Perrot & Xun

[2023] FedCFamC2F 811

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Perrot & Xun [2023] FedCFamC2F 811

File number(s):	CSC 819 of 2020
Judgment of:	JUDGE WILLIS AM
Date of judgment:	1 August 2023
Catchwords:	FAMILY LAW – PARENTING – contested – where the parents are polar opposites in lifestyle and parenting style – where the father is transient – time with father strictly conditional upon the father having suitable accommodation and having child to school and activities on time – sole parental responsibility for education and health – parents with strongly divergent views – changeover difficulties – father unreliable and routinely late – guillotine orders – child with mixed cultural heritage – special occasions for each parent to accommodate cultural issues – restraints on father attending school without prior permission of school  – Court not satisfied as to father’s stability and profile regarding application to travel overseas with child
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Mazorski & Albright [2007] FamCA 520
Division:	Division 2 Family Law
Number of paragraphs:	172
Date of hearing:	22-23 May 2023
Place:	Cairns
Counsel for the Applicant:	Mr Williams
Solicitor for the Applicant:	Ms Collier
Solicitor for the Respondent:	Self-represented
Counsel for the Independent Children's Lawyer:	Ms Bassano
Solicitor for the Independent Children's Lawyer:	Ms Lehmann

ORDERS

CSC 819 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS PERROT

Applicant

AND:

MR XUN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE WILLIS AM
DATE OF ORDER:	1 august 2023

THE COURT ORDERS ON A FINAL BASIS THAT:

Parental responsibility

1.The mother and the father shall have equal shared parental responsibility for decision making concerning major long-term issues regarding X born in 2016 ("the child") SAVE AND EXCEPT THAT in relation to medical and educational decisions the mother shall have sole parental responsibility.

2.For the purposes of decisions relating to medical and educational matters, the following shall apply (permission is not required – this is a notice/consultation provision only):

(a)The mother shall, other than in the case of an emergency, before making a decision in the exercise of her parental responsibility, provide the father with an opportunity to provide input into the decision by writing to the father and informing him of the decision to be made;

(b)The mother will allow the father three (3) days within which to respond, before making the decision; and

(c)The mother shall then inform the father in writing of the decision made.

3.Each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.

AND THE COURT FURTHER ORDERS BY CONSENT ON A FINAL BASIS THAT:

Living arrangements

4.The child shall live with the mother at all times, other than when the child spends time with the father pursuant to these Orders.

AND THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

Time with the father

5.Unless otherwise agreed in writing between the parties, the father will spend time with the child only in accordance with these Orders.

6.All of the child’s time spent with the father as set out in these Orders is subject to the Conditions set out in Orders 9, 10, 11, 12, 13, 14 and 15 herein.

7.The child will spend time with the father each alternate Friday from the conclusion of school until the commencement of school the following Monday (or Tuesday if Monday is a pupil-free day or a public holiday).

8.The regularly occurring time during the school term referred to in Order 7 herein will be suspended during the school holiday periods and other special occasions (including Christmas and Chinese New Year) as referred to in these Orders.

Conditions

9.The following conditions apply to all of the time the child is to spend with the father pursuant to these Orders.

10.The father’s time pursuant to Order 7 herein will change in the event that the father delivers the child to school more than 15 minutes late on 3 or more occasions in a school term (without a valid explanation accepted by the mother). In that event, the father’s time with the child will reduce to conclude on Sunday at 5:00pm, instead of Monday morning.

11.The child’s overnight time with the father provided for in these Orders is conditional upon the father having suitable accommodation and which is not shared with another adult/s (other than the father’s partner) without the mother’s consent first being obtained in writing.

12.For every place where the father proposes to reside with the child during the school term, within 2 days of taking up the residence, the father is to provide a copy of a tenancy/lease agreement or certificate of title with his name on it to the mother and within 3 days the mother will give the father 3 proposed dates that she is available to inspect the premises. The father must nominate one of those days within a further 3 days of receiving the mother’s request.

13.In the event the father fails to comply with Orders 11 and 12 then the child’s overnight time with the father during the school term is forthwith suspended until the father does comply with Orders 11 and 12.

AND IT IS NOTED THAT: For the purposes of these Orders, suitable accommodation is defined as a residence with 2 bedrooms (minimum), where the child has his own room that is not required to be shared (other than at times with his half sibling B), with appropriate facilities of a shower and toilet.

AND THE COURT FURTHER ORDERS BY CONSENT ON A FINAL BASIS THAT:

14.In the event the child is enrolled in a formal / club / organised extracurricular activity (“activity”), and such activity occurs during the time the child spends with the father, the father is to take the child to such activity whether it occurs on a school day or a weekend day and the Court notes the father has agreed to do this.

AND THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

15.In the event that the father:

(a)Fails to take the child to such activity; or

(b)Takes the child to the activity 15 minutes or more late on 2 or more occasions in each 6 week period, then the father’s time with the child pursuant to these Orders will change and instead the father’s time will commence after the conclusion of such activity, with handover to occur at the conclusion of that activity, for the remainder of that season.

AND IT IS NOTED THAT: The intention of this condition is that if the father fails to take, or is late taking the child, to a weekend activity (typically on a Saturday) then the father’s time will commence on Saturday at the conclusion of the activity rather than Friday after school.

AND THE COURT FURTHER ORDERS BY CONSENT ON A FINAL BASIS THAT:

School holidays

16.The child shall spend time with each parent during school holiday periods as follows:

(a)During the June / July school holidays in 2023 only:

(i)With the father from the conclusion of school on the last day of the school term until 8:00am on the Saturday falling closest to the middle of the holiday period (the first week of the holiday period).

(ii)With the mother from 8:00am on the Saturday falling closest to the middle of the holiday period until the commencement of school on the first day of the new school term (the second week of the holiday period).

(b)During the 2023 September / October school holidays and each year thereafter:

(i)With the father from the conclusion of school on the last day of the school term until 8:00am on the Saturday falling closest to the middle of the holiday period (the first week of the holiday period).

(ii)With the mother from 8:00am on the Saturday falling closest to the middle of the holiday period until the commencement of school on the first day of the new school term (the second week of the holiday period).

(c)During the 2023 Christmas school holidays and each year thereafter:

(i)With the father from the conclusion of school on the last day of the school term until 8:00am on the Saturday falling closest to 7 days later (the first week of the holiday period).

(ii)With the father from 8:00am on the Saturday falling closest to 14 days prior to the last Friday of the holiday period, until 8:00am on that Friday (the last 2 weeks of the holiday period).

(iii)With the mother at all other times during the holiday period.

(d)During the 2024 Easter school holidays and each year thereafter, with the mother from the conclusion of school on the last day of the school term until the commencement of the first day of the new school term (the entire Easter school holiday period).

(e)During the 2024 June / July school holiday period and each year thereafter, with the father from the conclusion of school on the last day of the school term until the commencement of the first day of the new school term (the entire June / July school holiday period).

Special occasions

17.Notwithstanding any other Order, unless otherwise agreed between the parents in writing, the child shall spend time with the other parent with whom they are not living on special occasions as follows:

(a)With the father on Father’s Day from 8:30am to 5:00pm.

(b)With the mother on Mother’s Day from 8:30am to 5:00pm.

(c)On the child’s birthday for 3 hours on a school day and 5 hours on a non-school day.

(d)On the birthdays of the child’s half siblings, with the child to spend this time with the parent who is the parent of his sibling, for 3 hours on a school day and 5 hours on a non-school day (being B’s birthday and C’s birthday).

(e)If the birthday time provided for in Orders 17(c) and 17(d) herein interrupts a parent’s block holiday time with the child, the birthday time will not occur NOTING THAT it is not the intention of these Orders to interrupt a parent’s block holiday time.

Christmas days with the mother

18.The father’s time in these Orders is suspended to enable the child to spend time with the mother on 23, 24, 25 and 26 December every year with such time commencing at 8:00am on 23 December if the child is not already in the mother’s care at that time.

AND THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

Chinese New Year with the father

19.In the event that the father wishes to spend time with the child on the special occasion of Chinese New Year set out in Order 20 herein, he is to notify the mother by no later than 31 December each year (commencing with 31 December 2023), specifically notifying the mother when the first 4 days of Chinese New Year will occur the following calendar year.

20.The mother’s time in these Orders is suspended to enable the child to spend time with the father on the first 4 days of Chinese New Year. When those 4 days do not otherwise fall within the father’s time, the following will occur:

(a)The first 2 days of the Chinese New Year:

(i)The child will live with the father commencing at 8:00am on the first day if the child is not already with him;

(ii)If the first 2 days of the Chinese New Year fall on a school day, the father is not required to take the child to school, subject to the following clause;

(iii)If the first 2 days fall on the first 2 days of the new school term, the father is required to take the child to school for those 2 days.

(b)The last 2 days of the Chinese New Year:

(i)If the third and fourth days are on school days, the child is to attend school on those days but remain living with the father.

AND IT IS NOTED THAT: The next Chinese New Year starts on Saturday, 10 February 2024.

Changeover

21.Changeovers which do not occur on regular school days will occur with the father collecting the child from the mother's residence at the commencement of his time, and returning the child to the mother’s residence at the conclusion of his time:

(a)The father will use his best efforts to be on time and keep the mother informed in the event of a sudden delay;

(b)The father will confirm  with the mother via Facebook Messenger that he is out the front of the mother’s residence and will wait for confirmation that someone is available to let X into the residence before leaving;

(c)That if the mother is unable to personally come out of the residence to collect the child then the child shall exit the father’s vehicle and enter the house.

AND THE COURT FURTHER ORDERS BY CONSENT ON A FINAL BASIS THAT:

Communication and exchange of information

22.The parents will communicate by text message where possible or by telephone or in person in the case of an emergency or urgent circumstances relating to themselves or the child.

23.The parents shall keep the other informed of and notify the other within 48 hours of any changes to their residential, postal and contact addresses, telephone and/or mobile telephone number, and email address.

