FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Self & Bachman (No 3) [2022] FedCFamC1F 829
File number(s): SYC 2566 of 2016 Judgment of: HARPER J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – PARENTING – One child aged 11 – Where both parties have loving relationship with the child – Where first segment of final hearing was held in February 2021 – Where parties filed numerous interim applications after judgment was reserved – Second set of final hearing dates allocated in 2022 – Where father was self-represented – Intractable conflict between the parties – Where child has made threats of self-harm – Mother seeks order for sole parental responsibility – Father seeks order for shared parental responsibility – Father originally sought week about time, however now refuses to see the child until Term 3, 2023 – Father argues that his relationship with the child has been destroyed by false allegations made by the mother – Presumption of equal shared parental responsibility rebutted – Where AVO against the father for the child’s protection subsequently dismissed before judgment delivered – No finding of unacceptable risk – Where child has expressed wish to spend time with father – Order for child to spend time with father according to his wishes – Order for sole parental responsibility to the mother.
FAMILY LAW – PRACTICE AND PROCEDURE – At date of judgment, numerous interim applications outstanding – Powers in Division 12A of Part VII of the Act – Power of court to determine a matter at any time – Consideration of overarching purpose of the family law practice and procedure provisions as defined in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where applications raise no issues which would not be subsumed by final orders – Summary dismissal of extant applications.
FAMILY LAW – CONTRAVENTION – Where father has filed two contravention applications against the mother – Application of Division 12A of Part VII of the Act and overarching purpose – Where Court would not exercise discretion to impose sanction even if contraventions as alleged established – Dismissal of contravention applications.
FAMILY LAW – PROPERTY – De facto relationship – Where relationship was not less than 4 years and 10 months and one child of the relationship – Property dispute given less focus than parenting – Allegations of non-disclosure by each party not made out – Numerous items on balance sheet excluded as being de minimis – Different estimates to other items provided without valuation evidence – Where property purchases funded by joint borrowings secured by mortgage – Where husband owns 90 percent and wife owns 10 percent of the title for tax purposes – Whether presumption of equal beneficial ownership rebutted – Property held to be a jointly owned asset owned 90 percent by husband and 10 percent by wife – Mortgage liabilities equally divided – Where husband argued he had made three loans to wife – Conclusion that two loans existed for renovations and payment of school fees – Evidence that wife had referred to such amounts as loans in correspondence and in earlier Court proceedings against her ex-husband – Loans repayable – Contributions assessed as 65 percent to wife and 35 percent to husband – Payment to wife.
Legislation: Family Law Act 1975 (Cth) ss 4AA, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 68ZM, 69ZN, 69ZP, 69ZR, 90SB, 90SF, 90SM, 90SS, 90ST, 121
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.69
Cases cited: Barnell & Barnell (2020) FLC 93-961; [2020] FamCAFC 102
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421; [2002] NSWSC 1060
Bosanac v Commissioner of Taxation [2022] HCA 34
Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349
Burke and Burke (1981) FLC 91-055; [1981] FamCA 44
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Cong v Shen (No 3) [2021] NSWSC 947
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Elias and Elias (1977) FLC 90-267
Fielding and Nichol [2014] FCWA 77
G and G (2000) FLC 93-043; [2000] FamCA 1075
Gabini & Gabini [2014] FamCAFC 18
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Haller v Ayre [2005] 2 Qd R 410; [2005] QCA 224
Henry & Cuso [2022] FedCFamC1F 190
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166
Horrigan & Horrigan [2020] FamCAFC 25
Hurst & Hurst (2018) FLC 93-851; [2018] FamCAFC 146
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353
Jordan and Jordan (1997) FLC 92-736; [1996] FamCA 15
Kedwell v Deputy Commissioner of Taxation [2020] NSWCA 238
Kelby & Kelby (No 2) [2020] FamCA 816
Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54
M v S (2006) 37 Fam LR 32; [2006] FamCA 1408
Manolis & Manolis (No 2) [2011] FamCAFC 105
Marley & Ormonde [2021] FamCA 105
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Murtagh v Murtagh [2013] NSWSC 926
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Norman v Federal Commissioner of Taxation (1963) 109 CLR 9; [1963] HCA 21
Norman & Norman [2010] FamCAFC 66
Ogilvie v Adams [1981] VR 1041
Penner & Conroy (No 2) [2021] FamCA 411
Potter v Potter [2003] 3 NZLR 145
Sanil & Lennon [2019] FamCA 556
Self & Bachman (No 2) [2021] FedCFamC1F 335
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Tomaras & Tomaras (2021) 64 Fam LR 237; [2021] FedCFamC1A 82
Twinsectra Ltd v Yardley [2002] 2 All ER 377; [2002] UKHL 12
VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57
Whiton & Dagne (2019) FLC 93-923; [2019] FamCAFC 192
Zaruba & Zaruba [2017] FamCAFC 91
JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies (LexisNexis, 5th edition, 2015)
Division: Division 1 First Instance Number of paragraphs: 329 Date of hearing: 1–8 February 2021, 20–21 July 2022, 11 August 2022 Place: Sydney Counsel for the Applicant: Dr Barnett (1–5 February 2021) and Mr Ahmad (20–21 July 2022, 11 August 2022) Solicitor for the Applicant: Adam Jones Solicitor The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr O’Reilly Solicitor for the Independent Children's Lawyer: Tiyce & Lawyers ORDERS
SYC 2566 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SELF
Applicant
AND: MR BACHMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
Parenting
1.The Applicant Mother, Ms Self (“the mother”) have sole parental responsibility for X (“the child”) born … 2011, subject to Order 2 hereunder.
2.The mother shall consult with the Respondent Father (“the father”) about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother will advise the father in writing via email of the long-term decision to be made for the child and all related information;
(b)Within 14 days, the father will respond to the mother in writing via email, providing his views and input which the mother will genuinely consider; and
(c)The mother will make the decision and provide the father advice in writing, via email, of the decision and the reasoning behind the decision.
3.The child shall live with the mother.
4.The child shall spend time with the father as agreed between the mother and the father.
5.Failing agreement in accordance with Order 4 above, the child shall spend time with the father in accordance with the child's wishes.
6.The child shall move from the physical care of one parent to the physical care of the other parent at the commencement and conclusion of the time that the child spends with the father as follows:
(a)When such time occurs on days the child is attending school, at school; and
(b)When such time occurs on days the child is not attending school, at the mother's residence.
7.As and when the child communicates a desire to spend time with the father to the mother, the mother shall immediately contact the father to arrange such time to take place.
8.The mother shall facilitate the father having phone call or video call communication with the child as agreed between the parties, or, failing agreement, in accordance with the child's wishes.
9.The parties forthwith take all necessary steps and execute all necessary documents to cause the child to obtain a passport with at least 12 months validity for international travel.
10.The child's passport shall remain in the custody of the mother.
11.Pursuant to s 65Y of the Family Law Act 1975 (Cth) (“the Act”), the child be entitled to travel overseas with each parent during times that they are spending with that parent pursuant to these orders (or as otherwise agreed in writing) upon condition that the parent intending to travel overseas with the child shall give the other parent 30 days’ notice of his or her intention to travel overseas with the child.
12.For the purpose of Order 11, the parent intending to travel overseas with the child shall provide the other parent with telephone contact details upon which the child can be contacted during the child’s times with that parent and during overseas travel.
13.Within seven (7) days of receiving a request by the parent intending to travel internationally with the child, the other parent is to sign all documents necessary to facilitate the child travelling internationally pursuant to Order 11 above, and provide the child’s current passport to the other parent if the passport is in their possession.
14.Within seven (7) days of returning home with the child from overseas, the father shall return the child’s passport to the mother.
15.The Independent Children’s Lawyer be discharged 60 days from the date of these orders.
Property
16.Pursuant to s 90RD, it is declared that a de facto relationship existed between the parties for a period of no less than four (4) years and ten (10) months.
17.The father be declared the sole legal and beneficial owner of G Street, Suburb H (“Suburb H”).
18.The parties do all things and execute all documents necessary:
(a)To cause the transfer to the father of the mother’s one-tenth legal interest in the property situated and known as Suburb H; and
(b)Simultaneously, to enable the father to refinance any mortgage secured against Suburb H in order to remove the mother as a party to, and be released and discharged from any liability in respect of such mortgage.
19.Within 30 days, the father pay to the mother the amount of $145,117.
20.It is declared that all debts owing by the mother to the father are satisfied and discharged as a consequence of these orders.
21.As between the mother and the father, each are declared the sole legal and beneficial owner of all other property, currently or beneficially owned by them, in their respective possession, within their sole or partial control, including but not limited to real property, superannuation entitlements, cash, funds held in bank accounts, debentures, motor vehicles, chattels, and interest in any trusts or estates.
22.The mother and the father each irrevocably indemnify the other against all liabilities held in their name, or jointly with a third party, including but not limited to mortgages, credit-cards, personal loans, overdraft, tax liabilities, unpaid school-fees, rates, utilities, and Afterpay.
23.In the event that either party shall fail, neglect, or refuse to execute any document, deed or instrument to give validity and effect to these orders, then upon the other party filing an affidavit setting out such failure, neglect or refusal, a judicial registrar or deputy registrar of this Court is hereby appointed pursuant to s 106A of the Act to execute any such deed, instrument or document in the name of the party who defaults, and to do all such things necessary to give validity to the operation of the deed, instrument or document.
Other
24.In the event any party seeks a costs order in their favour, any such application is to be filed and served within 28 days of the date of these orders, and in the event no such application is filed, there shall be no order as to costs.
25.All extant applications be otherwise dismissed.
THE COURT NOTES THAT:
A.Pursuant to s 90ST of the Act, these orders are intended to finally determine the financial relationship between the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Self & Bachman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are parenting and property proceedings between the Applicant Mother, Ms Self (“the mother”) and the Respondent Father, Mr Bachman (“the father”). There is one child of the relationship, X, born in 2011 (“the child”). X is now 11 years old.
It is common ground that the parties were in a de facto relationship. Although there is some dispute as to the commencement of the de facto relationship, it is accepted that the relationship existed between 2011 and March/April 2016. The father contends that the relationship was for a period of 4 years 10 months. The mother contends that the relationship commenced in 2010, with cohabitation commencing in 2011. These differences are not material to the disposition of these proceedings.
It is a perplexing and melancholy feature of this case that it was undisputed both parents have had a warm and loving relationship with the child, both have good parenting skills up to a point, and, subject to some events in 2022, which are discussed later, there are no risk factors, apart from incurable and entrenched parental conflict. As explained in more detail later in these reasons, the parties have demonstrated a clear inability to communicate constructively to assist each other and the child, and appear to have looked for disagreement at almost every opportunity. This conflict has hung like an unmoving pestilential cloud over the life of the child.
