Reece & Reece
[2025] FedCFamC2F 241
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Reece & Reece [2025] FedCFamC2F 241
File number(s): BRC 4259 of 2023 Judgment of: JUDGE COPE Date of judgment: 26 February 2025 Catchwords: FAMILY LAW – Parenting – Defended Final Hearing - Dispute as to arrangements for one child who is four years old – Where there are allegations of family violence – Where the parents live on the border in two different states – Where there is a dispute about which state the child will attend school – Where the court not satisfied that the father perpetrated coercive and controlling family violence – Order made for joint decision-making for major long term issues – Order made for child to live with the mother progressing to week about Legislation: Family Law Act 1975 (Cth) ss 4AB, 4(1), 60B, 60CC, 61CA, 61D, 61DAA, 61DAB, 64B, 65D, 65DA(2), 65DAB Cases cited: A v A (1998) FLC 92-800
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
Pickford & Pickford [2024] FedCFamC1A 249, (2024) FLC 94-230
Division: Division 2 Family Law Number of paragraphs: 117 Date of last submission/s: 5 November 2024 Date of hearing: 5 November 2024 Place: Brisbane Counsel for the Applicant: Mr Hughes Solicitor for the Applicant: Aylward Game Solicitors Counsel for the Respondent: Mr Ashcroft Solicitor for the Respondent: Apix Law Group ORDERS
BRC 4259 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR REECE
Applicant
AND: MS REECE
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother and father will have joint parental responsibility for X (“the child”) born in 2020 and joint decision-making authority for all decisions concerning major long-term issues as defined in Section 4(1) of the Family Law Act 1975 (Cth) affecting the child.
2.In making any decision about major long-term issues about the child, the parties will take the following steps:
(a)the requesting parent will inform the other parent in writing fourteen (14) days prior to any decision regarding major long-term issues, detailing the decision to be made, their suggestions and reason for that suggestion;
(b)the other parent will advise the requesting parent within seven (7) days of receiving the requesting parent’s letter under 2(a) above, of their decision regarding the major long-term decision and their reasons for same;
(c)any failure to respond to such communication will be deemed acceptance of the proposed decision; and
(d)if the parties are unable to agree, they will attend professional mediation to attempt to resolve the issue, in accordance with paragraph 42.
3.Notwithstanding the provisions of the above paragraph, the:
(a)father shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with him; and
(b)mother shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with her.
4.The parties will do all acts and things necessary, within fourteen (14) days of the date of these Orders, to enrol the child in B School, Suburb D and the parties will equally share the costs associated with the child attending such school.
5.The child will be enrolled to commence Prep in Queensland in January 2026.
Living Arrangements
6.From the date of these Orders and until his birthday in 2025, the child will:
(a)live with the mother; and
(b)spend time with the father at all times as can be agreed between the parties and failing agreement as follows, on an alternating week basis:
(i)in week one, from after daycare or 3.00 pm Wednesday until 4.00 pm Friday; and
(ii)in week two, from 4.00 pm Friday until 4.00 pm Sunday.
7.From the day after the child’s birthday in 2025, the child will:
(a)live with the mother; and
(b)spend time with the father at all times as can be agreed between the parties and failing agreement as follows, on an alternating week basis:
(i)in week one, from after daycare or 3.00 pm Wednesday until 4.00 pm Friday; and
(ii)in week two, from 4.00 pm Friday until 4.00 pm Monday.
8.From commencement of term 1 in 2027, the child will:
(a)live with the mother; and
(b)spend time with the father at all times as can be agreed between the parties and failing agreement as follows, on an alternating week basis:
(i)in week one, from after daycare or 3.00 pm Wednesday until 4.00 pm Friday; and
(ii)in week two, from after daycare or 3.00 pm Thursday until 4.00 pm Monday.
9.From commencement of term 1 in 2028, the child will live with his parents on an alternating week basis as follows:
(a)with the mother from the Friday prior to the school term recommencing until 3.00 pm or after school at the end of week 1 of the school term; and
(b)with the father from 3.00 pm or after school at the end of week 1 of the school term until 3.00 pm or after school at the end of week 2 of the school term.
School holiday periods
10.Once the child commences formal education in 2026, he will live with his parents during school holiday periods as follows:
(a)the first half of the gazetted Queensland school holidays in even numbered years with the mother and in odd numbered years with the father;
(b)the second half of the gazetted Queensland school holidays in odd numbered years with the mother and in even numbered years with the father;
(i)for the purpose of these Orders, the school holiday time shall commence:
A.when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00 pm on the day calculated to be half of the holidays;
B.when a parent’s time falls in the second half of the holidays from 5.00 pm on the day calculated to represent half of the holidays when spending time shall end at 8.00 am on the day school term recommences;
C.school holidays shall be deemed to commence at close of school on the day school term finishes and conclude at 8.00 am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
Special Days
11.On the special days set out below the following arrangements will prevail and any time otherwise provided for in these Orders, is suspended at those times:
(a)Christmas:
(i)with the mother from 1.00 pm on Christmas Eve to 1.00 pm Christmas Day in odd numbered years, with the father from 1.00 pm Christmas Day until 1.00 pm 26 December; and
(ii)with the father from 1.00 pm on Christmas Eve to 1.00 pm Christmas Day in even numbered years with the mother from 1.00 pm Christmas Day until 1.00 pm 26 December.
(b)On the child’s birthday, the child will spend time with the parent who they are not otherwise spending time with, as agreed between the parties and failing agreement, as follows:
(i)on school days 4.00 pm to 8.00 pm; and
(ii)on non-school days from 1.00 pm on the child’s birthday to 1.00 pm the day after, or if a school day, then before school or 9.00 am.
(c)On the father’s birthday, the child will spend time with the father, as agreed between the parties and failing agreement, as follows:
(i)on school days 4.00 pm to 8.00 pm; and
(ii)on non-school days from 1.00 pm on the father’s birthday to 1.00 pm the day after, or if a school day, then before school or 9.00 am.
(d)On the mother’s birthday, the child will spend time with the mother, as agreed between the parties and failing agreement, as follows:
(i)on school days 4.00 pm to 8.00 pm; and
(ii)on non-school days from 1.00 pm on the father’s birthday to 1.00 pm the day after, or if a school day, before school or 9.00 am.
