Reese & Ralston
[2022] FedCFamC2F 1790
Federal Circuit and Family Court of Australia
(DIVISION 2)
Reese & Ralston [2022] FedCFamC2F 1790
File number: HBC 868 of 2019 Judgment of: JUDGE TURNBULL Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – CHILDREN – remittal on issue of child’s school – resulting remittal of issue of child’s time with father – where Mother seeks to reduce the Father's time – where Father seeks equal time –where Mother claims that she and the child subjected to family violence and Father poses unacceptable risk to the child unless his time reduces – whether failure to cross-examine the Mother regarding all allegations should lead to conclusion that her allegations were unchallenged - operation of the Rule in Browne v Dunne - Weight to be given to child’s view to retain current time arrangement and remain at current school Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, Part VII, ss 60CC, 60CA, 60B, 61C, 61DA, 61DAB, 65D(1), 65DAA, 65DAC, 102NA
Evidence Act 1995 (Cth) s140
Cases cited: AL v The Queen [2017] NSWCCA 34
Bant & Clayton [2019] FamCAFC 198
Browne v Dunn (1893)6 R 57
Bilz & Breugelman [2013] FamCA 578
Bringinshaw v Bringinshaw (1938) 60 CLR 336
Bondelmonte & Bondelmonte (2017) 259 CLR 662
Godfrey & Sanders [2007] FamCA
Goode & Goode [2006] FamCA 1346
Harnett & Sampson (Scope of Rehearing) [2009] FamCAFC
Isles & Nellisen [2022] FedCFamC1A 97
LC & TC [1998] FamCA 47
Mazorski & Albright [2007] FamCA 520.
McCall & Clark [2009] FamCAFC 92
M v M (1998) 166 CLR 69
Murphy v Murphy [2007] FamCA 785
MRR v GR (2010) CLR 461
MWJ v The Queen (2005) 80 ALJR 329
Reece & Ralston [2021] FedCFamC1A 99
Re G: Children’s schooling (2000) FLC 93-02
Scalise v Bezzine [2003] NSWCA 362
Scott v Scott (1994) FLC 92
Stamatou & Stamatou [2022] FedCFamC1F 241
U v U [2002] HCA 36
Withers & Russell [2016] FamCA 793
Division: Division 2 Family Law Number of paragraphs: 130 Date of hearing: 15–16, 28, 30 September 2022 Place: City A Solicitor for the Applicant: Murdoch Clarke Solicitor for the Respondent: Ogilvie Jennings Counsel for the Respondent: Ms M Eddington ORDERS
HBC 868 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS REESE
Applicant
AND: MS RALSTON
Respondent
order made by:
JUDGE TURNBULL
DATE OF ORDER:
23 December 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the Mother and Father shall have equal shared parental responsibility for the child X born in 2014 (‘X’).
3.That X live with the Mother unless otherwise specified in these Orders.
4.That X shall spend time with the Father as follows:
(a)During school terms —
(i)Until X completes his primary school education, from after school Friday until the beginning of school Wednesdays, in each alternate week, commencing the first Friday of each school term;
(ii)From the commencement of X’s grade seven year — on a week-about basis — from after school Friday until the commencement of school on the following Friday in each alternate week, commencing on the first Friday of each school year;
(b)for the first period of the Term 1, 2 and 3 school holidays from 9.00 a.m. on the first Saturday to 12 noon on middle Sunday;
(c)for the second half of the long summer school holidays starting in 2022/2023 and each alternate year thereafter and the first half of the long summer school holidays in 2023/2024 and each alternate year thereafter.
(i)TO REMOVE DOUBT —
A.the long summer holidays will commence at 3.00 p.m. on the last day of school following the end of Term 4 and conclude at 3.00 p.m. on the last day of such holiday’s prior to the commencement of Term 1 of the next school year.
B.The first half of the long summer holidays will conclude at 3.00 p.m. on the middle day of the long summer school holidays.
5.That during the Christmas period the parties spend time with X as agreed but failing agreement:
(a)in 2022 and in each alternate year thereafter, with the:
(i)Father from 12.00 noon on Christmas Eve to 12.00 noon on Christmas Day; and with the
(ii)Mother from 12.00 noon Christmas Day to 6.00 p.m. on Boxing Day.
(b)In 2023 and each alternate year thereafter, with the:
(i)Mother from 12.00 noon on Christmas Eve to 12.00 noon on Christmas Day; and with the
(ii)Father from 12.00 noon Christmas Day to 6.00 p.m. on Boxing Day.
6.That on X’s birthday the parties spend time with the child as agreed but failing agreement:
(a)in 2022 and each alternate year thereafter, with the:
(i)Mother from the conclusion of school the day prior or 12.00 noon if a non-school day to the commencement of school on the birthday or 12.00 noon if a non-school day; with the
(ii)Father on the birthday, from the conclusion of school or 12:00 noon if a non-school day to the commencement of school the following day or 12.00 noon if a non-school day.
(b)in 2023 and each alternate year thereafter, with the:
(i)Father from the conclusion of school the day prior or 12.00 noon if a non-school day to the commencement of school on the birthday or 12.00 noon if a non-school day; with the
(ii)Mother on the birthday from the conclusion of school or 12:00 noon if a non-school day to the commencement of school the following day or 12.00 noon if a non-school day.
7.That if X is not already in the Mother's care on Mother's Day that he spend time with the Mother from 6.00 p.m. on the day before Mother's Day until 6.00 p.m. on Mother's Day.
8.That if X is not already spending time with the Father on Father's Day that he spend time with the Father from 6.00 p.m. on the day before Father's Day until 6.00 p.m. on Father's Day.
9.That changeovers occur as agreed but failing agreement:
(a)if a school day, at X’s school; and
(b)if a non-school day, at a mutually agreed place.
10.That X communicate with the Mother and Father as follows:
(a)by telephone, with the parent he is not otherwise spending time with, each Sunday at 5.00 p.m.; and
(b)any other time in accordance with X's wishes.
11.For the purpose of the above Order 10 the parent who is not caring for X will initiate the telephone call by calling the mobile phone of the other parent and the parent who has care of X will facilitate the telephone call.
12.The parents will communicate as follows:
(a)All non-urgent communication will occur using the OurFamilyWizard App and will be strictly limited to matters which directly relate to X’s health, care, welfare, development and education (including any matters arising in relation to these Orders);
(b)Neither parent will abuse, denigrate, harass, belittle or insult the other parent at any time verbally or in writing including in X’s presence or hearing;
(c)Neither parent will discuss the other parent or any matter relating to these court proceedings or separation with any parent, teacher or family member from X’s school; and
(d)Communication in the case of a genuine medical emergency affecting X will occur by telephone call as soon as reasonably practicable.
13.Neither parent will enrol X in an activity which impacts upon the other parent’s time with X without the other parent’s written consent.
14.Each parent will ensure that X attends any activity or other commitment in which he has been enrolled or engaged (subject to order 13) during his or her time with X.
15.During any Covid-19/Coronavirus health crisis each parent will:
(a)Observe all government mandated restrictions and social distancing measures when X is in his or her care; and
(b)Ensure that X completes any set school work which is required to be done while he is in his or her care.
16.Each parent shall notify the other if it is intended by that parent that X will stay overnight at any location other than the home of that parent or of a grandparent of X, with notification to be given at least 48 hours beforehand.
17.In the event that X is unwell or injured:
(a)In the case of an emergency or serious illness or injury, the parent with care of X will immediately notify the other parent by phone call; or
(b)In the event of a non-urgent or minor illness or injury, the parent with care of X will notify the other parent using the communication methods set out in order 12.
18.That the parties each make available to the other all medication prescribed to X to administer during their respective time periods.
19.For medical treatment:
(a)Unless in the case of an emergency, X is to be treated by Dr D at E Medical Clinic or to Dr F, G Medical Clinic; and
(b)Each parent will provide his or her authority to X’s treating medical practitioners and allied health practitioners to communicate directly with the other parent and to provide information to the other parent in relation to X’s health and treatment as and when requested.
20.That unless the parents otherwise agree, X shall continue to attend B School for the duration of his primary school education.
21.That X attend H School in City A from the commencement of year 7 onwards and the Mother and Father do all things necessary to enrol X in H School within thirty (60) days of the date of this Order.
22.That Order 21 is conditional upon the Mother meeting all X’s school fees associated with X’s attendance H School.
23.Each parent will ensure that X attends school during regular school contact hours, and will provide a medical certificate to the school and to the other parent for any absences.
24.That the parties each authorise and direct all schools, educational facilities and extracurricular providers of X to provide each party (at their request and cost) all information reasonably available regarding his attendance, including but not limited to notices, information, newsletters, reports and/or photographs.
25.That the parties be permitted to attend extra-curricular and like activities routinely attended by parents, including but not limited to parent-teacher interviews, functions, concerts and sporting events.
26.That the parties' keep the other informed as to their residential addresses and provide the other with no less than 7 day’s written notice of any change to the same and/or their telephone number.
