Mulliner & Riggs (No 2)
[2024] FedCFamC2F 367
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulliner & Riggs (No 2) [2024] FedCFamC2F 367
File number(s): MLC 8006 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – final parenting orders – ex tempore reasons – application for equal time changed at last minute – dispute was whether school term there should be a 6/8 arrangement or a 5/9 arrangement – child with special needs – previous cooperative arrangement between parents ended when one sought to relocate with child and other overheld child – two good but different parents – orders for 8/6 arrangement Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA and 65DAA Cases cited: Adamson & Adamson (2014) FLC 93-622
Fox v Percy (2003) 214 CLR 118
Division: Division 2 Family Law Number of paragraphs: 66 Date of last submission/s: 5 March 2024 Date of hearing: 4-5 March 2024 Place: Melbourne The Applicant: Mr Mulliner Counsel for the Respondent: Ms Juneja Solicitor for the Respondent: Cathleen Corridon and Associates ORDERS
MLC 8006 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULLINER
Applicant
AND: MS RIGGS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.That all previous parenting orders are discharged from Thursday 14 March 2024.
AND THE COURT ORDERS BY CONSENT THAT:
2.The parents, Mr Mulliner (‘the Father’) and Ms Riggs (‘the Mother) have equal shared parental responsibility for the child X born in 2012.
AND THE COURT ORDERS THAT:
During school term
3.Commencing Thursday 14 March 2024, during school term, X live with the Father from after school Thursday until the commencement of school the following Wednesday, and each alternate week thereafter at those times.
4.That X otherwise live with the Mother.
AND THE COURT ORDERS BY CONSENT THAT:
During school holidays
5.X live with and spend time with each parent during school holidays as follows:
(a)For half of the school term holidays as agreed between the parents and failing agreement with the Father to have the first half in even numbered years and second half in odd numbered years with changeover to occur at 10:00am on the middle day of the holidays and the Mother to have the second half in even numbered years and first half in odd numbered years;
(b)For half of the long summer holidays as agreed and failing agreement on a week about basis, commencing with the Father in even numbered years and with the Mother in odd numbered years, with changeover to occur at 10:00am on a Monday.
6.X spend time and communicate with each parent for special occasions as agreed and failing agreement as follows:
(a)With the Father on Father’s Day weekend from 12:00pm on the Saturday before Father’s Day until commencement of school the next day following Father’s Day;
(b)With the Mother on Mother’s Day weekend from 12:00pm on the Saturday before Mother’s Day until commencement of school the next day following Mother’s Day;
(c)For Easter in 2023 and all odd numbered years thereafter:
(i)With the Mother from 5.00pm on the Thursday before good Friday until 5.00pm on the Saturday after Good Friday; and
(ii)With the Father from 5.00pm on the Saturday after Good Friday until 5.00pm on Easter Monday.
(d)For Easter in 2024 and all even numbered years thereafter:
(i)With the Father from 5.00pm on the Thursday before good Friday until 5.00pm on the Saturday after Good Friday; and
(ii)With the Mother from 5.00pm on the Saturday after Good Friday until 5.00pm on Easter Monday.
(e)For Christmas in 2025 and all odd numbered years thereafter:
(i)With the Father from 3.00pm Christmas Eve until 3.00pm Christmas Day and;
(ii)With the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day;
(f)For Christmas in 2024 and all even numbered years thereafter:
(i)With the Mother from 3.00pm Christmas Eve until 3.00pm Christmas Day and;
(ii)With the Father from 3.00pm Christmas Day until 3.00pm Boxing Day.
(g)On the child’s birthday the parent who does not have the care of the child on that day spends time as agreed and failing agreement:
(i)On a school day from the conclusion of school until 7:00pm;
(ii)On a weekend from 10:00am until 2:00pm.
(h)On the parent’s birthday if the child is not already spending time with that parent then time as agreed and failing agreement:
(i)On a school day from the conclusion of school until 7:00pm;
(ii)On a weekend from 10:00am until 2:00pm;
(iii)Any other special occasion as agreed between the parents.
7.The routine of school term time shall resume thereafter as if the school holidays and special occasions had not intervened.
