Sargent and Selwyn (No.3)
[2018] FCCA 2836
•4 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARGENT & SELWYN (No.3) | [2018] FCCA 2836 |
| Catchwords: FAMILY LAW – Final parenting hearing – whether or not the parties should have equal shared parental responsibility – communication between the parties – whether or not there should be an equal time arrangements – presumption rebutted – practice and procedure – interlocutory applications – s.67ZBA application – application to transfer to Family Court – application for costs certificate. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 60CC(3)(j) 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA (2), 65DAA(5), 67BZA, 67ZBB, 121 Crimes Act 1900 (NSW) |
| Cases cited: Sargent & Selwyn [2017] FamCAFC 228 Sargent & Selwyn (No 2) [2017] FCCA 3049 Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] HCA 4 Other resources: |
| Applicant: | MR SARGENT |
| Respondent: | MS SELWYN |
| File Number: | SYC 7405 of 2013 |
| Judgment of: | Judge Harland |
| Hearing dates: | 30 April, 1, 2 & 4 May, and 16 July 2018 |
| Date of Last Submission: | 16 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Cantrall |
| The Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Mr Jackson |
| Solicitor for the Independent Children’s Lawyer: | Brian Samuel & Associates |
ORDERS
That the application in a case filed on 9 March 2018 is dismissed.
That the application in a case filed on 18 April 2018 is dismissed.
That the application in a case filed on 12 July 2018 is dismissed.
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child [X] (“the child”) born 2012.
That the child live with the mother.
Commencing the first week of Term 4 2018, that the father spend time with the child during school terms during the first week of each fortnight from after school Thursday to before school Monday of week two (or Tuesday if the Monday is a public holiday).
That for the purposes of these orders school holidays are defined as follows:
(a)The school holidays commence from after school on the last day of term;
(b)Handovers shall take place on the middle day of the school holidays at 5pm;
(c)In the event there are an uneven number of days in the school holidays, the parent with the care of the child during the first half of the school holidays shall have an additional day;
(d)The school holidays end before school on first day of school term; and
(e)In the event there is a pupil free day on the first or last day of school term the pupil free day will be treated as part of the school holidays.
That the father spend time with the child during school term and long summer holidays for the first half of the school holidays in 2018 and each alternate year thereafter and for the second half of the school holidays in odd years and each alternate year thereafter.
Notwithstanding any other order the parties will spend time with the child on the following special days:
(a)with the mother from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2018 and each alternate year thereafter;
(b)with the father from 5:00pm on Christmas Day until 5:00pm on Boxing Day in 2018 and each alternate year thereafter;
(c)with the father from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2019 and each alternate year thereafter;
(d)with the mother from 5:00 pm on Christmas Day until 5:00 pm on Boxing Day in 209 and each alternate year thereafter;
(e)The child will spend time with the parent with whom he is not otherwise spending time in accordance with the holiday time provided for in these Orders from 5:00pm on the day prior to his birthday until 1:00 pm on the child’s birthday;
(f)In the event that the child is not otherwise spending time with the Father in accordance with these Orders, then he will spend time with the Father from 5:00pm on the day before Fathers’ Day until 5:00pm on Fathers’ Day in each year;
(g)In the event that the child is not otherwise spending time with the Mother in accordance with these Orders, then he will spend time with the Mother from 5:00pm on the day before Mothers’ Day until 5:00pm on Mothers’ day in each year; and
(h)In the event the child is not otherwise spending time with the mother in accordance with these order, then he will spend time with the mother to celebrate the (religious) New Year from 9:00am on 13 April to 9:00am on 15 April each year when these dates fall on a weekend or a public holiday.
On days when the child does not attend school changeovers will take place at (store omitted), Suburb A.
Either parent is at liberty to arrange for a nominee known to the child to collect the child on that parent’s behalf, provided that parent gives written notice via email or text 2 hours prior to the handover time.
That by way of injunction, the Mother be restrained from instructing [X] to keep her residential address as representing secret information not to be disclosed to the Father.
That the Mother and Father shall ensure that they keep each other informed as soon as it is reasonable practical of:
(a)Any medical problems or illnesses suffered by [X] whilst in each parent's care;
(b)Any medications that have been prescribed for [X];
(c)Any specialist medical appointments;
(d)Any significant social, school or religious functions which [X] is to attend;
(e)The details of any sporting body(ies) that [X] is involved in;
That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by [X] and provide the other with any authority or direction necessary to enable to the other parent to obtain all necessary information concerning [X].
That both parents be permitted to liaise directly with [X]’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about [X]’s progress; and provide the other with any authority or direction necessary to enable to the other parent to obtain all necessary information concerning [X].
The mother shall do all acts and things necessary to enable the father to:
a) Attend all school activities, such as parent-teacher interviews, special assemblies, sports carnivals and concerts to which parents are normally invited;
b) Communicate with any of the child schools or education providers to obtain progress reports in respect to the child;
c) Obtain any information, school photographs, circulars, newsletters of the like from any of the children’s schools or education providers normally provided to parents at the sole cost of the father;
and a copy of these Orders may be produced as evidence of such authority.
Both parties are permitted to attend any religious events, school events to which parents are invited, award ceremonies and final fames and/or competitions the child is participating in.
In the event any child suffers any emergency or serious illness or injury when in the care of a parent such parent shall as soon as practicable notify the other parent by telephone of such occurrence and the full details of the medical professional treating such child in such event.
The mother shall authorise all medical practitioners upon whom the child attends for treatment to provide the father, upon his request, with all details of the child’s attendance, prognoses and treatment at the cost of the father.
In the event the mother arranges counselling and/or psychological treatment for the child, she is to provide the father with the name and contact details of the treating professional in advance of the first appointment and she is authorise that person to speak to and give information to the father.
Both parents are restrained by injunction from:
a) Denigrating or criticising the other parents or any member of the other parent’s family, in the presence or hearing of the child, or permitting any other person to do so; and
b) Discussing these proceedings, or disclosing the contents of any Court document in these proceedings, to or in the presence or hearing of the child, or permitting any other person to do so.
The parties are to do all acts and things necessary to obtain an Australian passport for the child six (6) months before the expiry of the child’s current passport at their joint expense and in doing so:
a) the party requiring the passport will in the first instance obtain and complete the application and thereafter provide the application to the other party;
b) within seven (7) days of receiving the application the other party will complete any necessary details on the application and return the document together with half the necessary fee;
c) if the father obtains the passport he will make the passport available to the mother within two (2) days; and
d) the mother will hold the child’s passport and will release the passport to the father for the purpose of travelling with the child as agreed between the parties from time to time or in accordance with these Orders.
Either party is permitted to take the child overseas for a holiday and in doing so:
a) The travel shall be during the period that the child would be in the care of the travelling parent in accordance with these Orders;
b) The parties will ensure that so far as practical these occasions are to coincide with school holidays; and
c) Each party will give the other party as much notification as possible of their intention to travel overseas with the child, and in any event, will give not less than 6 weeks written notice of such intention.
Each parent is to keep the other parent advised of a telephone contact number that he or she can be contacted on in an emergency.
Each parent is to notify the other about any change of email address, residential address and/or telephone number within 24 hours of the change occurring.
The appointment of the Independent Children’s Lawyer is discharged.
All extant applications in this matter are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sargent & Selwyn (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
SYC 7405 of 2013
| MR SARGENT |
Applicant
And
| MS SELWYN |
Respondent
REASONS FOR JUDGMENT
TABLE OF CONTENTS
COVER PAGE.............................................................................................................. 1
REPRESENTATION..................................................................................................... 3
ORDERS....................................................................................................................... 4
REASONS FOR JUDGMENT.................................................................................... 1
Father’s interlocutory applications............................................................................ 3
9 March 2018 application....................................................................................... 3
Father’s application to transfer the proceedings to the Family Court................ 4
Application for costs certificate.......................................................................... 11
Conduct of the trial.................................................................................................... 12
The issues the court must determine....................................................................... 12
The parents’ relationship........................................................................................... 13
The father’s case........................................................................................................ 14
The father’s trial affidavit..................................................................................... 15
The mother’s case...................................................................................................... 15
The mother’s trial affidavit................................................................................... 15
The Independent Children’s Lawyer’s position....................................................... 16
Legal Principles and their application to children’s issues.................................... 16
Comments on the evidence....................................................................................... 23
Parties inability to agree on issues effectively....................................................... 24
Preparatory School 1............................................................................................ 25
Incident on 11 March 2016 Preparatory School 2............................................. 30
Enrolment at School A and School B................................................................... 31
(Sports)................................................................................................................... 37
April 2018 school holidays.................................................................................. 37
Ms C....................................................................................................................... 43
Problems with handovers...................................................................................... 46
Routines in the parents households.......................................................................... 48
The parties’ communication...................................................................................... 52
Comments [X] makes to the parties and their interpretation of these comments 55
The family reports and evidence of the family consultant..................................... 56
Presentation of the witnesses................................................................................... 91
Submissions............................................................................................................... 92
The ICL’s submissions........................................................................................... 92
The mother’s submissions.................................................................................... 93
The father’s submissions...................................................................................... 97
Injunctions and other orders sought by the parties............................................... 103
Conclusion............................................................................................................... 114
This case has a long and unfortunate history before this court. In this regard I refer to the Full Court decision in these proceedings.
I will not set out the full history of the proceedings as it is set out in Sargent & Selwyn [2017] FamCAFC 228 and Sargent & Selwyn (No 2) [2017] FCCA 3049.
The length of time these proceedings have been on foot have contributed to the parties’ entrenched conflict. I echo the comments of the Full Court and Judge Baumann (as he then was).
For reasons I will explain, I have concluded that it is not in [X]’s best interests for the parties to continue to exercise equal shared parental responsibility. I also find that [X] should spend one block period in his father’s care of four nights a fortnight during school terms.
