Martine & Carmona
[2024] FedCFamC2F 800
•27 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martine & Carmona [2024] FedCFamC2F 800
File number: MLC 14800 of 2019 Judgment of: JUDGE BOYMAL Date of judgment: 27 June 2024 Catchwords: FAMILY LAW – Parenting – parental responsibility – live with – spend time arrangements between three parties – which school child shall attend Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 ss 4AB, 60B, 60CC, 60CA, 65C, 65DAA, 65D, 65H
Cases cited: Adamson & Adamson [2014] FamCAFC 232
Aldridge & Keaton (2009) FamCAFC 229
Carlson & Fluvium [2012] FamCA 32
Fox v Percy (2003) 214 CLR 118
Grella & Jamieson [2017] FamCAFC 21
Hall & Hall [1979] FamCA 73
Harman v Secretary of State for Home Department [1983] 1 AC 280
HG v R [1999] HCA 2
Isles & Nelissen [2022] FedCFamC1A 97
K v Z (1997) FLC 92-783
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
R and R (Children’s Wishes) [2000] FamCA 43
Division: Division 2 Family Law Number of paragraphs: 438 Date of hearing: 29-31 January 2024, 1-2 February 2024 and 9-10 May 2024 Place: Melbourne Counsel for the Applicant: Ms Devine Solicitor for the Applicant: Condello Lawyers Counsel for the First Respondent: Mr Korke Solicitor for the First Respondent: Ballarat Lawyers Second Respondent: In person Counsel for the Independent Children’s Lawyer Mr Kiernan Solicitor for the Independent Children’s Lawyer MMH Lawyers ORDERS
MLC 14800 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MARTINE
Applicant
AND: MS CARMONA
First Respondent
MR HOOPER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
Parental Responsibility
2.Subject to order 3 herein, the first respondent Ms Carmona, and the second respondent Mr Hooper have equal shared parental responsibility for X born 2014.
3.For the purpose of order 2 herein, prior to any long term decision being made, save in the event of an emergency:
(a)Ms Carmona and Mr Hooper advise the applicant Ms Martine of the decision to be made and their views and proposal;
(b)within fourteen days thereafter Ms Martine advise Ms Carmona and Mr Hooper of her views and proposal;
(c)upon receipt of Ms Martine's views and proposal Ms Carmona and Mr Hooper shall give consideration to them; and
(d)thereafter, or if Ms Martine does not respond within the fourteen day period, Ms Carmona and Mr Hooper shall make the decision and immediately advise Ms Martine of the decision that has been made.
Living Arrangements
4.X live with Ms Carmona.
5.X attend B School for his primary school education unless otherwise agreed between the parties through the parental responsibility procedure.
Spend Time Arrangements During School Terms
6.X spend time with each of the parties during school terms:
(a)in week one with Ms Martine from the conclusion of school on Friday (or 4.00 pm if a non-school day) until 5.00 pm on Sunday commencing the first Friday after third term 2024 has started and each third weekend thereafter;
(b)in week two with Mr Hooper from the conclusion of school on Friday (or 4.00 pm if a non-school day) until 5.00 pm on Sunday commencing on the second Friday after third term 2024 has started and each third weekend thereafter; and
(c)in week three with Ms Carmona from the conclusion of school Friday (or 4.00 pm if a non-school day) until 5.00 pm on Sunday commencing on the third Friday after third term 2024 has started and each third weekend thereafter.
7.The time in order 6 herein is suspended during all school holiday periods and shall recommence on the first weekend after the new school term has commenced as if the school holiday period had not intervened.
Spend Time Arrangements During School Term Holidays
8.X spend time with the parties during school term holidays:
(a)during the second term and third term school holidays in 2024:
(i)with Ms Martine from the conclusion of school on the last day of the school term for a period of five nights;
(ii)thereafter with Mr Hooper for a period of five nights; and
(iii)thereafter the balance with Ms Carmona.
(b)in 2025 and each school term holidays thereafter:
(i)for the term one school holidays with Ms Martine for the first half and Mr Hooper for the second half;
(ii)for the term two school holidays with Mr Hooper for the first half and Ms Carmona for the second half;
(iii)for the term three school holidays with Ms Carmona for the first half and Ms Martine for the second half; and
(iv)at such further and other times and days as may be agreed between the party who seeks the change, the party requested to change and any other party who may be affected by the change.
9.For the avoidance of doubt:
(a)the school term holidays are deemed to commence on the last day of the school term and conclude at 12.00 noon on the day preceding the first day of the new school term when X shall be returned to the care of Ms Carmona;
(b)changeovers shall occur at 12.00 noon save for on the last day of school when changeover shall occur at the time school concludes; and
(c)if the school term holiday has an uneven number of days, X shall spend the extra day in the care of the party he is in for the first half of the school holiday period.
Spend Time Arrangements During the Long Summer Holidays
10.X spend time with the parties during the long summer holidays:
(a)during the 2024/2025 long summer holiday on a seven night rotating basis commencing with Ms Martine, then Mr Hooper, then Ms Carmona, then Ms Martine and the balance with Ms Carmona;
(b)during the 2025/2026 long summer holiday and each third year thereafter, with Ms Carmona for the first ten nights, Ms Martine for ten nights thereafter, and Mr Hooper for ten nights thereafter or such lesser period of time so that X is returned to Ms Carmona's care at 12.00 noon the day preceding the first day of the school year;
(c)during the 2026/2027 long summer holiday and each third year thereafter with Mr Hooper for the first ten nights, Ms Carmona for ten nights thereafter, and Ms Martine for ten nights thereafter or such lesser period of time so that X is returned to Ms Carmona's care at 12.00 noon the day prior to the commencement of the school year;
(d)during the 2027/2028 long summer holiday and each third year thereafter with Ms Martine for the first ten nights, Mr Hooper for ten nights thereafter and Ms Carmona for the balance; and
(e)at such further and other times and dates as may be agreed between the party who seeks the change, the party requested to change and any other party who may be affected by the change.
11.For the avoidance of doubt:
(a)the long summer holidays are deemed to commence at 12.00 noon on Boxing Day and conclude at 12.00 noon on the day preceding the start of the new school year; and
(b)changeovers shall occur at 12.00 noon.
Arrangements on Special Occasions
12.X spend time with the parties during Christmas:
(a)from 12.00 noon Christmas Eve until 12.00 noon Boxing Day with Ms Carmona in 2024 and each third year thereafter;
(b)from 12.00 noon Christmas Eve until 12.00 noon Boxing Day with Mr Hooper in 2025 and each third year thereafter; and
(c)from 12 noon Christmas Eve until 12 noon Boxing Day with Ms Martine in 2026 and each third year thereafter.
13.Notwithstanding any other spend time arrangements pursuant to these orders, X spend time:
(a)with Mr Hooper from the conclusion of school (or 4.00 pm if a non-school day) on the Friday preceding Father's Day until 5:00 pm Sunday;
(b)with Ms Carmona in 2025 and each alternate year thereafter from the conclusion of school (or 4.00 pm if a non-school day) on the Friday preceding Mother's Day until 5:00 pm Sunday; and
(c)with Ms Martine in 2026 and each alternate year thereafter from the conclusion of school (or 4.00 pm if a non-school day) on the Friday preceding Mother's Day until 5:00 pm Sunday.
14.X communicate with the parents with whom he is not in the care pursuant to these orders on his birthday, the parties' birthdays, Christmas Day, Easter Sunday and Mother's Day by video call initiated by the parent with whom X is not in the care to X's iPad/Tablet or such other electronic device as may be agreed in writing between the parent initiating the call and the parent in whose care X is on the special occasion.
Changeovers
15.All changeovers that coincide with X's attendance at school shall take place at school.
16.Changeovers which do not take place at X's school, including when Friday is a non‑school day during school terms, shall take place:
(a)between Ms Carmona and Ms Martine at Woolworths Suburb C in City D unless otherwise agreed in writing between them;
(b)between Ms Martine and Mr Hooper at Suburb E unless otherwise agreed in writing between them; and
(c)between Ms Carmona and Mr Hooper at Ms Carmona's home unless otherwise agreed in writing between them.
Communication
17.X communicate:
(a)with Ms Martine each Thursday between 6.30 pm and 7.00 pm;
(b)with Mr Hooper each Tuesday between 6.30 pm and 7.00 pm;
(c)with Ms Carmona when he is not in her care each Wednesday between 6.30 pm and 7.00 pm;
(d)with each party at X's request with the party he is in the care of to facilitate X initiating the communication; and
(e)at such further and other times as may be agreed in writing.
18.For the avoidance of doubt:
(a)the party communicating with X pursuant to order 17 herein shall initiate the call except for communications pursuant to order 17(d);
(b)the communication may be by video or telephone; and
(c)the call shall be initiated to X's iPad/Tablet or such other electronic device as may be agreed between the party initiating the call and the party in whose care X is at the time of the call.
19.The parties shall use Our Family Wizard for the purpose of all communication regarding X except in the case of an emergency.
20.Ms Carmona and Ms Martine shall not initiate more than two messages per week on Our Family Wizard unless in the case of an emergency.
Contact Details
21.Ms Carmona and Mr Hooper keep each party informed of their residential address and Ms Martine inform the other parties of her residential address at her discretion save in the event she relocates from her present geographical location in the Town F region.
22.Each party keep the other informed of their email address and telephone numbers including mobile numbers and provide the other with written notice of any change within 48 hours of such change.
Schooling and Extra-Curricular Activities
23.The extra-curricular activities in which X shall be engaged shall be agreed between the parties in writing and in default of agreement the procedure in order 3 herein shall apply.
24.Each party shall keep the other parties informed of all sporting, cultural, artistic, developmental, or other community and extra-curricular activities/events including but not limited to any associated concerts, competitions, training, or meetings whether arranged through X's schools or independently outside of school.
25.Each party is at liberty to, and this order provides the authority for same:
(a)receive copies of X's school newsletters, reports and photographs or the like at their own expense and be at liberty to receive all notices, reports and correspondence from any club or extra-curricular activity in which X is engaged;
(b)liaise directly with X's school, after school care and extra-curricular provider to obtain any necessary information;
(c)attend all events at X's school, after school and extra-curricular activity to which parents are ordinarily invited; and
(d)attend parent teacher interviews provided they attend separate interviews unless otherwise agreed in writing.
