Randall & Randall
[2022] FedCFamC2F 1410
Federal Circuit and Family Court of Australia
(DIVISION 2)
Randall & Randall [2022] FedCFamC2F 1410
File number(s): BRC 8986 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 19 September 2022 Catchwords: FAMILY LAW – parenting – concerning two children – where the children live with the father and spend time with the mother – whether the children should move to an equal time arrangement Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAA
Domestic and Family Violence Protection Act 2012 (Qld)
Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 15, 16 and 19 September 2022 Place: Darwin Counsel for the Applicant: Mr Jordan of Counsel Solicitor for the Applicant: Phillips Family Law Counsel for the Respondent: Mr Bunning of Counsel Solicitor for the Respondent: DA Family Lawyers ORDERS
BRC 8986 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RANDALL
Applicant
AND: MR RANDALL
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
19 SEPTEMBER 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.The Father and Mother have equal shared parental responsibility for the major long term issues in relation to the children, X BORN in 2012 AND Y BORN in 2015, including, but not limited to:
(a)education (both current and future);
(b)religious and cultural upbringing;
(c)health, subject to Order 2 herein;
(d)names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
2.The Mother have sole parental responsibility in relation to:
(a)making arrangements for the children to receive the COVID-19 vaccinations (including the first dose, second dose and any booster shots that are recommended by the Australian Government/Queensland Government from time to time for their age group); and
(b)making arrangements for the children to receive vaccinations that are recommended for children of their age at the relevant time in accordance with the Australian Government National Immunisation Program or the Queensland Government’s health recommendations.
3.Prior to making appointments for the children to receive the initial dose of the COVID-19 vaccinations, the Mother will consult with the children’s GP with respect to the timing and type/brand of COVID-19 vaccination the children should receive.
4.The Mother will provide the Father at least 7 days’ notice of the appointment times and he is at liberty to attend the appointments, with respect to each COVID-19 vaccination appointment or other vaccine appointment pursuant to these Orders.
5.In the event the children are in the care of the Father at the time the Mother has arranged for one or both of the children to attend each COVID-19 vaccination or other vaccination appointment in accordance with these Orders, then the Father will facilitate the child or children’s attendance at that appointment, provided the Mother has given the Father at least 7 days’ notice of the appointment.
Living Arrangements
During the school term – commencing Term 4, 2022
6.From the commencement of Term 4, 2022, and continuing with the existing cycle of time onwards, unless otherwise agreed in writing between the parents, the children live with the parents as follows:
(a)In week 1:
(i)with the Father;
(b)In week 2:
(i)with the Mother from after school on Tuesday until before school on Monday morning (or Tuesday morning if Monday is a public holiday or pupil free day and with changeovers to occur at school); and
(ii)with the Father at all other times.
During the school term – commencing Term 2, 2023
7.From the commencement of Term 2, 2023, and continuing with the existing cycle of time onwards, unless otherwise agreed in writing between the parents, the children live with the parents in a week about arrangement as follows:
(a)In week 1:
(i)with the Father from after school on Monday until before school on Monday morning (or Tuesday morning if Monday is a public holiday or pupil free day and with changeovers to occur at school); and
(b)In week 2:
(i)with the Mother from after school on Monday until before school on Monday morning (or Tuesday morning if Monday is a public holiday or pupil free day and with changeovers to occur at school).
During the school holidays
8.During the term 1, 2 and 3 school holidays, unless otherwise agreed in writing between the parents, the children live with the parents in a week about arrangement, with the cycle beginning on the first Sunday following the last day of the school term with changeovers at 9.00am each Sunday thereafter and with such time to be structured so that it aligns with the continuation of the alternating weekend rotation in place during the school term.
9.During the term 4 school holidays, unless otherwise agreed in writing between the parents:
(a)For the six week 2022 Christmas school holiday period beginning the first Sunday following the last day of the school term and changeover to occur at 9am on the relevant Sunday as follows:
(i)Week 1 and 2 with the mother;
(ii)Weeks 3 and 4 with the father;
(iii)Week 5 with the mother; and
(iv)Week 6 with the father.
NOTING that ordinary living arrangements per order 6 herein shall recommence at the beginning of the school term 1 of 2023.