27.That without either party admitting the necessity for the same:
(a)the parties, their servants and/or agents be and are hereby restrained from abusing, insulting or otherwise denigrating the other party, their family, partner and or partner’s family in the presence of X or in circumstances where that attitude could come to their attention;
(b)the Mother and the Father be and are hereby restrained from discussing these proceedings or any part of them with X and/or involving him in any dispute between them;
(c)the Mother and Father be restrained from directly or indirectly making statements, giving opinions or entering conversations with X about changes to his current educational arrangements;
(d)the Mother and Father be and are hereby restrained from making false allegations against the other regarding alcohol and drug use;
(e)the Father and Mother are restrained from committing acts of Family Violence as defined by the Family Violence Act 2004 (Tas) towards each other or any other person in the presence or hearing of X;
(f)Neither parent will consume any illicit drugs or alcohol to excess (that is, exceeding a blood-alcohol limit of 0.05) while X is in his or her care; and
(g)Neither parent will leave X unattended without appropriate adult supervision outside his or her own home for a period of more than 10 minutes.
28.That each parent is permitted to holiday with X during their ordered school holiday time with X outside the state of Tasmania and/or the Commonwealth of Australia provided:
(a)Not less than 28 days written notice of their intention is provided to the other parent.
(b)If international travel is being undertaken, X has been administered with the full course of a COVID-19 vaccine once it has become available to children in Tasmania;
(c)The travelling party provides the non-travelling party with a travel itinerary including the departure and return dates, the destination/s, the approximate dates on which X will arrive and depart each destination and a telephone number on which X can be contacted; and
(d)During such travel, makes X available for telephone communication with the non- travelling party at all reasonable times.
29.That all extant Applications before this Court be otherwise dismissed.
THE COURT NOTES:
A.That pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A 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).
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 Reese & Ralston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Turnbull
Overview and brief chronology
These Reasons concern one child — X born in 2014 (‘X’). X is now eight years of age. This matter involves several allegations of family violence, various mental health concerns and a disheartening degree of turmoil for X. He is, nevertheless, a confident child with varied interests and is very good at making friends. He performs well at school with particular interest in mathematics and science. He also enjoys sports and the beach.
X’s parents, Mr Reese (‘the Father’) and Ms Ralston (‘the Mother’), commenced cohabitation in or about 2010 or 2011 and separated on a final basis on or about March or April 2019. The Father commenced proceedings on 24 September 2019. Throughout this litigation X has lived with the Mother and spent an increasing amount of time with the Father. The Father's time built via a number of interim orders — initially supervised time at the City A Contact Centre[1] — then Saturday afternoons each week supervised by the paternal Grandmother[2]— then four hours on Saturday and Wednesday unsupervised[3] –— then each Saturday for the day and overnight each Tuesday until Wednesday[4]— and finally each alternate Friday until Sunday and each Tuesday until Wednesday (four nights per fortnight).[5]
[1] Orders of Judge Baker in Reese & Ralston (Federal Circuit Court of Australia, (P)HBC868/2019, 30 September 2019).
[2] Orders of Judge Baker in Reese & Ralston (Federal Circuit Court of Australia, (P)HBC868/2019, 6 November 2019).
[3] Orders of Judge Baker in Reese & Ralston (Federal Circuit Court of Australia, (P)HBC868/2019, 22 April 2020).
[4] Orders of Judge Baker in Reese & Ralston (Federal Circuit Court of Australia, (P)HBC868/2019, 26 May 2020). Note: This order was for a period of four (4) weeks.
[5] Ibid. Note: These orders included detailed orders regarding Mother’s day, Father’s day, X’s birthday, phone communication, the provision of information relating to X’s health, an injunction preventing him from being taken to a psychologist, orders relating to Covid-19 protocols, restraints preventing either party committing acts of family violence, and engaging X in conversation regarding his schooling.
The case reached a final hearing on 18 March 2021. At the commencement of the hearing the parties' agreed to an order for equal shared responsibility as well as orders consolidating or improving the orders already in place.[6] Judge Dunkley handed down his decision on 6 August 2021, ordering that X spend each alternate Friday until the following Wednesday with the Father - (five nights per fortnight) - together with one half of X’s gazetted school holiday’s. He also ordered that X attend B School for the duration of his primary school education and permitted interstate and international travel.
[6] Reese & Ralston [2021] FCCA 1617, 12-15 (Judge Dunkley).
The Father successfully appealed Judge Dunkley’s decision and, by order of Tree J on 22 December 2021, the following issues were remitted for re-trial:
(1)the school at which X will attend; and
(2)as a result of issue 1 being a successful ground of appeal, the arrangements for X’s time with the Father during school terms.[7]
[7] Reece & Ralston [2021] FedCFamC1A99, [35]. The scope of the remitter was not qualified or subject to any further direction from Tree J, pursuant to the Federal Circuit and Family Court of Australia Act 2021 (Cth) s36(1)(c), beyond proclaiming at order 3 that ‘[t]he questions of the primary school which the child, X born in 2014, attends, and the time which he spends with each parent during school terms, be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge’.
On 9 February 2022 I ordered the appointment of a legal representative for the Mother pursuant to s 102NA of the Family Law Act 1975 (Cth). She was self-represented throughout these proceedings until 11 July 2022.
The retrial commenced on 15 September 2022 and ran for four non-consecutive days, concluding on 30 September 2022. Prior to receiving evidence on the first day of the retrial I confirmed the scope of the issues before me with Mr Foster, Counsel for the Father, and Ms Eddington, Counsel for the Mother. I also confirmed that Tree J set aside orders 2(a) and 4 of Judge Dunkley’s orders dated 2 August 2021.[8] All other orders proclaimed by Judge Dunkley remained effective. Neither Mr Foster nor Ms Eddington sought to stringently apply the test of evidentiary relevance with respect to the two specific questions before me. Indeed, it would have created an unwieldy and overcomplicated trial. Counsel could, therefore, lead evidence about facts in respect of which findings have already been made, noting that Tree J did not disturb Judge Dunkley’s factual findings beyond his finding — giving rise to an error of law — that the parties agreed about X’s schooling arrangements. The retrial was nevertheless focused, at all times, upon determining the two issues remitted for rehearing.[9]
[8]Tree J referred to order 6 not 4 in his order by mistake — Judge Dunkley ordered that: (2) X shall spend time with his Father, in addition to the time provided for in the orders made on 18 March 2021, as follows: (a) [d]uring school term time, from after school on Friday until beginning of school on Wednesday in each alternate week commencing the first Friday of each school term; and (4) Unless the parents otherwise agree, X shall continue to attend Suburb BB School for the duration of his primary school education.
[9] Hartnett & Sampson (Scope of Rehearing) [2009] FamCAFC 1, [25], at which it is stated that ‘…a trial Judge must not be constrained as to the determination of a controversy other than it must be determined according to law. For a Full Court to direct that a new trial Judge accept findings of another Judge and then apply the law would be to inappropriately shackle the Judge’.
On 16 September 2022 the parties' agreed to an order that X attend H School, in City A — a private school — for his secondary education and that the Mother will meet the fees associated with the same. Counsel also agreed that it is appropriate for me to consolidate, in the final orders accompanying these Reasons, the orders of 26 May 2020, 18 March 2021, 6 August 2021, and 16 September 2022.
As of the remitted hearing before me it was clear that the parties’ relationship remains ‘highly adversarial’ as observed by the single expert witness, Dr K.[10] Much of the Mother’s focus was upon her allegations of family violence, notwithstanding neither party explored such issues in oral evidence during the hearing before Judge Dunkley.[11] The Father concentrated upon what he believed to be the unjustified restriction of his time with X following separation and the impact upon him and his family of the travel involved in transporting X to and from B School during his ordered time — this being part of his motivation for X to move to a City A based primary school..
[10] Dr K, Single Expert Witness Report, 2 August 2022 (‘Single Expert Witness Report, August 2022’), [6].
[11] Reese & Ralston [2021] FCCA 1617 [34]. Judge Dunkley in his reasons ‘Neither party explored during the oral evidence phase of the hearing the issue of family violence. As such, I am unable to make many findings either way.’
The parties’ positions and evidence
The Father seeks an order that X attend L School in Suburb M instead of B School. Further, the Father seeks that X spend equal time with each of the parents.[12] Mr Foster confirmed in final submissions that the Father maintains his application for equal time even if I order that X remain enrolled at B School until grade 7. The Mother, on the other hand, seeks that X remain at B School and that X’s time with the Father reduce to three days per week.[13] Both parties agree that X will attend H School from at least grade 7 but, prior to that time, they remain at odds about the school at which he should attend.[14] This issue is largely financial and practical. The Father says that he is struggling to manage the current 5/9 time arrangement with X attending B School but that, if he attended L School, an equal time arrangement could commence. The Mother’s position is that X should remain at B School with his established friendships and school routine. To accommodate this, in part as a matter of practicality, the Mother says that X’s time with the Father needs to reduce to a 3/11 arrangement during school terms.[15]
[12] Amended Application, 2 September 2022, [2] (seeking that X live with the Father and the Mother on an equal basis upon such terms as may be agreed between the parties from time to time and in default of agreement as may be determined by the court), [3] (seeking that the parties enrol X to attend at L School from the commencement of the 2023 school year).
[13] Further Response, 8 September 2022, [3] (seeking that X spend time with the Father each alternate week from the conclusion of school; on Friday (or 9am on a non-school day) until the commencement of school on Monday morning (or 5pm on a non-school day), [6] (seeking that X continue to attend Suburb B for the duration of his primary school education).
[14] Orders of Judge Turnbull in Reese & Ralston (Federal Circuit and Family court of Australia, HBC868/2019, 16 September 2022). The Court made orders, by consent, on 16 September 2022 to the effect that X attend H School in City A from grade 7 onwards on the condition that the Mother meet all of the school fees associated with X’s attendance at H School and that both parents, by mid-October 2022, do all things necessary to enrol X at H School.