26.If the party/ies with whom X is not in the care of pursuant to these orders on the day of the event wishes to attend the event, they shall provide 24 hours' written notice to all other parties advising of their intention to attend the event.
Medical
27.Ms Carmona keep Ms Martine and Mr Hooper advised of the names and contact details of all medical practitioners and allied health practitioners upon whom X attends from time to time.
28.Ms Martine and Mr Hooper advise each other and Ms Carmona of the names and contact details of any medical practitioner and/or allied health practitioner upon whom X attends whilst in their care.
29.Each party:
(a)is at liberty to communicate with X's medical practitioners and allied health practitioners in relation to X at their own expense, and this order provides the authority for same;
(b)shall comply with all reasonable directions of X's medical practitioners and allied health practitioners; and
(c)shall administer all medication prescribed for X in strict accordance with the directions for administration.
30.Each party shall advise the other parties as soon as practicable of:
(a)any significant illness, accident or injury suffered by X whilst in their care;
(b)any significant medical or dental treatment provided to X whilst in their care; and
(c)any medication X is to take whilst he is in the care of another party, including the dosage, and such medication is to be provided to the party into whose care X is entering at changeover.
Restraints
31.Each party, their servants and agents, be and are hereby restrained by injunction from:
(a)denigrating the other parties, and/or the other parties' family members or partner while X is in their presence or hearing, and/or allowing X to remain in the presence or hearing of any third party who is denigrating the other parties or the other parties’ family or partner; and
(b)physically disciplining X or allowing any other person to do so.
Travel
32.The parties be at liberty to travel interstate with X during their scheduled time with him pursuant to these orders, or at such further and other times as may be agreed between the parties in writing, provided that the travelling party shall provide the other parties with a copy of the travel itinerary including evidence of return flights, accommodation details including address of such accommodation and contact details for the duration of the travel, no less than four (4) weeks prior to the intended travel date.
33.Order 16 (Airport Watch List order) of the orders made on 1 December 2021 be and is hereby discharged.
34.The Court requests that the Australian Federal Police remove the name of the child X born 2014 from the Airport Watch List at all points of international arrivals and departures in Australia.
35.As soon as practicable, the respondents serve a sealed copy of this order upon the Proper Officer of the Australian Federal Police at Melbourne who is requested and empowered to give operation to order 34 herein.
36.The parties be at liberty to travel internationally with X during their scheduled time with him pursuant to these orders, or at such further and other times as may be agreed in writing provided that:
(a)the country/ies to which X is travelling is a signatory to the Hague Convention on the Civil Aspects of International Children Abduction;
(b)the country/ies to which X is travelling is not listed as a "do not travel" on the Smart Traveller website;
(c)the travelling party provides the other parties with a copy of the travel itinerary including evidence of return flights, accommodation details including the address of such accommodation and contact details for the duration of the travel, no less than eight (8) weeks prior to the intended travel date;
(d)the travelling party provides to the other parties not less than two (2) weeks prior to departure, copies of certificates of travel insurance which include medical cover for X and the travelling party, which cover X and the travelling party for each relevant destination and duration of travel;
(e)if there are any changes to the itinerary then the travelling party provide that information to the parties forthwith; and
(f)the non-travelling parties be at liberty to communicate with X via telephone and/or videocall during the travel and the travelling party shall facilitate any reasonable request by X for such communication.
37.Within 14 days of the date of these orders Ms Carmona and Ms Martine do all acts and things and sign all documents as may be required to obtain an Australian passport for the child X born 2014.
38.Within seven days of the expiration or loss of X's passport Ms Carmona and Ms Martine shall do all acts and things to renew/apply for another Australian passport for X.
39.Should Ms Martine not comply with orders 37 and 38 herein, Ms Carmona be permitted to renew/apply for a passport for the child, X born 2014 without the permission of Ms Martine.
40.X's passport be held by Mr Hooper and Mr Hooper shall provide the passport to the travelling party at their request for the purpose of international travel and for obtaining any travel documents, with the passport to be returned to Mr Hooper within 14 days of X's return to Australia.
Miscellaneous
41.The parties be at liberty to provide a copy of these orders to any of X's schools, extra‑curricular providers and medical practitioners or allied health practitioners.
42.Ms Carmona and Ms Martine have leave to provide a copy of these orders and these reasons to the Magistrates' Court of Victoria in relation to any intervention order proceedings between them.
43.It is declared that pursuant to sections 68P and 68Q of the Family Law Act 1975 (Cth) these parenting orders prevail to the extent of any inconsistency with any intervention order between the parties.
44.It is requested that the Independent Children's Lawyer meet with X for the purpose of explaining these orders to him.
45.The appointment of the Independent Children's Lawyer be discharged upon completion of order 44 herein.
46.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out herein and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
These proceedings concern the parenting arrangements for X who is nine years of age.
Ms Martine is the applicant mother. Ms Carmona is the first respondent mother. They ceased living together on 26 December 2019 when Ms Carmona and X left the family home in Town G.
X was born in 2014. He was conceived through in vitro fertilisation utilising both donor eggs and donor sperm. The eggs were donated by a friend of Ms Martine and Ms Carmona. X sees the donor from time to time but does not identify the donor as a parent. The sperm was donated by Mr Hooper. Ms Martine carried the fertilised egg and gave birth to X.
Mr Hooper is the second respondent. X identifies Mr Hooper as his father. All parties refer to Mr Hooper as X’s father. For ease of reference, Mr Hooper is referred to in these reasons as X’s father and as his parent notwithstanding the debate during the hearing in relation to whether he is X’s parent at law.
Ms Martine commenced parenting proceedings on 30 December 2019. On 1 December 2021, final parenting orders were made by consent (the December 2021 consent orders) which included that:
(a)Ms Martine and Ms Carmona have equal shared parental responsibility for X;
(b)X live in an equal shared care arrangement during the school week between Ms Martine and Ms Carmona in the pattern of Monday to Wednesday with Ms Martine, and from Wednesday to Friday with Ms Carmona;
(c)X spend time with Ms Martine, Ms Carmona, and Mr Hooper during school terms on weekends in a three-week cycle and during school holidays; and
(d)X remain enrolled in H School, which is now known by a different name.
These reasons refer to the school as H School as that was the manner by which the school was referred for the entirety of the proceedings and in the court documents.
Property proceedings between Ms Martine and Ms Carmona finalised on 15 August 2022 by way of consent orders.
The coparenting relationship has been marred with conflict since the making of the December 2021 consent orders. Ms Martine issued a contravention application in May 2022 whilst the property proceedings were extant. This second tranche of parenting proceedings has continued since then.
On 17 February 2023 orders were made by the court (the February 2023 orders) which varied the December 2021 consent orders. The February 2023 orders include that:
(a)X live with Ms Carmona;
(b)X spend time with Ms Martine each alternate weekend;
(c)X spend time with Mr Hooper as agreed with Ms Carmona; and
(d)X continue attending B School.
The travelling time between the homes of Ms Martine and Ms Carmona is some two hours, the travelling time between the homes of Ms Martine and Mr Hooper is approximately one and a half hours, and the travelling time between the homes of Ms Carmona and Mr Hooper is some three hours.
The major issues requiring determination are the allocation of parental responsibility between the parents, whether X lives with Ms Martine or Ms Carmona, the time X spends with the parents with whom he does not primarily live, and at which school X shall attend.
For the reasons which follow, orders are made including that:
(a)Ms Carmona and Mr Hooper have equal shared parental responsibility for X;
(b)X live with Ms Carmona;
(c)X spend time with Ms Martine;
(d)X spend time with Mr Hooper; and
(e)X continue attending B School.
THE PROPOSALS
All parties provided minutes of proposed final orders just prior to closing submissions which were refined during closing submissions.
In relation to parental responsibility for X:
(a)Ms Martine seeks that she have sole parental responsibility;
(b)Ms Carmona seeks that she and Mr Hooper have equal shared parental responsibility;
(c)Mr Hooper, whilst initially seeking that he have sole parental responsibility, takes no objection to sharing parental responsibility with Ms Carmona; and
(d)the Independent Children’s Lawyer’s (ICL) primary position is for Ms Martine, Ms Carmona and Mr Hooper to share parental responsibility. His alternative position is for Mr Hooper to have sole parental responsibility. He takes no objection to Ms Carmona and Mr Hooper sharing parental responsibility.
In relation to which parent X shall live with:
(a)Ms Martine seeks that X live with her;
(b)Ms Carmona seeks that X live with her;
(c)Mr Hooper seeks that X live with Ms Carmona; and
(d)the ICL seeks that X live with Ms Carmona.
In relation to the time X spends with the parents with whom he does not primarily live:
(a)all parties seek that X spend time with each parent during school terms on one weekend in a three-week cycle from the conclusion of school on Friday. Ms Martine seeks that time concludes at the commencement of school on Monday. The other parties seek that time concludes at 5.00 pm on Sunday;
(b)all parties seek that X spend time with the parents during school holiday periods. It is the configuration of time that is in dispute; and
(c)Ms Martine seeks that on special occasions X have a video call with the parents with whom he is not in the care pursuant to the live with and spend time orders on those occasions. The other parties seek specified face to face time on special occasions.
In relation to which school X shall attend:
(a)Ms Martine seeks that X attend H School; and
(b)all other parties seek that X continue to attend B School.
Several ancillary and consequential orders are agreed between the parties. Several are in dispute.
Ms Martine, Ms Carmona, and Mr Hooper provided fall-back proposals in the event I did not accede to their primary positions in relation to which mother X shall primarily live. The fall back proposals in essence provide for an interchange of the names of the mothers in the live with and spend time arrangements in their primary proposals.
The ICL does not provide any fall-back position for X to live with Ms Martine. That is understandable given the ICL’s role in parenting proceedings.
Ms Martine’s proposal is predicated on the basis that it is in X’s best interests he live with her otherwise a meaningful relationship between them will not continue. Ms Martine contends that since Ms Carmona purchased her property in Town J in late 2018, it has always been her intention to minimise Ms Martine’s role in X’s life. She contends that Ms Carmona influences X against her and there is an alignment between her and Mr Hooper wherein they collude against her.