The proceedings have a somewhat extraordinary procedural history, also explained later in detail. But, it is helpful at the start to summarise briefly what the parenting issues were by the time final submissions were completed on 11 August 2022.
It should also be noted that the father was self-represented at all material times, save for a brief period of representation by reason of an order made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) for the purposes of cross examination of the mother.
A trial took place in February 2021. In dispute primarily were the allocation of parental responsibility, and practical questions about the time the child should spend with each parent, together with property adjustment. After this hearing, which became the first segment of the trial, there was compelling evidence that the child should spend up to equal time with each parent, subject to logistical and practical issues about transition between the father’s home at G Street, Suburb H (“Suburb H”), and the mother’s home at J Street, Suburb D (“J Street”). But, before judgment could be delivered, at least nine further applications were filed by both parties, including contravention applications by the father.
The child ceased spending time with the father in accordance with interim parenting orders. Further hearing days were eventually allocated in July 2022. By the end of final submissions on 11 August 2022, the father had taken the position that he should spend no time with the child until the commencement of Term 3, 2023. He claimed this was because his relationship with the child had been destroyed by the mother making false allegations against him, and the failure of the Court to deal with his contravention applications in a timely manner.
Accordingly, despite the Court’s original inclination to make orders for the child to spend either equal or substantial and significant time with his father as soon as possible, and the expressed wishes of the child to do so, the father refuses to spend time with the child at present, even supervised, and proposes he and the child only have contact by electronic means until Term 3, 2023. As explained later, this position has consequences not only for the questions of allocating parental responsibility but also for the disposition of the numerous applications made since February 2021. Indeed, the father filed a further application on 6 September 2022. The numerous applications are discussed further below at [151]–[182].
The property dispute received less attention from the parties over the course of the hearing days. At the hearing in July and August 2022, neither party modified their proposals for property adjustment, except that the mother sought an increased payment from $300,000 to $500,000, as explained in more detail later.
The circumstances of this case also prompt several further introductory comments. Both parents presented as somewhat piteous, careworn, and exhausted by years of warfare. The level of antipathy and distrust between them was palpable. These factors conspired to devalue and distort their evidence and credibility. Neither party presented as entirely satisfactory witnesses. Both tended to overstate their positions. To the extent necessary, I will indicate in the course of these reasons where I prefer the evidence of one over the other.
BACKGROUND
The father was born in 1962 and is currently 60 years of age.
The mother was born in 1966 and is currently 56 years of age.
The father and mother are both self-employed.
The mother and father were both married before the commencement of their de facto relationship and have children from their previous relationships.
The father has three children from his previous marriage: Mr L, Ms M, and Mr N, who have all reached majority. The mother also has three children from her previous relationship: Mr P, Mr Q, and Mr R, who have also all reached majority.
In early 2009, the mother purchased a property in Suburb K (“the Suburb K property”) for $2,275,000 using the proceeds from the sale of a property in Suburb O (“the Suburb O property”).
The mother and father commenced their relationship in around 2010, and the mother became pregnant with the child in late 2010.
At the time, the father owned S Street, Suburb T (“Suburb T”).
The parties commenced cohabitation in 2010/2011. They planned to renovate and expand the Suburb K property. However, the local council rejected their plans, and the property was sold soon after the purchase of J Street. The evidence did not clearly disclose a date for this sale.
In June 2011, the mother purchased J Street for $1,810,000 plus $91,000 in stamp duty. The father contributed the sum of $91,000 for a five percent deposit, although as explained later, this was repaid by the mother. This property is in the mother’s sole name. It has been renovated several times. The mother estimates that she spent at least $542,208 on the first round of renovations for this property. As explained later, the father lent money to her for a second renovation.
The child was born in 2011.
In September 2011, the parties and their children moved into J Street.
In early 2012, the parties purchased Suburb H registered as tenants in common with a 90/10 split in favour of the father. The evidence showed that the entirety of the purchase cost was funded by a loan to the parties jointly, secured against the property. The mother managed holiday rental arrangements for this property until late 2016.
In around 2013 or 2014, J Street underwent a second round of renovations, as remedial work was required. The mother states that she contributed between $40,000 and $60,000, whilst the father contributed $300,000, although ultimately she agreed the figure was $312,835.
In December 2015, the mother’s youngest son, Mr R, reported to V School that the father was physically abusive towards himself and the child at home. This was not reported to FACS at the mother’s request. The evidence did not disclose any further action in relation to this allegation.
In February 2016, the father purchased U Street, Suburb D (“U Street”) for approximately $895,000.00. The purchase was funded by a mortgage of approximately $796,000 and cash held by the father. At the time of hearing, it was common ground that this property is currently rented out for $790 per week, with rental income being retained by the father.
The parties separated in March or April 2016. They remained living separated under the same roof at J Street until May 2016, when the father left the home, and moved to U Street.
The parties attended counselling with Mr W from Y Counselling after proceedings commenced in April 2016. Once orders were made by the Court for a single expert to be appointed, Mr W was appointed as the single expert.
In 2017, the child commenced occupational therapy sessions with Ms Z due to issues with his handwriting. Ms Z ultimately ceased the occupational therapy sessions due to ongoing disputes between the parents.
In mid-2018, the father moved to live in the Suburb H property.
In July 2020, the father booked an appointment for the child to undergo a surgical procedure without the mother’s consent, although she later agreed to it.
On 20 August 2020, Dr AA, the child’s general practitioner, informed the parties she would no longer provide care for the child due to the parties’ ongoing disagreements in relation to medical care.
In December 2020, Dr CC of BB General Practice informed the mother that he would be unable to continue the child’s care, due to the father’s failure to partake in follow-up calls regarding the child’s treatment. The mother engaged Dr B of C Physicians shortly thereafter.
From January 2021, the child began to attend upon Dr DD, a treating medical specialist. Both parties attended appointments with the child, however there was an incident on 10 May 2021 where there was a disagreement over the payment of a consultation fee. Dr DD also recommended a treatment plan for the child, which could take either ten days, or three consecutive weekends. The mother asserted that the father unilaterally determined that the child would undergo the ten-day plan, and restructured his commitments to ensure he could care for the child without consulting her.
The management plan clashed with an OT assessment appointment with Ms EE at FF Occupational Therapy. The mother arranged for the appointment to be delayed, however the father insisted that the appointment be maintained.
As explained below, the first segment of the trial commenced on 2 February 2021.
On 28 June 2021, the child resisted spending time with the father, attempting to run back into the mother’s home, apparently to delay changeover. It appears that from this time, the child began to experience heightened anxiety in connection with spending time with his father.
On 2 July 2021, the parties were informed by Dr B that the child was presenting with regular stress, sadness and depression, and frequent discomfort in response to the parental conflict. The child also expressed a clear desire to speak with a psychologist. The Independent Children’s Lawyer (“ICL”) sought to relist the matter shortly thereafter. The father opposed the child’s wish to speak to a psychologist, consenting only for the child to see a psychiatrist.
On 4 August 2021, the child grabbed a large kitchen knife and threatened to kill himself if forced to stay at the father’s home the following weekend. On 6 August 2021, with changeover due to occur on the same afternoon, the child threatened to stab himself with a pair of scissors and jump out a window if forced to go to the father’s home. The child ceased spending time with the father in accordance with existing orders after this date for some months.
The child spoke with the ICL on 9 August 2021.
Dr B wrote to the ICL on 19 August 2021 expressing strong concerns for the child’s mental health and safety. The matter was relisted for 25 August 2021. This is discussed below, under “Procedural History.”
Orders were made appointing Dr GG as the child’s psychologist. Unfortunately, following the child’s first appointment on 2 September 2021, Dr GG declined treatment due to the persistent conflict between the parties. Dr B also advised the mother that he was no longer willing to treat the child for the same reason. Dr B was reengaged after I made orders on 24 September 2021 for the mother to have interim sole parental responsibility concerning the child’s psychological presentation and treatment.
On 24 September 2021, Dr B prepared a Mental Health Care plan for the child, detailing his extreme anxiety. This was later updated on 29 October 2021 with a recommendation for further sessions with the child’s psychologist, Mr F.
On 27 October 2021, the father attempted to collect the child from school for changeover, however the child refused to leave with him.
On 3 December 2021, Dr B again advised the parties that he would be unable to continue to treat the child. His stated reason was that his medical legal indemnity providers advised him to cease treatment due to the father’s questioning of his clinical judgment and impartiality.
On 25 February 2022, the child recommenced spending time with the father. However, the child again ran away to avoid changeover on four occasions in early to mid-2022.
Between 27 September 2021 and 5 May 2022, the child attended upon Mr F on a weekly to fortnightly basis. However, Mr F ceased treatment on 5 May 2022, stating that the therapeutic relationship between him and the child had been compromised due to the conflict between the parties.
In May 2022, an Apprehended Domestic Violence Order (“AVO”) was taken out for the child’s protection following an incident at changeover at the child’s school, during which the police were called. This incident is described in more detail below.
PROCEDURAL HISTORY
The mother commenced proceedings on 28 April 2016 when she filed an Initiating Application seeking interim and final parenting orders.
The father filed a Response on 25 July 2016 seeking both parenting and property orders on an interim and final basis.
It is unnecessary to record the procedural history between then and June 2019, except to note that both parties filed a number of interim applications seeking parenting and financial orders, and an ICL was first appointed on 8 August 2018.
The matter first came before me on 19 June 2019, where orders were made for a new ICL to be appointed, in circumstances where the previous ICL had ceased acting. Ms HH became the second ICL on 15 July 2019. From this time, it is necessary to set out the procedural history in some more detail.
On 4 September 2019, Ms HH filed a Notice of ceasing to act, following accusations by the father that she interfered with appointments he had made with a proposed alternative single expert. Mr Michael Tiyce was appointed as the current ICL on 13 September 2019.
On 6 November 2019, orders were made appointing Dr KK as the single expert and for the parties to cooperate to enable the completion of any interviews required for the purposes of a Family Report.
On 6 July 2020, orders were made permitting the parents to engage with Dr LL in accordance with medical advice given by the child’s general practitioner, Dr B. The matter was also listed for final hearing commencing on 1 February 2021 with an estimate of six days, and trial directions set.
On 7 August 2020, the father filed an Application in a Case (later amended on 10 August 2020) seeking new interim parenting orders. In her Response filed 27 August 2020, the mother sought sole parental responsibility in relation to the child’s medical care. The ICL advised the court on 1 September 2020 that it may be preferable for these interim applications to be dealt with after hearing the evidence at final hearing.
