Moyland & Shearer (No 2)
[2024] FedCFamC2F 350
•21 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moyland & Shearer (No 2) [2024] FedCFamC2F 350
File number(s): CAC 1659 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – PARENTING – wide range of issues on display at trial – major problems with expert who was de-registered in the course of the trial – ultimately parties agreed on most issues in dispute including the two girls of the relationship (aged 14 and 11) remaining to live with the Father in City D and spending time with the Mother in Queensland – one of the few remaining issues related to parental responsibility – significant concerns about the lack of insight of the Mother in the light of her evidence – Orders for sole parental responsibility in the Father’s favour. Legislation: Family Law Act 1975 (Cth) s.60CC(3) Cases cited: AMS v AIF (1999) 199 CLR 160
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53
Fox v Percy (2003) 214 CLR 118
Godfrey & Saunders (2007) 208 FLR 287
In the Marriage of Kress (1976) 13 ALR 309
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Moyland & Shearer [2023] FedCFamC2F 1202
Partington v Cade (No.2) (2009) 42 Fam LR 401
Sigley v Evor (2011) 44 Fam LR 439
Vontek v Vontek [2017] FamCAFC 28 at [26]
Division: Division 2 Family Law Number of paragraphs: 147 Date of last submission/s: 8 January 2024 Date of hearing: 23 August 2023 Place: Canberra Counsel for the Applicant Ms R. Dart Solicitor for the Applicant Robinson + McGuinness Family Law Counsel for the Respondent Mr I. Duane Solicitor for the Respondent Farrar Gesini Dunn (up to 15 October 2023)
Foster Johnson (from 16 October 2023)Independent Children’s Lawyer Legal Aid ORDERS
CAC 1659 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MOYLAND
Applicant
AND: MS SHEARER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
21 MARCH 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Father shall have sole parental responsibility for X (born in 2010) and Y (born in 2013) (‘the children’).
2.Before making a decision about a major, long-term issue in the exercise of sole parental responsibility:
(a)The Father shall contact the Mother and:
(i)Inform the Mother of the decision required;
(ii)Inform her of any view he has about the decision; and
(iii)Seek her view on the decision to be made.
(b)The Mother shall provide her response, if any, within 7 days and the Father shall give consideration to her input or comment prior to making the required decision; and
(c)The Father shall notify the Mother of the decision that was made, within 14 days after the date on which it was made.
3.The children shall attend F SCHOOL, SUBURB G for their high school education.
4.Each party shall pay half of the educational costs of the children.
5.The parties are to communicate via a parenting app to be agreed upon.
AND THE COURT FURTHER ORDERS, ON A FINAL BASIS, BY CONSENT THAT:
6.All previous interim parenting orders are discharged.
Time Arrangements
7.The children shall live with the Father in City D.
8.The children shall spend time with the Mother during the school term as follows:
(a)On the third weekend of the school term, from 4pm on Friday until 9am or the commencement of school the following Monday, in the event the Mother travels to City D; and
(b)On the seventh weekend of the school term, from after school on Friday until Sunday evening with the Mother and the Mother provide the Father with 14 days’ notice of whether time is to occur in City D or Brisbane; and
(c)For the purpose of Orders 8(a) and 8(b), the Mother is to provide the Father with written notice of her intention to spend time with the children not less than 14 days prior to the time occurring or such time shall not proceed.
9.The children shall spend time with the Mother during school holiday periods as follows:
(a)During the term 1, 2, and 3 school holidays, for a period of 10 nights, commencing the first day of the school holiday period as defined by these Orders; and
(b)During the term 4 / summer school holidays;
(i)In 2023 and each alternate year thereafter, for the second half of the term 4 / summer school holidays; and
(ii)In 2024 and each alternate year thereafter, for the first half of the term 4 / summer school holidays.
10.For the purposes of Order 9 above:
(a)The school holiday period will commence at 10:00am on the day following the last day requiring attendance at school and conclude at 3:00pm on the Sunday prior to the first day of the following school term;
(b)For the avoidance of doubt:
(i)The term 4 2023 school holidays shall commence on 15 December 2023, and conclude on 28 January 2024; and
(ii)The term 4 2024 school holidays shall commence on 21 December 2024, and conclude on 2 February 2025.
(c)For the purpose of Orders 7(b):
(i)Changeovers shall be 3pm on the middle day of the school holidays period as defined by the immediately preceding order; and
(ii)In the event there is an odd number of days in any school holiday period as defined by these Orders, the following shall apply:
A.In 2023 and each alternate year thereafter, the children shall spend the additional day with the Father; and
B.In 2024 and each alternate year thereafter, the children shall spend the additional day with the Mother.
(d)The Mother shall book and pay for all return airfares and other costs associated with her and/or the children’s travel to and from Queensland.
IT IS NOTED that all references to time in these Orders shall be taken to be the time that applies in City D at the relevant time and includes both AEST and AEDT as the case may be.
Special Occasions
11.Notwithstanding the above Orders, in the event both parents are in City D and the children are not otherwise in the care of the Mother, the children shall spend time with the Mother on special occasions as follows, unless otherwise agreed by the parties in writing:
(a)On Y’s birthday, from 3:30pm until 8:30pm;
(b)On X’s birthday from 3:30pm until 8:30pm;
(c)On Easter Sunday, for no less than five hours as agreed between the parties in writing, and failing agreement between 3:30pm and 8:30pm;
(d)On Christmas Day, for no less than five hours as agreed between the parties in writing, and failing agreement between 3:30pm and 8:30pm;
(e)On the mother’s birthday from 3:30pm until 8:30pm; and
(f)On the weekend on which Mother’s Day falls, from 10:00am on Saturday until 4:00pm on Sunday.
12.For the purposes of Order 11 above, if the Mother wishes to exercise her time with the children on the above special occasions she shall provide written confirmation to the Father of her intention to do so not less than 14 days prior to the special occasion or such time shall not proceed.
13.In the event both parents are in City D and the children are in the care of the mother, the Mother shall facilitate the children spending time with the Father on his birthday for no less than five hours as agreed between the parties in writing and failing agreement between 3:30pm and 8:30pm.
IT IS NOTED that Orders 11 to 13 hereof are not intended to prevent either parent travelling during their time with children pursuant to Orders 8 to 10 hereof.
Changeover
14.In relation to Orders 8(b) and 9 above, the children will travel to Queensland from City D Airport via airplane and unaccompanied as follows:
(a)With the Mother to book airplane tickets for each child and with the flight to be scheduled depart City D no later than 8:00pm and not to take place during school hours;
(b)With the Mother to be solely responsible for the costs of the airplane travel;
(c)With each party to complete any paperwork necessary to allow the children to travel unaccompanied via airplane;
(d)With the Father to deliver the children to the City D Airport with sufficient time for the children to check in and board the flight unaccompanied;
(e)With the Mother to collect the children from Brisbane Airport at the time of their arrival;
(f)With the Mother to provide to the Father a copy of the booking details confirming fully paid return flights no less than 14 days prior to the children’s time with the Mother commencing pursuant to these Orders; and for copies of the tickets to be provided with 24 hours of the tickets issuing to the Mother.;
(g)For the purposes of Orders 9(a) the Mother is to return the children to the father by 3pm on the last day that the children are in her care pursuant to those Orders; and
(h)For the purposes of Orders 9(b)(ii) the Mother is to return the children to the father by 3:00pm on the middle day of the school holidays period as defined by Order 10.
15.In the event the Mother fails to comply with Order 14(f) hereof in full, or where the mother books and pays for return flights that provide for the children to travel on dates contrary to those which are provided for in these Orders, then the Father is at liberty to retain the children in his sole care until such time as the Mother provides the father with:
(a)Confirmation in writing that the children will be returned to the Father’s care in accordance with the time provided for in these Orders; and
(b)Copies of the children’s fully paid return flight information and tickets that provide for the children to be returned to the Father in accordance with the time provided for in these Orders.
16.In relation to Orders 8(a) and 11, changeover shall occur at the children’s school, and where this is not possible, the mother shall collect the children from the Father’s residence at the commencement of the time and return them to the father’s residence at the conclusion of the time, unless otherwise agreed between the parties in writing.
Communication
17.The parties shall facilitate the children contacting the other parent via telephone, Facetime or any other form of electronic communication:
(a)On Wednesday and Sunday evenings between 7pm and 8pm, unless otherwise agreed in writing; and
(b)At any reasonable time requested by the children.
18.The parties shall communicate about matters concerning the children, including in the event of an emergency, in a polite and respectful manner.
Domestic Travel
19.Both parties are permitted to travel domestically with the children provided:
(a)The travel is in accordance with the applicable State / Territory Government travel advice at the time; and
(b)Should the travelling parent intend to travel with the children for a period of more than 3 nights, the travelling parent shall provide written notice to the other parent no less than 24 hours in advance of the travel.
