Nasato & Nasato
[2024] FedCFamC1F 240
•1 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nasato & Nasato [2024] FedCFamC1F 240
File number: SYC 4485 of 2020 Judgment of: SCHONELL J Date of judgment: 1 May 2024 Catchwords: FAMILY LAW – PARENTING – Where the parents disagree on who the child should live with – Where each of the parents hold a negative view of the other and contend that the other parent has mental health issues and perpetrated family violence – Where the mother was charged with family violence offences but those charges were ultimately dismissed– Where the child has lived with the mother since April 2021 – Where the experts and the Independent Children’s Lawyer (“the ICL”) recommend that the child live with the mother – Where the father has not paid a proper level of child support – Where the father has not been able to have the child sleep in his own bed – Where the father has limited insight into the needs of the child – Where it is in the child’s best interests to live with the mother and spend alternate weekends and half school holidays with the father – Where this represents a continuation of the current parenting arrangements – No family violence findings made.
FAMILY LAW – PARENTING – Child’s views – Where the child is nine years old – Where the Court Child Expert opined that the child appeared to have a limited understanding of the concept of time – Where limited weight is placed on the child’s views.
FAMILY LAW – COSTS – Where there was a consistent failure by the parents to comply with court directions –Where the ICL sought that the father pay her costs – Where the ICL did not seek costs against the mother because she is in receipt of legal aid – Where the father has significant financial difficulties – Where the father has not paid adequate child support to the mother –Where a costs order would further hamper his ability to pay child support – ICL’s costs application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CA, 61DA, 65DAA Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Godfrey v Sanders (2007) 208 FLR 287
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
OP v TP (Conduct of Counsel) (2003) 30 Fam LR 281; [2002] FamCA 1155
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
West v West and Ors (1997) FLC 92-779; [1997] FamCA 46
Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 136 Date of hearing: 10 April 2024 Place: Sydney Counsel for the Applicant: Mr Provera Solicitor for the Applicant: Western Sydney Solicitors Counsel for the Respondent: Mr Iuliano Solicitor for the Respondent: Swifte Law Counsel for the Independent Children’s Lawyer: Ms Hayward Solicitor for the Independent Children’s Lawyer: MCW Lawyers ORDERS
SYC 4485 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NASATO
Applicant
AND: MR NASATO
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
1 MAY 2024
THE COURT ORDERS THAT:
1.The mother and father have the equal shared parental responsibility for all long-term decisions for the child, born 2015.
2.X live with the mother.
3.X spend time with the father, during each NSW school term, from after school (or 3.00 pm if it is a non-school day) Friday to before school (or 9.00 am if it is a non-school day) Monday, commencing the first Friday of each school term and each alternate weekend thereafter.
4.X spend time with the father as follows:-
(a)During each NSW short school holiday period:-
(i)For the first half of the school holiday period at the conclusion of Terms 1, 2, and 3, with changeover to take place at 5:00pm on the middle day; and
(ii)For one half of the school holiday period at the conclusion of Term 4: for the first half in every year ending with an even number and the second half in every year ending with an odd number, with changeover to take place at 5.00 pm on the middle day.
(b)For the purpose of Order 4(a), the school holiday period is deemed to commence from the conclusion of school on the last day that X’s attendance is required at school in the preceding school term and conclude at 5.00 pm the day before X’s attendance is required at school in the following school term; and
(c)For the purpose of Order 4(a), the parents will determine the middle day of the school holiday period by dividing the number of nights during the school holiday period in two. Where there is an odd number of nights in the school holiday period, X will spend the extra night with the father in even-numbered years and X will spend the extra night with the mother in odd-numbered years.
5.In the event that X is not otherwise living with or spending time with the mother or the father pursuant to these Orders, X will spend time with the mother and the father on special occasions as follows:-
(a)In the event that X is not already spending time with the mother on the Mother’s Day weekend, X will spend time with the mother on the Mother’s Day weekend in lieu of the following weekend, with such time to take place from the conclusion of school on the Friday immediately prior to Mother’s Day and conclude at the commencement of school on the Monday immediately following Mother’s Day;
(b)In the event that X is not already spending time with the father on the Father’s Day weekend, X’s time with the mother that weekend will be suspended and the mother will spend time with X on the following weekend, in lieu of the Father’s Day weekend;
(c)X will spend time with the parents on his birthday as follows:-
(i)from 5.00 pm on the day before the X’s birthday until 2.00 pm on X’s birthday with the mother in odd-numbered years; and
(ii)from 5.00 pm on the day before X’s birthday until 2.00 pm on X’s birthday with the father in even-numbered years.
(d)On the Easter long weekend X will spend time with each of the parents as follows:-
(i)In odd-numbered years, X will spend time with the father from the conclusion of school on the Thursday immediately prior to Good Friday until 5.00 pm on Easter Saturday and with the mother from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday; and
(ii)In even-numbered years, X will spend time with the mother from the conclusion of school on the Thursday immediately prior to Good Friday until 5.00 pm on Easter Saturday and with the father from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday.
(e)X will spend time with each of the parents over the Christmas period as follows:
(i)In even-numbered years, X will spend time with the father from 5.00 pm on 24 December until 3.00 pm on 25 December, and X will spend time with the mother from 3.00 pm on 25 December until 5.00 pm on 26 December;
(ii)In odd-numbered years, X will spend time with the mother from 5.00 pm on 24 December until 3.00 pm on 25 December, and X will spend time with the father from 3.00 pm on 25 December until 5.00 pm on 26 December; and
(f)Such other times as may be agreed to by the parents in writing from time to time.
6.That for the purposes of changeover, and unless otherwise agreed between the parties in writing, changeover will occur as follows:-
(a)on school days changeover will occur at the school that X is attending at that time; and
(b)on non-school days changeover will occur with the person whose care X is going into to collect X from the other parent’s residence.
7.For the purpose of implementing these Orders, the parents are to communicate with each other by SMS or telephone in the case of an emergency, otherwise by email, and the parents are to limit their communications to discussing parenting matters only.
8.The parents agree to treat each other and their agents with civility and respect at all times and throughout all forms of communication and during changeover; and the parents will use their best endeavours to ensure that all other members of their families, including their partners and other members of their respective households, treat the other parent with civility and respect at all times.
9.Each parent is to keep the other informed of:-
(a)Their current residential address and the particulars of any other person who resides at that address, or frequently stays at that address, during those periods that X is present; and
(b)Their current telephone contact numbers (including mobile and home/work landline numbers) and email address;
and each parent will notify the other of any change to those details within 48 hours of such change occurring.
10.Both parents are permitted to liaise directly with X’s school principals or teachers to obtain any information about X’s progress at school, or information about events such as swimming carnivals, sports days, parent/teacher interviews, and other educational activities, or to arrange for the sending, to each of the parents, newsletters, school photos and academic report cards, and any other correspondence provided to parents directly from the school, and these Orders will be sufficient authority to authorise the release of such information to the parents.
11.Both parties are hereby injuncted and restrained from:-
(a)Discussing these proceedings, or any allegations raised in these proceedings, in the presence and/or hearing of, or with, X;
(b)Allowing and/or permitting any third person to discuss these proceedings, or any allegations raised in these proceedings, in the presence and/or hearing of, or with, X;
(c)Having X assessed for Autism Spectrum Disorder unless requested to do so in writing by X’s school and with the agreement of the other party;
(d)Attending upon each other’s residence without first obtaining the written consent from the other party; and
(e)Making any negative, critical, belittling, or derogatory comments in relation to the other parent, or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent), to or in the presence or hearing range of the child or via written correspondence and each parent will use their best endeavours to ensure that no other person does so.