(e)Mother’s Day/ Father’s Day:
(i)with the father on the weekend containing Father’s Day from 4.00 pm or the conclusion of school on Friday until 9.00 am or the commencement of school Monday; and
(ii)with the mother on the weekend containing Mother’s Day from 4.00 pm or conclusion of school on Friday until 9.00 am or the commencement of school Monday.
(f)Easter
(i)in each odd numbered year:
A.with the mother commencing 12.00 pm Easter Friday until 12.00 pm Easter Sunday; and
B.with the father from 12.00 pm Easter Sunday until 12.00 pm Easter Monday.
(ii)In each even numbered year:
A.with the father commencing 12.00 pm Easter Friday until 12.00 pm Easter Sunday; and
B.with the mother from 12.00 pm Easter Sunday until 12.00 pm Easter Monday.
(g)New Years Eve:
(i)with the father in odd numbered years from 12.00 pm on New Years Eve until 12.00 pm on New Years Day; and
(ii)with the mother in even numbered years from 12.00 pm on New Years Eve until 12.00 pm on New Years Day.
Changeover
12.Changeover will occur as follows:
(a)on daycare or school days, at the child’s daycare or school; and
(b)on non-school days, as agreed at a location approximately halfway between the parties’ residences, and failing agreement, by the parties or their pre-identified agent delivering and collecting the child from McDonalds in Suburb C.
Electronic communication
13.From the date of these Orders and until the week about living arrangement commences, the child will communicate with the father by telephone, Facetime, Skype or other electronic means when he is not spending time with the father, as follows:
(a)in week one, from 5.00 pm to 5.30 pm on Tuesday; and
(b)in week two, from 5.00 pm to 5.30 pm on Sunday.
14.Upon the commencement of the week about living arrangement at Order 9 coming into effect, both parties will communicate with the child by telephone, Facetime, Skype or other electronic means when he is not spending time with them, such calls to occur on Sunday between 5.00 pm and 6.00 pm.
15.For the purposes of Orders 13 and 14, the parent without the child will initiate the call and the other parent will ensure the child is available, able to take the call and given privacy during the call.
16.The child is permitted to have liberal communication with either the mother or father by electronic means at any reasonable times and intervals. The parent with whom the child is living or spending time with will facilitate such electronic communication with the other parent at the request of the child.
Medical
17.Each party will provide such consents and authorities to allow any treating medical practitioner or practitioners to provide any medical report or report and discuss any treatment in relation to the child with both parties.
18.Each party will inform the other within seven (7) days of all medical and other appointments made on behalf of the child or any other matter of relevance to the child.
19.Each parent will keep the other advised of all significant medical, dental and other therapeutic treatment arranged for the child and each shall be at liberty to attend any and all such appointments and consult with any person providing such treatment directly.
20.Each party will contact the other as soon as practicable upon the happening of any of the following:
(a)the child becoming seriously ill;
(b)the child becoming hospitalised; or
(c)the child being involved in an accident.
21.Each parent will provide such consents and authorities to allow:
(a)both parties to be provided with any medical report;
(b)both parties to discuss any treatment/options with any treating medical practitioner directly; and
(c)both parties to be able to attend all appointments for medical, dental and other therapeutic treatment arranged for the child.
22.Each party is at liberty to obtain copy of any reports, referrals, prescriptions and/or other documentation relating to the child’s health and/or education.
Restraints
23.Both parties are restrained from:
(a)discussing the other parent or events in the other parent’s home in the presence or hearing of the child or permitting any other person to do so;
(b)discussing with the child these proceedings, any allegations made in the proceedings or any matter of an adult nature likely to place upon the child a loyalty demand, including any aspect of their preference with regards to where they live, and/or what contact they have with the other parent;
(c)denigrating the other in the presence of the child, or allowing a third party to do so in the presence of the child;
(d)questioning or conversing with the child about where the child wants to live or permitting anyone else to do so;
(e)physically disciplining the child or permitting any other person to do so;
(f)passing messages to the other parent through the child in any form except any communication book provided for in these Orders; and
(g)allowing the child to read, discuss or otherwise inform them of the contents of the communication book.
24.Both parties are restrained from consuming illicit substances whilst the child is in their care, or within 12 hours of them coming into their care, and from allowing the child to be in the presence, hearing or sight of any person so affected.
25.Both parties are restrained from allowing the child to be exposed to family violence during any time that they are in their care and will immediately remove them from any environment where this is taking place.
Schooling/ extracurricular activity
26.Each party will provide such requisite consents and/or authorities that may be required by any preschool, school or extracurricular activity that the child attends, for each party to receive (at that party’s own expense) reports, photographs, order forms, newsletters and such other material as is normally communicated to parents of the child who attend.
27.Each party is at liberty to attend on and communicate with any person involved in any of the child’s educational, sporting or extra-curricular activities irrespective of whether or not the child is presently living with that party.
28.This Order confirms that the mother and father authorise any school attended by the child to give each parent information about the child’s educational progress and other activities, and supply them with copies of any reports, school reports, photographs, certificates and awards obtained by the child, at the requesting parents’ cost.
29.That each parent is at liberty to attend the child’s schools and extra-curricular activities for the purpose of any function or activity normally attended by parents, subject always to the discretion of the school or organising authority.
30.Both parents will do all acts and things to ensure that they are both listed as emergency contacts with the child’s school, pre-school, after school care or other organisations or persons who may have the care of the child.
Specific Issues
31.All times referred to within these Orders are based upon Queensland time.
32.That the parents will communicate and consult with each other and exchange information in relation to the child through email or text message, except in the event of an emergency when they shall be at liberty to communicate via phone calls.
33.That the mother and father will:
(a)keep the other parent informed of the names and addresses of any medical or other health practitioners who treat the child and authorise those practitioners to provide to the other parent the information they are lawfully able to provide about the child; and
(b)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness and doctor’s appointments suffered by the child.
Contact details
34.That the mother and father shall keep the other informed of their residential address, landline (if any) and/or mobile phone numbers and email addresses and notify each other within seven (7) days of any changes to those details.
