Morton & Beatty

[2022] FedCFamC2F 784

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Morton & Beatty [2022] FedCFamC2F 784

File number:	SYC 4785 of 2020
Judgment of:	JUDGE TURNBULL
Date of judgment:	17 June 2022
Catchwords:	FAMILY LAW – CHILDREN – parental responsibility – child to live with the mother in Tasmania – child to spend time with the father – where father lives in New South Wales – unilateral relocation – injunctions against both parents – video and telephone communication with child to be private – father to receive specialist therapy as condition of time with child – injunction against illicit drug use – ICL remains appointed for period of twelve months
Legislation:	Family Law Act 1975 (Cth) ss 4, 4AB, 60B(2), 60CA, 60CC(2), 60CC(3), 60CG, 60DA(2), 60DA(4), 61B, 61C, 64B(1), 64B(2), 65D(1), 65DAA, 65DAC, 65DAE(1), 68B(1), 68B(2)
Cases cited:	Attwood v Attwood [2022] FedCFamC1F 6 Bant v Clayton [2019] FamCAFC 198 Bennett v Bennett [2001] FamCA 462 Benson v Dury [2017] FamCA 578 Betros v Betros [2016] FamCA 225 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Boyce v Boyce [2015] FamCAFC 60 Briginshaw v Briginshaw (1938) 60 CLR 336 Carlson v Bowden [2008] FamCA 1064 Caulfield v Tennyson [2018] FamCA 770 CDJ v VAJ (No 1) (1998) 197 CLR 172 Duarte v Morse [2019] FamCAFC 93 Dundas v Blake [2013] FamCAFC 133 Flanagan v Handcock [2000] FamCA 150 Godfrey v Sanders [2007] FamCA 102 Goode v Goode [2006] FamCA 1346 Hedlund v Hedlund [2021] FedCFamC1A 84 Ibbott v Chaconas [2014] FamCA 73 Koyroyshs v Koyroyshs [2020] FamCA 626 M v M (1998) 166 CLR 69 Mazorski v Albright [2007] FamCA 520 McCall v Clark [2009] FamCAFC 92 MRR v GR (2010) 240 CLR 461 Murphy v Murphy [2007] FamCA 795 Robertson v Sento [2009] FamCAFC 49 U v U (2002) 211 CLR 238 Vallans v Vallans [2019] FamCAFC 260 Withers v Russell [2016] FamCA 793 Zanda v Zanda [2014] FamCAFC 173.
Division:	Division 2 Family Law
Number of paragraphs:	446
Date of hearing:	26-28 October, 25-26 November, 29 November, 17 December 2021
Place:	Heard in Launceston, City L, and Hobart, and delivered in Hobart
Solicitor-Advocate for the Applicant:	Mr Reeve
Solicitor for the Applicant:	Marsdens Law Group
Counsel for the Respondent:	Mr Briffa
Solicitor for the Respondent:	Legal Aid Commission of Tasmania
Counsel for the Independent Children’s Lawyer	Ms Higgins
Independent Children’s Lawyer	Bishops Barristers & Solicitors

ORDERS

SYC 4785 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MORTON

Applicant

AND:

MS BEATTY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	17 JUNE 2022

THE COURT ORDERS THAT:

1.All extant orders, save for:

(a)the order appointing the Independent Children’s Lawyer (‘ICL’), at order 10 of the orders of Judge Boyle dated 25 September 2020; and

(b)the injunctive order pursuant to s 68B of the Family Law Act 1975 (Cth), dated 17 December 2021, and as referred to in notation A below;

be discharged.

2.MR MORTON (‘the Father’) and MS BEATTY (‘the Mother’) (hereinafter referred to together as ‘the parents’) have equal shared parental responsibility for X born in 2016 (‘X’), and to this effect:

(a)within seven (7) days of the date of these orders the Mother shall do such acts and things to ensure X’s medical files notes the Father as a person to whom that entity or person can provide information regarding X’s health; and

(b)within seven (7) days of the date of these orders the Mother shall do such acts and things to ensure that any school X attends notes the Father as a person to whom that entity or person can provide information regarding X’s education.

X’s living arrangements

3.X shall live with the Mother.

X’s time with the Father

4.X shall spend time with the Father, noting the definition of each term holiday as given in notation B below:

In 2022

(a)on one occasion for each of the months of June and July in Tasmania from 10:00am Saturday until 4:00pm Sunday or such other time of the same duration as agreed by the parents in writing; and

(b)on one occasion for each of the months of August, September and October in Tasmania from 4:00pm Friday until 4:00pm Sunday or such other time of the same duration as agreed by the Mother and Father in writing; and

(c)on one occasion for each of the months of November and December in Tasmania from 4:00pm Friday until 4:00pm Monday or such other time of the same duration as agreed by the Mother and Father in writing with the December time not to occur over the weekend incorporating Christmas day 2022;

In 2023

(d)for a period of three (3) consecutive nights in New South Wales with the Father commencing at 10:00am 13 January 2023 and concluding at 4:00pm on the last day;

(e)during the term two Tasmanian public school holiday period for a period of four (4) consecutive nights in New South Wales commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;

(f)during the term three Tasmanian public school holiday period for a period of five (5) consecutive nights in New South Wales commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;

(g)during the term 4 Tasmanian public school holiday period (being the longer Christmas/summer school holiday period, coinciding with the end of the 2023 school year/summer 2024) for ten (10) consecutive nights in New South Wales to include Christmas Eve and Christmas Day with such period commencing at 10:00am on 23 December and concluding at 4:00pm on the last day;

In 2024

(h)during the term one and term three Tasmanian public school holiday periods in New South Wales for a period of seven (7) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day of such period;

(i)during the term two Tasmanian public school holiday period in New South Wales for a period of seven (7) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding either:

(i)at 4:00pm on the last day of such period, being the day after the seventh consecutive night; or

(ii)if the last day of such period pursuant to order 4(i) above falls on or before X’s birthday, at 4:00pm on the day following X’s birthday, with the intention that X should in those circumstances remain with the Father and not return to Tasmania unaccompanied, for the first time, on his eighth birthday; and

(j)during the term 4 Tasmanian public school holiday period (being the longer Christmas/summer school holiday period, coinciding with the end of the 2024 school year/summer 2025) for twelve (12) consecutive nights in New South Wales commencing at 10:00am 3 January 2025 and concluding at 4:00pm on the last day;

From 2025 onwards:

(k)during the term one of the Tasmanian public school holiday periods in New South Wales, and each year thereafter, for a period of eight (8) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;

(l)during the term two Tasmanian public school holiday periods in New South Wales:

(i)in 2025, and each alternate year thereafter, for a period of seven (7) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding either:

A.at 4:00pm on the last day of such period, being the day after the seventh consecutive night; or

B.if X’s birthday falls within, or on the last day of, the period ordered at 4(l)(i)(A) above, at 4:00pm on the day before X’s birthday, with the intention that X will spend this birthday with the Mother in alternate years commencing in 2025;

(ii)in 2026, and each alternate year thereafter, for a period of seven (7) consecutive nights commencing at 10:00am on the Friday at the end of the first week following the conclusion of the school term and concluding at 4:00pm on the last day, being the day after the seventh consecutive night, with the intention that X will spend his birthday with the Father in alternate years commencing in 2026;

(m)during the term three Tasmanian public school holiday periods in New South Wales, and each year thereafter, for a period of eight (8) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;

(n)during the term 4 Tasmanian public school holiday period (being the longer Christmas/summer school holiday period, coinciding with the end of the 2025 school year/summer 2026) as follows:

(i)for a period of fourteen (14) consecutive nights commencing 23 December 2025;

(ii)for a period of fourteen (14) consecutive nights commencing 3 January 2027;

(iii)for a period of twenty one (21) consecutive nights commencing 23 December 2027, and continuing each alternate year thereafter; and

(iv)for a period of twenty one (21) consecutive nights commencing 3 January 2029, and continuing each alternate thereafter;

School terms

(o)on one weekend during each Tasmanian school term, from 10:00am Friday until 4:00pm Sunday, with such weekend time to be available from the commencement of the school year in 2023, which may from that time take place in either New South Wales or Tasmania, noting that the Father’s weekend time in term 3 of each year may occur over the Father’s Day weekend as arranged in accordance with 4(q);

Mother’s Day and Father’s Day

(p)X shall be in the care of the Mother on the weekend of Mother’s Day and the Father is not to present a proposal to the Mother to spend time with X on such weekend; and

(q)X shall be in the care of the Father on the weekend of Father’s Day provided Father’s Day coincides with time he will spend with X pursuant to order 4(o) above, and the Mother should not oppose such proposal whenever presented.

Conditions and notice with respect to X’s time with the Father in Tasmania

5.For the purposes of the Father’s time pursuant to orders 4(a)-(c), 4(o), and 4(q):

(a)the Father is to give no less than twenty-eight (28) days’ written notice to the Mother of his proposal to travel to Tasmania and the exact time and dates he intends to spend time with X;

(b)the Mother shall respond to the proposal within seven (7) days of receipt of such written notice to confirm that time will occur as sought, or an alternative time if there is a reasonable excuse (which must be detailed) as to why the sought time cannot occur when proposed by the Father; and

(c)the Father will ensure that X will attend school, scheduled school-related activities and agreed extra-curricular activities during any period that he spends time with X in Tasmania.