8.The parents communicate via text message or email, save for in the event of an emergency by telephone.
9.Both parents ensure that the child takes any prescribed medication whilst he is in their care with the Mother to ensure that the Father is provided with such medication for the child’s time with him and
10.In relation to medical and allied health issues concerning the child:
(a)Each parent keep the other advised and fully informed as to any medical health issues, including details of any appointments concerning X and authorise the other to liaise with and speak with X’s treating practitioners and any pharmacist dispensing medication about same;
(b)Each of the parents be permitted to, and do all acts and things to authorise the other to, receive copies of all medical, pharmaceutical (chemist) and allied health documents relevant to the child; and
(c)Each parent immediately notify the other in the event that the child suffers a serious illness or medical injury whilst in their respective care; and
(d)The Mother be and is responsible for arranging medication and therapy (if any) for X and keeping the father informed of same in a timely manner and if necessary the Father accept the Mother’s decision about such matters.
(e)The Father be responsible for and pay to the Mother all of her out of pocket expenses for X’s medication incurred in 2024, from this day, and each alternate year thereafter and the Mother otherwise pay for such medication out of pocket expenses and neither party claim any credit or adjustment or alteration by reason of such payment in regard to any assessment of child support.
11.In relation to educational matters concerning the child:
(a)Each parent be entitled, and do all acts and things to authorise the other, to receive copies of all documents normally provided by schools to parents, including but not limited to school reports, newsletters, photographs and any other similar documents provided to parents;
(b)Each parent, and do all acts and things to authorise the other to, be permitted to attend any function or event at the school to which parents are normally invited including but not limited to concerts, sports days, parent teacher interviews and the like.
12.Each party be permitted to, and do all acts and things to authorise the other to, attend all extracurricular events and functions relevant to the child and each party keep the other advised as to such events and provide no less than seventy-two (72) hours’ notice thereof.
13.The parents are to at all times keep each other advised of their current residential address, email address and mobile telephone number with any change in these details to be advised in writing within twenty-four (24) hours of the change.
14.The parents be and are hereby restrained by injunction from:
(a)Using any illicit substances and/or consuming alcohol in excess of a BAC of .05 no less than twenty-four (24) hours prior to the commencement of their time with the child and during their time with the child.
(b)Abusing, insulting, belittling, rebuking or otherwise denigrating or speaking negatively about the child or the other party or any member of their family to or in the presence or hearing of the child, and from permitting any other person from doing so;
(c)Discussing these proceedings with or in the presence or hearing of the child and from permitting any other person from doing so; and
(d)Exposing the child to any form of violence, threats or intimidation and from permitting any other person from doing so.
15.Unless he or she has already undertaken same, the parents enrol in and complete the Tuning into Kids Parenting Program forthwith and provide evidence of same to one another.
16.The child remained enrolled in Town B Primary School unless otherwise agreed in writing between the parties or order of the Court.
17.Both parents be restrained from moving X’s residence more than 45 minutes from their current residence.
18.The parents be restrained by injunction from speaking negatively about the other party or any member of their family within the hearing or presence of the child.
AND THE COURT NOTES THAT:
A.The parents agree that X will be enrolled in Town B High School for his secondary school.
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 EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, and slips in the recitation of evidence, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the mater of Mulliner & Riggs, the question I must decide in this hearing is whether the child X, much loved by his mother and father, should live with his father during the school term each alternate week from Thursday until the following Wednesday morning, that is six nights, and otherwise with the mother, or as the mother seeks, from after school Thursday until the conclusion of school the following Tuesday, that is for nine nights.
Background of litigation
The parties agree upon a great suite of matters including school holiday arrangements where they agree that X should spend half of the school holidays with each parent and the long summer holidays should be unless agreed otherwise a week-about. They agree on special days: Christmas days, school planning, medical matters and the like.
This proceeding was listed before another judge on Monday, 4 March but that judge became ill and that matter was transferred to me. The parties were alerted of the judge's inability to conduct the hearing that day and had been informed that the hearing would be vacated. Subsequent to that the matter became transferred to me by the case management judge which means I take on the case.
