his stage of development. Moreover, the highly conflicted parental relationship combined with the terms of the Intervention Order made in favour of the mother, has made it very difficult for the parties to participate in joint decisions for the child’s care and development. The Divvito Parenting App has provided a medium for the parties to communicate but it is not ideal.
For his part, I accept that the father has sought to be involved in decisions regarding the child since he was an infant. Indeed it was the father’s somewhat baffling attitude to the mother’s involvement in a “Mother’s Group” that brings into stark focus the father’s desire to be a “hands on” parent. The father’s own insecurities meant that he could not see this group for what it was, namely an activity as being a positive for the child which didn’t involve him. Instead of seeing the “Mother’s Group” as an opportunity for new mothers to meet with others for support and friendship, the father saw the group as a threat. He resented the mother attending because he could not and was suspicious that the group provided some form of hotbed for an exchange of anti-paternal sentiment between the attendant mothers.
The father presented as very committed to wanting an involvement in every aspect of his child’s life. The mother has found this confronting and threatening.
The Court has little difficulty accepting that each of the parties love the child and want the best for him albeit that they cannot agree on what that entails.
(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
The mother has maintained the child and has been his primary carer since birth. She has discharged her obligations as a parent to a high standard. The father has acknowledged that she is a good parent.
The father has since shortly after separation paid the mother $120 per week for the child’s financial support. I reject the criticism of the father made by the mother’s counsel that he has failed to pay child support because there is no administrative assessment in place. The father cannot pay what the mother does not seek. He has voluntarily paid a not insubstantial amount for the child’s financial support and this is to his credit.
Each of the parties have maintained the child to the maximum extent available to them pursuant to the Court orders in place post separation and to the point of Trial.
(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
The mother seeks that the child live with her and spend meaningful time with the father in the manner recommended by the Court Child Expert. The mother argues that any “separation” from her be slow and gradual. The mother argues that her proposed orders would not see any dramatic effect in the child’s circumstances because he would continue to live with her in Town C and spend increasing periods of time with the father.
There is no evidence as to any likely effect on the child if the father’s application is successful and the mother is ordered to reside within 25 kilometres of City B.
There is evidence in the report of Ms J, the mother’s psychologist and the oral evidence of the Court Child Expert, that there will be a corresponding deleterious impact on the mother if ordered back to reside in City B or its environs. Importantly, Ms J was not required for cross examination to challenge her report on the mother’s mental health. Nor was Ms J cross examined on her opinion that the mothers’ mental health would be compromised if she was unable to remain living in Town C.
The mother has entered a new relationship which appears committed and stable. She has secured part time employment. The mother is happy living with Mr E in Town C. The father accepted in his evidence that if the mother was unhappy, then there would likely be a corresponding impact on her capacity to parent the child.
The father would argue that if the child lived closer to him, he could likely spend more time with him and his paternal family. By living closer to each other the father aspires to be a shared care parent albeit not on a week about basis.
The evidence does not support the father’s primary application for equal shared care. I accept that the mother would not be able to co-parent the child with the father at a level needed for a strict shared care arrangement or even 5 nights per fortnight given the evidence of the Court Child Expert. The parties have an extremely poor co-parenting relationship and communicate via a parenting App. They do not trust one another. The party’s relationship was marred by incidents of family violence.
In circumstances where the Court is not ultimately persuaded to make orders as proposed by the father, there will be minimal changes to the child’s current circumstances other than to increase the time that he spends with the father.
(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
The father maintains that the practical difficulty of the child being able to see him to the maximum extent possible is impacted by the mother’s decision to move to Town C, approximately 1 ¾ hour drive one way from the father’s residence at City B. Whilst the father remains living in City B, I accept that the distance between the parties residences will have a negative impact on the actual amount of time that the child spends with the father. This is because the distance between their homes will limit the amount of time spending which could occur on a weekday, particularly once the child starts school. There was no evidence at Trial as to the expense of driving between the party’s homes being a factor to bring to account by the Court.
The father stated in his evidence that he would not countenance moving closer to the mother. That is his prerogative which he is entitled to maintain. I do note however that the father has not re-partnered, is renting and curiously stated that he may move even further away “down the hill” if the mother was permitted to reside in Town C.
I do not accept that practical difficulty in itself will substantially affect the child’s right to maintain personal relations and direct contact with the father on a regular basis as enshrined in the Act. The mother promotes a build up to 3 nights per fortnight and midweek time for a meal. The evidence of the Court Child Expert is that such an arrangement would provide meaningful time and could be supplemented by FaceTime or Video calls if necessary.