Ms Carmona, Mr Hooper, and the ICL predicate their proposals on the basis that it is in X’s best interests to live with Ms Carmona as she, together with Mr Hooper, are best able to provide for X’s overall welfare, particularly his health related needs. They contend Ms Martine resists cooperating with Ms Carmona and Mr Hooper in relation to X’s welfare and does not support X’s relationship with Mr Hooper.
I am not bound to make orders in the terms proposed by the parties, subject to matters of procedural fairness.
THE HEARING
Ms Martine, Ms Carmona, and the ICL were represented by Counsel. Mr Hooper was a self‑represented party. I explained to Mr Hooper that as a self-represented litigant he was at liberty to speak to the duty lawyer, I provided him with a copy of sections 60CC and 65DAA of the Family Law Act 1975 (Cth) (the Act), and I advised him of the procedure in defended hearings.
The hearing proceeded over five consecutive days commencing on 29 January 2024 and was adjourned part heard to 19 February 2024 for a further three days. However, due to the unforeseen unavailability of Counsel on the February dates, the proceedings were further adjourned to 9 and 10 May 2024.
As a consequence of events during the adjourned period, Ms Martine filed an application in a proceeding and a supporting affidavit on 6 May 2024. Ms Carmona filed an affidavit in response on 7 May 2024. Ms Martine’s application seeks that makeup time occur in the June/July 2024 and September/October 2024 school holiday periods.
Counsel were advised that judgment would be delivered prior to the June/July 2024 school holiday period. It was accepted that Ms Martine and Ms Carmona’s evidence in relation to what transpired during the first term school holidays would be in conflict with no independent evidence available. Ms Martine and Ms Carmona had completed their evidence by 2 February 2024. As the difficulties that transpired during the school holiday period were yet further examples of the poor coparenting relationship between Ms Martine and Ms Carmona, Counsel agreed there was no need to reopen their evidence. In these circumstances, I do not canvass the evidence in the affidavits filed on 6 and 7 May 2024.
On 10 May 2024, I reserved judgment and made an order by consent that X spend time with Ms Martine on Mother’s Day 2024. An order was also made by consent, at the request of all parties, requiring Ms Carmona to take X to the ICL’s office on the day I pronounced my orders and delivered reasons, in order for X to meet with the ICL and have my orders explained to him.
Ms Martine filed an outline of case on 26 January 2024. She relies on her amended initiating application filed on 30 November 2023 and her affidavit filed on 17 January 2024.
Ms Carmona filed an outline of case on 26 January 2024. She relies on her notice of child abuse, family violence or risk filed on 15 February 2023, her amended response filed on 8 September 2023, and her affidavit filed on 24 January 2024.
Mr Hooper filed an outline of case on 26 January 2024. He relies on his affidavit filed on 21 January 2024.
The ICL filed an outline of case on 25 January 2024.
The following expert reports are in evidence and variably relied on by the parties:
(a)Child Inclusive Conference Memorandum by Family Consultant Ms K dated 30 June 2020;
(b)Family Report by Ms L dated 6 August 2021;
(c)Summary of Therapeutic Family Therapy Sessions by Ms N undated (late December 2022);
(d)Child Impact Report by Ms M dated 27 April 2023;
(e)Section 67Z Report dated 6 March 2023; and
(f)Family Report by Dr O dated 21 September 2023.
A plethora of exhibits was tendered by the parties including 350 pages of Our Family Wizard messages passing between the parents. The majority of the exhibits relied upon were tendered in bundles by the parties. There is an agreed list of exhibits.
The court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all the facts that are put in issue by them. I have read all the documents relied upon and taken all of the evidence and submissions into account. Pursuant to section 140 of the Evidence Act 1995 (Cth), findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged. My observations of the demeanour of the parents have assisted my assessment of the evidence.
The parents
Mr Hooper was a courteous, respectful and articulate self-represented litigant. He sat quietly while listening to the evidence. I agree with Counsel for the ICL’s description that he “appeared to be frank, honest, straightforward. Obviously, he was unhappy about being repeatedly referred to as a sperm donor by [Ms Martine] but his evidence appeared to me to be without malice and dispassionate”.[1]
[1] Transcript dated 10 May 2024, pg.122 – 123.
Whilst Mr Hooper undertook comparatively limited cross-examination of Ms Martine and Ms Carmona, the lines of questioning he pursued were incisive. I place substantial weight on his evidence. He has insight into X’s needs and overall welfare as well as the conflict between the mothers and the adverse effects the conflict has on X.
It was somewhat apparent that Ms Martine tailored her evidence to counteract the negative comments made in the family report about her by Dr O. I am of the view that the lengthy pauses before Ms Martine answered questions put to her in cross-examination were utilised by her to give her time to carefully consider what answer she could give that would best assist her case. I do not agree with Counsel for Ms Martine that Ms Martine’s evidence “has the air of authenticity”.[2]
[2] Transcript dated 10 May 2024, pg.157.
In contrast, Ms Carmona gave her evidence spontaneously. She was a naturally responsive witness who without hesitation answered questions. Ms Carmona gave free flowing narratives with specificity during her cross-examination. I consider the spontaneity of her evidence contraindicates against her having the opportunity to fabricate her evidence to suit her case.
Ms Carmona was visibly shocked throughout much of Ms Martine’s evidence and oftentimes shook her head in disbelief at what Ms Martine was asserting. I do not consider Ms Carmona’s reactions were manufactured or disingenuous.
My observations of the parents while giving evidence are in stark contrast to the descriptions given by Counsel for Ms Martine.
Counsel for Ms Martine sought to discredit Ms Carmona’s evidence with great endeavour. She submits that I should prefer the evidence of Ms Martine where the evidence of Ms Martine and Ms Carmona is in conflict. Counsel for Ms Martine relies on many matters to impugn Ms Carmona’s evidence.
Conversely, Ms Carmona makes serious allegations in her affidavit against Ms Martine of forging her signature and impersonating her. However, these matters were not used by her or her Counsel to bolster her case, or favourably influence the court in relation to what orders it should make that are in X’s best interests.
I do not traverse these matters for the following reasons.
In parenting proceedings, the court should be cautious making adverse credit findings against a parent as the court’s determination in relation to the parenting arrangements does not bring an end to the parents’ relationship. Adverse credit findings “carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future”. Furthermore, “the resolution of parenting proceedings usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the court has the responsibility to decide”.[3]
[3] Carlson & Fluvium [2012] FamCA 32 cited with approval in Adamson & Adamson [2014] FamCAFC 232 at [90].
I approach the making of findings and accept or reject the evidence of Ms Martine and Ms Carmona where it is in conflict by relying on contemporaneous material, objectively established facts, the apparent logic of events,[4] corroborative, reliable and/or independent evidence, and any consistency or inconsistency within each of their cases. I am able to accept some parts of their evidence and reject other parts. There are many considerations that are required to be assessed to determine what orders should be made that are in X’s best interests notwithstanding any credit findings. I am of the view that adverse credit findings against the parents in this matter are not necessary in order to determine the real issues joined between them.[5] I also acknowledge there are limitations in using the assessment of the demeanour of a witness as an entirely reliable guide to the truthfulness of that witness.
[4] Fox v Percy (2003) 214 CLR 118 at [31].
[5] Adamson & Adamson [2014] FamCAFC 232 at [90]
THE EVIDENCE
Ms Martine is 57 years of age. She is employed as a casual educator. Ms Martine did not wish to give her residential address. She lives in rental accommodation which is within less than 30 minutes’ drive of H School. She proposes to obtain different accommodation in the general locale of that school. She has not re-partnered. X refers to Ms Martine as “Mummy”.
Ms Carmona is 59 years of age. She is not in paid employment. She lives in Town J in a home purchased by her in late 2018. She has re-partnered with Ms P. They do not live together. B School is a short bike ride away from her home. X refers to Ms Carmona as “Mumma”.
Mr Hooper is 45 years of age. He is employed as a public servant. He lives in a one‑bedroom apartment in Melbourne with his partner Mr Q. They have been in a relationship for some 12 years. X refers to Mr Hooper as “Daddy” and to Mr Q by another term of endearment.
Prior to physical separation
Despite the purported agreement between the parties to limit evidence of occurrences prior to December 2021, much evidence was provided in respect of incidents which occurred before this date. Some of this evidence provides important context to the relationship between the parents and X.
Ms Martine and Ms Carmona commenced their relationship in or around 2007 and thereafter lived together. Ms Martine asserts they separated in 2011, whereas Ms Carmona asserts they separated in or around 2016. It was agreed that I was not required to make a finding in relation to the date of separation as Ms Martine and Ms Carmona continued to live under the same roof in Town G until physical separation occurred in late 2019. With the benefit of hindsight, given the debate in relation to whether Mr Hooper could, or should, be named as a parent on X’s birth certificate, perhaps this should have been canvassed. In any event, it was not.
Mr Hooper met Ms Martine and Ms Carmona when they were in the process of finding a sperm donor. The evidence of Ms Carmona is that in mid-2009 she, Ms Martine and Mr Hooper entered into a parenting agreement providing for equal shared parental responsibility between them, time with the father, and medical arrangements for the child.
Counsel for Ms Carmona tendered a document entitled Parenting Issues Version 10, being Exhibit R1-4, bearing a date in mid-2009, which was not executed by the parties. Exhibit R1‑4 expressly contemplates the intention of the parties, being listed as Ms Martine, Ms Carmona, and Mr Hooper, stating “our intention is that the mums will be the primary care parents and the dad will be involved with the child but in a secondary role”.
Specifically with regard to Mr Hooper, Exhibit R1-4 contemplated an assisted transition progressing to overnight visits by the time the child reached six months of age, with an aim that by the time the child was five years of age they would spend each second weekend in the care of Mr Hooper. Although unexecuted, it is the evidence of both Mr Hooper and Ms Carmona that these were the terms of the implied agreement between the parents.
Ms Martine continues to dispute that Exhibit R1-4 constitutes the terms of agreement between the parents. Her emphatic denials during her evidence, her lack of any suggestion that it was the case back then but is now of little consequence, and the lack of any concession that the assertion made by Ms Carmona and Mr Hooper might have been the case, do little to support her assertion that she now accepts X should continue to have a meaningful relationship with Mr Hooper.