Travel
35.Commencing from the date of these Orders continuing thereafter, and unless otherwise agreed between the parties, each party is permitted to travel internationally with the child for one (1) period of up to four (4) weeks in each twelve (12) month period provided that:
(a)the party who is to travel internationally with the child on any given occasion will give the other party three (3) months written notice of the:
(i)proposed departure and return dates; and
(ii)itinerary of the proposed travel and accommodation overseas;
(b)the party who is to travel internationally with the child on any given occasion will give the other party one (1) months written notice of the:
(i)proof of travel insurance with medical and medivac cover for the parents;
(ii)the address and telephone number of the premises where the child will be staying from time to time during the trip; and
(iii)copies of return airline tickets booking and written confirmation of payment for the return airline tickets.
36.So far as practical the occasions on which either party takes the child out of Australia are to coincide with normal school holidays, unless otherwise agreed upon by the parties.
37.The non-travelling parent will not withhold consent unreasonably.
Passport
38.Pursuant to s11(1)(b) of the Australian Passport Act 2005, the child is permitted to travel internationally for holidays accompanied by either the mother or father.
39.Within fourteen (14) days of the date of a request to do so, each party will sign all documents and do all acts and things necessary to cause an Australian passport to be issued in the name of the child with the parties to equally share the costs of the passport.
40.The mother will hold the passport for the child in the first instance and then the parent with whom the child last travelled will hold the child’s passport.
41.Both parties will ensure the child’s passport is provided to the other party within fourteen (14) days of a request to release the passport, provided that parent will be travelling with the child in accordance with Order 38.
Family Dispute Resolution
42.In the event of any dispute as to the interpretation, implementation or enforcement of this Order (including any claim by a party that it should be varied) the parties will first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute will nominate three (3) FDR practitioners, one of whom will be chosen by the other party within fourteen (14) days, with the parties to share the costs of such mediation.
Procedural Orders
43.That all outstanding applications be dismissed and removed from the pending cases list.
NOTATION:
A.Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
INTRODUCTION
The application before the court is in relation to final parenting orders for the child X born in 2020 (the “child”). The parties refer to the child as X.
The parties commenced a relationship in 2014. They commenced cohabitation in 2016 and were married in 2018. They separated on 28 April 2022.
Current living arrangements
After they separated on 28 April 2022, the mother left the home with the child. She returned about a month later and the parties attempted to live separated under the one roof. The mother left with X again on 25 July 2022.
Time spending post separation was ad hoc, until July 2022 when the parties agreed on an arrangement for the child to spend Wednesday to Friday with the father and alternate Sundays.
The father alleges that the mother started to reduce the time X was in his care on the basis that X was unwell, initially offering make-up time but then refusing to do so. The father gives evidence that he requested, but the mother refused to provide, medical certificates. The parties then attended mediation on 23 November 2022.
On 6 February 2023, the mother proposed to reduce the child’s time with the father to one night a week, stating that the child was distressed by the time away from her. The father refused, and the mother stopped presenting the child for changeover until such time as the father agreed. X, who was not yet three years at the time, did not see his father for about six weeks.
On 17 March 2023, the parties ultimately agreed on X spending three nights per fortnight with the father and time during the day on another day, entering into an interim parenting plan.
On 2 November 2023, the parties reached agreement for consent orders in line with the recommendations in the Child Impact Report (CIR), being for the child to spend time with the father for two days each week plus a Facetime call each week. X continued to live primarily with the mother and in accordance with the Order spends 4.00 pm Friday to 4.00 pm Sunday with the father in one week and 4.00 pm Wednesday to 4.00 pm Friday the next week. The calls are Tuesday in the first week and Sunday in the second week.
Court orders were then made on 5 April 2024 which largely mirror the previous Order, certainly providing for a continuation of the same fortnightly routine with additional time on special days.
Issues for determination
Whether the parents should share decision making/parental responsibility for major long-term issues.
The living arrangements for X.
What school the child should attend.
When the child should commence prep – this issue resolved during the course of the trial with the parties accepting the advice of the child’s paediatrician for X to start formal schooling in 2026.
Family Violence
The mother alleges family violence was perpetrated by the father during and after the relationship – predominantly coercive and controlling behaviour. The father denies those allegations.
There are no past or existing family violence Protection Orders between the parties. The mother attended at the police station on two occasions, both post separation. [1] The first time was in late 2022, when she provided communication between the parties in support of her concerns about family violence. The police were not of the view that this reached the threshold for DV – they characterised it as “negative and hostile” but not “threatening, dangerous or controlling”. For the record this court will make its own determination as to what constitutes family violence. This is just one part of the evidence that is being considered.
[1] QPS s 69ZW material
The second occasion the wife attended on the police was in early 2024 when she alleged she had seen something on social media that indicated to her that the father was exerting coercive control over his current partner.
Much will ride on the findings this court makes about family violence. If the father is found to have perpetrated coercive and controlling violence then the orders the mother seeks will likely be in the best interests of X. If the mother is found to have invented or exaggerated the narrative about family violence then such orders would likely not be in X’s best interests.
The Family Report writer identifies various types of family violence and the orders which, in her opinion, properly flow to address those concerns. The Family Report writer expressed the view that the evidence of both parents was not such as to support there being an immediate risk of harm and she viewed the allegations as being of an historical nature. It was her view that if the parents continued with therapy and maintained gains in emotional regulation and boundaries, then the risk of ongoing family violence was low.
If, however, the court found that there was any risk of family violence then precautionary measures were recommended by the Family Report writer, such as supervised changeovers.
Drug and Alcohol Misuse
Each party makes allegations that there are risk factors for the child arising from drug and alcohol misuse. There is, however, no independent evidence to support those allegations and neither party pressed this issue at trial.
Competing Proposals
The mother proposes that she have sole parental responsibility for health and education and that otherwise the parents share decision making for major long-term issues. She proposes that X live with her with a continuation of the current living arrangement until he starts prep when that transitions to one block of four nights. She proposes an increase to a five night block during school terms when X starts Grade 3.
The mother proposes to introduce half school holidays when the child commences year 2 at school, with the Christmas holidays taken in one week blocks.
The mother also seeks orders for time on special days, schooling, communication, changeovers, travel, specific issues, dispute resolution in the event of any dispute and orders granting leave to the parties to provide copies of orders and restraints.