Father’s interlocutory applications
Before addressing the substantive issues, I will address a number of the interlocutory applications the father filed. These applications seek a costs certificate, orders with respect to s.67BZA of the Family Law Act 1975 (“Family Law Act”) and transferring the proceedings to the Family Court. For the reasons I will give, I dismiss those applications.
9 March 2018 application
On 9 March 2018 the father filed an application in a case seeking the following orders:
1. That the Respondent provide “Notice of Risk” expeditiously, regarding each of the allegations of Family Violence and/or risk of Family Violence recorded as being made on 24 January 2018 in the Family Report of 22 February 2018 pursuant to section 67BZA of the Family Law Act 1975 [“FLA”];
2. That the Respondent provide by Affidavit full and complete details, particulars and evidence including but not limited to all dates, times, locations, durations and reports regarding the allegations recorded in the Family Report, pursuant to FLA section 67ZBB.
3. That the Applicant provide by Affidavit in response full and complete details, particulars and evidence including but not limited to all dates, times, locations and durations and reports, including contrary evidence, regarding the allegations contained in the Respondent Affidavit, pursuant to FLA section 67ZBB of the Family Law Act 1975.
4. That the Court “deal with the allegations made” pursuant to FLA section 67BB (2)(c) by listing for Hearing, including provision for the cross examination of witnesses, the making of findings of fact and the making of any consequent Orders;
5. That the actions set out in Order 4, be concluded prior to the Trial.
When the matter came before Judge Henderson on 29 March 2018 for directions following the appointment of the Independent Children’s Lawyer and for the father’s application in a case, Her Honour confirmed the matter remained listed for trial. One of the parties, presumably the father, ordered the transcript of the proceedings before Judge Henderson of that date. The benefit of this is that the transcript shows that Judge Henderson emphasised the fact that, given the parties’ respective applications and the interim arrangements in place, delving into the allegations the parties make about family violence was not going to assist the Court in determining the issues before it. Judge Henderson further drew attention to the fact that the orders sought by the mother included that the father spend unsupervised overnight time with [X].
Her Honour also dealt with the mother’s objection to the subpoena the father had issued for her medical records. During the course of that argument she pointed out to the father that the fact that the family consultant asked the parties about their mental health (a standard question that consultants ask of parties), does not give it the status of a fact of issue of which the judge takes note.
The father expressed concern that the family consultant had placed reliance on the allegations of family violence and had accepted them as truth. Judge Henderson told the father that he would have the opportunity to cross-examine the family consultant, Ms M, at the trial.
The father raised these complaints again at the commencement of the trial before me, when he agitated his application in a case seeking to transfer the proceedings to the Family Court.
Father’s application to transfer the proceedings to the Family Court
On 18 April 2018 the father filed an application in a case seeking to have the proceedings transferred to the Family Court. He made this application on the basis of the protocol between the two courts and the serious allegations the father says the mother had raised recently.
It is necessary to briefly address the allegations with respect to family violence which were explored at the trial before me to give context to the father’s interlocutory application, especially with regards to the fact that the father continued to make submissions about the allegations during the trial and in his written and oral submissions.
When the matter came before me for hearing, the father highlighted two examples in support of his application to transfer the proceedings to the Family Court.
The first is set out in [201] of the mother’s trial affidavit where she refers to [X] sobbing after changeover on 4 June 2016 and saying to the mother “dad says he wants to kill you but you’re my only mummy and I love you.”
The second is set out at [216] of the mother’s trial affidavit where she describes another handover which took place on 18 January 2016. She describes the conflict between the parties at that handover and [X] being distressed. She says that [X] said “Dad says he hates me. Dad says he will break my head and break it on the road. Dad said he will cut my head off!” The mother goes on to say that in paragraph that she comforted [X] and reassured him that the father loves him and likes him and [X] replied “dad only likes me if I’m mean to you mum and I don’t want to be mean to you. Do you hate me mum?”
The mother’s Counsel submitted that the mother deposed to what [X] said to her, but that the mother does not say that the father made those threats or would make those threats. She also submitted that neither party is asking the Court to make a finding with respect to unacceptable risk.
The mother’s Counsel expressly stated at the beginning of the trial that she would not ask the Court to make any findings about family violence. She said:
What your Honour has also rightly identified is that the crux of this matter is the parenting relationship. That’s the crux of this matter. It’s not family violence. No findings will be asked to be made on behalf of the wife in relation to family violence and, for that reason, the matter should not be transferred to the Family Court.
The mother’s Counsel also said that the father was not taken by surprise by these allegations and the mother emailed the father about them on 11 February 2016 and the father responded to those on 21 February 2016. The father annexes these emails to his trial affidavit[1].
[1] Annexure AT pages 211 and 212 of the father’s trial affidavit.
The father submitted that whilst the mother’s Counsel submits that the case is not about family violence, 30 of the 219 paragraphs in the mother’s affidavit contain multiple allegations about family violence which he has always denied.
He expressed concern that these allegations were made to Ms M, the family consultant, and are referred to by her in her report. The proper way of dealing with that issue, as I made clear to the father (as did Judge Henderson on 29 March 2018), was to cross-examine Ms M about any assumptions, errors, omissions and material not before her.
The father went on to complain that he did not receive a notice of risk about these issues in 2016, 2017 or 2018 and has not received particulars of the allegations. He also expressed concern that Ms M has received information that was verbal and not sworn. That is inevitable in the course of family report interviews and indeed is part of her assessment process as it involves interviews with the parents and child. The family consultant is not the finder of fact.
The father could not see that the criticism he levelled at the mother about not filing a notice of risk and reporting her concerns to authorities could equally be levelled at him with respect to allegations he makes about the mother’s violence towards him and comments he says [X] has made about the mother.[2]
[2] For example see [91] of the father’s trial affidavit and annexure AT where the father sets out his allegations about what [X] has said to him, including “Mummy hits me… on my head…and legs”
The father cross-examined the mother about the allegations she makes about family violence. She agreed that she understood that allegations of family violence may impact on the Court’s consideration of the allocation of parental responsibility. The mother said she did not write her affidavit thinking of family violence but wrote it “in terms of factual recounting of events.”
The father cross-examined the mother about [201] of her trial affidavit where she refers to [X] sobbing on 4 June 2016 and saying “dad says he wants to kill you. You’re my only mummy, and I love you.” The mother said [X] said those exact words and she took notes soon afterwards. The father suggested to the mother that [X] was in fact in his care overnight on 4 June 2016. The mother agreed that she could have been wrong about the date but that [X] made the statement.
The mother confirmed when cross-examined by the father that she was not asking the Court to make any findings about family violence. She said that she was not aware of there being any current issues of family violence between [X] and his father. She said there was no physical violence between the father and herself rather, her perception was that some of the emails she receives from him are harassing and confusing and she would like them to stop.
The father cross-examined the mother about [216] of her trial affidavit where she says that on 18 January 2018, [X] said to her “Dad says he hates me and dad says he will break my head and break it on the road.” She says [X] was distressed and sobbing. This occurred near (store omitted) just after handover.
The father emailed the mother suggesting they make an appointment with Ms C, who the parties have been seeing to work on their communication difficulties and co-parenting, to discuss [X]’s emotional wellbeing. The mother did not respond to the father’s request for her to provide times which were not suitable for the appointment, declined the appointment times the father suggested and did not propose alternatives. The mother also agreed that she did not tell the father about [X]’s comment to her that “daddy says if I go to mummy I will chop off your head and throw it on the road.” She agreed that it was “not ideal” that on her case she delayed telling the father about this for a few weeks. The father put to the mother that the dates she recorded were not correct. The mother said making an error in the date doesn’t mean it didn’t happen.
The ICL also cross-examined the mother about her case outline where she referred to s.60CC(3)(j) which addresses any family violence involving the child. In regard to the allegation that [X] was subjected to “physical admonishment and unusual physical behaviour”, the mother said that was an historical event and that it was not relevant to the trial. She conceded that it was not necessary to refer to it in her case outline.
The ICL also cross-examined the mother about [105] of her trial affidavit where she refers to taking [X] to the Region 1 and [X] complaining saying “don’t hurt my arm, it still hurts. He shouldn’t have come there” and the mother telling [X] “he didn’t mean to hurt you darling.” The mother said that this was referring to the incident at Preparatory School 2[3] which she says [X] still remembers and refers to. She says she believes the father did hurt [X]’s arm. When asked by the ICL’s Counsel if she could understand father’s position that when he reads these things in her affidavit it appears to him that she is sending the message that [X] may be at risk of physical violence in his care, she conceded that she could see how father would think that.
[3] See [139] to [141] of these reasons.
The parties both refer problems they experienced in the period leading up to the breakdown of their relationship. In October 2013 the mother became concerned about the way the father engaged with [X] in play. She spoke to the police and also took [X] to a paediatrician.
The mother attended Suburb B police station and spoke to two police officers there, including Constable Ms F. The mother said she was concerned about the father’s physical behaviour towards [X] and the impact that it was having on him. She also obtained a paediatric report which she referred to in the 2015 trial affidavit and in her current trial affidavit at [266]. She says that from August 2013 she saw the father flip [X] onto the bed face down and pin him to the bed on an almost daily basis. The father annexed a copy of the police report where police record the mother told them she had witnessed the behaviour twice in recent times. The father asked the mother which version of events was true, that she saw it occur almost on a daily basis or she had seen it occur twice in recent times. The mother asked why they couldn’t both be correct and that the two statements were not mutually exclusive. This answer is unhelpful. The reference to ‘almost on a daily basis’ is likely an exaggeration. The mother was shown the police record and said that it was largely accurate.
The mother took [X] to a paediatrician which the police recommended. She said it was likely that she wrote the referral herself, but did not know him beforehand. Dr S’s report was annexed to the mother’s 2015 trial affidavit. He records that the mother told him about an episode where the father held [X] down on the bed. The father then asked the mother which of the police record, the doctor’s letter and her evidence was correct about the frequency of these incidents. She said that other people created the police record and the doctor’s letter and she stood by her affidavit.