(b)Commencing in the 2023 Christmas school holiday period and each year thereafter:
(i)in odd numbered years first half of the holiday period with the Mother and the second half of the holiday period with the Father;
(ii)in even numbered years first half of the holiday period with the Father and the second half of the holiday period with the Mother;
(iii)for the purposes of working out the changeover date for (i) and (ii) above, the parties are to calculate the number of nights between the first and the last Sunday of the school holiday period (not counting Christmas Eve, Christmas or Boxing Day) and changeover be at 9.00am on the day that represents the middle point.
Special Days
Christmas
10.Notwithstanding any other Order, unless otherwise agreed in writing between the parents, the children spend time with the parents over Christmas as follows:
(a)In odd numbered years:
(i)from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day with the Mother;
(ii)from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day with the Father.
(b)In even numbered years:
(i)from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day with the Father;
(ii)from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day with the Mother.
Birthdays
11.Notwithstanding any other Order, the children spend time with the parents on each of the children’s birthdays, as agreed in writing and failing agreement, as follows:
(a)In even numbered years:
(i)from after school (or 12.00 noon if a non-school day) the day before their birthday until before school (or 12.00 noon if a non-school day) on their birthday with the Mother; and
(ii)from after school (or 12.00 noon if a non-school day) on their birthday until before school (or 12.00 noon if a non-school day) the day after their birthday with the Father;
(b)In odd numbered years:
(i)from after school (or 12.00 noon if a non-school day) the day before their birthday until before school (or 12.00 noon if a non-school day) on their birthday with the Father; and
(ii)from after school (or 12.00 noon if a non-school day) on their birthday until before school (or 12.00 noon if a non-school day) the day after their birthday with the Mother.
12.Notwithstanding any other Order, on the Mother’s and Father’s birthdays, the children spend time with the parent celebrating the birthday, as agreed in writing and failing agreement, from after school (or 12 noon if a non-school day) the day before their birthday until before school (or 12 noon if a non-school day) the day after their birthday.
Fathers’ Day and Mothers’ Day
13.Notwithstanding any other Order, the children spend time:
(a)with the Father from after school on the Friday immediately before Fathers’ Day until 3.00 pm on Fathers’ Day; and
(b)with the Mother from 3.00 pm on Fathers’ Day until before school Monday.
14.Notwithstanding any other Order, the children spend time:
(a)with the Mother from after school on the Friday immediately before Mothers’ Day until 3.00 pm on Mothers’ Day; and
(b)with the Father from 3.00 pm on Mothers’ Day until before school Monday.
Communication
15.Unless otherwise agreed between the parents in writing, the parent with whom the children are not spending time is at liberty to call the children on the other parent’s phone for no longer than 15 minutes:
(a)on Saturday morning between 11.30 am and 12 noon; and
(b)on Wednesday evening between 6.00 pm and 6.30 pm.
16.Except in the case of an emergency, all communication in relation to parenting arrangements and parenting issues and as required under these Orders (including but not limited to extra-curricular activities and commitments) occur between the Mother and the Father (and not their respective partners) via the Our Family Wizard App.
Changeovers and restraints for changeovers
17.Unless otherwise agreed between the parties in writing, changeovers occur immediately after school at the pick-up area of the children’s school or at the children’s weekend extra-curricular activities at first instance, or if those options are not available, from the parties’ respective residences with:
(a)the Mother or her nominee to deliver the children to the Father’s residence at the conclusion of any time the children spend with the Mother and must not get out of the car and must leave immediately upon observing the children entering the care of the other parent;
(b)the Father or his nominee to deliver the children to the Mother’s residence at the conclusion of any time the children spend with the Father and must not get out of the car and must leave immediately upon observing the children entering the care of the other parent; and
(c)In the event a nominee is used, the relevant parent must instruct the nominee to remain in the car and leave immediately upon observing the children entering the care of the other parent.
Extra-curricular activities
18.Each parent be at liberty to enrol the children in extra-curricular activities in the time the children spend with that parent pursuant to these Orders but must not enrol the children in any activities, nor allow any other person to do so, during the children’s time with the other parent without the other parent’s written consent.
19.Upon enrolling the children in any extra-curricular activities, the parents are to ensure that the details of the activity (including but not limited to timetables, uniform requirements and fees) are entered into the Our Family Wizard App so that the other parent has full visibility of the activity.
Children’s devices
20.The parents must keep each other informed of any changes to the children’s social media and/or school profile login details and passwords within 24 hours of a change being made so that both parents have full access to the children’s accounts at all times.