Mr Hooper first met X on either the day of or the day after his birth. He spent time with X around once per week when he met up with Ms Carmona for lunch or at a park. Overnight time between Mr Hooper and X commenced when X was eight months of age. When X was aged four-and-a-half years, Mr Hooper spent every third weekend with him as Ms Martine also wanted a weekend with X. This is consistent with either version of when Ms Martine and Ms Carmona separated but remained living in the Town G property.
Given that history, I am satisfied that although the document is unexecuted it was always the intention of the parents, albeit begrudgingly on the part of Ms Martine, that Mr Hooper would play an integral part in X’s life as his father.
X was born in 2014.
In 2015/2016 X was enrolled in H School for day care. Ms Carmona asserts that the enrolment at H School occurred because Ms Martine is anti-vaccination and H School was the only school which would accept X unvaccinated. What is evident is that the catalyst for Ms Carmona and X leaving Town G in late 2019 was an ongoing dispute in relation to X’s childhood immunisations and vaccinations.
Ms Carmona asserts that from approximately eight weeks after X’s birth, Ms Martine began working away from home more frequently, spending some two nights per week travelling. Ms Carmona further asserts that from August 2017 to May 2018 Ms Martine would only spend approximately two nights per fortnight at home. Ms Carmona contends that until 2019, Ms Martine “had limited physical presence with [X]. Up to that point she had spent approximately 10 nights alone with [X]”.[6]
[6] First Respondent’s affidavit filed 24 January 2024 at [36].
Ms Martine appears to deny that she was away for work to the degree posited by Ms Carmona. However, Ms L records of Ms Martine:
…she quit her job in 2014; she did not have a full-time job until [mid] 2020… she was away in August 2015 for two weeks but [Ms Carmona] and [X] went with her; in December 2015 she was away maybe two or three nights; from January 2015 to March 2015 she was in Melbourne a handful of nights; in December 2016 she was away for two weeks; that through 2016 she was away a couple of days here and there; in August 2017 to the end of April 2018 she was [interstate] and came home on alternate weekends and did all the washing and cleaning of the house. [In] January 2019 [Ms Carmona] took off with [X] for three or four days; in February 2019 [Ms Martine] said that she was away for a week and again in March.[7]
[7] Family Report of Ms L dated 6 August 2021 at [36].
Counsel for Ms Martine challenged the relevance of such evidence being led.[8] However, the evidence is relevant when one examines the criticisms made of Ms Carmona in relation to the language used by her and X when they spoke to the report writers regarding the time X should spend with Ms Martine.
[8] Transcript dated 29 January 2024, pg.37.
As abovementioned, in late 2018 Ms Carmona purchased the Town J property in which she and X continue to live. Ms Carmona and X spent time in the Town J property when Ms Martine was absent from the Town G property, on weekends when X was not at school, and during school holiday periods. They also spent considerable time there during the Covid lockdown periods.
Since approximately mid-2019, X has experienced a medical symptom, causing him to have medical episodes. This would often occur multiple times in a day and was incredibly embarrassing for X, especially whilst navigating his schooling and developing a social life.[9] This was subsequently diagnosed as a medical condition. X has also been diagnosed with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD).
[9] First Respondent’s affidavit filed 24 January 2024 at [116].
The circumstances of the physical separation
In late 2019, police attended the Town G property and served Ms Carmona with an interim intervention order. The genesis of the application for the intervention order was an assertion Ms Martine made to the police that Ms Carmona had made a threat to kill her earlier that month. Ms Martine and X were present when the police attended.
Upon being served with the interim intervention order, Ms Carmona understood she was required to vacate the Town G property, which she did immediately with X. After spending two nights with a relative, Ms Carmona and X went to her Town J property.
The narrative in the Application for an Intervention Order includes:
On […] an unspecified date the AFM and RESP were having a verbal argument in regards to their sons immunisations as the AFM wanted to take their son out of the house but the RESP wanted him inoculated before he got sick. This lead (sic) to the RESP making indirect threats towards the AFM by saying “I want his injections done before we lose him, or he will die and I will kill you.
I accept Counsel for Ms Carmona’s interpretation during his cross-examination of Ms Martine, under cover of Ms Carmona denying making any such threat, that if it was said, “what she was really doing was just talking very emphatically about how worried she was that harm might come to [X] if he wasn’t inoculated”.
In late 2019, Ms Carmona posted on social media “new beginning for [X] and myself moving into our house at [Town J]. Looking forward to a fantastic future together”. Two days later, Ms Martine posted on a crowdfunding website, “my son [X] is 5 years old. my ex partner has recently abducted him…” Ms Martine sought to raise $25,000.00 to pay legal fees. In early 2020, a fundraiser post was made on Ms Carmona’s Facebook page seeking money to pay for legal fees “to stop my ex from taking my son off me…”
I consider that little turns on these internet posts. There is no doubt that emotions were running very high during this period.
Commencement of proceedings
On 30 December 2019, Ms Martine commenced the first tranche of parenting proceedings. Ms Martine sought an injunction preventing the removal of X from Australia and an order that X be placed on the Airport Watch List. She was concerned that Ms Carmona would take X to the United Kingdom where Ms Carmona was born.
On 17 January 2020, an order was made for Ms Carmona, Ms Martine and X to engage in a Child Inclusive Conference. Orders made by consent included that:
(a)Ms Martine and Ms Carmona have equal shared parental responsibility for X;
(b)X live in an equal shared care arrangement between Ms Martine and Ms Carmona on a week-about basis, and that he spend time with the mother with whom he was not residing on two afternoons each week; and
(c)Ms Martine and Ms Carmona do all things necessary to facilitate X attending H School.
Included in the order was a notation that the parties enter into the orders on the basis that Ms Carmona intends to return to living in an area reasonably proximate to X’s school, being H School at the time.
In compliance with the notation, in early 2020, Ms Carmona rented premises in Town R which is in close geographical proximity to Town G. Ms Carmona and X lived in the Town R property during the school week. At all other times they lived in Ms Carmona’s property at Town J. Ms Carmona ceased renting the Town R premises in early 2023.
Around the same time in early 2020, Mr Hooper placed temporary accommodation on Ms Carmona’s property at Town J. The accommodation is self-contained, with its own shower and bathroom. Mr Hooper utilises the accommodation when he travels to Town J to spend time with X so as to keep travelling time for X to a minimum. This occurs approximately every third weekend. During longer spend time periods they travel to Mr Hooper’s home in Melbourne. Given the amicable nature of the relationship between Ms Carmona and Mr Hooper, Mr Hooper’s spend time arrangements with X are flexible. This appears to be a source of displeasure to Ms Martine.
Ms Martine remained in the Town G property until it was sold in or around mid-2023 in accordance with the final property orders made on 17 August 2022.
The Child Inclusive Conference Memorandum dated 30 June 2020
Family Consultant Ms K conducted interviews with Ms Martine, Ms Carmona, and X on 29 June 2020. X was five years of age at the time and at H School.
The Family Consultant records:
·Ms Carmona said Ms Martine did not like Mr Hooper;
·Ms Martine said that she has no issue with X spending time with Mr Hooper and wants this to continue in the future;
·Ms Martine made no comment with regard to any planned time between X and Mr Hooper; and
·Ms Carmona was seeking that X live with her and spend time with Ms Martine “occasionally” as per his request.
The memorandum includes in relation to X that he:
·presented as a sweet, happy and confident much loved child who feels secure in the love of all of his parents and is happy spending time with all of them;
·is aware the mothers do not like each other;
·commented that Ms Carmona gets on well with Mr Hooper but Ms Martine does not like Mr Hooper and will not let him see him; and
·reported he wanted to live with Ms Carmona and see Ms Martine “occasionally” which he understood to mean “whenever I want”.
Family Consultant Ms K:
(a)opined that “from some of his comments, the writer questions as to whether he may have been influenced in some of his responding by [Ms Carmona]”; and
(b)suggested that until further information is gathered and whilst longer-term decisions are being considered, it would benefit X to live with Ms Martine, spend substantial and significant time with Ms Carmona including alternate weekends and half of school holidays, and for X to remain enrolled in H School pending longer term decisions as to his living and spend time arrangements.
The suggestion of Family Consultant Ms K was based on being able to provide X with some stability and predictability in order to support his emotional wellbeing in his living, schooling, and care arrangements after experiencing a period of significant change and disruption since separation and the move to the Town J property.
Amended application and response
On 26 June 2020, Ms Martine filed an amended initiating application seeking orders including that:
(a)she have sole parental responsibility for X;
(b)X live with her;
(c)X spend alternate weekends with Ms Carmona during school terms from Friday until Monday; and
(d)X continue his schooling at H School.
Notably, there was no order sought by Ms Martine providing for X to spend time with Mr Hooper. This is consistent with her making no comment to Family Consultant Ms K in relation to any such time occurring, and X’s comment that Ms Martine does not like Mr Hooper and will not let him see him.
On 3 July 2020, Mr Hooper filed an application in a case seeking that:
(a)he be added to the proceedings as second respondent;
(b)Ms Carmona have sole parental responsibility for X;
(c)X live with Ms Carmona; and
(d)X spend time with Ms Martine each alternate weekend.
On 6 July 2020, Ms Carmona filed her amended response seeking that:
(a)the parties have equal shared parental responsibility for X;
(b)X live with her;
(c)X spend time with Ms Martine from the conclusion of school Wednesday until the commencement of school Friday each week and additionally every third weekend; and
(d)X spend time with Mr Hooper every third weekend.
I consider that the orders sought by Ms Carmona at this time contraindicates any intention by her to minimise Ms Martine’s role in X’s life. I have calculated that in a four-week period during school terms, if the court had acceded to Ms Carmona’s proposal, X would have been spending 11 nights with Ms Martine. If the court had acceded to Ms Martine’s proposal, X would have been spending six nights with Ms Carmona. One can also see the more generous proposal by Ms Carmona than that of Ms Martine in relation to the allocation of parental responsibility.
16 July 2020 orders
On 16 July 2020, Judge Bender made orders joining Mr Hooper as a party to the proceedings and for the preparation of a family report. Consent orders included that:
(a)X live week-about between Ms Martine and Ms Carmona;
(b)X spend time and communicate with Mr Hooper during the times X spends with Ms Carmona as agreed between them;
(c)X continue attending H School; and
(d)the parties attend upon Dr S for the purpose of the preparation of a report.
Again, contraindicating the suggestion that Ms Carmona and Mr Hooper seek to minimise Ms Martine’s role in X’s life, they agreed to X living in an equal shared care arrangement between the two mothers.