I also intend to exercise my discretion to provide for an increase in time to include school holidays as recommended by the Court Child Expert commencing once the child has settled into an alternate weekend regime.
(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
I assess each of the parties as being able to provide for the child’s physical needs. The mother as the child’s primary carer I assess as capable to provide for the child’s emotional and intellectual needs.
The father has the capacity to provide for the child’s emotional needs subject to his ability to move on from this dispute and to not ruminate on the events of the past.
(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
The child is only three years of age. He has been dependent on his mother as his primary attachment figure since birth. At Trial, the child had not been toilet trained and had allegedly never slept away from his mother. The evidence supports a finding that despite the mother’s anxiety about the father, the child is developing a close and comfortable relationship with the father. Otherwise, this subsection is not relevant.
(h) if the child is an Aboriginal child or a Torres Strait Islander child
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The mother has demonstrated a positive attitude to the responsibilities of parenthood and has made appropriate arrangements for the child.
The father has a stated desire to discharge his responsibilities as a parent and seeks to be involved in the life of his son to the maximum permitted by the Court. The father has been frustrated in doing so due to events some of which were outside his control such as the child’s young age at separation and Covid-19 restrictions. I accept that the father will endeavour to discharge his responsibilities as a parent as circumstances allow into the future.
(j) any family violence involving the child or a member of the child’s family
The Court has already made findings as referred to in these Reasons which accept the mother’s evidence that she was exposed and subjected to family violence by the father.
The evidence supports a finding that the child has been exposed to family violence by being present during arguments between the parties both during the relationship and post separation. The Court need go no further than Exhibit M1 being the audio recording taken on 1 December 2019.
As recently as 22 April 2022 there were difficulties at a handover which was recorded by the maternal grandmother. The evidence of this handover does not support a finding that family violence occurred on this occasion. This is notwithstanding the mother attending on SAPOL and complaining that the father had allegedly yelled from one side of the road to the other, that he would return the following day to attempt handover again.
The Court is satisfied that the child will not be exposed to family violence in either household in the future subject to confrontations at handover which I propose to regulate by way of Court order and to minimise direct handovers between the parties wherever possible.
(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;
On 18 March 2020, a final Intervention Order was granted in favour of the mother against the father. Whilst originally including the name of the child, the proceedings were ultimately resolved on the basis of the mother only being protected by its terms.
The father’s counsel submitted in his final address that the Intervention Order was a “private” order. The inference to be drawn from that submission (whilst not overtly stated by counsel ) was that the mother had obtained an Intervention Order “privately” because SAPOL would not seek one on her behalf given the weight (or lack) of the allegations.
I do not accept that this is an inference which can be drawn on the available evidence.
The Court is not entitled to accept such an inference obliquely made by the father’s counsel. The fact remains that there is a final Intervention Order which protects the mother. The parties settled the Intervention Order proceedings without the need for a Trial and are bound by its terms on a final basis.
(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
Given the lengthy history of litigation for this family which commenced when the child was only 14 months of age, I accept that it preferable to make orders which are least likely to lead to the institution of further proceedings. Both parties have outlaid financial and emotional resources through the pursuit of these Court proceedings. Each of the parties presented as exhausted by the litigation and emotionally labile.
In considering this subparagraph it is imperative that the Court give consideration to the making of orders for school holidays. The mother’s proposal does not include any ability for the child to enjoy school holiday periods with his father when he is old enough to do so. The mother seeks that the order for alternate weekend time continue subject to a “carve out” which will allow her to travel away for holidays with the child. The father is not afforded a similar opportunity.
The father’s proposal by virtue of his orders for shared care would see the child enjoy holiday time with his father on a week about basis.
The Court Child Expert considered that holiday time could be implemented once the child had an established pattern of alternate weekends. In the absence of any formal proposal from either party as to how that might be achieved, I propose to exercise my discretion to build up school holiday periods in a slow and steady manner as recommended by the Court Child Expert in her oral evidence.
I assess that no order for school holidays will inevitably invite further litigation and a revisitation of living arrangements for the child, which could not be said to be in his best interests.
(m) any other fact or circumstance that the court thinks is relevant
The father’s counsel argued that the mother’s allegations were “developed or exaggerated” in order to achieve the orders sought by her at Trial. I reject that submission.