The husband cross-examined the mother about [19] of her 2018 trial affidavit where she referred to the father becoming angry during their counselling session with Mr B when the mother told the father she wanted to separate. He referred to [39] of her 2015 affidavit where she did not use the word angry.
The father suggested to the mother that what she was trying to do was to make things look worse in 2018. The mother said she was not trying to do that. The father also put to the mother that the 2015 police records make no reference to the father being extremely angry at the mediation and the mother not being able to return home. The parties then had the following exchange:
THE FATHER: You don’t recall? If I put it to you that he was, and I will put it to you that he was in my care, were you concerned – would you have been concerned about [X] being in my care? Maybe I will put it that way. Would you have been concerned about [X] being in my sole care whilst those allegations are not yet proved?
THE MOTHER: So what I’m saying to you is I – I don’t recall whether he was in your sole care.
THE FATHER: Okay. I will make it a bit easier. You allege that between August and October [X] was experiencing – well, for want of a better word, abuse from me, physical violence from me?
THE MOTHER: I’ve not used that word.
THE FATHER: Okay. What was the word that you used?
THE MOTHER: I think it was “unusual physical behaviour”, from memory, but I – I don’t – I can’t .....
THE FATHER: But you retract any reference to violence or - - -?
THE MOTHER: I don’t think I used that word.
The mother would not concede that she was happy for [X] to be in the father’s sole care whilst she had these concerns, but she did let it happen.
The father cross-examined the mother about December 2013, beginning with the text that the mother sent to the father indicating that she changed the locks, she did not want to speak to him directly, his lawyers should contact her lawyers and they would make arrangements for him to collect his belongings next week. She agreed that was the message sent to him on 7 December 2013. The father sent a response referring to the fact that she said nothing earlier in the day when she gave him a lift to the station after returning [X] to her care.
The mother says her mobile phone died at that time and did not receive his message. The father asked her if she thought there was some other way of letting him know that Thomas was okay. The mother replied that she assumed the police did.
The mother also said she had asked the father to enter into consent orders before she took that action of changing the locks. She agreed it was not ideal to take action before court orders were in place.
The reality is that there are no issues of family violence which have any impact on the outcome. It is fortunate for [X] that he has two competent, caring and loving parents and that he has not been subjected to family violence as many children are exposed to and affected by. Rather, one of the central issues in this case is the parents’ dysfunctional communication and their inability to resolve issues expeditiously and the impact that this has on [X].
The father again complained about the mother not filing a notice of risk and providing particulars of her allegations in his written submissions filed on 13 June 2018. Shortly before the matter was listed before me for oral submissions, the father filed further separate written submissions which were addressing his application in a case filed on 9 March 2018, despite the fact that the trial had been concluded. It is difficult to see what he seeks to achieve by doing so and provides another example of his obsessiveness.
What is very clear, and the father said this in his opening address, is that he is very offended and hurt by the allegations of family violence and maintains his innocence.
Despite the allegations the parties make against each other, no party asks me to make a finding that either party has been responsible for family violence.
Having heard the evidence and observed the parties, this is not a case where [X] is at risk in either parent’s care due to family violence.
To transfer these proceedings at this late stage would have only added to the delay in having the case finalised, which would not be in [X]’s best interests and would not assist the parties. Most significant is the fact that none of the parties are asking the Court to make findings that either of the parties present an unacceptable risk to [X]. I have no doubt that the delays in this case have contributed to the parties’ conflict and has been stressful for them both.
Application for costs certificate
On 12 July 2012 the father filed an application in a case seeking a costs certificate pursuant to s.10 of the Federal (Proceedings) Costs Act 1981 for the 2015 trial. He seeks it on the basis that Judge Scarlett was not commissioned as a judge when he delivered his reasons. This is referred to in the Full Court decision. What this meant is that Judge Scarlett effectively did not give reasons. The Full Court commented that even if the reasons had been given during his commission, they were inadequate.
The father points to the comments in the appeal decision that the parties did not conduct the trial in a way that led Judge Scarlett into error.
The Full Court granted parties costs certificates for the appeal and the rehearing pursuant to sections 6, 8 and 9 the Federal (Proceedings) Costs Act 1981.
Section 10 refers to incomplete proceedings where a hearing has been aborted which can be for a number of reasons including illness, resignation, death or removal from office of a judicial officer. The hearing was completed. There were several successful appeal grounds. The appeal would have succeeded on the basis of the reasons being inadequate even if they had been delivered before Judge Scarlett’s commission expired. As the wording of the sections make clear, the decision to grant a costs certificate is discretionary. In my view, the Full Court was fully seized of this issue and this Court is functus officio with respect to costs associated with the 2015 trial. Even if I am wrong about this point, parties have been issued costs certificates to compensate for the fact that the appeal succeeded on an error of law and the matter was remitted for rehearing. If the Full Court thought it was appropriate to issue further certificates, it would have done so.
Conduct of the trial
The trial was conducted over four days. The parties filed written submissions and made oral submissions on 16 July 2018.
Both parties filed detailed affidavits with voluminous annexures that they prepared without the assistance of lawyers. Both affidavits contained material that is inadmissible. Given that Division 12A of the Family Law Act 1975 (Cth) (“Family Law Act”) applies and the father is unrepresented, I declined to take formal objections as that would have lengthened the trial.
At the beginning of the trial, it was established that the focus of the hearing would be examining events and relationships from 2016 and not going through historical issues which were not relevant to the issues currently in dispute. I indicated that I would not make findings about historical issues which are not relevant to the issues in dispute which I have to determine.
I also emphasised to the parties that their case outlines are not evidence.
The issues the court must determine
The key issues in this case centre on the parties’ communication and their rigidity of approach and whether or not these difficulties are such that the mother should exercise sole parental responsibility and the father’s time during school terms should be reduced. The father seeks an order that the parties continue to exercise equal shared parental responsibility. The mother seeks sole parental responsibility for Thomas. The ICL supports the mother’s position.
The father seeks that from 2019 he have equal time with [X] during school terms as well as during school holidays.
The mother seeks that the father’s time be reduced to two nights a fortnight during school terms and that the holidays be shared equally. In her written submissions she modified her position to the father spending time with [X] three nights a fortnight from Friday after school to before school on Monday on alternate weekends.
The ICL’s position is that the current arrangements for the father’s time during school terms should remain in place, being four nights in one week and one night in the other week.
For the reasons I shall give I am satisfied that it is in [X]’s best interests that the mother exercise sole parental responsibility and that [X] spend one four night block with his father each fortnight during school terms.
Both parents seek a range of other ancillary orders and injunctions which I will also address where necessary.
The parents’ relationship
The father was born on 1962. He is 56 years old. He is a (occupation omitted) with several qualifications. He is clearly a very intelligent man.
The mother was born on 1967 in (country omitted). She is a (occupation omitted). She is also very intelligent.
The parties started living together when they married on 2010. The mother says they separated under the one roof on 29 September 2013 and have lived separately since 7 December 2013. The father says that the parties separated in October 2013. They divorced on 21 February 2015.
The parties’ only child [X] was born on 2012 (“[X]”). He is 6 years old. He is much loved and cherished by both his parents.
[X] does not remember a time his parents have not been in litigation about him.
Both parents describe a volatile relationship. It is significant that both refer to a couple of incidents during their relationship which illustrate this. Both describe the derogatory behaviour of the other. The father annexes a series of emails between the parents at annexure Q of his trial affidavit. He referred to [19] of his affidavit saying that by around November 2012 the respondent started referring to him as a “sponger”. In the emails he annexes from himself to the mother, he asks her to withdraw that comment and in a further email, which is a page long, dated 13 December 2012 the father starts by saying “the label ‘sponger’ was this in relation to money or time?” He then goes on to address those issues in some detail with respect to finances, house hold tasks and childcare and says that he estimates that he has done approximately 300 hours more childcare than his “fair share” mostly due to the mother leaving [X] with him while she went to the gym.
The father’s case
The father relies on his trial affidavit filed on 26 March 2018 and seeks the orders he filed on 5 April 2018. I refused the father leave to rely on a further affidavit he filed on 26 April 2018 which primarily consisted of annexures. The father said he filed this to refute the mother’s evidence in her trial affidavit. The father was able to tender documents from those annexures during the trial.
The father says he was the primary carer for [X] from his birth until 7 December 2013 when the mother changed the locks and the father was locked out of the home. He says both parents were actively involved in [X]’s care when not engaged in their professional commitments. He supports these claims with annexures summarising his and the mother’s professional commitments and their non-professional commitments, tracked through an email diary. The diary notes are annexures W to his trial affidavit. To give a few examples, they refer to the father’s time spent at mass, running, and pushing [X] in the pram. They refer to the mother spending time with [X], sleeping in, and reading to [X]. These diary notes and the level of detail the father goes into gives insight into the father’s obsessiveness.
The father’s trial affidavit
The father’s trial affidavit is in four volumes. The annexures total 889 pages. They include several email exchanges covering various topics dating back to 2012. The annexures also include extracts of transcripts from various court appearances in these proceedings and social science articles.
Much of the text of the father’s affidavit is argument not evidence.
The mother’s case
The mother relied on her trial affidavit filed on 26 March 2018 and the orders sought in her amended case outline. She prepared it without a lawyer.
The mother filed a case outline on 4 April 2018 totalling 47 pages. She filed an amended case outline on 23 April 2018 totalling 56 pages. The material she prepared also shows some obsessiveness by her.
Some of the orders that the mother seeks are really child support orders addressing various payments for expenses for [X]. There is no child support application before the Court. There is no basis for making these orders. If the parties cannot agree on those expenses they can pursue that issue through the administrative child support system.
The mother’s view is that while the father is not supportive of her relationship with [X], she sees herself as being very supportive of the father’s relationship with [X]. Neither position is entirely accurate.
The mother’s trial affidavit
The mother’s trial affidavit contains 319 paragraphs spanning 96 pages, and with annexures the affidavit is 320 pages long.