The father seeks orders for the parents to exercise joint parental responsibility for all major long-term decisions. He proposes a build up to equal time, making submissions that while his application proposes equal time to commence by July 2026 he is content for that to occur more slowly. He proposes that school holidays be shared equally in blocks of one half.
The father also seeks orders for time on special days, changeovers, electronic communication, first preference carer, orders and authorities about medical matters, restraints, orders about schooling and extracurricular activities, specific issues orders, including that all references to time in the orders are Queensland time, orders about travel, family dispute resolution.
THE EVIDENCE
Material relied on
The parties each filed an Outline of Case document and relied on material as read onto the record. A number of documents were tendered in accordance with the Exhibit List and have been considered in making this determination together with the material read, evidence obtained under cross-examination and the submissions of the parties.
The Father
The father was a quietly spoken witness. He was in general pedantic and wordy in his replies. He conceded that some of his correspondence and communications were, as he termed it, “regrettable”.
He otherwise had difficulty conceding his behaviour was poor, instead making general parenthood statements to the effect that he was acting in X’s best interests and working to provide him with stability and certainty. In reality, he has at times behaved unacceptably. He should never have written those self-serving messages to the mother that were in reality an attack on her. Of course he should have told the mother what hospital he had taken X to when X hit his head on the coffee table in early 2024. There can be no excuse for shutting the mother out when the child was in hospital.
While the father has conceded that he wrote the communications in 2021, 2022 and again in June 2024, he says he has now done the courses and is a new man. Certainly the documents tendered do include examples of more positive communications. However, as someone who is studying allied health, it is surprising that he lacked such insight that he let his emotions rule his head and undermine the very outcome that he was hoping to achieve. It is hard to accept that he is a new man when only months prior to the trial it is unchallenged that he was writing to the mother in such terms as:
It’s a shame you feel the need to constantly disengage from the truth…as it’s your pattern to control and to try and alienate [X] from having 2 involved parents, whatever the cost.[2]
Sadly, we both knew you would take this action regardless of what was said as it’s your pattern to control.[3]
[2] Paragraph 103 of the Mother’s Affidavit filed 21 October 2024.
[3] Paragraph 104 of the Mother’s Affidavit filed 21 October 2024.
The Mother
The mother was strangely happy and cheerful in her presentation both times she was sworn in. She then, however, repeatedly cried during her evidence. I make little of her changing presentation as everyone copes with stress differently, simply that it was notable in the extremes that were on display.
The mother made sensible concessions. She conceded that she made a unilateral decision to reduce the father’s time with the child. She conceded that X had not seen his father for some six weeks before he turned three years because she insisted on a reduced time regime and the father insisted on maintaining the routine in place.
When the child is clingy and experiencing separation anxiety the mother assumes it is somehow due to the time he spends away from her; that the time the child spends with the father is the cause. I do not agree that there is necessarily a causal link. The child’s behaviour could be a multitude of reasons – for example it could be difficulty adjusting to daycare. The Family Report is helpful, in particular where the expert discusses the research which reflects that behavioural concerns are less about time spending arrangements and more about whether there is exposure to parental warmth and/or co-parenting conflict.
The mother conceded that she had not spoken to the father before making an appointment for the child to see a psychologist. She allowed the psychologist to be the one to inform the father. That is a delegation of her responsibility as a parent. While she said that she did not understand parental responsibility at the time she has since then, in 2024, arranged for X to be assessed by a paediatrician, again without informing the father or giving him the opportunity to be involved. There can be no excuse for one parent to exclude the other from important matters about the child’s health, noting there was an interlocutory order for equal shared parental responsibility.
Ms D - Family Report Writer
The Family Report was completed on 20 July 2024. The Family Report writer was not required for cross examination and her reporting and opinions are therefore unchallenged by both parties.
The Family Report writer in her detailed and helpful evaluation spoke of the impact on children of exposure to parental conflict and the need for stability and routine.
9.19Being consistent and nurturing is crucial. Showing children affection and love provides them with a sense of stability and reassurance. Sticking to normal routines of mealtime, playtime, bath time, and bedtime is essential, as children thrive on routine and consistency. Studies of preschool children have revealed that a high number of overnights did not predict differences in emotional regulation and stress outcomes for children aged 4-5. Instead, degree of parental warmth and co-parenting conflict were more significant factors. Both parents appeared to have considerable insight into the child’s development, psychological emotional and cultural needs, and there are no concerns about their capacity to provide for the child’s needs. The main issue in this parenting matter appears to be parental conflict, which can be detrimental to a child’s well-being. Addressing this conflict through open communication, seeking professional guidance, and prioritising the child’s best interests can help create a supportive environment for his development.
The Family Report writer’s opinions and recommendations may be summarised as follows:
(a)there is limited evidence to suggest the parents should not have joint decision-making responsibility, noting that she was of the opinion that if the parties continued with therapeutic supports and continued to improve emotional regulation and interpersonal boundaries then the risk of future family violence was likely to be low;[4]
(b)X to live with the mother and spend increasing time with the father. She supports a transition to a 9/5 arrangement in Grade 1 with time taken in two blocks – Friday to Monday and then Wednesday to Friday. She then recommends a review in Grade 3 regarding an equal time arrangement;
(c)time on special days;
(d)once X starts prep, the parents to share the school holidays with week about for Christmas holidays;
(e)maintain the current Facetime arrangements of communication once a week;
(f)changeovers that are not at school or daycare should be at a neutral location and failing agreement, McDonalds in Suburb C;
(g)beyond the scope for her to recommend when X starts prep, but she saw no developmental concerns in interview that would argue against it.
[4] Paragraph 9.16
In general terms, I accept the opinions and recommendations of the Family Report writer. Where and why I disagree is made clear later in these reasons.
FINDINGS
Family violence is a scourge; a shameful and disgusting abuse of intimacy and trust. It is taken very seriously by this Court. But that does not mean that a vigorous forensic lens is not to be applied. Such allegations are too serious and the consequences for both parties, and particularly the child, are too serious to allow anything other than a full and considered testing of the evidence before the court.
In considering the issue of family violence s 4AB of the Family Law Act 1975 (Cth) provides the following definition:
Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
…
Breaking down the legislation, the mother must first establish conduct on the part of the father that is violent or threatening or other behaviour. Then the court must be satisfied that the behaviour coerced or controlled the mother or, in the alternative, caused her to be fearful.