Dr S’s report
Dr S is a psychiatrist. He undertook psychiatric assessments of the parties.
No party sought to rely on Dr S’s report. There was limited reference to Dr S’s report other than by Counsel for Ms Martine while cross-examining Ms Carmona for credit purposes. Dr O had read Dr S’s reports for the purpose of his family report and also referred to Dr S in his oral evidence. I wished to read what Dr O had read so I admitted Dr S’s report into evidence with the agreement of Counsel. Other than set out below, I do not refer to Dr S’s report.
Dr S assessed Ms Martine on 18 February 2021. He diagnosed her with Social Anxiety Disorder, and disordered personality traits.
Dr S assessed Ms Carmona on 25 February 2021. He diagnosed her with mild Generalised Anxiety Disorder, and disordered personality traits.
Dr S assessed Mr Hooper on 4 May 2021. He diagnosed Mr Hooper with Social and mild Generalised Anxiety Disorder.
Ms L’s family report dated 6 August 2021
Ms L had many documents provided to her including the Child Inclusive Memorandum. Amongst the issues identified by Ms L during her assessment were:
(a)a very high level of conflict between Ms Martine and Ms Carmona as well as between Ms Martine and Mr Hooper;
(b)a very limited to poor communication between Ms Martine and Ms Carmona as well as between Ms Martine and Mr Hooper; and
(c)whether Ms Martine facilitates X having a relationship with Mr Hooper.
Ms Martine told Ms L that if Mr Hooper is to have time with X she would like that to be in the time he is with Ms Carmona. Ms Martine said she thinks they need to know each other and should spend time, but not over and above her and Ms Carmona.
Ms Carmona told Ms L that she wants X to have a daddy. She also told her that Mr Hooper is “a good man, he has always been there for [X], that she is glad she chose him, he is just amazing”.
Mr Hooper told Ms L:
·Ms Martine and Ms Carmona agreed, as a condition for him to be a sperm donor for them, that he would be involved;
·Ms Martine refuses to talk with him and he does not know why;
·Ms Martine does not facilitate him, she tells X that he is not his dad, it is like she is trying to put a wedge between him and X but he and X have a great relationship. He does not understand why Ms Martine does not want him and X to have their relationship. Ms Martine calls him the sperm donor which she has written to the school, for example, she wrote that X had a holiday with Mr Hooper and put in brackets the sperm donor;
·his major concern was about Ms Martine excluding him. He is in X’s life but does not think Ms Martine wants him to be. On Father’s Day, Ms Martine did not allow X to contact him;
·Ms Carmona and he have become close in the last year or two and she always facilitated X spending time with him; and
·Ms Carmona was the more involved parent.
It appeared to Ms L that Ms Martine did not seem to support Mr Hooper having a significant role in X’s life apart from on a minimal basis, whereas Ms Carmona viewed Mr Hooper as being a significant person in X’s life. Ms L was of the view that X can benefit from having Mr Hooper as a major part of his life and that he has a right to have him in his life as a significant person.
X told Ms L amongst other things:
·he wants to “live with mumma ([Ms Carmona]) and see mummy ([Ms Martine]) whenever I want”;
·“[Ms Carmona] plays with me a lot cos she doesn’t have a job. Sometimes she lets me watch movies… She sometimes has to work including the Family Court so she doesn’t have time to play with me”;
·“[Ms Martine] lies. That’s a really bad thing.” When X was asked who said that she lies he said, “Mummy told me […] my dog was at the farm. Mumma told me he was in heaven. Daddy is my parent. Mummy said he isn’t my parent. She doesn’t get much time to play with me”;
·“[Ms Martine] doesn’t tell the truth always”. When asked who said that, X said, “Mumma. I do have some proof but I’ve forgotten it”; and
·“[Ms Carmona] lets me see daddy whenever we have a chance. Overnight in the [temporary accommodation]”.
It appeared to Ms L from X’s account that Ms Carmona has been trying to influence X against Ms Martine.
X also told Ms L:
·if he lives with Ms Martine and spends time with Ms Carmona on alternate weekends, “Missing Mumma a lot, very much and very, very, very, very happy when it’s every second weekend. I want to live with Mumma and see Mummy whenever I want.” and “Miss Mumma very, very, very much and sad”;
·if he lives with Ms Carmona and spends time with Ms Martine on alternate weekends, “Pretty good. Yeah I like that” and “Happy, joyful having lots of fun… Mumma would let me have a phone call with Mummy anytime I want to”;
·when asked when he would like to see Mr Hooper, “Whenever he has time and I want”; and
·when asked how he would feel if he saw Mr Hooper every third weekend, “Yes and whenever he has a chance to come over”.
Ms L was of the view, given the not-so-subtle influencing by Ms Carmona and given X’s age, as well as X being so caught in the middle of the conflict between Ms Martine and Ms Carmona, that other factors need to be taken into account apart from X’s views.
Ms L records:
It is my view that [Ms Martine] seemed to be meeting the intellectual needs, social needs, health needs and day to day emotional needs of [X] but [Ms Martine] is also lacking insight into [X’s] emotional well-being by not acknowledging how [Mr Hooper] is a significant person in [X’s] life which needs to continue for [X’s] overall emotional well-being. [Ms Carmona] appeared to be lacking insight into [X’s] overall emotional needs, but appeared to meet his day to day emotional needs, his intellectual needs, social needs and health needs. [X’s] overall emotional needs remain in jeopardy given the conflict between [Ms Martine] and [Ms Carmona] as well as between [Ms Martine] and [Mr Hooper].[10]
[10] Family Report of Ms L dated 6 August 2021 at [114].
Ms L was of the view that X should continue attending H School which would allow for the one stable area in his life to continue in circumstances where his life had been changed dramatically. This aligns with Family Consultant Ms K’s recommendation which was also based on X being able to attend H School for some stability in his otherwise disrupted life.
Ms L recommended the equal shared care regime continue if Ms Carmona relocated within proximity of H School, and that X spend time with each parent on one weekend in a three‑weekly cycle. If Ms Carmona was unable to relocate, she recommended that X live with Ms Martine and spend time with Ms Carmona and Mr Hooper. In either scenario she recommended that Ms Martine and Ms Carmona share parental responsibility.
Ms L referenced X saying he wanted to see Ms Martine whenever he wanted with the words “occasionally” and “at his request’ used by Ms Carmona and X in the Child Inclusive Memorandum. Ms L was of the view that this showed a lack of insight into X’s emotional state as well as demonstrating that Ms Carmona did not view Ms Martine as being a significant person in his life, that it would be her responsibility to ensure X spent at least substantial and significant time with Ms Martine, and that it was too big a responsibility to place on such a young child to have to choose between his parents whom he was very aware were in dispute.
The language used by Ms Carmona and X with Ms L must be viewed in the context of the following exchange between Ms Carmona and Counsel for Ms Martine:[11]
[11] Transcript dated 31 January 2024, pg.184 – 185.
Counsel for [Ms Martine]: How much time did you really want [X] to spend with [Ms Martine]?
[Ms Carmona]: I wanted it to be like it had always been. [Ms Martine] periodically would pop in and spend time with [X] and then disappear for however long and [X] would just stay living with me like he always did and see his father.
Counsel for [Ms Martine]: When you say “pop in”, are you talking about once a week, once a fortnight, once a month, once a year?
[Ms Carmona]: Sometimes not for six weeks, sometimes wouldn’t see her for two months. She is just off working.
Counsel for [Ms Martine]: So, your view was – what you wanted was minimal time?
[Ms Carmona]: No. I wanted [Ms Martine] to have as much time with [X] as she could muster up.
Counsel for [Ms Martine]: Then over the page you wanted her to have one out of three weekends from after school or 3.30 Friday until 9 am Monday one out of three weekends? So you were giving her one out of three weekends?
[Ms Carmona]: Yes.
Counsel for [Ms Martine]: Yes. But you didn’t really want that, did you?
[Ms Carmona]: I agreed to it because we had to come to an agreement but I still again stand to my word. I wanted to be able to cater for [Ms Martine’s] needs, how she could however see [X].
The further exchange took place:[12]
Counsel for [Ms Martine]: The reality is, I put it to you, you didn’t put school holiday time in there because you really didn’t want [X] to have school holiday time with [Ms Martine]?
[Ms Carmona]: No, I have always encouraged [Ms Martine] and [X’s] relationship since birth because [Ms Martine] was only periodically in his life and I always made sure he was available for when she was at home and wanted to spend time with him.
Counsel for [Ms Martine]: Okay?
[Ms Carmona]: But then she would spend 10 minutes with him and I would say that’s not much, and she goes it’s not the amount of time you spend with the child, it’s the quality time and I go he’s not even two, so we go from there.
Counsel for [Ms Martine]: My client disagrees with your version of the care arrangements prior to 2019. Do you accept she disagrees with it?
[Ms Carmona]: She would disagree but if she provided her work diaries you would see she wasn’t there. She didn’t live with us.
[12] Transcript dated 31 January 2024, pg.186.
Ms Carmona again repeated the import of the above later in her evidence.[13] I accept Ms Carmona’s evidence which aligns with Mr Hooper’s evidence. I am satisfied that Ms Carmona’s intentions in the language she used were to accommodate Ms Martine’s employment obligations which necessitated her working away from home. Furthermore, Ms Martine recommenced working full time in mid-2020. I am also of the view that X’s language and views reflected his own experience of the times he spent, and the times he did not spend, with Ms Martine.
[13] Transcript dated 31 January 2024, pg.194.
11 August 2021 interim consent orders
By 11 August 2021 the parties had the benefit of Ms L’s family report. Ms Carmona continued renting the premises at Town R which was proximate to H School. The parenting proceedings were initially listed for final hearing on 11 August 2021. As property proceedings had been enlivened by Ms Martine four days earlier, and the family report was very recent, the final hearing date was converted to a mention and the final hearing was adjourned to 15 August 2022. Mr Hooper notes that “the timing [of Ms Martine enlivening property proceedings] was devastating”.[14]
[14] Second Respondent’s affidavit filed 21 October 2024 at [59].