24.NOTING THE MOTHER HAS SOLE PARENTAL DECISION MAKING RESPONSIBILITY AND AUTHORITY FOR MEDICAL MATTERS, the parent responsible for the care of the child is to contact the other parent as soon as practicable if the child becomes seriously ill, is hospitalised, or is involved in an accident, and is to inform the other parent of the name and address of any medical practitioner and treating facility.

25.The child is to communicate with the other parent with whom he is not living or spending time with by FaceTime once per week on a day and time as agreed, but failing agreement, on Wednesday at 6:00pm each week.

26.Should the child wish to call or FaceTime the other parent with whom he is not living or spending time with, the parent (who has care of the child) will assist the child to make the call.

Conduct of the parents

27.During the time the child is with either parent, the parents shall:

(a)Not denigrate the other parent or the other parent’s family or partner in the presence or hearing of the child, and shall remove the child from the presence of others who may be doing so;

(b)Respect the privacy of the other parent and not question the child about the personal life of the other parent or the partner of the other parent, or allow a third party to do so;

(c)Not discuss any issues in dispute between the parents, or discuss these Court proceedings, or allow a third party to do so in the presence or hearing of the child; and

(d)Not engage in any form of corporal punishment of the child or allow anyone else to do so.

AND THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

School attendance restraint – the father

28.The father is restrained and an injunction issue restraining the father from attending at the child’s school during school hours in order to play or meet up with the child (or other school children) at any time chosen by him, unless:

(a)He has the prior written agreement of the school to do so; AND

(b)The father checks in to the school office to fulfil his obligation to register that he is on the school grounds.

AND IT IS NOTED THAT:  So there is no misunderstanding, the Court does not give the father permission to attend at the child’s school any time he chooses to, or to play or sit and chat with the child (and the child’s friends) during lunchtime and school breaks (as has happened in the past) WITHOUT the father first discussing his request to do so with the school authorities and receiving their prior written agreement, and then ensuring that he complies with the obligation to register his presence at the school with the school authorities.

AND THE COURT FURTHER ORDERS BY CONSENT ON A FINAL BASIS THAT:

29.The mother and father are permitted to attend at the child’s school to drop off and pick up the child during their time with the child, to go to school functions and meetings and other school events to which parents are usually invited subject always to the sole discretion of the school authorities.

30.The mother and father are permitted to attend at the child’s extracurricular activities subject always to the discretion of the organising body.

Authority given by these Orders

31.NOTING THAT THE MOTHER HAS SOLE PARENTAL RESPONSIBILITY FOR EDUCATIONAL DECISIONS, these Orders will, without more, act as authority to the child's schools to provide each parent (at that parent's expense) information about the child's education progress, copies of school reports, photographs, and other school communications as is ordinarily provided to parents, always at the sole discretion of the school.

32.NOTING THE MOTHER HAS SOLE PARENTAL RESPONSIBILITY FOR MEDICAL DECISIONS, these Orders will, without more, act as authority to each of the child's medical practitioners (to provide to each parent (at that parent's expense) information about the child's medical condition/s, and treatment/s as is normally provided to parents, always at the sole discretion of the medical provider.

33.Each parent will ensure that the schools attended by the child, and the child's usual treating medical practitioners (including counsellors and psychologists) are provided with a copy of these Orders.

Travel within Australia

34.The child is permitted to travel domestically within 500kms of the City D area with either parent during the child’s time with that parent as provided for in the Conditions and Orders herein.

35.When either parent proposes to travel domestically with the child during their time with the child pursuant to these Orders, the parent intending to travel must provide notice as follows (permission is not required – this is a notice provision only):

(a)24 hours’ notice of their intention to travel;

(b)A copy of the child’s departure and return and detailed short travel itinerary;

(c)Broadly advise contact details of city and suburb including addresses and telephone numbers where the child can be reached.

36.During the travel period, the travelling parent must facilitate a video call or telephone communication between the child and the other parent within 24 hours of arrival at the first destination and on at least one occasion each week and at all times requested by the child.

Overseas travel and passport

37.The parents are to do all acts and things and sign all documents necessary to ensure that the child has a current Australian travel document and/or sign all necessary documents to renew the child's passport and travel document. If the father fails to sign the passport application or renewal, the mother is permitted to still lodge the request for a passport for the child, and the passport is to issue notwithstanding the father’s failure to sign the relevant documents.

38.The mother will retain the child’s passport.

AND THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

39.The father’s application to remove the child from Australia for the purpose of overseas travel is dismissed and the father is restrained from removing the child from the Commonwealth of Australia.

Mother’s overseas travel

40.The mother is permitted to remove the child from the Commonwealth of Australia for the purposes of overseas travel during her time with the child pursuant to these Orders.

41.Separately from Order 40 herein, in the event that the mother wishes to remove the child from Australia for the purpose of travelling immediately to New Zealand to visit a sick relative or attend a funeral (in other words separately from a holiday and in the case of ill health or death of a family member), the mother is permitted to do so. In that event, the mother will give the father as much notice as she can and the father’s time pursuant to these Orders will be suspended for the period that the mother wishes to travel to New Zealand for the emergency visit. Any of the father’s time with the child pursuant to these Orders which would have otherwise occurred during the period the child is away in New Zealand with the mother pursuant to these Orders, is to be made up on the child’s return, as soon as possible and at a time agreed to in writing by the mother.

AND THE COURT FURTHER ORDERS BY CONSENT ON A FINAL BASIS THAT:

Other Orders

42.The Independent Children’s Lawyer (“ICL”) is directed to provide a copy of these Orders to the child’s school and explain that, pursuant to Order 28 herein, if the father attends the school at any time that the decision as to whether he is able to stay on the school grounds is entirely at the discretion of the school NOTING the Orders of this Court reflect that.

43.The mother and father are granted leave to provide a copy of these Orders to any school or educational institution or statutory body; any organisation conducting activities that the child attends; and any doctor or medical professional or specialist attended by the child.

44.The ICL be discharged within 30 days of today’s date, or at the expiration of any other appeal period.

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

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

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

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

REASONS FOR JUDGMENT

JUDGE WILLIS AM:

INTRODUCTION

1. The parties in this matter married in 2013 and separated 4 years later on 30 January 2017. In that time their only child X was born in 2016 (“X” or “the child”).

2. At the time of trial X is aged 7. X is a much loved child and his parents each have a good relationship with him. X’s parents however are quite different as individuals and parents.

3. The mother Ms Perrot currently aged 34 was born in New Zealand (“the mother”). The mother has re-partnered and she and her partner Mr E have a child of their own, baby C born in 2022. Mr E works full time and has a good relationship with X. As a family, they have many activities that they jointly do with X, who adores his baby sister C.

4. The father Mr Xun is aged 42 (“the father”). The father came to Australia at the age of 5 with his family from Country F. In the last 3 years the father has had 5 partners. The father has since had another child, B, with a former partner in a very short lived relationship. The father lives a life that is somewhat carefree, focusing on his interests and hobbies, travelling and living in a vehicle and enjoying the outdoor life that City D has to offer, including playing a variety of sports in City D. The father has a much more relaxed and transient lifestyle whilst living in the vehicle, moving to different locations around City D. The father has not worked full time since around his late twenties.

5. The father is well educated, having attended University and obtaining postgraduate qualifications. After his graduation, he worked as an entertainer as well as a professional until around his late twenties, but decided that his area of study was not the area that he was greatly interested in. Post-separation, the father has spent time moving around at various addresses with seemingly no permanency.

6. This lifestyle of the father’s has caused significant issues and concerns for the mother in terms of X’s wellbeing whilst spending time with the father. Since the matter has been in Court, the father has been seeking orders that X live with him on an equal shared basis with the mother. The father’s lack of stability and his choice of accommodation (living in a vehicle) has been a significant hurdle for years in terms of the parties being able to agree on parenting arrangements, given the father has been seeking overnight time throughout the litigation.

7. The mother has had ongoing concerns at the appropriateness of the accommodation provided by the father living in his vehicle, which is without a toilet or bathroom. The Court is in no way critical of the mother for trying to determine if the child even had access to a toilet or a bathroom whilst in the father’s care. Nor am I critical of the mother for being concerned at the fairly loose arrangements that the father has in terms of not having a permanent connection to any one place or remaining at any one place or even one block of land. Various Orders have been made by this Court for the father to place evidence before the Court as to the appropriateness of his accommodation.

8. However, during the trial the father gave evidence of having acquired a small interest in a home unit which he says he has sole occupation of, and will be living in. The father also gave evidence that he is in a relationship in its very early stages, having only met this partner in early 2023. This partner is a health worker. The father says his new partner has been having a difficult time recently and the father has welcomed her to stay in his unit. In mid-2023, this partner moved into the home unit with the father. The father says he does not intend to charge his partner any rent. Thus far, the father’s partner has paid the sum of $360 seemingly towards some cost sharing, but not the mortgage.

9. The father has recently been reassessed in terms of his child support and he has an assessment which says that on the current arrangements, he is to pay zero child support.

10. That means that the mother is carrying the financial burden of raising the child, save and except for any money that the father may spend when the child is in his care. The mother, as primary carer, is left to pay for all of the food on the table, as well as all the child’s clothes, haircuts, medical requirements, accommodation, travel costs, schooling costs and everything else relating to the cost of raising X.

11. The mother is seeking orders that the child live primarily with her and spend alternate weekends with the father. For the remainder of this calendar year, the mother seeks to start school holiday time for half the holidays with the exception of Christmas, as set out in her proposed orders. Next year, the mother proposes that the school holidays occur by taking alternative holidays so that the mother has the entirety of the April/Easter holidays and then the father has the entirety of the June/July holidays, and in relation to the September holidays that is to be split in half between both parents. Finally, in relation to Christmas, the mother proposes the child spends time with the mother from 23 to 26 December every year.

12. The mother is seeking that she have sole parental responsibility in relation to education and health, and that the parties have equal shared parental responsibility for the other major long‑term issues. The mother is not intending on changing the child’s name nor is she intending on leaving City D as she and Mr E have their families and support systems in City D. The mother is also seeking an order that she be permitted to travel overseas with the child for holidays.