Injunctions
21.Except in the event of an emergency concerning the children, the parties are restrained by injunction from taking the children to any new medical practitioners or health practitioners for counselling, psychological support, or therapeutic support without the written consent of the other parent.
22.The parties are restrained by injunction from allowing their respective partners or any other delegate to liaise with the children’s medical practitioners or health practitioners or to attend with the children at any such appointments without the written consent of the other parent or unless in the event of an emergency.
Provision of information
23.Each party keep the other party informed of the names and addresses of any and all health and medical practitioners who are involved in treating or caring for the children and must record this information in the Our Family Wizard App.
24.Each party authorise the children’s medical practitioner/s to discuss with the other party the children’s health and medical treatment.
25.The Mother and Father inform the other as soon as reasonably practicable of any medical condition, significant health issue and/or illness suffered by either of the children and ensure the treating medical practitioner has been provided with the other parent’s details and to the extent it may be necessary, authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request to such condition.
26.Each party keep the other party informed of changes to their residential addresses and/or home telephone numbers and/or mobile telephone numbers within twenty-four (24) hours of any such change.
27.Pertaining to the other parent’s time with the children, each parent must provide the other parent with all invitations (including social events, birthday parties, extra-curricular activity concerts and school events) that the children receive within 24 hours of receipt.
Non-denigration and privacy
28.During the time the children are with either parent, that parent must do the following and ensure that any third party, including their respective partners, do the following too and if they are unable to prevent such behaviour, the parent must immediately remove the children from that third party’s presence or within hearing distance:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)positively support and encourage the children’s relationship with the other parent;
(d)not denigrate or insult the other parent, including but not limited to issues about the other parent’s lifestyle, food choices and social lives;
(e)not speak directly to or within the presence of the children about adult issues including their separation or family law matters;
(f)not ask the children to keep secrets or withhold information from the other parent; and
(g)neither parent allow the children to access any communication with or about the other parent or between them.
Other Orders
29.Each party be at liberty to liaise directly with the children’s school and extra-curricular activity providers to receive any notices, information, newsletters, school reports, order forms for the children’s school photographs, information about the children’s progress at school as well as parent teacher appointments, and information about extra-curricular activities involving the children.
30.Both parents are at liberty to volunteer at the children’s school.
31.The parents are at liberty to provide a copy of these Orders to the school and extra-curricular providers and medical and other health care providers.
Travel
32.Each party will provide the other with seven (7) days’ written notice of their intention to take the children outside the state of Queensland during any period the children are in that party's care and will provide particulars of the location/s at which the children will spend time while outside the state of Queensland.
33.The parties be permitted to take the children out of Australia for holidays and for other short periods of time when the children are in their care pursuant to these Orders or as agreed between the parties in writing and subject to the following:
(a)So far as practical the occasions when the parties take the children out of Australia are to coincide with the children’s school holiday periods;
(b)Unless in the event of an emergency involving the children, the parties will give the other party as much notification as possible of their intention to take the children out of Australia and in any event will give not less than twenty-eight (28) days’ written notice of such intention;
(c)The parties furnish to the other party an accurate itinerary to include the departure and return dates, the country or countries to which the party and the children will travel, the approximate dates on which the children will arrive and depart each party and how the children can be contacted in each country.
34.In the event of unexpected delay not longer than a period of seven (7) days, the parties will not make an application for the immediate return of the children in the event their departure from their overseas country has been delayed by circumstances beyond the control of the party with the children on the condition that the party with the care of the children at that time provide to the other party as soon as practicable, full particulars of the circumstances relating to the delay and the anticipated departure details.
35.In relation to the children’s passports:
(a)save and except for periods when the Mother requires the children’s passports for travel or identification purposes, the passports be held by the Father;
(b)any request for the children’s passports by the Mother must not be unreasonably refused by the Father and the Father must provide the passports to the Mother within 48 hours of her written request and at least fourteen (14) days prior to departure of travel;
(c)within fourteen (14) days of the children returning from any overseas travel with the Mother, the Mother must return their passports to the Father; and
(d)the parents do all acts and things necessary within seven (7) days of a request being made by the other parent, to sign any application required to renew and/or obtain new passports for the children if required, when their current passports are due to expire with the parents to share equally in the costs of any future passport applications for the children.