In her trial affidavit the mother describes the father as being obsessive and controlling. She says they had problems in their relationship and that from June 2011 she had asked the father to leave but he refused.
The mother’s affidavit contains many complaints which at times are nit-picking and pedantic. The best example of this is where she sets out the comparison of the length of time the father, the family consultant and herself were cross-examined during 2015 hearing.
The Independent Children’s Lawyer’s position
The Independent Children’s Lawyer (“the ICL”) expressed concerns about the conduct of both parties. The ICL was only appointed on 22 February 2018 and, together with his Counsel, has had to get across a large amount of material in a short amount of time. The ICL and his Counsel have been of assistance to the court.
The ICL supports the mother having sole parental responsibility but does not support the mother’s position of reducing the father’s time to two nights a fortnight (amended in her written submissions to three nights a fortnight) and does not support the family report writer’s recommendation the father’s time be reduced to four nights a fortnight in one block. The ICL submits that the current arrangement should remain in place and expresses concern about [X] managing a long block of time away from his father.
Legal Principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). S.65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405. In McCall & Clark the Full Court stated that the preferable approach to considering a meaningful relationship between a parent and child is a prospective one.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Despite the parties’ affidavit material, this case is not about family violence. There have never been any family violence proceedings. The issue for these parties is their rigidity and inability to communicate effectively and what impact this has on [X]’s wellbeing.
Whilst both parties have raised allegations against the other, neither are raising a case that there is an unacceptable risk to [X] in the other’s care. The allegations that each make against the other must be seen in this context.
In this case, there is no dispute between the parties that [X] enjoys a meaningful, close and loving relationship with both his parents. He will continue to enjoy this.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph [13] of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
One of the issues in dispute between the parties with respect to the exercise of parental responsibility is whether or not [X] needs counselling support and should be psychologically assessed. The father was asked how he would see equal shared parental responsibility working with respect to working with the mother deciding who [X] should see for support. He said they would have an email conversation about it. It is worth setting out the following exchange between the mother’s counsel and the father:
MS CANTRALL: Right. And would you be concerned that that email conversation might turn out, like some of the email conversations that I’ve already taken you to, in terms of there being a great difficulty in reaching any common ground between you and the mother?
THE FATHER: The emails you took me to, I think, reached common ground.
MS CANTRALL: I’m going to suggest there was great difficulty in the reaching of that common ground and, in fact, it wasn’t. You told the mother you had given her holiday time as a gift. That’s right, isn’t it?
THE FATHER: Yes.
MS CANTRALL: She conceded to what you wanted, and then you said well, this is a gift to you?
THE FATHER: Inverted commas, yes.
MS CANTRALL: That’s right. So who would suffer if you and the mother took a long time to try and reach an agreement about [X] receiving some care?
THE FATHER: Assuming he needed the care, that would be [X].
MS CANTRALL: Well, you’ve told her Honour that you think he does. You agreed with that proposition today?
THE FATHER: I agreed with an assessment.
MS CANTRALL: So are you now resiling from your position that you’ve just given evidence about being that [X] would be assisted by an assessment – for himself, for his own support?
THE FATHER: I don’t see the assessment as urgent.[4]
[4] Transcript 30 April 2018, page 62 – 63.
It is apparent from this exchange and the father’s submissions at the end of the trial that he cannot see the distinction that is being made between the end result which has been good, and the path to get there which has been trying and stressful for the parents and no doubt [X] as well. Given this lack of insight on the father’s part, it is unlikely this would change if the parents were to continue to exercise equal shared parental responsibility.
Counsel for the ICL asked the father if he could identify any advantages to one parent exercising sole parental responsibility. He said efficiency but he said that he did not think that efficiency and effectiveness were the same and that they have made great decisions for [X] together, including [X] attending pre-school and School B, and whilst the joint decision making was not efficient it was effective.
The father insisted that if he was successful in obtaining an order for equal time and the parents continued having equal shared parental responsibility, this would end the conflict from his end. The father would not accept the proposition that the parents have conflict even though they have equal shared parental responsibility currently. He said they have disagreements. The ICL’s Counsel suggested to him that many of those disagreements were with respect to issues of shared parental responsibility. The father replied “I think parents have disagreements where there is no court orders.”
The father referred to his proposed orders when he was asked what solutions he offers to resolve some of the conflict between the mother and himself. This includes an order that if the parties are unable to agree on [X]’s secondary school, that they attend mediation. Counsel for the ICL made the point that the parties have had the assistance of Ms C for the past three years and this had not been successful. The father said this was successful with respect to the pre-school.
The father said he could not recall asking the mother to approach a different counsellor for assistance. He was asked then why he had included orders for counselling and mediation in his proposed minute of orders. He said he would love to do that if the mother was interested, but it is his perception that the mother is not interested. He was then asked how that order could be successful if his perception was that the mother was not interested and he replied “because I think it would be in [X]’s best interests if we were both interested.”
The father also said that he does not think that he and the mother have difficulties in communicating. As such as he thinks their communication is “precise, businesslike, even extensive.”
At the time of the 2018 family report interview, the mother was seeking sole parental responsibility with respect to education and health and shared parental responsibility with respect to other major long-term issues. Her position at trial had changed to simply seeking sole parental responsibility. The mother said that the decisions that they have been trying to make since the family report interviews have been very difficult.
I find that the presumption that the parents should exercise equal shared parental responsibility is rebutted in this case as it would not be in [X]’s best interests for the parents to continue to try to make decisions for [X]’s welfare together given their inability to do this effectively. It is not just the end result that matters.
Given [X]’s age, Ms M did not explore [X]’s views with him. He is so young that I would not place much weight on his views in determining which orders are in [X]’s best interests had he expressed them.
[X] has a close and loving relationship with both parents and extended family. He will continue to be able to enjoy relationships with both parents and extended family.
Both parents have taken up opportunities to participate in decision-making about long-term issues with [X], spending time with [X] and communicating with him.
Neither party raises any complaint about the other parent failing to fulfil their obligations to maintain [X].
The orders I propose to make reduces the father’s time during school terms by one night and will result in a longer gap between times that [X] sees his father. Whilst this is a reduction in time and will mean a longer period where [X] does not see his father, I do not have any evidence to suggest that [X] will not adjust to this change. Reducing the number of transitions for [X] going between his parents’ different households is likely to be easier for him to navigate.
There are no issues of practical difficulty and expense with respect to these orders given that the parties live in close proximity to each other.
Both parents, for the most part, have the capacity to provide for [X]’s physical, emotional and intellectual needs.
Neither party raises issues of culture.
Generally it is preferable to make orders that are less likely to lead to further proceedings if it is consistent with what is in the child’s best interests. In my view if the parents continue to have equal shared parental responsibility, it is likely that further disputes between the parents would continue and leading to further proceedings.
I have considered whether or not the order for sole parental responsibility should require the mother to seek the father’s views and to consider them before making the decisions, but have declined to make that order as it is likely to invite further conflict between the parents.
Comments on the evidence
The copious amounts of material filed by the parties does not assist the Court in determining the issues in dispute. It is most unfortunate that both parties focused much of their material making complaints about the other party and on historical issues and issues that have no bearing on the current issues in dispute before the court.
I made it clear at the commencement of the trial that the focus needs to be on the evidence that will assist the Court to determine what is in [X]’s best interests. Whilst some issues are important to the parties, not every issue needs to be explored.
I have carefully considered the evidence and submissions. Due to the volume of material before the court, I do not propose to address every piece of evidence and each submission made, however in reaching my decision I have considered all of the evidence and submissions.
In Vismay & Shaw [2014] FamCAFC 124 the Full Court of the Family Court stated at [45]:
It is well accepted that a judge is not required to advert to every piece of evidence or every submission made in the course of the reasons per Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; U v U (2002) 211 CLR 238 at [80], per Gummow and Callinan JJ . The purpose of giving reasons for decision is to enable the parties to understand how the orders and decision were arrived at.
In the appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
“Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.”
Parties inability to agree on issues effectively
One of the biggest issues in dispute in this case is the nature of the parties’ communication.
The parties have been seeing Ms C since 2014 as a result of the family consultant’s recommendation that the parties seek assistance to improve in their co-parenting.
The father was cross-examined about the subpoenaed records of Ms C. Her hand written notes of a session on 7 January 2016 recorded that, with respect to the father, there was a stalemate about preschools, with the father requesting a comparative analysis of the school the father favoured, being Preschool 3, with the preschools the mother favoured. She recorded that the father was not able to see other options and would employ a nanny instead of a preschool rather than give in to the mother. The father said he could not recall saying that.
The mother’s Counsel cross-examined the father about [97] of his affidavit where he says “All important issues are agreed. Indeed, many minor issues are agreed, and, most importantly, [X] is doing exceptionally well.”
The mother’s Counsel also put to him that at the time he swore his affidavit they had not reached agreement about the April 2018 school holidays. He agreed. The father did not agree with the proposition that the way they communicated about the 2018 school holidays was typical of their communication. The father said the situation was different because his understanding was that there were no orders in place. Whilst this may have amplified their difficulties in resolving the issue, it is not a complete answer. It is only necessary to consider the extensive email exchanges annexed to the parties affidavits about a variety of topics to see how the parties get caught up in small details. It is inevitable that there will be issues concerning the exercise of the parental responsibility not specifically addressed by the orders. [X] is only six. No set of orders can cover every parenting decisions. Nor should they. To attempt to do so would be to descend into micro managing the parents.
Preparatory School 1
When [X] attended Preschool 1 (“Preschool 1”) the father would collect [X] from handover at 8:15am and drop him off to preschool at 8:30am. As [X] was not yet three, he often was tearful when being left at preschool which is developmentally normal. Amongst many other orders, Justice Rees made the following interim orders on 4 March 2014 for the father to spend time with [X] on Mondays and Fridays from 8.15am to 6.15pm.