[15] The Mother also argued that X is at risk in the Father’s care for five nights.
The Mother relied upon her case outline filed 14 September 2022, her affidavit filed 6 September 2022, the affidavit of Ms N (X’s maternal grandmother) filed 14 September 2022, further amended response filed 8 September 2022 and exhibits M1–M3.[16] She also relied on both of Dr K’s single expert witness reports.
[16] M1 (Suburb B year 2 Term 1 assessment of X) (‘M1’); M2 (bundle of text messages dated 26 March 2019 to 21 May 2019) (‘M2’); M3 (affidavit of the Father filed 28 January 2020 (‘M3’).
The Mother currently lives at her parents’ home in Suburb B and, while she owns a (tenanted) property at Suburb O and another at Suburb P, she intends to reside primarily with her parents for the remainder of X’s time at primary school. The Mother is highly educated having studied for a degree in arts. She also has a Masters degree in business.[17]At the time of the hearing the Mother was working fulltime for Employer Q but was soon to commence a new job with a Melbourne based business, on a fulltime basis, working from home.[18] The Mother commenced her evidence on 16 September 2022 and concluded her evidence on 28 September 2022, following a lengthy adjournment. The Mother was at times emotional but largely answered questions put to her directly, although as with the Father, when under pressure, tended to add information, leaving the impression of evasiveness at times. As detailed at paragraph 50 of these Reasons, the Mother alleges a history of physical and verbal violence towards herself and X, as well as sexually inappropriate and controlling behaviour towards herself. The Mother was not significantly challenged about her allegations under cross-examination but the Father maintained that they are false or exaggerated. The Mother presented as legitimately concerned about X’s welfare if he spends more time with the Father and/or changes primary school. However, she also portrayed a level of rigid thinking and I am concerned that her heightened anxiety, coupled with her negative view of the Father, has diminished her capacity to properly consider what arrangements will best meet X’s interests.
[17] Dr K, Single Expert Witness Report, 3rd April 2020 (‘Single Expert Witness Report, April 2020’) [63].
[18] Ms Ralston, affidavit, 6 September 2022, [88] (‘Mother’s trial affidavit’).
X’s maternal grandmother, Ms N, also gave evidence. I shall refer to Ms N throughout these Reasons as ‘Ms N’. Wherever any extracted text uses ‘Ms N’ to instead refer to the Mother, I will clarify the person to which any such text refers. Ms N states in her affidavit that she is a retired medical professional and, in her evidence, somewhat reflected her experience in the mental health sector. However, I only take into account Ms N’s evidence as X’s maternal grandmother. While I recognise her training and the framework through which she sees the world, I do not consider any of her evidence as being expert evidence about psychology or mental health generally. Under cross-examination Ms N found it difficult to answer questions directly and appeared, at best, hesitant and at worst, overtly reluctant to promote the relationship between X and the Father. She referred to the Father as being a ‘predator’ in that, while she qualified that one may ‘predate’ upon others in different ways, she did not appear confident in the Father’s general capacity to care for X in cooperation with the Mother. I was left with concern that there was little, if any, promotion of the Father to X in the maternal grandparent’s household. X spends a significant amount of time with his maternal grandparents, as he and the Mother stay with them during the school week when he is in the Mother's care, and they facilitate before and after school care.[19] The Mother describes X’s relationship with her parents as ‘very close’ with both of them heavily involved in his life.[20] There was nothing in Ms N’s presentation for me to doubt the Mother's evidence in this regard.
[19] Ms N, affidavit, 6 September 2022, [21].
[20] Mother’s trial affidavit, (n18) [103].
The Father relied upon his case outline filed 13 September 2022, the affidavits of himself and Ms R filed 31 August 2022, his amended application filed 2 September 2022 and exhibits F1–F9.[21] He also relied upon both single expert witness reports.
[21] F1 (text message exchange dated 30-31 May 2022) (‘F1’); F2 (bundle of documents with the first page reading ‘L School– Overview’) (‘F2’); F3 (text message exchange dated 28 July 2022) (‘F3’); F4 (text message exchange dated 16 December 2021 to 1 January 2022) (‘F4’); F5 (text message exchange dates 29-30 October 2021) (‘F5’); F6 (photograph showing X in sports gear); F7 (text messages from approximately March 2022 regarding lunchbox) (‘F7’); F8 (text message exchange dated 11-12 August 2021, and email dated 12 August 2021) (‘F8’); F9 (affidavit of the Mother filed 11 February 2021) (‘F9’).
The Father and his partner, Ms R, currently live in a rental property in Suburb M with their child S, born in 2021. The lease for that property expires on 24 April 2023. The Father is employed full-time as a professional at Employer T in City A.[22]
[22] Mr Reese, affidavit, 31 August 2022 [44] (‘Father’s trial affidavit’).
The Father commenced his oral evidence on 15 September 2022 and provided further evidence in chief through questions from his Counsel, Mr Foster. He was then cross-examined by Ms Eddington, Counsel for the Mother. The Father gave his evidence in a calm and direct manner. He was cross-examined vigorously in relation to the Mother's allegations of family violence with each of the Mother’s allegations, as contained in her affidavit put to him, but maintained his position that her accusations were false or exaggerated. The Mother volunteered, under cross-examination, a further serious allegation that the Father had injured X by throwing him against a wall. She repeated the allegation during re-examination. Ms Eddington referred to the allegation during final submissions. This allegation was not, however, put to the Father during his cross-examination, nor was there any objective evidence of X’s purported injuries produced to the Court. This appeared to contravene the rule in Browne v Dunn.[23]
[23] The common law rule in Browne v Dunn (1893) 6 R 57 is a one of procedural fairness, where a witness is given the opportunity to respond to a matter the opposing party intends to make comment on (AL v The Queen [2017] NSWCCA 34 [193]). The High Court defined the scope in MWJ v The Queen (2005) 80 ALJR 329 with Gummow, Kirby & Callinan JJ @ [38] stating that ‘The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’s credit.’ If unfairness follows a breach of the Browne v Dunn rule then ‘the judge has a discretion as to how to best to remedy the unfairness so that the trial does not miscarry.’ (Scalise v Bezzine [2003] NSWCA 362 [97] (Mason P)).
At times, particularly when being questioned about X’s school, the Father tended to volunteer information that created an air of evasiveness. The Father also confirmed that part of his reason for wanting a change of primary school for X was for his convenience, stating that it had ‘been two years of [he and Ms R] being inconvenienced and X and [him] haven’t had a relationship with [the Father’s] parents’. The Father was asked about the impact upon him and his family if X’s school did not change to L School. His initial response was that his time would need to reduce to weekends only. After a break to collect his thoughts, he said that he would make an equal time arrangement work, but that it would be very difficult. He did not give this evidence confidently and I was left with the impression that an equal time arrangement would make life highly stressful for him and Ms R, if X remained at B School. The Father presented as genuinely wanting to be involved as much as possible in X’s life, but I was left questioning whether he has truly considered the impact upon X of the significant changes that he proposes?
The Father called his current partner, Ms R, as a witness. They have been in a relationship since about September 2019 — approximately three years. Ms R was cross-examined and maintained the evidence contained in her affidavit. Importantly, she was adamant that she had not been the victim of the Father's family violence nor had X been harshly disciplined or exposed to high conflict in her household, as the Mother alleged. She stressed that the Father supported her and had a loving and nurturing relationship with herself, X and S. It was put to Ms R that she did not like the Mother but she responded that she did not like what the Mother says about her. When asked as to what would be the outcome if X’s school was not changed to L School, she emotionally and genuinely replied that the Father’s time would have to reduce to weekend times only. She was of the view that the impact of the travel to and from Suburb B School to be unsustainable for herself, the Father and S. Ms R gave her evidence in a forthright and direct manner. Unshaken under cross-examination, Ms R was an impressive witness.
The single expert witness — Dr K — also attended for cross-examination. Dr K was appointed as a single expert witness by Judge Baker (as Her Excellency then was) on 12 December 2019 and has provided two single expert reports — the first dated 6 April 2020 and an addendum report prepared for the purpose of the remitted hearing dated 2 August 2022.
Dr K suggested a building arrangement to equal time. The Mother’s position is that, if there is to be equal time, then yes, there certainly should be a building arrangement leading up to that time.
Dr K conducted psychometric assessment of both parties for the purpose of her first report. Both parties completed three separate tests — Personality Assessment Inventory [PAI], Trauma Symptom Inventory -2 [TSI-2] and State-Trait Anger Expression Inventory – 2 [STAXI-2]. For the Father:
·On the PAI he showed no clinically significant elevations, indicative of having a general stable and positive self-evaluation, being a confident and optimistic person;
·On the TSI-2 he did not reveal any clinically significant elevations, and no indications of posttraumatic stress disorder or associated conditions; and
·On the STAXI-2 he did not identify significant anger management deficits. His profile reflected a tendency towards depression and internalising negative emotions.[24]
For the Mother:
·On the PAI there were no clinically significant elevations but one scale did reflect heightened anxiety with respect to health concerns;
·On the TSI-2 there were no clinically significant elevations nor indications of posttraumatic stress disorder or associated conditions; and
·On the STAXI-2 Dr K observed:
Results: [Ms Ralston]'s responses to this measure are consistent with the extensive use of denial, repression and avoidance of unpleasant emotional states. Therapeutic intervention is indicated to assist [Ms Ralston] with experiencing and managing difficult emotions, and being more assertive in conflict resolution rather than avoidant. Her profile is consistent with having an extraordinarily difficult time dealing directly with any behavioural expressions or thoughts of being angry, meaning that she is likely preoccupied with control. Her responses suggest that anger is very socially unacceptable to her, and produces immediate pressure on her to avoid it. Overcontrol of anger may also relate to overcontrol of other emotions, and can be associated with debilitating anxiety and depression.[25]
[24] Single Expert Witness Report, April 2020 (n17) [27]-[35].