Having observed the mother in the witness box, I accept that she is a nervous and anxious person. The father’s conduct at separation and the sequelae that followed, did nothing to allay the mother’s anxiety in the face of the father’s volatile and unpredictable behaviour. The evidence supports a finding that the father’s behaviour escalated, as he realised that the mother and child would not be returning to the marital home and as he lost control over his family. The tape recording of the father’s behaviour (Exhibit M1) on 1 December 2019 in the presence of the mother and the child is frightening to listen to.
I accept that the mother’s anxiety has impacted on her decision making including her fear about leaving the child in the father’s care. I do not accept that the mother has engaged in “gate keeping” behaviour to restrict the father’s time. She presents as a nervous person and a highly protective mother. Those traits have influenced her decisions including an apparently incongruous decision to supervise the father’s time when the child was very young. I do not see this behaviour as diminishing her allegations but rather supporting my assessment that she did it to help the child rather than prioritising her own concerns. I also find that the mother’s anxiety underpinned her decision not to inform the father of her decision to move to Town C with the child until she had no other option but to reveal the change in her living arrangements.
I have little difficulty in finding that the mother was advised by her former solicitor to inform the father of her intended move and to continue to comply with Court orders. The mother did the latter but deliberately withheld the change of residence from the father. It does not reflect well on the mother for failing to inform the Court or the father of the change in the child’s living arrangements. In this sense the mother has followed the adage that it is “easier to seek forgiveness than to ask for permission.”
As the Court has already noted in these Reasons, the mother’s decision to withhold the information from the Court was unhelpful and on my assessment of the parties, inevitably meant that the Court would be required to determine their competing applications at Trial.
CONCLUSION
The Court considers that the within orders are in the child’s best interests. The child will continue to live with his primary carer and maintain a meaningful relationship with his father. The proposed orders include a sharing of special occasions and school holidays. I consider that the mother’s proposed orders for special occasions to be unnecessarily conservative and the Court has exercised its discretion accordingly with modest increases which I assess to be in the child’s best interests.
The Court declines to make orders for extended holiday travel or a passport as sought by the mother. There was no cross examination on this topic and no immediate proposal for travel. The focus must now be on the child settling into an established routine, building his time with his father and commencing at kindergarten and school. I accept that this may result in further discreet applications as to extended or overseas travel being filed in the future. However, we live in uncertain times and overseas travel can be contentious in the post Covid-19 world. The Court would encourage the parties to try to resolve this issue with the assistance of a mediator if and when it becomes a more pressing reality for either party.
The Court also declines to make a final order directing the father to consult with Mr H. It is the Court’s expectation that the father will continue to consult with Mr H for as long as Mr H recommends him to do so but in the absence of a mandatory order.
For all of the above reasons, I make the orders as set out at the commencement of this Judgment.

I certify that the preceding three hundred and sixty-three (363) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson.
Associate:
Dated: 21 October 2022

File number(s):	ADC 1045 of 2020
Judgment of:	JUDGE DICKSON
Date of judgment:	21 October 2022
Catchwords:	FAMILY LAW – CHILDREN – 3 years and 5 month old child – allegations of family violence – where there is a final intervention order in place – consideration of best interests of the child – father has previously experienced drug use and mental health issues – where the child continues to be in the mother’s primary care – where there was a unilateral relocation of the child by the mother – where the father seeks for the child to reside closer to where the father currently resides – order for the child to remain living with the mother at the place of their relocation – child to spend time with the father on a gradual and increasing basis – parental responsibility – where the mother seeks sole parental responsibility – order for sole parental responsibility is in the best interests of the child but for the mother to consult with father in relation to decisions she proposes to make
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61B, 61DA
Cases cited:	AMS & AIF (1999) 199 CLR 160 Bale & Bale [2016] FCCA 680 D & SV [2003] FamCA280 Heath & Hemming (No 2) [2011] FamCA 749 Jurchenko & Foster [2014] FamCAFC 127 Malcolm & Monroe & Anor [2011] FamCAFC 16 Mazorski & Albright [2007] FamCA 520 MRR & GR [2010] 240 CLR 461 Oswald & Karrington [2016] FamCAFC 152 U & U [2002] HCA 36
Division:	Division 2 Family Law
Number of paragraphs:	363
Date of last submission/s:	19 September 2022
Date of hearing:	14-17 June 2022 & 19 September 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Anderson
Solicitor for the Applicant:	Angela Ferdinandy
Counsel for the Respondent:	Ms Cocks
Solicitor for the Respondent:	David Burrell & Co

ADC 1045 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MADAR Applicant
AND:	MS MCCORMACK Respondent

order made by:	JUDGE DICKSON
DATE OF ORDER:	21 October 2022