In the meantime, the mother had been travelling to Melbourne but once she got the message she turned around and continued home. The father was already in Melbourne. The first day of the hearing was conducted in the courtroom with the father and the mother's counsel in person, but with the mother at home on video link, and I add with a high quality and appropriate video link. That is not always apparent in video links including from lawyers' offices. I am satisfied that that worked quite well. The second day of the hearing continued with both parties in the courtroom with me.
The father was the only witness in his case and the mother was the only witness in her case. Ultimately neither party wished to cross-examine the family report writer who had prepared a report in September of 2023. I have indicated to the parties that I would deliver judgment this afternoon having concluded the substance of the hearing at about 2 pm this day. Because of the detail involved in the matters that the parties were thought to have agreed to, I handed down to the parties a draft version of those parts of the order by consent. That did flush out a matter that had not been previously disagreed but it became disagreed after that.
Mothers residence
The attempt by my associates to put the agreed parts of those orders in one document flushed out the further disagreement. Order 17 states as follows:
Both parents be restrained from moving [X]'s residence more than 30 minutes from their current registered address.
Upon reflection and in the circumstances of Ms Riggs, the mother, looking for accommodation in the circumstances where she will likely have to depart her current rented residence, she wished to change that to 45 minutes for the purpose of keeping more options as to accommodation open. Mr Mulliner opposed that and seeks to keep it at 30 minutes.
In regard to that dispute, in the circumstances of it being common ground that the obtainment of the mother's next rental property in the Town B area will not be easy as it is common ground that there is a limit on suitable rental accommodation in Town B where the parties live. I am satisfied that it is necessary that the mother keep more options open and that the restraint on her residence should be 45 minutes as she seeks, not 30.
The reason I make that decision is because I am satisfied that the mother is a sensible parent and who will seek to minimise the travel for herself from her current work and X's schools and will seek to minimise travel and optimise the enjoyment of life for herself and X. If it is necessary to find suitable accommodation in a further 45-minutes travel, then so be it. Many children travel that distance on a school bus or if they live in the city that time and more on public transport to get to school. Hopefully that does not come to pass, but I accept it is reasonable that Ms Riggs have that opportunity as she seeks.
Child living arrangement dispute
The major decision in this case is whether the father's time should be in a block of six nights or in a block of five nights. It is common ground that at times in the past when the parents were getting on, (and they have at times got on very well as parents and at other times in the past got on not very well at all), that X has lived equal time with the two parents and in particular for a period during “prep” back in 2018. It is also common ground that at times and significant times, particularly when X was a baby, his mother looked after him most of the time and his father saw him as was suitable at those times or what can be called the mother being the primary carer.
The current arrangement that has been in place since January of 2023 is recited in the orders of 25 January 2023.
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THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
Parenting
8.The parties have equal shared parental responsibility for the child, [X], born [in] 2012, (“the child”).
9. The child live with the Mother.
10. The child spend time and communicate with the Father as follows:
(a)in Week 1 each alternate weekend from the conclusion of school Wednesday until the commencement of school Monday;
(b)in Week 2 from the conclusion of school Thursday until the commencement of school Friday.
11.For half of the school term holidays as agreed between the parties and failing agreement with the Father to have the first half in even numbered years and second half in odd numbered years with changeover to occur at 10:00am on the middle day of the holidays and the Mother to have the second half in even numbered years and first half in odd numbered years;
12.For half of the long summer holidays as agreed and failing agreement for the Father to have the first half in even numbered years and the second half in odd numbered years with changeover to occur at 10:00am on the middle day of the holidays and the Mother to have the first half in odd numbered years and second half in even numbered years.
13.In the event that the child is not spending time with the Father on Father’s Day weekend then he spend time with the Father from 10:00am on Father’s Day until commencement of school on Monday;
14.In the event that the child is not spending time with the Mother on Mother’s Day weekend then he spend time with the mother from 10:00am on Mother’s Day until commencement of school on Monday.