Conditions and notice with respect to X’s time with the Father in New South Wales

6.For the purposes of the Father’s time pursuant to orders 4(d)-(o) and 4(q):

(a)the Father is to give no less than twenty-eight (28) days’ written notice to the Mother confirming that he will exercise time pursuant to the terms of the relevant order; and

(b)the Mother shall respond to the proposal within seven (7) days of receipt of such written notice and to acknowledge the same;

X’s travel between Tasmania and New South Wales

7.Upon X attaining eight (8) years of age, X be permitted to travel as an unaccompanied minor between Tasmania and New South Wales.

8.Commencing in 2023, the Mother is to book and fund the cost for X to travel between Tasmania and New South Wales, including the cost of any adult accompanying X, for the term two holiday period X will spend with the Father in New South Wales in each calendar year (pursuant to orders 4(e), 4(i), and 4(l) above) and will provide to the Father a copy of X’s travel itinerary at least forty-eight (48) hours prior to X leaving Tasmania.

9.The Father shall book and pay for the balance of the costs of X’s travel between Tasmania and New South Wales to spend time with him pursuant to order 4, including the cost of any adult accompanying X, and is to provide to the Mother a copy of X’s travel itinerary at least forty-eight (48) hours prior to X departing Tasmania.

Conditions of X’s time with the Father

10.It is a condition of the Father spending time with X pursuant to these orders that:

(a)within fourteen (14) days of the date of this order or, if within fourteen days is not possible, as soon as an appointment can be arranged, the Father shall consult with Ms C (‘Ms C’) as to who is an appropriate therapist (‘the appropriate therapist’) to provide him with therapy/counselling in relation to matters requiring therapy as referred to in the Reasons accompanying these orders, at paragraph 299, as the ‘matters requiring therapy’;

(b)within seven (7) days of the of the Father being advised of the name of the appropriate therapist the Father will do all things, take all actions, and sign all documents so as to engage with the appropriate therapist;

(c)within seven (7) days of the Father organising an appointment with the appropriate therapist, the Father shall advise the ICL and the Mother of the appropriate therapist’s details, including their full name, practice address, telephone and email address;

(d)the appropriate therapist is to engage with the Father in accordance with the issues described at paragraph 299 of the Reasons which accompany these orders;

(e)the Father shall, at his own cost, continue to engage with the appropriate therapist and follow the appropriate therapist’s advice and recommendations for such time as deemed necessary by the appropriate therapist; and

(f)the Father will, within seven (7) days of receiving a referral to the appropriate therapist, provide the ICL with full written authority to obtain all and any information from Ms C and/or the appropriate therapist about the Father’s therapy/counselling as the ICL deems fit.

Video calls

11.Noting the definition set out at notation C, X shall communicate with parent B via video call:

(a)on two (2) occasions each week, being a Sunday and Wednesday, at 5:00pm, for no more than 20 minutes each time;

(b)on Christmas Day at 10:00am for no more than 20 minutes noting that, if Christmas Day falls on a Sunday or a Wednesday, the terms of 11(b) shall replace the time ordered for that day by virtue of 11(a); and

(c)on his birthday each year at 5:00pm for no more than 20 minutes.

12.To effect the communication at order 11 above, and noting the definition at notation C, parent A:

(a)is hereby restrained from recording video calls between X and parent B; and

(b)is to provide parent B and X privacy while the video call takes place.

Information sharing

13.Each party, including the ICL for the duration of their appointment, shall keep all other parties to these proceedings advised at all times of the following information:

(a)their residential addresses or, in the ICL’s case, the address of the ICL’s office;

(b)their email addresses; and

(c)their telephone contact numbers.

14.Further to order 13(c) above, and to effect order 23 below, each parent shall also inform the other of their emergency contact telephone number in the event that their emergency telephone contact number differs from their usual telephone contact number.

15.Both parents will be entitled to attend all events involving X including but not limited to:

(a)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports day, parent/teacher interviews (on the basis the parents do not need to attend together) and other social functions and the parent who has X in their care on the day of such an activity, will be responsible for their day to day care at such event and X’s transportation to and from that event unless otherwise agreed to between the parents;

(b)extracurricular activities that allow for parental attendance; and

(c)sporting fixtures.

16.Both parents must keep each other informed of:

(a)any significant medical problems or illness suffered by X while they are in their respective care including visits to hospitals or specialist doctors; and

(b)any medication that has been prescribed for X.

17.The parents are to do all acts and things necessary and give all irrevocable authorities to ensure that both parents’ details are provided to any school X may attend from time to time and, further in this regard, to ensure that copies of all reports, merit cards, school photograph order forms, written material or newsletters and any other documentation are sent to both parents.

Non denigration, restraint against discussing litigation, and restraint against using X as a messenger

18.The parents be restrained by injunction from denigrating the other parent or members of the other parent’s family to X or in the presence of X or at all.

19.The parents be restrained by injunction from discussing these proceedings with or in the presence of X or showing X any document connected with these proceedings.

20.The parents be restrained by injunction from using X as a messenger between themselves in any way whatsoever.

Changeover

21.For the purpose of changeover the following shall apply:

(a)if the Father’s time is to occur in Tasmania, handovers shall take place at the City D Children’s Contact Centre (‘City D Children’s Contact Centre’), but if this service is not available, such changeover shall occur at the McDonald’s Restaurant in Suburb E;

(b)until X attains the age of eight (8) years, and if X is travelling to New South Wales, changeovers shall take place at the City D Airport save and except if the Mother is accompanying X to New South Wales, in which case changeover will take place at the McDonald’s Restaurant closest to the residence of the Father; and

(c)further to order 21(b) above, if X is travelling as an unaccompanied minor, the parents shall comply with the conditions of X’s ticket and deliver X to the airport according to those conditions.

Drug use

22.Each parent is restrained by injunction from using any illicit drug at least forty-eight (48) hours prior to and while X is in their care.

Communication between the parents

23.The parents shall communicate with each other via the ‘TalkingParents’ app, or another digital product intended for co-parenting purposes as may later be agreed between the parents, save and except for cases or circumstances of emergency, in which the parents shall contact one another by telephone.

24.The parents shall, at all times, communicate respectfully.

25.The parents shall not discuss between themselves, or mention to X, any matters in relation to parenting or which are otherwise inappropriate for X to observe or hear, either at the point of changeover or at any other time at which they are in the presence or hearing of X.

Release of information

26.The parents and the ICL have leave to release to Ms C, the Father’s appropriate therapist, Ms F, and any other counsellor, psychologist, or therapist which may treat the Father or the Mother from time to time:

(a)a copy of these orders, dated 17 June 2022;

(b)a copy of the injunction dated 17 December 2021 which, as noted at A below, remains in force and effect as a final order;

(c)a copy of the Reasons for decision, delivered on 17 June 2022, accompanying these orders; and

(d)a copy of the family report dated 28 May 2021.

Appointment of the Independent Children’s Lawyer

27.The appointment of the ICL be extended until 5:00pm on 1 July 2023.

THE COURT NOTES THAT:

A.The injunction pursuant to s 68B of the Family Law Act 1975, dated 17 December 2021, was proposed and finalised by consent of all parties as a final order in these proceedings. The parties agree that this injunction forms part of the final orders but, due to its sensitive nature, the injunction will remain contained within a separate document.

B.Wherever these orders refer to X’s school holidays, the following definitions apply: ‘term 1 holidays’ refers to the holidays between the conclusion of term 1 and the commencement of term 2; ‘term 2 holidays’ refers to the holidays between the conclusion of term 2 and the commencement of term 3; ‘term 3 holidays’ refers to the holidays between the conclusion of term 3 and the commencement of term 4; and ‘term 4 holidays’ refer to the holidays between the conclusion of term 4 and the commencement of term 1 in the following calendar year.

C.For the purposes of orders 11 and 12 above, ‘parent A’ refers to the parent who has X in their care at the relevant time, and ‘parent B’ refers to the parent who does not have X in their care at the relevant time.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Morton & Beatty has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TURNBULL

Overview

1. Mr Morton (‘the Father’) and Ms Beatty (‘the Mother’) have one child — X born in 2016 (‘X’). X is currently five years of age and attends G School. He is energetic, outgoing, and friendly, and enjoys riding his bike and swimming.

2. These proceedings, filed the Father on 17 July 2020, began as a recovery application. The Mother — having unilaterally relocated from New South Wales to Tasmania, with X, on 14 July 2020 — defends the application.

3. I note at the outset of these Reasons that, while the Father initially sought X’s recovery and return to New South Wales, he abandoned the relocation aspect of this litigation at the outset of the final hearing. The central remaining issues for determination, therefore, are:

   (1)whether the Father and the Mother should, by order of this Court, have equal shared parental responsibility for X; and

   (2)the nature and progress of X’s time with the Father.

4. With respect to issue 2 above I also note that all parties agree, to one extent or another, that X should ultimately spend time with the Father in New South Wales and Tasmania during gazetted school holidays. The specifics of the Father’s time remain contentious as a central issue for determination.

5. These Reasons, commencing at paragraph 110, set out in detail the nature of all issues for determination and the parties’ proposals for each issue.

   Procedural history and current time arrangements

6. Judge Boyle, on 25 September 2020, refused to order X’s recovery. Her Honour instead ordered, inter alia, that X live with the Mother in Tasmania, the Mother have sole parental responsibility for X, and for X to communicate with the Father (by video call) three times per week. Her Honour also transferred the proceedings to the Launceston Registry of the Federal Circuit Court of Australia, and ordered the appointment of an Independent Children’s Lawyer (‘ICL’) and a family report at this time.