[25] Ibid [51]-[59].
Dr K met with X for her most recent report, stating:
[X] expressed that he would like to continue in the regime of nine nights with his mother, and five nights with his father each fortnight (5/9). He also expressed his wish to remain at [B School] with his friends until the end of grade 6.
[X] expressed age-appropriate views of becoming a big brother, and advised that his little brother can be annoying at times. He expressed that it was good that his bedroom at his father’s home had been moved further away from his little brother, so that he could get better sleep and not be disturbed. He described that sometimes he helps with the baby, such as holding his bottle when they are in the back seat of the car together. [X] advised that he felt included, and knows that his Dad loves him and the new baby.
[X] advised feeling very happy at his school at [Suburb B], with good friends and activities that he enjoys. He advised that he will go to high school with some of his friends.
I discussed [X]’s wishes for 5/9 time to continue with his parents. [Mr Reese] was seeking increased time to 7/7. [Ms Ralston] [the Mother] was seeking a reduction of [X]’s time with his Father. Both parents expressed that they were willing to support [X]’s wishes of 5/9 time, even if it was not consistent with their own wishes for more time with him.
[X]’s parents did not reach agreement regarding which school he attends during the course of the assessment.[26]
[26] Single Expert Witness Report, August 2022 (n10) [14]-[18].
Under cross-examination Dr K was questioned about the impact upon X of both moving school and increasing or decreasing his time with either parent. Dr K did not agree that the Father's time with X should reduce and, noting X’s wish that his current arrangements not change, opined that for a child of X’s age, there was little difference between a 5/9 and half of the holidays and an equal time arrangement. She said that X has a ‘science brain’ and as a result, more certain time arrangements would be beneficial since he likes data and he likes to know what to expect. As such, if the Father's time was to increase, she suggested it build through a stage of 6 nights before an equal time arrangement commences. She felt that the Mother would also cope better with a staged change, given her anxiety.
As for moving X’s school, Dr K was of the opinion that X was at an age where he would cope with such a change. She said that X likes B School and enjoys his friends, although he does not see his friends much outside of school. He gravitated towards mainly male friends with interests in maths, science and board games. That said, X told her that he wants to remain at B School where he has no concern with his social position in the school hierarchy and likes the school environment – particularly the beach and the landscape of Suburb B.
When asked whether losing his friendship group, if he moved schools, would be detrimental to X, Dr K said that he would adapt to the change if he continued to have play dates with his Suburb B friends. She also understood that he had other friends in town — due to after school care during his time with his Father – and that a move to L School would lead to a natural continuation of those relationships. Dr K said that friendships are quite fluid for children of X’s age, who are relatively egocentric with less entrenched hierarchies, and as such, it is easier for them to adapt. X is also confident and smart, with a wide range of interests and is good and making friends.
Ultimately, Dr K opined that increasing X’s time with his Father in a staged way and changing his schools was not detrimental to X in a psychological sense. Dr K did not state that there would be detriment to X if he remained at Suburb B and maintained the current time arrangement as ordered.
Dr K’s evidence was detailed and considered and her opinions and recommendations were not successfully challenged. I give her evidence significant weight.
Parenting orders: the law
This Court must craft and consider the terms of a parenting order with regard to X’s best interests as a paramount consideration.[27] I am not bound by the terms proposed by the parties and, subject to the pathway set out in Part VII of the Family Law Act 1975 (Cth) (‘the Act’), and particularly ss. 61DA and 61DAB, may create parenting orders as I think are proper in the circumstances.[28] What, however, guides the assessment of X’s best interests? How, once his best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?
[27] Family Law Act 1975 (Cth) s.60CA, informed by s.60CC factors, assessed at paragraphs [40] – [103] below. (‘FLA’)
[28] Ibid s65D(1).
The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations with respect to X’s best interests. Crucially, and as touched upon at trial, the underlying principles reflect and seek to enforce X’s human rights.[29] Part VII of the Act, to give effect to a child’s best interests, carves a legislative pathway. The pathway has a number of substantive stepping-stones which may be legitimately and properly followed in various forms. MRR& GR remains authoritative as a formulation of the path to be taken, and I shall follow this approach.[30]
[29] Ibid s.60B(1), (2), (4) noting the expression of responsibility at subs (1), the expression of the child or children’s rights at subs (2), and the additional object at subs (4) to give effect to the Convention on the Rights of the Child.
[30] MRR v GR (2010) CLR 461 (‘MRR v GR’); Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirm that there is no preferred approach there being ‘more than one suggested pathway through the legislature’.
X’s schooling arrangements
A child’s life revolves, in no insignificant part, around their attendance at school. X evidently enjoys school and, in particular, shows excellence in physical education, music and group work with his peers.[31]
[31] M1 (B School Year 2 Term 1 assessment of X) (‘M1’) Noting that assessments are from early to mid-2022.
The Full Court of the Family Court, in Re G: Children’s schooling, reasoned that a child’s schooling arrangements must, of course, be considered in the course of the s.60CC ‘check list’ of factors directed to satisfying the paramountcy principle in s.60CA.[32] In doing so, it is not appropriate to presume or prefer that the parent with whom the child ordinarily lives, proposes the most suitable arrangements.[33] A Court faced with this question must apply the steps identified in Part VII of the Act, whether in accordance with MRR & GR or otherwise, just like with any other parenting orders. With respect to the Full Court’s remarks in Re G, Austin J in Bilz & Breugelman summarised the position about comparing schooling options:
… the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]–[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]–[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]–[63]). While the views of the child are relevant to the inquiry, as s.60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s.60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]–[90]; Eden-Proust at [69]).[34]
[32] Re G: Children’s schooling (2000) FLC 93-025, 87, 416.
[33] Ibid 408.
[34] Bilz & Breugelman [2013] FamCA 578, [82]-[83].
That the Full Court in Re G gave the reasons summarised above does not mean that a close school will always be in a child’s best interests. The assessment is not one of merit or presumption, but one in which a court must assess the practicality of the arrangements within the context of s.60CC. It is not a utilitarian question of which option is most convenient for everyone involved, although a child’s best interests may ultimately chart a course of logistical efficiency. This was a significant point of contention at the trial since the Father in particular indicated his grievance with the significant travel time and financial cost of the currently ordered arrangement.
Unacceptable risk
It is my task to ensure that the ultimate parenting orders do not place X at an unacceptable risk of harm due to family violence, abuse, or neglect or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting a child from harm (or any unacceptable risk thereof) is intertwined with the paramountcy principle, as evident in s.60CC(2)(b). This includes any risk of family violence, abuse, or neglect.[35]
[35] FLA (n27) ss 4AB (definition of ‘family violence’), 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s.60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.
The question of unacceptable risk is aimed at ensuring that the terms of an order are consistent with a child’s best interests, in that, to the extent possible and foreseeable, the orders do not place them at risk of harm.
The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[36] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[37] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[38] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s.65D by reference to the child or children’s best interests:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[39]
[36] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198, [38]-[41].
[37] Isles & Nelissen [2022] FedCFamC1A 97, [46]-[51], [86]; Bringinshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s140 (‘EA’).
[38] Isles & Nelissen (n 37) [83].
[39] Isles & Nelissen (n 37) [85].
The question before me is, therefore, whether X will, in the future (and on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities), be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable’.[40] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[41] The parenting orders ultimately made, in those circumstances and if appropriate, can include measures to mitigate the type of risk as characterised.
[40] M v M (n 36) 77-78, at which their Honour state that ultimately, the court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare’ , and that ‘[t]he existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access’. I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off “possibilities” in a prospective sense’, affirmed by the Full Court on appeal.
[41] Murphy & Murphy [2007] FamCA 785, [318]–[319].
As the law currently stands it is my task to identify any risks to which X may be subject and decide whether, in the context of the evidence and X’s best interests as a whole, any of those risks are ‘unacceptable’. The Mother’s case is that X will be exposed to family violence unless the Father's school term time is reduced to three nights per fortnight — noting that X has enjoyed at least a four night per fortnight with the Father since June 2020 and will continue to spend half of all school holiday’s with him.
Standard of proof
I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.[42]
[42] EA (n 37) s140.
Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remain relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
I must ground my assessment of X’s best interests in facts, of which I am persuaded, on the balance of probabilities.
X’s best interests
The Act sets out two mandatory considerations at s.60CC(2). It is noted that s.60CC(2)(b) is to be given greater weight than s.60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of the parents. The Act also includes a number of additional considerations under s.60CC(3) which will be considered insofar as they are relevant to this matter.
The benefit to the child of having a meaningful relationship with both of the children’s parents (s.60CC(2)(a))
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[43]
[43] Mazorski & Albright [2007] FamCA 520, [26]; McCall & Clark [2009] FamCAFC 92, [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[44]
[44] Godfrey & Sanders [2007] FamCA 102, [36].