I am not satisfied that the mother has established that the father perpetrated coercive control. The bench book describes this in the following way
Coercive control involves perpetrators exerting power and dominance over victim-survivors using patterns of abusive behaviour that create fear and deny liberty and autonomy. Perpetrators may use physical or non-physical abusive behaviours, or a combination of both.
The focus is on a pattern of abusive behaviour, my emphasis. In order to make findings about family violence, there is an onus on the mother to particularise the evidence she relies upon so that the court is able to make an assessment to the necessary evidentiary level. That must, however, be balanced against an understanding that in some cases victims of crime find it difficult if not impossible to particularise traumatic events.
The court has been very much assisted by the recent Full Court decision of Pickford & Pickford [2024] FedCFamC1A 249. The onus lies firmly with the party alleging family violence. There is an obligation on the court when considering allegations of coercive control to evaluate the evidence holistically – is the behaviour alleged a pattern of acts characterised by threats, intimidation or humiliation that is aimed at harming or frightening the victim?
For reasons that I shall now explain, I am of the view that the mother has not met the threshold to satisfy me that family violence is a current risk factor or that coercive and controlling violence was perpetrated by the father against her.
The mother alleges in her affidavit material a litany of behaviours perpetrated by the father including:[5]
[5] Paragraph 22 onwards
(a)the father was short and angry at things she did;
(b)she stopped seeing friends and limited time with her family to reduce tension in the relationship;
(c)the father was controlling with finances – for example, he was angry if she purchased a coffee;
(d)daily verbal and emotional abuse – particularly on his return from work if he thought she had not kept house properly;
(e)he used his physical strength against her, resulting in injury or discomfort, and framed it as playful or accidental;
(f)he dismissed her reactions as overreaction/overemotional;
(g)he undermined her parenting, how she cleaned the home, her health, her weight and her appearance, and he would ignore her;
(h)he damaged furniture in a “scream of rage” – that he broke or damaged items of furniture;
(i)he threw the gaming remote;
(j)he smashed a glass table when he lost an online game;
(k)he punched a table because of a football game;
(l)he punched a table because of study related frustrations;
(m)he raised his voice, and became aggressive and irritable when a child cried or household noise interfered with his relaxation or study time;
(n)he refused to allow her mother into the birthing room when the child was born, noting attendance was limited to one person because of Covid restrictions so that it was either him or the maternal grandmother who could be present;
(o)in 2021, when she was experiencing a miscarriage, the father refused to allow her mother into the home;
(p)the father monitored her daily activities, questioned her whereabouts and agenda;
(q)the father questioned and disapproved of her psychologist and their motives;
(r)the father became upset when her mother visited when he wasn’t home; he would see it on the security cameras;
(s)he took her phone to set up smart home devices and violated her privacy;
(t)he closely monitored the home security cameras;
(u)he placed an apple tag in the car;
(v)during the relationship she received an unsolicited location sharing alert with the father and he did not respond when she asked about it;
(w)in April 2022, the father confronted her about changing her MyGov password when she did not recall sharing it with him in the first place;
(x)the father was verbally abusive post-separation – making inflammatory remarks or posing unrelated questions;
(y)the father would take toys from X post-separation that he said belonged in his house;
(z)on 25 July 2022 the father yelled and used his body to intimidate her while discussing care and financial arrangements. When she asked him to stop, he threatened to call the police and take her to court;
(aa)on 8 August 2022 the father followed her from room to room in the home while she collected her things and he yelled at her;
(bb)the father was persistently overbearing regarding finances;
(cc)the father was resistant to her removing items from the home after separation;
(dd)the father refused to use the parenting app; and
(ee)the father put posts on social media about their relationship between August 2022 and March 2023.
As can be seen from this summary the majority of these allegations are general in terms. There is a lack of particularity as to what was said or done or when or in what circumstances. Importantly, so far as the allegation of coercive and controlling behaviour is concerned, there is a lack of evidence as to how it was used to harm or frighten her or to manipulate her own behaviour. There are some incidents which do have particularity but there was limited cross-examination of the father about the family violence. Bare statements that family violence occurred are not sufficient for the court to make the findings sought by the mother. What is missing in relation to the allegations of coercive control is evidence of a pattern in those allegations such that the court can be satisfied that the father was seeking and /or did control the mother and/or she was fearful as a consequence.
In considering the allegations that the father broke items and furniture, he denies that he perpetrated this conduct. Further, what is missing there is a link between the conduct alleged and the mother; she does not particularise if she was present and the impact upon her. If that behaviour occurred then it is shocking and unacceptable behaviour, but not automatically family violence. It is certainly behaviour that could have made the mother feel fearful, if she was present and experienced such uncontrolled rage that led to deliberate breaking of furniture and items.
Repeated criticisms and put downs of the mother do indeed constitute family violence. Under cross examination the mother confirmed her evidence that she experienced daily verbal and emotional abuse. Her affidavit evidence however provided no specificity around what was said during the relationship, other than saying that the father was short and angry and critical of her.
The mother gave evidence that she did not report the alleged family violence at the time as she was quite fearful - and this can indeed be the case where someone is experiencing family violence. The mother, however, also gave evidence that she did not realise she was experiencing family violence until after the event. There is a tension between those parts of her evidence that raises questions about the credibility of that evidence.
The mother conceded under cross-examination that the father managed their household finances and that there was a budget. So what she now views as financially controlling behaviour may well simply have been managing the limited family budget with care. She complains that she was criticised for buying a coffee when the father purchased $50 in lollies. This may be unjust but is not in and of itself necessarily family violence.
The mother agreed that although there was an air tag / tracking device in the car, there was also one on the dog, and that it was possible these were security measures rather than intended to track her daily activities. She also conceded that the security cameras were focussed on entrances but when asked to agree that there were no security cameras inside the house her reply was “that I’m aware of”. When pressed, she conceded that she had no evidence of cameras placed internally. That speculative response reinforced my view that the mother was looking for evidence that the father was abusive rather than simply sticking to the facts.