Further orders were made on 9 October 2020 permitting the parties to take the child to such medical appointments as recommended by the FF Occupational Therapy.
An order was made pursuant to s 102NA of the Act on 24 November 2020, ensuring the father would be represented for the final hearing for the purposes of cross-examination of the mother. All outstanding applications were stood over to the first day of final hearing.
At the compliance hearing on 18 January 2021, further orders were made for disclosure and extensions of time for the filing of documents.
The final hearing commenced on 1 February 2021 to determine both parenting and property issues. The hearing did not finish within the allocated time. Oral submissions were received from the mother. The father filed and served written submissions on 23 February 2021. The mother then provided her response to the father’s written submissions on 1 March 2021. On 10 March 2021, the ICL confirmed they did not wish to provide a response. Thereafter, judgment was initially reserved.
Events following the hearing in February 2021
Extensive disruptions to the judicial calendar took place in 2021 by reason of the Covid-19 pandemic. Then, whilst judgment was reserved and in draft, the father filed an Application in a Case on 31 May 2021, supported by an affidavit which ran to some 79 pages. In summary, by this application, the father sought to rely upon this material as part of his evidence in the trial. Thus, his application, in part, was to reopen the evidence.
The father then filed a further Application in a Case on 16 July 2021, although the orders sought were in the nature of a contravention application.
Both parties then filed competing Applications in a Case, the father on 10 August 2021 and the mother on 27 August 2021. The father sought an extensive range of detailed orders concerning the child’s medical care, including orders compelling the mother to take the child to a sleep study and an Ear Nose and Throat specialist, and for the father then to take the child to a number of other medical practitioners, with orders about the child’s general practitioner. The mother sought an urgent listing and an order for sole parental responsibility in relation to the child’s medical care.
The proceedings were then listed on 25 August 2021 following the incident outlined above at [39], where the child threatened self-harm. The ICL made submissions to the effect that the proceedings could not be finalised until the child was referred to a psychologist. Orders were made for the child to attend upon Dr GG. At that point, it appeared to be common ground that further expert evidence from Dr GG should be procured.
It was the Court’s expectation that the orders of 25 August 2021 would stabilise the proceedings, permitting an orderly progression to the delivery of judgment. But, on 22 September 2021, the mother made an application for a further urgent relisting because the proposed clinical psychologist had withdrawn and refused to offer her services any further because of the conflict between and conduct of the parties. She sought an interim order for sole parental responsibility in her favour.
The proceedings were then relisted on 23 September 2021, in the midst of the final hearing of another matter. Orders were made giving the mother leave to issue a subpoena to the child’s general practitioner and allocating to her sole parental responsibility for medical issues on an interim basis.
On 1 October 2021, the father filed an application for review of a judicial registrar’s decision made “on 23 or 24 September 2021” refusing to allow the filing of an enforcement application by the father.
On 10 November 2021, the father filed a further Application – Enforcement, stating that the mother had failed to comply with 40 nights of parenting orders from 2016 onwards. On that same date, the mother also filed a further Application in a Proceeding seeking parenting orders. The mother requested that the father’s time with the child under the orders made on 26 July 2021 be suspended pending further order, and that the father spend time with the child as agreed between the parties in writing. In her affidavit, she stated that the child had consistently expressed significant resistance to spending any overnight time with his father. The mother amended this application on 13 December 2021 to seek sole parental responsibility and to keep the father informed of all major decisions concerning the child. The mother requested that the father’s time with the child under the orders made on 26 July 2016 be suspended pending further order of the Court, and proposed specific times for the father to spend time with the child. She also sought for the father to spend time with the child at any other time as agreed between the parties in writing.
On 16 November 2021, McGuire J granted the application for review and consolidated all outstanding applications.
On that same date, the father contended he made a report to the Department of Communities and Justice (“DCJ”). He asserted that he was informed on 24 November 2021 that this was considered a child protection matter, and it was a form of child abuse by the mother. The father later issued a subpoena on 15 February 2022 to DCJ.
On 14 December 2021, I made orders granting leave for the father to file his Application – Enforcement. Orders were made for this application and the father’s enforcement applications to be listed before Schonell J for interim hearing, which took place on 16 December 2021.
On 21 December 2021, orders were made by his Honour Justice Schonell permitting the mother to place the child’s name on waiting lists for secondary schools, in anticipation of the child commencing secondary school in 2024. His Honour ordered each parent to secure the enrolment of the child at a secondary school of their choosing, as well as suspending previous interim orders for time with the father. An order was made for the father to spend time with the child during the 2021/2022 Christmas School Holidays.
On 28 January 2022, the father filed an Application – Contravention contending failure by the mother to facilitate time between the child and the father.
On 18 February 2022, an order was made by a senior judicial registrar transferring the father’s contravention application to Division 1. The mother filed written submissions on 18 March 2022.
On 15 March 2022, the father filed a further Application – Contravention. I made an order on 21 March 2022 for the proceedings to be stood over to 23 March 2022.
On 23 March 2022, I made an order for the parties to file and serve any submissions in writing in support of the above applications. Orders were then made on 28 March 2022 reserving judgment again and attempting to bring the matter to finality.
On 21 April 2022, I made an order listing this matter on 7 July 2022 with an estimate of one day, to receive any further submissions by the parties in relation to their proposals for final orders. As the above description of the evolution of the proceedings demonstrates, this listing became a resumption of the final hearing, and the parties approached the further hearing in this way. Due to changes in the judicial calendar, this listing was later moved to 20 and 21 July 2022 as it was anticipated the matter would take additional hearing time.
An order was made by a senior judicial registrar on 29 April 2022 transferring the father’s contravention application filed 15 March 2022 to Division 1.
Despite the orders of Schonell J on 21 December 2021, the mother filed an Application in a Proceeding on 31 May 2022 seeking interlocutory parenting orders and to be permitted to select the secondary school for the child, commencing in 2024. She then filed a further Application in a Proceeding seeking urgent parenting orders for the father’s time with the child (under the interim parenting orders made on 26 July 2016) be suspended pending further order of the Court. This was following an incident at changeover at the child’s school, which resulted in an AVO being taken out against the father for the child’s protection. The mother also requested that the parties and child engage in family therapy with Professor MM. She requested the parties share the costs of the family’s participation in family therapy, and sought costs.
An order was made on 27 June 2022 by a judicial registrar ordering DCJ and NSW Police Service to produce documents pursuant to s 69ZW of the Act.
The second segment of final hearing was held on 20 and 21 July 2022. The matter failed to conclude within that time, so was adjourned to 11 August 2022 for final submissions. On 21 July 2022, interim orders were made for the mother to have sole parental responsibility for the child in order to select a secondary school for the child. Judgment was then reserved for a third time, following final submissions on 11 August 2022.
The father then filed a further Application in a Proceeding on 6 September 2022, seeking further leave to reopen his evidence and orders permitting the use of documents in proceedings in other courts. This application was heard on 19 October 2022, as explained later in these reasons.
ISSUES IN DISPUTE
Parenting
As already indicated, the nature of the parenting dispute changed significantly between the proceedings first commencing, and by the conclusion of final hearing on 11 August 2022. Initially, a main area of disagreement lay in the allocation of parental responsibility, with the mother seeking sole parental responsibility with an ancillary order requiring her to consult with the father on any major long term decisions.
The father continues to press an order for shared parental responsibility, proposing the mother have sole parental responsibility concerning the child’s psychological health, and for him to have sole parental responsibility concerning the child’s physical health, with the parties to have equal shared parental responsibility otherwise.
Initially, the other key area of dispute was the time that the child was to spend with each parent. As at February 2021, the mother sought orders for the child to spend four nights per fortnight with the father, whilst the father sought week about time. By the conclusion of the hearing on 11 August 2022, the mother pressed for an order that the child spend time with the father as decided by the parties, or otherwise in accordance with the child’s wishes. If the latter, the mother sought that this be limited to no more than four nights per fortnight. As already indicated, the father’s position changed significantly. He no longer proposed to spend any time with the child until Term 3, 2023, supervised or unsupervised, except electronically. The consequential issue was then what should happen from Term 3, 2023 onwards.
Property
The broad issue is what approach should be taken in the property division. The father proposed what seemed to be a forensic accounting exercise, whilst the mother contended that it was more appropriate for the property to be determined holistically.
In terms of the property pool itself, there were a number of issues raised, including:
(a)The valuation of the J Street property and the Suburb H property;
(b)Whether alleged loans owed by the mother to the father should be included in the asset sheet as a liability or asset, and are repayable;
(c)The value of the father’s motor vehicle;
(d)The value of the mother’s household contents, her artwork, and jewellery;
(e)The determination of various chattels which the father seeks to be added back; and
(f)Whether various work liabilities held by the father should be included, together with current liabilities accrued post-separation.
Orders sought
The mother’s proposed orders are set out below, in Annexure A.
The father’s proposed orders are set out below, in Annexure B.
The ICL’s proposed orders are set out below, in Annexure C.
EVIDENCE
The parties relied upon a multitude of documentary material, including affidavits running to hundreds of paragraphs and lengthy notices to admit facts. By the end of the trial on 11 August 2022, much of it had become otiose because the father did not propose to spend time with the child until Term 3, 2023. The evidence also traversed a great many issues which had marginal, if any, relevance. In this judgment, I refer only to material to which I was taken in the evidence or submissions, and which had relevance to the issues as they ultimately crystallised.
It should also be said that, in light of the disordered and distended way in which the final hearing evolved, with delivery of judgment interrupted repeatedly by further applications, it is desirable to set out the material relied upon by each party during the first set of final hearing dates in February 2021, and the second set in July and August 2022.
The mother relied on the following documents:
(1)Affidavit of Ms Self filed 3 October 2019;
(2)Affidavit of Ms Self filed 22 January 2021 (from paragraph [292] onwards);
(3)Financial statement of Ms Self filed 4 April 2019;
(4)Affidavit of Ms NN filed 25 July 2016;
(5)Expert Report of Dr KK filed 30 April 2020;
(6)Expert Report of Mr W filed 15 August 2020;
(7)Report of Mr OO filed 1 November 2016;
(8)Affidavit of Ms Self filed on 31 May 2022;
(9)Application in a Case filed on 1 June 2022;
(10)Affidavit of Ms Self filed on 22 June 2022;
(11)Application in a Case filed on 27 June 2022;
(12)Amended Response to Application in a Case filed on 9 July 2021;
(13)Affidavit of Ms Self filed on 8 July 2021;
(14)Affidavit of Ms Self filed on 9 July 2021; and
(15)Mother’s tender bundle (schooling) dated 19 July 2022.