International travel
20.Both parties are permitted to travel overseas with the children during their time with the children scheduled in accordance with these Orders, and neither shall unreasonably withhold their consent for the children to travel, provided that travel is in accordance with the Australian Government’s travel advice published at the time and the travelling parent provides:
(a)Written notice to the non-travelling parent not less than 28 days prior to the intended travel; and
(b)Copies of the following documents to the non-travelling parent not less than less than 14 days prior to the departure date:
(i)A travel itinerary, including accommodation details, departure and arrival dates and airline details;
(ii)Copies of the children’s fully paid return airfares;
(iii)A copy of the children’s travel insurance;
(iv)A copy of any relevant visas obtained on behalf of the children for the purpose of overseas travel;
(v)A copy of any medical certificate evidencing travel immunisations and/or other medical treatment if required for the children prior to travelling overseas; and
(vi)Telephone and email contact details upon which the non-travelling parent may contact the children at all reasonable times while they are overseas.
21.The parties shall ensure that the children retain valid Australian Passports and for the purpose of this Order the parties shall do all things and sign all documents necessary to obtain passports for the children and will renew the children’s passports not less than six months prior to their expiry, with the cost to be shared equally by the parents.
22.The father shall retain the children’s passports and in the event the children are due to travel with the mother, the father will make the passports available to the mother not less than 14 days prior to the children’s intended departure day.
23.The mother shall return the children’s passports to the father within 14 days of her and the children’s return to Australia.
24.Nothing in Orders 18 to 21 prevents the children, or either of them, travelling overseas with their school or associated extra-curricular activities.
Education
25.In the event either parent wishes to change the children’s school(s), the following shall apply:
(a)The parent requesting the change of school shall invite the other parent to participate in a family dispute resolution conference;
(b)The other parent shall respond to the invitation to participate in a family dispute resolution conference within 14 days of receiving the invitation;
(c)The parties shall thereafter attend a family dispute resolution conference as soon as reasonably practical for the purpose of discussing and reaching agreement as to the schools that the children will attend; and
(d)If the other parent does not respond to the invitation to participate in the family dispute resolution conference, or, the parties cannot reach agreement at the family dispute resolution conference regarding the children’s schools, the children shall attend the local public school in the priority enrolment area of the father’s residence.
26.The parties are both permitted to attend the children’s school assemblies, sporting carnivals, performances, parent teacher interviews and all other events that parents are invited to attend.
27.The parties are both at liberty to, and are authorised to, obtain any information relating to the children from any school that the children attend and from any extra-curricular activity provider that the children attend, including copies of reports, progress reports, notices relating to pupils attending the school, letters to parents, invitations and any carnivals, sporting or social functions, notices of any invitations to parent teacher interviews and any other notices directed to the parents.
Medical
The children’s specialist medical appointments
28.The father shall provide the mother with no less than 72 hours’ notice (where practical to do so) of any the children’s specialist medical appointments and provide the mother with the opportunity to attend.
29.In the event the mother is unable to attend the appointment, the father is to notify the mother, in writing within 24 hours of the appointment, of the outcome of the appointment and any changes to the child’s treatment plan, including medication and diet.
Other medical matters
30.The parties shall follow the advice provided by the children’s treating medical and allied health professionals, including any dietary advice.
31.The parties shall advise each other as soon as possible by the best available means in the event any of the following occurs:
(a)Either of the children being seriously injured or falling seriously ill;
(b)Either of the children requiring urgent medical treatment by a doctor or ambulance crew; and/or
(c)Either of the children being admitted to hospital.
32.Should either child suffer a serious injury or illness or is required to attend hospital or undergo surgery, both parties are at liberty to attend the treating hospital to visit the child.
33.Where possible, any significant medical procedure that the children are to undergo shall be scheduled at a time that both parties can attend.
34.The parties shall keep each other informed of any change in the children’s health and wellbeing.
35.The parties are both at liberty to, and are authorised to, obtain all records relating to the children and to consult with the children’s treating medical practitioners, hospitals and any other treating professionals to obtain any information they may request. For this purpose, the parties shall list the other parent as a person entitled to receive all information that a parent ordinarily would from the treating health professional.
Other
36.The parties shall not physically discipline, humiliate or shame the children, or allow any other person to do so.
37.The parties shall not encourage the children to call another person mother or father.
38.The parties are to keep each other advised of their address, mobile telephone number and email address and will advise the other within 48 hours of any change.
39.The parties shall not make denigrating or disparaging comments about the other or family in the presence of the children and will use their best endeavours to prevent others from doing so.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction & overview
There is some curious history (evidentiary and procedural) to this parenting matter that otherwise involves two energetic and bright young women, X (born in 2010) and her younger sister Y (born in 2013). Some of the unusual history is recounted in the Court’s 2023 judgment that involved a now de-registered psychologist who had prepared a report in the matter.[1]
[1] See Moyland & Shearer [2023] FedCFamC2F 1202. With no pejorative view intended or implied, I might note in passing that the Court was advised, during one of the stages of interregnum, that Counsel for the Mother at trial had withdrawn from the matter sometime around the Mother changing her legal representation. However, without notice or other indication, the same Counsel returned to the fray and wrote the Mother’s submissions, notwithstanding the previous advice that he had de-camped and returned to City E.
The final hearing was a somewhat dramatic, at times a tad chaotic, and a highly conflicted affair. However, as matters have now turned out, especially in light of the Mother’s changed position, the scope of the contest is now really quite narrow. All Counsel in written submissions note the much narrower scope of the contest. The Independent Children’s Lawyer’s (“ICL”) submissions (set out in full later in these reasons) set out what are said to be “agreed Orders” (pars.10-12), which confirmed, implicitly but clearly, the very narrow compass of the matters in dispute, thus:
10.The parties now appear to agree that the children should remain primarily living with the Father in [City D] and spend time with the Mother in [City D] and Queensland.
11.The Independent Children’s Lawyer (‘ICL’) considers that arrangement to be in the best interests of the children for the following reasons:
a. Both parties agree that the children each have a meaningful relationship with each parent and that the children derive a benefit from those relationships.
b. Each party gave evidence that the other parent interfered negatively with the children’s relationship with the other parent.
c. The evidence suggested, in the ICL’s view, that the Mother has not acted in the best interests of the children on several occasions including:
i.In relation to her decision to leave [City D] in the manner she did in early 2022;
ii.In encouraging and facilitating [X] to leave the Father’s house and [City D] and the surrounding events occurring [in] 2022;
iii.In the information the Mother provided to [Y]’s therapist [in] March 2023.
d. The risk posed by the Mother in continuing to not act in the best interests of the children and potentially interfere with the children’s relationship with the Father is mitigated to a large extent by the children living primarily with the Father.
e. The Mother’s meaningful relationship with the children will be maintained by the time it is proposed she spend with the children.
f. The ICL notes that the orders as to lives with agreed between the parties are inconsistent with the children’s expressed views and wishes. The ICL submits there is some evidence to suggest those views and wishes should not be determinative and should be approached with some caution.
12.The parties appear to be in agreement as to the manner and frequency of communication between the children and the other parent. Those orders allow for set time communication and otherwise require the parents to facilitate communication in accordance with the wishes of the children. Given the ages of the children, that appears appropriate.
And at par.40 of her submissions, regarding parental responsibility, the ICL stated (emphasis added):
40.The ICL notes that the Father seeks sole parental responsibility for health and medical issues only but also seeks an order in relation to the school [Y] is to attend in 2024. In the ICL’s view that leaves relatively few other long-term issues that would be the subject of an order for equal shared parental responsibility. That being the case, the Court may consider it more appropriate that the Father hold sole parental responsibility for all issues.
In his Submissions in Reply (also set out in full below), the Father adopted the ICL’s submissions, and addressed any residual issues of “procedural fairness” at pars.4(a) and 5(b) regarding, for example, parental responsibility Orders.
The Mother, who lives in Queensland (having once lived in City D), as confirmed above in the ICL’s submissions (and in her own, set out below) now agrees that the children shall continue to live with their Father in City D. At trial she had sought that the girls live with her in Queensland. The only issue, therefore, now to be determined relates to “parental responsibility”. On this issue, the Father seeks sole parental responsibility, albeit somewhat qualified, while the Mother seeks equal shared parental responsibility, as the remarks already record, and the submissions make clear.
One further procedural wrinkle needs to be set out immediately. The Mother’s submissions raised the procedural issue of the Father’s “changed” position regarding, among other things, parental responsibility. Fairly and properly, the issue of seeking “leave” under the Rules to amend Orders sought was raised. “Leave” was addressed by the ICL in her submissions, and likewise in the Father’s. The Court re-listed to matter to canvass such issues generally and “leave” in particular. In the result, however, all parties and the ICL, came to a “consent position”, which was reflected in Consent Orders made on 19th February 2024, granting leave to both the Father and the ICL to amend their respective positions in relation to parental responsibility.
As set out in detail in the course of these reasons, in my view, the evidence plainly points to the Father, as primary carer of the children, having sole parental responsibility for them. Given the very large geographical distance between the parties, and that the Father has day-to-day responsibility for the girls living with him, in my view it is also nonsensical for any Order other than for him to have sole parental responsibility. He is to consult with the Mother in relation to major long-term issues, but otherwise, he shall have the final decision-making authority. Unsurprisingly, matters of geography necessarily must play an immense role in both decision-making, and in relation to “spend time with” arrangements for the children and the Mother. Also, for the reasons that follow, the Orders proposed by the Father in this regard are likewise, in my view, in the children’s best interests. It would seem that, on the Mother’s latest submissions, she now agrees with the Father’s proposal. That being the case, those Orders can be made by consent.