The mother conceded that she also had access to the security cameras, such that she was equally capable of monitoring the father’s coming and going. She would not however agree that the cameras were not used to monitor her and expressed concern about the door code key used on the home which kept a log of when she came and went. She gave evidence of the father asking her about her movements and asking her what package had arrived. She expressed that it was “concerning” that he had access to a log of her movements through the front door code access. She did not recall having access to the log herself.
She conceded speaking to police in early 2024 about a post on social media as it raised concerns for her that the child may be exposed to family violence in the father’s home; that she was concerned for the safety of his current partner and the child. I accept her evidence that she formed that view, but this evidence reinforces my view that she was looking for evidence to support her contention that the father is a perpetrator of family violence.
That the mother stopped seeing friends and reduced time with family could be indicative of family violence. The mother’s evidence is that the father would see her mother attend their home via the cameras. A frustrating electronic exchange between the parties was reviewed in cross-examination in which the father objects to the regularity with which her mother has attended their home, being five days in a row. The father’s evidence was that he worked for the mother’s parents in their business, and that he was unhappy with the conditions and that her parents were, in his view, abusive – at least financially. So, it is apparent this is not just a situation where the father simply did not like her parents. In fact he had worked for them. On his evidence, however, something had gone terribly wrong in their relationship, and they had to leave their accommodation. His evidence, which I accept, is that he wanted boundaries rather than a termination of the mother’s time with her parents.
Certainly, however frustrating and inappropriate the communication between the parents are, particularly in light of the mother’s suspicion that she was miscarrying at the time, the communication appears to be the parties squabbling back and forth. I have no doubt that it was stressful but there is no evidence that the mother was frightened by the father or that she allowed him to control when she saw her parents. Rather the communications reflect that she very robustly stands up for herself.
The mother gave evidence that the father on multiple occasions asked for codes that had been sent to her and she would screenshot them and send them to him. She was not aware what he was doing with those codes and gave evidence that she trusted him. There is no evidence of misconduct or family violence around that and she conceded that he could have been using the codes for innocuous purposes. It is in retrospect that she now believes that this was all an interweb of technological monitoring of her. She gave evidence that when she started putting the pieces together that perhaps it was not as innocent as she had thought.
The difficulty with these electronic cameras and security measures is that in a healthy relationship they are just that – security measures. There are innocent reasons for asking where someone is going or what package has arrived. When a relationship is unhealthy or breaks down then those security measures can be used to monitor and control a person. This is what the mother now suspects. I am not, however, satisfied that she has established electronic surveillance was used by the father to coerce and control her movements. I am not satisfied that there is a pattern of behaviour that caused her to be fearful or coerced her to act in a particular way. Indeed, under cross-examination the mother conceded that she also received notifications from the security cameras and that there may have been no intention to track her.
I have considered again the mother’s answer when she was asked if there were any internal cameras: “that I’m aware of”. I formed the view that the mother has reinvented history post separation, whether intentionally or otherwise, and created a narrative of stalking type behaviours that is simply not true. That view is reinforced by her report to police regarding an anonymous social media post about the father in early 2024 which she believed supported her view that the father was a perpetrator.
I have no doubt, and the father concedes, that he behaved badly. Under cross-examination the father conceded the communications tendered were sent and the social media posts were made by him, indeed he could do little else. The electronic communications in particular were at times abusive including the communication in June 2024.
It was not impressive that the father called his communications “regrettable” as, in my view, that minimises the impact that his communications would have had upon the mother. However, those communications were not threatening or abusive, rather they were spiteful and mean spirited. Taken in the context of the relationship breakdown and suspension of time with the child they are, in my view, rather examples of communication breakdown seen in the context of the mother’s own, at times, poor communication.
In relation to the mother’s concern that the father’s use of time out as a method of discipline is inappropriate, there is no evidence of that. I have no reason to doubt the mother’s evidence about the child’s aversion to the phrase “time out”, however, that may be due to other circumstances. The fact that the child has reacted strongly to those words in and of itself means very little. The father’s idea of time out is unusual – with the father describing it as doing breathing exercises, then a change of environment to a play time that may even involve the dog. But that does not mean that he is not being honest about what he does with the child. I have no reason to doubt his evidence.
I am satisfied that some of the father’s conduct, such as the name calling and criticisms of the mother which are repeated in communications, fall within the definition of family violence. I am, however, satisfied that the parties have a proven capacity to communicate and coparent which will no doubt be improved by an end to this litigation.
I agree with the Family Report writer that there is a low risk of future family violence.
THE LEGAL PRINCIPLES
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court is generally guided by s 60B of the Act which sets out the two objects of Part VII of the Act. Those objects are:
(a)to ensure the best interest of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In accordance with s 65D of the Act, the court may make such parenting orders “as it thinks proper”, subject to s 65DAB which requires the court to have regard to any parenting plan to the extent that doing so is in the best interests of the child.
In determining what parenting order to make, the best interests of the child remain the court’s paramount consideration. Section 60CC of the Act sets out how the court determines what is in a child’s best interests.
There is no longer a presumption of equal shared parental responsibility. While the definition of parental responsibility has not changed, the way that the court determines whether parties should share decision making for major long-term issues and whether that should be “joint” has changed. The relevant provisions regarding decision making include ss 61CA, 61D, 61DAA, and 61DAB of the Act.
A key consideration for the court in determining whether to make orders for sole or joint decision making for major long-term issues is safety. The court will consider family violence and its impact.[6]
[6] Family Law Act 1975 (Cth) s 60CC(2)(a).
The court will also ensure that any order made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount.[7]
[7] Family Law Act 1975 (Cth) s 60CG.
In M v M (1988) 166 CLR 69, the High Court held that a parenting order ought not be made if such order exposes the child to an “unacceptable risk” of harm.[8] The “unacceptable risk” test has since been authoritatively applied to any potential risk of harm to a child and is not limited to sexual abuse.[9] The Court will consider “unacceptable risk” in light of each party’s parenting proposals and the availability of any appropriate safeguards.
[8] M v M (1988) 166 CLR 69 at 78.
[9] A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
The Full Court in Isles & Nelissen has clarified that the test relating to risk is one of possibility rather than probability with a consideration of the severity of harm that would arise from the risk.[10] Nothing about the new legislation impacts or varies the application of those tests.
[10] (2022) FLC 94-092 at 81446.