Judge Bender made orders by consent on 11 August 2021 including that:
(a)the parties attend a Family Dispute Resolution Conference on 1 December 2021;
(b)X live with Ms Martine and Ms Carmona on a week about basis;
(c)the interim live with and spend time orders made on 16 July 2020 remain in full force and effect;
(d)order 25(a): each party be at liberty to attend upon the General Practitioner at T Medical Centre for the purposes of X’s day to day health care;
(e)order 25(b)(iii): each party must advise the other of any appointment that they have attended with X within 24 hours of the appointment occurring;
(f)order 25(d): each of the parties will administer any prescribed medication or continue any advised medical treatment for X during the time that X is in their care; and
(g)order 27: Ms Martine and Ms Carmona do all acts and things necessary for X to undergo a full paediatric assessment by Dr U.
1 December 2021 final consent orders
The parties resolved the parenting proceedings at the Family Dispute Resolution Conference on 1 December 2021. The property proceedings did not resolve.
Final parenting orders were made by consent on 1 December 2021 by a Senior Judicial Registrar including that:
(a)Ms Martine and Ms Carmona have equal shared parental responsibility for X;
(b)X live with Ms Martine and Ms Carmona on a shared care basis and spend time with Mr Hooper;
(c)order 6: X receive all immunisations/vaccinations that are mandated for his age by State legislation, consented to by all parties, or ordered by the Court;
(d)order 7.1: for the purpose of any medical treatment of X each party be at liberty to attend upon a General Practitioner at T Medical Centre for the purposes of the day to day health care of X (the same as order 25(a) in the 11 August 2021 orders);
(e)order 7.2(iii): each party advise the other parties of any medical appointment they have attended with X within 24 hours of the appointment occurring and any medication X is prescribed or medically advised to take whilst he is in the other’s care including the dosage (the same as order 25(b)(iii) in the 11 August 2021 orders);
(f)order 7.4: each party administer any prescribed medication or continue any advised medical treatment for X during the time X is in their care (the same as order 25(d) in the 11 August 2021 orders);
(g)order 8: Ms Martine and Ms Carmona do all things necessary for X to undergo a full paediatric assessment by Dr U, and Ms Martine, Ms Carmona and Mr Hooper may attend upon any appointments for this purpose and must do all things necessary, including completing any documents and assessment paperwork, necessary for such assessment (a more comprehensive order than order 27 of the 11 August 2021 orders);
(h)order 9: X remain enrolled in H School unless agreed otherwise by Ms Martine and Ms Carmona; and
(i)order 10: Ms Martine and Ms Carmona engage and facilitate X’s attendance upon a family therapist/counsellor, with the counsellor being Ms N or such other therapist nominated by the ICL if they are unable to agree on a suitable person within 21 days. The costs of such therapy be borne equally by the mothers with both facilitating Mental Health Care Plans to defray the cost.
The orders included the following notations:
(a)Ms Martine has agreed to be responsible for the school fees of X’s attendance at H School; and
(b)these orders have been agreed upon on the basis that each of Ms Martine and Ms Carmona intend to reside within 20km of Town F following their re-housing following settlement of the property proceedings.
Difficulties in relation to the Covid vaccination for X
Immediately after the December 2021 consent orders, the interminable conflict between Ms Martine, Ms Carmona and Mr Hooper recommenced.
Ms Carmona first raised the prospect of having X vaccinated against Covid on 10 December 2021 when it was announced that children aged over five years could receive said vaccines. On 12 December 2021, Ms Martine declined to consent stating:[15]
Hi [Ms Carmona], I have concerns about this newly announced / first young children’s Covid vaccine. At present I do not consent to a Covid vaccination for [X] so please do not book him in nor have this particular vaccination administered. In the interim I will seek advice about this. Thank you [Ms Martine].
[15] Exhibit MC-21.
Ms Martine deposes that she “requested further time in [early] 2022” as she had “genuine concerns about the various complications and symptoms children and adults were experiencing after receiving the vaccine, particularly issues with the heart”.[16]
[16] Applicant mother’s affidavit filed 18 January 2024 at [108].
In early 2022 Mr Hooper tested positive to Covid and messaged both Ms Martine and Ms Carmona the following:[17]
Hi
I have been tested positive to covid 19 and isolating […], double vax and still been hit by it
[Ms Martine] can you offer some insight as to your reason to not get allow (sic) [X] to be vaccinated? Rather than avoid another costly court appearance. It is my understanding that the family court has a pro vaccination stance, and we would all like to avoid any further proceedings.
[17] Exhibit MC-22.
The correspondence between the parents in Exhibit MC-22 is detailed and does not bear reproduction in full. Ms Martine responded the next day confirming that she did not consent to X being vaccinated. Relevantly, Ms Martine stated:
All I can do is what I think is appropriate in this instance it is/was [as per message on 12 December], that I be given time to look into what is proposed for children [X’s] age before I make my decision. Flowing on from that I’m happy to discuss aspects that have implications for [X].
Relevantly to the above, on the same day Mr Hooper sought the following clarification:
In regards to [X], my understanding is you want more time to understand the impact of vaccination on younger children?
Have you got a specific time frame to avoid any more court or conflict, perhaps [T Medical Centre] could offer some advice on the matter too.
From my perspective being double vax and having relatively milder symptoms (fatigue sweats and sore throat) I am very supportive of the vaccinations, I also understand the impacts on children are different, perhaps avoiding high risk areas with [X] in the meantime. (emphasis added)
Ms Martine replied the following day:
There should be an informed decision as opposed to a rushed one, so yes I would like a chance to look into this further and no I don’t have a specific timeline as it is dependant on availability & location of the relevant information. I think it is important to understand aspects around immune response and infections as well as aspects relating to the vaccines as it relates to the younger age groups in particular, for both short-term and long-term.
Of further relevance in Exhibit MC-22 are repeated allegations by Ms Carmona that Ms Martine previously opposed X’s childhood immunisations. Ms Martine denies this. Ms Carmona further states she will be taking the matter to court the next day. Ms Martine suggests that there be an exchange of material/information with respect to the matter for each party to consider prior to Ms Carmona instituting further proceedings.
X tested positive to Covid in early 2022. It is in this context Ms Carmona overheld X a few days later, on a date when X was to commence being in Ms Martine’s care. X isolated with Ms Carmona until three days later. He transferred into Ms Martine’s care on that date. Ms Carmona asserts that during that three day period X was “very unwell”. I note that he did have Covid.
The mothers live some two hours apart and I consider that more probably than not, it would have been a very uncomfortable journey for a five-year-old child recovering from Covid. I am of the view that this overholding was motivated by Ms Carmona having X’s welfare in mind, and not with any malicious intent to deprive Ms Martine of time.
Later that month, X was again due to commence being in Ms Martine’s care pursuant to the December 2021 consent orders. Ms Carmona overheld X causing him to miss an event that Ms Martine had organised to take him to as his Christmas present. Ms Carmona asserts that she was informed Ms Martine would not be attending the event. This is denied by Ms Martine. Ms Carmona further asserts she was concerned about X attending the event as he was not vaccinated. The latter assertion accords with Mr Hooper’s request outlined at paragraph 120 herein that the parents avoid high risk areas with X until he was vaccinated.
Much correspondence was exchanged between Ms Martine and Ms Carmona’s lawyers, including:
(a)on 19 January 2022, a letter from Ms Carmona’s lawyers to Ms Martine’s lawyers seeking confirmation as to whether Ms Martine consents to X being vaccinated against Covid and advising failing consent they hold instructions to commence proceedings;[18]
(b)on 3 February 2022, a letter from Ms Carmona’s lawyers to Ms Martine’s lawyers regarding parenting arrangements for X and requesting a response to the 19 January 2022 letter;[19]
(c)on 11 February 2022, a letter from Ms Carmona’s lawyers to Ms Martine’s lawyers requesting a response to the 19 January letter;[20] and
(d)finally, on 24 February 2022, a reply from Ms Martine’s lawyers to Ms Carmona’s lawyers confirming Ms Martine did not consider it necessary or desirable for X to be vaccinated against Covid. This letter further speculated that following infection the risk of reinfection is reduced for six months and therefore “it would be reasonable to defer consideration of a vaccination for up to six months”. Ultimately, Ms Martine sought a roundtable to exchange views before Ms Carmona instituted proceedings.[21]
[18] Exhibit MC-23.
[19] Exhibit MC-24.
[20] Exhibit MC-25.
[21] Exhibit MC-26.
In accordance with the position put forth by her solicitors at that time, Ms Martine subsequently deposes in her trial affidavit at paragraph 30 that the “prevailing medical advice at the time was that the risk of reinfection was reduced for at least six months post infection so I wished to defer consideration of [X] receiving the Covid vaccination until later that year”.
Unfortunately, in mid-2022 X was reinfected with Covid prior to receiving any vaccinations.
As reported by Dr U in his report dated 27 July 2022, Ms Martine continued to oppose Ms Carmona’s wish to have X vaccinated against Covid. This opinion is borne out as an incontrovertible fact when considering the contemporaneous litigation. Dr U also recommended that X have the Covid vaccine.
On 30 June 2022, having acceded to Ms Martine’s request and waited some six months as requested by her, Ms Carmona filed an application in a proceeding seeking that X receive all vaccinations against Covid recommended for his age and recommended by health professionals.
Ms Martine further asserts in her trial affidavit at paragraph 108 that she requested further time in early 2022 as she had “genuine concerns about the various complications and symptoms children and adults were experiencing after receiving the vaccine”. In this respect it is notable that Exhibit A1 shows that Ms Martine received two Covid vaccinations, in late 2021, each being Moderna. Whilst Ms Martine contends that she had genuine concerns for the effect of such vaccinations on both adults and children, she was willing to receive the vaccine and its associated protections but was not willing to allow X to be protected. As identified, X contracted Covid twice during the period in which Ms Martine refused to provide consent for him to be vaccinated against Covid, notwithstanding she was double vaccinated.
Orders were made on 12 July 2022, not by consent, which included that:
(a)X receive all vaccinations against Covid as recommended for his age in accordance with the recommendations of his treating doctor/s at T Medical Centre Town G (having regard to the ATAGI recommendations);
(b)for the purpose of the above order Ms Carmona is authorised to take X to his vaccination appointments and this order authorises the said vaccinations notwithstanding any other orders; and
(c)for the purpose of these orders Ms Carmona is to advise Ms Martine of the date and time of X’s appointments and Ms Martine is authorised to speak to the doctor administering the vaccine prior to the appointments to advise she and Ms Carmona are in agreement X be administered the Moderna vaccine.