15. For Christmas in 2023 and all odd numbered years thereafter:
(a)with the Mother from 3.00pm Christmas Eve until 3.00pm Christmas Day and;
(b)with the Father from 3.00pm Christmas Day until 3.00pm Boxing Day;
16. For Christmas in 2024 and all odd numbered years thereafter:
(a)with the Father from 3.00pm Christmas Eve until 3.00pm Christmas Day and;
(b)with the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day.
17.On the child’s birthday the parent who does not have the care of the child on that day spends time as agreed and failing agreement:
(a) on a school day from the conclusion of school until 7:00pm;
(b) on a weekend from 10:00am until 2:00pm.
18.On the parent’s birthday if the child is not already spending time with that parent then time as agreed and failing agreement:
(a) on a school day from the conclusion of school until 7:00pm;
(b) on a weekend from 10:00am until 2:00pm;
19.The child remained enrolled in [Town B] Primary School unless otherwise agreed in writing between the parties or order of the Court.
20.Both parties be restrained from moving [X]’s residence more than 30 minutes from their current residence.
21. The parties be restrained by injunction from:
(a)Speaking negatively about the other party or any member of their family within the hearing or presence of the child.
(b)Using any illicit substances and/or consuming alcohol in excess of a BAC of .05 no less than 24 hours prior to the commencement of their time with [X] and during their time with [X].
22.The parties communicate using “My Family Wizard” or other parenting App as agreed between the parties.
23.Both parties ensure that [X] takes any prescribed medication whilst he is in their care with the Mother to ensure that the Father is provided with such medication for [X]’s time with him.
24. In relation to medical and allied health issues concerning the child:
(a)each party keep the other advised as to any medical health issues, including details of any appointments concerning the child and authorise the other to liaise with and speak with the child’s treating practitioner’s about same;
(b)each of the parties be permitted to receive copies of all medical and allied health documents relevant to the child; and
(c)each party immediately notify the other in the event that the child suffers a serious illness or medical injury whilst in their respective care.
25. In relation to educational matters concerning the child:
(a)each party be entitled to receive copies of all documents normally provided by schools to parents, including but not limited to school reports, newsletters, photographs and any other similar documents provided to parents;
(b)each party be permitted to attend any function or event at the school to which parents are normally invited including but not limited to concerts, sports days, parent teacher interviews and the like.
26.Each party be permitted to attend all extracurricular events and functions relevant to the child and each party keep the other advised as to such events and provide no less than 72 hours’ notice thereof.
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The father has the block from after school Wednesday until the following Monday, but in addition in the following week has from after school Thursday until the following Friday (by the orders) but by agreement between the parents that was changed to the Tuesday in the other week from July of 2023. The reason for the change in nights, and I accept, is because the child has sports training and the Father is involved in the child’s sports.
The litigation then resumed on the basis of the father seeking equal time as outlined in his Application in a Proceeding filed 21 July 2022
4. The child live with the parties as follows:
A.On a week about basis being with the Applicant in the first week, from the conclusion of school on Friday (or 3pm if Friday is a nonschool day) until the commencement of school the following Friday (3pm if a nonschool day), then each alternative week thereafter; and
B.Week about with the Respondent each other alternative week from the conclusion of school on Friday (3pm if Friday is a nonschool day) until the commencement of school the following Friday (3pm if Friday is a nonschool day) and then each other alternative week thereafter.
Decision of child’s spend time arrangements
By the time of the final hearing before me, the father's position had changed and recited within his outline of case (filed 4 March 2024); rather than equal time, he sought a six-night block.
1. Equal shared responsibility for [X]
2.Child spend time with father each alternative fortnight from conclusion of school Thursday until commencement of school Wednesday the week after.
3. Half of school holidays week on/week off.
4. Evenly shared easter, birthdays, Christmas
5. Both parents to have full knowledge of medication and appointments.
For the reasons that will follow I am satisfied that it is in X's interests that he have the six-night block (including the previous additional day the following week) in one block. The effect of those orders is that X will spend the same amount of nights with each his parents as he does now but that that will be in one block. I will now set out the more detailed reasons why I have reached that conclusion.