12.Both the mother and father are to ensure that:-
(a)X is in attendance at school prior to the commencement of school each morning and remains in attendance at school until the conclusion of school each day that the school is open for learning; and
(b)X has his own bed to sleep in and uses their best endeavours to ensure that X sleeps in that bed each night.
13.The father is to ensure that his home is kept free of clutter and rubbish both inside and in the outside areas.
14.In the event that either parent intends to travel interstate with the child during those periods that the child is in their respective care, that parent is to inform the other parent of the intended interstate travel (including details about the intended destination, the proposed duration of the travel and the contact telephone numbers and address details for where the child will be staying) as soon as reasonably practicable, and no later than seven (7) days before the intended departure date.
15.Within twenty-eight (28) days of the mother providing a child passport application for the child to the father, the father shall properly complete, sign and return the passport application to the mother, enabling a passport for the child to be issued or renewed.
16.Upon the child being issued with an Australian passport the child’s passport is to be kept by the mother for safe-keeping at all times, except when the child’s passport is required by the father for the purpose of booking an overseas holiday and/or travelling overseas with the child in accordance with these Orders. In the event that the father requires the child’s passport for the purpose of booking an overseas holiday, the mother is to make the child’s passport available to the father within seven (7) days of receiving a written request to do so, and the father is to return the child’s passport to the mother within seven (7) days of booking the overseas holiday. The mother is to provide the father the child’s passport not less than seven (7) days prior to the child’s departure date, and the father will return the child’s passport to the mother within seven (7) days of the child’s return from travelling overseas.
17.Subject to Order 16, pursuant to s 65Y of the Family Law Act 1975 (Cth), each parent is permitted to travel outside the Commonwealth of Australia with the child and such travel is limited to countries which are signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
18.Subject to Order 15, in the event either parent wishes to take the child on a holiday outside of the Commonwealth of Australia pursuant to Order 17, they may do so provided that the parent proposing such holiday (“travelling parent”) is to notify the non-travelling parent in writing no less than thirty (30) days prior to the departure date of such proposed trip, and provide to the non-travelling parent the following particulars:-
(a)The proposed period of and itinerary for the trip;
(b)The addresses and telephone contact numbers of any accommodation where it is proposed that the child will stay; and
(c)The details of any other person who will be accompanying them on that trip.
19.At least fourteen (14) days before departure on a holiday pursuant to these Orders, the travelling parent must provide to the non-travelling parent:-
(a)A final itinerary including contact telephone numbers and full street addresses of where the child will be staying; and
(b)Copies of return airline tickets and details of flights.
20.In default of either or both of the parties doing all acts and things and executing all such documents as are necessary to comply with these Orders, a Registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia, or such other person appointed by the Court pursuant to s 106A of the Family Law Act1975 (Cth), be authorised to do all such acts and things and execute all such documents on behalf of either or both of the parties, and in the event that either party procures compliance with the Orders by obtaining execution of a document or documents pursuant to this Order, then the party procuring such execution shall be indemnified by the other party for his or her costs and expenses incurred in procuring such compliance.
21.All existing parenting orders are discharged and for the purpose of this Order, it is requested that the Australian Federal Police remove the name of the child X born 2015 from the Family Law Watchlist.
22.The Independent Children’s Lawyer’s oral application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are parenting proceedings in relation to the parties’ child, X, (“the child”), aged nine years.
Despite the positions advocated when the hearing commenced, the parties reached agreement in relation to parental responsibility, orders in relation to time during school holidays, special occasions, overseas holidays, and a series of other orders (Exhibit 5). The parties are also in agreement that there should be time, in school terms, each alternate weekend from after school Friday to before school Monday, with the parent who does not have primary care of the child. The parties’ agreed position is reflected in the orders I make, corrected to remove typographical errors and to ensure consistent numbering.
The issues for determination that remained are as follows:
(a)which parent shall have primary care of the child; and
(b)if the child lives with the mother, whether during school terms the father should, in addition to spending time with the child on alternate weekends, have time with the child in the off week, from after school Wednesday to before school Thursday.
There was a persistent failure by the parties to comply with directions of this Court. In that respect, on 8 July 2022, the Court directed the parties to file their affidavits by 18 November 2022, with the matter also being listed on 2 December 2022 for the purposes of allocating hearing dates in the event of their compliance.
The parties did not comply with that direction and, on 2 December 2022, the period of time in which to file affidavits was extended to 17 February 2023. The parties did not comply with that direction either.
The matter was next listed on 27 March 2023. On that day, the following direction was made:
The applicant and the respondent file all affidavits on which they intend to rely by no later than 4.00 pm on Monday, 3 April 2023. In the event that there is a failure to comply with that direction then the matter will proceed to a final hearing on the basis of the evidence that is filed as at 6 April 2023.
(Order 2 of orders dated 27 March 2023)
The mother partially complied with that direction, filing an affidavit as to parenting matters. Her affidavit did not exhaustively address financial matters.
The father again did not comply with the Court’s direction.
On 5 April 2023, the Court listed the matter for hearing on 8 April 2024 in relation to financial and parenting matters.
In the week prior to the hearing, the parties contacted the Court, advising that the financial aspects of the matter could not proceed and that the hearing may need to be adjourned.
The matter was re-listed and, upon hearing submissions, the Court dismissed the applications for financial adjustment. Parties who consistently fail to comply with Court directions do so at their peril. It is completely unacceptable for parties to fail to comply with repeated directions and expect the Court to accommodate their ambivalence. Such an approach to litigation only prejudices other litigants who comply and seek to have the Court determine their outstanding issues in a timely way.
The matter proceeded to a hearing in relation to the parenting aspects of the matter.
The mother relied upon the following documents:
(a)Case Outline Document filed 3 April 2024;
(b)Amended Application for Final Orders filed 28 October 2022;
(c)Affidavit of mother filed 1 March 2023; and
(d)Affidavit of Ms C filed 3 May 2023.
The father relied upon the following documents:
(a)Case Outline Document filed 4 April 2024;
(b)Amended Response to Final Orders filed 3 April 2024;
(c)Notice of Risk filed 20 July 2020;
(d)Affidavit of father filed 20 July 2020;
(e)Affidavit of father filed 31 March 2021;
(f)Affidavit of Ms E filed 11 April 2023;
(g)Affidavit of Mr F filed 4 April 2023; and
(h)Affidavit of Mr D filed 11 April 2023.
Both parties and the Independent Children’s Lawyer (“the ICL”) referenced the Family Report of Ms G (“Court Child Expert”) dated 1 February 2024 (“Family Report”) and the Single Expert Report of Dr H dated 10 February 2021.
The mother, father, and the Court Child Expert were cross-examined. The other witnesses in each party’s case were not required for cross-examination, nor was Dr H.
As a consequence of the father’s dilatory approach to the litigation, the most recent evidence, other than what he reported to the Court Child Expert, is that which the father has set out in his affidavit filed 31 March 2021. He cannot be heard to complain, as he is entirely responsible for this state of affairs.
The mother, for her part, filed an affidavit on 1 March 2023. Much of it, however, is of limited relevance to the issues. Notwithstanding the date of filing, almost all the affidavit relates to events that predate 2021. Those parts which do not specifically identify a date, are of such generality that it is largely impossible to discern when those events are said to have occurred.