36.The other party be at liberty to contact the child via FaceTime, Skype or telephone, on at least two (2) occasions per week between the hours of 5:00pm and 8:00pm, for no longer than 30 minutes, referrable to the time zone of the country that the children are in for the purposes of travel pursuant to Order 34 hereof, and the party with the care of the children during the travel shall do all acts and things to reasonably facilitate that communication.
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 Randall & Randall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex Tempore
JUDGE YOUNG
This is a case about two children, X who is ten years old, and Y, who is seven years old (“the Children”). The children live with their father and stepmother, Ms B, who I will refer to as Ms B to avoid confusion in these reasons as the mother continues to use the surname Randall. The father and Ms B have a child of their own, C, who is about 11 months old.
The children spend five nights a fortnight with the mother, broken up as to four nights in one block and one additional night in another. Pursuant to interim consent orders made on 1 November 2021, the father proposes that the present arrangements continue. The mother proposes that there be an increase of one night immediately and then a move to equal time at the beginning of the school Term 2, 2023.
The other contentious issue between the parties is about COVID-19 vaccination for the children. The mother wishes to have the children vaccinated and the father is opposed, he says that until more information is available on the long-term effects of the vaccine. The only expert evidence was adduced by the mother who annexed to her trial affidavit letters from a general practitioner saying that there were no contraindications for vaccination of the children.
Background
The background is as follows. The mother is 40 years old. She holds several degrees from D University. She is currently employed as a professional. The father is also 40 years old. He holds a degree in finance from the E University. He is currently employed as a finance professional. The parties married in Sydney in 2011, they separated in 2016 while resident in the United States of America (“the USA”), where they had been pursuing a business venture which was ultimately unsuccessful. At separation the children, then four and one years old, remained living with the father. The mother relocated to Country F to join a former employer. She said one of the factors behind the move was the insecurity of her USA employment. The father remained in the USA.
In 2017 the parties agreed to an order in the USA dealing with parenting and child support issues. Pursuant to those orders, the mother continued to spend the time with the children 24 nights a year or an average of two days a month and she remained in communication with the children.
In 2018 the mother moved back to the USA and found employment in a city about two hours flying time away from the children. In 2018 the father commenced a relationship with Ms B and the father and Ms B married in 2021. In 2019 the parties agreed to vary the USA orders to reflect that the mother was to spend a weekend with the children for five occasions during the year and half of holiday time. In February 2019 the father and Ms B relocated to live in Brisbane. In 2020 the pandemic prevented the children spending time with the mother until December 2020 when the mother relocated to Australia with her then partner, Mr G, from whom she is now separated.
The children began spending some overnight time with the mother in January 2021, in total about three nights. After that the children spent no time with the mother until November 2021. The parties offer different explanations for why that was. The mother says that the father, supported by Ms B, was resistant to the children spending overnight time. The mother says that the father undermined the relationship between the children and her. The father says that X, in particular, was anxious about spending time with her mother. He says at times X was resistant to spending time with the mother, for example, refusing to get out of the car at changeover. The parties agreed to engage the assistance of a family therapist, Ms H, a psychologist, to help X. Ms H did not give evidence but her conclusions and written advice to the mother and father were carefully considered by the Court Child Expert, Ms J, in her family report.
Ms H concluded that X was caught in a “loyalty conflict”. She concluded that X, who told her that she had heard conversations between her father and Ms B critical of the mother and had seen text messages to similar effect. Ms H concluded that X had not been appropriately shielded from parental conflict and concluded, in the circumstances, that she was unable to provide further assistance and was unwilling to work further with X.
Another matter that must be mentioned is that in early 2021 the mother retained a private investigator to undertake surveillance of the father and Ms B. Nothing came of this except that the mother’s former partner, Mr G, informed the father of the fact. Mr G’s reasons for doing so were not the subject of evidence but may be guessed at. The father raised this matter in legal correspondence. The mother readily admitted what had happened and, I am satisfied, apologised sincerely in July 2022. The father and Ms B were not mollified and sought and obtained a protection order against the mother in August 2022, presumably on the sole basis that such surveillance is defined as domestic violence under the Domestic and Family Violence Protection Act2012 (Qld).
In October 2021, Ms J, the Court Child Expert, completed her family report. She recommended the children immediately begin spending four nights a fortnight with the mother and that a move to five nights a fortnight occur at the beginning of 2022. She did not recommend equal time at “this stage”, as she believed it needed to be demonstrated that the parents could work together in the best interest of the children. Consent orders were made after the mother applied to the Court.