The father relied on the following documents:
(1)Father’s consolidated trial affidavit filed 9 December 2019 (without exhibits);
(2)Tender Bundle A – Parenting;
(3)Tender Bundle B – Property;
(4)Father’s signed but unsworn statement/affidavit signed 21 January 2021;
(5)Father’s CP Bundle child and parenting bundle to the 21 January 2021 document;
(6)Father’s PF Bundle financial and property bundle to the 21 January 2021 document;
(7)Affidavit of Mr L filed 14 November 2018 (without annexures);
(8)Annexures to Mr L’s affidavit;
(9)Affidavit of Ms M filed 25 July 2016;
(10)Affidavit of Mr N filed 12 November 2018;
(11)Affidavit of Ms PP filed 21 November 2016;
(12)Affidavit of Ms RR filed 21 November 2016;
(13)Application in a Case filed on 31 May 2021;
(14)Affidavit filed 21 June 2022 with exhibits;
(15)Father’s written submissions 21 April 2022 Order 4;
(16)Proposed Final Orders;
(17)Tender Bundle 1 - Further documents tendered in support of re-opening;
(18)Tender Bundle 2 – father’s tender bundle or exhibited documents;
Other documents
(19)Father’s 15 September 2016 Financial Questionnaire;
(20)Father’s Parenting Questionnaire 14 June 2019;
Notices to admit
(21)Father’s 16 June 2017 Notice to Admit (including documents 1 to 11) and mother’s Notice Disputing Facts Pursuant to Rule 11.08 that cover:
(a)Paragraphs 1 – 16: 2012 loans made to Ms Self of $182,000
(b)Paragraphs 17 – 95: loans made to Ms Self of $209,000
(c)Paragraphs 96-98: $11,440 home office rent
(d)Paragraphs 99 – 107: G Street Suburb H
(e)Paragraphs 108 - 116: some parenting issues that include May 2016 police visit, child care and Catholic scripture
(f)Paragraphs 117 – 125: Family Court proceedings on 28 November 2016 and the delegate of the OLSC findings.
(22)Father’s 3 May 2018 Notice to Admit to which there was no response from the mother that covers:
(a)Mr TT tradesperson payments and associated home improvement payments.
(b)Mr Bachman’s other renovation payments and home improvements arising from Mr TT’s work.
(c)Loan to Self Family Trust.
(d)UU Company tradesperson payments and associated home improvement payments.
(e)Mr Bachman’s other renovation payments and home improvements arising from UU Company’s work.
(f)Mr Bachman’s other Suburb D residence contributions.
(23)Father’s 19 October 2020, Notice to Admit facts re property and financial and mother’s response;
(24)Documents F1 to F34 referred to in the Notice;
(25)Documents CP1 to CP113 referred to in the Notice;
(26)Father’s 9 November 2020 Notice to Admit facts re Reports and Mental Health and mother’s 2 January 20201 response;
(27)Documents E’s referred to in the Notice;
Material from second set of final hearing dates
(28)Application in a Case filed 31 May 2021;
(29)Father’s affidavit filed 21 June 2022 and exhibits;
(30)Father’s written submissions 21 April 2022 Order 4;
(31)Proposed final parenting orders;
(32)Tender Bundle 1 – Further documents tendered in support of re-opening;
(33)Tender Bundle 2;
(34)Contravention Application filed 28 January 2022;
(35)Father’s affidavit filed 28 January 2022;
(36)Contravention Application filed 15 March 2022; and
(37)Father’s affidavit filed 15 March 2022.
The Independent Children’s Lawyer referred to the following material:
(1)Single Expert Report of Dr KK dated 30 April 2020;
(2)Single Expert Report of Mr W dated 15 August 2017; and
(3)Child Responsive Memorandum of Mr OO dated 1 November 2016.
Throughout the course of the final hearing and the subsequent three-day hearing, an extensive number of documents were marked as exhibits. It is not necessary for the purposes of this judgment to set them out here.
Both parties were cross-examined. I referred earlier to my unfavourable impressions of each as a witness. I add here the following comments. The mother did not answer questions directly. The father appeared to be fixated with the conduct of the mother, and his focus appeared to be upon punishing her for false allegations. This had the effect of distorting his evidence.
Expert evidence
The family report by Dr KK dated 30 April 2020 was not marked as an exhibit itself during the proceedings, but was relied upon by the mother and the ICL. The father raised objections to the report despite its recommendations being, broadly speaking, consistent with his proposal of shared parental responsibility at the time.
In light of the position now taken by the father, the relevance of the expert evidence has become attenuated. However, since it retains some relevance to the allocation of parental responsibility and what orders, if any, for time with the father should be made for the period commencing in Term 3, 2023, it is helpful set out the recommendations.
Dr KK noted the report was based on the material filed by the parties up to that point in the proceedings, the Child Responsive Program Memorandum dated 1 November 2016, a Family Report of Mr W dated 8 August 2017, some documents produced on subpoena, and the interviews conducted, as set out at the commencement of his report. Dr KK recorded the observations made by him as a result of conduct interviews with the parents, the child, and the child’s half siblings, Mr P and Mr R.
Dr KK made recommendations in paragraphs [82]–[89] of his report to the following effect:
Equal shared parental responsibility:
(a)Dr KK was in favour of equal shared parental responsibility continuing. However, he recommended that in light of the parents’ significant difficulties in reaching agreement on schooling and the child’s health care practitioners, the Court may wish to consider delegating financial decision making and responsibility for medical needs. The report also recommended that Court would need to specify the GP, medical centre and indicate that if unavailable, the GP could nominate his/her delegate;
(b)It was recommended that the Court resolve the parents’ disagreement over the choice of the child’s high school, as neither parent was willing to communicate. In the event that the high school decided upon is a private school, the report recommended that orders would need to stipulate how enrolment fees and ongoing expenses would be paid.
Equal time: substantial and significant time
(c)Dr KK recommended that the child could transition to an equal time arrangement, so long as he does not spend more than three or four consecutive days per week with one parent. In terms of a time arrangement at this point, the recommendation was that the child would benefit from spending half of each week with each parent and siblings, rather than a full week with one parent. The child could transition to an equal time arrangement on a “week-about” basis by the time he commences high school;
(d)However, such a recommendation was predicated on the father providing an undertaking to the Court that the only nights he will take the child to his Suburb H property would be Friday and Saturday nights, or on school holidays. In the event that evidence was obtained to indicate that the father was not fulfilling this undertaking, and that the child was travelling unnecessarily on school nights (inclusive of Sunday nights), care arrangements should shift to a majority/minority schedule in favour of the mother.
Other Recommendations
(e)Electronic communication between the child and non-resident parent at the time would need to be implemented and positively promoted by both households;
(f)A mediated communication process should recommence via an accredited Family Dispute Resolution (“FDR”) practitioner, so both parents could achieve more effective communication regarding the child. Dr KK suggested that the Court make orders directing the parents into FDR for any parenting dispute, for FDR to have a directive role in resolving disputes, and that returning to Court require a report from that FDR practitioner expressing their opinion that FDR had completely broken down. The rationale for any potential return to Court would need to be considered “on a reportable basis”;
(g)The parents should do all things necessary to ensure the other parent is informed of the children’s education and health needs. These should include both parents receiving yearly reports, notices, school photos, and upcoming events.
I will otherwise refer to the content of the report as necessary during the course of these reasons.
Dr KK was cross-examined on 3 February 2021.
I note here, however, that the father consistently maintained objection to the report of Dr KK, or at least parts of it. He did so by extensive reference to what he claimed were other expert opinions, available in the public domain and social scientific material. It may be open to the Court to receive such material by reason of the provisions of Division 13A of Part VII. However, it is unnecessary to determine this question. Even assuming such material is admissible, the proposal now made by the father makes a detailed assessment of such evidence unnecessary, including that of Dr KK, whose recommendations about time with each parent have been overtaken by the changes in the father’s positon. His recommendations about electronic communication between the father and child, and for a mediated communication process between the parties have continued relevance, but were uncontroversial.
I also record here that neither at the resumed final hearing in July 2022 nor in submissions made in August 2022 did either party or the ICL contend that the Court should receive any updated expert evidence in relation to the child. In light of the continued applications by the parties, the ultimate position taken by the father in particular, and the need to finalise the litigation in the interests of the child, I also accept it is most desirable to proceed to finalise the proceedings without any further expert evidence.
The valuer, Mr WW, was also cross-examined. I accept his evidence.
The child
The child attends XX School and is progressing reasonably well following a fine motor skill development delay in Year 1, for which he was treated by an occupational therapist as advised by his school teacher. The child was also treated at his primary school by Ms Z, an external provider. He now attends upon a psychologist, Professor MM. The mother sought orders for the father to participate in family therapy with Professor MM, however this has not materialised.
PARENTING DISPUTE
LEGISLATIVE FRAMEWORK
Part VII of the Act deals with parenting orders. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s 61DA(2)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have equal shared parental responsibility (s 61DA(4)).
Neither party, nor the ICL, proposed an order for equal shared parental responsibility. The father’s proposal for shared parental responsibility in specified respects is not an order for equal shared parental responsibility, and would not engage s 65DAA: Tibb v Sheean (2018) 58 Fam LR 351 (“Tibb”) at [68]–[69]. No order will be made for equal shared parental responsibility. In light of the ongoing conflict between the parties, I am satisfied such an order would not in the child’s best interests.
A more limited question remains to be determined, that is, whether the allocation of parental responsibility should be shared along the lines proposed by the father. This question requires an assessment of the considerations informing the conclusions about the best interests of the child.
I turn then to the best interests of the child. These are the paramount consideration under s 60CA of the Act. The best interests of the child are determined by considering the statutory factors specified in s 60CC of the Act, in light of the objects of Part VII set forth in s 60B. The must consider each statutory consideration, even if express discussion is not necessary: Tibb at [83]–[85].
PRIMARY CONSIDERATIONS
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act, which are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407. A “meaningful relationship” is one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26]; McCall v Clark (2009) FLC 93-405 (“McCall”) at [115]. A “prospective approach” is preferred, requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]; Sigley & Evor (2011) 44 Fam LR 439 at [135].
There was no dispute that the child would benefit from a meaningful relationship with both parents. The question, as it eventually emerged from the fraught path of the litigation, was how the child’s prospective relationship with his father could be maintained, in light of the father’s adherence to his position that he would not spend time with the child until Term 3, 2023.