I have read the evidence relied on in the proceedings but do not propose to, nor am I required to, repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 234 CLR 492 at [62]:
… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
BACKGROUND
Given the above failings and the complete absence of cross-examination on any of the assertions in the affidavits (with the exception of the father’s evidence as to the child’s late attendances at school in 2020), findings as to the parenting history are rendered difficult if not impossible. Apart from the cross-examination of the father, referred to above, the cross‑examination of the parties was undertaken entirely by reference to what was said by each of them to the Court Child Expert, or as to the opinions expressed by her.
Consequently, the background set out below has been gleaned from the Family Report.
The parties would appear to have commenced a relationship in 2011, commenced cohabitation sometime in 2012 and married in 2013.
Each of the parties have children of previous relationships, who lived with the parties.
There is one child of the relationship, X, who was born in 2015.
The parties are at issue as to who the child’s primary carer was during the relationship. There was no cross-examination directed to this topic and hence I am unable to resolve the conflict on the evidence.
The parties would appear to have separated on 17 October 2019, following a disputed incident of family violence. The mother, the child, and her child of a previous relationship left the family home and temporarily lived with the paternal grandparents until December 2019, when they returned to reside in the family home.
In about March 2020, the mother moved out of the home, taking the child and her daughter with her, and moved to live in Suburb J. The care arrangements subsequent to that time appear to be at issue and, again, it is difficult to make final determinations about these matters in circumstances where there was no cross-examination.
The Family Report dated 1 February 2024 records as follows:
9. The parents dispute the care arrangements for [X] following their separation. [Ms Nasato] claimed that [X] spent occasional time with [Mr Nasato]. [Mr Nasato] claimed that [X] lived in a shared care arrangement until 18 April 2020, when [Ms Nasato] allegedly retained [X] in her sole care. [Mr Nasato] collected [X] from school in July 2020, as he had spent no time with [X] since April 2020. [Mr Nasato] retained [X] in his sole care and [Ms Nasato] made a subsequent Court Application.
10. [Ms Nasato] made an Application to the Court on 7 July 2020 seeking a Recovery Order for [X], for sole parental responsibility for [X], that [X] lives with her and spend time with [Mr Nasato] as agreed between the parents.
11. [Mr Nasato] filed a Response on 20 July 2020 seeking Orders for sole parental responsibility for [X], that [X] live with him and spend supervised time with [Ms Nasato] for two hours each week. [Mr Nasato] also sought Orders for [Ms Nasato] to complete the Triple P parenting course, the Keeping Kids in Mind Course and an anger management course.
12. On 23 July 2020, Orders were made for [X] to live with [Mr Nasato] and spend supervised time with [Ms Nasato] 3-6pm on Mondays, Wednesdays and Fridays.
13. On 17 September 2020, Orders were made which extended [X’s] supervised time with [Ms Nasato] to include 12-6pm on non-school days and from 10am to 4pm on alternate Saturdays and Sundays.
14. On 19 February 2021, the Single Expert Report by [Dr H] was released.
15. On 22 February 2021, Orders were made for [X] to spend time with [Ms Nasato] from after school Friday until before school Monday in the first week, and from Thursday afterschool until Friday before school in the second week, as well as half of the April and July 2021 school holidays.
16. On 1 April 2021, Orders were made:
a. For [X] to live with [Ms Nasato];
b. For [X] to spend time with [Mr Nasato] from after school Friday until before school Monday on alternate weekends as well as half of each school holiday period and other special occasions;
c. That [Ms Nasato] engages with a [Country R language] speaking psychologist with expertise in family violence and attends appointments as recommended by the psychologist;
d. That [Mr Nasato] to obtain a GP referral to a clinical psychologist with expertise in personality disorders or Dialectal Behavioural Therapy (DBT);
e. For both parents to engage in individualised parenting support;
f. Various other Orders were made, some of which included Orders about [X’s] school attendance, sleeping arrangements and conditions of cleanliness of the father’s home.
The April 2021 Orders remain in force, and it appears they have largely been complied with, albeit the father asserts that the child has recently not attended various occasions of court‑ordered time.
In early 2020, the mother was arrested and charged with offences involving allegations of violence against the father. All the charges were eventually dismissed either by the Local Court or on appeal.
The Family Report records that there has been no police involvement with the parties since the Apprehended Domestic Violence Order (“ADVO”) ended in late 2021.
SUBMISSIONS OF THE ICL
The ICL submitted that the Court should make orders that the child live with the mother and spend time with the father each alternate weekend during the school term. The ICL also sought an order for her costs against the father but not the mother, given the mother is in receipt of legal aid.
The ICL did not urge the Court to make orders in terms of the recommendations at paragraphs 123 to 127 of the Family Report dated 1 February 2024:
123. That [Ms Nasato] continues with [S Family Services] until [program] completion;
124. That [Ms Nasato] resumes sessions with psychologist [Ms L] as required;
125. That [Mr Nasato] continues to have regular sessions with [Dr N] as required;
126. That [Mr Nasato] completes a men’s behaviour change program, if the Court considers he has perpetrated coercive controlling family violence.
127. That [Mr Nasato] contacts the FASS service for support regarding his alleged experience of family violence. FASS for men.
The ICL submitted that the recommendation of the Court Child Expert was one that was in the best interests of the child. The ICL said that this was consistent with an earlier recommendation made by Dr H that the child live with the mother. The ICL submitted that the child had lived with the mother since April 2021 and spent time with the father in accordance with orders made on that date. There was no evidence to suggest that the spend time arrangements have been problematic or inconsistent with the child’s best interests. The ICL did not support a consideration of there being additional time between the child and his father beyond alternate weekend time. The ICL submitted that the expert evidence was not seriously challenged, and that the child should live with the mother. The ICL further submitted that the father had not put forward any evidence that warranted a change of residence, that he maintained a highly critical view of the mother, and that there was no evidence upon which the Court could conclude that the mother had not done a good job in her care of the child.
SUBMISSIONS ON BEHALF OF THE MOTHER
The mother’s counsel adopted the submissions of the ICL. He submitted that the time arrangements as they currently were had worked well; that the Court could not make a finding of coercive or controlling conduct; and urged the Court not to make a finding of family violence.
SUBMISSIONS ON BEHALF OF THE FATHER
Counsel for the father submitted that the father’s primary position that the child live with him was one that was in the best interests of the child. He did not submit that there were questions of risk in this case and submitted that the provisions of s 60CC(b) of the Family Law Act 1975 (Cth) were not engaged. Whilst not resiling from his primary position, counsel for the father alternatively submitted that the Court should make an order for the child to spend time with the father each alternate weekend and for one overnight in the off week. It was submitted that such an arrangement was consistent with the child’s views as expressed to the Court Child Expert, and with the evidence of the Court Child Expert that the parties should consider making an order for further time in the off week. Nevertheless, having made such submission, counsel for the father acknowledged that this was not the recommendation of the Court Child Expert, but urged the Court to give consideration to it.
EVIDENCE OF THE COURT CHILD EXPERT
The Court Child Expert prepared the Family Report on the basis of interviews conducted in person on 14 November 2023, interviews conducted remotely, and her perusal of the various documents referred to in the Family Report. She interviewed the parties and observed them with the child. She also conducted telephone interviews with the child’s school principal, the mother’s counsellor, and the father’s psychologist, and observed the child with some of his siblings.
I have read the Family Report and listened closely to the Court Child Expert’s oral evidence during cross-examination. I am more than satisfied that she has the experience and expertise to express the opinions she does, and that she has a comprehensive understanding of the issues facing the child. I found her report and oral evidence considered and logical. I accept the opinions and recommendations set out in her report, as qualified and/or expanded upon in her oral evidence, unless I record otherwise.