The father agreed that at the 2015 trial he gave evidence that he supported [X] attending Preschool 1 for three days once a third day became available. When a spot became available on a Friday in 2016, the father did not agree to [X] attending for a third day. Order 5(b)(ii) of final orders made by Judge Scarlett on 29 June 2015 anticipated that [X] may be attending pre-school on Fridays.
The father agreed that he took [X] to Preschool 1 on a day that was not [X]’s day so he could see what it was like for [X]. He did not concede that that may have been detrimental for [X].
The mother annexes a series of emails the father sent to Preschool 1 to her trial affidavit.
One of the things the father took great issue within the correspondence back and forth with Preschool 1’s director was her statement that:
With regard to [X] being dropped off at school, he is almost on all occasions when Ms Selwyn drops him off happy and comfortable arriving at school and he’s always happy and comfortable during his day with us. He may have a very normal protest on the odd occasion when Ms Selwyn drops him off, but staff have observed that [X] is extremely distraught on the few occasions that you have dropped him off but seems to settle quite quickly once you have eventually left. As you are aware, you have then returned some time later to remove him even though [X] had been settled happily into his routine as you had changed your mind. The other occasion was quite traumatic when you dropped him to see for yourself so that [X] was quite distraught when coming to school and on this occasion it was, again, a traumatic experience. You then left with [X].
The father followed that up persistently in several emails and wanted to know where that information came from as he disagreed with it. The number of emails and the nature of his requests were likely to have been quite oppressive. If these drop offs by the father occurred after the father collected [X] from the mother just 15 minutes earlier, [X]’s reaction is not surprising.
It would have been far better for [X] if the mother had dropped [X] off directly to preschool rather than there being a 15 minute period with father. This arrangement was not focused on [X]’s needs. There was no benefit to [X] in having that 15 minute time period which gave him no opportunity to settle before being required to make another transition.
In his emails to the school director, the father wanted the school director to provide a lot of detail about [X]’s routine and also wanted to observe [X] so he could consider a third day. He then wrote and said he had not been advised of and did not consent to [X] attending for a third day.
Ms C spoke to the director of Preschool 1. Her subpoenaed notes indicate that on 26 March 2015 she spoke to Ms F who told her that [X]’s development was on track and he was a normal, happy and healthy child. The only issues of concern were the drop-off routine when the father dropped [X] off. Ms F expressed concern that the father contributed significantly to [X]’s anxiety by dragging out the drop offs, hanging around and saying things like “I don’t think [X] wants to stay”. She referred to the father dropping [X] off about three times. She also referred to telling the father [X] settles very quickly after his parent leaves.
The preschool had days available for [X] on Wednesdays, Thursdays and Fridays. When it was suggested to the father that Wednesdays and Thursdays were days that [X] was in the mother’s care he disagreed and said that those were days that [X] was at preschool and not in his mother’s care. The father’s interpretation of this issue is of concern. Clearly on the Wednesdays and Thursdays [X] was in his mother’s care and not his father’s care before and after preschool.
My impression is that the father had difficulty separating his own needs from [X]’s as he had agreed previously that [X] attending preschool for three consecutive days in 2016 would be good preparation for him to start school the following year. In fact when the mother started sending [X] on alternate Fridays to preschool, the father emailed the mother saying “when [X] is older we will be happy to let him know that his father was available and that you did everything possible consciously and deliberately to keep him away from his father”. The following exchange then occurred:
HER HONOUR: Of what possible assistance could it be to tell [X] about these disputes between the two of you?
THE FATHER: No, not these disputes, but for – for an example, I think [X] – [X] needs to know that we were a family, we all lived together, and why we’re not a family any more. I think that’s a part of his history. When he’s older I think he’s entitled to know that. You know, I think, you know, when he’s, you know – certainly by the time he’s 18 I think he deserves to know these things.
MS CANTRALL: Thank you, your Honour.
And by “these things” you mean that – and I’m quoting from your email here – that his mother:
…did everything possible consciously and deliberately to keep him away from his father.
THE FATHER: Well, that was probably – that was probably an overstatement and that’s not –and that’s not something that probably is literally true. No. I – I retract from that statement. Not everything possible. I agree. Not everything possible.
MS CANTRALL: Right. Because what the mother was trying to do was give him three consecutive days at preschool, wasn’t she?
THE FATHER: I’ve got no problem with that. [5]
[5] Transcript 30 April 2018, page 77.
It is apparent that the father prioritised his desire to spend as much time with [X] as possible above the desirability of [X] attending preschool for three days in order to prepare him for attending school the next year. My clear impression is that the father would have been happy for him to spend the day at preschool as long as it did not impinge upon his time. This is an example of the father being unable to separate his own needs from [X]’s.
On 16 November 2016 the father sent an extraordinary email to the mother, copying in Preschool 1 and Ms C (who the parties had been seeing to assist them with their communication). He proposed to the mother that they talk in person, meet with Ms C to discuss it, or meet at Suburb B Police Station with the Domestic Violence Liaison officer. The father said that he gave a number of options. If the mother was concerned about her physical safety there was “nowhere safer than a police station”.
Preschool 1 later advised that [X] would not have a place at the centre in 2016. The mother’s Counsel suggested to the father that his email and communication with Preschool 1 contributed to that. Given the voluminous and oppressive nature of that correspondence that is a reasonable inference to draw.
The father then made arrangements for [X] to attend Preschool 3 without consulting the mother.
The following exchanges between the mother’s Counsel and the father regarding the preschool exemplify the father’s rigidity and pedantic style:[6]
[6] Transcript 30 April 2018, page 74 and 75.
MS CANTRALL: It effectively meant though when you became aware that [X] wasn’t going to go to Preschool 1 is that he had no preschool to go to in 2016?
THE FATHER: That’s correct.
MS CANTRALL: Right. Now, you voluntarily – sorry. You unilaterally accepted a place for him at a preschool called Preschool 3, is that right?
THE FATHER: Well – well, I provisionally accepted.
MS CANTRALL: All right. And one of those days that Preschool 3 had available as a Friday; that’s right, isn’t it – for [X]?
THE FATHER: I don’t recall that. Actually ‑ ‑ ‑
MS CANTRALL: I’m going to suggest?
THE FATHER: I’m sorry. I can’t recall. I thought it was the right days – Wednesday and Thursday.
MS CANTRALL: And why were they the right days?
THE FATHER: That’s the days that we always had.
MS CANTRALL: So they’re the days that [X] was in his mother’s care?
THE FATHER: No. They’re the days that [X] had been attending the Preschool 1.
MS CANTRALL: And they were the days that [X] was in his mother’s care; that’s right, isn’t it?
THE FATHER: He was at the Preschool 1 on those days.
MS CANTRALL: Sorry?
THE FATHER: He was not in his mother’s care.
MS CANTRALL: If you could just answer my question?
THE FATHER: Yes. Sure.[7]
[7] Transcript 30 April 2018, page 74
The process of selecting a new preschool for [X] was another laborious exercise for the parents. The mother prepared a document comparing five preschools within the local area based on certain criteria. The father selected one of the preschools from this document, being Preschool 4 Suburb C.
Incident on 11 March 2016 Preparatory School 2
[X] had an assessment at Preparatory School 2 at 8.45am on 11 March 2016. The father insisted on collecting [X] at 8:30am from (store omitted) for his “court appointed time” of 30 minutes. This is another example of the father‘s rigidity and putting his own needs ahead of [X]’s. The father turned up at the school for his time and tried to take [X] from the mother, which lead to a physical tug of war. The father disagreed with that characterisation. He said that [X] put his arms out to him and he tried to take him but the mother would not release him so he stopped.
The police were called and attended the school. The police said that they would make a report to the Department of Health and Human Services (“the Department”). The father agreed that they should as he wanted it noted for the record. The father had difficulty answering questions about this topic and said that all that happened there was a handover. The father did admit that that this incident was not good for [X] and claims that if a similar disagreement arose now about who was to attend a school event he would acquiesce. I have real doubts about that. According to the mother’s evidence, [X] remembers this incident and refers to it from time to time.
Enrolment at School A and School B
Order 22 of orders made by consent by Judge Scarlett on 29 June 2015 required “the father is to sign all documents and do all things necessary to enrol the child [X] in School B and School A”.
The mother sent the enrolment forms to the father for his signature. The father prepared an addendum to the School A enrolment form. The addendum the father prepared is at page 208 of the mother’s trial affidavit. The father wrote the following and the heading Full Disclosure of Special Circumstances:
Full Disclosure of Special Circumstances
We are currently seeking assistance for [X] from child psychologist Ms C.
The main symptoms include [X]’s poor response to the mother, at and in the period leading up to handovers, for approximately the last two years.
These symptoms vary between complete disengagement, verbal protests, including to his mother, “No, no. I’m not coming”, and to his father, “I don’t want to go to mummy. Stop the car. Stop the car. Let me out”, to physical protests, including running away and, on a few recent occasions, uncontrollable hysteria.
Needless to say that [X]’s paternal family are extremely concerned, as indeed are the (store omitted) Suburb A regulars where we handover.
Ms C has been retained to identify the underlying causes of this behaviour.
There are also assertions from both parents that the other is engaged in alienation “practises”. These have never been denied by the mother.
The father was cross examined about this in some detail and was unable to see that it was inappropriate to provide this information to the school. The mother’s then lawyers complained to the father in a letter dated 25 February 2016 about the addendum and annexures stating that the prejudicial addendum in the annexures could jeopardise [X]’s chances of being offered a place. The mother submitted the form without the addendum and annexures. The father then attended the school and gave them those documents. The following exchange took place:
MS CANTRALL: Right. And do you accept that that is in any way problematic for the relationship between you and the mother?
THE FATHER: I think it was a disagreement about the addendum to the school. Yes.
MS CANTRALL: And you didn’t compromise?
THE FATHER: The mother removed them and I reinstated them. If I can be clearer? I signed the form, with the annexures.