APPLICATION OF THE LAW
I have considered the facts and findings as detailed in these Reasons.
The relevant considerations as regards best interests are set out and reviewed below, noting that in this review the court must also give consideration to any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.
I am not satisfied that the child needs protection from the father. I am not satisfied that there is evidence that the father exerted coercive and controlling behaviour as alleged by the mother. I am satisfied that his conduct has, at times, amounted to family violence – name calling and criticisms of the mother that are repeated in the way alleged by the mother are sufficient to reach that threshold.
There have been atrocious communications. As noted earlier these include self-serving statements by the father as to his assessment of the mother’s conduct, and emails where each has called the other’s allegations “ludicrous”. Rather than communicating in a child focussed way the father has at times used the opportunity to be critical of the mother. The father sensibly conceded that his communications had not always been respectful. I can see, however, that there has also been some more positive communications, as was reviewed during cross-examination; so I know they have the capacity. I am also of the view that once these proceedings are finalised and they no longer have anything to prove, each will concentrate on X.
It is a positive that the father obtained psychological support on an ongoing basis, however, it is to his great discredit and he should be ashamed that he has continued to communicate inappropriately, even in the lead up to the trial. X loves both his parents and both parents love him; X deserves better than what his parents have been doing in their treatment of each other.
X is too young for his views to carry any weight, and indeed neither party has asked me to consider his wishes. X has issues with a toileting issue and some clinginess separating from the mother. The parties have agreed to accept the paediatrician’s advice, although the father was not given the opportunity to have any input into that, and the father no longer pressed for X to start school in 2025.
On 8 February 2023 the mother proposed to reduce the child’s time with the father. The mother did not attend changeovers and no contact occurred for 41 days because the father would not agree to her proposal. As a consequence there are questions as to the mother’s capacity to facilitate the child’s relationship with the father and her lack of insight as to the impact on X of that behaviour.
The father gives evidence of the mother arranging counselling for the child without first consulting with him or telling him the purpose of the counselling. He therefore refused his consent. I do not accept that the mother communicated and informed the father by asking the psychologist she unilaterally selected to contact the father without notice. The solution however is not to then refuse to engage at all, as the father did. Each parent has failed to consider the impact on the child of their behaviour. Certainly children who have parents engaged in conflict around them – such as parents in family law litigation about them – may well benefit from therapeutic support.
Both parties support X having substantial and significant time with his father, the question is whether that time should ultimately increase to an equal shared care arrangement. As a consequence of the parties’ positions, I am satisfied that neither sees any significant risk of harm for X in the care of the other parent.
DETERMINATION
Parental Responsibility/ Decision making for major long-term issues
For the reasons set out below, I propose to make orders for the parties to have joint parental responsibility for decision making about major long-term issues.
Interlocutory Orders were made on 2 November 2023 and again on 5 April 2024 for the parties to have equal shared parental responsibility.
The mother seeks to have sole parental responsibility or decision making for health and education while the father seeks that they share the responsibility for decision making in relation to all major long-term issues. The mother points to their at times poor communication and to the father’s alleged family violence.
Each party has acted unilaterally as regards the child. Both assure the court that X’s wellbeing is their priority but there has been little effort to repair their co-parenting relationship which the Family Report writer sees as the most significant issue. Looking at some of their communications it seems to be a competition at times as to who is the most committed and involved parent. I suggest they stop competing and simply parent this child.
While the mother expresses fear of the father, at times her conduct seems aimed at exacerbating conflict rather than reducing it. I have in my mind the withholding of the child, the failure to tell the father about psychological and medical appointments in a timely way, or indeed in some cases not until after the event, and the insistence in communications that what he says about his involvement in medical matters during the relationship is not true. If their efforts to each insist that they were correct in their recollections was intended to impress the court, then they failed; it had the reverse effect.
The mother has withheld the child on two occasions; firstly, for a few days at separation and then in 2023 for six weeks. She has taken the child to the doctor and arranged a psychological appointment without discussing it with the father and she recently unilaterally obtained a paediatric assessment.
The father took the child to hospital in early 2024 and while he told the mother of the hospital trip and the reason, he was reluctant and initially failed to tell her which hospital as he did not want her to attend. Even under cross-examination he was defensive around his initial refusals to share that important information.
The Family Report writer saw the parental communication as the main concern. Around and following separation the parties’ communications were unhelpful to say the least. In February 2023, when the mother sought to reduce the father’s time, each made self-serving commentary that the other person was making “ludicrous” allegations. This would not have been helped by the mother unilaterally insisting on reducing time and then ceasing time altogether when the father did not agree.
The Family Report writer gives evidence as to the research around the impact on children of exposure to parental conflict. She encourages co-operation and respect, sharing of information and consistency in routines in both households. She advises that research shows that it is not the number of nights that can create an issue for children but rather expressed the opinion that it is the degree of parental warmth and the co-parenting conflict that are more significant factors.[11]
[11] Paragraph 9.19
Currently the parents communicate only by written means, mainly through a parenting app. The Family Report writer sees that as possibly fostering an atmosphere of tension and conflict that X may sense. She encourages them to communicate, as do I. For example, polite greetings at changeovers where they come face to face will be helpful to X. Although any negotiations or discussions should be left for the parenting app, the parents can share directly non-controversial information about X’s wellbeing.
The Family Report writer talks about the possible impact on X of exposure to parental conflict as potentially leading to feelings of insecurity, confusion and stress.[12] On the other hand if the parents start working together and communicating respectfully she advises that he is more likely to develop strong self-esteem, excel academically and establish healthy relationships with peers and adults.[13]
[12] Paragraph 9.23
[13] Paragraph 9.24
While I agree that their parenting relationship is not ideal, I am of the view that based on the mother’s own conduct I cannot rely on her to tell the father what is going on with X or indeed to consult and engage him in matters regarding health and education, when she has failed to do so in the past.
The evidence does not support an order for the mother to have sole parental responsibility/decision-making for health and education. These are areas where the parties should communicate and work together. There are no urgent issues for determination; they have agreed that the child will not start school until 2026 having received the paediatric assessment and this court is to determine the school he is to attend.
Each parent has attended at courses and assured the court of their commitment to the child’s best interests. There is reassurance in that evidence.