The Court Child Expert records, in relation to the mother:
21. [Ms Nasato] presented as dedicated to [X] and wanting to provide optimal care and experiences for him. She appeared to have high expectations about [X’s] care, presentation, wellbeing and safety. She reported having a very close relationship with [X], describing him as a “really good and happy boy” and she raised no concerns in caring for him. [Ms Nasato] said that [X] has an extremely close relationship with [Ms B] and that they spend a lot of time together. [Ms Nasato] and [Ms B] appear to have a very supportive relationship with each other…
(Family Report dated 1 February 2024, p.8)
The Court Child Expert records, in relation to the father:
33. [Mr Nasato] presented as polite in his interview and endeavouring to engage in a cooperative and helpful manner. He acknowledged on a few occasions that he often has difficulty answering directly and succinctly in his responses because of difficulties for him in is ability to remain focused. His self-awareness was accurate in terms of the CCE' s experience of [Mr Nasato]. At times, his lengthy explanations were not related to the questions asked and he appeared driven to portray himself as a victim and portray [Ms Nasato] in a negative or abusive manner.
(Family Report dated 1 February 2024, p.10)
The observations of the Court Child Expert accord with my observations of the father when he gave his evidence. I found him to be consistently nonresponsive, tangential, and dissembled at times when pressed to address an issue. He persistently sought to blame others and was dismissive of complaints raised by the mother.
The Court Child Expert observed the child’s interaction with the father and the child’s half-siblings. She recorded that the child appeared very familiar, comfortable, and content in the company of his siblings and the father, and that the father found a way to engage with the child which enabled him to interact with everyone playfully in the room. Similar observations were made of the child and the mother, with the Court Child Expert recording that their time together appeared fun and positive.
It is apparent from the observations of the Court Child Expert that each of the parents hold a critical and negative view of the other, as well as contending the other suffers from some mental health issues.
The Court Child Expert records, in relation to the mother:
61.[Ms Nasato] held a poor view of [Mr Nasato], considering him to be an abusive ex-partner, a disorganised parent who does not care well for [X] and who does not spend time with [X] when X is in his care.
…
66.[Ms Nasato] counter alleged that it is [Mr Nasato] (and not her) who has serious mental health issues. She claimed that [Mr Nasato] has a long history of hoarding, which severely affected the state and cleanliness of the home and created significant conflict in their relationship. [Ms Nasato] said that she and the paternal family had tried in the past to support [Mr Nasato] to engage in professional help regarding his hoarding, which [Mr Nasato] dismissed. She claimed that [Mr Nasato] made her attend sessions with his psychologist, [Dr N], which she thought were for marriage counselling or support for [Mr Nasato]’s mental health. However, she said that [Mr Nasato’s] intention was that such sessions address her mental health and to present her as “crazy”, which she did not agree to nor feel warranted, and she reported being very mad feeling that [Mr Nasato] had manipulated her into such attendance.
(Family Report dated 1 February 2024, p.8, 20)
In relation to the mother’s mental health, the Court Child Expert records:
64.[Ms Nasato] reported her mental health to be well managed and of no concern to her. She acknowledged a history of depressive episodes which were contextual to the lack of support from [Mr Nasato] in caring for the five children. [Ms Nasato] said that since [X] has been in her primary care, her mental health has significantly improved. She reported being six months into a 12-month family violence course run by [S Family Services]. [Ms Nasato] reported attending each Monday and Tuesday (9am to 2pm) for trauma recovery, support, healing and future pathways forward with her life.
65.[Ms Nasato] reported engaging with psychologist, [Ms L]. It appears that [Ms Nasato] had regular therapy with Ms L, prior to commencing with the [S Family Services]. [Ms Nasato] said that she had placed sessions with [Ms L] on hold whilst she is engaged with [S Family Services]. [Ms L] was contacted by the CCE for an update by way of conversation. Instead, [Ms L] provided a report to the CCE about [Ms Nasato]. This report was not read by the CCE as the parties have not been provided this report…
(Family Report dated 1 February 2024, p.19)
In relation to the father, the Court Child Expert records as follows:
35.[Mr Nasato] considers himself very disempowered by the legal process and in his view, it is “biased against fathers”. [Mr Nasato] claimed that [X] was the “happiest he had ever been” when [X] was in his primary care. He stated that the Orders made that [X] lives with [Ms Nasato] were a “huge mistake, a tragedy, disgrace and a disservice to [X]”. He also clearly felt that such Orders “removed” [X’s] relationships with [Mr K] and [Ms M]. [Mr Nasato] was not able to consider any benefit to [X] in moving to live with [Ms Nasato] and [Ms B]. [Mr Nasato] was also not able to identify any difficulties or challenges for [X], when living in his primary care (such as [X] potentially missing his mother and maternal half- sister and spending initially limited and supervised time with them, or [X] being late to school), when this was asked of him by the CCE. [Mr Nasato] further commented that [X] living with his [Ms Nasato] is a “system failure” and which (in his view) appeared based on a very poor assessment by [Dr H] and not by any parental difficulty or deficit on his part, nor a decision which was in [X’s] best interest.
(Family Report dated 1 February 2024, p.11)
The father agreed that this represented an accurate portrayal of his views.
The Court Child Expert also records:
39. [Mr Nasato] had a very negative view of [Ms Nasato], particularly her intentions and behaviour both in the relationship and post separation. In his opinion, [Ms Nasato] fabricated allegations of family violence against him to justify leaving their relationship to focus on her (then) business and for practical gain such as securing her own accommodation through family violence services.
…
43. [Mr Nasato] considers himself a well experienced and highly capable parent who is more attuned to [X’s] needs. He held clear views that it is better for [X], that [X] is in his primary care. He appeared unwilling to concede any possible past or current parental challenges or limitations on his part in caring for any of his children. It appeared unfathomable and unjust to him that [X] could potentially remain in his mother’s primary care (over him). He held himself highly in regard to his personal qualities, parental values and parental capacity, particularly in comparison to [Ms Nasato].
…
61. [Mr Nasato’s] current concerns about [X] in [Ms Nasato’s] care appeared centred upon the impact on [X’s] long-term development from being raised by his mother, whom he claimed to be “controlling and demanding”. [Mr Nasato] appeared unable to provide clear examples of the “controlling and demanding” behaviour of [Ms Nasato] towards [X]. His responses were limited to saying that “she does not listen to what [X] wants, will not allow [X] to decide for himself (what [X] wants to do), and makes [X] do things he does not want to do”. [Mr Nasato] would not elaborate on specific examples of these.
(Family Report dated 1 February 2024, p.18–19)
The father admitted to the Court Child Expert that he had Attention-deficit/hyperactivity disorder (“ADHD”) and suffered from anxiety. The Court Child Expert contacted the father’s clinical psychologist, Dr N, who told her that the father had attended a number of sessions in 2022 and monthly sessions in 2023, the last occurring in September of that year. The father’s clinical psychologist reported to the Court Child Expert that the father had difficulty staying focussed, managing his frustrations, being patient, and being organised. He said that the father had, in the past two, years showed “more insight about his own parental deficits and working on dysfunctional organisational things” (Family Report dated 1 February 2024, paragraph 68, p.20).
When cross-examined about what parental deficits he might have had, the father did not admit that he had any parental deficits. The Court Child Expert reports:
70.The above information from [Dr N] suggests a substantial improvement in the mental health difficulties for [Mr Nasato] at the time of the report by [Dr H] on 10 February 2021. [Dr H’ s] report notes that in her conversations with [Dr N], [Mr Nasato] presented with issues of “agitation, disorganisation, lacking in insight and issues of entitlement. He reported concerns of poor emotional regulation, difficulty empathising with others, and difficulty accepting responsibility for any mistakes or faults”.