13. The mother adopts the proposal of the Independent Children’s Lawyer (“ICL”) for guillotine orders on the father’s expected lateness in terms of getting the child to changeovers, activities, and school. Guillotine orders give the father a limited amount of occasions he can have X arrive late or not turn up at all at activities/school, after which there will be consequences through changes to the Orders. In terms of X arriving to school late and beyond the time permitted in these Orders, the father’s time for the balance of the term with the child will reduce to conclude on Sunday afternoon, rather than at the beginning of school on Monday morning.

14. In the case of extracurricular activities, the mother wishes to be able to enrol X in school sports or club sports, and to do this, she seeks an order that when the child is with the father he is to take the child to that activity. The guillotine order will operate such that if the father exceeds the permitted time for having the child arrive late or not showing up, the consequence will be a change to the Orders so that for the balance of the term or the balance of the season for an activity, the regularly occurring time for the father to spend with the time will not commence until after the extracurricular activity has concluded.

15. The ICL generally supports the mother’s position that the child remain living with the mother and spend time with the father each alternate weekend.

16. The father has changed the orders sought from the case that he has been conducting for most of this litigation, which is that everything is to be equal because the father thinks that equal is fair. However, the father says that having completed the Circle of Security course and the Post Orders Parenting Program that he now understands that equality of time for a child may not necessarily be in the child’s best interests.

17. The Court has gone through the proposed orders of the ICL very carefully and made small drafting changes to accommodate precisely what is intended. To that end, the father’s proposal is a combination of his own requests and some of the orders from the ICL’s draft, which both the mother and father have used as their blueprint for orders. There does remain some differences though between the orders sought by the father and those sought by the mother, as well as by the ICL.

18. The father seeks orders for equal shared parental responsibility. The father also is opposed to an order being made that he be restrained from attending at the school unless the orders provide for him to do so. 

19. The father seeks an order to spend time with the child each alternate weekend, commencing on Friday after school and concluding before school on Monday. The father is also seeking to have the following Friday with the child from afterschool until 6:00pm. The mother is opposed to the father having the following Friday as well, as it means that she and her family will not ever have the child for an entire weekend that commences on the Friday after school.

20. The father is also seeking an order that he be permitted at some time in the future to remove the child from Australia for the purposes of a holiday to Country F.

21. The father’s cultural heritage is from Country F, and he therefore seeks to have 4 days of the Chinese New Year. Likewise, the mother seeks to have 4 days of the Christmas period each year. In terms of the Chinese New Year, it is possible that this clashes with the first days of the recommencement of school in January. The father would like to have at least the very first two days of Chinese New Year and then another two days either added straight on or a little later. Either way, except when the very first day of school occurs on the very first day of Chinese New Year, (which the father has agreed X should attend but remain in the father’s care that day) the father wishes to have the first day of Chinese New Year. The father seeks an order for half of the holidays.

22. The mother is opposed to the child missing any school for Chinese New Year and says that if it falls in the first week of school (it often falls in January), then the child can live with the father but not miss any school at all and particularly not the first day.  The father asks that if the first day of the Chinese New Year does fall on the first day of school, that this day not be counted as one of his 4 special days for the Chinese New Year day and that he still be permitted to have 4 whole days thereafter.

23. The ICL’s position is that X should go to school on the first day of school whether it is on Chinese New Year or not, but takes no issue with the child spending the balance of the 4 days with the father and that the father can determine if the child goes to school or not in those 4 special days.

    BACKGROUND

24. The background to this matter is set out in the mother’s Outline of Case document, and I adopt that chronology as is set out below.

Chronology of events
Date	Event
1979	The father Mr Xun born, now aged 43.
1989	The mother Ms Perrot born, now aged 34.
2012	Parties commence a relationship
2016	The child X born, now aged 7.
30 January 2017	Parties separated.
2018	The mother moves to her parents’ house in Town G with the child for 9 months.
27 June 2020	The father withheld the child overnight.
9 July 2020	The parties attend mediation.
28 September 2020	The mother commences proceedings.
January 2021	X commenced prep at H School.
23 January 2021	The father withheld the child overnight.
9 July 2021	The Child Inclusive Memorandum Report released.
28 February 2022	First Family Report filed.
19 July 2022	Interim Orders by consent for equal shared parental responsibility and that the child live with the mother and spend time with the father building to each alternate weekend upon father securing suitable accommodation.
2022	The mother’s child to her current partner C was born, now aged 1.
11 November 2022	The father withheld the child overnight.
18 January 2023	The parties attend a second Family Dispute Resolution Conference. No agreement was reached.
18 April 2023	Second Family Report filed.
26 April 2023	Mother files trial material.

1. Despite very specific trial directions to do so, the father turned up on the first day of trial having failed to comply with the trial directions to file affidavit material or a case outline. The father therefore had no updating information. The father has not always made it to Court on time (or on some days, at all). While there have been instances where Orders have been made in his absence, the father was present at Court on the occasion when the trial directions were made.

2. The father was self-represented at the trial. In order to proceed and finalise this matter, the father was given the opportunity to provide updating information in the witness box through questions asked as to his current living arrangements and study arrangements and other relevant matters.

3. A statement of fact represents a finding in these reasons unless stated otherwise.

   THE LAW

4. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).

5. In this matter the paramount consideration is the best interests of the child.

6. In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as twin pillars. I am however, to give greater weight to the second of the primary considerations.

7. Her Honour stated:

   The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm.  These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1). 

   When deciding what parenting Orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC. 

   There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA).  The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.

   If the presumption applies, and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

8. In this matter the father is seeking an order for equal shared parental responsibility. The mother is seeking an order for equal shared parental responsibility save and except that she has sole parental responsibility for all health matters and all educational matters.

   THE WITNESSES

   The Mother

9. Mr Williams of Counsel submitted that the evidence of the mother has not been challenged or found inaccurate in any way under cross examination. I accept that this is so.

10. The mother gave her evidence honestly and openly and, at times, she was careful to make sure that she corrected anything that was not quite right, even if this meant giving evidence against her own interests. My overwhelming impression of the mother is that she is an excellent mother; caring and loving and very competent.

11. By the end of the trial the father acknowledged this too, and apologised to the mother for his past lack of respect for her and her own family life.

12. During the Court process, the mother was popping in and out of the courtroom to ensure that her baby was being fed, and her partner Mr E spent most of the trial looking after their new baby C, outside of the courtroom.

13. I regard the mother as an impressive witness. I also consider the mother has been long-suffering in terms of her having to live with and manage the father’s past ambivalence shown towards her in her role as their child’s primary carer.

14. I accept the mother’s evidence (and it is not contested) that just prior to separation she and the father were living in a tent on a block of land at Town J with no facilities. This was a considerable struggle for the mother and young baby X. The parties together owned that block, and ultimately when the block was sold, the father said he put $40,000 of the sale proceeds into another block of land he bought with his own mother. That new block of land is now in the name of father’s mother only. It seems the mother in this matter did not receive any share of these proceeds.

15. This ambivalence of the father and his lack of respect for the mother has played out in terms of the father too often failing in meeting deadlines at changeovers in accordance with Court Orders. The father’s poor attitude towards the mother has been on display, acted out over years. The father kept saying in his evidence that he was not late every time. That may be so, however, I regard his lateness as being more often than not; quite calculated and entirely against the spirit and intention of the Court Orders and the mother’s fair expectations.

16. I accept the mother’s evidence that she has been subjected to significant inconvenience and has become exasperated at the father’s ongoing inability to comply with time frames as set out in Orders. I also note her considerable distress at the manner in which regular handovers and changeovers have been conducted by the father and his blasé attitude towards the mother.

17. The father has accused the mother of being a time Nazi however, I regard his refusal to comply with the times agreed to or stipulated in Orders, as a sign of significant lack of respect for the mother, who is often left waiting for X to be returned by the father at the time that is specified in Orders with her partner and new baby all waiting.

18. The father’s lateness has not only happened too often, but it ranges from 10 to 15 minutes late, up to 50 minutes late. The Family Report Writer (another person who the father kept waiting) concluded that the father does not have regard to the plans of others when he is spending time with X. I agree.

19. Other issues have arisen regarding the time X spends with the father, over and above his failure to have appropriate accommodation for X. The father has refused to provide proper and full details about where X would be spending time with the father as requested by the mother. The mother had fairly basic questions whilst the father was asking for overnights. Where will X be sleeping? Was it in the vehicle? If it was to be the situation that X was to use a bathroom of the home on which the father had his vehicle parked, was that bathroom really going to be available?

1. This has been an ongoing challenge and worry for the mother, but the father’s attitude has been laid back, with the father providing scant (if any) information that did not satisfy the mother. I consider that mother’s uncertainties as to where the child is spending time and if it was in a safe child appropriate environment, have not been taken seriously by the father, until the matter was listed for trial.

2. I accept the mother’s evidence that after spending day time with the father, X has been returned to the mother’s home dirty, tired, and sunburnt, and/or with mosquito bites. The father has a very relaxed attitude to awareness of skin cancers and sun protection and the perils of mosquito bites. He also has fairly strong views that there are chemicals in sun protection lotions which he is not satisfied about and therefore he is not inclined to apply sunscreen on X, even though the child is living in a sunny climate and getting sunburnt during the time he is with the father.

3. The father has also been in the habit of returning X to the mother’s home together with a plethora of things he has collected whilst spending time with the father. The father expects the mother to store these possessions in her home, rather than have the child leave them with the father. Over the years, this practice of the father saying to the mother that X wants to bring these things to the mother’s home has meant that the mother is left with a lot of toys, rocks, and belongings (including clothes and shoes) that should have been left with the father. The father has never had the courtesy to ask the mother if such an arrangement would be suitable. The father has instead sent these belongings back to the mother to store. No doubt this has been because the father has been living in a vehicle and he does not have the room, so instead the father expects the mother to accommodate his shortcomings.