It is clear from the observations of Dr K that both parties have a deep and loving connection with X. Dr K opined that both parties are child focused and want X to have the best in life.[45]
[45] Single Expert Witness Report, April 2020 (n 17) [91].
Dr K’s observation of X and the Father in her first report, at a time when the Father was only enjoying supervised time, was consistent with the observations of staff at the City A Contact Centre, that X ‘thoroughly enjoyed his time with his Father’ and, as a result, it is ‘not warranted for Mr Reese’s contact with X to continue to be supervised’.[46] In her second report Dr K observed that:
Both parents describe that they have a close relationship with X, and each provided examples of the quality time and interests they share together.[47]
X also told Dr K that ‘he felt included, and knows that his Dad loves him and the new baby’.[48]
[46] Ibid [76], [89].
[47] Single Expert Witness Report, August 2022 (n10) [5].
[48] Ibid [15].
X has spent substantial and significant time in the Father's care since June 2020[49] and is currently spending five nights per fortnight with the Father during school terms and one half of all school holidays These arrangements have allowed the relationship X has with the Father, S, Ms R and his paternal family to prosper. To reduce that time would likely negatively impact on those relationships.
[49] Pursuant to Orders of Judge Baker in Reese &Reese (Federal Circuit Court of Australia, HBC868/2019, 26 May 2020.
The Father argues that unless his time is increased, the Mother's negativity towards him will ultimately undermine his relationship with X. X’s relationship with his Father is however, deep and secure notwithstanding that he has always been in the Mother's primary care. The Father also argues that the travel time involved in transporting X to and from B School is unfairly diminishing the quality time he spends with him, yet there is no evidence of any diminution of their relationship because of the amount of time the Father and X spend with each other when X is being transported to and from school.
X has four years remaining of his primary education. He will attend H School in City A for his secondary education. At that time the Father's current difficulties with taking X to and from school will dissipate. Depending on where the Mother is living at that time, she may be the one who is inconvenienced. The inconvenience of the parties is subservient to the best interests of X. There is no evidence that X’s relationships are or will be negatively impacted if he remains or moves from his current school.
I have no hesitation in finding that X benefits from the deep relationship that he has with both of his parents, his grandparents, S and Ms R, and that those relationships will continue to grow if the X spends significant time with both of his parents.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b))
The Mother alleges that she and X have been subject to physical and psychological abuse from the Father, including — prior to separation:
·being controlled through ‘love bombing’, isolation from friends and family, negative comments, ‘gas lighting’, financial restriction and verbal abuse;[50]
[50] Mother’s trial affidavit, (n18) [12]–[13].
·being forced to have sex without consent as well as being subject to unwanted sexual behaviour and comments in public places, including in the presence of X;[51]
[51] Ibid [13(i)], [13(j)), [32], [38].
·being threatened by the Father that he was going to crush her face in a vice – a threat made in the presence of X;[52]
[52] Ibid [13(h)], [20].
·that the Father deliberately squashed X under the weight of his body.[53]
[53] Ibid [33].
And following separation that he:
·arrived at her house to see X drunk and stinking of whisky;[54]
[54] Ibid [36].
·motioned as to hit her and later X with a foam bat, leaving her traumatised and fearful because the Father ‘looked like he wanted to kill’ X — the Mother reported the incident to Suburb U Police Station resulting in Police Family Violence Order for a period of 12 months;[55]
[55] Ibid [37].
·became sexually aroused in public in the presence of X;[56]
[56] Ibid [38], [40].
·accessed the Mother's Facebook page without her consent;[57]
[57] Ibid [45].
·threatened that he would ‘do something drastic’ if things did not change regarding his time with X;[58]
·threatened to take X from school – this incident was reported to police in August 2019;[59]
·incessantly called the Mother and others at her work and sought information about her from her work colleagues;[60]
·sent X back to her with a staph infection;[61]
·threatened to stop paying child support and to kidnap X;[62]
·screamed at X and locked him in his room, as well as requiring him to eat alone, as a form of punishment;[63]
·suggested to X that he drop him at a skate park – this led the Mother to call Strong Families, Safe Kids;[64]
·exposed X to family violence committed against Ms R;[65]
·rubbed chilli into X’s face as a form of discipline[66]
·threw X against a wall, causing him back and stomach pain, leading her to call Child Safety Services.[67]
[58] Ibid [46].
[59] Ibid [48].
[60] Ibid [52].
[61] Ibid [71].
[62] Ibid [72], [74].
[63] Ibid [77(a) & (b)].
[64] Ibid [77(c)].
[65] Ibid (77(d) & (e)].
[66] Ibid [82].
[67] Reese v Ralston (Federal Circuit and Family Court of Australia, HBC868/2019, Commenced 15 September 2022) (‘Trial 15 September 2022’) Volunteered by the Mother during cross examination and again during re-examination.
Ms Eddington submitted that this history evidences that the Father poses an unacceptable risk to X which can only be ameliorated by reducing the Father's time from five nights per fortnight to three nights per fortnight during school terms. Further, the parties' highly conflicted relationship makes it difficult for them to effectively communicate about matters concerning X and as such neither significant and substantial nor equal time is reasonably practicable.
The Father emphatically denied that he has committed family violence towards the Mother, X or Ms R. Ms R confirmed, and I accept, that the Father has never been violent towards her nor X in her presence.
Dr K considered the Mother's allegations in her first report:
[Ms Ralston] has presented an extensive account of her perception of [Mr Reese]'s coercive and controlling family violence behaviour. [Mr Reese] acknowledges past incidents of arguments during which he has said things he regrets, and occasions on which he consumed too much alcohol.
When all of the information is considered, it is my view that [Ms Ralston]'s anxiety regarding [X] leaving her care to spend time with [Mr Reese] has heightened her perception of threat, and influenced the severity of her perceptions of family violence. [Mr Reese] does not present with a forensic profile of a severe family violence offender. This does not mean that family violence has not occurred, or that his past behaviour in certain situations has been acceptable. However, it does impact on whether he should have the opportunity to parent [X], and it is only in extreme cases of family violence that children are denied contact with their parent. He has not yet been given the opportunity post-separation to share the care of [X] in a meaningful way, and to demonstrate that he is able to function well in this role.[68]
Adding:
It must be remembered that [X] has not been observed to exhibit trauma or anxiety symptoms in the presence of his father, and that he has actually enjoyed their time together. It is important for his development that he has the freedom to enjoy his relationship with his father without impediment.[69]
[68] Single Expert Witness Report, April 2020 (n 17) [92], [93].
[69] Ibid [100].
In her second report Dr K stated:
[Ms Ralston] acknowledges that she experiences significant anxiety, as outlined in my initial report. She is hypervigilant in her protection of [X]. She has contacted the Police to check on [X]’s welfare when in the care of [Mr Reese]. Her concerns have not been substantiated by authorities, and [X] has been found to be safe and well.[70]
[70] Single Expert Witness Report, August 2022 (n 10) [12], [13].
Acknowledging the delicate issues in play Dr K concluded:
This report is deliberately succinct, as details in my last report were weaponised in this dispute, particularly in relation to [Ms Ralston]'s mental health. This is not helpful, and contributes to the further deterioration of a fragile working relationship between these parents. Each of the parents now has an opportunity to start a new life with their new partner, and hopefully these pathways can bring more contentment for them than their shared past together. [X] will benefit from having two healthy families supporting his growth and wellbeing.[71]
[71] Ibid [20].
The Mother's allegations are largely uncorroborated. McEvoy J considered approach to evaluating such evidence in Stamatou & Stamatou [2022] FedCFamC1F 241:
180. Before turning to the wife’s evidence in this respect, it is desirable to say something about the corroboration of family violence. It is well settled that a party does not require their evidence of family violence to be corroborated before such evidence can be accepted. Given the tendency of domestic violence to occur in circumstances where there are no witnesses other than the parties to the marriage and perhaps their children, this must necessarily be so: see Keating & Keating [2019] FamCAFC 46; (2019) FLC 93-894 at [42] (Ainslie-Wallace and Ryan JJ) (“Keating”); Hendy & Penningh [2018] FamCAFC 257; (2018) FLC 93-879 at [72] (Ainslie-Wallace, Ryan & Austin JJ); Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [79] (May, Coleman & Le Poer Trench JJ) (“Amador”).
181. Whilst as a general principle it is important to identify a core consistency in the evidence of an alleged victim of family violence rather than concentrating on supposed inconsistencies in the evidence, this does not permit a court to ignore or otherwise dismiss inconsistencies in that evidence: Keating at [62] (Austin J); Zuen & Lhao [2020] FamCAFC 84 at [22]- [24] (Ryan, Aldridge and Stevenson JJ) (“Zuen & Lhao”). However the reference to the importance of identifying a core consistency, while important in cases involving family violence, must not obscure the reality that there cannot be a finding of family violence otherwise than in accordance with s 140 of the Evidence Act and having regard to all relevant matters: see Amador at [86]-[93]. Where allegations of family violence are made it is necessary for the Court to make findings where the evidence enables that to be done: see Zuen & Lhao at [24].