The Witnesses
The mother was an intelligent and careful witness with insight into her children’s needs. I accept she was a truthful witness. I accept, for example, her evidence that Ms B had told her in 2021 words to the effect, “We’ve decided from now on if the kids don’t want to see you, it will be their choice”. This is consistent with Ms H’s observations and the conclusions of Ms J that the children were not adequately supported by their father and Ms B to have a relationship with their mother. This was also consistent with my assessment of the father and Ms B in their oral evidence.
I accept that the mother genuinely regrets retaining a private investigator and that it was a serious misjudgement on her part. I accept that her apology to the father and Ms B was genuine. The mother said that in 2021 the co-parenting relationship with the father deteriorated and that Ms B was taking an inappropriately large role in the mother’s relationship with the children. For example, Ms B conducted most communications with the mother.
The father, in his evidence, endeavoured to justify his resistance to the children spending overnight time with the mother for the bulk of 2021 by referring to the children’s uncertainty about the mother’s consistency. He acknowledged that X had not been shielded from conflict but denied any personal responsibility for that by saying that X must have listened to conversations between him and Ms B after bedtime and that X had accessed Ms B’s phone using the passcode to read text messages.
The father portrayed himself as fully supporting the children’s relationship with the mother and he made no criticism of her parenting capacity. He agreed that the co-parenting relationship had improved, that X was no longer resistant to spending time with the mother and both children enjoyed their time with the mother. I consider the father, while devoted to the children, has at times lacked insight into their needs. I consider that his resistance to the children spending overnight time with the mother was a significant and perhaps the most substantial cause of X’s “loyalty conflict”. I consider that the father’s insight into the children’s need to have a meaningful relationship with their mother has improved but I am satisfied that there is still some limitation to his insight into their needs.
Ms B also gave evidence. She said that X’s relationship with the mother has not improved, inconsistently with the evidence of the father on that point. Ms B’s hostility to the mother was obvious. She said that the mother, following her retention of the private investigator, “scares” her. It was clear from the cross-examination of Ms B that she and the mother regularly cross paths at the children’s school, without any indication of fearfulness. I do not accept Ms B’s evidence about X’s relationship with the mother, or her claim to fear the mother.
Ms J gave evidence. She accepted that the mother had prioritised her career until January 2021. Ms J described the father as wanting “recognition” that he was the “stable parent” and felt frustration when the mother relocated to Brisbane “with all guns blazing”. Ms J observed that the father had supported the children’s relationship with their mother, “at least until she decided to move to Brisbane”. Ms J concluded that there was tension between the mother and Ms B and that Ms B felt insecure. She concluded that the father acted to reinforce Ms B’s parenting role in relation to the children and that had led to confusion for the children, particularly X.
X was aware of the mistrust the father and Ms B felt towards the mother and that was stressful for X. Ms J was satisfied that the mother was intent on focusing on the needs of the children and that the mother was settled in Brisbane. Ms J was asked about equal time in cross-examination and she said she believed the children would readily adapt to an equal time arrangement. She said the evidence of the appropriate co-parenting communication and X’s improved relationship with her mother supported the view that equal time may be in the best interests of the children. She said an equal time arrangement would send a message to the children that both parents were of equal importance. I accept Ms J’s observations and opinions. They are consistent with my own conclusions based on the evidence.
The legislative pathway
In deciding a parenting case the Court is required to follow the legislative pathway in Part VII of the Family Law Act1975 (Cth) (“the Act”). The paramount consideration is the best interests of the children and a court determines the best interests of the children by reference to the matters primarily in section 60CC(2) and section 60CC (3) of the Act. I am satisfied that there is a benefit to the children in having a meaningful relationship with both parents. I am satisfied that, fortunately, in this case, the consideration in section 60CC 2(b) does not arise.
The additional considerations that are relevant are as follows.
In relation to subsection 60CC(3)(a) and the wishes of the children, it is recorded in the family report that X made various complaints about her mother echoing, one would suspect, the negative expressions she had heard from the father and Ms B or became aware of by accessing Ms B’s telephone. Given the observations of Ms J that the children, particularly X, faced a “loyalty conflict”, I give the expressions of X relatively little weight. Currently, the father and mother agree that there has been a significant change in X’s relationship with her mother which I expect would be reflected in a change of attitude of X towards her mother. Y is recorded as expressing positive views about the mother, saying that he wished to spend time sleeping over at her house, considering that the time of the interview Y had not spent any overnight time with his mother for many months.