4. While in some respects, this may be a small matter, it is however, reflective of the fact that the father wants the child to keep these things but does not have any regard to the impost upon the mother and her home. Furthermore, these belongings are to be stored at the mother’s home but on the proviso that they also have to be ready to be returned to the father at any given moment. This has been just one of the many niggling matters in which the father has been somewhat self-centred and self-focused, rather than making any allowances or consideration for the mother’s own life, family, and home.

5. The father routinely interprets Orders contrary to what is stated and/or contrary to the intention. The father seems to adopt the position that if something is not specifically prohibited in the Orders, then he can do it. This has led to further disputes between the mother and father and I have advised the parties that I intend to include an order to the effect that the father’s understanding has historically been entirely erroneous.

6. The father applied his own interpretation to his advantage when he withheld X overnight on 11 November 2022. The Orders of 19 July 2022, which provided for the child to spend Fridays after school with the father, also had a provision that when the father had suitable accommodation, X could spend overnight with him. Immediately upon moving into his own unit, the father took this to mean that he could keep the child overnight after his Friday afternoon with the child, and the father did this without notice to the mother. This Order did not entitle the father to retain the child without notice to the Mother and X.

7. The mother explained in her evidence that she and X were operating on the assumption that X would be returned to the mother at 6:00pm. The mother and X had no idea the father intended to keep X on the very first night the father claimed he moved into his unit. The father collected X for his usual Friday afternoon and did not ring the mother to let her know of his new plan or that he had appropriate accommodation. The father just withheld the child and waited for the mother to ring and find out why the father had not yet returned X. The father says that this is how he read the Orders of the Court. At the trial, the father finally conceded that he ought to have first put the mother and X on notice and obtained agreement that the Orders would now change. This attitude shows the father’s inability to communicate adequately with the mother and his lack of consideration of any plans or intentions the mother and X may have had.

8. Another example of the father’s inability to co-parent or communicate appropriately occurred on 23 December 2022. The mother, her partner, and their extended family were all kept waiting by the father from 8:00am until 1:30pm to commence their Christmas family celebrations set to start at 8:00am. Once again, the father refused to comply with the Orders of the Court and took matters into his own hands. In relation to this specific Christmas arrangement (provided for under the Orders) a specific letter was sent by the mother’s solicitors ahead of time to the father. The letter explained that the Orders provided for the child to be with the mother on 23 December and that the mother requests that the child should be returned to her by 8:00am on that day. The letter very clearly explained the mother was visiting family for Christmas.

9. The father’s failure to comply with the specific written request of the mother and the Orders of the Court to return the child by 8:00am, was an act of pure stubbornness by the father.  On that occasion the father deliberately withheld the child until 1:30pm.  He gave various explanations at the trial of his conduct including that he had plans for the child too. The father did not advise the mother that he would not be complying with her request to have the child back by 8:00am.  

10. Instead, just as he had done before, the father kept the mother and her family waiting and expecting that the father was going to co-parent and show respect for the arrangement. When the father did not return X by 8:00am, the mother called and tried to contact the father. The father did not bring the child back at 8:00am or any time near to that time. The father finally told the mother he would have X back to her by 1:00pm, a time solely determined by him. The mother and her family adjusted their travel plans to account for the unexpected loss of the morning with X. Nonetheless, the father decided not to comply with even his own nominated time of 1:00pm, and made the mother wait until 1:30pm before X was returned. The mother had missed half of the day she was to have under the Orders.  

11. The father attributed this behaviour to the fact that there were conflicting Orders. Certainly the father’s regular weekend would have fallen on 23 December, however, there were also specific provisions made about Christmas in those very same Orders which specifically stated that the child was to be with the mother on 23 December. I do not accept the father’s position that there was some confusion, as looking at all of the evidence, there was a very comprehensive letter from the mother’s solicitor drawing the father’s attention to the fact that whilst there was an order in place for him to have a regularly occurring weekend on 23 December, there was however a more specific Order (overriding the aforementioned Order) for the mother specifically to have 23 December as part of her Christmas time. The letter spelt out in underlining and in bold, that the mother would be requiring the child to be returned at 8:00am on the day. It was explicitly explained to the father in the letter that there was a big family event and that the mother needed to be heading off to that event, with X, by no later than 8:00am.

12. The father’s response to questioning under cross-examination on this issue was initially that I had plans too. The father does not celebrate Christmas and has specifically sought Orders of his own for the child to spend time with him at Chinese New Year. The father also explained that he thought it was fair that he had at least half the day. The father also said the Orders did not spell out the precise time. That may be so, but the mother’s written request specifically set out the time of 8:00am in very clear words. Moreover, the Orders provided for the child to commence spending that day with the mother, not just that afternoon.

13. The father showed no insight as to the disappointment he caused others by these actions. The father did not show any respect to the mother and did not inform her that he disagreed with her proposal. He just left the arrangements hanging with the mother which was quite misleading. The mother and family were packed up and ready to leave at 8:00am. The father had no intention of complying. This conduct was not just an oversight or confusion on the father’s part. The father knew what he was doing, which was to prevent X spending 23 December with his mother and family for their Christmas arrangements. The father gave no reasonable excuses for his conduct.

14. At one point in his evidence at the trial, the father even said in his evidence that the reason that he holds the child longer than planned is because he does not get enough time with him. It is not for the father to solely decide that the time he has under the Orders is not sufficient and then to take matters into his own hands by deliberately returning X late and ignoring Court Orders for special days. The father’s lack of honest and open communication with the mother has been a feature of his co-parenting style.

    Mr E

15. The mother’s partner Mr E was also a witness at the trial. He seemed a capable and devoted father of his new baby C. He has also played a role within the mother’s household in supporting the mother in her parenting. Under cross examination by the father, Mr E accepted that he had once smacked X. He said he did this because X was hitting his mother. Mr E said that he now realises that that was not the right approach and he will desist from any similar behaviour. I accept his evidence that he realised the error in his parenting, and that it would not be repeated. Mr E accepted that he would not be smacking X anymore, and there is plenty of evidence that Mr E and X have a good relationship.  Mr E gave his evidence truthfully.

16. What was clear to me from the father’s questions of Mr E however, is that the father has significant resentment of Mr E at a number of levels. The father stated at one point during the trial that [Mr E] is spending a lot of time with [X]… and I have very limited time.[1] The father, when advocating for an Order that he be permitted to inspect the mother’s household (as the mother had requested to see his household), said that one of the reasons that he wanted to inspect the mother’s house was to see if the house as a safe place for X to live in, given that Mr E is living in the same place as X.[2]

    [1] Page 108 of the transcript of 22 May 2023, line 35.

    [2] Page 91 of the transcript of 22 May 2023, line 10.

17. There is no evidence that Mr E is not keeping the child safe in the home of himself and the mother. I reminded the father that the father now has a nil child support assessment, while Mr E (who works full-time) along with the mother, are the sole financial providers for X, and that the mother and Mr E are working to provide for their own family and young baby, together with all of X’s expenses. I have suggested to the father that he reconsider his antagonism towards Mr E and perhaps start again. Judging from the father’s comments at the conclusion of the trial, I have a glimmer of hope that this may occur.

18. The father asked for an Order that Mr E be made to do the Circle of Security Course as each parent has completed this. That is entirely a matter for Mr E, who indicated he would happily do the course.

19. Mr E has also been directly affected by the father’s lateness. Mr E, together with the mother and their baby C, have routinely sat waiting for the father to return X. I accept that this has been very trying for Mr E, the mother, and X. As detailed elsewhere, Mr E has had his Christmas plans interrupted by the father’s decision not to return X on time at 8:00am on the 23 December 2022, as requested by the mother. Further example, on 17 April 2021, the father caused confusion and inconvenience when the father decided to change the handover location at the last moment. Upon finally arriving at changeover location, Mr E quietly mouthed the words to “what the fuck” when he saw the father. I accept Mr E’s evidence and I regard this as being a response of pure exasperation at the run-around. I accept Mr E’s evidence that the father replied “fuck off” such that X heard it. I accept that the father has subjected Mr E, the mother, and their family to a series of irritatingly late and unpredictable handovers.

    The Father

20. Whilst the father is a loving father, he is a father who has not had the obligation to have the child housed and fed, or his homework done, to go through morning routines and drop-off the child at prep/school, to have all of the evening routines of having dinner and night routines finalised before bed or getting X up and ready for school again the following morning.

21. Significantly, immediately after separation, the father did not have the obligation post separation to pay to accommodate, feed or pay for the other costs of raising X. The mother remained the primary carer and for a period she returned to live with her own parents. At this time, the father went travelling to various places including Country K while he was sorting himself out and left all of the parenting and parenting obligations, including financial support, to the mother.

22. At some point there was an agreement that the father was to pay $100 per week by way of private child support. Ultimately this arrangement was changed to an administrative assessment, however, that has now resulted in a zero child support assessment at the time of trial. The father said in submissions he would be trying to support the child financially nonetheless. The father owns a 50% equity in the Town L block of land and is now a co-owner of the unit he is occupying which is held in tenants in common on a 95/5 basis with a friend of his mother’s. The father says that he is going to occupy the unit whilst paying it off to the mother’s friend. The father seems to be undertaking this plan whilst allowing others to pay the cost of raising X. I am not aware whether all this information has been  provided to the Child Support Agency or not, but whatever the position is, the father is building up assets, while not paying to assist the mother to the everyday costs of raising X. The father says he has paid and will pay for the child whilst X is with him. I would certainly hope so.

23. The father has not had steady employment for over 10 years. He lives on his Centrelink income, whilst coming up with ideas and plans for his business ventures. He and his new partner are planning to open up some sort of business, and in order to do this the father says he is studying, which will also provide him with education as to setting up a business. The father is doing this through attending TAFE for 14 hours a week and he is accessing the Centrelink benefits associated with starting up a business. As I understand it, this is now the second time he has accessed this.

24. The father has not worked in the paid work force for years despite his excellent education. He has chosen to travel widely, bought a block of land, and he now lives in a home unit which he is buying through repayments of rent. This all fits with the father’s own plans to do with having an enriched life. In one of his Court documents, the father described himself as an entrepreneur. He now describes himself as a student. 