(Family Report dated 1 February 2024, p.21)
It was not submitted that the mother’s mental health issues were a relevant consideration.
The father’s mental health issues perhaps provide explanation, in part, for some of his difficulties. In that respect, the Court Child Expert records:
109.There are mental health issues for [Mr Nasato] and [Ms Nasato]. They appear to have complied with the Orders of 1 April 2021 regarding their mental health difficulties. Both parents have engaged in mental health support and treatment and report significant improvement, which they should be commended for. There will likely be a need for [Mr Nasato] to manage his ADHD long term via medication and clinical sessions, and [Mr Nasato] is encouraged to access [Dr N] as required. It also appears likely that there is a need for [Ms Nasato] to accept that [Mr Nasato’s] ADHD diagnosis will result in potential long-term difficulties for [Mr Nasato] in his organisational skills (amongst other things), which may not be to her standard of expectation. It must be said that [Ms Nasato’s] examples of poor organisational skills of [Mr Nasato] appeared occasional in nature and did not suggest a pattern of inadequate parental capacity on his part, nor as presenting as a risk to [X], or in having a harmful impact on [X]. [Ms Nasato’s] concerns also did not appear consistent with the information from [X’s] school about [X’s] attendance or other concerns.
(Family Report dated 1 February 2024, p.30–31)
The Court Child Expert records, under the heading of “Evaluation”, that the child regards his relationships with his parents and siblings as important to him. She further records:
99. [X’s] relationship with [Ms Nasato] and [Mr Nasato] appeared loving. [X] desired to portray his relationship with each parent in equal terms, and he appeared to want to project a sense of loyalty, fairness and love of both. This is typical for children of [X’s] developmental stage who seek to please the important people in their life and wish to be seen as being fair and doing the right thing. [X’s] close relationships with both parents likely reflects [X’s] experience of having both of his parents significantly involved in his care needs prior to the parental separation, which supports the claim of both parents. [X] appeared to have a sense of spending limited time with [Mr Nasato], which can be understood in the context of his current parenting arrangement (three nights per fortnight with no communication in between) which is a significant change from his prior post separation arrangement of living primarily with his father from June 2020 until April 2021. [X’s] weekends with his father are shared with his paternal half-siblings and paternal extended family and this may add to [X’s] sense of feeling that he does not spend much time with his father. If such time is to the exclusion of [Mr Nasato] (as is [Ms Nasato’s] claim), then [X’s] sense of limited time with [Mr Nasato] could be further understood.
…
103. It appears clear that both parents have, at times, behaved in a manner that has aggrieved and antagonised the other parent which has escalated the conflict to abusive behaviour and violence towards the other. This behaviour appears more prevalent around the time of the parental separation and particularly related to difficulties in the facilitation of [X’s] parenting arrangement, which [X] has been directly exposed too. Both parents appeared to minimise their potential role in the conflict and abusive behaviour. [Ms Nasato], however, was able to speak to protective measures she used in an attempt to keep [X] safe and concern about [X’s] emotional wellbeing at such times.
104. The same could not be said for [Mr Nasato]. He appeared more concerned about the impact on him and steps he took to keep himself safe and protected (such as recording the behaviour of [Ms Nasato]). His responses showed a lack of insight into his behaviours, particularly an absence of prioritising [X’s] needs and safety, notable in the circumstances when [Ms Nasato] was allegedly engaged in rageful and violent behaviour towards him at a change over. [Dr H's] Report notes similar concerns about challenges encountered by [Mr Nasato] in his ability to “prioritise his children’s needs above his own and at times, appears to inhibit his ability to act in ways to protect them from harm”. It would appear therefore that there has been a three-year period between assessments in which [Mr Nasato] has not developed insight into his past behaviours and its potential effect on his children. This raises concerns about the capacity of [Mr Nasato] in recognising and prioritising [X’s] emotional and physical needs long term.
(Family Report dated 1 February 2024, p.30–31)
Each party informed the Court Child Expert of the benefits of their proposals. The Court Child Expert records:
71. [Ms Nasato] considers that [X’s] needs are to remain in her primary care because she is [X’s] closest attachment figure and because she ensures the care and wellbeing of [X]. It appeared important to her that [X] is happy and healthy, well presented, punctual, engaged in sporting activities and that [X] enjoys holidays with her and [Ms B]. She spoke of the importance of [X’s] ability to travel to [Country R] for time with the maternal family and an emersion in his [Country R] culture. [Ms Nasato] identified no areas of development required in her parenting capacity that would be of benefit to her or [X]. She said that she completed the Circle of Security Course in 2021.
72. [Ms Nasato] said that it is important for [X] to spend time with his father, paternal halfsiblings and extended paternal family. She presented with insight into the significance of these relationships being developmentally important for [X] and the benefits to [X] in having loving and positive relationships with his father, paternal halfsiblings and extended paternal family and in spending regular time with them. She provided examples of her support for this, such as providing permission for [X] to go on holiday with the paternal grandparents and facilitating [X] spending time with [Ms O] (which [Ms O] requests to her directly a few times each year). [Ms Nasato] said that she has in the past and will continue to accommodate future requests for [X] to spend additional time with [Mr Nasato] for paternal special occasions.
73. [Mr Nasato] considers that [X’s] needs are to be raised by him, in the former family home, with his paternal half-siblings, with regular contact with his extended paternal family relationships because the extended paternal family members are significant relationships for [X]. He spoke about the benefits to [X] in returning to live in the former family home and next to his neighbours, with whom [X] is friends. [Mr Nasato] appeared dismissive of the importance to [X] of [X’s] relationships with [Ms Nasato] and [Ms B] and the benefit to [X] in time with them. [Mr Nasato] appeared with a limited capacity to consider any other needs for [X] outside of returning to the former family home.
74. It must be noted that neither parent in their respective interviews appeared particularly child focused on the past experiences for [X] based on their respective allegations, and potential impacts on [X] of the other parent’s alleged behaviours during their relationship or post separation, particularly [Mr Nasato]. In some respects, [Ms Nasato] appeared more attuned to [X’s] current and future needs and committed to ensuring these for [X]. This assessment did not highlight concerns about the capacity of [Ms Nasato] in meeting [X’s] needs. [Mr Nasato], however, presented with more of a limited insight into [X’s] overall needs, particularly the emotional needs for [X]. [Mr Nasato], instead, appeared preoccupied by past difficulties and harm to himself allegedly caused by [Ms Nasato] during their relationship and also post separation.
…
78. [Mr Nasato’s] proposal appeared based upon his view that [X] should not be raised by his mother over himself, because he was [X’s] primary carer as well as considering himself a more appropriate and capable parent. [Mr Nasato’s] proposal also enables [X] to resume living with [Ms M]. He envisages that [X] would spend more time with [Mr K] because such time is not limited to alternate weekends when [X] is in his care. [Mr Nasato] does not perceive any difficulties for [X] (practically or psychologically) in moving from his mother’s care to live with him. He reported no concerns about getting [X] to school each day and in the day-to-day care of [X] because his work is flexible. [Mr Nasato] spoke of the benefits to [X] in [X] being able to spend frequent time with the extended paternal family because of the support and enjoyment that [X] derives from these relationships.