There is no complaint in the evidence or observation that the equal school holiday time that has been in place for many years, but in a formal sense since the 23 January 2023, orders has in any way created any difficulty or anxiety for X. He has spent a week away from each parent with the other parent and on the evidence without anything remarkable happening. I am satisfied that X has different but very close and appropriate relationships with each of his parents.
Reasoning for child spend time arrangement
Background of the Father
The father is currently 33-years-old and is employed as a tradesman. He has previously some years ago had some significant mental health issues and was an inpatient at a facility on two occasions. I do not have any medical evidence before me. The father asserts, and I accept, that he frequently and appropriately consults his GP who has treated him for many years. The father's account is that he has been "signed off" in regard to his mental health. I accept this.
In the circumstances where the mother has sought that he have a five-night block during school term and half of school holidays, it cannot be asserted that there is a question mark or any doubt about the father's mental health in those circumstances. The father's circumstance is that he has re-partnered with a Ms C, and that he and Ms C have a daughter K, born in 2023, that is one year old.
Ms C and Mr Mulliner were married in 2023. Ms C was not a witness in the case but Ms C was interviewed for the purpose of the family report interview concluded on in late 2023. Further, the evidence demonstrates that up until a point in time the mother and Ms C themselves had a supportive relationship each to the other.
Background of the Mother
The mother's circumstances are that until late 2023 she had been in a permanent relationship with a Mr E. Mr E is 39 years old and works in the same local township. The parties all live in the same substantial country town.
People from Melbourne, Sydney or Adelaide would call it a small country town but that is largely described that way by people who have not lived in a country town with less than 1500 people. Nonetheless, the opportunity for the parents and their partners and ex-partners and their children to cross paths are significantly higher than in Melbourne, Sydney, Adelaide or Brisbane.
The mother and Mr E have a daughter J who is now one-and-a-half years. The mother is currently living in rented accommodation, but as recited earlier, expects to need to relocate in the near future. Mr E and the mother have ended their relationship as set out within the Mother’s affidavit of 20 February 2024.
8.That overall, my relationship with [Mr E] was positive, and [Mr E] and [X] got along well. However, [in late] 2023, my relationship with [Mr E] began to deteriorate, as [Mr E] began consuming alcohol excessively, and using cannabis on a regular basis. [Mr E]'s alcohol consumption impacted his behaviour, with [Mr E] becoming verbally aggressive towards me. [Mr E]'s behaviour also impacted the children.
9.That I was not supportive of [Mr E]'s alcohol consumption, cannabis use or aggressive behaviour and tried to minimise the children's exposure to it.
10.That I recognised that it was not in the best interests of [X], [H], or [J] to be exposed to [Mr E]'s behaviour. I gave [Mr E] an ultimatum that if he wished to continue to be in a relationship, he needed to stop drinking.
11.[Mr E] did not take the ultimatum well, and his behaviour deteriorated quickly leading me to end the relationship [in late] 2023. On this date, I asked [Mr E] to move out of my home however he refused. I subsequently called Victoria Police who attended my home to remove [Mr E]. Police took no further action once [Mr E] left my property. Thankfully, [X] and [H] were not exposed to this
One aspect of this case is that very important evidence was not contained in a report or in affidavits of either of the parties, but came to light upon pressing by counsel or by Mr Mulliner who appeared as a litigant in person or by me.
Childs needs
In evidence when being tested about his attitude to X's ADHD diagnosis it became apparent that Mr Mulliner treated the administration of that medication most seriously, and even religiously, and adopted a routine in his household for providing that medication.
Unfortunately, Mr Mulliner had never been frank and told the mother of how religiously he administered that medication. That simply left her wondering and worrying about that.
Evidence relating to another topic that incidentally fell out during cross-examination was the father texting the mother and requesting another tablet for that day. That was not contrived evidence or a contrived text message. It was an everyday, ordinary text message between parents that when looked at objectively demonstrates that both parents regarded the administration of medication as important. I do take into account that the court orders of 25 January 2023 and 8 May 2023 compelled the father to administer the medication but, nonetheless, I am satisfied that he adopted the practice of doing so.