In relation to subsection 60CC(3)(b), a significant issue, at least historically and to some degree in the trial, was the nature of X’s relationship with her mother. I am satisfied that X’s relationship was affected by the mother’s absence, particularly between 2016 and 2020. The absence did involve the children maintaining a relationship with their mother and communicating with their mother. That relationship was affected by the children’s exposure to the father and Ms B’s mistrust of the mother, which harmed X’s relationship with her mother.
Significantly, I am satisfied there has been a marked improvement in the relationship between X and her mother, particularly following the consent orders made in November 2021, which saw the children spending substantial and significant time with their mother. I am satisfied that both children have a good and important relationship with Ms B, and that will continue. As noted, the father and Ms B have a young child of their own, C, who is 11 months old. I am sure that the relationship between the children and C will develop over time but having regard to the fact that she’s still not much more than a baby, that relationship, I would expect, at this stage is limited.
Subsection 60CC(3)(c) and (ca) are not relevant.
In relation to subsection 60CC(3)(d), there will be a change in the circumstances with an increase in the time the children spend with their mother, from five nights a fortnight to seven nights in a graduated way. I am satisfied that this change is in the best interests of the children and, indeed, is necessary to reinforce the children’s relationship with their mother to give expression to the primary consideration in subsection 60CC(2)(a).
Subsection 60CC(3)(e) is of limited significance. Both parents live relatively close to K School where the children attend school, and there appears to be no particular issue about that. Communications between the parents are conducted largely through a parenting app and, having seen some of the communications between the parents, I am satisfied that those communications are conducted without difficulty.
In relation to subsection 60CC(3)(f) and the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs, I am satisfied both parents are able to provide for the emotional and intellectual needs of the children.
I do not proposed to say anything about subsection 60CC(3)(g) and subsection 60CC(3)(h) is not relevant as the children are not Aboriginal or Torres Strait Islander children.
In relation to subsection 60CC(3)(i) and the attitude to the child and the responsibilities of parenthood demonstrated by each of the children’s parents, I am satisfied both parents are clearly responsible parents and no criticism can be made of them in that respect.
In relation to subsection 60CC(3)(j) which relates to any family violence, Mr Bunning, counsel for the father submitted that the surveillance of the father and Ms B arranged by the mother constituted family violence. I reject that submission. The surveillance was not intended to coerce or control the father or Ms B, nor did it. I also reject Ms B’s claim that the mother “scares” her.
In relation to subsection 60CC(3)(k) there is a current interim order under the Domestic Violence and Family Protection Act 2012 (Qld). I am satisfied that the reason for the order rests in the extended meaning of domestic violence, which includes “surveillance”, and there is no likelihood of the isolated act of surveillance by a private investigator being repeated.
I have regard to both subsection 60CC(3)(l) and (m).
Parental responsibility
The parents agree on equal shared parental responsibility, except in relation to vaccination against COVID-19. The mother proposes to have the children vaccinated. The father is opposed to that on the basis that he needs “more information”. His counsel clarified that “more information” meant waiting for an indeterminate period, possible extending for years, to see what are the effects of mass vaccination on the population. I am satisfied that this, in effect, exposes the children to an unnecessary risk. The mother proposes to seek medical advice and to follow that advice. She seeks a modification of the usual sole parental responsibility order, in order to give effect to that. I propose to make the order she seeks.
Pursuant to subsection 65DAA of the Act, if there is to be an order for shared parental responsibility the Court must consider if equal time is in the best interests of the children and is reasonably practicable. Having regard to each of the matters in subsection 65DAA(5), particularly the proximity of each of the parents’ homes to the children’s school and the evidence of effective communication between the parties, I am satisfied that it is reasonably practicable for the children to spend equal time with the parents. I am satisfied that such an arrangement can be implemented without difficulty. I am also satisfied that such an arrangement is in the best interests of the children having regard to the need to reinforce the children’s relationship with their mother after their exposure, particularly that of X, to the unnecessary loyalty conflict. Fortunately, that now seems to have been largely resolved, primarily, if not entirely, by the father adopting a more realistic attitude to the role of the mother in the children’s lives. Notwithstanding that, I propose to make orders as set out in the minute that was given to me at the outset of the trial.
I am also satisfied that there should be an order that communications about the children should take place between the father and the mother.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 19 October 2022
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