25. The father lives a somewhat transient life and has been very elusive and secretive about very basic details. It has only been through the process of cross examination, that the Court has been able to determine that the father has a driver’s licence, although it has an address on it from some 5 years ago.  The father has not kept the licence up to date with his current address. Further, is just a number at M Street in Town N. The father says this block is somewhere where he used to park his vehicle and still travels to. It is certainly not his current address and the father has had at least 2 or 3 other addresses in the years in between. The father’s driver’s licence has not been kept up to date for years. It was clear that this was not of any importance to him.

26. Under cross examination, the father was questioned about the fact that he has two different birthdates on significant documents.  His evidence for this anomaly is that his father (a refugee at the time) filled out an application for the father when the father was a child (who was living with his mother and siblings in Country F) and could not remember his child’s birthdate and so selected a random date. The father’s actual birthdate is different to the date on the father’s passport.  That is the date that the father celebrates his actual birthday. The date shown on the father’s passport is not the father’s birthdate and is different from his licence. This has never been remedied by the father.

27. The father has not lodged a tax return for at least 10 years as best he can remember. The father says he is on the electoral roll for Queensland but does not know in which area he has voted and whether it was a State or Commonwealth election. He says he voted at the last election but was not really sure about it. The father says his grandmother holds his Australian citizenship certificate. All of these issues give the father a questionable profile. The father does not look after the administration of his own life. This is particularly relevant in terms his wish to travel out of Australia and overseas with X. 

28. The issue of travelling overseas is another issue about which there is some disagreement. The mother has proposed some orders in trying to appease the father, as seen in the orders that she proposed for overseas travel given the father is seeking to remove the child from Australia and travel with him to Country F. When given an opportunity to express her position, the mother was not in favour of the child travelling to Country F any time soon. However, to appease the father’s request, she suggested that perhaps when the child turns 12 he could go to Country F with the father – but on the condition that one of the father’s family members (such as his brother or mother) went with the father, and stayed with him for the duration of the holiday.  That immediately became complicated as demonstrated by the father when he started asking what would happen on that plan if that person was not there the whole time.

29. The mother gave evidence that in her view the father is unpredictable and that Country F is a busy and a diverse country. X does not speak the language and the mother is quite worried that the father may place the child at some risk or that the child will be overwhelmed by the experience of travelling with the father.

30. I accept that the mother’s concerns about the child travelling to Country F are legitimate. The father is a very relaxed and disorganised individual, who seems to free range in his living style and locations as the mood takes him. The father does not present with the normal ties to Australia that a parent wishing to travel overseas with a child in circumstances where there is some mistrust might have. The Town L property which the father says he has a half interest in not in his name, rather it is held in his mother’s name (who speaks very little English according to the father). The unit in which the father says he is a part owner of is held in the proportion of 5% to the father and 95% to his mother’s friend. Overall, I am not satisfied that the father has a secure, stable enduring link to Queensland or even Australia.

31. The father has prevented the mother from travelling back to New Zealand with X. The mother first approached this Court when she wanted to return to her birth country of New Zealand and the father would not agree to let X travel outside of Australia with the mother. This occurred in mid-2021 when the mother wanted to go to see her grandmother who was very unwell and the mother wanted X to meet his grandmother before she passed away. The mother had to finally bring a Court application to be able to travel to New Zealand with X. In what has become a typical trait of the father, the matter was listed for a contested hearing and during the hearing, he then agreed. The mother spent over $7,000 on legal fees to bring this application. The father is on Centrelink.

1. The father’s refusal to agree to the mother’s proposals has resulted in the necessity for the mother to resort to Court action. This has been occurring from the commencement of proceedings, including at the trial of the matter. The mother refers to previous agreements having been reached with the father in the past about the child’s living arrangements after mediation with a Registrar, but which the father would not ultimately sign off on. This necessitated the mother to proceed with her litigation right to the final hearing.  In relation to this trial, the father did not file his trial material in line with the Court’s trial directions and it was not known if the father was  even going to turn up to the final trial. The father had not attended at the latest Court event prior to the trial. The father said he got confused about what day Court was on and that he did not comply with the trial directions (or even file an updated affidavit) because he was overwhelmed with the process and other things in his life.

2. The father has a life where he has no work, and has an abundance of time to attend to all of his own interests such as TAFE, gardening and other hobbies and pursuits. He did not prepare any trial material, so it is not apparent to me what he is overwhelmed with.

3. In terms of schooling issues, the father has proposed various schools for X in the past and has some complaints about H School. The father was hesitant in saying that he was not going to change X’s school, saying words to the effect, that he would not unless X wanted to. The father has in the past proposed that X attend the O School in Town L (well away from the mother). The father has also proposed he will home-school X. The mother is in disagreement with these choices and wishes for X to remain where he is currently at school, but that she would consider another school if X was bullied. The mother seeks an order for sole parental responsibility for education and health issues on the basis that she and the father are unable to communicate well enough to make joint decisions and that she has very different views to the father on many topics associated with parenting, including schooling and health. Their communication is also sadly lacking.

4. One of the other issues for the mother is that she wishes to know who the child is living with at the father’s, as all that the mother knows is that X comes home talking about someone new in his life. The father was asked during the hearing to list the number of partners he has had in the last 3 years and listed 4, but overlooked the mother of his other child B, which makes 5. The father is a very caring friend and partner and has opened up his home rent free for his most current partner. The compromise for this request was agreed to by the parties, on the basis that they would each advise the other if there is someone other than their current partner staying over.

5. In relation to medical matters, the father has given evidence that he likes to get a second opinion, seemingly most of the time. He says he does not really trust doctors or hospital staff. The father recounts an incident allegedly occurring when X was born in 2016, when the father says a nurse took a blood sample from the newborn X. The father believes that the nurse abused or mistreated X and said that his hand was swollen unnecessarily after the nurse had taken a blood sample. The father cites this as an example of why he does not really trust what the medical profession tell him and that he considers that their proposed treatments are not always correct or appropriate and must be questioned.

6. The father has a very different attitude towards parenting than the mother. They are in total conflict in relation to their attitudes towards parenting. This decision by the father that a second opinion is always required became problematic when the father refused to agree to X having a medical issue treated as was recommended to the mother by the dentist the mother had consulted. The dentist’s advice was that this needed to be operated on straight away to relieve the pain and discomfort it was causing X. The father wanted the mother to get a second opinion. Meanwhile, X was left with an extremely painful condition and the mother was left not being able to authorise the treatment. The mother finally took X for the anaesthetic and the necessary operation to relieve the pain and suffering.

7. The father also has his own views about chemicals in sunscreen, to the point where he prefers not to use it. The mother complains about the child coming home sunburnt, not every time the child has spent time with the father, but on some occasions. The father very much enjoys taking X out camping and looking at nature and having fun. However the father will not use sunscreen and says instead he prefers to use a hat and to put a long sleeved shirt on X. I consider the views of the father as somewhat naïve, as it is still possible to become very sunburnt when a child is out playing, running and swimming. Areas like his feet, legs, shoulders, lower back, and other areas are not safe from sunburn with simply a hat or long-sleeved shirt. I do not consider that the father’s strategy of the child wearing a hat and a long-sleeved shirt accommodates nor passes as adequate sun protection. I queried with the father whether he had any experience with the potential of a melanoma developing. He had not.

8. I accept the mother’s evidence that the child has returned very sunburnt at times. I also accept the mother’s position that the sunscreen is necessary, particularly living in Queensland, and where outdoor play is very normal and a part of everyday life in the hot tropical climate.

9. Similarly, the father does not believe in mosquito repellent and X has been returned to the mother with mosquito bites. The father likes outdoor camping and wants to take the child camping. The mother is happy for X to have a good time with the father, however, gave evidence that the child comes home dirty and sometimes, covered in mosquito bites, as set out in her affidavit. I understand that a child may get dirty having fun outdoors, however, the mother describes X coming home filthy and needing a bath straight away, no doubt due to the father not having access to a bathroom. In my view, the father’s refusal to apply anything to protect the child from mosquito bites is not placing the child’s level of comfort and health as a priority. The father described the mosquito bites as unavoidable, more uncomfortable than distressing. [3] Ultimately, his position was simply that he would just tell the child not to play where there are mosquitos. This is another example of the mother and father having totally different views, and of the father putting his belief system over and above the practical reality of preventing X from becoming sunburnt or suffering from a mosquito-borne disease such as dengue fever.

   [3] Page 134 of the trial transcript

10. The father’s position that X could stay overnight in a vehicle with no bathroom facilities has been maintained by the father for years. The mother has noted other issues when X returns to her care, including that X has developed the habit of urinating at various places other than the toilet including in pot plants and other places around her home. X tells the mother he is able to do this rogue urinating when he with his father.

11. The mother also has requested the father to buy some goggles as X is returning home both sunburnt and with bloodshot eyes after being taken swimming by the father.  The mother has requested the father buy a full-body swimsuit rather than having X swim in his undies.

12. The mother is enforcing courtesy and saying “please and thank you” regularly to X, but notices after the child has spent time with the father he has forgotten all of those courtesies. The mother describes X as being quite “wild” on his return from spending time with the father.

13. As mentioned elsewhere in this judgment, changeovers frequently involve the mother and her partner sitting and waiting for the father at the prescribed time, however, the time deadlines and time restrictions are not observed by the father. I listened to the mother explain how difficult it was now, particularly with their new baby, to have to sit at a place in the car, with everyone waiting for the father to return X at a time of his choosing, whether it be 10, 15, 20 or 50 minutes late.

14. To address this irritating conduct of the father, the mother has more recently requested that the handovers occur to and from the mother’s home. The mother said that this reduces the stress levels in the whole household, because they could all be going about their business and X can be playing in his own environment, and whilst the father is late, it’s not affecting everybody else as much as sitting in a car at an outside location.

15. This type of behaviour was on show again when the second Family Report interviews were scheduled. I have listened to the father’s explanation as to what he thought the situation and arrangements were with the Family Report Writer.  I have also listened to the evidence of the Family Report Writer. I do not accept the evidence of the father that the Family Report Writer told him that she would come to him where ever he was, that there would be no timeframe mentioned and that it was fine for the father to get there whenever he could.