Section 60CC(2)(b), “abuse” and “family violence”
The evidence and submissions of the father made clear that he is outraged by the allegations made against him by the mother, and by what he characterises as her consistent negative narrative about him. One source of considerable offence for the father lay in allegations and a complaint made by the mother to his professional governing body, the YY Association.
It is a truly sad feature of this case that incidents of anger and aggressive conduct have arisen substantially since the hearing in February 2021, not before. At the hearing in February 2021, neither party contended that there were risk factors preventing the child spending overnight time with both parents.
As noted above, by August 2022, this had changed. The mother claimed there were incidents in June and October 2021 in which the father’s behaviour caused the child to fear him. As mentioned above, on 28 June 2021, the child expressed resistance to spending time with the father. The mother explained that the child had attempted to run back into their home. On the way to changeover, the child cried, then expressed fear that the father would see that he had been crying. Then, on 27 October 2021, when the father attended the child’s school for changeover, the child refused to leave with him. The mother noted that the child explained to a teacher that “he was scared he would get yelled at” and that he did not wish to speak to his father. She reported that the child was in a highly agitated and distressed state, and decided it was best that he return home. I do not accept the mother’s characterisation of either incident. The behaviour of the child just as likely betrays distress at the conflict between the parents, rather than any attitude to the father specifically.
On 8 April 2022, there was an incident at changeover near the child’s school. The mother deposed that as she was saying goodbye to the child, the father began to verbally abuse her in the child’s presence. The child then refused to go with the father, leading the father to attempt to grab the child. He ultimately went with the father, however the mother found the child back at her home when she returned 15 minutes later, as the child had tested positive for Covid-19, and the father no longer wished for the child to spend time with him.
Finally, on 27 May 2022, there was another incident at changeover. The child had been collected from school by the father, however ended up running away and back to the mother’s house. The mother convinced him to return to school, where the father was waiting. She stated that the father began to yell at the child, telling him he had lied to the father on Wednesday night, as the child had supposedly promised to go with the father. This caused the child to be distressed as the father labelled him as a “liar”. He swore and told his father to “shut up.” The father ultimately grabbed the child’s arm to try and pull him away from the mother, which led to the child biting the father on the arm. Police were ultimately called, with a provisional AVO being taken out for the child’s protection.
This clearly compounded the father’s sense of outrage. He was convinced that the mother had alienated the child from him, contending his relationship with the child was “destroyed” by false allegations by the mother. It should be recorded here that when the proceedings were before the Court on 19 October 2022, it was undisputed that the AVO had been withdrawn and dismissed. No orders against the father were made.
I conclude that it is likely the conflict between the parents lay at the heart of the child’s responses. With respect to the father, I consider these incidents to be out of character, and likely engendered by the father’s frustrations with the mother, and more broadly this litigation.
In any event, the weight of all this evidence, and s 60CC(2)(b) as a consideration, is now tempered, since the father does not propose to spend any time with the child until Term 3, 2023. For the purposes of making final parenting orders supported by these reasons, the more persuasive factual matter is that up to February 2021 neither party pointed to risk factors for the child in the care of the other party.
The hostility between the parents is a serious problem for the child. It is unfortunate that the mother impugned the father in his professional life. This was unnecessarily provocative and has clearly exacerbated the extreme level of conflict between the parents without obviously achieving anything beneficial for the child. Indeed, it appears to have had the effect of distracting the father from parenting the child to focus on what he perceives as the need to rehabilitate his reputation.
Since the father will not spend face to face time with the child until Term 3, 2023, I do not find the child is at unacceptable risk in the care of either parent at present.
Further, to be clear, I am satisfied that the child would not be at any unacceptable risk in the care of his father, if face to face time resumed in Term 3, 2023 in accordance with the child’s wishes.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as set out below:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The ICL and the mother argue the child’s views should be given weight. I give weight to the child’s desire for the parental conflict and litigation to end. A report of the child’s therapist, Professor MM, was tendered into evidence. Professor MM noted in that report that the child currently does not wish to spend time with the father, but acknowledged that this might change in the future, for instance by having dinner with the father once a week. I give weight to the child’s views that he would like to spend time with the father in accordance with his wishes.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
The child clearly has had a warm and constructive relationship with each of his parents. I find that the events of the last eighteen months have undermined his relationship with the father to some extent.
But, I am satisfied the child continues to love his father and wants to maintain a relationship with him.
I accept the mother has at times made negative commentary on the father. To the extent the child’s view of the father has diminished, the father must take also some responsibility. However, I am not at all satisfied the child’s relationship with the father has been “destroyed”.
(ii) other persons (including any grandparent or other relative of the child);
I am satisfied the child has a good relationship with his half siblings and extended family on both sides.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
Both parents have clearly taken the opportunity to make decisions about major long-term issues in relation to the child. In fact, it has often been the extent to which they both wish to participate in making decisions that has caused conflict between the parties, notably in relation to the child’s medical treatment and the selection of a high school.
(ii) to spend time with the child; and (iii) to communicate with the child;
Until the father changed his position in July 2022, each parent took the opportunity to spend time with the child, although I take account of disruptions to the child’s time with his father which have taken place since February 2021.
The parties both agree to an order for electronic communication with the child. I am satisfied that they have both taken the opportunity to communicate with the child.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Both parents have fulfilled their obligations to maintain the child. The mother has been the primary carer of the child since interim orders were made in 2016. There was no dispute that both parents have substantially fulfilled their obligations to maintain the child.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
The evidence showed that the child’s separation from the father will cause him some distress, but cannot be avoided until Term 3, 2023 at least because of the father’s proposal.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I infer the child will miss spending time with his extended paternal family.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
When the first segment of the hearing completed in February 2021, the practical difficulties of the child transitioning between the mother’s home at J Street, and the father’s home in Suburb H, especially during term time, were quite significant. The travel time between the two homes, especially on school nights, pointed to a conclusion that equal time may not be practicable. However, the father’s position now has neutralised the importance of these issues to a material extent, unless the Court is persuaded that from Term 3, 2023, parenting orders should be made according to a regime other than the child spending time with the father in accordance with his wishes. If the child begins spending time with the father from Term 3, 2023, practical difficulties may re-emerge, but could be resolved by reference to the child’s wishes.
For this reason, I have given careful consideration to the parties’ proposed orders for time, in the event the child begins spending time with the father in accordance with his wishes. If the child expressed a wish to spend time with the father, the mother proposed that it should be circumscribed and controlled by court order. Both parents proposed a regime for the child, during school terms, to spend four nights each fortnight from after school Thursday until before school Monday. The mother also proposed after school Thursday until 7.30pm in the second week. They also proposed half school holidays and time on special occasions with the father.
I am not satisfied that orders for the child to spend four nights each fortnight with the father are appropriate. I discuss this further below at [191].
(f) the capacity of:
(i) each of the child’s parents, to provide for the needs of the child, including emotional and intellectual needs
Apart from the awful conflict between the parents, both parents can provide for the child’s needs.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This is not relevant.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
There are no other factors asides from the ones already set out above which are relevant.
Section 60 CC(3)(h) then deals with factors to consider for Aboriginal and Torres Strait Islander children. These are not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
Again, apart from their inability to reign in their conflict, both parents have an appropriate attitude to the responsibilities of parenthood.
(j) any family violence involving the child or a member of the child’s family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b). I have made no findings of family violence. In light of this, s 60CC(3)(k) is irrelevant.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is preferable to make orders which are least likely to lead to the institution of further proceedings. The intensity of the parties’ mutual antipathy, which has been expressed largely through this litigation, strongly indicates that the litigation should finish and remain finished. I am satisfied the proposed orders are least likely to lead to further litigation.
(m) any other fact or circumstance that the court thinks is relevant.
At the date of delivery of this judgment, the following applications remain outstanding, apart from the parties’ applications for final parenting and property orders.
(a)Application in a Case filed by the father on 27 August 2019;
(b)Application in a Case filed by the father on 7 August 2020;
(c)Application in a Case filed by the mother on 27 August 2020;
(d)Application in a Case filed by the father on 25 May 2021;
(e)Application – Contravention filed by the father on 28 January 2022;
(f)Application – Contravention filed by the father on 15 March 2022;
(g)Application in a Proceeding filed by the mother on 31 May 2022;
(h)Application in a Proceeding filed by the mother on 22 June 2022; and
(i)Application in a Proceeding filed by the father on 6 September 2022.
It is appropriate to deal with them here. These applications can be divided into four categories. The first contains those applications for various parenting orders, being those filed on 27 August 2019, 7 and 27 August 2020, and 31 May and 22 June 2022. The second contains the father’s application to reopen the evidence filed on 25 May 2021. The third is comprised of contravention applications by the father on 28 January 2022 and 15 March 2022. The fourth is comprised of the application filed on 6 September 2022.
The applications in the first category seek various interim orders under Part VII. To the extent they seek parenting orders, the child’s best interests are the paramount consideration (s 60CA). They are “child related proceedings”, because “Proceedings” are defined in s 4 of the Act to include a “cross-proceeding or an incidental proceeding in the course of or in connexion with a proceeding.” They are all, at the very least, incidental proceedings to parenting proceedings under Part VII. Division 12A of Part VII therefore applies.
Section 69ZN sets out principles for conducting child related proceedings. These include the need to consider the impact of the proceedings on the child (s 69ZN(3)). The general duties of the Court in giving effect to the principles includes determining which issues in the proceedings require full investigation and which may be disposed of summarily. Section 69ZR(1)(b) and (c) grants the Court powers at any time to determine a matter arising out of the proceedings or make an order in relation to an issue arising out of the proceedings. These powers may be exercised by the Court on its own initiative (s 69ZP).
Moreover, in my view, these provisions in Division 12A fall within the definition of “family law practice and procedure provisions” as defined in s 67(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), being provisions made by or under the Act with respect to the practice and procedure of this Court (the Federal Circuit and Family Court of Australia (Division 1)). Section 67(3) of the FCFCOA Act imposes the following duties on the Court:
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
The overarching purpose and its objectives are set out in s 67(1) and (2) of the FCFCOA Act:
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
Note 1:See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
The provisions of Subdivisions B and C of Part VII of the Act (ss 69ZN–69ZR) must therefore be interpreted and applied in a manner which best promotes the overarching purpose and its objectives.
It also seems to me that in proceedings in which the best interests of a child are the paramount consideration, the achievement and promotion of the overarching purpose must also be directed to the child’s best interests.