In the light of the various concessions made, post-trial, the genuine narrowness of issues, and in the light of the immense geographical distance between the parties (Brisbane and City D), the few matters in dispute could have been determined just on submissions. Of course, for more abundant caution, the evidence of the parties will be traversed even though at that time, the issues were very significantly broader and highly contested.
Put another way, and with no criticism (express or implied), what began as a severe, dramatic and ingrained parenting contest, very much petered out. One hates to think how much it cost the parties, in every respect, apparently now as things have turned out, almost needlessly. It all ended, as Eliot said in his famous Hollow Men, the litigation (not the world) ended “not with a bang, but a whimper.”
Orders sought
Following the Final Hearing, the Father attached an Amended Minute of Orders Sought to his Written Submissions filed 16th November 2023 to replace the Orders sought prior to the Hearing. As already noted, discussions regarding leave to amend. In the light of the new, agreed position of the parties and the ICL, the Court asked for an updated Minute of Orders that reflected the areas of agreement, and the remaining issues. This Minute was provided to the Court on 14th March 2024. Although the Independent Children’s Lawyer is recorded in this document as being ‘in support’ of the Father’s Orders sought, her position should be read in line with her submissions filed on 21st December 2023 and outlined further below. The Consent Minute, which summarises the position of everyone, and which obviates the need to set out the earlier contested positions of the parties, was as follows (emphasis in original; footnotes omitted):
MINUTE OF FINAL ORDERS INDICATING ORDERS AGREED BY PARTIES AND ORDERS NOT AGREED AND REQUIRING THE COURT’S DETERMINATION
ORDERS AGREED:
Previous parenting orders
1.All previous interim parenting orders are discharged.
Parental Responsibility
2.[CONTESTED]
3.[CONTESTED]
4.[CONTESTED]
Time Arrangements
5.The children shall live with the father in [City D].
6.The children shall spend time with the mother during the school term as follows:
(a) On the third weekend of the school term, from 4pm on Friday until 9am or the commencement of school the following Monday, in the event the Mother travels to [City D]; and
(b) On the seventh weekend of the school term, from after school on Friday until Sunday evening with the Mother and the Mother provide the Father with 14 days’ notice of whether time is to occur in [City D] or Brisbane; and
(c) For the purpose of Orders 6(a) and 6(b), the mother is to provide the father with written notice of her intention to spend time with the children not less than 14 days prior to the time occurring or such time shall not proceed.
7.The children shall spend time with the mother during school holiday periods as follows:
(a) During the term 1, 2, and 3 school holidays, for a period of 10 nights, commencing the first day of the school holiday period as defined by these Orders; and
(b) During the term 4 / summer school holidays;
i.In 2023 and each alternate year thereafter, for the second half of the term 4 / summer school holidays; and
ii.In 2024 and each alternate year thereafter, for the first half of the term 4 / summer school holidays.
8.For the purposes of Order 7 above:
(a) The school holiday period will commence at 10:00am on the day following the last day requiring attendance at school and conclude at 3:00pm on the Sunday prior to the first day of the following school term;
(b) For the avoidance of doubt:
i.The term 4 2023 school holidays shall commence on 15 December 2023, and conclude on 28 January 2024; and
ii.The term 4 2024 school holidays shall commence on 21 December 2024, and conclude on 2 February 2025.
(c) For the purpose of Orders 7(b):
i.Changeovers shall be 3pm on the middle day of the school holidays period as defined by the immediately preceding order; and
ii.In the event there is an odd number of days in any school holiday period as defined by these Orders, the following shall apply:
A. In 2023 and each alternate year thereafter, the children shall spend the additional day with the father; and
B. In 2024 and each alternate year thereafter, the children shall spend the additional day with the mother.
(d) The mother shall book and pay for all return airfares and other costs associated with her and/or the children’s travel to and from Queensland.
IT IS NOTED that all references to time in these Orders shall be taken to be the time that applies in [City D] at the relevant time and includes both AEST and AEDT as the case may be.
Special Occasions
9.Notwithstanding the above Orders, in the event both parents are in [City D] and the children are not otherwise in the care of the mother, the children shall spend time with the mother on special occasions as follows, unless otherwise agreed by the parties in writing:
(a) On [Y]’s birthday from 3:30pm until 8:30pm;
(b) On [X]’s birthday from 3:30pm until 8:30pm;
(c) On Easter Sunday, for no less than five hours as agreed between the parties in writing, and failing agreement between 3:30pm and 8:30pm;
(d) On Christmas Day, for no less than five hours as agreed between the parties in writing, and failing agreement between 3:30pm and 8:30pm;
(e) On the mother’s birthday from 3:30pm until 8:30pm; and
(f) On the weekend on which Mother’s Day falls, from 10:00am on Saturday until 4:00pm on Sunday.
10.For the purposes of Order 9 above, if the mother wishes to exercise her time with the children on the above special occasions she shall provide written confirmation to the father of her intention to do so not less than 14 days prior to the special occasion or such time shall not proceed.
11.In the event both parents are in [City D] and the children are in the care of the mother, the mother shall facilitate the children spending time with the father on his birthday for no less than five hours as agreed between the parties in writing and failing agreement between 3:30pm and 8:30pm.
IT IS NOTED that Orders 9 to 11 hereof are not intended to prevent either parent travelling during their time with children pursuant to Orders 6 to 8 hereof.
Changeover
12.In relation to Orders 6(b) and 7 above, the children will travel to Queensland from [City D] Airport via airplane and unaccompanied as follows:
(a)With the mother to book airplane tickets for each child and with the flight to be scheduled depart [City D] no later than 8:00pm and not to take place during school hours;
(b)With the mother to be solely responsible for the costs of the airplane travel;
(c)With each party to complete any paperwork necessary to allow the children to travel unaccompanied via airplane;
(d)With the father to deliver the children to the [City D] Airport with sufficient time for the children to check in and board the flight unaccompanied;
(e)With the mother to collect the children from Brisbane Airport at the time of their arrival;
(f)With the mother to provide to the father a copy of the booking details confirming fully paid return flights no less than 14 days prior to the children’s time with the mother commencing pursuant to these Orders; and for copies of the tickets to be provided with 24 hours of the tickets issuing to the mothe.;
(g)For the purposes of Orders 7(a) the mother is to return the children to the father by 3pm on the last day that the children are in her care pursuant to those Orders; and
(h)For the purposes of Orders 7(b)(ii) the mother is to return the children to the father by 3:00pm on the middle day of the school holidays period as defined by Order 8.
13.In the event the mother fails to comply with Order 12(f) hereof in full, or where the mother books and pays for return flights that provide for the children to travel on dates contrary to those which are provided for in these Orders, then the father is at liberty to retain the children in his sole care until such time as the mother provides the father with:
(a) Confirmation in writing that the children will be returned to the father’s care in accordance with the time provided for in these Orders; and
(b) Copies of the children’s fully paid return flight information and tickets that provide for the children to be returned to the father in accordance with the time provided for in these Orders.
14.In relation to Orders 6(a) and 9, changeover shall occur at the children’s school, and where this is not possible, the mother shall collect the children from the father’s residence at the commencement of the time and return them to the father’s residence at the conclusion of the time, unless otherwise agreed between the parties in writing.
Communication
15.The parties shall facilitate the children contacting the other parent via telephone, Facetime or any other form of electronic communication:
(a) On Wednesday and Sunday evenings between 7pm and 8pm, unless otherwise agreed in writing; and
(b) At any reasonable time requested by the children.
16.The parties shall communicate about matters concerning the children, including in the event of an emergency, in a polite and respectful manner.
Domestic Travel
17.Both parties are permitted to travel domestically with the children provided:
(a) The travel is in accordance with the applicable State / Territory Government travel advice at the time; and
(b) Should the travelling parent intend to travel with the children for a period of more than 3 nights, the travelling parent shall provide written notice to the other parent no less than 24 hours in advance of the travel.
International travel
18.Both parties are permitted to travel overseas with the children during their time with the children scheduled in accordance with these Orders, and neither shall unreasonably withhold their consent for the children to travel, provided that travel is in accordance with the Australian Government’s travel advice published at the time and the travelling parent provides:
(a) Written notice to the non-travelling parent not less than 28 days prior to the intended travel; and
(b) Copies of the following documents to the non-travelling parent not less than less than 14 days prior to the departure date:
i.A travel itinerary, including accommodation details, departure and arrival dates and airline details;
ii.Copies of the children’s fully paid return airfares;
iii.A copy of the children’s travel insurance;
iv.A copy of any relevant visas obtained on behalf of the children for the purpose of overseas travel;
v.A copy of any medical certificate evidencing travel immunisations and/or other medical treatment if required for the children prior to travelling overseas; and
vi.Telephone and email contact details upon which the non-travelling parent may contact the children at all reasonable times while they are overseas.
19.The parties shall ensure that the children retain valid Australian Passports and for the purpose of this Order the parties shall do all things and sign all documents necessary to obtain passports for the children and will renew the children’s passports not less than six months prior to their expiry, with the cost to be shared equally by the parents.
20.The father shall retain the children’s passports and in the event the children are due to travel with the mother, the father will make the passports available to the mother not less than 14 days prior to the children’s intended departure day.
21.The mother shall return the children’s passports to the father within 14 days of her and the children’s return to Australia.
22.Nothing in Orders 18 to 21 prevents the children, or either of them, travelling overseas with their school or associated extra-curricular activities.