Whether the Mother’s evidence regarding family violence is a true account of events, or an exaggerated perception created by her heightened anxiety,[72] is in question. Ms Eddington submitted that I should accept the Mother's accounts of family violence as clear, consistent and largely unchallenged during cross-examination. I am, of course, not bound to accept unchallenged evidence,[73] but in this case the Father has consistently denied all allegations of family violence, which he maintained under cross-examination.[74] Further, the Full Court confirmed in LC & TC [1998] FamCA 47 that it is unnecessary for all of a party’s case to be put to the other party during cross-examination where the witnesses are on notice that their version of events is contested:
In any event, it must be said that the rule in Browne v Dunn does not apply where the witness is on notice that the witness's version of events is in contest. That notice may come from the pleadings or the other side's evidence or the other side's opening; it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one (see Seymour v Australian Broadcasting Commission 19 NSW LR 219 at 224-5 per Glass JA, Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168 at 181, Jagelman v FCT (1994) 31 ATR 467 at 472-3, and Raben Footwear Pty Ltd v Polygram Records Inc [1997] FCA 370; 145 ALR 1 at 15).
[72] Reese & Ralston [2021] FCCA 1617 [35] Judge Dunkley in his reasons stated “Ms Ralston’s heightened anxiety has potentially caused her to exaggerate and to perceive threats where little or no threat exists.”
[73] Scott v Scott (1994) FLC 92–457.
[74] Mr Reese, Affidavit, 28 January 2020 (M3); Single Expert Witness Report, April 2020 (n 17).
To assist with my determination as to whether the Father poses an unacceptable risk to X I will examine some of the more serious allegations raised by the Mother. I note at the start of this examination the Father's concession, made by him to Dr K, that during the relationship he had said things to the Mother that he should not have said[75] and that he could have been more supportive of the Mother when she was pregnant and after X was born:
With respect to his relationship with [Ms Ralston], he described that they were a very social couple, and that their lifestyle had to change when [X] was born. He described that they both struggled with the adjustment, and made financial mistakes that put them under stress. He stated "[X] was not planned...! was in shock...we didn't have a stable financial situation...! was reluctant to bring a child into that...but we both wanted a child." [Mr Reese] explained that [Ms Ralston] had a diagnosis of endometriosis and that getting pregnant could be difficult.
[Mr Reese] acknowledged that he "did the wrong thing" when [Ms Ralston] was pregnant, and went out drinking on a couple of occasions. He described that [Ms Ralston] took good care of herself during the pregnancy. There were some complications when [X] was in utero, and he was born via C-section. He described the joy of watching [X] being born, and holding him for the first time.
[Mr Reese] acknowledged that when [X] came home, things were difficult. [X] was not a good sleeper, and [Mr Reese] was diagnosed with a virus that made him very tired. In the first year the couple tried to juggle work responsibilities in running their own business and raising [X]. They were reportedly exhausted, and this period took its toll on their relationship.[76]
Unfortunately, the Father's poor behaviour at that time is likely to have contributed to the Mother's anxiety and her negative view of him.
[75] Single Expert Witness Report, April 2020 (n 17) [37]; M2 (bundle of text messages dated 26 March 2019 – 21 May 2019) 14, 22.
[76] Single Expert Witness Report, April 2020 (n 17) [42]-[44].
The Father denied that he threatened to disfigure the Mother, financially control her or force her to have sex without consent. These allegations were not explored in detail during cross-examination and no corroborative evidence was produced. I am not satisfied that they are proved to the requisite standard.
The Father admitted to pretending to hit the Mother and X with a toy foam bat, but denied that it was done with malice or in a way that could be regarded as violent or intending to injure the Mother or X.[77] The Mother told Dr K that she was left ‘traumatised, scared and humiliated’[78] and believed that the Father wanted to ‘kill’ her and X.[79] She claimed that there may be CCTV footage of the incident, yet none was produced to the Court. In her police report supporting the making of a Police Family Violence Order against the Father she does not refer to feeling traumatised or even fearful by the incident or that she feared he would kill her and X:
We went into the [Store V] in [Suburb W] and [X]wanted to buy a baseball bat to take to the park. We went to the isle where the baseball bats were (toy foam ones) and [Mr Reese] picked up a pretend bat and started making actions like he was going to hit me in the head with it. He didn’t actually hit me and I didn’t think he was going to hit me (as it was foam and wouldn’t have hurt) but the look in his eyes was that he wished for it to be a normal bat and he would have wanted to hit me. I asked him to stop and it was embarrassing and there was a couple nearby who were looking and thinking it was strange. I felt embarrassed and that it wasn’t a normal thing someone does to another person. He stopped and we left the store purchasing a few items.[80]
Her statements are contradictory and I prefer the explanation of the Father. It is difficult to accept that the Mothers reaction was reasonable in reporting this matter to Police and obtaining a PFVO in the circumstances, but may be explained as a product of her heightened anxiety as opined by Dr K.
[77] Ibid [15]; Mr Reese, Affidavit, 28 January 2020 [8]; M2 (bundle of text messages dated 26 March 2019 to 21 May 2019).
[78] Mother’s trial affidavit, (n18) [37].
[79] Single Expert Witness Report, April 2020 (n 17) [15].
[80] Mother’s trial affidavit, (n18) Appendix A – Police Report of 9 April 2020.
The same can be said of the allegation that the Father deliberately squashed X during a pillow fight. The Mother alleged:
On 24 March 2019 I walked in on [Mr Reese] and [X] in the bedroom. I saw [Mr Reese]'s entire body on top of [X] on our bed. I could only see [X]’s arm poking out from under [Mr Reese] torso waving around. I appeared that [X] was squashed under the weight of [Mr Reese]'s body. I screamed “What are you doing” to [Mr Reese] and I pulled him off [X]. I picked him up in my arms and he was having trouble breathing. He was red in the face. Once [X] was able to catch his breath he started sobbing hysterically and he was inconsolable for a period. [Mr Reese] screamed at me saying I was overreaction and overbearing. He did not ask if [X] was okay or show concern for [X]’s fear and distress.[81]
[81] Mother’s trial affidavit, (n18) [33].
The Father explained:
[X] and I were playing pillow fights on our own bed, like we often did. [X] was laughing and throwing pillows at me and me gently throwing them back. [X] jumped on my back and playfully fell on the mattress as [Ms Ralston] walked past the door. [X] was not in any state other than playing and exhausted from laughter from tackling me to the ground. There was no screaming and [Ms Ralston] did not pull me off [X] or even console [X], we just stopped playing.[82]
[82] Mr Reese, Affidavit, 28 January 2020 [7]. (M3)
The Father rejected the allegation when put to him under cross-examination. The Mother's stated reaction to what appeared to be an appropriate and joyous interaction between Father and X was unnecessarily negative and lacked insight. I do not accept that the Father was deliberately hurting X as the Mother alleged.
The Father denied the Mother's allegation that in September 2019 that he sought information about her from her work colleagues, resulting in her employer at the time banning him from contacting her team members.[83] Under cross-examination he explained that a consultant firm had approached him about a job that happened to be where the Mother was working. He did call Employer Q on one occasion to enquire about the job. He met with the Mother to enquire if she was comfortable with that occurring, and when she expressed her resistance he declined to take the job. There was no evidence produced corroborating the Mother's claim that the Father was banned or harassed her and others and I am unable to find on the balance of probabilities that the Father behaved as alleged.
[83] Mother’s trial affidavit, (n18) [52].
Finally, the Mother alleged that the Father punished X by rubbing chilli into his face and locking him in his room. She also volunteered, under cross-examination, that the Father threw X against a wall causing him to suffer a sore back and stomach. There was, however, no evidence to support these allegations and X did not give any hint that he had been mistreated by his Father when he spoke to Dr K. Crucially, the allegation that X had been injured after being thrown against a wall was not put to the Father in cross-examination. There was also no medical or other evidence to support the Mother's claim that X complained of a sore back and stomach. Given the Mother's hypervigilance in relation to other alleged incidents, it beggars belief that the Mother did not seek medical treatment for X’s alleged injuries — although she did call Child Safety Services — who took no action to remove the child from the Father's care. I do not accept that the Father has been violent to X as alleged. X may have told the Mother that these things happened to him, but that does not mean they actually occurred. Both parents must approach such claims with circumspection, particularly given X has been exposed to parental conflict for such a long period of time.
Generally, I am not satisfied that the Mother's allegations of family violence have been proved to the requisite standard. I accept Dr K’s opinion that the Mother's anxiety has likely heightened her perceptions of her purported experiences of family violence and the conduct of the Father, at times, contributed to the Mother’s anxiety and consequently the Mother’s hypervigilance towards X’s wellbeing. Considering all of the evidence I am also not satisfied that X is at an unacceptable risk of being exposed to family violence in the Father's care.
Any views expressed by the child, and the weight to be accorded to those views given their age and level of maturity (s.60CC(3)(a))
There is no universal rule for the weight to be afforded to the views of a child. It is a matter of discretion and, ultimately, this factor is one of several in the overall assessment of best interests. Importantly, as stated in Bondelmonte & Bondelmonte:
The terms of s.60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.[84]
[84] Bondelmonte & Bondelmonte (2017) 259 CLR 662, 673-674.
As extracted at paragraph 21 of these Reasons, X told Dr K that his preference was to remain at B School and continue to see his Father five nights per fortnight during school terms. His view as to his time with his Father was different to his parents. Dr K commented on the parties' willingness to accept X’s views:
There continue[s] to be significant problems with [Ms Ralston] and [Mr Reese]'s capacity to engage appropriately with each other. However, they are both presenting with litigation fatigue, and advised that they are willing to support [X]’s expressed wishes with respect to division of time. There may be an opportunity here for a new beginning.