16. When the Family Report Writer gave her evidence, she explained that she told the father to meet at P Venue on Q Street. The Family Report Writer gave evidence that when she first arrived to see the father, he had forgotten that she was coming, and said he was about to go and pick X up from school. The Report Writer said that they then agreed to meet at 3.30pm at P Venue on Q Street once he had collected the child from school. When the father had not appeared by 3:45pm, the Family Report Writer rang the father only to be told that he had gone to get his other son, B, so that B could have contact with X as well. After that, there were some other phone calls and the father said he was at the river because X had wanted to have a swim. The Report Writer said to him “Well, our arrangement was that we meet at [P Venue] and that’s where I am,” and he said, “Well, you can walk down here. It’s not too far.” The Report Writer replied, “No, the arrangement was at [P Venue]. I’m here.” The father is seen again trying to change arrangements and locations as he has done with the mother.  The father knew the Family Report Writer was waiting for him at P Venue to do her observations.

17. The father then blamed the Family Report Writer for not being at the agreed place, while also saying in his evidence that there was no place agreed. I accept the evidence of the Family Report Writer that she did not ever make an arrangement that did not involve a location or time. The Family Report Writer said in her evidence I wouldn’t do that because you would spend hours looking for somebody. I explained to him that I would be seated at the front, looking at the street in front of [P Venue], and that’s where I waited. [4] I accept the Family Report Writer’s evidence and reject the father’s suggestion that the arrangement was loose with no mention of a location. I consider that the Report Writer had good grounds for being frustrated by the father’s failure to respect a commitment to attend at a certain time. This is just another example of the father not being able to commit to a specific place at a specific time, and trying to control or change arrangements.   

    [4] Page 186 of the transcript of 23 May 2023 (Day 2).

18. My impression of the dynamic between the mother and father is that the mother is the adult who is trying appease the father, and that the father knows this. The mother at times looked visibly affected and compromised by the father’s views and accepted that she does find herself trying to appease and accommodate the father’s requests, even to her own detriment. There has been a strong degree of control and power in the father’s behaviour, and the mother has found herself always trying to accommodate the father’s unreasonable positions.

    THE ISSUES IN DISPUTE

19. The issues still in dispute between the parents by the end of the trial were:

    (a)Parental Responsibility – the father seeks an order for equal shared parental responsibility. The mother seeks an order for equal shared parental responsibility but that she have sole parental responsibility for education and health.

    (b)The father seeks an Order that he have the additional day on the alternate Friday so that the X is with him each Friday as well the alternate weekends.

    (c)The father asks that he not be restrained from attending at school to see / play / sit with X whenever he feels like it, including during the child’s lunch breaks and morning tea breaks or when the mother is collecting X. The mother and ICL are opposed to this.

    (d)The father wishes to share the changeovers with each parent meeting at a nominated third location / midway venue. The mother and the ICL are opposed to this. The mother wishes changeovers to stay at her home and that the father exclusively shall do the picking up and returning.

    (e)The father wishes to have 4 days of Chinese New Year with X, and if the first day of Chinese New Year is the first day of school, the child will attend school, and then the father’s 4 days will start. The mother does not wish the child to miss any school in the first week of the new school year for Chinese New Year.

    (f)The mother wishes to be able to travel with the child to New Zealand. The father has been asking the mother about the child travelling with him to Country F.

    The father’s attendance at school to see / play / sit with X

20. The mother and the ICL support an order that the father not be permitted to attend at the child’s school at random times of his choosing. I accept the evidence of the Family Report Writer that this behaviour is most disconcerting not only for the child, but also for the school and its community. The evidence is that the father has on at least 2 occasions, just turned up at school and has not checked into the office, but rather just headed to the playground. He found X and then stayed and played with him and his friends. Even when approached by teaching staff inquiring what he was doing in the playground at lunch time, and informing that he needed to check into the office, the father disregarded this and did not check into the office.

21. The father at one point in his evidence said that he did not do check into the office as he was going home with the child, however, this is incorrect. He was not heading home with the child and it was not a day the child was to spend time with him under the Orders.

22. Bafflingly, the father had no inkling that his decision to just enter school grounds and not even check into the office was unusual. The father just said he was a parent and asked what was wrong with going to see his child. The father looked puzzled when it was suggested that the school needed to know first who is entering the grounds and questioned him whether he thought it appropriate to just approach a child. The father became very defensive saying that X loved to see him, and that all the other children that the father played with in company with X enjoyed it too. The father did not show any insight that other parents may be worried at the prospect of an unidentified person just strolling in to the school grounds to start playing with their children during school hours play time, purporting to be a parent. The father said:

    …When I visit him, it was a joy for him and all his friends were playing with – like, we were all playing together so there was none – no embarrassment.  He actually enjoyed it. It could be a problem if it’s someone that is dangerous, but no.  I don’t see myself as being a problem… Maybe, if I was a predator, but no.  I’m not a predator… because there are many parents that pick up their son and just hang around the playground, and we kind of all pretty much know each other.  So I don’t see it as a problem because yes, we – most of the times, we’ve met each other, and it seems like an okay thing.[5]

    [5] Pages 109-112 of the trial transcript of 22 May 2023.

23. I do not accept that the Court should make an order essentially overriding the school requirement that parents check into the office, and that they do not just come up to school, enter school grounds, and then start playing with school children. The Family Report Writer explained that school is a sanctuary, that there are rules about how the parents can participate and attend – either by helping in the classroom, or volunteering at tuckshop and/or at other school events and facilities. I agree with the Report Writer that the freedom the father is seeking is not in the best interests of young X. I do not agree to make the order that the father can go up to school any time he chooses to. The father naively states that I am not a predator without having any regard to the school policy that is based on the protection of children which has been intentionally shaped by the school to safeguard children as a result of incidents that have happened or could happen with the schoolchildren. 

24. The father has the habit of reading this Court’s Orders how he wants them to work. In the past he adopted the position, that if the Orders do not explicitly and expressly say he cannot do something, that he then takes it as good as permission for him to do the thing he wants to do. I therefore intend to make Orders preventing the father entering the school grounds (other than to deliver or collect X, pursuant strictly with his time provided for under the Orders) unless he has the prior written agreement of the school authorities. I will grant leave for the mother and/or the ICL to provide a copy of this Order to the schools that X attends.

    Time at Chinese New Year

25. The father seeks special time for Chinese New Year. The mother is not opposed to this in principle. However, when Chinese New Year falls on the first day or during the first week of X’s return to school, the mother does not agree that that X can spend the allocated 4 days with the father. The mother is opposed to X missing any day during the first week of school. The father always wishes to have the first 2 days of the commencement of the Chinese New Year, and says that if the first 2 days happen to occur on the first day of school, he will take X to school on the very first day of school, but then have his 4 days. 

26. The ICL proposes that the child lives with the father during those 4 days, but that the child always attend the first 2 days of school, whether or not it is Chinese New Year.

27. The parties have agreed that the break-up of the Christmas school holidays will occur so that X spends the first week of the school holidays with the father (from the conclusion of school on the last day), and then again with the father for the last two weeks, ending at 8:00am on the last Friday. This is in the context of the school holidays ending on the last Friday and that the midway point will be determined as the day which is midway between the first Saturday immediately after school break up and concluding on the last Friday with the father. This is so that X is back in place in readiness for school with the mother, rested and organised.

    S. 60CC(2) THE PRIMARY CONSIDERATIONS ARE:

    The benefit to the child of having a meaningful relationship with both of the child’s parents; and

28. I am satisfied that X should have a meaningful relationship with each of his mother and father. He is a much loved child.

    The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

29. There are no issues of abuse or psychological damage, however, the father’s antithetical attitude against mosquito repellent and sunscreen could both result in harm to his skin, and both short-term and long term damage could be seen as a form of neglect when such methods are deliberately and obstinately not used.

1. I have suggested to the father that the Court could alleviate the risk of possible sunburn and mosquito bites and the risk of potential future skin cancers by requiring the father to take preventative measures (for both issues of sun protection and insect repellent) as recommended by the child’s general practitioner. I consider that there will be significant value to the long‑term and short-term welfare of X if he is able to be protected by proper means from sunburn and masses of mosquito bites.

2. The ICL and mother and father seem to support this option. 

   S.60CC(3) THE ADDITIONAL CONSIDERATIONS ARE:

   S.60CC(3)(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

3. X has turned 7 this year. He has always lived with his mother and he has a close and loving relationship with her. The Family Report Writer observed that X also likes Mr E and reported that X said that Mr E talks to him and helps him do things. X explained he felt safe at home with his mother and also safe with his father.

4. X said he was okay visiting the father in the bus – but just for a visit and not to stay. In the second Family Report he said he was pleased he did not have to sleep in the vehicle anymore and that he liked to see his father but that he would feel funny if he had to go to school from his father’s house. He then said he would prefer to be with his mother on school days. He added he would like some more time with his father but maybe during the school holidays.

5. The Family Report Writer concluded that X enjoyed his time with his father and that they had a positive relationship. X was described as being very articulate for his age and that he presented as an energetic, bright, and articulate young boy. 

   S.60CC(3)(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)

6. The Family Report Writer observed that X had a strong and secure attachment with his mother. On the day that the child was first observed with the father, he was to be returned home to the mother at 6:00pm. The Family Report Writer observed that the child was not returned to the mother until 6:21pm.

7. The Family Report Writer observed that X showed her his rocks and chatted easily with both his mother and Mr E about his collection and that he smiled and engaged in positive ways with his mother and Mr E. X was observed to be engaging in an atmosphere that was relaxed and happy at his mother’s home.

8. The observation with the Father did not start until 3:45pm (15 minutes late) and, as detailed earlier in this judgment, the Family Report Writer had been waiting since 3:30pm. The father had been to pick up X and then after that the father phoned the Family Report Writer to say they would be not be coming straight away as X wanted to have a swim at the river where the father was (which is further down the Q Street and P Venue). However the impression gained from the observations was that X enjoyed his time with his father and that they have a positive relationship.