Education
23.In the event either parent wishes to change the children’s school(s), the following shall apply:
(a) The parent requesting the change of school shall invite the other parent to participate in a family dispute resolution conference;
(b) The other parent shall respond to the invitation to participate in a family dispute resolution conference within 14 days of receiving the invitation;
(c) The parties shall thereafter attend a family dispute resolution conference as soon as reasonably practical for the purpose of discussing and reaching agreement as to the schools that the children will attend; and
(d) If the other parent does not respond to the invitation to participate in the family dispute resolution conference, or, the parties cannot reach agreement at the family dispute resolution conference regarding the children’s schools, the children shall attend the local public school in the priority enrolment area of the father’s residence.
24.The parties are both permitted to attend the children’s school assemblies, sporting carnivals, performances, parent teacher interviews and all other events that parents are invited to attend.
25.The parties are both at liberty to, and are authorised to, obtain any information relating to the children from any school that the children attend and from any extra-curricular activity provider that the children attend, including copies of reports, progress reports, notices relating to pupils attending the school, letters to parents, invitations and any carnivals, sporting or social functions, notices of any invitations to parent teacher interviews and any other notices directed to the parents.
Medical
The children’s specialist medical appointments
26.[CONTESTED]
27.The father shall provide the mother with no less than 72 hours’ notice (where practical to do so) of any the children’s specialist medical appointments and provide the mother with the opportunity to attend.
28.In the event the mother is unable to attend the appointment, the father is to notify the mother, in writing within 24 hours of the appointment, of the outcome of the appointment and any changes to the child’s treatment plan, including medication and diet.
Other medical matters
29.The parties shall follow the advice provided by the children’s treating medical and allied health professionals, including any dietary advice.
30.The parties shall advise each other as soon as possible by the best available means in the event any of the following occurs:
(a) Either of the children being seriously injured or falling seriously ill;
(b) Either of the children requiring urgent medical treatment by a doctor or ambulance crew; and/or
(c) Either of the children being admitted to hospital.
31.Should either child suffer a serious injury or illness or is required to attend hospital or undergo surgery, both parties are at liberty to attend the treating hospital to visit the child.
32.Where possible, any significant medical procedure that the children are to undergo shall be scheduled at a time that both parties can attend.
33.The parties shall keep each other informed of any change in the children’s health and wellbeing.
34.The parties are both at liberty to, and are authorised to, obtain all records relating to the children and to consult with the children’s treating medical practitioners, hospitals and any other treating professionals to obtain any information they may request. For this purpose, the parties shall list the other parent as a person entitled to receive all information that a parent ordinarily would from the treating health professional.
Other
35.The parties shall not physically discipline, humiliate or shame the children, or allow any other person to do so.
36.The parties shall not encourage the children to call another person mother or father.
37.The parties are to keep each other advised of their address, mobile telephone number and email address and will advise the other within 48 hours of any change.
38.The parties shall not make denigrating or disparaging comments about the other or family in the presence of the children and will use their best endeavours to prevent others from doing so.
ORDERS NOT AGREED
ORDERS SOUGHT BY THE FATHER AND SUPPORTED BY THE ICL:
Parental Responsibility
2.The father shall have sole parental responsibility for medical, dental and allied health issues concerning the children [X], born [in] 2010 and [Y], born [in] 2013 (collectively “the children”), but before he makes a decision in relation to those decisions he shall:
2.1Give the mother reasonable notice of the decision to be made;
2.2Give the mother a reasonable opportunity to express any views she may have on the decision to be made;
2.3Take into account any views expressed by the mother; and
2.4Advise the mother of her decision as soon as practicable, and within 7 days of the making of such a decision.
3.The parties shall otherwise have equal shared parental responsibility in relation to other long-term issues concerning the children.
4.The children shall attend [F School, Suburb G] for their high school education.
26.The father shall be responsible for scheduling and attending the children’s specialist medical appointments.
Orders sought by the Mother
5.The parties have equal shared parental responsibility for [X] born [in] 2010 (“X”) and [Y] born [in] 2013 (“Y”) (“the children”).
6.In exercising their parental responsibility, the parties will consult with each other about decisions concerning major long-term issue affecting the children, including but not limited to:
a. Health – the parties are to keep each other informed and make joint decisions about the children’s health, particularly in relation to surgery, dental treatment, specialist treatment;
b. The children’s religion and cultural upbringing;
c. The children’s education, including the school that they attend; and
d. Any changes to the child/ren’s living arrangements, including a relocation, that would make it significantly more difficult to spend time with either parent.
7.The children attend [F School, Suburb G] for their high school education in the event that the Father will be solely responsible for the fees. Failing the Father being solely responsible for the fees, Order 6(c) applies.
26.The father shall be responsible for scheduling and attending [Y]’s specialist medical appointments noting that [X] currently schedules her own and attends on her own.
The Applicant Father’s evidence
I note, again, that at the hearing, the issues in dispute were very large and highly contested. That is no longer the case. The summary that follows relates obviously to the evidence given by the parties at trial in the context and circumstances that then prevailed. Its relevance now is primarily in relation to the Court’s more general impression and assessment of the evidence of the parties.
At the outset, the Father’s Counsel sought leave to canvass a few matters regarding X’s schooling.
The Father was shown a document which he described as an email that he had sent to X’s house coordinator regarding some difficulties X was having with one of her teachers. He said the Court should have regard to this document as it exemplified the practical assistance that he could provide for the children.
An email exchange between the Father and the extracurricular unit that the children attend was also shown to the Father. The Father said that Y had a panic attack at her extracurricular activity, and the Father was following up in the email to put some support arrangements in place. Next, the Father was shown a text message between himself and a former family friend who was the owner of the property that the Mother and her husband had lived in prior to their relocation to Brisbane. He said that it related to the dates of the Mother’s relocation. Finally, the Father was shown text messages between himself and the Mother’s brother, which he said were relevant as the message exchange had occurred while he was in Western Australia and X had asked for some assistance purchasing sanitary products. The Father had spoken to X and said he was happy to assist her.[2]
[2] T 8 – 11
Cross-examination commenced with questions regarding the personalities of the two children. The Father agreed that X was extroverted, socially confident and passionate and on certain matters, stubborn. He agreed that Y was, academically, a high performer, and that both children were intelligent. He understood that the children had made statements that they would like to live with their Mother in Brisbane. He said that he thought that X had expressed this statement very strongly and had a lot of reasons for this, although he said he had not discussed this in detail with the children. He understood they both missed their Mother a lot and that they could imagine a lot of benefits from being in Brisbane with her. He agreed that their wishes were important and relevant to them, however, he did not think all of their wishes would be ‘resolved’ by moving to Brisbane. The Father said that, recently, the children’s behaviour did not demonstrate a keenness for moving away.[3]
[3] T 11 – 13
The Father confirmed that both parents were in agreement that the children should stay together. Accordingly, he agreed that if one child moved then it should be considered that both of them move together. He did not agree that X was at an age where she could make decisions about where she wanted to live. He said she was comfortable at school with her friendships and has been making future plans in City D in relation to seeking employment and what she might do next year at school. The Father stated that she did not appear to be as stressed or anxious as she had been in the recent past. He also said that the children had both expressed concern over the concept of having to move again, and commented positively about the current house that they were living in.[4]
[4] T 13 – 14
The Father was asked whether he agreed that the children had been on a ‘downward trajectory’ in relation to their mental health over the past two years. He said he thought that the girls had been impacted by conflict between the parents and the relocation of their Mother. He said he agreed that it had been a ‘constant down’, although he said that the children had each had some improvements at different times. He said that Y had improved over the last year. He confirmed that Y had spoken about self-harm in in 2023. He understood that the counsellor had said she had tried to harm herself. He agreed that this was an indication of a decline in her mental health over the last two years and confirmed that over the last 12 months there had been a number of medical mental health records to support this. The Father said that X was exhibiting increasing stress as the conflict with her parents increased, particularly after the relocation of her Mother. He said that she had seemed withdrawn and had anger difficulties within a lot of her relationships. He said that although she had engaged with multiple mental health supports, he did not think she had confidence in their efficacy. However, he said he thought a number of the issues described had reduced and now her mood is much more likened to a “typical teenager.” The Father accepted the description of the children as currently being in a ‘bad way.’[5]
[5] T 14 – 16
He agreed that there were only a few options to ensure that the children spent time with both parents. He confirmed that one option could be that the children could live with him and spend time with the Mother. He agreed, at least in theory, that he could also move to Brisbane or the Mother to City D. If he moved to Brisbane, he agreed that he would be suggesting that the children spend substantial time with each of their parents, however he confirmed that that he had not given this option much thought.[6]
[6] T 16
The Father agreed with the description of himself and the Mother as “two good parents.” He said the co-parenting between them had been amicable initially, however, causes prior to escalation of the conflict were usually around miscommunication or logistics. He said that he had thought that his relationship with his then partner, Ms H, has been a big issue. He had also noticed an increase in the Mother’s concerns around health matters for the children when the COVID-19 pandemic began, which caused conflict around matters of travel.[7]
[7] T 16 – 20
The Father was asked questions around an incident in 2013. The Father said he had drunk too much and vomited one night. He disagreed with the description that he put his fist through the wall. He agreed that an incident had occurred with X in the bath where she had bit him, and he said he reflexively hit her.