X received two doses of the Moderna vaccine in mid-2022 and early 2023 in accordance with the orders. Ms Martine states that Ms Carmona failed to advise her of the date and time of X’s appointments prior to them occurring.
Counsel for Ms Martine put to Ms Carmona that she failed to comply with the orders, specifically in respect of X’s secondary appointment as Ms Carmona did not advise Ms Martine. Ms Carmona replied:[22]
I spoke to my lawyers. My lawyers dealt with it all because I wasn’t allowed talk to [Ms Martine]. So that’s why my lawyers’ bill cost me everything I had, because I went to them because I couldn’t deal with it.
[22] Transcript dated 1 February 2024, pg.309.
I note that the sole purpose for notification prior to the appointment was so that Ms Martine could advise the administering doctor that the agreed vaccine was to be Moderna. In any event, Ms Carmona had X vaccinated with Moderna. I further note that Ms Carmona made the effort to ensure X would receive Moderna in order to accommodate Ms Martine’s preference.[23] Accordingly, in the event that Ms Carmona did fail to advise Ms Martine, there was no adverse consequence on X of her failure to do so.
[23] Transcript dated 1 February 2024, p.287.
Any other complaints or criticisms made against Ms Carmona post the 11 August 2021 order that she did not advise Ms Martine of medical or like appointments prior to an appointment occurring cannot be sustained. All orders, save for the order made on 12 July 2022 in relation to notification of appointments for Covid vaccinations, provide for notice within 24 hours after the appointment has occurred.
While being cross-examined, Ms Martine repeatedly stated with respect to the issue of vaccinating X against Covid that she was “trying to work through things”.[24] However, even when Ms Carmona acceded to her request for a six month stay of any decision, Ms Martine had still been unable to work through the issue herself. Ms Martine seeks to shift responsibility for this to Ms Carmona stating she was asking Ms Carmona “what it is she wanted” and that she “didn’t get that information”. It is apparent on all of the evidence that what Ms Carmona wanted was abundantly clear, that X be vaccinated against Covid.
[24] Transcript dated 30 January 2024, pg.74.
I consider that much like her approach to the administering of a medication to X, Ms Martine’s assertion that she did not have sufficient information to make a decision in relation to Covid vaccinations is disingenuous. It is not the role of this court to critique an individual’s views of the risk-benefit equation involved in the Covid vaccine. However, I do take issue with Ms Martine’s consistent deferral of important medical decisions to the detriment of X, whereby she hides behind her purported need for more information whilst not moving forward proactively herself to reach a decision.
Difficulties engaging X in counselling
Order 10 of the December 2021 consent orders dealt with the engagement of X in counselling.
Ms Martine had made enquiries with Ms N and learned that her fees were $150.00 per hour. Despite the consent order providing that the costs be shared equally, Ms Martine deposes, “I was not in a position at that time to solely fund [Ms N’s] fees and was also concerned that, given [Ms Carmona] receives a pension, she also may not be able to fund [Ms N’s] fees”.[25]
[25] Applicant’s affidavit filed 18 January 2024 at [37].
I note there is no evidence supporting that Ms Carmona would not have paid her share of the fees.
Ms Martine says that in January 2022 X’s general practitioner recommended X attend upon Mr V, a psychologist. There was a long waiting list. It appears Ms Martine had sought to make appointments for X to attend upon Mr V without the consent of Ms Carmona. Ms Carmona did not agree to X attending upon Mr V.
On 25 February 2022, Ms Carmona contacted Ms Martine in relation to X commencing counselling with the school counsellor, noting Ms Carmona states, “the school counsellor seemed like a good option as this was available to [X] during school hours and would minimise the travel time required for any other counsellor or psychologist”. Furthermore, there was no fee associated with X seeing the school counsellor. Ms Carmona asserts this was intended to be a “temporary measure” to allow X some access to counselling whilst Ms Martine and Ms Carmona attempted to agree on a suitable therapist for X’s needs.
Ms Martine did not agree to X attending upon the school counsellor, further asserting that “without any consultation with me, [Ms Carmona] arranged for [X] to see the school counsellor. This is why I had brought the Contravention Application”.
On 16 May 2022, Ms Martine issued a contravention application seeking that X attend upon a psychologist other than Ms N upon whom Ms Carmona was endeavouring X attend, or the school counsellor, pursuant to order 10 of the December 2021 consent orders.
On 5 July 2022, Ms Carmona filed an enforcement application seeking that Ms Martine comply with order 10 of the December 2021 consent orders, specifically that the mothers engage and facilitate X’s attendance upon a family therapist/counsellor.
Mr Hooper is not involved in the intervention order proceedings but is referenced often in the reports. X and his challenges are also contents of the reports. The reports of Family Consultant Ms K and Ms L are now historical. Much has transpired since June 2020 and August 2021. I consider that I have referred to and canvassed the reports of Ms M and Dr O (and the reports of Family Consultant Ms K and Ms L) in a manner whereby the Magistrate is able to glean the dynamics between the mothers. Dr O’s report was the subject of cross-examination and I have also referred to his oral evidence. The reports also contain information about Ms Martine, Ms Carmona, Mr Hooper and X which I consider is not relevant to the issue of family violence.
Taking into account the preservation of the privacy and confidentiality of X, Mr Hooper, Ms Martine, and Ms Carmona, I am of the view that justice can be achieved in the Magistrates’ Court proceedings without the four reports being available to be relied upon. Accordingly, the orders provide for only these orders and reasons being available for potential use in the Magistrates’ Court by Ms Martine and/or Ms Carmona.
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 – section 60CC(3)(l)
The parties have been embroiled in parenting litigation since December 2019, nearly half of X’s life. Ms Martine and Ms Carmona have also been engaged in intervention order proceedings since late 2019. Intervention order proceedings are still ongoing.
There have been numerous court hearings in the family law jurisdiction and now a seven day final hearing. X has been involved in two family reports, two child inclusive reports, a meeting with the Department of Families, Fairness and Housing, and a meeting with the ICL. He will be meeting again with the ICL. X is well aware of there being court proceedings between the parents about him. He has also been present when police have attended at his home on two occasions.
In all of those circumstances I consider it is preferable to make orders that are least likely to lead to further parenting proceedings. It is in the hands of the parents whether X can finally cease being caught in the middle of them litigating about him. Removal from that conflict can only be in his best interests.
Any other fact or circumstance that the court thinks is relevant – section 60CC(3)(m)
Ms Martine makes many other complaints and criticisms in relation to the conduct and behaviour of Ms Carmona and Mr Hooper which were the subject of evidence, including dental care, child support issues, communication between the parents and her difficulties communicating with X. I have not canvassed these or other matters raised by the parties, however, I have considered and taken them all into account in reaching my determination.
CONCLUSIONS
Parental responsibility
Irrespective of whether the presumption of equal shared parental responsibility applies or is rebutted, I am satisfied that it is not in X’s best interests for all three of Ms Martine, Ms Carmona, and Mr Hooper to share parental responsibility for him.
X is a child who has diagnoses of ASD and ADHD, has medical and health needs, and requires supports. It is imperative that major long term decisions in relation to these issues are made without delay and to the best standards.
Only the ICL seeks that the three parents share parental responsibility. There is no utility in compelling the parents to do so given that two of the major long-term issues in relation to parental responsibility, being health and education, have required court intervention during the time Ms Martine and Ms Carmona shared parental responsibility. Such an order will inevitably lead to further parenting proceedings which will not be in X’s best interests.
The evidence unequivocally supports that Ms Carmona and Mr Hooper have better insight into X’s health and education needs and make better decisions than Ms Martine in relation thereto. Such is supported by the court orders that have previously been made. I am therefore satisfied it is not in X’s best interests that Ms Martine have sole parental responsibility for X. This is so, notwithstanding she also proposes such order places her under an obligation to seek and consider the views of Ms Carmona and Mr Hooper.
I am of the view that Ms Martine will only give lip service to that obligation. Her views in relation to X’s health and education have always been opposed to the other parents’ views. The juxtaposition of their views has always required court intervention on the basis that Ms Martine did not give due regard to their views. It has been the views of Ms Carmona and Mr Hooper which have been supported by court orders.
I am satisfied it is in X’s best interests for Ms Carmona and Mr Hooper to share parental responsibility as sought by Ms Carmona. Mr Hooper told the court he would be “happy” to share parental responsibility with her.
I am satisfied that Ms Carmona and Mr Hooper will take their obligation seriously to seek and consider Ms Martine’s views. One need only reflect on when Ms Carmona took Ms Martine’s wishes into account in relation to X’s Covid vaccinations and that Mr Hooper has tried hard to have an amicable relationship with Ms Martine.
Mr Hooper suggests that I specify X’s medical and allied health practitioners, as was done in the orders made on 29 August 2023, so as to avoid future disagreements. I consider that it is not necessary to do so as he and Ms Carmona will share parental responsibility for X’s medical and allied support providers. They are the ones who will ultimately decide which practitioners X shall attend. It behoves Ms Carmona and Mr Hooper to keep Ms Martine advised of the names and contact details of the practitioners so she is able to make her own enquiries in relation to X’s welfare.
Live with
Taking into account all of the evidence and my assessment of the primary and additional considerations, I am satisfied that it is not in X’s best interests to live with Ms Martine. I have addressed some of the reasons supporting this conclusion in paragraphs 363 to 369 herein.
If X lives primarily with Ms Carmona, then the converse of the matters addressed in those paragraphs apply.
X:
(a)will have his relationship with Mr Hooper supported. There will be flexibility in relation to the time they spend together including further time not specified in the orders;
(b)will continue attending B School which is a school best suited to his needs;
(c)will have stability and predictability in his living arrangements;
(d)will remain living in circumstances where he is thriving;
(e)will have consistency with his speech therapist, occupational therapist, counsellor and other medical and allied health providers; and
(f)will live in the primary care of a parent who tends to his medical and allied health needs as her priority. He will be assured to receive appropriate medical attention and supports for his welfare on a day to day and long term basis.
Having regard to the six matters in the preceding paragraph, I reject any assertion that my determination is based on “punishing [Ms Martine] for one bad decision”,[80] namely the medical condition controversy. For Ms Martine’s benefit I have excluded X’s views from the above list.