9. I accept that the father very much enjoys his time with X, and often he seems to be guided by the wishes of X, given his descriptions that X wanted to play and swim after school before heading off to their meeting with the Family Report Writer and noting that the Family Report Writer was waiting. The father also said a couple of times that he would consider X leaving H School, if X wanted to. He would take X to sport on a weekend, if X wanted to. I had the impression he may lack parental authority. I am not confident that the father has the ability to exercise parental guidance as opposed to asking this young child what he wants to do. His answers about “if [X] wants to” in this context were not reflective of the father adopting a parental view in conjunction with the mother, but rather, simply asking the child what he wants and acting upon those whims.

10. This was discussed during submissions and the father agreed that he would take X to his extracurricular activities to enable him to participate in team sports. I accept the position of the mother and the ICL that playing or engaging in a sporting (or other) activity is an important developmental and social opportunity for X. Whilst the father’s evidence was  initially that he would take X to the commitment if X wanted to go, by the end of the trial, the father had given the matter more thought and agreed that X should have the opportunity to play team sport and engage in other extra curricula activities during the week or weekend. The father told the Court he would ensure that X is taken to these activities and be on time. Effectively, the guillotine orders drafted by the ICL have been explained to the father, and he has indicated to the Court that he understands how this will work. The father assures the Court he will not be late to school and he will be taking the child to extracurricular activities. On that basis, I will make an Order to this effect so that there is no misunderstanding.

    S.60CC(3)(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.  

11. The father has been a loving relaxed father who has been confident in the knowledge that the mother will provide accommodation, food, education, clothes and all of the other requirements for X (essential and otherwise). The mother has also provided a stable home base for X to live in, and a stable home base from where he is able to leave from and return to after spending time with his father. At times, the mother’s home has been the only stable home base for X. The father did not spend time with X right after separation and was content to leave the parenting once again to the mother.

12. A significant issue has been that the father has had various addresses which I have made reference to elsewhere in these reasons.  On the evidence before the Court now, most of the rocks and other possessions gathered up by the child whilst he has been spending time with the father, should be retained by the father in his home, ready for when X returns. The mother’s home is not to be regarded as storage area for such items. It is time the father took responsibility for and built up a stable environment with a room, and everything that goes along with setting up a child’s room – including places to store such items.

    S.60CC(3)(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. 

13. At present, the father is failing in his obligation to financially support the child and is leaving the entire financial support of X to the mother and Mr E. The mother has always provided financially for X.

    S.60CC(3)(d) The likely effect 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.

14. The effect of the extra day (being every Friday) that the father is seeking, after he also has every alternate weekend from Friday to Monday, is that the mother and her family will never have the opportunity to have a weekend commencing Friday after school with X.

15. I understand that the father wants to have X on the second Friday as that is the day each week that he spends time with his other son B. That may be so, however, on the father’s plan, X will be separated from his mother and family and new sibling every single Friday.

16. The mother’s proposal has the advantage that it will permit each family to have a Friday afternoon as the precursor to their weekend. Her proposal provides equal opportunity for each parent to spend significant and substantial time with X. It will also mean that X gets to spend an entire school week in his mother’s household.

17. The recommendation of the Family Report Writer is that X spend a block of time with the father, each alternate weekend, and I consider that this is the proposal that has the most advantages for X which enables him to spend a complete, uninterrupted period of time with the mother, and also with the father. I consider that the alternate weekend time as proposed by the mother and ICL, together with the holidays and special occasions proposed in the Orders, provide sufficient opportunity for the child to enjoy a meaningful relationship with the father.

    S.60CC(3)(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.

18. There is no significant distance that presents any hurdle in terms of changeovers. The difficulties have been associated with the father’s conduct as referred to in these Reasons. Having heard all of the evidence, I am satisfied that the non-school changeovers should occur to and from the mother’s home. In the past, the mother has been put through significant inconvenience and time wasted by the father. Some of this was because the father was deliberately holding the child back from returning at the agreed or Court ordered time, because the father wanted more time with the child. This has been done without regard to the child’s need for stability and routine. X is entitled to know when he will be going back to his mother’s. The mother is also entitled to be able to carry on with her other family obligations without waiting at a halfway point indefinitely, or having the father say he is no longer going to the halfway point and nominating another location. 

19. I am most troubled about this aspect of the father’s behaviour. The father has acted in a most contrary fashion in relation to changeovers and the location.  I consider that the father knew he was causing the mother maximum inconvenience. I therefore do not intend to make orders that the parties can meet at a “halfway point” as suggested by the father. The order for the most stable and convenient changeover, other than school, is to and from the mother’s home, with the father to do the collecting and returning.

20. As to the child coming home with an abundance of possessions he has collected or found whilst out with the father, it seems to me that that these were being sent back to the mothers’ home because the father had no permanent place to live and had only the bus to store the child’s belongings. 

21. The father’s proposal for changeovers to occur at a halfway point is fraught with difficulty given what I have observed as the father’s inability to be punctual or to communicate respectfully with the mother. At times under cross-examination of the father, there was a harsh edge to his answers and attitude in this regard. I am hopeful, but not certain, that the father will change his ways and develop (as he said he would) a respectful relationship with the mother, who he has agreed is an excellent mother.

22. The mother’s proposal of having the father collect and return X to her home prevents the serious inconvenience that has been occurring for the mother. Whilst the father now does have a home unit, if the orders provide for the parties to do changeovers to and from school, that would dramatically reduce the number of occasions that there are “non-school” changeovers.

23. It will, of course, require the father to have the child to school on time (being prior to the time school starts), and it will require the father to be ready to collect X at the conclusion of school on the days that the father is to collect him. The orders proposed by the ICL and supported by the mother provide for the orders to change to more restricted times in the event that the father is either late to school or late or fails to get to the child to his extracurricular activities. These orders were explained to the father and he understands the proposal and the basis of the proposal. The father has indicated to the Court that he will get the child to school on time and he will take the child to extracurricular activities.

    S.60CC(3)(f) The capacity of each of the child’s parents; and 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.

24. The mother is an excellent mother, child focused and competent. She has always put X’s interests above her own,

25. The father has spent a lot less time with X and has not had the responsibility to provide for or educate X as the mother has done.  The father is an untested parent in this regard. The father says he can do this. Time will tell. If he does not become punctual and work around X’s commitments, X will be the person who will suffer from the response of his team members or other students  relying on him, who will begin to know X is unreliable.

26. The mother has the parenting experience to be able to provide for X’s intellectual and emotional needs. The father loves X dearly, but he is going to have to step up in relation to his parental responsibility to ensure that X’s homework and projects that need doing have his full support. Very importantly as explained above, the mother has agreed to X spending Friday to Monday morning with the father, strictly with the expectation that the father will be punctual in taking X to school properly prepared, as well as taking X to his extracurricular sport that occurs on Saturday or Sunday or any time with the father. The father has assured the Court that he will take on both of these parental responsibilities.   It is on this assurance of the father, that the ICL supports the proposed Orders.

27. The father does not have a good track history in this respect. The ICL proposes that if the father is late or fails to get X to his weekend sport or practice sessions on 3 occasions in any one term, then the time for X to spend with the father will change from Friday after school, and will instead start after the weekend or after-school sport or activity has concluded. I agree that this default order is required to prevent the necessity of further litigation.

    S.60CC(3)(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.

28. X has a mixed cultural heritage of Australian and Country F heritage. The Orders proposed will enable X to spend significant time with each party on days of special importance and which are celebrated by his respective parents.

29. The parties have agreed that the child with spend 4 days of the special Christmas days with time with the mother each year in line with her beliefs.

30. The father wishes to have 4 days with the child spent through Chinese New Year each year in the same fashion as the mother has 4 days of Christmas. Whilst the mother supports X celebrating Chinese New Year, she maintains a position that X’s schooling should take priority and that whilst X can live with the father for these 4 days that X should not miss any school that occurs during Chinese New Year.

31. The ICL proposes that X has the opportunity to attend Chinese New Year events and to live with the father for 4 days. In relation to school, the ICL proposes that if the first and second days back at school coincide precisely with the first and second days of Chinese New Year, then the father should be required to take the child to school for those 2 days. Given the shifting calendar for Chinese New Year, this should not happen on too many occasions, if at all.

32. I accept the submission of the ICL as it enables X to be present at school for the important first and second days back, usually with a new teacher, new place to sit and a new class, while still living with the father and being able to celebrate Chinese New Year out of school hours. The father requested that he have make-up time in the event that the first 2 days of Chinese New Year fall on the first 2 days of school however I do not intend to make this order. The child finishes school around 3:00pm and there is still plenty of opportunity to enjoy meals and street parades and other activities outside of those first 2 days.

33. To avoid confusion about which days X will be celebrating Chinese New Year, I intend to give the responsibility to the father each year to notify the mother by no later than 31 December of each year, of the specific 4 days X will be living with him and whether or not those days coincide with the first 2 days of school.

34. I also accept the ICL and father’s position that if the first 2 days of Chinese New Year fall on a normal school day that the father ought not to be required to take the child to school on those days[6]; but that if the third and fourth days fall on any school day then the father should take X to school on those days but the child is to remain living with him. In other words, a balance needs to be drawn to accommodate X meeting and mixing with his new classmates and teacher on the important first and second days of the school year. Chinese New Year is the most significant holiday in Country F culture and this is a chance for X to spend time with not only his father and paternal family, but all other community members who are observing Chinese New Year traditions.

    S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

    [6] “Normal days” meaning not the first and second days of the school year.

35. The mother is a confident and responsible parent.

36. The father has been unreliable in terms of his picking up and returning X on time, and in terms of sticking to the correct hand over location. The father has not provided X with appropriate accommodation for some years now and has relied on the mother to do this. Generally, the father has been resistant to working with the mother and respecting the intention and terms of the Court’s Orders.

37. The father has also failed to comply with Orders for X to spend specific time with the mother. In agreeing to these Orders, the mother and the Court have an expectation that the father will adopt a rational interpretation and show an appropriate respect for the Orders of the Court (and the intention of the Orders) and exercise appropriate and responsible parenting.