The Father disagreed that he disparaged the Mother from pursuing her studies. He said he thought that distrust became an issue in the relationship.[8]
[8] T 20 – 21
It was suggested to the Father that until the parties separated, he had been the full-time breadwinner and the Mother was the primary carer of the children, although she worked full time on occasion. The Father disagreed with this statement. The Father agreed that he had been in Queensland in 2016 for work for a period of three months, and within this period he returned home every weekend. He said that the Mother and nanny support cared for the children. He agreed that he had moved out of home in mid-2016, and separated in September of that year. The parties quickly entered into a Parenting Plan, which he agreed was aspirational in some parts and with hindsight, a bit naïve. The Father said there were no real difficulties until 2020 in following an equal time arrangement.[9] At this time, it should be noted that the Mother was still living in City D.
[9] T 24
It was confirmed that Consent Orders were agreed to by the parties in 2016 over property matters. The Father denied that he had found the sale price of the house unfair, or that he was subsequently angry at the Mother in her workplace due to the property settlement.[10]
[10] T 25
It was agreed that in 2016, health matters of the Mother began to complicate the co-parenting relationship. He said that X’s health matters were already on foot and had been for a couple of years. The Father confirmed that in this year she was diagnosed with medical conditions. He confirmed that she was also diagnosed with an illness in around mid-2018, which was an associated condition which interacted with a pre-existing condition. The Father confirmed that the Mother managed a number of the health appointments but said he would work with her to understand what he needed to do. He said that the only issue around the management of X’s health issues in his view were the Mother’s expectations about what foods she could eat in the household and how that should be implemented. He could not recall any other specific medical management disagreements.[11]
[11] T 25 – 26
The Father was asked whether he was aware of an assessment in 2019 of Y as ‘gifted and talented.’ He was not. He agreed that schooling had become an issue between the parties in 2020.[12]
[12] T 27
The Father said he understood that a diagnosis of medical conditions might exacerbate stress, and conversely that stress would exacerbate X’s medical conditions. He said this was particularly the case with an illness, which he described as a common occurrence with children of X’s combined set of medical issues. He said X had been recommended to a physiotherapist for treatment and was encouraged to investigate counselling or a psychologist. He said it impacted her medical condition.[13]
[13] T 28
It was confirmed by the Father that in early 2020 the Mother was admitted to hospital for a few days with a stress-related condition. He said that by this stage there was increasing conflict between the parties. The Father confirmed that Y had some tests in relation to a medical condition which were returned as ‘borderline,’ so in an abundance of caution, the parties had treated her as if she had an allergy. The Father accepted there were a number of issues to deal with at this time.[14]
[14] T 28 – 29
The Father said that he moved in with Ms H in late 2020. The Father disagreed with the description outlined in the Mother’s Affidavit of an incident in which X had told the Mother that the Father had hit Y in the car. The Father said that he was picking up both girls from school and they had been fighting in the backseat of the car, he had tried to intervene by reaching back and unintentionally hit Y. The Father said he had not slapped X to show how hard he had hit Y. He said he stopped the car and checked on Y to ensure she was okay and apologised to X, who had been upset and concerned.[15]
[15] T 30
The parties attempted mediation in at J Centre in early 2021 and a second mediation with Ms K at L Centre. He confirmed that they had sought to do something about the difficulties they were having with the parenting arrangements. The Father was asked what he thought could have been done to assist their co-parenting. The Father said that it was difficult to answer as their communication was so off-kilter that it would be difficult for them to agree on the colour blue. He said he felt belittled when he had attempted to work with the Mother in a respectful manner. The Father did not think him moving to Brisbane would resolve the communication difficulties. He agreed that if one of the parents made a big concession, it could help to reduce conflict. He said he had attempted to resolve the conflict by commencing the proceedings to put some more structure around the arrangements. He said more recently, additional issues had become more exaggerated. The Father did not agree that the parties were in disagreement about finances or child support.[16]
[16] T 30 – 33
The Father was asked whether there had been an incident in which Y told the Mother that he slapped her because she had been naughty and because she said she hated Ms H. The Father denied this.[17]
[17] T 33
The Father agreed that he had used the Mother’s store accounts in mid-2021 with the children but said it had been an accident. He said that this had been one of the things that had caused disagreement between the parties.[18]
[18] T 33
The Father disagreed that he sat next to the Mother in late 2021 at a function. He said that they sat in the same aisle. He denied that he ‘moved his leg to be in contact with her.’ He denied that any argument had taken place at this event.[19]
[19] T 33 – 34
The Father accepted that the Mother was hospitalised on three different occasions in 2021. He understood that she had referenced the anxieties that he caused her as an exacerbation of her existing health conditions. He acknowledged this but said that it felt like an exaggeration. He accepted that the symptoms that she was diagnosed with included fatigue and pain as well as a decrease in mobility. The Father denied that he had said to her that he could ‘put her in hospital at any time he liked without laying a hand on her.’ He said he did not even know she was in hospital at the time that the Mother said he said this. [20]
[20] T 36
The parties met on 8th December 2021 for the Child Impact Report interviews, which he said was during a difficult period between them. He confirmed that he felt the children were being negatively impacted by this conflict. He said that prior to these interviews the Mother had communicated to him about moving to Brisbane only in vague terms. He said she had briefly mentioned it as an idea in late 2020. He said there had been a brief discussion about it and he had said he did not think it would be a good outcome for the girls. He confirmed that in late 2021, the Mother had sent him an email about moving to Queensland. He confirmed that the Mother had included in that email the sentiment that the children were exposed to a lot of conflict and that she would resolve this by moving. He said she essentially left it up to him whether the children would stay with him or move with her. He confirmed that she had appeared to be asking him for permission for the children to live with her in Queensland, but if he was not agreeable, they could live with him in City D. The Father confirmed that in the circumstances, the fact that the Mother had moved had made the situation more upsetting for the children and hence more difficult for the parties. He confirmed that “difficult” was an understatement.[21]
[21] T 41
The Father confirmed that he was aware that a factor in the Mother’s move to Brisbane was the assistance it could provide with her health conditions. He said he had only briefly considered moving to Brisbane after she had moved. He said that his main concern with the move was the immediate impact on the children given no arrangements were put in place and X was about to start high school. He agreed, again, that since the Mother has moved, X has wanted to live with her for a period.[22]
[22] T 42
In late 2021, the Father agreed that X got her first period. He agreed that she would have felt more comfortable discussing this with her Mother. He also agreed that the topic of X’s sexuality was very sensitive but said that she had spoken to him about it and was not aware of any conversation that she had with her Mother about it. The Father disagreed that he responded inappropriately when X had discussed this with him. The Father said he made some arrangements for X to see a school counsellor in early 2022 after consulting with the Mother. He said he had done this after seeing X struggling to adjust to change, including the Mother’s move. Due to staffing shortages, X did not see the counsellor for a while. He said he raised the issue with the school a couple of times as X’s adjustment issues were becoming more intense. He said he had become concerned by a number of her behaviours and sought to make a referral to a number of psychologists, and eventually secured a referral to Dr M in early 2022.[23]
[23] T 43 – 44
The Father was asked about an incident that occurred in early 2022. He said there had been an argument where X had thrown an object at him but could not recall a specific incident. He said there were occasions where X would get upset and walk across the road to the park. He said there was an occasion mid-year where she had left the house and she was not able to be found. The Father was unsure whether, after the remote control was thrown by X, she had contacted the Mother. It was suggested to him that she had said to the Mother that she was hiding in her room as she did not feel safe. The Father said a lot of the fights had been between X and Y, but that some fights had occurred between himself and X. He said he was often trying to intervene in the fights between the children and X would react.[24]
[24] T 45
The Father confirmed that X was not shy in expressing her opinions, and that sometimes they could be expressed in a dramatic way. He agreed that she was sometimes dramatically upset. The Father was asked whether in early 2022, X hurt her finger and he had refused to take her to a doctor. The Father denied this and said that the finger had some swelling and had advised X to take a day or two to let it reduce. He said that within two or three days they had agreed that it needed some professional attention, so they went to a physiotherapist who organised an X-ray and some exercises.[25]
[25] T 46
It was confirmed that the parties had another attempt at Court-assisted family dispute resolution in March 2022. He said they reached a very narrow agreement which was ‘backed out of’ afterwards.[26]
[26] T 46
It was suggested to the Father that in mid-2022, Y had called her Mother and said that she was tired and sad because everyone was fighting so often, and that on many occasions she would hide in her room when the Father and X fought. The Father said this was an inaccurate description of what was occurring at the time. He conceded that he and X did fight at different stages. He said that when X would go to the park she was cooling down and taking herself away from the situation. He said he was not aware of her going anywhere other than the park to do this. He said he would often follow her to the park after a period of time if she did not come back.[27]
[27] T 47
The Father confirmed that in mid-2022, there was a big upset and X ran away and ultimately went to Brisbane. In relation to the incident, the Father was asked whether he agreed that the Mother was on the phone to Y and overheard some yelling between himself and X in the background. He said there was very little yelling. He denied that he had said that X was ungrateful for what he did for her or that he had said to X that ‘everyone was sick of her being a drama queen all the time and destroying everyone’s life.’ He agreed that X had told him to ‘fuck off out of her life’ and barricaded herself in her room. He had then forcibly opened the door, and she was sitting on her bed. He denied grabbing her foot or leg. He agreed the fight had been a big deal for X, and that the following day she ran away. There had been communications between X and the Mother, and the Mother’s partner came to City D as a result. He said that he had not been aware that X had left the house until the next morning and had found the front door open, so he was, in my view quite understandably, very concerned. He had then reported her missing to the Police after he went to look for her, and he contacted her Mother which was when he realised that she was already aware of the situation. He agreed that it would have been good if the Mother had told him earlier than the next day that X had run away. This was, in my view, quite an understatement. The Mother should have informed the Father exactly what was going on with X and her surreptitious “escape” to Queensland, which had been fomented and supported by the Mother. He agreed that it was an indication of the scale of difficulties that the children had experienced in the context of what had happened since the Mother’s move to Brisbane.[28]
[28] T 47 – 50