7. In October 2020 the Father began seeking face-to-face time with X and, by November 2020, the parties substantially agreed upon supervised time at the City D Children’s Contact Centre (‘City D Contact Centre’). The Father maintains that the Mother made it difficult to organise and implement his time with X.[1] This, in addition to COVID-19 restrictions, delayed the start of the Father’s in-person time with X.

   [1] Affidavit, Mr Morton, 9 June 2021 (Affidavit (June), Father), [174]-[208].

8. X’s first visit at the City D Contact Centre with the Father occurred on 27 February 2021 and four further supervised visits took place in March and April 2021. A further interim order of 31 August 2021 provided the Father with in-person time with X and twice-weekly video calls.[2] Unfortunately, due to COVID-19 restrictions, the Father’s face-to-face time with X did not recommence until December 2021, though he did maintain his twice-weekly video time with X.

   [2] The Father’s time as ordered was as follows: July and September 2021, four hours on Saturday and Sunday with the first hour of such visit to be supervised at the City D Contact Centre; November 2021, six hours on Saturday and Sunday; December 2021, six hours on a Saturday and eight hours on a Sunday; video calls each Wednesday and Sunday for 20 minutes.

9. The final hearing commenced on 26 October 2021 and was conducted entirely through Microsoft Teams. Mr Reeve appeared as solicitor-advocate for the Father, Mr Briffa appeared as counsel for the Mother, and Ms Higgins appeared as counsel for the ICL.

10. On 28 October 2021, the third day of the trial, the parties entered further interim orders, by consent, for the Father’s time with X until April 2022. Those orders, inter alia, provide that the Father spend time with X:

    ·in December 2021, for four hours on a Saturday and four hours on a Sunday, with the first hour supervised;

    ·in January 2022, for four hours on a Saturday and four hours on a Sunday with the first hour supervised;

    ·in February 2022, for six hours on a Saturday and six hours on a Sunday;

    ·in March 2022, for six hours on a Saturday and eight hours on a Sunday;

    ·in April 2022 and beyond, for eight hours on a Saturday and eight hours on a Sunday; and

    ·by video each Wednesday and Sunday and Christmas Day for 20 minutes.

11. Those consent orders also permit the Father’s current partner, Ms H (‘Ms H’), and her son J to accompany the Father on his visits to Tasmania and be present during any ordered time with X. Ms H and J are now involved with the Father’s visits.

12. Pursuant to the terms of order above (for ‘April 2022 and beyond’) the Father has presumably maintained unsupervised, daytime-only time with X for eight hours on a Saturday and eight hours on a Sunday in Tasmania.

13. The Family Consultant, Ms K, conducted interviews and observations with the Father, Mother, X, and the Father’s current partner in early April 2021. X was four years and nine months old at that time.

14. The trial continued beyond the three days initially allocated, with evidence and submissions intermittently continuing part-heard in City L, Launceston, and Hobart. Final submissions concluded in Hobart on 17 December 2021.

    Facts

15. This case involves a factual matrix of significant volume. I will, for the sake of convenience, set out the facts of this case under the sub-headings below.

    Timeline of the relationship and parenting arrangements

16. The Father, 38, is currently employed as a construction worker after having been unemployed for approximately one year. He was also employed by the armed services between 2010 and late 2012 but was medically discharged after suffering a leg injury in 2011.[3] As a result of that injury he was, in mid-late 2012, diagnosed with an adjustment disorder with prominent depressive features. He now receives a military pension.

    [3] Affidavit (June), Father (n 1), [76]-[81].

17. The Mother, 35, is not currently employed and receives Centrelink payments. She holds qualifications to work in the carer sector and has worked in this sector in the past.

18. The parents commenced their relationship in late 2014 and separated on a final basis in either late 2019 or early 2020. Their relationship was tumultuous throughout in that, between initial cohabitation and final separation, they separated and reconciled their relationship many times.[4] X remained in the Mother’s care between October 2017 and February 2019. The Father claims that, during this period, the Mother at times made it difficult for him to have a relationship with X. The Father says that, as a result, he sought legal assistance and proposed medication to formalise X’s parenting arrangements.[5] During the 2017-2019 separation X spent short periods of time with the Father, usually at the Mother’s home, with no overnight time.

    [4] Cohabitation commenced in either 2014. Separation in February 2015. Reconciled in late 2015, though they did not live together at this time. Resumed relationship and cohabitation in 2016. Separation in October 2017. Reconciliation for a final time in February 2019. Final separation occurred in August 2019 (according to the Father) or early 2020 (according to the Mother).

    [5] Affidavit (June), Father (n 1), [10]-[23].

19. With respect to their relationship history the Mother said that, even when she and the Father did not live together, they maintained a sexual relationship. She said that the Father would regularly attend her home, particularly after X’s birth.[6] The parties disagree as to the extent and nature of the Father’s involvement in X’s life between October 2017 and February 2019. They also disagree as to the extent and nature of the Father’s involvement in X’s life between their reconciliation in February 2019 (at which time the Father moved back into the Mother’s home) and final separation.

    [6] Affidavit, Ms Beatty, 19 October 2021 (Affidavit, Mother), [10].

20. The Father claims that upon final separation (which, in his view, was in August 2019) it was difficult to negotiate time with X and that any time was limited and sporadic. He claims that, upon final separation and during the 2017-2019 period of separation, the Mother denied time with X as a vindictive response to the end of their relationship.

21. Further, with respect to final separation, the Mother claims that she and the Father maintained a sexual relationship from January 2020 until July 2020.[7] In making that claim the Mother also claims that their sexual relationship overlapped with the Father’s current relationship with Ms H. The Father and Ms H met in 2020, commenced cohabitation in 2020, and welcomed J, their first child in 2021. The Father denies having any sexual relationship with the Mother beyond late 2019.

    [7] Ibid [11]-[12].

22. The Father agreed that, in 2019, he rekindled his relationship with his former partner Ms M (‘Ms M’) for a few months. Ms M agrees the same. The Father and Ms M were together for ten consecutive years and separated in 2014. Together they experienced the tragic loss of their stillborn son, N, during their relationship. This history kept them connected — particularly around the anniversary of N’s death.

23. In July 2020 the Mother left New South Wales, with X, and relocated to Northern Tasmania. She did so on the basis that, as she says, the Father was abusive and that she was concerned for her own and X’s safety. The Mother is originally from Tasmania and her extended family remains resident in the north of the state.

24. Following the Mother’s relocation to Tasmania, and pursuant to the interim orders of 4 August 2020, the Father initially communicated with X through telephone or video calls. The Father claims that the Mother unnecessarily intervened in, or otherwise affected, many of his calls with X.[8] The Father’s face-to-face time with X, as set out above, was initially delayed until February 2021 and, after four visits in March and April, did not recommence until December 2021.

    [8] Affidavit (June), Father (n 1), [115]-[159].

    Physical violence

25. There are several allegations of family violence in this case. The Mother alleges that the Father was physically violent and, further, that he perpetrated coercive and controlling behaviour towards her:

    Mr Morton has subjected me to physical, verbal, emotional, financial and sexual abuse. As a result of Mr Morton's ongoing conduct, I felt belittled, manipulated, and pressured sexually throughout our relationship. I was very emotionally fragile, and my confidence and self-esteem became very low during my time with Mr Morton.[9]

    [9] Affidavit, Mother (n 6), [19].

26. Her allegations of physical violence specifically include an incident in which the Father trod on her foot while she was holding X. This, in the Mother’s account, resulted in a bruise, and caused her to call the police, it being the ‘first time [she] felt fearful that [the Father] might actually hurt [her]’.[10] Thereafter the Mother details a string of incidents in early 2020 in which the Father allegedly pushed her over, threw her phone and one of her shoes away from her, ripped her top off, twisted her wrist, pushed her down using his whole body weight, and broke her front door key and handle.[11] The Mother says that when the Father twisted her wrist and pushed her down with his whole weight she felt her wrist might break and felt like she could not breathe. She also specifies that X witnessed at least three instances of physical violence and has, months later, recalled and asked her questions about these events.

    [10] Ibid [32].

    [11] Ibid [34]-[36].

27. Both parties have admitted physical assaults upon the other. Both parents recall an incident on 14 February 2020 in which they argued about the Father seeing other women in City O. The Father maintains that he was separated from the Mother at this time and, conversely, the Mother maintains they were still in a relationship with each other. The Mother admits to punching the Father in the eye and the Father admits to grabbing and twisting the Mother’s wrist. The Father says that he did not hold the Mother down, and that he never put weight on her, but that him twisting her wrist made her bend over, indicating that he hurt her in doing so.[12] This incident is, regardless of whether final separated had occurred, particularly unseemly, although the parents appear to have moved past such destructive methods of interacting with one another.

    [12] Ibid [35]; Affidavit (June), Father (n 1), [58].

28. The Mother also sets out a number of examples of alleged verbal threats including ‘I will bury you’, ‘your life will be fucked up for the rest of your life, I will make sure of it’, and other threatening language as reported to the police shortly after her arrival in Tasmania.[13]

    [13] Affidavit, Mother (n 6), annex C.

29. The Mother relied upon much of Ms M’s evidence to support her claims of the Father’s violence during their relationship. Key among this evidence was that of Ms M obtaining an Apprehended Violence Order (‘AVO’) against the Father for her personal protection on 11 November 2014. This arose from circumstances surrounding Ms M’s separation from the Father, including threats purportedly made to Ms M and an alleged assault upon Ms M’s father. The police ultimately dropped the charges against the Father and furthermore, he recollects, the court dismissed the AVO.[14] The Mother also sought an AVO against the Father but, while an interim AVO was in place in October 2021, the hearing for the AVO did not go ahead because New South Wales police withdrew the application.