(Family Report dated 1 February 2024, p.21–23)
The Court Child Expert records that there were advantages and disadvantages in each party’s proposal. In that respect, she records as follows:
113. The benefits for [X] in residing with [Ms Nasato] long term is that [X] remains settled in his routine and continues to have his mother and half-sister supporting and meeting his needs. [Ms Nasato] is endeavouring to work towards optimal parenting capacity, trauma recovery, personal development and career development to the benefit of her and [X]. In the absence of any financial support from [Mr Nasato], she appears determined to study and obtain employment to provide financially for [X]. [X] remaining in [Ms Nasato’s] care ensures that [X] is co-raised by [Ms B], which presents as being the most significant relationship for [X] outside of his relationships with his parents. This option also supports the wishes of [X]. [Ms Nasato] is well supported by services and [Ms B]. Overall, no concerns were raised in this assessment about [Ms Nasato’s] capacity in meeting the health, educational, developmental or emotional needs of [X].
114. The potential risks for [X] in [Ms Nasato’s] long-term care appears limited to [X] experiencing poor parental capacity from his mother in potential event of a deterioration of [Ms Nasato’s] mental health. That said, the impact on [X] is possibly minimal noting that [Ms Nasato] reported working on strategies of resilience, emotional regulation, and sustaining positive emotional wellbeing in her therapy with [Ms L]. [Ms Nasato] also has a history of accessing support and engaging well in support when she feels under stress.
115.The benefit for [X] with [Mr Nasato’s] proposal is that [X] would live with his father and [Ms M], and these are important relationships for [X]. [X] would also likely encounter more time with [Mr K], as [Mr K] has the opportunity to spend time with [X] throughout the week each week and such time is not limited to alternate fortnights. [X] would resume living in the former family home, which has been his primary residence for the majority of his life. [Mr Nasato] reported having work flexibility and being available for all of [X’s] needs. [Mr Nasato] is also supported by the paternal family. [X] residing with his father may provide additional opportunities for [X] to spend increased time with his extended paternal family, whom [X] appears to have always had positive relationships with.
116. The potential risk for [X] is that [X] is not raised by his mother and [Ms B], who present as [X’s] primary attachment figures. [X] may have difficulty adjusting to this arrangement because this does not support his wishes. If [X] is not able to adjust, then this may adversely affect his emotional wellbeing, which may in turn negatively affect his schooling and overall development. There also appears to be some potential concerns about some limitations of the parental capacity of [Mr Nasato], if the claims made by [Ms Nasato] regarding the home conditions, school lateness, and [X] not seeing a doctor are found to be accurate. [Ms Nasato’s] concern also appear consistent with the assessment of [Mr Nasato] in [Dr H’s] report. This being at the time of [X] being in his father’s primary care, it was noted that [X] was often late to school, and which was impacting on his learning. Furthermore, [Dr H’ s] report noted concerns about the capacity of [Mr Nasato] to meet [X’s] educational and emotional needs, amongst other concerns about [Mr Nasato], to the extent that [Dr H] recommended that [X] be placed in his mother’s primary care.
…
118. Overall, based on the information available to this assessment, it is recommended that [X’s] current parenting arrangement during the school term be continued on a final basis. [X] should also spend half of each school holiday period and other special occasions with [Mr Nasato]. If the Court considers that [X] should spend more time with [Mr Nasato], an option may be that [X] spends one-night mid-week in the alternate week, so that [X] is spending weekly time with [Mr Nasato] and his paternal half siblings. It is also recommended that [X] spends additional time with [Mr Nasato] or the extended paternal family, as agreed between the parents. It is possible that [X], as he gets older, may wish to spend additional time with [Mr Nasato], [Ms M], [Mr K] or the extended paternal family. In this scenario, the parents are encouraged to support [X’s] views about such, especially when [X] becomes an adolescent and has developed the capacity to understand his parenting arrangement and family relationships and his wishes for time with them.
(Family Report dated 1 February 2024, p.32–34)
As stated earlier, I accept the opinions of the Court Child Expert.
The Court Child Expert recommended that the parties have equal shared parental responsibility, and that the child live with the mother and spend time with the father each alternate weekend from after school Friday until before school Monday and for half of each school holidays (Family Report dated 1 February 2024, paragraph 121).
FACTUAL ISSUES RAISED BY THE PARTIES
Whilst parenting proceedings are not strictly adversarial (see OP v TP (Conduct of Counsel) (2003) 30 Fam LR 281 at [122] and West v West and Ors (1997) FLC 92-779), the parties are nevertheless bound by the way they frame and conduct litigation. In those circumstances and in light of the submissions, I will confine my reasons to those matters framed by the parties in the conduct of the hearing and refined by the submissions.
For the reasons given above, the various issues agitated by the parties were articulated through the Family Report. The issues, as best I can glean, are set out below.
Allegations of Family Violence
Each parent made assertions to the Court Child Expert and in their affidavits of the perpetration of family violence by the other. There was no cross-examination of the mother by the father’s counsel on the issue of family violence, and limited cross-examination of the father by the mother’s counsel. The Court Child Expert opined that, if established, some of the events may constitute coercive and controlling behaviour.
The ICL submitted that I could not make a finding of coercive and controlling behaviour. The mother’s counsel urged me not to make any findings of family violence. The father’s counsel submitted that the Court should not find that the either party or the child was at risk of harm in either party’s care. He submitted that s 60CC(2)(b) of the Act was not engaged.
In light of these submissions, and the parties’ agreement that an order for equal shared parental responsibility should be made, I do not propose to make any findings in relation to family violence.
Whether the father was persistently late in delivering the child to school and other events
A consistent complaint by the mother, both to the Court Child Expert and in her cross‑examination, was her assertion that the father was persistently late in taking the child to school. She informed the Court Child Expert that the child “is “mostly late” to school on the Monday each fortnight” (Family Report dated 1 February 2024, paragraph 24, p.8), contending that the child’s late attendance is not always recorded by the school.
However, when cross-examined about the father’s lateness to school, she referred to a number of incidents in 2020 and approximately four occasions in 2023. The father accepted that he had been late delivering the child to school in 2020, albeit he also sought to absolve himself, contending that it occurred in the context of a recent change in the child’s living arrangements. The father accepted that there had been an occasional incident in 2023, and perhaps one occasion in 2024.
The Court Child Expert interviewed the school principal. The Family Report records as follows:
62. [Ms P], School Principal of [Q School] reported:
a. [X] is progressing well at school. He engages in his schoolwork and learning. [X] does not receive any additional learning support at school.
b. [X] presents as well dressed, generally on time with a high level of attendance.
c. The school have no concerns about [X], his wellbeing or welfare, in either parent’s care.
d. [X] is taken to and from school by [Ms Nasato], [Ms B] and [Mr Nasato]. [Ms Nasato] is often in attendance for parent events and occasions for [X]. [Ms B] appears to attend when [Ms Nasato] is not able too. [Mr Nasato] attends occasional school events.
(Italic emphasis in original)
(Family Report dated 1 February 2024, p.19)
In relation to other events, the Court Child Expert records:
23.… [Ms Nasato] appeared overly critical of [X] being occasionally late to events or activities that [Mr Nasato] is responsible for taking [X] too. She claimed that [X] was 30 minutes late to a birthday party, 20 minutes late to a [sports] lesson, and late one time to school which resulted in [X] missing his school [sports] lesson. Whilst there may be other examples which were not provided by [Ms Nasato] in her Family Report interview, her account did not suggest a pattern of [X] being consistently late to his social or sporting events or activities when in his father’s care.
(Family Report dated 1 February 2024, p.8)
The father conceded there were occasions in 2020, and a couple of occasions in 2023 and 2024, when he was late taking the child to school. However, on balance, I am not satisfied that the mother has established that the father is consistently late in having the child attend social occasions or school.