I discussed [X]’s wishes for 5/9 time to continue with his parents. [Mr Reese] was seeking increased time to 7/7. [Ms Ralston] was seeking a reduction of [X]’s time with his Father. Both parent expressed that they are willing to support [X]’s wishes of 5/9 time, even if it was not consistent with their own wishes for more time with him.[85]
[85] Single Expert Witness Report, August 2022 (n 10) [8], [17].
Dr K met with X on two occasions and described him as an intelligent, articulate and thoughtful 8 ½ year old with a science brain’ who has a different view to his parents regarding his time with the Father.
X has been living primarily with the Mother since separation and attending B school since 2018. He has been spending five nights per fortnight and half of all holiday‘s with the Father for over a year, and prior to that he enjoyed a 4/10 arrangement during school terms. He does not want those arrangements to change and I give his views some weight.
The nature of the relationship of the child with each of their parents and any other persons (including any grandparent or other relative of the child) (s.60CC(3)(b))
X has a deep connection to both parents and his relationship with them is meaningful. He also has a very strong relationship with his grandparents — particularly his maternal grandparents — with whom he spends a significant amount of time during each school week. This relationship is important to X. To change X’s primary school now would disrupt his long standing school day routine and those relationships. Such disruption will naturally occur when X commences High School in City A, but at this time there appears little benefit to X to change a routine in which he is thriving.
The Father argues that changing X’s school to L School will naturally result in X increasing the time he spends with his paternal grandparents, Ms R and S. This is no doubt true, but the existing ordered time provides significant opportunity for X to spend time with his paternal family. Those opportunities will naturally increase when X commences school in City A in grade 7.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child (s.60CC(3)(c))
The parties' agreed to an order for equal shared parental responsibility in March 2021 and they have and will continue to consult and make a genuine effort to reach joint decisions about major long-term issues affecting X.[86] They have agreed that X will attend H School for his secondary education[87] and seem generally aligned in relation to his medical requirements. The parties seem to hold similar values in relation to X’s major needs.
[86] FLA (n 27) s65DAC.
[87] Orders of Judge Turnbull in Reese & Ralston (Federal Circuit and Family Court of Australia, HBC868/2019, 16 September 2022). Orders made by consent of both parties.
The Mother did take X to see Mr Y, without the Father, to address X’s night terrors.[88] The Mother explained that she did not want the Father present so that X could freely express himself.[89] The Father said under cross-examination that X did not have night terrors in his care and he was unaware that X had actually seen Dr Y, although the Mother had asked him to contribute to the cost prior to the visit. Exposing X to a child psychologist is a major decision that should have involved the input of both parents. Unilaterally taking a child to a specialist almost always creates conflict and distrust and results in the specialist’s opinion being challenged and usually disregarded in favour of a jointly appointed expert. This can expose the child unnecessarily to medical interventions. Fortunately, Dr Y — a very experienced child psychologist —confirmed in his report[90] that he wanted to involve both parents before he could undertake a full assessment. Ultimately, the Father did not agree and Dr Y’s involvement ceased. Neither party has sought to unilaterally engage X with a psychologist since, although an injunctive order was made on 26 May 2020 to prevent this from occurring.[91]
[88] Mother’s trial affidavit, (n18) [62].
[89] Ibid [63].
[90] Ibid, Annexure “C” (Dr Y’s Report).
[91] Order of Judge Baker in Reese & Ralston (Federal Circuit Court, HBC868/2019, 26 May 2020), Order 6.
Notwithstanding these concerns, the Mother adapted to the Father's increased time with X. Initially, the Father had restricted time, supervised at a Contact Centre. He accepted that position and ensured that his time with X was successful. As Dr K stated, the City A Children’s Contact Centre notes and her own observations, as extracted earlier, evidenced that X thoroughly enjoyed his time with the Father.
21.The [J] Children's Contact Centre report pertaining to the period June - October 2019 describes that [X] told staff that he loves seeing his father and that they always have fun playing together. [Mr Reese] was always well prepared for visits, bringing activities and snacks. They were observed to enjoy their time together, engaging in appropriate father-son interactions and play. Their interactions included warm embraces, and child-focused conversations. It is evident from the report that [Ms Ralston] became reluctant to facilitate contact, despite the observations that [X] was enjoying himself.
76.It was evident from the time of my arrival at the park, that [X] was thoroughly enjoying his time with his father. They engaged in a range of age-appropriate activities in the park. Their interactions were loving and good-humoured. I did not observe any risk issues, and [Mr Reese] was child-focused throughout.[112]
[112] Ibid [21] & [27].
When circumstances changed and X began spending extended time with the Father on an unrestricted basis, the Mother adapted to the change and, again, that time was largely successful. When Judge Dunkley ordered that X spend 5/9 nights with the Father, the Mother again largely accepted the change although continued to experience anxiety:
[Ms Ralston] acknowledges that she experiences significant anxiety, as outlined in my initial report. She is hypervigilant in her protection of [X]. She has contacted the Police to check on [X]'s welfare when in the care of [Mr Reese]. Her concerns have not been substantiated by authorities, and [X] has been found to be safe and well.[113]
[113] Single Expert Witness Report, August 2022 (n 10) [12].
Dr K recommended that the parties continue to seek therapeutic intervention to navigate their co-parenting difficulties and consider X’s best interests, notwithstanding, each parties' reservations about the other.[114] I agree with that recommendation.
[114] Ibid [19].
The Mother insightfully engaged with a counsellor at AE Counselling in 2019 for over a year and said that she ceased attending when her symptoms of anxiety subsided.[115] The Mother has also stopped co-sleeping with X[116] which was a change recommended by Dr K:
[Ms Ralston] is co-sleeping with [X] and not encouraging his relationship with his Father. Her anxiety regarding contact between them will be impacting on [X], as he is old enough to perceive this and internalise that anxiety himself[117]
[115] Mother’s trial affidavit (n18) [85].
[116] Trial 15 September 2022. Evidence given by the Mother during cross-examination.
[117] Single Expert Witness Report, April 2020 (n 17) [80].
The Mother demonstrates an understanding of her anxious nature, acknowledging that she at times worries about things unnecessarily.[118] She also accepts that X genuinely wants to spend time with the Father.[119] I infer that the Father acknowledges the importance and strength of X’s relationship with the Mother — because he is seeking equal time notwithstanding his alleged concerns. I agree with Dr K that the parties' are suffering from litigation fatigue and there is now an opportunity for a new beginning.[120] Both parties are intelligent, insightful and want the best for X. I have confidence that the parties' attitude to parenting and each other can develop and improve if they can now look forward and improve their communication.
[118] Mother’s trial affidavit (n18) [84].
[119] Ibid [8].
[120] Single Expert Witness Report, August 2022 (n 10) [8].
Any family violence involving the child or a member of the child’s family (s.60CC(3)(j))
I have dealt with the issue of family violence earlier in these Reasons. I am satisfied that X is not at an unacceptable risk of being exposed to family violence by either of his parents.
If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter (s.60CC(3)(k))
A Police Family Violence Order was made in the Mother’s favour against the Father on 9 April 2019. It was in operation for a period of 12 months and included the following:
That [Mr Reese] must:
1.Not stalk [Ms Ralston].
2.Not directly or indirectly threaten, harass, abuse or assault [Ms Ralston].
3.Not enter premises at [AF Street, Suburb B] where [Ms Ralston] is presently living or any other place where the said persons may be staying from time to time.
5.Not go within 100 metres of the boundary of the premises at [AF Street, Suburb B] or the boundary of any premises where the said [Ms Ralston] may be staying or living from time to time
12.Immediately surrender any firearms and ammunition, any other weapons, and any firearms licence in his/her possession or control to a police officer, and if required accompany a police officer for the purpose of surrendering those firearms or weapons.
13. Not apply for any licence or permit under the Firearms Act 1996.
14.Forfeit and immediately surrender any licence or permit held pursuant to the Firearms Act 1996 and in the possession of [Mr Reese] to a police station or police officer. During the period of the Order, [Mr Reese] must not possess any firearm, part of a firearm or ammunition.
This PFVO arose from the Mother's concerns regarding the Father's behaviour, including motioning to hit the Mother and X with a foam bat:
I was in two minds about whether or not I should allow him to see [X] but I also did not want him to get back behind the wheel and drive back to [City A] intoxicated. That afternoon [Mr Reese] asked if he could stay the night and we could talk through what he was doing to change and to fix what he had done. I agreed. We reconciled.
The next day we went to the [Store V] in [Suburb W] to buy [X] a toy baseball bat. When we found the bat I the store [Mr Reese] demonstrated to [X] how to use the bat by pretending to beat me in head with it. This incident made me feel traumatised, scared and humiliated. I suggested we leave and went and paid for the bat not wanting to draw [X]'s attention any further to what had happened. On the way home [X] asked if we could stop at the [Suburb O] playground. When I was pushing [X] on the swing [Mr Reese] took the baseball bat and pretended to hit [X] in the face every time he swung towards [Mr Reese]. Again, this made me feel fearful. I thought [Mr Reese] was looking at [X] like he wanted to kill him. I was horrified and I yelled at him to stop. That night I was too terrified to say anything to [Mr Reese] and I was very scared that he was going to hurt us. In the morning when he left I packed a bag and went to my parents home and decided to report the incident to Police. These incidents were the basis of a Police Family Violence Order being issued by Tasmania Police.[121]
[121] Mother’s trial affidavit, (n18) [36] & [37].