    [14] Affidavit (June), Father (n 1), [97]-[102].

30. The Mother also relied upon the evidence of her best friend, Ms P (‘Ms P’), to whom she allegedly disclosed a number of issues between herself and the Father. These disclosures included physical abuse and sexual coercion.[15]

    [15] Affidavit, Ms P, 3 June 2021 (Affidavit, Ms P), [8]-[16].

31. The Father denies perpetrating violence, in any way, towards the Mother or Ms M,[16] and indeed makes his own allegations of family violence against the Mother. These allegations include the Mother pushing him, critiquing him as a parent, throwing rocks at his car in May 2020, punching him in the back of the head, and forcibly trying to pull X from his arms.[17] The Mother does not address the rock-throwing incident in her affidavit, nor does Ms P describe the contemporaneous account purportedly relayed to her by the Mother of the event. The Mother appeared to concede at trial that she had thrown rocks at the Father’s car, saying that she told Ms P of the same, and that she had told Ms K of the incident. While the rock-throwing incident may have occurred the evidence was insufficient to establish that the Father was, as a result of the Mother’s actions, fearful, coerced, or controlled, only saying that his car incurred some minor damage.[18]

    [16] Affidavit (June), Father (n 1), [45], [52], [105], [113], [115].

    [17] Ibid [57]-[63].

    [18] Ibid [61].

    Coercive control and ‘Q’

32. The Mother and Ms M both allege that the Father coerced them into degrading sexual acts.[19] A considerable amount of time at trial was devoted to exploring the fetish termed ‘Q’ in which the Mother and the Father engaged on multiple occasions from 2017 onwards. The Mother describes the practice as follows:

    … Mr Morton would typically go onto a site called R Site which was a site to locate men who wanted to have sex with a female in front of another man. Mr Morton would invite a man who would come around to my house after X was asleep. The man who was a stranger would then have sexual encounters with me, while Mr Morton watched and/or sometimes became involved. Mr Morton would video these encounters. I believe Mr Morton would still have these videos as Mr Morton had shown me old videos and photos. … Mr Morton would also tell me that I should work as a prostitute.[20]

    [19] Affidavit, Ms M, 8 September 2020 (Affidavit, Ms M), [6].

    [20] Affidavit, Mother (n 6), [26].

33. The Mother says that she began engaging in ‘Q’ with the Father in 2017 after he introduced it to the relationship. She says that the Father continued to pressure her into the practice until around January 2020.[21] The parents agree that they participated in this practice with men — strangers — while X was present in their home.[22] The Father said under cross-examination that there were 10-12 instances of ‘Q’ and, further, conceded that he did not check whether the participants engaged in the activity were dangerous, nor did he have a plan for if a participant became aggressive. Notwithstanding these concessions the Father maintained that on no occasion of ‘Q’ did any dangerous situations arise.

    [21] Ibid [31].

    [22] Ibid. The Father agreed during cross-examination that the practice involved strangers, not friends, from the internet.

34. The Mother claims that the Father coerced her into participating in ‘Q’ and that she had no choice but to satisfy his sexual fetish.[23] She claims that there was an incident in 2018 in which she had not performed ‘Q’ to the Father’s standards and, as a result, he threw alcohol on her and ripped her shirt.[24] She also alleges that the Father pressured her into ‘Q’ through text messages, as annexed to her affidavit, which she also says supports that the Father initiated the practice.[25] She annexed to her affidavit a copy of a New South Wales Police Force witness statement dated 24 August 2020, given at City D Police Station, which consistently sets out her account of sexual coercion.[26]

    [23] Ibid [27].

    [24] Ibid [31].

    [25] Ibid annex B.

    [26] Including that she did not know about the Father’s fetishes until after X was born, that she felt ‘trapped’ because she did not want her family to fall apart, and that the Father knew she felt this way and manipulated her into doing what he wanted on this basis.

1. The Father, on the other hand, claims that the Mother was equally involved in ‘Q’ and even arranged some instances of the same. He denies that he ever coerced or controlled the Mother.[27] In this respect he pointed to a number of documents in his tender bundle including a message from the Mother asking him to ‘surprise her tonight with a male friend’, a R Site confirmation message for an email address belonging to the Mother, and a Facebook post by the Mother saying that the previous night was ‘fantastic’ and

   … Let’s do it again. Come one come all if you dare ;)

   [27] Affidavit (June), Father (n 1), [51].

2. There is contention between the Mother and the Father as to the degree to which the Father coerced her into performing ‘Q’ and other sexual acts in which she otherwise would not have engaged. The main allegations and pieces of evidence above are intended to signpost the parents’ divergent perspectives on their sexual relationship. I will explore the issue further and make specific findings later in these Reasons.

3. In addition to being pressured into ‘Q’ the Mother alleges that the Father pressured her into other sexual acts which she felt were shocking, disgusting, and degrading.[28]

   [28] Affidavit, Mother (n 6), [25].

4. The Mother also alleges that the Father exerted family violence over her in the form of financial control. She did not include any evidence of the same in her affidavit and could not, under cross-examination, explain with specificity at what times the Father financially cut her off (or threatened to do so) or any reasons for him doing so beyond her testimony.[29] The Father was not put on notice before the trial that the Mother would raise this serious accusation. The issue is, in any event, peripheral to the main issues of family violence and has not been established on the evidence. I therefore will not — and indeed cannot — make a finding of financial control in the manner alleged by the Mother.

   [29] Ibid [19], at which the Mother mentions alleged financial abuse but does not set out instances of the purported financial abuse.

   Mental health issues

5. The Mother claims, in addition to the alleged family violence, that the Father misused prescribed and illicit drugs during their relationship. The Father admits to using some illicit substances but maintains that, since April 2020, he has not used illicit substances.[30] He started seeing Ms C (‘Ms C’) in November 2020, with whom he had had seven consultations at the time of the trial, and he continues to attend with Ms C to manage his mental health.[31]

   [30] Affidavit (June), Father (n 1), [88].

   [31] Affidavit, Mr Morton, 19 October 2021 (Affidavit (October), Father), [43].

6. The Father confirmed that he has struggled with his mental health, including his adjustment disorder, drug use, anxiety, and depression, for much of his adult life. Between January 2018 and August 2020 — before his regular attendances with Ms C — the Father was treated by Dr S.[32] He attended with Dr S on 12 occasions but, ultimately, ceased treatment with Dr S due to difficulties obtaining appointments with him.[33] The accounts of Dr S and Ms C appear to evidence the Father’s long journey and significant efforts towards improving his mental health and coping strategies.[34]

   [32] Affidavit, Dr S, 24 September 2020, annex C.

   [33] Affidavit (June), Father (n 1), [85]-[86].

   [34] Affidavit, Dr S, 8 June 2021 (Affidavit, Ms C), annex B, 10.

7. In addition to refuting the Mother’s arguments in relation to his mental health and the associated risks the Father also raised some concerns about the Mother’s mental health. His assertions, as will be detailed later in these Reasons, concerned the Mother’s projection of her own woes onto X and X’s exposure to her dysregulated emotions.

   THE LAW

   Parenting orders

8. Parenting orders must be crafted and considered with regard to X’s best interests as a paramount consideration.[35] This is the ‘paramountcy principle’.

   [35] Family Law Act 1975 (Cth) s 60CA. See s 64B for the definition of ‘parenting order’.

9. I am not bound by the terms proposed by the parties and may — subject to ss 61DA and 61DAB of the Act — create parenting orders as I think are proper for X in the circumstances.[36]

   [36] Ibid s 65D(1).

10. What, however, guides the assessment of X’s best interests? Then, having ascertained his best interests, how does the Act ensure that parenting orders reflect them as a paramount consideration?

11. The objects of pt VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations in this respect:

    60B     Objects of Part and principles underlying it

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

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

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

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

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

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

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

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

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

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

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

    …

    (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

12. Part VII of the Act, to give effect to these aspirations, carves a legislative pathway. The pathway has a number of substantive stepping-stones which may be legitimately and properly followed in various forms.[37]

    [37] Withers v Russell [2016] FamCA 793, [315]-[318], at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’.

13. While there is no ‘preferred’ pathway, the description in MRR v GR (2010) 240 CLR 461 (‘MRR v GR’) remains authoritative and informative.[38] I must, in any event, follow the steps outlined in pt VII of the Act and shall do so consistently with their Honour’s description in MRR v GR. The steps set out therein are summarised in the table below which, in addition to describing the pathway, provides pinpoints within these Reasons for each analytical or determinative point.

    [38] MRR v GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).

Assessment / determination pursuant to legislative pathway in pt VII of the Family Law Act	Family Law Act provision	Paragraph number/s
Assessment of X’s best interests	60CC(2), (2A), (3)	214-397
Conclusion with respect to X’s best interests	398-399
Applicability of presumption of equal shared parental responsibility	61DA(1), (2)	417
Determination as to whether an order for equal shared parental responsibility is in X’s best interests	430
Applicability of requirement to have regard to parenting plans	65DAB	431
Assessment of whether equal time arrangement is in X’s best interests and reasonably practicable	65DAA(1)(a), (b); 65DAA(5)	434
Determination as to equal time order	65DAA(1)(c)	434
Assessment of whether substantial and significant time arrangement is in X’s best interests and reasonably practicable	65DAA(2)(a), (b); 65DAA(5)	439
Determination as to substantial and significant time order	65DAA(2)(c)	439
Conclusion	443-445

Unacceptable risk and family violence

1. It is my task to ensure that the ultimate parenting orders do not place X at an unacceptable risk of harm due to family violence, abuse, or neglect, or exposure to the same. I may include orders as I consider necessary to achieve this end. The parties sought a variety of safeguards in this respect including, as discussed below, a number of injunctive orders.