They will need to establish a joint plan for tackling his toileting issues and share information instead of holding their cards close to their chests. I am satisfied that each loves and wants the best for X and have no doubt that they will both step up.
Living Arrangements
At separation there appears to have been a situation where the father perhaps wanted too much time too soon and the mother on the other hand sought to limit time.
I do not agree with the mother that X’s toileting issue and his separation anxiety are necessarily due to the current arrangements or the time he spends away from her. I am more inclined to agree with the Family Report writer where she talks of the research reflecting that impacts are more likely due to exposure to parental conflict and a lack of parental warmth. All this squabbling does the parents no credit and runs the risk of causing X psychological and emotional harm.
I heard the evidence about the father having tenants in his property and I understand the mother’s arguments that this may add a level of vulnerability. I am, however, not critical of anyone living in shared accommodation; sometimes this is financially necessary. I accept the father’s evidence that he reviews the applications and then interviews a limited number of people before allowing them to move in. I accept his evidence that his priority is stability and safety for the child in selecting the tenant.
I do not agree that the child’s time with the father should be limited. I have made findings that he is not a perpetrator of coercive and controlling violence. Absolutely his communications to the mother at times have been atrocious but some of her correspondence has been unhelpful.
I therefore propose to make orders for a build-up to an equal time arrangement. This will be slower than the father wants, given the delay in X’s commencement of school and the challenges he has faced with his health. I propose to order an increase in time on his birthday this year. That will reduce face to face time and allow more time with the father. That arrangement will stay in place while X navigates the initial school year and from 2027 will increase each year with the week about arrangement to commence at the start of 2028 when X will be seven years old (eight in 2028) and well settled into school.
Education
The parties have agreed that X will not start formal education until 2026 as recommended by the Family Report writer and the child’s paediatrician. That leaves the issue of which school the child should attend as the parties cannot agree.
Both proposed schools are religious schools. The mother proposes a school in NSW called E School, City F. Her evidence is that it is approximately 15 kms from her current residence and about 35 kms from the father’s residence. The father proposes B School in Queensland. His evidence is it’s about 20km from the mother’s home and about 35 kms to the suburb where he lives.
There is travel involved for either school for one or both parents but nothing extraordinary. I accept that it is ideal to be within 10 – 15 minutes of school but that is not always possible. I heard evidence about distances between homes and schools but in reality homes can change – noting that currently the father rents and the mother is living on her parents’ property. Each of them may re-partner or may have more children, and that may well involve living in a different location. At times parties move in order to be closer to their preferred school, as the father has indicated he proposes to do, or for affordable accommodation.
The real issue is whether the child should attend a school subject to daylight savings. The parents live close to the border of NSW and as such when the mother moved in with her parents post-separation she took X interstate.
The mother now wants X to attend a school in NSW because, not only has she moved across the border to live with her parents in NSW, she is currently employed there. The mother wants the child’s education to be on the same schedule as her work during daylight savings. But that would mean that the father was on a different schedule and creates problems for him and X in co-ordinating their schedules. So, either way, there will be an issue for X co-ordinating with one or other of the parties, at least until one or other of them moves again. I am aware, however, that both parents have support from their own parents, in addition to the usual after school care resources being available, so either way I have no doubt it will be manageable.
As was rightly noted during the course of submissions, there was little to no evidence about the parents’ competing choice of school; both are religious. The father has provided evidence about his preferred school as regards fees. The mother simply says that she has done research and gives evidence that she has picked the best school, but gives no reasons why and no information about the fees.
I am not much moved by distance; there is not much to choose between the schools in that respect and as noted earlier that may change. I am ordering a move towards equal time so I do not propose to prioritise one parent’s convenience over the other.
I intend to order that X attend the school nominated by the father. I have more information about that school, at least as regards fees; there is little to choose as regards distance. I do not intend to nominate a school that is in NSW where the mother has moved there post-separation and may well move back again. I will order that X attend such school as agreed between the parents and failing agreement that he attend at B School in Queensland.
Other Orders
I will otherwise make the orders as proposed by the father. Some I shall exclude as stating the obvious – that the parents should be courteous to each other. That was addressed in detail in cross-examination and in these Reasons. Communication and consultation is just that; an exchange of options and suggestions seeking input from the other parent. These are intelligent people, if they wish to do so they have the capacity to communicate appropriately.
I am of the view that a weekly call is well and truly sufficient given the significant and substantial time ordered with a build up to equal time.
I also do not propose to order make up time when one parent travels overseas with the child. That may impact the other parent’s time on up to one occasion per year unless agreed otherwise and is in my view unnecessary where a week about arrangement will soon be in place. That does not mean that the parties cannot agree to some extra time on their return but an insistence on every day being compensated with make-up time is likely to cause further conflict.
I do not propose to make a restraint that prevents third parties exercising parental responsibility. That is controlled by the legislation and there is no evidentiary basis for such a restraint in any event.
I do not propose to make orders about who can attend changeovers. The need for face to face changeovers will be the exception rather than the norm with most changeovers occurring at school or day care so that the parents will only occasionally come face to face. That said, of course the parties can organise for third persons to assist from time to time when they may be unable to attend themselves, but it should be someone familiar to the child and done on notice to the other party so there are no surprises. An agent who attends changeover for a parent should be someone who can be trusted to facilitate a smooth and peaceful transition so that the child is not exposed to any conflict or uncertainty.
I certainly do not propose to make a first option to care order. Each party is perfectly capable of making their own care arrangements for the child while he is with them. If there is to be some protracted absence then of course he should return to the other parent, but I will not make an order that imposes a time frame of however many hours. That way lies further conflict in my view.
IN CONCLUSION
In making the Final Parenting Order in this matter, I have relied on the draft proposed orders provided by the parties, with some drafting improvements for clarity and language usage. For example, rather than “is to” or “shall”, I prefer the use of the clearly directive word “will” and I have deleted repeated references to changeover locations where changeovers are dealt with separately and clearly.
It is clear on the evidence before the court that both parties love X very much indeed. I am satisfied that they both have his best interests at heart and that each has much to offer him. I am satisfied that they will each work hard to ensure that he has a happy and healthy future.
I am satisfied that the Orders I now make are in the best interests of the child, X.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 26 February 2025
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