Whether the father attended the mother’s home on Sunday evenings to collect school uniforms and ignored her request that he not do so
Another concern of the mother expressed to the Court Child Expert was that the father attends her home on a Sunday evening to collect various things for the child, and that the father ignores her request that he not attend.
In that respect, the Court Child Expert reports:
29. [Ms Nasato] expressed concern that [Mr Nasato] often attends her home at 10pm on Sunday nights to collect [X’s] school uniform for Monday. She claimed that she requests that [Mr Nasato] collect [X’s] school uniform from her home on the Friday afternoon following [Mr Nasato] collecting [X] from school. [Ms Nasato] said that [Mr Nasato] ignores her requests each time and further ignores her texts to not attend her home after 8pm on the Sunday evening, but that [Mr Nasato] (each fortnight) dismisses her requests. It appears that [Ms Nasato] passes [X’s] ironed uniform over to [Mr Nasato] from her patio over the fence to [Mr Nasato] (so to avoid face to face interactions with each other). [Ms Nasato] said that she is in the process of having cameras installed in her home because of [Mr Nasato’s] late-night attendances to her home. [Ms Nasato] said that [X] cannot go to school on Friday with his school uniform packed for Monday because [X] has too much to carry in his school bag.
(Family Report dated 1 February 2024, p.10)
The Court Child Expert also records: “[Mr Nasato] conceded that, at times, he does attend [Ms Nasato’s] home at 10pm on a Sunday night against her wishes to collect [X’s] school uniform” (Family Report dated 1 February 2024, paragraph 45, p.13).
The Court Child Expert was very critical of this admission by the father, claiming that it demonstrated he lacked insight into the inappropriateness of his behaviour.
The father, in cross-examination, denied making any admission to the Court Child Expert that he attended the mother’s home against her wishes. His evidence in this respect was somewhat shambolic and disassembled. He conceded that there may have been one or two occasions when he attended the mother’s home. He denied ever attending the mother’s home contrary to her wishes. The mother produced a text message supportive of the proposition that she had requested the father not to attend her home. The father then accepted that he may have attended, and gave a convoluted and non-responsive answer that did not address the issue. He was dismissive of the allegation and seemed to suggest that it was no longer an issue, if it ever had been.
I found the father’s denials and responses unconvincing. A continuing theme of his evidence was an inability to accept responsibility, while seeking to shift the blame to the mother or minimise his conduct. The Court Child Expert was confident the father had made the concession she recorded.
I accept the Court Child Expert has accurately recorded what the father said. It was not submitted why the Court Child Expert would inaccurately record the father.
There hopefully will not be a repeat of such disrespectful behaviour. I note the parties invite the Court to make injunctions restraining them from attending the other’s home other than with written consent.
Whether the child is at risk of neglect in the father’s care
The Court Child Expert records:
58.[Ms Nasato’s] primary concerns for [X] in [Mr Nasato’s] care appear to be related to issues of neglect. She claimed that [X] returns each Monday fortnight with (insect/flea) “bites” on his legs and over his body (caused by poor cleanliness of the father’s home or the family cat). She reported having to take [X] to the GP about these “bites” and applying ointment. [Ms Nasato] alleged that [X] is often late to school on Mondays and that [X] does not eat the lunch provided by his father (and therefore [X] is hungry at school). She claimed that [Mr Nasato] does not clean out [X’s] lunch box from Friday and that [X] returns with rotten food in his lunch box on the Monday. [Ms Nasato] said that she does not raise her concerns noted above because she wants to avoid conflict with [Mr Nasato]. In the CCE’s time spent with [X], the CCE asked [X] if he had bites on his body following the weekend with his father. [X] consented to showing the CCE the bites on his legs by pulling up his pants. Around six insect bite looking marks were observed by the CCE on [X’s] legs, with ointment having been applied over them. [X] said that there were no other bites on his body when asked, and the CCE did not ask to see any other body parts.
(Family Report dated 1 February 2024, p.18)
I have already addressed the issue of lateness. The father agreed that he has a cat but says that the issue of fleas has been addressed by applying a different flea treatment. These matters were not the subject of a submission. In the event they were regarded as significant or determinative, or even relevant to my determination, then a submission would have been made. Therefore, I make no finding in relation to these matters.
Whether the father pays child support and provides financially for the child
The mother makes a criticism about the father’s lack of financial support for the child. The father acknowledged that he was having some significant financial difficulties, including having difficulty in meeting loan repayments. The Court Child Expert records:
43. [Mr Nasato] considers himself a well experienced and highly capable parent who is more attuned to [X’s] needs. He held clear views that it is better for [X], that [X] is in his primary care. He appeared unwilling to concede any possible past or current parental challenges or limitations on his part in caring for any of his children. It appeared unfathomable and unjust to him that [X] could potentially remain in his mother’s primary care (over him). He held himself highly in regard to his personal qualities, parental values and parental capacity, particularly in comparison to [Ms Nasato].
(Family Report dated 1 February 2024, paragraph 45, p.13)
An attempt to establish, with some precision, how much child support the father actually paid was an exercise in futility. The father asserted various amounts but could not remember whether he was paying amounts fortnightly or monthly. His evidence is not reconcilable with his Financial Statement or with what is recorded by the Court Child Expert.
However, it was within the power of the mother to establish how much the father had actually paid. The mother could easily have tendered a printout from the Child Support Agency recording what payments, if any, had been made by the father.
Notwithstanding his admissions to the Court Child Expert, the father was highly critical of the mother’s expenditure. In that respect, the Court Child Expert records:
42. [Mr Nasato] held a very poor view about [Ms Nasato’s] parenting of [X]. He claimed that [X] is “spoilt” by his mother and that [Ms Nasato] does things for [X] for “her own self-image” such as taking [X] on holidays and paying for expensive activities for [X], such as [an] experience at the Zoo, which he commented cost $150 and was likely of no benefit to [X]. In comparison, he spoke about his financial priorities being paying for the family home and providing stability for all of his children.
(Family Report dated 1 February 2024, para 42, p.13)
I am satisfied that it is the mother who has the borne the brunt of financial support of the child. The father is either unwilling or unable to pay a proper level of child support.
Whether the child wants to spend more time with his father
The mother reported to the Court Child Expert that the child tells her he does not want to spend weekend time with his father, and that she tells the child to communicate that to the father. Somewhat inconsistently with that approach, the mother reported to the Court Child Expert that the child does not have the confidence to tell the father that he does not want to spend weekend time with him. She also told the Court Child Expert that the child did not want to see the father on Christmas Day because the child finds it “boring” at his father’s residence (Family Report dated 1 February 2024, paragraph 22, p.8). It is not for the child to address these issues with his father, which are the are responsibility of the parents to resolve.
The father says that the child tells him that he wants to spend more time with him and wants to live with him. When specifically asked by the Court Child Expert, the child reported that he wanted to spend more time with his father but that he wished to remain living with his mother and his sister on a permanent basis.
The Court Child Expert reports:
100. [X] seeks more time with [Mr Nasato] than what his current arrangement provides for. That said, [X] appeared to have a limited understanding about the concept of time generally and his parenting arrangement. Though [X] appeared to have not considered how this would practically work for him, [X] was consistent in his views at different times in his interview of wanting more time with [Mr Nasato]. This suggests that spending more time with his father is important to him.