2. It is beneficial at this point to set out the meaning of family violence, abuse, and neglect within the Act for three purposes. Firstly, in the context of unacceptable risk, it is necessary to identify whether a risk is one of family violence as defined, or whether the risk concerns abuse, neglect, or other conduct which may jeopardise a child’s welfare. Secondly, under s 60CC(2)(b), I am required to consider the need to protect X from harm (physical or psychological) resulting from family violence, abuse, or neglect. Finally, and perhaps most obviously, making findings of family violence on the evidence requires each finding to be grounded in the Act’s definition thereof.

3. The Act, at s 4AB, defines family violence:

   (1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

   (2)Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)an assault; or

   (b)a sexual assault or other sexually abusive behaviour; or

   (c)stalking; or

   (d)repeated derogatory taunts; or

   (e)intentionally damaging or destroying property; or

   (f)intentionally causing death or injury to an animal; or

   (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

   (3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

4. Abuse, in relation to a child, means:

   (a)an assault, including a sexual assault, of the child; or

   (b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)serious neglect of the child.

5. The Act does not define ‘neglect’ for the purpose of s 60CC(2)(b) nor does it define ‘serious neglect’ for the purposes of sub-s (d) of the definition of ‘abuse’.

6. The question of unacceptable risk is aimed at ensuring that the terms of an order are consistent with a child’s best interests in that, to the extent possible and foreseeable, the orders do not place them at risk of family violence, abuse, neglect, or exposure thereto.

7. The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under pt VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[39] The Full Court in Bant v Clayton [2019] FamCAFC 198 remarked upon M v M (1998) 166 CLR 69 and other authorities with respect to unacceptable risk:

   38.In M v M … the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   39.It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   40.The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (CDJ v VAJ) at 218:

   151.…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

   41.As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713–82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

   [39] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

8. In essence it is a question of whether X on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities, will in the future be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct, and whether that risk is ‘unacceptable’.[40]

   [40] Ibid 77-78, at which their Honours state that, ultimately, the court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare’, and that [t]he existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access’. I note at this point the use of the phrase ‘unacceptable risk’ at s 60CG of the Act which requires me to consider the risk of family violence (omitting mention of abuse or neglect) towards any person other than the subject child or children by, to the extent allowable by virtue of the paramountcy principle, making orders consistent with existing family violence orders and which otherwise reduce risk of those persons being exposed to family violence. Section 60CG, while it utilises the language of ‘unacceptable risk’, does not import the same assessment as discussed by their Honours in M v M, nor does that section limit the scope of the ‘unacceptable risk’ assessment with respect to the child or children subject to the litigation.

9. An unacceptable risk may be characterised and found from a culmination of factors in the evidence. The parenting orders ultimately made, in those circumstances and if appropriate, can include measures to mitigate the type of risk as characterised.

10. The assessment is explained well in Murphy v Murphy [2007] FamCA 795:

    318.A positive finding of sexual abuse can, but does not always, decisively constitute an unacceptable risk of potential future harm if unsupervised time is ordered in respect of a child. There is however nothing illogical in a negative future risk finding despite a positive finding of misconduct in the past. Previous behaviour is not always the best or even a reliable predictor of future conduct. People and circumstances change. The converse, however, is not necessarily true and the failure to establish an allegation of past abuse does not determine the wider and ultimate issue of what parenting order, if any, is in the best interests of the children.

    319.Thus, the unacceptable risk inquiry involves a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk.[41]

    [41] Murphy & Murphy [2007] FamCA 795, [318]-[319].

11. As the law currently stands it is my task to promote and protect X’s best interests and, in doing so, identify any risks to which he may be subject and decide whether, in the context of the evidence, any of those risks identified may be ‘unacceptable’.

    Injunctions under the Family Law Act

12. Each party seeks one or more injunctions to which the other parties either agree, disagree, or have put no counter-proposal. It is, in my view, beneficial to briefly explain the relevant law with respect to injunctive orders before setting out the issues.

13. The injunctions sought in this case are largely sought under s 68B, extracted below:

    (1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

    (a)       an injunction for the personal protection of the child; or

    (b)       an injunction for the personal protection of:

    (i)a parent of the child; or

    (ii)a person with whom the child is to live under a parenting order; or

    (iii)a person with whom the child is to spend time under a parenting order; or

    (iv)a person with whom the child is to communicate under a parenting order; or

    (v)a person who has parental responsibility for the child; or

    (c)       an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of the child; or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

    (d)       an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of a person referred to in paragraph (b); or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

    (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

    (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

1. An injunction is not, by definition, a ‘parenting order’.[42] Indeed, the Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[43] Section 68B is not, therefore, technically subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been interrogated in many authorities and, as summarised in Attwood v Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:

   31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.

   32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.

   33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient.[44]

   [42] Family Law Act 1975 (n 35) s 64B(1), noting that ss (1)(a) defines ‘parenting order’ by reference to the non-exhaustive list in s 64B(2), which itself does not expressly include injunctive or coercive orders, but which may implicitly include injunctions under ss (2)(e), (g) or (i) depending on the nature of the order. Notwithstanding that an injunctive order may fall within those sub-sections, in particular s 64B(2)(i), the Full Court remarked in Hedlund v Hedlund [2021] FedCFamC1A 84, at [118], that pursuant to long-standing authority ‘it should be accepted that an injunction made under s 68B of the Act is not a “parenting order” as defined in s 64B’.

   [43] Ibid ss 65D(1), 67ZC.

   [44] Attwood v Attwood [2022] FedCFamC2F 6, [31]-[33]. Emphasis added.

2. The heads of power under ss 68B(1) and (2), in a sense, occupy a sort of twilight zone with respect to the paramountcy principle. Each power is subject to its own test to justify its exercise. The omissions in s 68B itself, in the context of the Act as a whole, grant it a technical independence from the paramountcy principle. Despite this, and as revealed by the authorities and his Honour Altobelli J’s remarks extracted above, s 68B nevertheless exists within a landscape which is overwhelmingly concerned with the child’s best interests. Both heads of power therein must, to some degree, take instruction from the paramountcy principle.[45]

   [45] CDJ v VAJ (No 1) (1998) 197 CLR 172, [83]-[87] (McHugh, Gummow and Callinan JJ), at which their Honours discuss the paramountcy principle and its operation with respect to injunctions under the Act. Their Honours conclude at [87] that, while the words of a provision may not directly invoke the contents of s 60CA as part of the test for using a discretionary power, the children’s best interests is nevertheless a factor to which a court should turn its mind. This is, as expressed by their Honours at [86], the ‘constant shadow of the paramountcy principle’. See also the remarks of his Honour Kirby J at [192] with respect to the use of judicial discretion in a manner ‘consistent with the longstanding parens patriae jurisdiction of the courts’. Further discussion of the test for s 68B injunctions in Flanagan v Handcock [2000] FamCA 150, [9]-[18]; Bennett v Bennett [2001] FamCA 462, [30]-[31].

3. It is at this point relevant to discern the appropriate power, and the scope thereof, within s 68B for the parties’ proposed injunctions. The Full Court in Zanda v Zanda [2014] FamCAFC 173 remarked briefly and instructively that

   it is … seminal to the proper exercise of judicial discretion to understand not only the source of the power to make an order but the ambit of it.[46]

   [46] Zanda v Zanda [2014] FamCAFC 13, [136].

4. Section 68B(1) provides that, if proceedings are instituted for an injunction in relation to a child, such injunction may be made as the court considers appropriate for the welfare of the child.[47] In all other cases the court may, under s 68B(2), make an injunction in relation to a child where it is just or convenient to do so.

   [47] Family Law Act 1975 (n 35) s 4 (definition of ‘proceedings’), noting that the language of s 68B(1), together with s 65D(1) and the remarks of Gummow and Callinan JJ in U v U (2002) 211 CLR 238, 260 (with which Gleeson CJ, McHugh and Mayne JJ agreed), indicates that a court is not restricted to the terms proposed by the parties in so making an injunction. See also Duarte v Morse [2019] FamCAFC 93, [344], [391].

5. Any coercive order must adhere to the scope of the power relied upon. This is to say that any injunction must be proportionately directed, using the example of s 68B(1), to the child’s welfare. The extent to which an injunction is required to do so is, in each instance, informed by the evidence of how such an order would promote (or prevent negative impacts upon) that objective. To make an injunction without sufficient evidence is, of course, to stray beyond the boundaries of s 68B of the Act and make a plainly ultra vires order. There must be an evidentiary link between any restriction upon personal freedom and X’s welfare.[48] Throughout these Reasons I will, wherever necessary, refer to the standard under s 68B(1) and the requirement for any injunction to be grounded in the evidence. Any determinations with respect to contested injunctions sought will also consider X’s best interests as a relevant (but not paramount) consideration.

   [48] Caulfield v Tennyson [2018] FamCA 770, [73] (Austin J) provides an illustrative example. His Honour injuncted the father from approaching the mother’s home or the child’s school or care facility but did not make an injunction prohibiting the child from interacting with the father, as sought by the mother and the ICL in that case. The evidence suggested that a coercive order in those terms was not necessary because the mother, having sole parental responsibility and now aware of her vulnerability to the father’s manipulation, could decide whether to initiate contact with the father in the future and did not need an injunction to prevent her from doing so against her will.