MS CANTRALL: So that’s one enrolment?
THE FATHER: Correct.
MS CANTRALL: Do you think that it was in any way disadvantageous to [X] that you did that?
MR SARGENT: It would be much better if those events were not true.
MS CANTRALL: Sorry, Mr Sargent. I’m talking about your behaviour. Your decision to write what you wrote and physically hand that to the school over and above the objection of the mother. Your behaviour. Was your behaviour in any way disadvantageous to [X]?
MR SARGENT: No.
HER HONOUR: So you don’t think there’s any problem with telling a school:
Parents can’t agree on things to such an extent. Contact Senior Constable Ms F if there’s any disagreements?
Are you seriously suggesting that that is something that’s appropriate and a normal thing to put in a school enrolment form?
MR SARGENT: Well, the school – your Honour, the school enrolment form is – and I – I can’t find it right here, but it says we must make a really full disclosure of all relevant facts and - - -
HER HONOUR: And did you have a discussion with Senior Constable Ms F that you were nominating her as the mediator when there was a dispute between the two of you for school?
MR SARGENT: No. I - - -
HER HONOUR: Seriously?
MR SARGENT: I – I know that – no, I know that my ex-wife had seen Senior Constable Ms F previously and so that’s why I knew her name.
The father’s approach to this issue highlights his rigidity and lack of insight. The father knew or should have known that what he raised in his addendum was controversial. It was not a factual statement. It also contains gratuitous comments such as the reference to (store omitted) regulars. It is also not relevant to [X]’s attendance at school.
With respect to [X]’s attendance at School B, the father sent the mother an email proposing that [X] attend on the basis of three conditions. Firstly that costs were shared equally, secondly all school documentation is co-signed and available to review on request, and thirdly all communications to and from the school are copied to the other party. The father told Ms M that it was the school’s requirement that the parties be copied into all communication. When he was cross-examined about this issue, initially he said that the school had told him it was standard practice. That was avoiding answering the question and what was clear was that it was his requirement, not a requirement of the school.
[X] was to attend a campus tour and brief Kindergarten Readiness assessment for School B on 6 April 2016. The father said in an email to the mother dated 23 March 2016 “as you will be aware per order 22 enrolment at School B is my domain.” He asked whether the mother was planning to attend or would she prefer the father to collect [X] from preschool. The father copied Ms C into this correspondence. The mother responded to the father stating that 6 April 2016 was her “court appointed day with [X]”. The mother further stated that:
Order 22 states you must “do all things necessary to enrol” [X] in both School A and School B. Neither enrolment is “your domain”.
During the trial the father asked a series of questions about this and my impression is that because the order referred to the father having to sign documents and do all things necessary to enrol [X], he felt he had some special role of responsibility with respect to that. The reasoning behind why this order is directed at the father and not both parties is unclear. I presume it is because the mother had already signed the forms. When the orders as a whole is considered, the father’s interpretation of this is unreasonable.
When the father was cross-examined, Counsel for the mother referred to 6 April 2016 being a Wednesday and therefore one of the mother’s days. The father insisted that it was a preschool day regardless of whether [X] attended preschool or not that day. It is simply nonsensical and artificial to suggest that [X] is in neither parents’ care on those days. Rather, it is clear from the orders he is with one parent after school and that night and indeed if he was sick would be in that parents care that day. The father then again referred to Order 22 as in his view that enlivens some special responsibility for him with respect to [X]’s enrolment at School B and in an email to the mother about this he again refers to the enrolment at School B being in his domain. The parties continue to have email exchanges disagreeing about who should take [X] to his assessment. The emails go back and forth and even include the father referring to the mother’s stance as intentionally disregarding the orders and may be an issue under the Crimes Act 1900 (NSW). The father stated in bold that the mother would be in breach of Order 22 if she did not comply and sought confirmation that she would abide by the court orders “and that New South Wales or other police will not be required at School B”. It is most concerning that the father thought that was an appropriate option. The father avoided answering the question about whether he intended this to be a threat by saying he made the offer for the mother to accompany him. He said he believed that the police were not required at Preschool 2 and that he didn’t want the same thing to happen at School B. He conceded that police attendance was not in [X]’s best interests yet it is he who mentions calling police at School B.
The father concludes that the Family Law Act promotes the children’s best interests, equal shared parental responsibility and equal time. He says the social science research supports equal time. He says the parents communicate and refers to the definition of communication being to impart knowledge and make known. He also says there are few issues which remain unresolved.
In the father’s oral submissions he addresses some of the criticisms made of him in the other parties’ submissions. He points to Judge Baumann’s comments in the transcript of the interim hearing before him where he stated that it was not necessary to do much about school holidays given the upcoming trial. That is not the extent of the difficulties of the school holidays and the parties’ inability to resolve that issue in a timely and effective manner. The father says he was simply seeking the reverse of what occurred during school holidays in 2017. It appears that the orders for term time school holidays assumed that those holiday periods were for two weeks whereas in fact [X]’s term school holidays can be longer as he attends a private school.
To the extent the father criticised communication with Judge Scarlett’s chambers with respect to ambiguities in orders and the delay in not filing the appeal until the reasons were available, I place absolutely no weight on either of those issues. They are not relevant to my consideration.
He also points out with respect to communications he proposed that the parties see Ms C in 2017 to “enhance” their communication.
The father also in his oral submissions the criticism of him for “telling [X] a short story of the truth. My instincts are to tell the truth and mainstays are supported by familyrelationships.gov.au, parenting, talking to children about separation. The first three points: make it easy for the kids; tell them they are loved; tell the truth.”
The father said he believes the communication between the parties is no worse now than it was when the mother “absconded with [X], with no notice to the father.”
The father then referred to the case law relied on by mother’s counsel. He referred to the facts in this case and submitted that they were distinguishable from those cases.
With regards to the injunction the mother seeks with respect to being within 50 metres of her house, the father says that the order would prevent him from using (omitted) Road, one of the main arterial roads in Suburb C, and that [X] has friends living in the street. He proposed an alternative handover location that would not have him drive past her street in order to effect the handover.
Returning to the issue of communication and conflict between the parties, the father repeated that there are few if any unresolved difficulties and that they are in the normal range or maybe even better than many other separated families.
Injunctions and other orders sought by the parties
The court does not grant an injunction simply because a party seeks it. There must be a proper basis for imposing restrictions or placing a positive obligation on the person.
Some of the orders sought by both parties descend into micromanaging parenting issues. It is not appropriate for the Court to make such orders. It will not assist the parents or [X] and could well lead to further proceedings due to disputes about interpretation of such orders. I am mindful of the comments of the Full Court of the Family Court in VR & RR [2002] FamCA 320 at [32] where they state that it is not the court’s role to determine every dispute between parents who cannot not agree about how their children should be raised and that the Court should only interfere to the extent that it is in the child’s best interests to do so.
For example, the mother seeks an order that both parties ensure that the child attends school even when he is ill. There is simply no evidence that there has been any difficulty with [X]’s school attendance.
The mother’s amended minute of orders sought, handed up on 16 July 2018, seeks a number of injunctions including restraining the father from coming within 50 metres of the mother’ home, a restraint on the father coming into contact with the mother or child save as provided by the orders, both parents being restrained from using the child to carry messages between them and a mutual restraint on discipline. A total of nine injunctions are sought.
It is apparent from both parents’ evidence that [X] knows too much about these court proceedings, including the names of the judges involved in the original hearing, the appeal and the interim hearing. The mother refers to this in her affidavit. The father was cross-examined about this. He said that [X] appeared to know the names of the judges already. He said he discussed the court proceedings in answers to [X]’s questions. He thought it was appropriate to have that conversation with a six-year-old. He then claimed that he is not discussing the proceedings with [X] now as [X] is not asking about it. The father then said that he gave [X] “the minimum information consistent with a reasonable answer.”
The mother’s Counsel asked the father what [X] knew about the events on 7 December 2013. The father replied that [X] asked him again on Christmas Day 2017 why they were in court and he “gave him a fuller account of what happened on 7 December 2013.” [X] was 21 months old in December 2013. In her affidavit the mother referred to [X] returning to her on Christmas day making statements including “dad says it’s not fair if it’s not 50-50” and “court makes me sad” and then he mentioned 7 December 2013 to his mother. When pressed, the father said that on the balance of probabilities he thought the mother was lying when she attributed those comments to [X]. The father then modified his answer and said that he accepted that [X] would have said that court made him sad but did not accept the other comments and believe the mother made them up.
The following exchange between the mother’s Counsel and the father is significant because it illustrates the father’s lack of insight:
MS CANTRALL: Right. So can you tell her Honour exactly what your fulsome chat with [X] was about on Christmas Day 2017?
THE FATHER: Yes, that we used to all live together as a family at Suburb A, that we were both, you know, involved in looking after [X], sometimes mainly your mum, sometimes mainly myself, and then one way or another your mum took you and I had to go to court to try and get you back.
MS CANTRALL: Now Mr Sargent, what do you think the impact would be on a six year old boy of hearing that from his father?
THE FATHER: At some point I have to tell him or – sorry, at some point he has to be made aware.
MS CANTRALL: What does he have to be made aware of?
THE FATHER: His family history.
MS CANTRALL: I’m going to say first and foremost what he has been made aware of is your version of events. That’s right, isn’t it?
THE FATHER: That’s exactly right.
MS CANTRALL: That's right. Your version of events?
THE FATHER: That’s the only one I can give.
MS CANTRALL: I’m going to suggest that your version of events is in fact not accurate, is it?
THE FATHER: Okay, well I’m - - -
MS CANTRALL: So you remember being cross-examined at the previous trial in relation to the events of 7 December 2013?
THE FATHER: That's correct.
MS CANTRALL: You remember that cross-examination?
THE FATHER: Yes. Yes.
MS CANTRALL: And taking you through step by step what happened on 7 December is the mother essentially changed the locks on the property she owned that you moved into when you got married. That's right?