101. [X’s] wish is to remain in his mother’s primary care. This could be for a combination of reasons including feeling settled in his current parenting arrangement, feeling that his mother and sister meet his needs, or having concern about or prior experience that his father may have difficulty in meeting his needs. It is possible that [X’s] potential reasons could be a combination of some or all of these. It is considered that some, but not significant weight be placed on [X’s] views. This is because [X’s] sense of time appeared to be still developing and he is not of an age yet to fully comprehend his parenting arrangement and its impact on him.
(Family Report dated 1 February 2024, p.28)
Curiously, the father reported to the Court Child Expert that he did not believe that the child’s wishes as to living with the mother should be given any consideration, nor should the Court place any weight on the child’s views because of his age. The father ironically submitted that the Court should, however, place weight on the child’s wish to spend more time with him. I will address that issue later in these reasons.
Whether the child sleeps in his own bed
The mother makes a complaint that the child sleeps in the father’s bed. The father conceded that since April 2021 the child has, on most nights, slept in his bed. His explanation is the child misses him. When asked what he intends to do about it, the father points to the fact that he has been waiting for the final application to be determined. It reflects poorly upon the father that he has not been able to have the child sleep in his own bed.
The father’s reasons for why he has not done anything are without merit. The father holds himself out as an experienced and attuned parent. A more attuned parent would have done something about this issue, particularly in circumstances where the father had complained to his treating psychiatrist in 2021 that it was unhealthy for the child to be co-sleeping with the mother.
Curiously, the child reported to the Court Child Expert, contrary to the father’s assertions, that he sleeps in his own bed at his father’s house. Such assertions undermine the weight to be given to any expressed view of the child.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Act.
Section 60CA of the Act mandates that the best interests of children are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act, but also the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility, but that presumption may be rebutted if there are reasonable grounds to believe that a parent has engaged in abuse or family violence, or if there is evidence which satisfies the Court that it is not in the best interests of the child for the presumption to be applied (sub-sections 61DA(2) and (4) of the Act).
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in the child spending either equal time or substantial and significant time with both parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(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.
In determining what spend time order should be made under sub-sections 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether, as a separate consideration, it is reasonably practical.
The best interests of the child are determined by an examination of the factors set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. 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.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b) of the Act.
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated at 83,449:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Bold emphasis in original)
In reaching my decision, I have considered the relevant sections of the Act, albeit I am not required, as a matter of law, to specifically address each consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in a child’s best interests to have a meaningful relationship with their parents.
The Full Court, in Sigley & Evor (2011) 44 Fam LR 439 at 463–464, identified the following as important matters of guidance in relation to s 60CC(2)(a) of the Act:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118(c)];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he 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 orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
Each of the parents and the ICL contend that the proposals they advance are ones that are consistent with ensuring the child is able to maintain a meaningful relationship with each of his parents.
The proposals of the mother are a continuation of the existing arrangements in relation to the child. The father proposes that the child live with him and spend alternate weekends and half school holidays with the mother. I am satisfied, for the reasons that I give and the orders I make, that the child will have, to the extent possible consistent with his best interests, a meaningful relationship with both of his parents.
SECTION 60CC(2)(B)
In light of the parties’ submissions, this is not a relevant consideration.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as they are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(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
I accept that the child has said that he wants to spend more time with his father.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662 at 673, the High Court stated:
34.… In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed …
I have had regard to the opinions of the Court Child Expert and in particular, her view that the child appeared to have a limited understanding of the concept of time, the parenting arrangements or, for that matter, that more time with his father meant less time with his mother.
I also observe that the child is nine years old and has said things that are inconsistent with other evidence, such as sleeping in his own bed. I note his views, but I place limited weight on them.
(b) The nature of the child’s relationship with each of the parents and other persons
I accept that the child has a close relationship with each of his parents and siblings.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
No submission was made in relation to this sub-section.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father has not met his obligations to properly support the child.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This has been canvassed above. Continuation of the current arrangements will not amount to any change in the child’s circumstances. The current arrangements have worked well and, beyond the father’s assertion that the orders that gave rise to them should never have been made, there is no evidence that the child’s welfare has been compromised by them. The evidence is he is doing well at school and has a good relationship with his parents and extended family.
On any proposal, the child will not be separated from either parent or his siblings. The Court Child Expert did not recommend a change to the existing care arrangements. I am satisfied that she was very conscious of the competing considerations and, on balance, determined that the tension between ensuring that the child was able to maintain a strong sibling relationship and a meaningful relationship with his father was met by striking the balance at a continuation of the current live with and spend time arrangements.
(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
This is not a relevant consideration.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that both parents have, at times, failed to place the child’s emotional needs above their own as a consequence of the entrenched parental conflict. The Court Child Expert did not, however, identify concerns about the mother’s capacity to meet the child’s emotional needs. The mother sees the benefit to the child of maintaining a relationship with the father.
I accept the opinion of the Court Child Expert that there are deficits in the father’s parenting capacity. He is highly critical of the mother and sees no benefit to the maintenance of the current care arrangement. He has a superior view of his parenting capacity relative to the mother, which is not supported by the evidence.
The Court Child Expert observed that the father has limited insight into the overall needs of the child, particularly his emotional 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;
This is not a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration as the child is not Aboriginal or a Torres Strait Islander.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been canvassed extensively above. I accept the Court Child Expert’s opinions referred to above.
(j) Any family violence involving the child or a member of the child’s family
This has been extensively addressed above.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
This is not a relevant consideration.
(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
These parents have been in significant conflict about the child’s living arrangements for over four years. It is in the child’s best interests for these proceedings to end and for him to have some certainty in his life. I am hopeful that the orders I make are ones that are least likely to lead to further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances that are relevant.
PARENTAL RESPONSIBILITY
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In making an order for equal shared parental responsibility I am required, in determining what spend time order should be made, to consider whether spending equal time or substantial and significant time is in the best interests of the child. Further, as a separate consideration, whether it is reasonably practicable. Neither party proposed an equal time arrangement. They are agreed about time with the other parent, except for one night a fortnight. I am not satisfied, for the reasons given, that the child living with the father is in the child’s best interests.
The father’s proposal is contrary to the recommendation of the Court Child Expert. It would expose the child, more frequently, to a parent who has limited insight into the child’s emotional needs while depriving the child of the benefits of living in the primary care of a parent who does have insight into his emotional needs. It would disrupt the existing care arrangements for the child, which the evidence demonstrates have been working well to date.
I am satisfied, for the reasons I have given, that the time arrangement of alternate weekends with the father and half school holidays is one that is in the best interest of the child and is reasonably practicable in these circumstances. The Court Child Expert considered whether it was appropriate to make an order for more than alternate weekends in school terms and determined that it was not. I am satisfied that this would have the potential to unsettle an arrangement that has worked well for the child.
Having regard to all the above matters and the s 60CC considerations, I am satisfied that a time arrangement between the child and the father in accordance with the recommendations of the Court Child Expert is one that is in his best interests. I propose to make orders to give effect to such an arrangement.
I am satisfied that the Orders I make are in the child’s best interests.
COSTS
The ICL sought an order that the father pay her costs. The ICL did not seek an order that the mother pay her costs, in circumstances where the mother was in receipt of a grant of legal aid.
The father opposed the making of a costs order and sought to rely upon his Financial Statement filed 3 April 2024. I am satisfied, having regard to his Financial Statement filed 3 April 2024 and what he has reported to the Court Child Expert (which has not been the subject of challenge), that the father has some significant financial difficulties. I am satisfied that to make a further order would cause him hardship, as well as further hampering the father’s ability to pay child support.
Accordingly, I decline to make an order that the father pay the costs of the ICL and dismiss the ICL’s costs application.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 1 May 2024
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