6. Again, before continuing, I note that the Father no longer seeks a final order that the Mother be restrained from further relocation from the Region T. The parties agree that X shall remaining living with the Mother in Northern Tasmania. The various other injunctions as sought in the parties’ proposals will be addressed under the issue sub-headings below.

   Standard of proof

7. I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is ‘proved’ if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.

8. The Evidence Act 1995 (Cth) sets out the applicable standard:

   140     Civil proceedings: standard of proof

   In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)       the nature of the cause of action or defence; and

   (b)       the nature of the subject‑matter of the proceeding; and

   (c)       the gravity of the matters alleged. [49]

   [49] Evidence Act 1995 (Cth) s 140.

9. Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remain relevant and authoritative:

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[50]

   [50] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.

10. Unless applicable legislation prescribes a different standard of proof, I must ground my assessment of X’s best interests in facts, of which I am persuaded, on the balance of probabilities.

    ISSUES

    Matters agreed or uncontentious

11. The parties agree upon a number of orders. All matters which are agreed, or otherwise do not form a key point of contention in this case, are set out under the sub-headings below.

    X’s living arrangements

12. All parties agree that X should live with the Mother.[51]

    [51] Father’s Proposal, 15 December 2021 (Father’s Proposal), [2]; Mother’s Proposal, 13 December 2021 (Mother’s Proposal), [3]; ICL’s Proposal, 13 December 2021 (ICL’s Proposal), [8].

    Communication with X

13. The Father proposes that X communicate with him through FaceTime on two occasions per week — Tuesdays and Fridays.[52] The Mother proposes that video call, telephone, or other electronic communication take place twice per week but instead proposes Wednesdays and Sundays. She further proposes that the calls occur at 5:00pm and that each call shall last no longer than 20 minutes. Her proposal does, however, allow for the parents to agree (in writing) upon additional video calls.[53] The Father indicated at trial that, while he has proposed Tuesdays and Thursdays, he is prepared to be flexible since the calls currently occur on Wednesdays and Sundays.

    [52] Father’s Proposal (n 51), [11].

    [53] Mother’s Proposal (n 51), [4].

14. The ICL proposes that the parent with whom X is not spending time communicate with X through video call twice per week — Wednesdays and Sundays — at 5:00pm for no more than 20 minutes, upon two conditions. For this purpose, ‘parent A’ refers to the parent with whom X is currently living or spending time, and ‘parent B’ refers to the parent with whom X is communicating through virtual means. The first condition is that parent A be restrained by injunction from recording X’s video calls with parent B. The second condition is that, while X video calls parent B, parent A is not to be present and is not to allow any other third party to be present.[54]

    [54] ICL’s Proposal (n 51), [22]-[23].

15. As foreshadowed earlier the Father has, throughout this litigation, maintained his telephone or video communication with X as ordered. Regular video call communication continues to occur at 5:00pm each Wednesday and Sunday for 20 minutes. The Father does hold some concerns about the Mother’s presence in, and interference with, his video calls with X. He has in one instance had to sacrifice a call because, in his account, the Mother did not drive to ensure she had reception for the scheduled call. This seemingly frustrated the Father greatly since he and X appear to derive much benefit from their twice-weekly video calls together.

    Parents’ contact details

16. All parties propose substantially identical terms with respect to the parents’ obligations to advise each other of their contact details.[55] It is agreed that the parents shall, at all times, keep each other advised of their phone number.

    [55] Father’s Proposal (n 51), [15]; Mother’s Proposal (n 51), [12]; ICL’s Proposal (n 51), [24].

17. The Mother does not expressly propose the same with respect to the parents’ residential addresses but, the matter being uncontroversial, I shall order that the parents also advise of their residential addresses. The Mother further sought that any advice of changed details occur as soon as practicable or within 48 hours of the relevant details being changed. This issue was not pressed at trial.

18. The Father’s proposal does not expressly seek that the parents provide their email addresses but, as above, I shall order that they provide the same. The Father further sought that the parents advise of their emergency contact details.

19. The ultimate terms of the order will also require the provision of emergency contact details if those details differ from the parents’ phone numbers.

    Attendance at events

20. The parties largely agree about the parents’ attendances at X’s school functions, sporting fixtures, and other extracurricular activities which allow parental attendance. All parties agree that, at the very least, the Father should be permitted to attend X’s sporting events, assemblies, parental information sessions and any individual parent/teacher interviews.[56] The Father and the ICL both propose that both parties be entitled to attend ‘all events involving the child’ and, in so proposing, provide a non-exhaustive list of events to which the proposed terms of order apply. This includes sporting fixtures (as agreed in the Mother’s proposal), extracurricular activities which allow for parental attendance, and ‘school functions’ (which the ICL and the Father delineate slightly differently).[57] The Father and the ICL also specify that, for any such events, the parent with care of X at that time shall, unless otherwise agreed, be responsible for his day-to-day care and transport in relation to that event.

    [56] The wording of the Mother’s proposal is the most prescriptive and, as such, has been used to describe the baseline upon which all parties agree in their proposals; Mother’s Proposal (n 51), [2(a)]; Father’s Proposal (n 51), [16]; ICL’s Proposal (n 51), [25].

    [57] The Father non-exhaustively defines ‘school function’ as including concerts, school assemblies, sports days, parent/teacher interviews, canteen duty and social functions. The ICL non-exhaustively defines ‘school function’ in the same manner, save for the ICL’s omission of canteen duty and social functions.

21. The scope of the parties’ proposals differs slightly but, as will be explored in these Reasons, I am confident in the parents’ co-parenting relationship and shall make an order consistent with the ICL’s proposal.

    Obligation to inform of medical information

22. The Father and the ICL both propose an order obliging each parent to inform the other of all medical problems or illnesses suffered by X while in their care.[58] This includes visits to any doctor or hospital, and any medication prescribed for X. The Mother’s proposal differs slightly, in that she undertakes to provide the Father with all details relating to any serious medical and/or dental attendance of X with a service or practitioner, including the date of the attendance and the nature of the issue and treatment.[59]

    [58] Father’s Proposal (n 51), [17]; ICL’s Proposal (n 51), [26].

    [59] Mother’s Proposal (n 51), [2(b)].

23. There is, of course, contention as to major long-term decisions about X’s health— parental responsibility is a central issue in this case. The parties appear to agree, at the very least, that they must keep each other informed of any medical incident, attendance, or treatment which occurs while X is in their care. I shall positively require the parents, pursuant to s 68B of the Act, to inform one another of medical incidents involving X in those terms. It not only serves X’s welfare, but is in his best interests, for both of his parents to be informed of any event which impacts his health and any associated treatment so that they may effectively co-parent.

    Authorities with respect to X’s health and education

24. All parties propose that both parents have access to and/or receive information from X’s school including reports, photographs, newsletters, lists of absences and the like. The terms of the parties’ proposed orders differ slightly but all proposals, in effect, require that both parties give the requisite authorities to ensure that both parents are provided with information from X’s school.[60]

    [60] Father’s Proposal (n 51), [18]; Mother’s Proposal (n 51), [2(a)]; ICL’s Proposal (n 51), [27].

25. There is, as foreshadowed above, some contention about whether the Mother should be required to provide all relevant authorities with respect to X’s health and wellbeing so that the Father may receive X’s medical information and be listed on X’s medical files as a matter of course. The parties consent to both parents receiving information from X’s school and, again with reference to s 68B, it is both for X’s welfare and in X’s best interests for there to be an order requiring the provision of all relevant authorities for this purpose. School is the main commitment by which X organises his young life and, as such, it is important for both parents to be able to speak with X about his education and everyday activities. Further, and as indicated by the evidence in court, both of X’s parents are incredibly proud of their son. It is therefore in X’s best interests that the Mother and the Father both see his educational progress to celebrate his achievements and support him when he needs it.

26. I will ultimately order, as an incident to my finding at paragraph 430, that the Mother must ensure that any information, files, or details with respect to X’s education and health includes any such authority required, if not already present, to allow the Father to access information, be contacted, and make decisions about medical and educational matters.

    Overseas travel

27. The Father’s proposal sets out a suite of orders with respect to overseas travel with X.[61] No evidence was led on this issue at trial and neither the Mother nor the ICL propose terms of order in this respect.

    [61] Father’s Proposal (n 51), [19]-[23]. I note the Father’s proposal, at [22], that the parent travelling with X is to facilitate communication between X and the non-travelling parent at least twice per week and at X’s request. This proposal is identical to the Father’s proposal for communication at [11] absent only the specification of the days upon which the communication is to occur, and with [22] including that communication is also to occur at X’s request. Due to the similarity of the Father’s proposals at [22] and [11], and because the issue was not agitated at trial, I do not consider it necessary to extract the proposal in full.

    Post-separation parenting course

1. Having undertaken the assessment of the factors in s 60CC(2), alongside the relevant factors under s 60CC(3), I now move to determine the issues of parental responsibility and time.

   PARENTAL RESPONSIBILITY

2. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[175] A parent does not have rights over their children — they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation parents are not, simply by virtue of their changed relationship with one another, absolved from their parental responsibilities.[176] Court orders may, however, change the nature of parental responsibility, and the obligations attaching thereto, to suit a post-separation life.

   [175] Family Law Act 1975 (n 35) s 61B.

   [176] Ibid s 61C.

3. An order for shared parental responsibility is distinct from the baseline concept of ‘parental responsibility’.[177] The effect of such an order is set out at s 65DAC of the Act, upon which I will briefly offer a summary and pose some comments, is extracted below:

   [177] Goode v Goode [2006] FamCA 1346, [39], at which the Full Court clarifies the difference between pre-separation parental responsibility and post-separation parental responsibility as it results from an order: ‘We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the court otherwise provides’.