In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CC the Family Law Act 1975 (Cth). I must consider the matters described in the act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act.[1]
[1] In the oral reasons provisions and passages from authorities were not read out
60CA Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
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60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
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61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Consent orders
(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Credit of the parties
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van’s wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal upheld their findings.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
In this case I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I rely on the High Court’s decision of Fox v Percy with taking into account incontrovertible evidence or contemporaneous records such as text messages and emails rather than merely or only an assessment of what happened based only on credibility.
The applicant father represented himself and was intelligent and articulate. At times he demonstrated an ability to concentrate intensely on the particular point at hand as he saw it rather than the wider question that he was being asked. It was apparent from the father's evidence and his affidavit material that since at least the middle of 2022 he has harboured a mistrust of the mother in regard to her parenting communications with him.
The other telling evidence that fell out of the case during cross-examination was in the father's cross-examination of the mother, and the apparent breakdown in the relationship between the parties.
HIS HONOUR And I am going to start with in the lead up to this court case, do you agree that you and [Mr Mulliner] had a good relationship?---
[MS RIGGS]:Yes, I do.
HIS HONOUR: Thank you. And that you caught up for lunches and dinners?---
[MS RIGGS]: On a very regular basis. Yes.
HIS HONOUR: On a regular basis?
…
[MS RIGGS]: Very regular. Like, I would say every second day. It was either dinner at my house, or dinner at his house.
…
HIS HONOUR: Has it stopped?---
[MS RIGGS]: Absolutely.
HIS HONOUR: Yes. But when?---’
[MS RIGGS]: When?
HIS HONOUR: Yes. When he started this court case, or before?---
[MS RIGGS]: No. Before.
HIS HONOUR: Okay. How old was [X], when it stopped?---
[MS RIGGS]: He would have been 10.
HIS HONOUR: 10?---
[MS RIGGS]: Or near enough to 10. Yes.
HIS HONOUR: Okay. And when you caught up, including the lunches and dinners, you were civil to each other?---
[MS RIGGS]: More than civil.
I accept the mothers evidence.
The parenting relationship hitherto which and very much to X's benefit fell apart when the mother contemplated moving to Melbourne with her partner or to live with her partner, Mr E, and also with the motivation of getting out of the country town in which she lived.
Confusion as to previous orders
I am satisfied that at that time, and since, the mother did not reflect upon how the father would feel about that and had little empathy for his circumstances were that move to have come to pass. The mother's mistrust of the father is demonstrated in the evidence by the circumstance that the 25 January 2023 orders provided for Mother's Day and Father's Day arrangements but the 8 May 2023 orders provided different arrangements in regard to Mother's Day and Father's Day.
X would go to the other parent the day before Mother's Day or Father's Day so that they could enjoy the afternoon before and wake up at the appropriate parents' house. That happened for Mother's Day 2023 and happened as provided in the orders of 8 May 2023 though those orders had not yet been made. In late 2023, the father texted the mother expecting or understanding her to be conversant with the last lot of orders for the coming Father’s Day. He, consistently with those orders, informed her that he would collect X or he would be dropped off at midday on Saturday, the day before Father's Day, and told her that he had arranged a party for X.
The mother's response was that she would not be at home. It is quite clear and I am satisfied that the mother did not maliciously or mischievously not cooperate with those orders and that from the detail between 23 January 2023 orders and 8 May 2023 orders got mixed up and she thought the January orders applied, not the May orders. That mix up to my mind is minor and inconsequential but it is the sort of thing that happens.
Mistrust of the parties
What is more significant to me is that when the father sent the mother a snapshot of those orders, or at least that part of the orders, the mother did not have regard to that at all and mistrusted him that she insisted that the previous orders were the orders, not the updating orders. Text messages went backwards and forwards between the parties and to their credit whilst each was assertive, there was no bad language, denigration or abuse as is far too common amongst disagreeing parents.
Also significant is that the father then altered his plans and proposed a compromise pick-up time of the evening before rather than lunchtime before. In the end and on the day the mother eventually, I am satisfied, worked out that the father's account of the orders were correct and she made efforts to comply with those orders. In the scheme of X's life nothing turns on whether he turned up for Father's Day of 2023 at lunchtime or at 5 o'clock of the day before or the following morning, but that does demonstrate to me the capacity for the parents to mistrust each other and miscommunicate. The father's mistrust of the mother is also significant.