[80] Transcript dated 10 May 2024, pg.164.
I now add to that list. Given X’s views, he will more probably than not feel contented and secure if he continues living with Ms Carmona than if he lives with Ms Martine.
Furthermore, I consider it an untenable arrangement wherein Ms Carmona and Mr Hooper have parental responsibility of X but he lives primarily with Ms Martine.
As Ms Carmona and Mr Hooper are sharing parental responsibility, notwithstanding that neither of them seek such orders, I am mandated to consider whether it is in X’s best interests and reasonably practicable for him to live in an equal shared care arrangement between them, and if not so found, whether X spending substantial and significant time with Mr Hooper is in his best interests and reasonably practicable.
It is impracticable for X to be in Mr Hooper’s care in either of those arrangements. There is the geographical impediment of him doing so as Ms Carmona and Mr Hooper live three hours apart.
X’s time with Ms Martine will also need to be considered in light of her and Ms Carmona living two hours apart.
I approach my determinations in relation to the spend time arrangements and ancillary and consequential orders on the basis of assessing what is in X’s best interests, and not on viewing X as a “prize”. Despite the need to make orders with specificity in an endeavour to avoid conflict, there is a limit how far that can be achieved.
Spend time arrangements
There is no necessity to include the words “until [X’s] 18th birthday” in the orders. Section 65H(2) of the Act provides that a parenting order in relation to a child stops being in force if the child turns 18. Thus, unless the orders are varied, the orders set out will remain in force until X turns 18.
School terms
The only issue in dispute is whether weekend time in a three-weekly cycle with each parent concludes at the commencement of school on Monday or at 5.00 pm on Sunday.
Counsel for Ms Martine acknowledges that the travelling time between Ms Martine’s home and B School is some two hours. However, she submits notwithstanding the travelling time, changeover at X’s school will minimise the risk of further conflict between the mothers.
It is ordinarily desirable to have as many collections and returns as possible at a child’s school. However, I consider that X continuing to travel around two hours to school on a Monday morning, albeit on only two or three Mondays each school term, is not in his best interests. I do not know what time B School starts the school day. Even if it is 9.00 am, X is required to be ready and leave Ms Martine’s home earlier than 7.00 am. It is a very early rise for him and is much earlier if school commences before 9.00 am. In my view that is too onerous on X to maintain until he completes his primary and secondary education.
Accordingly, weekend time during school terms will conclude at 5.00 pm on Sunday.
School holidays
Ms Martine seeks that X spend time with the parents each school holiday in two week blocks to enable interstate and international travel to occur within the travelling parent’s time. It is contended that such arrangement will avoid conflict if there is no agreement for travel outside each parents’ time as provided for in the orders.
I accept Ms Carmona’s contention that it would be difficult for her to get X to transition into Ms Martine’s care in the current circumstances if he knew he was to be in Ms Martine’s care for two weeks. Mr Hooper also hold concerns in relation to lengthy holiday periods X spends with Ms Martine in the short term. He suggests there be a progression of school holiday time periods to one week with each parent by the end of the year.
I am of the view that to share each school term holiday between three parents and engage in a rotation between three parents in a 12-day cycle during the long summer holidays as initially sought by Ms Carmona and Mr Hooper has too many transitions between parents and requires too much travel for X.
In government schools, invariably fourth term concludes no more than a week before Christmas Day and first term in the new school year generally commences around 26 January the following year.
I do consider that the days before Christmas which fall during the long summer holidays should not be included in the long summer holiday period in this matter. The orders set out include a sharing of the Christmas period from Christmas Eve until Boxing Day between the parents in a three-year rotating basis. Excluding the time before Christmas reduces the number of times X would be required to transition between households and travelling time during the Christmas week. Thus, for the purpose of long summer holidays, they are deemed to commence at 12.00 noon Boxing Day and conclude at the commencement of the first day of school in term one, being approximately 30 nights each year.
Doing the best I can with all of the above, not treating X as a “prize”, and taking into account what I consider would best suit and be to X’s liking, the orders for school holiday time sets out the following arrangements.
For the second and third term school holidays in 2024, X will spend time with Ms Martine from the conclusion of school for five nights, then Mr Hooper for five nights, and the balance with Ms Carmona. Commencing first term school holidays in 2025, X will spend time with two of his three parents for half of each of the school term holidays on a rotating basis subject to X being returned to Ms Carmona’s care at 12.00 noon the day before the new school term starts.
For the long summer holidays in 2024/2025 X shall spend time with each parent on a seven‑night rotation commencing with Ms Martine, then Mr Hooper, then Ms Carmona, then Ms Martine, and the balance with Ms Carmona. Commencing 2025/2026 and thereafter X shall spend time with each parent for 10 nights subject to X being returned to Ms Carmona’s care at 12.00 noon the day before the new school term starts.
Special Occasions
I do not accede to Ms Martine’s proposal that X’s time on special occasions is spent with the parent in whose care he is ordinarily with on the special occasion pursuant to the spend time arrangements set out. I am of the view that such a proposal will not be favourable to X. The orders set out ensure he is able to spend time with Mr Hooper on Father’s Day, with each mother in alternate years on Mother’s Day, and with each parent at Christmas every third year. Birthdays are not included for the reasons I articulated during the hearing.
To avoid X engaging in too much travelling and transitioning between households during one weekend, Mother’s Day and Father’s Day time is from Friday until Sunday, and Christmas is from Christmas Eve until Boxing Day.
Ancillary and consequential orders
Orders agreed between the parties or that are uncontroversial are included in the orders set out. I address only the orders that are in dispute.
Changeovers
Ms Martine seeks that all changeovers not on a school day take place at City D. City D is approximately equidistant between the homes of Ms Martine and Ms Carmona, around one hour from each home.
X is familiar with transitioning between Ms Martine and Mr Hooper at Suburb E. The orders set out enable that to continue.
Ms Carmona seeks that if changeovers do not occur on a school day, they occur at her home. As she is in receipt of government benefits, she relies on the cost of travelling to City D as the reason she resists changeovers at City D.
Ms Carmona and Mr Hooper are able to agree on changeover location, thus there is no need to specify a location. Changeovers at Ms Carmona’s home between Ms Martine and Ms Carmona have encountered difficulties. Notwithstanding the cost to Ms Carmona, I accede to Ms Martine’s proposal in relation to changeovers between her and Ms Carmona on non-school days. Ms Martine will be travelling between her home and B School at the commencement of time during school terms. Changeovers between them on other occasions do not occur that often. Changeovers between Ms Martine and Ms Carmona will also occur at City D if Friday during the school term is a pupil free day.
Contact details
Ms Carmona does not know Ms Martine’s address. Previous orders have included a restraint preventing Mr Hooper from disclosing Ms Martine’s address to her. No party sought that such a restraint be included in my orders. Mr Hooper is circumspect enough to continue not disclosing the address if that is Ms Martine’s wish without being bound by a court order refraining him from doing so. I am of the view that Ms Martine’s desire not to have Ms Carmona knowing her address places X in an invidious position. He is obliged to keep a secret from one of his mothers. I consider that is a pressure that a child can well do without. Nevertheless, the order set out does not require that Ms Martine keep Ms Carmona and Mr Hooper advised of her residential address, unless she elects to do so. However, it will be incumbent for her to do so if she relocates from her present geographical region.
Communication
Communication between X and Ms Martine has encountered difficulties. The dispute appears to be whether he communicates with Ms Martine on his iPad/Tablet or on his other electronic device. As discussed during closing submissions, as X gets older, he will probably not use such a device. He may then have a mobile phone or more adult electronic device. I am of the view that X should not be bound to using the device. Accordingly, the order set out provides for communication to be through his iPad/Tablet at first instance with the ability of the parents to agree to the use of some other electronic device. X is getting older. He will likely choose a device of his own liking. If Kid Messenger is unsuitable there are most likely other apps, such as WhatsApp, that could be used.
Extra-curricular activities
Ms Martine seeks that X be enrolled in extra-curricular activities in the area of City D for activities on the weekend whether X lives with her or Ms Carmona. Mr Hooper seeks that X be enrolled in extra-curricular activities within a 20 km radius of the school he attends.
As aforementioned, City D is approximately one hour away from each mother’s home. If I accede to Ms Martine’s proposal, X will be required to travel one hour prior to such activity and one hour after such activity when he is in either mother’s or Mr Hooper’s care on the day of the activity. If X plays in a team activity, he will have to undertake the same travel during the week if training occurs during that time. There is also the likelihood that his friends from school and other peer groups will be engaged in activities in the locale in which he primarily lives rather than in City D.
It will be a four hour round trip for X if extra-curricular activities occur in Town J, or in that locale if he is in Ms Martine’s care on the day X will be engaged in that activity. He will be spending one weekend in three with Ms Martine during school terms and during two out of three school term holidays per year.
On balancing these circumstances, I am of the view that Ms Martine’s proposal is not in X’s best interests. It will be at Ms Martine’s election whether she takes X to the activity. X may have a view about that.
I also consider that as X will be primarily living in regional Victoria, the distance nominated by Mr Hooper may be too limiting. I do not propose to nominate any other distance.
The order set out provides for X to be enrolled in extra-curricular activities as agreed in writing between the parents, and failing agreement the process in relation to parental responsibility shall apply.
Ms Martine seeks that only the parent in whose care X is in at the time can attend the extra‑curricular activity, sporting event, school event, or other functions to which parents are invited, save for final school concerts and grand finals in relation to sporting events. Her proposal is based on X being able to enjoy the activity without being exposed to the parental conflict.
I consider that such a proposal is not in X’s best interests. It is too restrictive from X’s perspective in relation to which parents he may want to attend such activities and events. It will be at the choice of the parents in whose care X is not, whether they attend. Those parents will be required to give 24 hours’ notice to both of the other parents if they elect to attend.
Passport
I note that the December 2021 consent orders provided for X’s name to be maintained on the Airport Watch List until 10 January 2026. An order is made for X’s name to be removed.
On the basis that the parents may incur legal costs if the passport is retained by a legal practitioner, and as Mr Hooper is able and willing to hold the passport, an order is made to that effect. I also consider that it is more practical and convenient to all parents that he does so.
Orders are made as set out.
I certify that the preceding four hundred and thirty-eight (438) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 27 June 2024
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