   (1)This section applies if, under a parenting order:

   (a)2 or more persons are to share parental responsibility for a child; and

   (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   (2)      The order is taken to require the decision to be made jointly by those persons.

   (3)      The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b)to make a genuine effort to come to a joint decision about that issue.

   (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

4. Major long-term issues, in relation to a child, means:

   … issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)the child's education (both current and future); and

   (b)the child's religious and cultural upbringing; and

   (c)the child's health; and

   (d)the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

5. The Mother, the Father, and the ICL all propose an order for equal shared parental responsibility in one respect or another. Their agreement in this respect is consistent with the principles underlying the objects of pt VII of the Act and, most relevantly in this case, those contained in s 60B(2):

   …

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

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

   …

6. These principles reflect X’s basic right to have both parents involved in big, and often difficult, decisions affecting his life. To make such decisions is hard and, generally, both parents are needed to formulate decisions that are in a child’s best interests.

7. Shared parental responsibility does not just refer to the nature and scope of a parent’s responsibility but, further, entrusts parents (or others) with certain decision-making obligations about major long-term issues.

8. The Mother and the Father must, for X’s sake, share decisions about major long-term issues in relation to him. The Act requires them to make joint decisions about the major long-term issues for which equal shared parental responsibility is ordered. I have already stated that both parents have much to offer in this respect — both hold a great degree of love and affection for X and, having overcome parenting difficulties, have his best interests at the front of their minds.

9. I note here the possible anomaly within s 65DAC — namely, subsections (2) and (3)(b). The section dictates that an order for equal shared parental responsibility requires decisions within its ambit to be jointly made. That, from the language of the provision, is non-negotiable. Yet, in almost the same breath, the section requires consultation in relation to the issue and the ‘genuine effort’ of all parties involved to come to a joint decision on that issue. It is entirely possible that all parties involved may make a ‘genuine effort’ to make a joint decision but nevertheless fail to do so. They may simultaneously comply with sub-section (3) and breach sub-section (2) — a problem for which s 65DAC appears to offer no resolution. This does not give rise to any specific issue in this case but, as a point of law, is worth noting.

10. Once an order for equal shared parental responsibility is made, certain obligations are entrusted to the parties in relation to decision making for the child in relation to major long term issues. The somewhat rarer alternative is that no order is made for equal shared parental responsibility. To do so is a serious step, as reflected upon by Murphy J in Carlson v Bowden [2008] FamCA 1064:

    In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.

    The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.

    Carrying out those tasks and obligations, on what might be a regular basis, particularly when, as here, a child is young, carries with it potential significant difficulties. That is all the more so where, for example, parties other than the parents are involved, there are siblings of another relationship involved and where the parties are in high conflict. All three are present here.

    Equally, though, an order for “sole parental responsibility” in favour of a party (as is frequently sought as an alternative to either the sharing of parental responsibility or equal shared parental responsibility) means, as it seems to me, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAE(1)).

    The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child - particularly when, as here, the child is young – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.[178]

    [178] Carlson v Bowden [2008] FamCA 1064, [171]-[175].

11. The Full Court made similar remarks in Vallans v Vallans [2019] FamCAFC 260:

    For the reasons discussed in Blaze v Grady [2015] FamCA 1064 … the legislative intent of Part VII of the Act is to focus upon rights of children, on the one hand, and duties, obligations and responsibilities of parents on the other. Viewed in this context, the allocation of parental responsibility by parenting orders made under Part VII does not have in focus some inchoate or accepted right of a parent to exercise parental responsibility. Rather, the focus must be on the rights of the child, that is the child’s right to have the child’s parents properly meeting their parental duties and obligations, including by their discharge of parental responsibility. That forms an important element of the child’s right to have parents having a meaningful involvement in the child’s life.[179]

    [179] Vallans v Vallans [2019] FamCAFC 260, [39].

    The presumption of equal shared parental responsibility: legal principles and operation

12. The Act requires a court to presume that it is in a child’s best interests for their parents to be equally responsible for decisions about major long-term issues. This position is consistent with my remarks above with respect to the onerousness of parental responsibility. Section 61DA of the Act sets out the applicability of that presumption:

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

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

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

    (b)family violence.

    …

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

13. The operation of the presumption of equal shared parental responsibility is significant. The line of authority from the Full Court suggests that, if the presumption remains in place, equal shared parental responsibility must be ordered.[180] Section 61DA makes clear, however, that this outcome may not always be appropriate.

    [180] Koyroyshs v Koyroyshs [2020] FamCA 626, [84] (Harper J), at which his Honour cites Marvel v Marvel (No 2) [2009] FamCAFC 101 and states that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.

14. Sections 61DA(2) and 61DA(4) provide for two ways by which equal shared parental responsibility may not be ordered, as are relevant to the case at hand. Section 61DA(2) provides that, from the outset, the presumption will not apply if there are reasonable grounds to believe that a parent (or someone who resides with a parent) has engaged in child abuse or family violence. The standard set out in s 61DA(2) is important. It does not require proof of the fact that, on the balance of probabilities, child abuse or family violence took place. It requires only that the evidence provides reasonable grounds to believe that a person has engaged in child abuse or family violence. The wording of subsection (2) indicates a legislative intention to, in limited circumstances, prevent the application of the presumption, notwithstanding that there may be no evidentiary finding of child abuse or family violence. Any actual finding of child abuse or family violence itself activates s 61DA(2) at which point there becomes no need to explore whether or not the presumption applies. Once s 61DA(2) is enlivened, whether through reasonable grounds of belief or a factual finding on the balance of probabilities, the presumption is excluded as a matter of law. In those circumstances there is no discretionary power by which the presumption may be revived.[181]

    [181] Ibid [85].

15. The enquiry as to an order for parental responsibility always, with the exception of s 61DA(2) and 61DA(3) (noting that subsection (3) is irrelevant in this case), commences with the presumption that equal shared parental responsibility is in the child or children’s best interests. This is not to say that the presumption, once in place, is set in stone.

16. Section 61DA(4) accounts for instances in which the presumption applies from the outset of the enquiry but where an order for equal shared parental responsibility may nevertheless not serve the child or children’s best interests. If s 61DA(2) applies, s 61DA(4) never comes into operation.[182] This subsection provides for the presumption to be rebutted, namely, for it to be ousted from consideration, despite the fact that it was initially applicable. To rebut the presumption a judge must determine that, on the balance of probabilities, it would not be in the child or children’s best interests to order equal shared parental responsibility. The grounds upon which the presumption may be rebutted are significantly broader than those given in s 61DA(2). A court must, therefore, reach ‘a level of satisfaction on the evidence, that it would not be in the interests of the child for [the presumption] to apply’, and must give ‘explicit and cogent reasons why the presumption should be rebutted’.[183] It is not sufficient to point solely to the parties’ poor communication or lack of confidence in each other’s parenting capacity as a basis upon which to rebut the presumption.[184]

    [182] Boyce v Boyce [2015] FamCAFC 60, [21]-[22] (Bryant CJ, Ryan and Kent JJ).

    [183] Dundas v Blake [2013] FamCAFC 133, [57], [61] (Bryant CJ, May and Ainslie-Wallace JJ). See also Withers v Russell (n 37), [426]-[428], in which the presumption was rebutted on the basis of the parties’ ongoing disagreements about major long-term issues, to the extent that an order for equal shared parental responsibility would not be in the best interests of the children subject to those proceedings.

    [184] Dundas v Blake (n 183), [58].

    Applicability of presumption of equal shared parental responsibility

17. The Father seeks an order for unqualified equal shared parental responsibility. The Mother, on the other hand, seeks sole parental responsibility with respect to X’s health and education.

18. I have already found that both parties have exhibited a level of family violence towards each other. Further, as found, the Father in some instances coerced the Mother into sexual activities, including ‘Q’, by leveraging her vulnerable nature and wishes for a family together. Those activities involving unknown strangers in their home may have placed X at some risk but, ultimately, no harm appears to have befallen X as a result.

19. In these circumstances the presumption of parental responsibility does not apply. Over and above reasonable grounds for believing family violence has occurred I have, at paragraphs 259 and 287, found that family violence has occurred.

20. Notwithstanding that s 61DA(2)(b) excludes the presumption of equal shared parental responsibility, it is nevertheless within my jurisdiction to make an order for equal shared parental responsibility. Warnick J in Robertson v Sento [2009] FamCAFC 49, though in dissent, plainly sets out the operation of s 61DA(2) in this respect:

    [s 61DA(2)] does not say that, if there are reasonable grounds to believe one of the nominated circumstances exists, equal shared parental responsibility, qualified or unqualified, shall not be ordered, but merely that the presumption does not apply (at all).[185]

    [185] Robertson v Sento [2009] FamCAFC 49, [41]. His Honour dissented on limited grounds; I have extracted his reasoning because his assessment is consistent with the wording of s 61DA(2), and with the concept of the presumption as a legal mechanism which does not prevent an order being made in pursuance of s 60CA.

21. I remain bound under s 60CA to consider X’s best interests as a paramount consideration in making any parenting order. If the evidence suggests that it is in X’s best interests for his parents to have equal shared parental responsibility then I can make that determination and craft an order accordingly.