In final address the father acknowledged the reality that the mother is a good parent.
The other evidence that fell out of the case, not otherwise in reports and affidavit, was the very rich detail of the cooperative parenting arrangement up until the middle of 2022 recited earlier. Each had their own motivation at that point and it is a tragedy how quickly things turned from trust and support to mistrust and unilateral action.
Breakdown of relationship between parties
Fearing that the mother would move with X, the father overheld him and that commenced letters between solicitors.
The mother found the letters from the father's solicitors as threatening. I have got no doubt that they were the ordinary sort of letters that solicitors write in such situations. To family lawyers they are the everyday grist for the mill and I have got no doubt from a legal perspective they would have been courteous. Nonetheless, I completely accept that the mother found them confronting and threatening. They were threatening legal proceedings. The parties had not needed to litigate about X for many years and all of a sudden they did.
I am satisfied, as I discussed with the parents during the case, that the nature of the adversarial proceedings in this case has exacerbated the parenting relationship and the trust that each has of the other.
Previous relationship of the parties
The previous degree of trust between the parents is quite remarkable, as was the degree of frankness in their communications between them. In 2021 at a time when her relationship with Mr E was at a very low ebb, the mother was feeling very out of sorts and upset at the world, including her relationship with Mr E. A friend of the mother's reached out to the father and he sped to her home to see if he could be of assistance.
He stayed for about an hour, enquiring and trying to assist her with her distress. The father says, and I accept, that he recognised the symptoms of the emotional distress and mental distress from his own experiences of the past and assisted by his rehabilitation from those difficulties was at pains to attempt to assist the mother at that time of her distress.
What is also very significant to me is he did not at that time act opportunistically to immediately seize the moment to in any anyway interfere with their agreed arrangement for X's care. At that time X was living with the mother, and having spoken to her the father left X living with her and I am satisfied that he did not come to any harm during that time, notwithstanding the mother being at a low ebb. Thereafter there were detailed texted communications between the parents demonstrating their trust in each other and their regard for each other and their regard for each other's parenting and the settled reasons will not need to recite those text messages. Those text messages were not in evidence in any affidavit and as far as I can tell they were not before the family report writer either.
It is a tragedy for X that his parents' relationship has sunk so far from that demonstrated from the empathy that was expressed from one to the other at that time in 2021, but the parents are human and not saints, notwithstanding that they are very good parents. Those communications between the parents and the fact that Mr Mulliner did not opportunistically jump on the bandwagon of seeking to interfere with the arrangements speak powerfully to me of the cooperative and empathetic parent that Mr Mulliner can be. Those same text messages speak to me powerfully of the very empathetic parent that the mother can be and I use "empathetic" in the sense of having empathy for the other parents' position rather than only their own.
The circumstance where this day, though he only had a few minutes to contemplate it, Mr Mulliner moved from agreeing to the 30 minute restraint, which had been common ground to, then insisting on the maintenance of 30 minutes travel and opposing the 45 minutes travel demonstrates also to me that his empathy for Ms Riggs, the mother, is not always present.
He would do well to continue as he has in the past to look at things from her point of view rather than in a judgmental manner and from my perspective the same applies to Ms Riggs, the mother, in regard to the father.
The family report
The family report recommended the following:
79. [Mr Mulliner] and [Ms Riggs] have equal shared parental responsibility of [X].
80. [X] live with [Ms Riggs].
81.[Mr Mulliner] be afforded spend-time with [X] from Wednesday after school to Monday after school every other week, with Thursday overnight contact to cease.
82.When [X] transitions to high school, and should he consistently engage with therapeutic supports until this time to improve resilience and emotional regulation, spend-time with [Mr Mulliner] could be gradually and incrementally increased over time, until a week-about arrangement has been reached.
83. [Ms Riggs] and [X] remain in the [Town B] area.