38. The father has been most remiss in properly caring for the personal needs of X in terms of his hygiene, sun protection, and mosquito protection.

    S.60CC(3)(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.

39. The Orders proposed by the parties are Final Orders and will result in the litigation coming to an end. The cost to the mother has been onerous. The father by contrast has been half-hearted and failed to comply with trial directions or attend at all Court events.

40. It is not in the best interests of X, that the primary carer and primary financial provider for him, being the mother, incur further legal costs.

    S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant.

41. As to the overseas travel for each party, the mother’s proposal to travel to New Zealand with the child to visit family (under dire circumstances – the purpose of which was to visit an ailing aging relative) was opposed by the father. His staunch refusal is what lead to the commencement of these proceedings by the mother. Only once the mother had filed her application and the matter was listed for a hearing, the father then decided that he was no longer opposed, but this only occurred in the Court room during that hearing.

42. I am confident that the mother can be relied upon to remove the child from the Commonwealth of Australia for any purpose, to travel anywhere, and that she will return to City D. The mother is well settled in City D and I am satisfied that her intentions for travel outside of Australia with X will always occur in accordance with his best interests.

1. As to the father, I have already explained the reservations that the Court has about the father’s proposal to remove the child from Australia and travel to Country F. I consider that there is insufficient evidence of the father’s links to Australia. I am troubled about his overall casual attitude and reluctance to be candid with the mother about very important requirements regarding his life in Australia such as:

   (a)His failure to give any real attention or importance to having his current address on his licence as opposed to having an address of 5 or more years ago;

   (b)His unconvincing evidence that he thinks he has voted recently and that he is on an electoral role, but doesn’t know which one or when he did actually vote;

   (c)His evidence that his date of birth on his passport is inaccurate;

   (d)His evidence that his birth certificate and his real birth date are different to his passport date of birth.

2. In addition the father is generally, whilst a loving father, very unreliable. He cannot be relied upon to meet at certain times or places and tends to insert and treat his own needs with priority above others’, leaving others waiting and generally not knowing what is going on.

3. Overall, I am not at all satisfied that he has the parental capacity or organisational ability to remove X from the Commonwealth of Australia for an overseas trip anywhere, including Country F. Importantly, the mother has had a variety of experiences in dealing with the father where he has worked his own agenda into Orders of the Court regardless of any arrangement he has made with her or Orders of the Court. To this end, I am therefore not satisfied that the father could be trusted to comply with any restrictions imposed by the Court as to his travel with the child. I have a strong impression that he would organise the travel according to his own agenda, regardless of any restrictions in Court Orders as to who is to travel or where the travel is to occur or any requests of the mother. I am not satisfied he would even maintain communications with the mother if he removed X overseas.

4. I accept the mother’s evidence that Country F is a busy bustling country, that X does not speak the language, and that in the father’s care, X could be quite overwhelmed by the whole experience. Country F is not a Hague Convention Country and it is possible that the mother could find herself, once again, having to spend significant funds to engage lawyers to act on her behalf to retrieve X from an overseas location if he travelled with the father. This could occur as a result of a deliberate plan by the father, or through his overall mismanagement of a planned trip.

5. I am confident that the mother fully respects X’s Country F heritage and that she has enjoyed a positive relationship with others in the father’s family, however, given the paternal grandmother speaks very little English, I do not consider that it is of any comfort to the Court whatsoever to have the paternal grandmother or any other relative accompany the father. I would not expect any of the father’s relatives to be able to ensure that the father complies with the Orders of the Court and of course the relatives would not themselves be bound by any Orders of the Court.

6. I am therefore not prepared to agree to the father’s request to remove X from Australia and travel to Country F (or anywhere else), as this proposal is fraught with difficulty and not in the child’s best interests. 

7. I am satisfied that when the mother considers that X could manage an overseas trip with the father, that the mother will agree and not be obtuse. Until such time and other than that however, the father’s proposal in light of all my findings, is one which I do not consider to be in the child’s best interests.

   S.61D PARENTING ORDERS AND PARENTAL RESPONSIBILITY

8. Having heard all of the evidence, the presumption of equal shared parental responsibility is not rebutted as a result of abuse, neglect or family violence.

9. As to whether it is in the child’s best interests for X’s parents to have equal shared parental responsibility however, I am very mindful of the completely differing parenting styles of the parents, together with their very different views about schooling and medical matters, as referred to in the evidence. The communication between the parties has also been very problematic and I consider that part of the problem has been that the father has not had sufficient respect for the mother and her life and commitments. The father apologised to the mother at the end of submissions for some of his past disrespect and the difficulties she has endured. I am hopeful for some change, however, that will only be seen in the father’s future conduct. Overall there is very little trust between the parents as well as a significant disparity in terms of the lives they have each chosen to live and their parenting views.

10. The father has a much more laissez faire attitude towards parenting. He has demonstrated that in his communication and parenting with the mother, he can be quite high handed and controlling by taking matters into his own hands regardless of the mother’s views or the Orders of the Court. The mother is much more organised and structured. The mother conducts her life with routines and provides stability for X. The mother does not share the father’s views about home schooling nor does she agree to X attending O School. The mother does not agree with the father’s decisions not to administer sunscreen or apply mosquito repellent and is agitated that the father simply ignores her requests to take more care of X. Both of these issues, whilst otherwise might be considered to be day to day issues, have significant medical outcomes and risks when they are not applied.

11. The father is somewhat naïve about the basic care requirements for the child, including not applying sunscreen and considering that a hat will be sufficient, or that he will tell the child not to play where there are mosquitos. I find his whole approach to parenting lacks child-focus. The father does not consider the long-term consequences of his own decisions for X. The mother does not agree with the father’s views and finds it extremely problematic communicating about any of these issues. She considers the consequences for X both in the short-term and the long-term in making parenting decisions. The mother is worried about the dangers for X when the father refuses to apply sunscreen or mosquito repellent on a routine basis.

12. The father’s belief that a second opinion should always be obtained in all medical decisions presents another huge hurdle to navigate between these parties in terms of their inability to communicate and agree each time X needs medical treatment. There are many issues about which the parents do not agree as they have vastly different views. Given their quite opposing views, I am satisfied that the mother and father do not have the ability to communicate sufficiently to jointly decide on issues of education or health relating to X.

13. The mother and father are poles apart in relation to parental attitudes as observed by the Report Writer. I do not consider therefore that it is X’s best interests to have an Order for equal shared parental responsibility which would require them to try and make joint decisions for X.

14. Overall, I am confident that the mother will always make child focused decisions. The mother has significant more parenting experience in the day to day care of the child and she is well able to provide for the child’s intellectual and emotional well-being. The mother has a superior capacity to parent. The parents also have very different views on educational decisions. I am therefore satisfied that the mother should have sole parental responsibility for all matters regarding education and health.

15. In relation to the health/medical matters, the Orders will include that the father is to comply with the application of sunscreen and/or mosquito repellent at all times the child is with him, in accordance with the medical advice obtained by the mother and given to the father. I am satisfied that the mother will make sensible evidence based decisions. 

16. Therefore, the Order will be that the parties have equal shared parental responsibility save and except that that the mother will have sole parental responsibility for all decisions regarding the child’s health and education.

    CONCLUSION – BEST INTERESTS

17. As to the child’s living arrangements, having considered all of the section 60CC matters, I am satisfied that X should live primarily with the mother. The mother has been the primary carer for all of his life; she is child focused and her parenting capacity is not in question nor has it ever been. By the end of the trial the father conceded this. The father agrees that the child should live with the mother. 

18. The recommendation of the Family Report Writer is for the father to have each alternate weekend commencing Friday after school and concluding Monday at the commencement of school (or Tuesday if Monday is a public holiday or pupil free day).

19. The father wishes to take up the time recommended, but also to add that X spend time with him every second Friday after school until 6:00pm. The mother is opposed to the second Friday on the basis that this means she and her partner, X and their baby C, can never start a weekend until Saturday morning. The mother says she would like to enjoy a Friday after school and have the opportunity for X to enjoy Friday evening with herself and her own family.

20. The alternate weekends provide for the father to spend Friday night, Saturday night and Sunday night and Monday before school with the father. The father is also going to have half of the holidays as set out in the draft Orders.

21. The time that the father spends with his other son B is likely to change as B gets older. The Orders I am making regarding X are final Orders.

22. I consider overall that X should have the chance to spend each alternate Friday afternoon and evening with his mother and go home to start his weekend with her. I consider it equally important to the mother’s family and X, to have an uninterrupted weekend, rather than going to the father’s every Friday. It is in X’s best interests to be able to spend non-school time with the mother and half sibling C on the weekend that X spends with his mother, starting from when he finishes school for the day, and not just spend time each and every Friday with his Father.

23. I am also satisfied that the proposed holiday arrangements and special days have been very carefully crafted to accommodate X’s mixed cultural heritage and to enjoy each culture on special days with others who share that culture of either Country F or Australian.

24. I intend to make Orders enabling the mother to travel overseas with X for holidays, and separately, enabling the mother to take X to New Zealand on short notice in the event that there are maternal family members in New Zealand who become ill and/or whose funeral the mother wishes to attend.

25. I have set out my concerns about the father’s proposal to take X to Country F. Whilst I appreciate that this will one day be a rewarding experience for X, I have no confidence that the father has the capacity to parent X whilst internationally travelling, or sufficient links with Australia, or that he has the capacity to properly organise and adhere to a safe and orderly trip to Country F for X which would address the Court’s concerns. I also have no confidence that the father would comply with restrictions that could be imposed upon him through Court orders. I therefore dismiss the father’s application to be able to remove X from the Commonwealth of Australia.

26. Having determined the issues which were in contest, I will also make the consent Orders as per the agreed draft. The Orders of the Court will be added to those consent Orders.

27. I wish the parties well in the future parenting of their precious son X. I also wish to thank the ICL, Ms Lehmann and her Counsel Ms Bassano, and Counsel for the mother, Mr Williams for their assistance during the trial.

I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM.

Associate:

Dated:       1 August 2023