22. Mr Briffa submitted that the history of family violence, together with the parents’ inability to effectively communicate, should result in parental responsibility for X being left solely to the Mother with respect to education and health. Mr Reeve, conversely, submitted that it is in X’s best interests for both parents to be involved in major decisions impacting his life, in line with his rights, as identified in s 60B(2)(c) and (d).[186] The ICL submitted that, even if I make certain limited findings of family violence, there ought to be an order for equal shared parental responsibility. I have, of course, made such findings, and further found that the parents’ hostility towards one another impacted X and caused his behavioural difficulties to some degree.

    [186] Mr Reeve also submitted that the evidence was insufficient to make a finding of family violence against the Father but, by virtue of his admission of physical violence on 14 February 2020, my corresponding finding of physical family violence at paragraph 259, and my finding of coercive control at paragraph 287, that submission is irrelevant.

23. The Mother retains a negative view of the Father and distrusts his ability to care for X for an extended period. As stated s 65DAC requires that, if an order for equal shared parental responsibility is made, the parents must consult with each other in relation to the decision to be made about that issue, and make a genuine effort to come to a joint decision.

24. The Father said that he has not been advised about significant medical matters including one occasion in which X cut his chin open and required treatment. He said that the Mother had not provided him with all of the information that he might have needed, particularly about X’s medical needs. He further attempted to contact X’s school and treating doctor himself but was not provided with a significant amount of information. Further, with respect to education, the Father said that he did not have any issue with the child care placement that had been chosen for X, nor with the Mother’s choice of kindergarten. Neither parent is religious (although, X has been baptised) and they did not raise points of conflict in this respect at trial.

25. The Father agreed that the parental conflict had been triggering for him and had caused him stress. He nevertheless expressed comfort and confidence that, as time goes on, his relationship and communication with the Mother could operate at an effective level.

26. The parents’ tumultuous history raises concern as to their ability to communicate effectively and ‘genuinely consult’ with each other about major long-term issues concerning X, and reach joint decisions about such matters. That said, and as I have found, the Father’s personal circumstances and attitude to parenting generally has improved dramatically, particularly since he commenced his relationship with Ms H. I have also found the parents have demonstrated their high-level communication skills with each other and have observed, through exhibit FA and messages through TalkingParents, their collaboration with respect to difficult issues.

1. I find that the Father has matured and has greatly improved his life. He is no longer drug-dependant, receives ongoing support from Ms C and Ms H, has improved his mental health greatly, and has the responsibility of a new child in his life. It is clear that the Father has a strong desire to be equally involved in decisions regarding X’s life and, alongside the Mother, has much to offer.

2. The question therefore is whether the parents’ history impacts their ability to genuinely consult and reach joint decisions.

3. The evidence since 2020 indicates that the parents are able to maintain an ongoing and healthy dialogue with each other regarding parenting arrangements, particularly with respect to the Father’s time. They communicate regularly via a co-parenting app and see each other during X’s weekly video calls. They have the ability to work collaboratively as demonstrated in exhibit FA and, while this is but one of many instances of co-parenting between them, their co-parenting relationship is likely to improve even further upon the conclusion of this litigation. Finalising these proceedings will take the pressure off and allow X and his parents to commence a gradually increasing regime of time. The Father and the Mother will need to maintain strong lines of communication so as to ensure that X navigates the time changing arrangements with the Father, including the commencement of time in New South Wales.

4. I note that Ms K recommends that there be an order for equal shared parental responsibility. This recommendation is made notwithstanding her concerns regarding the Father’s behaviour towards the Mother.[187]

   [187] Family Report (n 100), [148].

5. I am satisfied that the parents are capable of genuinely consulting and reaching joint decisions about X’s major long-term needs. They may not always communicate optimally at the moment but they are capable of honing their abilities in this respect. Both parents will need to work hard to put their differences aside when dealing with each other. In time, however, I am confident that they will reliably communicate and confer about X’s major long-term issues in a constructive and effective manner.

   Determination as to whether an order for equal shared parental responsibility is in X’s best interests

6. I am satisfied that it is in X’s best interests for the Mother and Father to equally share parental responsibility for him.

   APPLICABILITY OF REQUIREMENT TO HAVE REGARD TO PARENTING PLANS

7. There is no evidence that the parents have made a parenting plan under pt VII div 4 of the Act.

   EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME?

8. As there will be an order for equal shared parental responsibility, I must consider whether there should be an order for an equal time arrangement or, alternatively, a substantial and significant time arrangement. As explained by the High Court in MRR v GR, either arrangement must be reasonably practicable and in X’s best interests if it is to be ordered.[188] Section 65DAA, extracted below, sets out the requirements with respect to ordering time:

   [188] MRR v GR (n 38), [37].

   65DAA   Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)      Subject to subsection (6), if:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

   the court must:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)       the time the child spends with the parent includes both:

   (i)        days that fall on weekends and holidays; and

   (ii)       days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)        the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)       how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)       such other matters as the court considers relevant.

9. If ordering equal time is in X’s best interests and otherwise reasonably practicable then I must consider making an order to provide him with equal time arrangements. If I do not order equal time I must consider whether X should spend substantial and significant time with one of his parents. I will undertake this assessment, again, with reference to X’s best interests and whether spending substantial and significant time with both parents is reasonably practicable.[189]

   Assessment of whether an equal time arrangement is in X’s best interests and reasonably practicable

   [189] Family Law Act 1975 (n 35) ss 65DAA(2), 65DAA(5).

10. Equal time during school terms is neither practical nor in X’s best interests. The Mother and the Father live in different states, making an equal time arrangement during school terms impossible. It is not, however, necessarily impossible for equal time to occur during X’s gazetted school holiday periods.

11. X has commenced Prep at G School. As such, the majority of the Father’s time with X must occur during X’s school holidays. The parties agree, and I have determined, that time will eventually build to overnight time in Sydney. This needs to occur at a slow and sustainable pace.

12. Once the Father has spent time with X on a regular basis in New South Wales, there seems little reason for that time not to extend to a half school holiday arrangement during all gazetted school holidays. This, however, will evolve over time and rise slowly as time progresses.

13. Taking into account Ms K’s recommendations, building to an equal time arrangement during X’s school holidays in New South Wales by the time he reaches grade 3 is, in my view, in his best interests. The gradual build of time will also allow X and the Mother time to adapt to these changing arrangements.

    Assessment of whether a substantial and significant time arrangement is in X’s best interests and reasonably practicable

14. The Act defines ‘substantial and significant time’ as time occurring in the holidays, on weekend, and at other times.[190]

    [190] Ibid s 65DAA(3)(a).

15. For the reasons stated above with respect to equal time it is not in X's best interests for there to be significant or substantial time during school terms. The distances are far too great for such an arrangement to work.

16. The Father’s time with X will nevertheless build during his gazetted school holiday periods and will become substantial and significant until it ultimately becomes equal in school holidays by 2024. I do note that, to account for X’s birthday, the order with respect to time during the term 2 winter holidays is somewhat complicated. I intend to take the opportunity for X to spend his birthday with each parent in alternating years but, given the uncertainty of the school term dates in the future, I will craft an order to best accommodate this intention.

17. As previously stated, X's time with the Father needs to build slowly, as it will result in him eventually spending equal time with Father during all gazetted school holiday periods. This will necessarily result in him spending time with his Father on the weekends and also during the week. There will be a transition to that arrangement, which will result in the Father spending substantial time with X in Sydney, before his holiday time culminates with a sharing of X’s holidays.

    CONCLUSION

18. With respect to each of the issues set out at paragraph 110, and any other incidental issues arising therefrom, I am satisfied that it is in X’s best interest to make orders in the terms set out at the commencement of these Reasons.

19. It is in X’s best interests for his parents to have equal shared parental responsibility for major long-term decisions affecting his life. This is notwithstanding my findings of family violence as perpetrated, to varying extents, by both parents. To effect the order for equal shared parental responsibility I will also order that the Mother provide any and all necessary authorities with respect to X’s health and education. Further, having ordered equal shared parental responsibility, it is unnecessary to restrain the parents against facilitating X’s attendance upon a psychologist, counsellor, therapist or social worker without the written consent of the other parent. The parents must, in any event, jointly decide about such matters, and any person engaged by such a decision is not required to establish, before acting thereupon, that the decision has in fact been made jointly as is required by s 65DAC(2).[191]

    [191] Ibid s 65DAC(4).

20. Further, again notwithstanding findings of family violence or the Father’s past struggles with his mental health and drug use, it is in X’s best interests ultimately spend equal time with the Father during school holidays and otherwise live with the Mother. To effect those arrangements the parents shall share the cost of his travel, with the Mother to fund one return trip per calendar year, and with the Father to fund the remainder of X’s travel costs.

21. I also consider it appropriate, having regard to X’s welfare and the evidence, to restrain both parents from using any illicit substance leading up to and during X being in their care, and oblige them to ensure. I will not, however, oblige the Father to advise the Mother of any deterioration of his mental health in the terms sought at issue 5. The Father has agreed, and I will order, that he continue to engage with Ms C and follow her recommendations, and undertake specialist therapy in relation to the matters discussed at paragraph 299 of these Reasons. That order is a condition of the Father’s overnight time.

22. X has endured a tumultuous beginning to his life. He has witnessed the end to his parents’ relationship and the emotional turmoil that it entailed. X has been slowly brought back into his Father's life and his time with his Father is now beginning to develop and foster. The Father’s time with him, from this point, will involve X’s time increasing and eventually occurring in New South Wales during X's gazetted school holidays. X will ultimately enjoy equal time with the Father during such holidays. Those arrangements are, pursuant to my assessments under pt VII of the Act, in X’s best interests.

I certify that the preceding four hundred and forty-six (446) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

Associate:

Dated:       17 June 2022