The Father was not aware of the Mother or Mr N trying to encourage X to return to him in City D. He said that when X had returned home, she was not in trouble, but he had been concerned. He said he was also confused by X’s desire to suddenly go and see Mr N. No voices were raised, and the conversation had been serious, with deep concern. X had been happy and bouncy when she returned and was quickly seeking to spend more time with Mr N. The Father did not think she had appreciated the gravity of the situation and consequences for everyone, which he said was part of the conversation that they had. He denied any allegation that he had been physical with X. He denied that he caused any bruising or injury to X. He conceded that he could have handled the conversation with X the night before much better, and that his statements may have turned into passive aggressive statements, but he said he had not yelled back at her or been abusive in any way. The Father agreed that X had a tendency to embellish accounts of things, and he said that at this point, the ‘embellishment’ was greater than it had been previously.[29]
[29] T 50 – 52
The Father agreed that this could also be explained by X experiencing her emotions very strongly for her age. The Father confirmed that shortly thereafter X had gone to Brisbane and had contacted the Father as she had wanted to buy a Mother’s Day gift, but her bank account was locked. The Father had told X that he had locked her account and she would have to speak with her Mother or stepfather. He said he had locked her out of the account because (a) she had run away and was taken away to Brisbane without his consent, and (b) he was concerned about financial abuse by the Mother with X’s past account. When asked to expand on the latter point, the Father said that the Mother had made an arrangement with X where the Mother would pay for X’s mobile data usage, and X would pay for groceries when she visited. He said that at the time, X had around $180 on this card. He agreed that her card would have been important for X’s independence. The Father denied that X had said he was manipulating her as a result. He also denied that he had become angry and raised his voice, or that he told her she was being brainwashed.[30]
[30] T 54 - 55
The Father confirmed that on Mother’s Day he had intervened in a call between Y and the Mother. He said that Y was confused about the situation with her sister being in Brisbane, and he was concerned that seeing her sister and Mother for prolonged periods on the phone was becoming distressing for her. He stated that he was not discouraging Y from communicating with her Mother or sister. He said they agreed that the calls would be only 10 minutes long and Y was to leave the door open so he could ‘hear the tone.’ The direction was only to Y, as X was in Brisbane and his contact with X was very limited, so he was unable to have such a conversation with her.[31]
[31] T 56
The Father was again asked about X’s responses to arguments in which she ran over to the park. He said that he viewed these occasions as her managing her anger by withdrawing for a period from a stressful situation. He was not aware of any advice received by X from a therapist about doing this. He was unsure whether there had been six occasions since mid-2022 where she had left following an argument. The Father was again asked about the alleged bruising that X sustained following an argument in mid-2022. The Father said that before she ran away, he took her to her appointment with Dr M and they had a brief argument in the car. She had gone to jump out of the car, and he held her arm to keep her from doing so. He agreed that this potentially could have caused some bruising, but she never mentioned any bruising to him. He agreed that he had said various things over a couple of days and series of conversations during this time that he regretted. He confirmed that one of the things said was ‘don’t stay here if you want to keep behaving like that.’ He agreed that these conversations should have taken place when both of them were calm.[32]
[32] 56 – 61
The Father recalled that in mid-2022, X ran away to Ms O’s house. The Mother had contacted a helpline as she had been concerned that X would catch COVID when the Mother was vulnerable and going to see X soon. The Father then agreed that in late 2022, he visited his mother with the children in Western Australia. There had been a big fight, and X ran away. The Father said he tried to follow her but lost eyesight of her. He agreed that his mother had been angry with X and accused her of stealing things. He disagreed that his mother had told her to leave. He said he believed X had stolen food but did not believe she stole money and was unsure about the toiletries. He said he accepted that it was common behaviour for children but said there was a slight difference as some of the food items were a gift that he had bought for his mother.[33]
[33] T 62
The Father confirmed that in early 2023, he had written to the Mother about Y having general anxiety and feeling overwhelmed. On that same day, he said they had a conversation about X lying. He confirmed that in early 2023 he contacted the Mother about Y being suicidal. There were further conversations had during this period about X’s missed schooling due to stomach upsets and headaches. It was suggested to him that X missed a total of 60 days between early 2022 and mid-2023. The Father was unsure, but said he knew she missed 25 days in the first semester. He said this was more than he would have liked, and there had been some communications between himself and the school. He said it had impacted her school-work and assignments. The Father was shown a document produced by the school from one of X’s teachers which stated that X had been leaving school to harm herself and had shown someone at the school. The Father said he was unaware of this specific incident but was aware of two instances after X had returned from her Mother’s care over the summer holidays where she had harmed herself and gave the Father the objects she had used and asked him to help her manage it. The Father agreed this was terribly serious.[34]
[34] T 62 – 66
Questions returned to the incident in Western Australia between the Grandmother and X, where X had sent an image of a bruise on her leg to the Mother. Again, the Father said he was not aware of any bruise. He said that his mother and stepfather had driven to find X and saw her walking near a busy road. X was on the phone when his mother put her arm around her, and he said that X pushed his mother away as she had been surprised, ran away and said not to touch her. The Father was then asked about an occasion in mid-2023 where the Mother had said that Y had informed her that they could not find X. He said there had been a period where Y and the Father could not find X, but there had been no fighting, and that later that day they found her under the cupboards in the stairs watching TV. The Father was taken to another part of the Mother’s Affidavit where it was alleged that the Father and X had a big fight at a public place in mid-2023. He denied this occurred. He said that on that morning though, X had been stressed and yelled at him, but calmed down when they went to the venue.[35]
[35] T 66 – 67
The ICL commenced cross-examination with questions regarding the incident in Western Australia. The Father confirmed that he had read the suggestion by the Family Report Writer that X may have an eating disorder. He said he had not looked into the relationship between anxiety and eating disorders, but he agreed with the concerns about X raised by the Report Writer. He confirmed that he had concerns about X’s eating. He said it had not been sustained over the last six to eight months, but that he had noticed disordered eating for the first three or four months upon her return to City D. He said some of it was simply with her friends, but that some of it involved her hiding in her room and eating when she was stressed. He agreed that stealing food might be part of that behaviour. He agreed that it would not have assisted if there was a dispute about it and blame was put on X. He said he had done a fair bit of research on eating disorders, and the consequences of being dismissive or emotionally distant as a parent.[36]
[36] T 67 – 70
The Father agreed that X was not getting any qualified counselling or psychological support at present, but that she saw a psychologist at the end of 2022. He said he raised it a number of times with her, but she had been resistant, although he had found a program called Q Program which she had been more interested in and was currently in the selection process for. He said that the reasons she gives for not wanting to attend psychology included her friends having negative experiences, although she did acknowledge that if her feelings around self-harming continued, she would contemplate going to see a psychologist.[37]
[37] T 70
The Father agreed that currently he was acceding to X’s wish not to have any therapeutic engagement. He agreed that the Report Writer would likely suggest she absolutely needs therapeutic support. He confirmed that he was prepared to insist upon this notwithstanding her views. He said he had not done this as the Mother was quite against counselling and psychological support and had felt that she might undermine X’s perception of its value. He said he did not want to put X into another situation where she was caught in a conflict between the Mother and himself.[38]
[38] T 71
The Father was asked why, if he agreed that X needed support but did not engage in it for her because of fear of conflict between the parties, he was still seeking an Order for equal shared parental responsibility. He said that he still had concerns about how it would work in practice. He agreed that an option might be to have a ‘fallback position’ if a decision could not be made between the parties, whereby one party would be entitled to make the final decision.[39]
[39] T 71 – 72
The ICL briefly explained to the Father the psychologist documents in relation to Y. He said he had not read them. The documents stated that the Mother had given the psychologist some information, including that the Father was diagnosed with a mental disorder. The Father said this was news to him. The Father was asked whether there had been any AVO taken out by his first wife against him. He said there was not. He confirmed that this was an example where the Mother was undermining the psychological assistance that the children received. He confirmed that now, he was concerned about continuing to ask the Court for an Order for equal shared parental responsibility.[40]
[40] T 72 – 73
The Father said that he got into a relationship with Ms H in 2017 and that they moved in with the girls in 2020. The relationship ended in late 2022. He said it was an amicable separation. The Father confirmed that he reflected on the difficulties that living with Ms H would have on the girls. He said that he thought the girls had gotten better in ‘general terms’ when they moved into an independent house.[41]
[41] T 73
The Father confirmed that the evidence suggests that Y’s mental health is currently worse than it was, and that X has some serious problems that are not being addressed. It was suggested to him that the Report Writer had thought the Mother inducing the children to come to Brisbane may not change even if the children were to live primarily with the Father. He said that he thought the main influence on Y’s mental health was the prolonged conflict between the parents. He said he still thought it prudent that the children had a relationship with their Mother, because not doing so would be a fundamental bridge too far. The Father confirmed that it caused him concern that the Report Writer had said that Y is at a high risk of psychological difficulties in the future if the conflict does not resolve. He accepted that one of the ways to resolve this conflict might be to accede to the children’s wishes, but he said he would be concerned about the problems that might arise as a result. He said that in his household, the children had come up with a solution to reduce the conflict between themselves which was to change rooms. He said he would also have to change his work arrangements to be more flexible and less stressed when he was with them.[42]
[42] T 73 – 76
The Father said he had done two parenting courses and had been attending counselling up until a month prior to the Final Hearing. The Father said that Y’s high school would likely be another area of conflict if the Court ordered equal shared parental responsibility, so he had not yet discussed with the Mother which school she would go to.[43]
[43] T 77
The Father confirmed he would commit to any suggestions that the ICL might make about him obtaining further information and about dealing with children with Y’s vulnerabilities and potentially teenagers with the beginnings of eating disorders. He accepted that there may be some critical issues for the children that they were not necessarily willing to discuss with him. He further confirmed that he would be willing to commit to obtaining some counselling or other assistance or support for himself.[44]
[44] T 78
In my view, the Father was a very good witness. He was balanced and realistic in his assessments of the children and of his own capacities and vulnerabilities. He made concessions appropriately and readily. He was quite phlegmatic, stolidly calm, practical and focussed in his appreciation of issues and in his problem-solving, particularly in relation to the children. As noted above, he acknowledged that X can be, and regularly is, dramatic, and that she embellishes things. In general terms, I quite strongly prefer the Father’s evidence over the Mother’s regularly and needlessly combative, and equally regularly theatrical evidence. At times, as noted below, she was quite histrionic in the witness box, where there were pronounced, dramatic pauses, for no obvious reason. The Mother claimed that X’s dramatic flair came from the Father. On the evidence of the parties at trial, the Mother had great theatrical capacity. Very long, dramatic pauses in the course of her evidence were one of many unhelpful features of it – on which more later. Somewhat curiously, the Mother seemed not to be aware of her own theatricality.