THE FATHER: That’s – That's correct, yes.
MS CANTRALL: Yes. And the mother then sent you a letter the following day to say, “I’ve changed the locks. Why don’t you spend time with [X] three days a week, three full days a week?”?
THE FATHER: That's correct.
MS CANTRALL: Yes. And you said no, didn’t you?
THE FATHER: That's correct.
MS CANTRALL: And you had to come to court and then the court determined that you should spend time with [X] three, four days a week, didn’t they?
THE FATHER: That's correct.
MS CANTRALL: So if you had said yes to the mother three days a week…
THE FATHER: Three daytimes per week, Yes.
MS CANTRALL: Yes, that's right?
THE FATHER: Yes, that's right.
MS CANTRALL: If you had said yes to the mother then there wouldn’t have been any hiatus in your time with [X], would there?
THE FATHER: Yes, there would have been.
MS CANTRALL: Are you talking about between those three days?
THE FATHER: Yes, I am.
MS CANTRALL: Right. Because your proposal for the 22 month old or 23 month old by was equal time, wasn’t it?
THE FATHER: That's correct.
MS CANTRALL: Right. Right. Okay. I know. I’m sorry. Yes. Would your Honour pardon me one moment?
HER HONOUR: Yes.
MS CANTRALL: So when you said to [X], “Your mother took you away”?
THE FATHER: Yes.
MS CANTRALL: That wasn’t actually true, was it?
THE FATHER: I believe it was.
MS CANTRALL: Right. So do you think it would be good for [X], so you telling your version of events, mum tells him mum’s version of events? Do you think that’s a problem for [X] at all?
THE FATHER: I think it’s a factual version of events.
MS CANTRALL: Do you think it might make [X] feel put in the middle?
THE FATHER: I don’t – I don’t know the other version of events that the mother has put.
MS CANTRALL: Well, I’m going to suggest, Mr Sargent, that the mother hasn’t put any version of events to [X] because she wants to shield him from the conflict between the two 2 of you?
THE FATHER: In that case - - -
MS CANTRALL: That’s right, isn’t it?
THE FATHER: Well, if that’s the case he’s not caught in the middle.
MS CANTRALL: Right. He’s just caught on your side. Is that right?
THE FATHER: He’s not caught. He’s informed.
MS CANTRALL: So you think that there’s no tension in [X] in having his father tell him that his mother withheld him from his father? That’s not going to cause [X] some emotional tension?
THE FATHER: If [X] has asked a question and I think he’s of an age where he deserves some information.
HER HONOUR: At six?
THE FATHER: At six. That’s right.
HER HONOUR: I’m really concerned that you think it’s appropriate to have that kind of conversation with a six year old. That’s basically telling him be wary of your mum she tried to take you away from me. You really think a six year old should take on that responsibility of an adult conflict?
THE FATHER: He asked. Well, in response - - -
HER HONOUR: Children ask all sorts of questions?
THE FATHER: Yes.
HER HONOUR: That doesn’t mean that they should get answers from adults. Adults need to exercise some judgment about children’s emotional responsibilities: not talking to them like they’re an adult. Do you accept that at all, that there are issues about maturity and emotional maturity of young children? They’re not adults. They can’t process things in the same way as adults?
THE FATHER: Look, I accept – I accept there’s an element of that but the – the questioning from Thomas was not – was reasonably persistent on that day. He was persistent. Literally, why are we in court?[29]
[29] Transcript 1 May 2018, page 124 - 125.
It is highly concerning that the father cannot see the need to protect [X] from disputes between parents. Just because children ask questions does not mean that it is appropriate the parents answer in the same way they would to an adult. [X] is a young boy, not at a developmental stage where he is able to process that type of emotion. Furthermore, even when [X] reaches adulthood he will still be a child of both parents. Such information cannot be objective and cannot be helpful to [X]. If the father continues to persist with engaging in these types of issues with [X] he will be inflicting emotional harm on [X] in the furtherance of the father’s interests and not [X]’s best interests.
In her trial affidavit the mother refers to the father following her after handovers. She agreed that between 23 February 2015 and December 2017 there were no instances of the father following her. She said she did not use the word ‘stalking’ to Ms M but did use the word ‘following’. The mother does refer to an incident after returning from holiday in (country omitted) in December 2017.
The mother gave evidence that she does not want the father to know her residential address. The father gave evidence during cross-examination that he has known her address for a year or more as it was revealed on a document he received. The mother said she was not comforted by the fact that the father has known her address for some time. She said she thought he had a rough idea of where she lived and that she has seen him outside her home. She conceded that there was no need for him not to know her address but she would prefer he not approach her address. There is no evidence that he has approached her address. I am not satisfied that there are any safety concerns that would justify the father not knowing where [X] lives.
The mother said she is still concerned that the father will follow her as she thinks his behaviour is “entirely unpredictable”. I am not satisfied that there is any basis for granting the injunctions the mother seeks. I am not satisfied that the father has stalked or followed the mother. He has known the mother’s address for some time and has not misused that knowledge.
The father cross-examined the mother about her asking [X] to keep their address secret. She agreed that she had done that and said that [X] also said he did not want to tell the father his address so that it was both of them who were concerned about it. The mother said she thought that was appropriate in their situation. The father asked the mother if there were any other secrets she asked [X] to keep from his father. The mother replied “not that I’m aware of.” It is concerning that the mother thought this was appropriate. It was a complete overreaction and placed [X] in an impossible position of conflicting loyalties as well as sending [X] the message that somehow his father is unsafe.
The father cross-examined the mother about Ms M referring to the mother’s complaints that the father was stalking her at handovers. The mother said she did not use the word stalking but said ‘following’.
The mother conceded that Ms M was mistaken when she referred to the mother saying she had seen the father near her home on several occasions. The mother says she said on one occasion. She says it was distressing for her and for [X] to see him there. She says at that time she did not know if the father knew her address or it was just a coincidence. The father cross-examined the mother about page 335 of his trial affidavit which annexes a document dated 23 June 2017 from when the mother arranged for [X] to be treated by Dr S from the (Medical Clinic). She conceded that the document sets out her home address.
The mother gave evidence that she does not trust the father on any level. The father gave evidence that he does not trust the mother in some respects but he has trust in her as a mother.
Counsel for the ICL asked the mother how she could be confident with the father having unsupervised time on weekends and holidays when she does not trust him. Her answer was “you raise a good point”. This does the mother no credit as it highlights the negativity she feels towards the father. She needs to be mindful that [X] loves and needs both his parents.
Two other orders the mother seeks which are worth setting out are orders 27 and 28 of her amended minute of orders sought:
27. At school or other functions, meetings or appointments that the parents both attend out of school hours, both parents are restrained from interacting with each other or engaging with [X] if he is not in their care. Should this happen, the Mother has the sole responsibility to decide who will attend. In the event that both parents attend a function, meeting or appointment and [X] becomes distressed, the parent that [X] is not in the care of is to immediately leave the function, meeting or appointment.
28. Both parents are permitted to attend school assemblies, award ceremonies and performances during school hours as long as they do not disturb or directly interact with [X] or each other. Should this happen or [X] becomes distressed, the Mother has sole responsibility to decide who may attend.
Whilst there has certainly been difficulties with both parents attending school events in the past, they have been in the context of disagreements about who should attend an assessment and whose “court-appointed time” it was. When reading the orders, it brought to mind the article Ms M provided the parties where a small number of children with separated parents were interviewed and the strongest message from the children to their parents was the sense of security and enjoyment received from seeing their parents together at important functions such as when a child is receiving an award at school and seeing their parents interact with each other.
Another example is Order 22 of the orders sought by the mother which requires both parents to ensure [X] is transported to school and other places “in a safe manner” including wearing appropriate safety when riding a bike or scooter. The mother is concerned about [X] riding his scooter in his father’s care without a helmet or any safety equipment. She said she has emailed the father about this issue several times and included it in a follow-up email with information with specific guidelines. Whilst the mother complains about the father not ensuring [X] has appropriate safety gear, I am not satisfied that it would be appropriate to make an order which may well lead the parties to bring further applications to the court with respect to complaints about contraventions and interpretations of orders.
The mother also seeks orders that the enrolment form lodged with School A and School B be uplifted by the father and that they be resubmitted without the addendums or special needs sections filled out. The father seeks orders that he sign all documents to re-enrol [X] at School B.
The mother will have sole parental responsibility. She may contact the school about this if she remains concerned about it. Requiring the father to do so is only going to lead to further conflict. The mother will be responsible for such enrolment forms in the future. She will be required to ensure that the father’s contact details as the other parent is included on any such form and I will also make an order authorising the father to receive information from the school and attend events parents are normally invited to.
The father also seeks an order that each party keep the other informed of communication with School B including emails. I will not make this order. The school should not continue to be placed in the middle of the parents’ disputes.
I will not make the orders the mother seeks restraining the father from “disrupting” [X]’s school life. Whilst there is evidence of difficulties with the father attending [X]’s preschool during school hours and issues of separation difficulties, there is no evidence that the father has attended School B disrupting [X]’s schooling.
The mother also seeks restraints with respect to communication between the parties. Certainly these parties need to reduce their communication with each other which has proven to be counter-productive but I am not satisfied that making prescriptive orders in this regard will assist the parties and avoid further disputes. The mother has been given sole parental responsibility and this should greatly reduce the need for communication with each other.
The mother seeks an order restraining the father from disseminating any of the information contained in subpoenaed material and other material in court proceedings. I draw the parties’ attention to s.121 of the Family Law Act which addresses this issue. The mother does not refer to any specific incident requiring the orders that she seeks in this regard.
Order 43 of the orders sought by the mother is extraordinary. It seeks both parties attend the ICL or another legal practitioner to have their obligations under the orders and the consequences of contravening the orders explained to them. The order goes further and says the parties and the legal practitioner are to sign a document to verify that advice has been given and submit the document to the other parent. This is not the ICL’s role. It is reflective of the high level of distrust and pedantic tendencies that apply to the mother as well as the father. Both parties are intelligent. If the parties are unclear about the meaning of any orders, both can access legal advice.