After considering the first category of applications carefully, I am not persuaded any of them require separate determination. In other words, none of these applications seek relief or raise issues which can or should result in Court orders which have not been overtaken by, and would not properly be subsumed in, the final orders of the Court, made on the basis of these reasons. Accordingly, in applying the provisions of s 69ZN, I am satisfied the overarching purpose is best promoted by dismissing the applications in a summary fashion. The tortured history of these proceedings, the delay caused by the filing of the applications, and the final orders which will be made on the basis of these reasons, lead plainly in my view to orders disposing of these applications. Any further consideration of them would not support the efficient use of judicial resources, disposal of the Court’s overall caseload, or disposal of the proceedings in a timely and cost efficient manner, taking account of the unusual circumstances of the case. Nor would it contribute in any way to service the best interests of the child.
As to the second category, this application has now become otiose. In light of the numerous applications filed by both parties since May 2021, the evidence has effectively been reopened, and as noted, a further hearing took place in July 2022. For these reasons, even though the father’s application to re-open the evidence does not obviously fall within “child related proceedings” under Part VII, it has no utility and will be subsumed in the final orders of the Court. It should be dismissed.
I turn then to the third category, the father’s contravention applications filed on 28 January 2022 and 15 March 2022.
The father brings these applications under Division 13A of Part VII. Division 12A applies to proceedings under Division 13A (s 69ZM(1)). Accordingly, the considerations above at [155]–[158] apply equally to the contravention applications.
The father’s contravention applications relate to interim orders and circumstances in which the mother withheld the child, including the orders made by Schonell J on 6 December 2021. The father does not seek make up time. As noted, he does not seek any face to face time with the child until Term 3, 2023. He makes no specific proposal for make up time thereafter.
There was some evidence and cross examination at the hearing on 20 and 21 July 2022 dealing with the questions of prima facie contravention and reasonable excuse. The mother argued that contravention was not established, and in any event, she had a reasonable excuse for any contravention. There was, however, clear evidence, for example, that the mother emailed to the father a refusal to comply with the orders made on 6 December 2021 almost immediately after they were made. She accepted this in cross examination and expressed contrition for an ill-considered outburst.
Even if contraventions are established without reasonable excuse, the powers of sanction in Subdivision B of Division 13A are discretionary. It open to the Court to decline to order any sanction at all.
The father’s position was that the mother should be found to have contravened interim orders and be placed on a bond for two years. This, so he argued, would be the only way to ensure her future compliance with Court orders. This may have more force if he continued to seek make up time and final orders for the child to spend either equal or substantial and significant time with him. But, he does not. It is hard to see the point of a bond for two years when the only orders for the mother to comply with will be facilitating electronic communication between the child and the father, and time with the father according to the child’s wishes.
The position of the father supports an inference that he is more focussed on punishing the mother than on the best interests of the child. This is supported by the clear outrage by which he has been seized as a result of the mother making allegations of family violence against him, her complaint to the YY Association, and the AVO proceedings, even though these have now been dismissed. This is not consistent with the child’s best interests.
As noted already, he claimed that his relationship with the child had been “destroyed” in part by the failure of the Court to deal with his contravention applications expeditiously. But, this is not a tenable argument. The evidence discussed above about the views of the child shows the child wants a relationship, and to spend time, with the father. The relationship is not destroyed. The father is refusing to spend time with him for what he perceives to be his own protection. The state of the relationship is a consequence of several factors, most obviously the numerous interim applications after the first part of the final hearing, his own conduct leading to the AVO proceedings, and his refusal to spend time with the child until Term 3, 2023.
Otherwise, it is obvious from the history of these proceedings recorded above that the Court should endeavour as far as possible to release the child from the burden of being subject to this litigation and attenuate the possibility of further litigation. The history of these proceedings leaves no room for doubt that these parents should be disengaged from litigation as completely as possible to help lessen the opportunity for further conflict, in the best interests of the child. The circumstances cry out for finality. In the unusual circumstances of this case, this is best way to promote and achieve the overarching purpose and its objectives.
[7] See part of order 9(b) in XIU & HODGES [2019] FamCA 251 with italics added
Mother understood the agreed order was: That each parent will advise the other as soon as practicable after any consultation with the child’s general practitioner of the reason for the consultation and recommendations and treatment prescribed by the general practitioner including sending as soon as possible, by email or images on a smartphone, a copy of any consultation notes (if any), prescriptions, information sheets and treatment plans.
9.Father’s proposal: That the mother and father shall do all acts and things necessary to follow any medical advice in relation to the child arising from what is referred to any one or combination of orders 3 to 6 above.
The parties shall comply with any physical health treatment plan or guidelines recommended by the children’s treating medical practitioners or other therapists, including but not limited to provision of medication [8] and the parties are to comply with all reasonable requests made by such general practitioner for the purposes of providing therapeutic or such medical services to the child.[9]
[8] See order 6 DEMETRIOU & DEMETRIOU [2020] FamCA 24
[9] Father accepts what is in 14 December 2021 Order 8.3 made by Harper J
Mother’s proposal: Notation: it is the intention of the parties to comply with any reasonable treatment plan or guidelines recommended by the children’s treating physical health medical practitioners or other therapists, including but not limited to provision of medication.
10.Father’s proposal Primary position is that there should be no order as to schooling
In the alternative, Commencing Term 1 2024 and continuing for his secondary school education, the child shall attend AV School, unless otherwise agreed in email by the mother and father.
Notation
The Child Support Agency’s administrative assessment using the CSA formula will cover costs associated with a government school including uniforms, school excursions and extra-curricular activities etc.
At the commencement of the child’s Grade ...[10] education (in 20223), each party nominate and advise the other in writing by email of their three (3) preferred high schools for the child’s secondary education, with at least one (1) to be a public school and one (1) to be a private school.[11][10] As covered in the two Application - Contravention and three enforcement Applications, the mother has contravened parenting orders for about 8 months and this has precluded the father spending time with the child to adequately consider high schools and the child’s other educational and development needs
[11] Part of order 18.1 in KYRIAKOU & ZENAKIS [2017] FamCA 420
In the further alternative,
That the mother has sole parental responsibility to select a secondary school for the child, subject to the obligation that the mother is solely responsible for all costs associated with the child attending any private school selected by the mother including but not limited to the payment of all private school fees, uniforms, school excursions, school trips and extra-curricular activities.
Mother’s proposal
No order, covered by the order for sole parental responsibility.
Mother’s Application in a case filed 31 May 2022
1. That the mother be expressly permitted to select the secondary school for the child X (‘the child’) born … 2011 to attend, commencing in 2024.
2. That the father is required to do all things and sign all documents necessary to cause the child to be enrolled at any secondary schools of the mother’s choosing and to cause the child to be enrolled at the mother's final selection of X's secondary school.
3. That in the alternative, the mother has sole parental responsibility of the child in relation to educational issues. Prior to making a significant decision about any educational issue, the mother shall:
3.1 use her best endeavours to advise the father in writing of the decision intended to be made;
3.2 seek the response of the father in relation to the decision;
3.3 consider, by reference to the best interests of the child, any response prior to making any such decision; and
3.4 advise the father in writing as soon as reasonably practicable of her ultimate decision.
11.Father’s proposal: That neither parent shall remove the child from school unless in the case of illness unless otherwise agreed by both parents[12] in writing via email.
[12] ADLAM & ADLAM [2020] FamCA 869 order 21 with italics added
In the alternative The mother shall not remove the child from school during school hours unless a pre-arranged and approved medical appointment or exceptional circumstance arises[13], with any approval by the father to be in an email or text message sent by the father to the mother.
[13] As covered in the second Application - Contravention sealed 15.03.2022, the child’s school in the 10 February 2022 email states, “2. [X] will not be granted leave to be removed from school during school hours unless a pre-arranged and approved medical appointment or exceptional circumstance arises” (original bold emphasis)? No example of the father behaving in that manner exists. However, the mother took the child out of school early on: Wednesday 17, 24 November 2021, 1 and 8 December 2021; and Friday 26 November and 10 December 2021. The same occurred by the mother taking the child out of the school an hour early on 16 March 2022 to prevent the smooth handover to the father at 3:30 pm that was to be facilitated by the presence of [Ms AW from the NSW Education Department]. The father has added the words after the comma for clarity
Mother’s proposal
No order.
11A. In the absence of the father’s agreement recorded in an email or text message sent to the mother, the mother is restrained from entering or remaining at the child’s place of education before, at or after the time any handover or changeover to the father is to occur at the School on any day the child is or is supposed to be attending the School.[14]
[14] This order was first foreshadowed in the 16 November 2021 Application – Review as an attempt to risk manage the mother’s behaviours exhibited at and what was happening at the child’s school. See the two 2022 Application – Contravention and footnote 11. The mother, for example, at or after the time of handover at school to the father: on 12 November 2021 turned up uninvited and later ran out the school with the child without the agreement of the Class Teacher, School Principal and the father; and, on 25 February 2022, turned up uninvited leading to the school calling the NSW Police Force as she would not leave and an incident ensued that led to the Police calling NSW Ambulance
12.Father’s proposal: That neither parent shall make an application for leave from the school without first obtaining the written approval of the other parent via email.[15]
[15] Element 2 in the 23 May 2018 letter from [Mr AX of the NSW Education Department] is that [Mr AX] previously determined, “The school has committed to contact both parents in future if an application for leave in advance from school is made by one parent without the written approval from the other parent.”
Mother’s proposal
No order
Authorisation to discuss treatment with a medical practitioner or other health professional
13.Father’s proposal: This Order be authority to any doctor or other medical specialist upon whom the child may attend to provide the mother and/or father all information she/he may request with respect to the child and copies of any reports arising.[16]
[16] Order (27) in Eagleton & Eagleton [2019] FamCA 894
Notation:What was proposed sunset or time limit? Re until child reaches 16 years of age?Mother’s proposal: I thought this was agreed:Mother’s sunset clarification led to agreement during the LAT
That this Order be authority to any doctor or other medical specialist or therapist (including under Order 3A) upon whom the child may attend to provide the mother and/or father all information she/he may request with respect to the child and copies of any reports arising up until the child turns 16 years of age.
Time
14.Father’s proposal
Subject to Orders 1A and 1B, during school terms, the child shall live with the
parentsmother and spend time with the father from afterschool on Thursday to before school on Mondayon a week about basis, namely,with the mother in week one from after schoolin odd numbered years, and with the father in the second week of each fortnight for such periods of the school term.in Week 1 and in each alternate week thereafter, with such period to commence following each school holiday period in the first week with the parent if the child has spent the first half of the immediately preceding school holiday period with that parent; and
in Week 2 and in each alternate week thereafter, with such period to commence following each school holiday period in the second week with the parent if the child has spent the second half of the immediately preceding school holiday period with that parent[17]
[17] For clarity and so the father co-ordinates with other adults and children
Mother’s proposal
15.That the Child shall live with the Mother.