The Respondent Mother’s evidence
The Mother confirmed that she is, in her own words, a professional at the R Organisation in City D. She said that from hereon her employment was permanent full-time, although the formal offer had not yet come through. She said she was currently doing her post-graduate studies at university.[45]
[45] T 80. For my part, given how contested everything was, and in the Mother’s evidence itself it was not infrequently as clear as one would like or expect, I thought it was perhaps a little surprising that no documentary evidence was provided to set out some of the basic matters here (e.g. employment, course of study etc).
The Mother said that she had a 12-month contract with the R Organisation in City D, which was renewed last year, but that she was told that it was due to expire and would not be renewed. She confirmed that she was offered casual work with the R Organisation in late 2021. She said that although her contract was not renewed, she had other casual professional work as well. Since the end of 2021 until now, the Mother confirmed she continued to be employed by the R Organisation. She confirmed that she had inferred in her material that one of the reasons that she moved to Brisbane was for employment opportunities. The Mother confirmed that her primary source of income over the last year was from the R Organisation.[46] Not the first of some obvious inconsistencies in the Mother’s evidence, accepting that this part certainly bears on no particular parenting issue.
[46] T 80 – 81
The Mother confirmed that she attended upon the family consultant for the child-inclusive conference in late 2022, and that she had not spoken about any proposals to move to Queensland. One would have reasonably thought that such a dramatic move would have been raised with the Family Consultant, Ms S. She said that she had told the children in late 2022 that she was moving. The children were also seeing Ms S on that day. She confirmed that they were aware of the conflict between the parents. She said she had ongoing discussions about what might ‘happen next’ with her and her partner in terms of their living arrangements. However, she then said that she only formed the actual intention that she was going to move to Brisbane in late 2022. She said that she put together plans to move the following month. She confirmed that this did not give the children much time to adjust. She said that both children’s mental health had decreased since this time, and partly because of this.[47]
[47] T 81 – 83
The Mother confirmed that she had not gone to mediation with the Father to attempt to work out parenting arrangements, did not have any Orders in place and had not amended the Parenting Plan to suit her move to Brisbane. It was suggested to the Mother that she had told the children that the decision about whether or not they could live with her in Brisbane was the Father’s. The Mother denied this. The Mother denied having put pressure on the children to achieve her agenda of having them move to Brisbane. She also denied putting a safety plan in place with X. It was suggested to the Mother that the Report Writer had stated that this was the case. The Mother said the Report Writer got it wrong.[48]
[48] T 85
The Mother said that one of the reasons she moved to Brisbane was to minimise conflict. It was not immediately clear how such a move would achieve this goal. She disagreed that one of the ways to minimise the conflict was to formalise the arrangements that had been in place for 18 months. She accepted that continuing these proceedings had not assisted with the conflict, and that taking X to Brisbane without the Father’s knowledge did not help either. She said that since her move to Brisbane she had attempted to negotiate with the Father and that she and her husband had attended a child psychologist. She said that, now, she thought that there was nothing in her behaviour that was impacting the children’s relationship with the Father. She said her behaviour changed when X ran away, and thereafter she supported the children’s relationship with their Father. It was suggested to the Mother that X still refers to her Father in text messages to her as a ‘fuckwit.’ The Mother said that she does not engage when X refers to the Father in this way. She accepted that there might be a more fundamental problem that her daughter feels at liberty to communicate with her in such a disparaging way about her Father. She denied that this could be because X had ‘got the message’ from her that speaking in this way is okay, or that she welcomes this behaviour.[49]
[49] T 85 – 86
It was agreed by the Mother that she had engaged in a number of conversations with X about the Father. She denied that she had spoken to X about the Mother’s perception that she was a victim of family violence. She then said she had explained to X that she found her relationship with the Father difficult, but that in the last year she had tried not to reinforce those conversations.[50]
[50] T 86 – 87
The Mother said that she attended a psychologist in Brisbane named Ms T in Suburb U but was unable to provide the name of the practice. She had not provided any authority or copy of the records from this practice. The Father’s Counsel made a call for this [potential] evidence.[51]
[51] T 88
The Mother denied that she had any conversation with X about the Father being a narcissist. She said she was aware that X had described the Father as such in the Family Report. She also accepted that she had described the Father as a narcissist. She confirmed that she had said this about the Father when he was trying to get psychological assistance for Y, and she had said that the best way to ‘cure Y’s difficulties’ would be to bring Y to Brisbane. She agreed that the Father had informed her of his intention to seek therapy for Y, but that it took her by surprise. She confirmed that she spoke to the psychologist on 21st March 2023 for an intake interview and consent to book the appointment. She confirmed that she had told the psychologist that there had been significant family violence throughout her relationship and post-separation with the Father, and that she moved to Queensland as a result. She confirmed that she had reported coercive controlling behaviour towards her on the part of the Father, and that he had been diagnosed with a mental health condition. The Mother stated that the parties had attended two sessions with a counsellor in mid-2016 after they separated, and that the counsellor had said he thought the Father had a mental disorder and that the Father agreed at the time. The Mother said the name of this counsellor was Mr V. It was suggested to the Mother that this was not true. The Mother stated that the Father had been lying under oath when he said he had never received a diagnosis of a mental disorder.[52] The Mother’s certitude of, and conviction about, her evidence was notable. I do not share it. It often seemed to be the case that someone with such dramatic flair, as the Mother has, was unused to challenge and in the absence of relevant challenge, simply pressed on, unimpeded (but in certain respects, almost blinded) by their own certitude, always without doubt of any kind. Such persons cannot be wrong; likewise, others, such as the Father, must be at fault or “lying under oath”, even where, as here, there was nothing obviously to be gained by the Father in the alleged lies he has told as asserted by the Mother.
[52] T 88 – 91
Written submissions in reply were filed on behalf of the Applicant on 8th January 2024, and were as follows (emphasis in original; footnotes omitted):
1.These submissions are made in reply to the written submissions filed on behalf of the mother on 14 December 2023.
2.The submissions on behalf of the ICL filed 21 December 2023 are noted and adopted by the father.
Amendment of the father’s position
3.The position of each of the mother and father has changed following the closing of evidence in this matter, although it is properly conceded that there is a qualitative difference between the two insofar as the mother’s amendment is to now concede orders sought by the father at the commencement of trial. The amendment of the mother’s position was not relayed until written submissions were filed on her behalf and only after the father’s written submissions were filed.
4.It is conceded that, unless the Court dispenses with the requirement of r.250 pursuant to r. 1.31, then both parties will require leave to amend the orders sought by them. It is submitted that the Court would grant leave in the circumstances where:
a. The trial came to an unorthodox conclusion, given the final date allocated for the trial was vacated following [Dr B]’s deregistration. Thus, the opportunity that usually presents itself at the conclusion of evidence for the partes to address any refinement or amendment to the orders sought by them did not present itself until the filing of submissions;
b. The issue of parental responsibility was a live one within the hearing itself and canvassed extensively during cross-examination in circumstances where the mother herself was contending for an order for sole parental responsibility were the children to live in Queensland;
c. The mother points to no actual prejudice to her by the amendment and in particular, does not point to further evidence which would be led if the father were permitted to change his case;
d. The mother was on notice of the formal change to the father’s position prior to final submissions being made on her behalf, and the submissions filed thoroughly and competently engage with the question of parental responsibility.