84.[Mr Mulliner] and [Ms Riggs] attend a parenting program to assist them with gaining skills in therapeutic parenting to be able to provide a consistent approach to [X]’s care.
85. An online parenting app be utilised to aid communication between the parents.
86.If the parents have not completed a Parenting Orders Program (POP), this would be of benefit to assist them to co-parent more successfully, and especially to assist them to positively navigate disagreements or conflict.
87.[X] continue to engage with a therapist on an approximately fortnightly basis.
I need to re-emphasise the point of the family report was at a time when the father was seeking to reduce X's time with the mother by changing it from the eight nights to seven and at the time of the family report X was spending six nights in the 14 with the father. X's position was that he did not want any change and he did not want to be away from either parent or his mother for any extended period.
At the time of the family report the mother was living with Mr E or at least in a relationship with Mr E and the report proceeds on the basis that that is a stable or stable enough, relationship and although only conceded in final address by Mr Mulliner, he conceded that Mr E was at least most of the time quite a good step-parent in X's household.
The mother's case is that Mr E has at times had a significant problem with alcohol because of his occupation. Such a circumstance is not unknown in society.
The family report interviews were conducted in mid-2023 and the family report came out in late 2023. The mother's account is that in late 2023 Mr E's alcohol consumption escalated dramatically and at this time he left the home where she was. I expressed to her some considerable circumspection about that given that the timing of it was almost immediate after the family report.
Ultimately, because of the manner in which the mother gave her evidence including her generosity of spirit in describing the past relationship with the father's new partner, Ms C, and the father, I accept the mother's evidence in regard to Mr E's rapid descent into alcohol abuse.
It is quite clear that the mother, then acted protectively to ensure that Mr E with his alcohol problems was not involved in X's life. Matters come to a head in late 2023 when, he broke into the mother's home and the mother called the police. He was removed and that has been the end of that relationship.
Fathers wedding with new partner
The events of the wedding of Mr Mulliner and Ms C were quite remarkable. On Mr Mulliner's account all hell broke loose on a very hot day when the respective families of himself and his wife were brought together at their wedding function and on his account very poor behaviour, and alcohol disinhibited behaviour, occurred. Arising out of that it was suggested today that Mr Mulliner has a warrant for his arrest somehow relating to an allegation by his mother or parents of threats to kill. Mr Mulliner, the father, has today once learning of that allegation (only when it was put to him in cross-examination) made enquires with the various police and has been told, and I accept, that there is not a warrant for his arrest.
Further, he assures me that the local police very well know his telephone number and they would have telephoned him if they wanted to arrest him. Ultimately that allegation does not inform me at all about whether the time between X and his father should be a block of five days or six days.
Conclusion
X will soon be 12 and will soon enough be going into secondary school. that it is not in X's interests to reduce the overall time that he spends with his father. I am satisfied that the family report reader's observations of the coming and going, that is four changeovers for X from each parent in each fortnight during school term, may have been disruptive to him. I am also satisfied that the circumstances of the breakdown of the relationship between Mr E and his mother would have also impacted on him.
I am satisfied that he has a close and appropriate relationship with his mother and that his mother nurtures X in a different way to what his father does, but I am satisfied that X has an appropriate relationship with his father. In the circumstances of neither parent any more seeking equal time, it is not appropriate that I examine more carefully and very closely section 65DAA, that is the equal time provision.
Turning to the significant and substantial time provision, each parents' proposal is that X should spend significant and substantial time and that its reasonably practicable. I am satisfied that both parents will live within a close enough and sensible distance from X's agreed schools in Town B.
I am satisfied the adversarial nature of Family Law Act litigation and these proceedings, this has made the parental relationship worse, not assisted it. Each parent has felt the need to recite all of the sins of the other of the past and then rake over the disagreements and motivations of each parent over the previous number of years. I do not yet know whether the parents will be able to hold their tongue, hold their attitude, hold their body language and for X's sake move to something more like the cooperative relationship that they once had, but whether or not they can, I am satisfied that court orders that provide for X's living arrangements will be followed by each of his parents. I am satisfied that those orders for that arrangement will be in X's best interests.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 22 March 2024
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