16.That the Child shall spend time with the Father during school term:
(a)Week 1: from afterschool on Thursday to before school on Monday;
(b)Week 2: from afterschool on Thursday to 7:30pm.
17.Father’s proposal
Subject to Orders 1A and 1B and subject to the provisos set out below, during school holidays, the child live with the father for one half of the school holidays and one half with the mother, with such time be as agreed in writing between the parties via email, and failing agreement as follows:
(a)With the father, for the first half of the holidays in even numbered years, commencing from the conclusion of school on the last day of school terms and concluding at 12 noon at the midpoint of the holidays;
(b)With the father, for the second half in odd numbered years, commencing at 12 noon at the midpoint of the school holidays and concluding at changeover day on the first day of the new school term (which includes the first day after any school development day).
One proviso is that if both parents are in Greater Sydney during the Christmas / New Year holidays, the child shall live:
(c)With the mother in even numbered years, commencing from 12 noon on 23 December and concluding at 12 noon on 25 December;
(d)With the father in odd numbered years, commencing from 12 noon on 23 December and concluding at 12 noon on 25 December;
And another proviso is that if both parents will be or are in Greater Sydney on 1 January:
(e)If the mother requests in writing via email to the father no less than 21 days in advance, the mother can pick up the child outside of Suburb AY library at 10 am to spend time with the child on the mother’s birthday and the mother shall return the child at 4 pm to Suburb AY library or, if the father is living at Suburb D on 1 January, the changeovers shall be outside of Woolworths at Suburb D or as otherwise agreed in writing via email by the parties.
Mother’s proposal
That during school holidays, the child live with the Father for one half of the school holidays and one half with the Mother, with such time be as agreed in writing between the parties via email, and failing agreement as follows:
(a)With the Father, for the first half of the holidays in even numbered years, commencing from the conclusion of school on the last day of school terms and concluding at 12 noon at the midpoint of the holidays;
(b)With the Father, for the second half in odd numbered years, commencing at 12 noon at the midpoint of the school holidays and concluding at 5pm on the night before the first day of the student school term
(c)During the Christmas and New Year period the Child shall live:
(i)With the Mother in even numbered years, commencing from 12 noon on 25 December and concluding at 12 noon on 1 January;
(ii)With the Father in odd numbered years, commencing from 12 noon on 25 December and concluding at 12 noon on 1 January.
18.Subject to Orders 1A and 1B, unless otherwise agreed in writing via email between the parties, the child shall spend time with the mother and father on the following occasions:
(a)In the event the child is living with the Father on Mother’s Day then from afterschool on the Friday before Mother’s Day until return to school on the day following Mother’s Day.
(b)In the event the child is living with the Mother on Father’s Day then then from afterschool on the Friday before Father’s Day until return to school on the day following Father’s Day.
(c)In any year that Easter is not part of the end of term school holidays then with the mother from school concluding or 5:00pm on Easter Thursday (whichever is the earliest) until 5:00pm on Easter Saturday in each even numbered year.
(d)In any year that Easter is not part of end of term school holidays with the father from 5:00pm on Easter Saturday and each even numbered year until return to school on the Tuesday after Easter.
(e)In any year that Easter is not part of end of term school holidays with the father from school concluding or 5:00pm on Easter Thursday (whichever is the earliest) until 5:00pm on Easter Saturday on each odd numbered year.
(f)In any year that Easter is not part of end of term school holidays with the mother from 5:00pm on Easter Saturday in each odd numbered year until return to school on the Tuesday after Easter.
Changeover
19.Father’s Proposal
The child shall move from the physical care of one parent to the physical care of the other parent at the commencement and conclusion of the time that the child spends with the father as follows:
(a)When such time occurs on days the child is attending school, at school; and
(b)When such time occurs on days the child is not attending school, outside Woolworths at Suburb D if the father is living at Suburb D or outside Suburb AZ McDonalds if the father is dropping off and is not living at Suburb D or as otherwise provided for by these orders or as otherwise agreed in writing via email.
Mother’s Proposal:
The child shall move from the physical care of one parent to the physical care of the other parent at the commencement and conclusion of the time that the child spends with the Father as follows:
(a)When such time occurs on days the child is attending school, at school; and
(b)When such time occurs on days the child is not attending school, at the Mother’s residence.
Roman Catholic sacraments
20.That the father be at liberty to have the child receive the sacraments in the Roman Catholic Church.
Notation: this order does not compel the mother to do anything and the father accepts that there is no connection between baptism and schooling.[18]
[18] Based on order 19 for baptism in Eagleton & Eagleton [2019] FamCA 894 and at [167] – [172]
Communication
21.If either parent requests to vary the arrangements on a one-off basis, this request will be made politely and the other parent will provide an answer as soon as practicable, but within three (3) days, and they shall respond in a manner that is consistent with Orders 23 and 24 below.
22.That the child be at liberty to communicate with the party with whom they are not spending time or living with by way of telephone, email, Skype or Facetime at all reasonable times and at a reasonable frequency, and further, that both parties shall do all things so that the child has his own mobile phone in good working order, with an ability to make and receive calls whilst in their respective care.
Notation:
the fatherthe mother will provide a mobile phone at the commencement of these orders22A. The parties shall not:[19]
[19] After the 12 November 2011 letter from the ICL, in response to other like proposals by the father, proposed by the father in the 16 November 2021 Application – Review before McGuire J and made by agreement by Schonell J on 21 December 2021
(a)Involve the child in the case by showing him Court documents, discussing the proceedings or any matter arising in the proceedings or advising when hearings or mentions might occur;
(b)Utilise the child as a messenger or reporter on the conduct of the other parent;
(c)Unreasonably seek to undermine the other parent;
(d)Engage the child in conversation on age-inappropriate topics;
(e)Notation: All on a mutual and without admissions basis.
22B. The mother shall comply with:
(a)Do not interfere with the father’s parenting time, including: scheduling activities, appointments, family or friend visits;
(b)Be careful not to be excessively intimate with the child for the child’s age;
(c)Not sleeping with the child;
(d)Do not communicate to the child by mobile telephone how you miss the child when the child is at the father’s house;
(e)Do not interrupt the child’s time with the father as the other parent by calling too much or by planning the child’s activities during their time together.[20]
[20] These are some of the recommendations from: (1) “Divorce rules” in “Children and Resilience” from the Parenting After Separation Course prepared by Jasmin Newman, registered and accredited FDR Practitioner, Parenting Coordinator and Co-parenting Coach and course presenter, with Ms Newman incorporating by express incorporation the Divorce Rules from S.Boyan & A.Termini (1999), Cooperative Parenting Institute; (2) Don't Alienate the Kids: Raising Resilient Children While Avoiding High Conflict Divorce, 2020 (Revised & Updated 10th Anniversary Edition),Bill Eddy “4,024 Admonish both parents specifically not to ...” and “4,516 5.AVOID EXCESSIVE INTIMACY …”; and (3) an undisputed part of [Dr KK] about the mother sleeping with the child. Father’s affidavit in support to the Application - Enforcement sealed 11.11.2021: (a) sources this literature, learning and guidance materials at [70] and Annexure EO3.11; and (b) covers at [70] and exhibit 3.F why these orders are sought because of the numerous text messages /missed calls from the mother to the child’s mobile when living with the father in 2021 after the LAT hearing
23.That whilst during any period of overseas travel pursuant to these orders, the travelling parent is to do all such things that may be necessary to facilitate the child communicating with the other parent via telephone, Skype or such other appropriate technical method that the other parent nominates, at least weekly and at a time that is reasonable for both parties, taking into account international time zones.
24.Each party shall notify the other as soon as possible of:
(a)significant changes to the child’s health while the child is in their care and as soon as practicable, notify the other parent of any medical emergency involving the Child.
(a)Any change of address or email and telephone contact details.
Passport and overseas travel
24A. Subject to Order 1B, the parties shall so all things (including paying associated costs equally) to ensure the child has a current passport,[21] provided that if a priority fee is required such a fee will be paid for solely by the parent seeking the passport.
[21] Sought by the father in Application – Enforcement sealed 11.11.2021 but not agreed to by the mother
24B. Subject to Order 1B, the parties agree that either party should be permitted to take the child out of Australia for holidays and other short periods of time provided that all destinations be in countries who are signatories to the Hague Convention on the Civil Aspects of International Child Abduction and, unless otherwise agreed in writing between the parents and in relation to any such trip out of Australia the parties agree as follows:[22]
[22] An overseas travel order appears to have been previously omitted from the proposals provided to the Court. Proposals 24B and 24C are essentially what was previously agreed to with the input of the previous ICL and were made as consent interim orders on 9 April 2019 before Loughlan J
(b)That the occasions on which either party takes the child out of Australia are to coincide with the normal school holidays and only when the child is living with a particular parent, not encroach on the child’s time with the other parent, unless otherwise agreed in writing;
(c)That the party proposing to take the child out of Australia (“the travelling party”) will give the other party as much notification as possible of his/her intention to take the child out of Australia and in any event will give the other party no less than twenty-one (21) days written notice of such intention;
(d)That the travelling party will furnish to the other party an accurate itinerary to include the departure date and return date, the country or countries that the travelling party and the child will be travelling to, the dates on which the child will arrive and depart each country and a telephone number and address at which the child and the travelling party can be contacted in each country;
(e)That while the child is out of Australia with the travelling party the other party is to have sole responsibility for the care, welfare and development of the child;
(f)That the other party will not seek an order for the immediate return of the child in the event of their departure from country being held up for a reasonable period by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling party’s control;
(g)That to give effect to this Order the parties promptly do all acts and things and sign all documents necessary to facilitate the travelling party travelling overseas and returning with the child.
24C. Subject to Order 1B, unless otherwise agreed in writing, the child’s passport shall be held by the last parent that travelled overseas with the child and if the other parent has provided notice pursuant to these orders, the parent holding the passport shall provide the child’s passport to the other parent within seven (7) days of that notice and a photocopy of the passport when requested.
Au pair or demi pair order
25.The mother shall, within seven (7) days of these orders and any future engagement by the mother of any live in au pair, demi pair or nanny (however described), notify in writing via email to the father in relation to any such live in au pair, demi pair or nanny:
(a)The person’s name;
(a)Age;
(b)Nationality;
(c)Qualifications;
(d)Police check result (if available); and
(e)The mother’s Job or Duty Description (if available).
Mutual Non-denigration
26.That the parties, their servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any person they are dating or that person’s children in the presence or hearing of the child and will remove the child from the presence of someone so doing
and in conversations, emails, texts or other written communications with the other party or that party’s family members or any person they are dating or that person’s children; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child and from permitting any other person to do so including but not limited to any family report prepared in the proceedings.