The parties seek non-denigration orders and restrictions on discussing the proceedings with [X]. I am satisfied that there is sufficient evidence to ground these orders and will make them.
Both seek injunctions with respect to physical chastisement and restraints on the parties recording changeovers despite the fact that these issues were not raised as being of concern at trial. There is no evidence to support such injunctions.
The evidence does not support the orders the mother seeks restraining the father from approaching her home or approaching her and [X] outside of his court ordered time. These parties live within a kilometre of each other.
I am not satisfied that there is any proper basis to injunct the father from approaching within 50 metres of the mother’s home. There is simply no evidence that he has done so. The reality is that the parties live in close proximity. It is inevitable that at times they will be in the vicinity of each other and that [X] may also be there. The mother now concedes that it is appropriate that the father know the address where [X] is living. The father has known that address for some time. The mother’s submissions at [54] states that “the court has the capacity to protect the Mother and [X] from the Father’s unwanted presence at their home by this injunction order, and the inevitable conflict and anxiety that [X] would be exposed to” The difficulty with this submission is the lack of evidentiary foundation behind it. It is not enough to make an injunction, which is a serious matter, because of one person’s anxiety. What the parents should try to do is be able to greet each other civilly if this occurs for [X]’s sake.
In the event the mother moves forward with [X] receiving counselling, such counselling should occur with someone other than Ms C given her involvement with the parties. It is important that the father be kept informed and have the opportunity to communicate with any psychologist or counsellor [X] seeks, separately from the mother as he will have valuable input to give and also will benefit from receiving information about [X]’s progress. The choice of that person will be for the mother to decide.
The mother seeks an order that she can renew [X]’s passport without the signature of the father. Whilst the mother will have sole parental responsibility, it usually necessary for a parent to obtain a specific order pursuant to s11 of the Australian Passports Act 2005 (Cth) in order to obtain a passport without the other parent’s consent. I am not satisfied that there is evidence that suggests that the father will be obstructive with respect to [X] obtaining a passport given that he also seeks orders for [X] to obtain a passport with both parents being able to travel overseas with [X]. I will make orders the parties seek with respect to travel as overseas travel can be an enriching experience for children.
The parties seek identical orders with respect to Mother’s Day and Father’s Day. I will make those orders.
The mother also seeks an order with respect to a (religious observation) holiday. That order was in her earlier set of orders. Presumably she seeks this order as it is culturally significant to her, I will make that order.
I will make an order that either party be able to have a nominee, being a person known to [X], attend handovers in their place.
The interpretation of orders with respect to school holidays have been fraught with difficulty. There is no reason why [X] should not spend “roughly equal time” with his parents during school holidays as the ICL’s submits. This does not mean it should become a matter of a mathematical equation.
It is necessary to be prescriptive with respect to the school holidays order. The beginning, mid-point and end of the holidays must be clearly defined. The first and second half of the holidays should be rotated between the parties, as is the usual practice. I have considered whether or not the beginning and end of the holidays should be from school to school. Whilst this would work for the midterm school holidays, it makes sense for [X] to be in his mother’s care before the commencement of the school year. For this reason, I will define the school holidays as ending at 5:00pm the night before school term commences. That will apply to all the school holidays for consistency. There may be times when there are an uneven number of days in the school holidays. In the event this occurs, the parent who has care of [X] for the first half of the school holidays will have an additional day. As the first and second half of the holidays will be rotated between the parents this should prevent either parent complaining about unfairness. I accept the ICL’s submissions in this regard that it makes no difference from [X]’s perspective.
I think it is appropriate that the ICL see [X] to explain the orders to him given that [X] is very aware of the matter being in court. Given the conflict between the parties, I think it will be beneficial for [X] to have the orders explained to him by someone other than his parents. However, I will not make an order in this regard as I do not know if the ICL has met [X] previously.
Orders for school holidays have been a vexed issue in this case. I do not propose to make orders either party seeks which would involve multiple handovers during the long summer school holidays and would add a complexity to the orders that would likely lead to further disputes about the interpretation of orders. The orders I make will mean that the long summer holidays will be broken into two block periods which will mean that [X] will experience being away from each parent for a longer block period than he has before but this will mean less transitions for him and less handovers between his parents.
Conclusion
It is clear from the voluminous material filed by the parties and the detail and frequency of emails between the parties that these proceedings have been consuming for both.
I emphasise that that I am making the order for sole parental responsibility because it is not in [X]’s best interests for the parents to continue to share it. It is not about rewarding the mother and punishing the father. It is simply unworkable for them to continue to share equal parental responsibility. Whilst the decisions made for [X], such as the choice of School B, have been good for him, the pathway to get there has not. It is not a case of there being isolated difficulties. The level of communication and the lengths it took to resolve the April 2018 school holidays is telling and cannot simply be explained away by there being uncertainty about the status of orders in place.
I have given some consideration about whether or not I should make a modified parental responsibility order giving the mother sole parental responsibility with respect to some major issues and not others but given the parties’ inability to resolve even minor issues simply such as [X]’s uniform and shoes, I think such an order could lead to further conflict between the parties.
I make the point that conflict is not just parents shouting at each other. Parents convey conflict in a variety of unspoken ways, through body language and tone of voice when speaking about the other parent. Children are sensitive to this. Silences at handovers and other events where both parents are present can also be deafening for a child.
The problem with the parties’ communication is not captured by the dictionary definition the father refers to. This is a case where there is too much communication between the parties which is not only counterproductive but just adds to the conflict between the parties. [X] is acutely aware that his parents do not get on and that they are concerned with what they perceive is fair.
The father presents himself as having mellowed and being willing to compromise. That is not my impression of him. Rather, he shows an obsessiveness about what he thinks is fair and goes to extraordinary lengths to demonstrate. Examples include his diary notes recording [X]’s free time and his statement that his proposed orders will have [X] having spent equal time with his parents by the time he is 18.
The mother also showed a rigidity in her approach with respect to parenting issues. At times she was pedantic, such as complaining about the respective times the parties spent being cross-examined and cross-examining Ms M at the 2015 trial.
As I have found that the presumption with respect to equal shared parental responsibility has been rebutted, the provisions of s.65DAA(1) and (2) do not apply. Nonetheless I must address the orders the father seeks for equal time. Section 65DAA(5) is particularly relevant here and I set it out:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(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.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
I will address these in turn. Reasonable practicality is not just about the geographical distance between the parties homes. These parties live very close to each other and that does not present a challenge for them.
What is a significant challenge for them is their current and future capacity to implement such an arrangement and communicate.
Their communication, which I have addressed at length, is not the only problem. The other is the significantly different parenting routines and styles. It is a matter of degree. Parents in intact families have different parenting styles. That is not a bad thing. However the differences in the two households go beyond that. The father’s evidence that he does not implement a bedtime routine for [X] is concerning. It is also concerning that [X] regularly co-sleeps with his father and uses nappies at his father’s home at night. At 6 years of age there should be no need to wear nappies at his father’s home. He does not do so at his mother’s and if his school friends knew this it would likely cause him embarrassment. Parents need to encourage their children to individuate. I am mindful of Ms M’s evidence. Occasional co-sleeping is not a problem. Regular co-sleeping is. My impression is that it may be more reflective of the father’s needs than [X]’s.
It must be difficult for [X] to navigate two very different regimes. His mother’s household is strict. His father’s household is the opposite. It is important that children have regular routines, particularly during the school week. It is concerning that the father does not see the distinction.
It may well be that the mother is too strict about bedtime routines. It would be beneficial for [X] if he had a more consistent bedtime in both households but this seems unlikely. On one view, the fact that [X] wakes up early but is required to stay in bed till 7:00am by his mother may indicate that he is going to bed earlier than he needs to in his mother’s home. It really is indicative of how different the households are. It is not limited to bedtime routines either. There are also issues of dental hygiene, which the father says he is now addressing, and breakfast routines.
These differences and the parties’ difficulty in communicating and reaching a consensus about both major and minor issues in a way that is not lengthy and fraught weigh against there being an equal time arrangement for [X]. The distrust the parents have of each other is palpable.
I have to now decide whether or not it is in [X]’s best interests to spend substantial and significant time with his father. The mother now concedes that the father should have three nights a fortnight which enables him to collect [X] from school on Fridays and take [X] to school on Mondays. Her proposal would give him little real opportunity to be involved with [X] during his school week and help with homework and the like and other things involved in daily routine that is not on the weekend and holidays. The mother has not established that [X]’s school performance is suffering because of his routine in the father’s home. I am not satisfied that it is in [X]’s best interests to restrict the father’s time in the manner she proposes.
Ms M recommends one block time of 4 nights a fortnight during school terms. The ICL supports the current arrangements remaining in place and expresses concern for [X] adjusting to a major change in the arrangements. The difficulty with the ICL’s proposal is that it involves [X] in more transitions between two very different households. I am satisfied that there should be one block period, not two.
I now turn to whether or not this block period should be four nights or five. It is a fine line but as I found Ms M’s evidence helpful and reflective of my own impression of these parties, after weighing up all of the evidence I am satisfied that it is in [X]’s best interests to spend four nights a fortnight in his father’s care during school terms in one block period. This enables the father to be involved in [X]’s school week but limits [X]’s exposure to the very different households, which is more of an issue of concern during the school week than on weekends and school holidays. It is concerning that the father could see no difference in time experienced during school terms and school holidays.
I am mindful that the parties have been litigating since 2013 which has no doubt caused both enormous strain. The length of the proceedings will have contributed to this. I can only hope that when these proceedings conclude the parties are able to focus on parenting [X] moving forward.
I am satisfied that the orders I have set out at the beginning of these reasons are in [X]’s best interests.
I certify that the preceding four hundred and eighty-nine (489) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 4 October 2018
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