5.Further, it is submitted that issues of procedural fairness to the mother are otherwise ameliorated by the fact that:
a.the ICL has advanced her own independent position as to parental responsibility in her written submissions which foreshadows [at 40] that the Court may consider it more appropriate that the father hold sole parental responsibility for all issues, which is a position that the father does not seek to be heard against;
b.The submissions of each of the parties concur that the Court is not bound by the terms of the parties’ positions subject to procedural fairness requirements ((U v U (2002) 211 CLR 238 at [30]; Scarlett & Bradshaw [2019] FamCAFC 184 at [22]). It is properly conceded on behalf of the mother [written submissions at [15]] that his Honour gave notice that consideration of a contrary order being made to that sought by the parties that stage of proceedings was being contemplated by him.
6.The basis for the father’s position as to parental responsibility was set out [23]-[28] of the father’s primary submissions. It is important to note that the father’s proposal will require consultation with the mother prior to making a decision in exercise of parental responsibility in relation to medical, dental and allied health care although he holds ultimate decision making in the event of disagreement. Orders 27 and 28 proposed by the father clearly contemplate the mother’s ongoing involvement with respect to the children’s medical appointments. Hence, the fact that the children may feel more comfortable discussing certain issues with their (which is not to say that they cannot and do not discuss such issues with their father) is not a basis upon which the Court would conclude that an order for equal shared parental responsibility was in the children’s interest, particularly where it remains open to the mother to relay such information to the father or practitioner directly [mother’s submissions at [44]-[45] & [54]].
7.The Court would otherwise reject the speculation that the father may seek to exercise any sole parental responsibility in a “high handed” manner [mother’s submissions at [50]] in circumstances where the evidence at trial does not support such a proposition. It is further observed that such a proposition is otherwise inconsistent with the father’s proposal for consultation with the mother and her continued involvement in medical, dental and allied health matters for the children.
Weight to be afforded to [Dr B]’s report
8.It is suggested on behalf of the mother that the father seeks weight to be placed on [Dr B]’s report [written submissions at [49]] and on this basis seeks for the Court to have regard to the opinions expressed by her in Ex. DrB2, whilst nevertheless maintaining no weight should be placed on her evidence [at [48]].
9.The position of the father with respect to [Dr B]’s report is set out clearly at paragraphs [3]-[7] of his primary submissions. It is not contended by the father that the Court would place any weight on any of the views, opinions or recommendations expressed by [Dr B]. The limited utility of the report, consistent with the order made on 19 October 2023 was set out at paragraph [6] of the primary submissions.
Enrolment at [F School]
10.It appears from the written submissions that each party concurs with [Y]’s enrolment at [F School] for high school [at 55], the mother’s concession being conditional upon the father meeting all of [Y]’s school fees on the basis that she will be solely meeting the costs of the children’s travel for the purpose of exercising time with her. The father does not concede the mother should not meet these costs when she continues to be responsible for the costs of [X] attending the same school.
Outline of Principle
The following summary of principle has been prepared for various other parenting matters, and subsequently updated. It remains apposite for the current matter.
In AMS v AIF, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[98]
[98] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[99]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[99] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ were in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments remain important.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in the Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[100]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[100] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
It is also important to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have due regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[101]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[101] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[102]
[102] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], admittedly in a different context to what is the situation in the present proceeding, where his Honour said (emphasis added):[103]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[103] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[104]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[104] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[105] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].[106]
[105] McCall v Clark (2009) 41 Fam LR 483.
[106] Sigley v Evor (2011) 44 Fam LR 439.
Subject to what is said below, the repeated reference in the cases mentioned to the quality of a parent-child relationship is not relevantly dependent upon the quantity of the time spent between the two.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):[107]
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
[107] Sigley v Evor (2011) 44 Fam LR 439.
In addition to the principles already outlined, because of the unique and delicate issues in this matter, the following further principles should be noted.
First, in Bondelmonte v Bondelmonte, the High Court confirmed that as important as it is to have regard to a child’s views, they are but one of a range of considerations under part VII of the Act, nor is a Court bound to follow any such views.[108]
[108] Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34] – [35] and [43]. Of course, in considering a child’s views, the Court should also be mindful of potential consequences if Orders are made that are contrary to any expressed views of a child or children.
Secondly, it is also the case that issues of relevant “risk” can apply to situations that concern various kinds of pressure that are brought to bear on a child or children that does not otherwise constitute either physical or sexual abuse. Thus, In the Marriage of R, the Full Court said, at [177] – [179] (emphasis added):[109]
[177] For our part, we echo the view expressed by the trial judge of the serious nature of depriving the father of contact in circumstances where that appears to have been engineered by the mother, without any fault on the part of the father at all. This cannot be in a child's best interests.
[178] It also does not appear to us to be appropriate for a parent to be able to manipulate the family law system to such an extent that the other parent's hope of ever seeing the child again, rests upon the possibility that she may wish to seek him out in later adolescence or adulthood.
[179] We think that a Family Court would not be doing its duty if it were to simply give in to these sorts of considerations, except in the most extreme case and only then, when a positive determination is made that the welfare of the child requires it.
[109] In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230.
Issues and assessment of “risk” (not necessarily relating to any physical or sexual abuse) may be relevant to a parent’s general parenting capacity.[110] In the current matter, it is “parental capacity” that is a central issue. In this regard, it is useful to record comments, now of a little age, from the decision in Kress, where Goldstein J said, at 319:[111]
Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
[110] Among other places, see the Full Court decision in Partington v Cade (No.2) (2009) 42 Fam LR 401 at [48] and [[56].
[111] In the Marriage of Kress (1976) 13 ALR 309.
Consideration & disposition
Given the more recent, post-trial agreement between the parties (notably regarding the children to remain living with the Father in City D), plus the other concessions (even qualified ones) by the Mother, the scope of issues for the Court to determine is very narrow indeed. While such agreement does not absolve the Court of considering relevant statutory provisions and considerations under the Act, in all of the circumstances here, quite a number of such matters can be dealt with rather more summarily.
I will deal firstly with the issue of parental responsibility. With the children now continuing to live primarily with the Father in City D, the Mother seeks an Order for equal shared responsibility. At various stages throughout these reasons, I have noted (summarised here), among other things, (a) the need for practicality in decision-making in circumstances where the communication between the parties is regularly if not utterly fraught, and (b) the Mother’s insight into parenting matters can be regularly and properly characterised as chaotic, often self-centred and self-serving, completely imprudent, and certainly in one graphic instance involving X, conniving and manipulating.
I have also recorded that in view of the children continuing to live primarily with the Father in City D, and the Mother living in Queensland, as a matter of logistics, especially but not only for day-to-day matters, it is much more realistic for the Father to have sole parental responsibility for all major, long-term issues regarding the children. In seeking sole parental responsibility for health and education issues, which the Father does (regarding both children to complete their education at F School), as the ICL notes (par.40 of her submissions), it almost makes no sense to leave things at that because there is so little “left over”, as it were. Better, she submits, to give the Father sole parental responsibility across the board. I agree. It is not only more practical; it is also in the children’s best interests for this to occur. In addition, the Father’s evidence, across the board, was fair and child-focussed.
The only qualification regarding parental responsibility is that the Father is to consult with the Mother (the Father and the ICL agree with such a course also). However, given how fraught such a procedure is likely to be, the consultation and response must be, absent issues of emergency, limited to no more than 7 days. If there is no response from the Mother within that time, the Father may proceed without more ado. Once a decision is made, within 14 days (again absent matters of genuine urgency), the Father is to advise the Mother of his decision.
If they are not already doing so, absent matters of emergency, the parties are to communicate only by using a parenting app.
Having determined the issue of parental responsibility, it rather makes any issue regarding what high school Y attends somewhat moot. In this regard, I note that in the Mother’s submissions (at par.55), she confirmed that she was not opposed to Y attending the same High School as X, but this was conditional upon the Father paying for all of Y’s school costs. As the ICL noted, this was at least unusual because the Mother contributes to the cost of X’s education. The Mother’s position was complicated further because, as noted above, her evidence about her income was less than pellucidly clear, notwithstanding her various positions at different universities.
In my view, it is proper, and indeed just, that each parent pays half of the educational costs of both of their children. Put another way, it would be highly unjust if there was some contribution by the Mother towards X’s education but nothing towards Y’s. As noted throughout these reasons, from time to time, Y has felt somewhat left out and alone, being treated differently to her older sister by her Mother, the sad and disorienting “night flight” to Brisbane by X being a prime example. Ms S records other instances in her Report, which the Mother was unaware of, if not almost bemused by. Not to share the cost of education for both girls would risk further preferential treatment of one child over another. This could jeopardise or at least strain, not for the first time, Y’s relationship with the Mother.
Therefore, in addition to the Orders to be made by consent noted at the outset of these reasons, the few remaining issues determined here are, in my view, clearly in the best interests of the children.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 21 March 2024
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