27.That both parties be restrained from passing information or messages for the other through the child.
Notation to above orders 26 and 27: The father and mother, on a without admissions basis, accepts that mutuality is appropriate for the purposes of embracing a framework of orders.
Departure order from child support assessment
28.Father’s proposal: By way of a departure from the administrative assessment of child support payable by the husband to the wife in respect of the child:
(a)In respect of any health professional fees concerning the child’s physical presentation and treatment paid by either parent for the child commencing from 1 January 2020 to the date that these orders are made, after payment of any Medicare or private health insurance claims, within 14 days of either parent being provided by the other parent with records of payments and claims, the other parent shall pay half of the cost not covered by Medicare or private health insurance claims to the other parent’s nominated financial institution account.
(b)In respect of future health professional fees concerning the child’s physical presentation and treatment paid by either parent for the child, after payment of any Medicare or private health insurance claims, within 14 days of either parent being provided by the other parent with records of payments and claims, the other parent shall pay half of the cost not covered by Medicare or private health insurance claims to the other parent’s nominated financial institution account.
28A.Leave is granted, if required, to dispense with compliance with the rules to make Order 28.
Mother’s proposal – see property application
Disputes or Variations
29.Apart from any applications covered by and permitted under the Family Law Practice Direction – National Contravention List[23], the process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders shall be as follows:[24]
[23] This exception is sought by the father because in 2022 the father’s two Application – Contraventions have been accepted by the Court, after on each occasion the father filed an Affidavit Non-Filing of Family Dispute Resolution Certificate setting out child protection and abuse allegations, urgency circumstances and the mother is unable to participate effectively in FDR. Background is about 8 months of contraventions of parenting orders by the mother
[24] This and the next two orders are orders (
3229) to (3431) in Eagleton & Eagleton [2019] FamCA 894 and see also orders 10 and 11 in DEMETRIOU & DEMETRIOU [2020] FamCA 24(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
Notation: the parties agree for the purpose of this clause to BA Counselling[25]
[25] The mother proposed [BA Counselling] for one purpose and the father, after checking with [BA Counselling], received confirmation from [BA Counselling] that [BA Counselling] can provide the FDR service for these clauses. Waiting to hear back from Adam Jones and ICL if there is agreement to this proposal
30.Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the children or of the mother or the father:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
Notation: the parties agree for the purpose of this clause to BA Counselling
31.Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
ANNEXURE C – ICL’S PROPOSAL
1.That the Mother shall have sole parental responsibility for X ("X") born … 2011, subject to order 2 hereunder.
2.That the Mother shall advise the Father about decisions to be made in the exercise of her sole parental responsibility as provided in order 1 herein and the determination she makes and prior to implementing any such decision.
3.That X shall live with the mother.
4.That X shall spend time with the Father by agreement between the Mother and the Father, having regard to X's expressed wishes.
- AGLC
- Self & Bachman (No 3) [2022] FedCFamC1F 829
- Case
- [2022] FedCFamC1F 829
- Decision Date
CaseChat Overview and Summary
The court found that the presumption of equal shared parental responsibility was rebutted due to the intractable conflict between the parents and the father's refusal to spend time with the child until Term 3, 2023. The court held that the mother should have sole parental responsibility but must consult with the father regarding significant decisions affecting the child. The court ordered that the child spend time with the father in accordance with his wishes and facilitated communication between the child and the father. Regarding property, the court declared that the de facto relationship existed for over four years and ordered the transfer of property interests and financial settlements between the parties. The court also dismissed all extant applications, finding them to be either superseded by the final orders or irrelevant.
The final orders granted the mother sole parental responsibility for the child, with specific consultation requirements regarding significant decisions. The child was to spend time with the father as per his wishes, and the parties were to facilitate communication between the child and the father. The court also ordered the transfer of property interests and made financial settlements between the parties. All other applications were dismissed, and the Independent Children's Lawyer was discharged.
Orders
Orders of the court
SYC 2566 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS SELF
Applicant
AND:
MR BACHMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
Parenting
1. The Applicant Mother, Ms Self (“the mother”) have sole parental responsibility for X (“the child”) born … 2011, subject to Order 2 hereunder.
2. The mother shall consult with the Respondent Father (“the father”) about decisions to be made in the exercise of her sole parental responsibility as follows:
(a) The mother will advise the father in writing via email of the long-term decision to be made for the child and all related information;
(b) Within 14 days, the father will respond to the mother in writing via email, providing his views and input which the mother will genuinely consider; and
(c) The mother will make the decision and provide the father advice in writing, via email, of the decision and the reasoning behind the decision.
3. The child shall live with the mother.
4. The child shall spend time with the father as agreed between the mother and the father.
5. Failing agreement in accordance with Order 4 above, the child shall spend time with the father in accordance with the child's wishes.
6. The child shall move from the physical care of one parent to the physical care of the other parent at the commencement and conclusion of the time that the child spends with the father as follows:
(a) When such time occurs on days the child is attending school, at school; and
(b) When such time occurs on days the child is not attending school, at the mother's residence.
7. As and when the child communicates a desire to spend time with the father to the mother, the mother shall immediately contact the father to arrange such time to take place.
8. The mother shall facilitate the father having phone call or video call communication with the child as agreed between the parties, or, failing agreement, in accordance with the child's wishes.
9. The parties forthwith take all necessary steps and execute all necessary documents to cause the child to obtain a passport with at least 12 months validity for international travel.
10. The child's passport shall remain in the custody of the mother.
11. Pursuant to s 65Y of the Family Law Act 1975 (Cth) (“the Act”), the child be entitled to travel overseas with each parent during times that they are spending with that parent pursuant to these orders (or as otherwise agreed in writing) upon condition that the parent intending to travel overseas with the child shall give the other parent 30 days’ notice of his or her intention to travel overseas with the child.
12. For the purpose of Order 11, the parent intending to travel overseas with the child shall provide the other parent with telephone contact details upon which the child can be contacted during the child’s times with that parent and during overseas travel.
13. Within seven (7) days of receiving a request by the parent intending to travel internationally with the child, the other parent is to sign all documents necessary to facilitate the child travelling internationally pursuant to Order 11 above, and provide the child’s current passport to the other parent if the passport is in their possession.
14. Within seven (7) days of returning home with the child from overseas, the father shall return the child’s passport to the mother.
15. The Independent Children’s Lawyer be discharged 60 days from the date of these orders.
Property
16. Pursuant to s 90RD, it is declared that a de facto relationship existed between the parties for a period of no less than four (4) years and ten (10) months.
17. The father be declared the sole legal and beneficial owner of G Street, Suburb H (“Suburb H”).
18. The parties do all things and execute all documents necessary:
(a) To cause the transfer to the father of the mother’s one-tenth legal interest in the property situated and known as Suburb H; and
(b) Simultaneously, to enable the father to refinance any mortgage secured against Suburb H in order to remove the mother as a party to, and be released and discharged from any liability in respect of such mortgage.
19. Within 30 days, the father pay to the mother the amount of $145,117.
20. It is declared that all debts owing by the mother to the father are satisfied and discharged as a consequence of these orders.
21. As between the mother and the father, each are declared the sole legal and beneficial owner of all other property, currently or beneficially owned by them, in their respective possession, within their sole or partial control, including but not limited to real property, superannuation entitlements, cash, funds held in bank accounts, debentures, motor vehicles, chattels, and interest in any trusts or estates.
22. The mother and the father each irrevocably indemnify the other against all liabilities held in their name, or jointly with a third party, including but not limited to mortgages, credit-cards, personal loans, overdraft, tax liabilities, unpaid school-fees, rates, utilities, and Afterpay.
23. In the event that either party shall fail, neglect, or refuse to execute any document, deed or instrument to give validity and effect to these orders, then upon the other party filing an affidavit setting out such failure, neglect or refusal, a judicial registrar or deputy registrar of this Court is hereby appointed pursuant to s 106A of the Act to execute any such deed, instrument or document in the name of the party who defaults, and to do all such things necessary to give validity to the operation of the deed, instrument or document.
Other
24. In the event any party seeks a costs order in their favour, any such application is to be filed and served within 28 days of the date of these orders, and in the event no such application is filed, there shall be no order as to costs.
25. All extant applications be otherwise dismissed.
THE COURT NOTES THAT:
A. Pursuant to s 90ST of the Act, these orders are intended to finally determine the financial relationship between the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I turn then to the best interests of the child. These are the paramount consideration under s 60CA of the Act. The best interests of the child are determined by considering the statutory factors specified in s 60CC of the Act, in light of the objects of Part VII set forth in s 60B. The must consider each statutory consideration, even if express discussion is not necessary: Tibb at [83]–[85].PRIMARY CONSIDERATIONS In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act, which are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act).Section 60CC(2)(a), “meaningful relationship” The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407. A “meaningful relationship” is one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26]; McCall v Clark (2009) FLC 93-405 (“McCall”) at [115]. A “prospective approach” is preferred, requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]; Sigley & Evor (2011) 44 Fam LR 439 at [135]. There was no dispute that the child would benefit from a meaningful relationship with both parents. The question, as it eventually emerged from the fraught path of the litigation, was how the child’s prospective relationship with his father could be maintained, in light of the father’s adherence to his position that he would not spend time with the child until Term 3, 2023.Section 60CC(2)(b), “abuse” and “family violence” The evidence and submissions of the father made clear that he is outraged by the allegations made against him by the mother, and by what he characterises as her consistent negative narrative about him. One source of considerable offence for the father lay in allegations and a complaint made by the mother to his professional governing body, the YY Association. It is a truly sad feature of this case that incidents of anger and aggressive conduct have arisen substantially since the hearing in February 2021, not before. At the hearing in February 2021, neither party contended that there were risk factors preventing the child spending overnight time with both parents. As noted above, by August 2022, this had changed. The mother claimed there were incidents in June and October 2021 in which the father’s behaviour caused the child to fear him. As mentioned above, on 28 June 2021, the child expressed resistance to spending time with the father. The mother explained that the child had attempted to run back into their home. On the way to changeover, the child cried, then expressed fear that the father would see that he had been crying. Then, on 27 October 2021, when the father attended the child’s school for changeover, the child refused to leave with him. The mother noted that the child explained to a teacher that “he was scared he would get yelled at” and that he did not wish to speak to his father. She reported that the child was in a highly agitated and distressed state, and decided it was best that he return home. I do not accept the mother’s characterisation of either incident. The behaviour of the child just as likely betrays distress at the conflict between the parents, rather than any attitude to the father specifically.