As stated at paragraph 60 of these reasons I question the reasonableness of the Mother's actions in reporting this matter to police and the justification for the PFVO that issued as a result.
Whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child (s.60CC(3)(l))
X has been the subject of family law proceedings since September 2019. He has been exposed to his parents’ conflict and the ongoing stress related to these proceedings. The time has arrived for X’s involvement in his parent’s litigation to end. It is in X’s best interest for orders to be made that make it least likely for there to be further proceedings filed in this Court. The parties' are also suffering from litigation fatigue. To that end, I will craft orders that deal with X’s parenting arrangements for his primary and secondary school years, particularly as there will be a significant change to his life when he commences grade 7 at H School in City A. A move to shared care at that time should discourage the Father from filing further proceedings and also provide adequate time for the Mother to adapt to the change.
Any other fact or circumstance that the court thinks is relevant (s.60CC(3)(m))
There are no other relevant matters that need to be considered.
Shared parental responsibility
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[122] A parent does not have rights over their children, they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation parents are not, simply by virtue of their changed relationship with one another, absolved from their parental responsibilities.[123] Court orders may, however, change the nature of parental responsibility, and the obligations attaching thereto, to suit a post-separation life.[124]
[122] FLA (n 27) s 61B.
[123] Ibid s 61C.
[124] Goode & Goode [2006] FamCA 1346, [39], at which the Full Court clarifies the difference between pre-separation parental responsibility and post-separation parental responsibility as it results from an order: ‘We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides’.
His Honour Judge Dunkley, with the parties’ consent, ordered equal shared parental responsibility on 18 March 2021. That order remains effective. As a result, the parties must consult each other about major long-term issues concerning X, make a genuine effort to come to a joint decision and, ultimately, jointly decide about each major long-term issue.[125] X’s education (both current and future) is, naturally, one of the major long-term issues about which the parties must exercise their equal shared parental responsibilities. Neither party submitted that this order should change, nor that the scope of their shared parental responsibility should be adjusted. While issues of alleged family violence were agitated at the rehearing there was also no submission, from either party, that any finding should be revisited so as to exclude the presumption of equal shared parental responsibility.[126] This means that the Father and the Mother must share big, and often difficult, decisions about X’s school once those arrangements are determined.
[125] FLA (n 27) 65DAC, noting that s 65DAC appears to rely upon parties reaching joint decisions through genuine effort, and that the words of that section do not appear to account for a situation in which a genuine effort has been made pursuant to sub-s (3) but no joint decision has been reached as required by sub-s (2).
[126] Ibid s 61DA.
Equal time or substantial and significant time?
As there is an order for equal shared parental responsibility, I must consider whether there should be an order for an equal time arrangement or, alternatively, a substantial and significant time arrangement. As explained by the High Court in MRR & GR, either arrangement must be reasonably practicable and in X’s best interests if it is to be ordered. If ordering equal time is in X’s best interests, and otherwise reasonably practicable, then I must consider making an order to provide him with equal time arrangements. If I do not order equal time I must consider whether X should spend substantial and significant time with one of his parents. I will undertake this assessment, again, with reference to X’s best interests and whether spending substantial and significant time with both parents is reasonably practicable.
When considering the question of reasonable practicability I am required to have read:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.[127]
[127] FLA (n27) s65DAA(5).
Equal time
The Father seeks equal time arrangements expressed in a week-on/week-off basis. The Mother proposes that X’s time with his Father reduce from five nights per fortnight to three nights per fortnight.
X has been living in a 5/9 arrangement during school terms and, a week-on/week-off — equal time arrangement — during school holidays, for in excess of 12 months. Prior to that X lived in a 4/10 arrangement during school terms. He has, therefore, become accustomed to living in an equal time basis with his Father during school holidays and spending significant time with the Father during school terms.
The evidence establishes that X has adjusted well to the 5/9 arrangement ordered by Judge Dunkley in August 2021. The Mother complains that there have been some incidents of concern but, as I found, those complaints are not borne out on the evidence. X maintains that he does not want the arrangement to change. As found, I can see no basis to reduce the time that X spends with the Father as the Mother proposes.
The parties do not have to hold a high opinion of the other but they do communicate effectively in relation to X's long-term and day-to-day care arrangements and the current 5/9 arrangement has proved itself to be reasonably practicable.
The Father seeks an equal time arrangement whether X moves school or not. It is clear to me, however, that the Father and Ms R would be placed under significant pressure if such an arrangement was implemented whilst X remains at B School. The emotional response of both Ms R and the Father to the question as to whether the current 5/9 arrangement was sustainable left me with little doubt that maintaining the 5/9 arrangement will be difficult enough for them whilst he attends B School even though it only involves 5 trips to or from the school each fortnight of school terms. To increase the Father's time to seven nights would increase that pressure and likely negatively impact X. In this regard, increasing X’s time with the Father while he attends B School, is not reasonably practicable nor in X’s best interests.
I am, however, satisfied that all parties will be able to navigate a week on/week off arrangement once X commences school in the City A region. It is already ordered that he will attend H School at the commencement of grade 7. That is an appropriate time for an equal time arrangement to commence. Dr K opined that there was little difference between a 5/9 arrangement and a week about time arrangement from X's point of view. I accept that evidence, although I also note X's view, that he wants his current arrangements to remain as they are. Given that he is prospering, it is appropriate that X remain in his current care arrangements until he commences high school. At that time he will be older and better able to adapt to change, as will the Mother.
Moving to a week on/week off arrangement at the commencement of grade seven is also reasonably practicable. X will be attending school in City A, an arrangement made by consent. The burden of the travel to transport X to and from school and other activities will be lessened. S will also be commencing school at around that time and the Father and Ms R will be able to coordinate their arrangements for their family with greater ease.
The parties will be able to maintain their current level of communication aided by the use of a parenting App, as suggested by Dr K. Dr K opined that the use of a parenting App reduces controversy through transparency and the recording of messages. Information is kept in one place and it is easier to keep track of the arrangements via its calendar. The parties will also likely communicate in a more respectful way because of that accountability. Dr K suggested the parties use an App known as ‘OurFamilyWizard’. I will make that order.
Substantial and significant time
The Act states:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
The current 5/9 arrangement places stress upon the Father and Ms R, particularly in navigating X’s attendance at B School. Nevertheless, X is enjoying and prospering with the time that the Father spends with him. He wants the arrangement to continue. As stated, I find there to be no sound basis to reduce the time X spends with the Father as proposed by the Mother.
As to practicability, the Father believes that he could, if required, manage an equal time arrangement even if X remained at B School. As I have found, I am concerned that the added stress upon the Father and Ms R would be too great for that to reasonably be ordered. I am satisfied, however, that maintaining the current arrangement remains reasonably practicable, given that it has been successfully implemented for so long. I do not discount that the Father and Ms R will have some ongoing stress in continuing to implement the current arrangement but I am confident that the Father will ensure that the arrangement works for him and his family – as he has to date. The Father also has the choice of moving closer to X’s school after April next year so as to alleviate some of the pressure associated with the travel each fortnight during school terms. Further, as found, the level of communication between the parties is adequate at this time and I am confident it will improve with the use of the ‘OurFamilyWizard’ application.
X’s transition into an equal time arrangement should occur at the commencement of his grade 7 year. At that time he will be able to move from the equal time arrangement that he will be enjoying in the Christmas school holiday and as such there is no need for him to transition through a 6/8 arrangement before commencing an equal time – week on/week off arrangement at the commencement of grade 7, during school terms.
Given the overall benefit to X in maintaining the time that he currently spends with the Father until he commences high school, I am satisfied that a maintenance of the current substantial and significant time arrangement continues to be in X’s best interests and is otherwise reasonably practicable.
Conclusion
X has been living in a relatively settled environment for the last two years. It is essential that his life is not unnecessarily disrupted because his parents are unable to agree on what arrangements meet his best interests.
X will remain at B School until commences his secondary education at H School in City A. The travel arrangements are inconvenient for the Father and can be stressful, but the Father has the ability to relieve some of that stress after the lease on his Suburb M property expires in April 2024. X will remain in the current 5/9 arrangement during school terms until he commences grade 7. He will then live in an equal time — week- on/week-off arrangement with his parents.
Fortunately, X has been able to maintain strong and connected relationships with his parents, his paternal and maternal family, Ms R and S. He is a smart, enquiring and considered little boy. One hopes that the parents will now concentrate their efforts in doing all they can so as to ensure that he meets his full potential. I adopt the words of Dr K:
Each of the parents now has an opportunity to start a new life with their new partner, and hopefully these pathways can bring more contentment for them than their shared past together. X will benefit from having two healthy families supporting his growth and wellbeing.[128]
[128] Single Expert Witness Report, August 2022 (n 10) [20].
I will make orders confirming that X will remain in a 5/9 arrangement during school terms until he commences grade 7 upon which he will move to a week on/week off arrangement between his parents during school terms. I will also make an order confirming that the parties will communicate via the OurFamilyWizard app. X will remain at B School until he commences at H School in grade 7. These orders will be consolidated into one document with the other orders made by Judge Dunkley. I am satisfied that these orders are in X’s best interests.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 23 December 2022
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