Squires & Squires
[2021] FedCFamC1F 234
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Squires & Squires [2021] FedCFamC1F 234
File number(s): ADC 2667 of 2014 Judgment of: BERMAN J Date of judgment: 26 November 2021 Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Where each party seeks sole parental responsibility – Where the parties have been unable to reach consensus on certain issues but genuinely attempted to work through issues of significance to the child – Order for equal shared parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of the child – Where the parties were able to agree consent orders in previous proceedings – Where there are competing applications for the primary care of the child – Where there are allegations of family violence – Where the child currently lives with the mother and spends time with the father – Where both parties agree the child should maintain a meaningful relationship with each parent – Where the child has a close attachment to each of the parties – Where the child is not at risk in either parties care – Where shared care would not work due to the distance between the parties’ residences – Orders
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3)
Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343
UNTS 89 (entered into force 1 December 1983).
Division: Division 1 First Instance Number of paragraphs: 181 Date of hearing: 15 – 18 June 2021 Place: Adelaide Counsel for the Applicant: Mr Childs Solicitor for the Applicant: VP Lawyers Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Brian Deegan Lawyers ORDERS
ADC 2667 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SQUIRES
Applicant
AND: MS SQUIRES
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
26 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for Ms Squires born in 2011 (“the child”).
2.The child live with the mother.
3.The child spend time with the father as follows:
(a)each alternate week from the conclusion of school on Friday to the commencement of school on Monday;
(b)in the event of a Friday public holiday or pupil free day, the father’s time is to commence from the conclusion of school on the immediately preceding Thursday (or 3.00 pm if the said child is absent from school) until the commencement of school Monday;
(c)in the event of a Monday public holiday or pupil free day, the father’s time shall commence from the conclusion of school Friday to the commencement of school on the immediately following Tuesday; and
(d)half of the short term holidays, from the conclusion of school on Friday to 6.30 pm on the following Friday if he would ordinarily have care on the first weekend of school holidays and if not then from 6.30 pm on the middle Friday until the commencement of school.
4.With respect to the long school holidays:
(a)subject to the arrangements for the child to spend time with each of the parties over the Christmas period, on a three week about basis for the months of December 2021/January 2022 and each alternate year thereafter with the mother from the conclusion of school on Friday to 6.30 pm on the Friday falling three weeks later and thereafter for a period of three weeks with the father;
(b)subject to the arrangements for the child to spend time with each of the parties over the Christmas period on a three week about basis for the months of December 2022/January 2023 and each alternate year thereafter with the father from the conclusion of school on Friday to 6.30 pm on the Friday falling three weeks later and thereafter for a period of three weeks with the mother; and
(c)the balance of any long school holiday period (should there be any) shall be divided equally between the parties.
5.As to special occasions:
(a)The child spend time with the parties during the Christmas periods as follows:
(i)In 2021 and each alternate year thereafter with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 2.00 pm Boxing Day; and
(ii)In 2022 and each alternate year thereafter with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the mother from 2.00 pm Christmas Day until 2.00 pm Boxing Day.
(b)For Father’s Day and Mother’s Day the child spend time with the parties as follows:
(i)with the father from 5.00 pm on the Saturday prior to Father’s Day until the commencement of school Monday in the event the child is in the mother’s care; and
(ii)with the mother from 5.00 pm on the Saturday prior to Mother’s Day until the commencement of school Monday in the event the child is in the father’s care.
(c)The child spend time with the parties during the Easter period as follows:
(i)from the conclusion of school on Easter Thursday until the commencement of school on the following Tuesday in 2022 with the mother and each alternate year thereafter; and
(ii)from the conclusion of school on Easter Thursday until the commencement of school on the following Tuesday in 2023 with the father and each alternate year thereafter.
6.All handovers that do not occur at school shall be facilitated with the parent who takes the child into their care collecting the child from the home of the other parent, or otherwise at any other location as agreed between the parties.
7.The partners of either parent shall be at liberty to attend handover.
8.Each party is to advise the other parent of their residential address within seven (7) days of any change.
9.Each party is restrained by way of injunction from denigrating the other party in the presence or hearing of the child and from allowing any other person to do so.
10.The child shall attend a high school within the geographical area bounded by V Street, W Street, KK Street, Y Street, Z Street, AA Street, BB Street, CC Street and DD Street.
11.The parties shall each be authorised to obtain directly from any school the child attends all information normally available to parents including but not limited to school reports, notices, attendance records and photos and to otherwise attend on the school, subject to any restrictions imposed by the school, on any occasion normally available to parents including but not limited to assemblies, sports days, award nights, concerts and parent teacher interviews.
12.The parties are responsible for ensuring (unless there is a reasonable excuse for not doing so) the child’s attendance at all school, tuition, sporting and/or extracurricular events for all activities which fall during their time with the child provided always that such activities have been previously agreed between the parties in writing.
13.The parties be authorised to receive directly from any health care provider for the child
1980any information normally available to parents including but not limited to the reason for attendance, diagnosis and recommendations for treatment and for that purpose the parties keep each other informed as to the child’s treating practitioners.14.The mother do retain the child’s Country EE passport to be delivered to the father no less than seven (7) days before any travel pursuant to the orders herein provided always that within seven (7) days of such travel the passport is returned to the mother.
15.Within fourteen (14) days of the relevant documents being provided to him by the mother, the father shall do all things necessary and sign all documents required to facilitate the child’s application for Australian citizenship provided that:
(a)the application fee (should there be a fee pertaining to the child’s application) shall be shared equally between the parties; and
(b)the mother will advise the father of the date and time of any citizenship ceremony with both parties to be at liberty to attend.
16.Each of the parties be at liberty to travel with the child, interstate or overseas including to a country which is not a signatory to the Convention on the Civil Aspects of International Child Abduction 1980 during their time with her provided always that:
(a)the party wishing to travel advise the other party in writing not less than sixty (60) days prior to the proposed travel of details including the following:
(i)dates of departure and return;
(ii)location to be travelled to, method of transport and locations of accommodation;
(iii)the names of all persons travelling with the child;
(iv)telephone contact details if there is likely to be no mobile phone coverage; and
(v)the non-travelling parent shall acknowledge receipt of the other party’s correspondence within fourteen (14) days and respond thereto in writing.
*Amended pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 26 November 2021.
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 Squires & Squires is pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
The proceedings between Mr Squires (“the father”) and Ms Squires (“the mother”) concern the future parenting arrangements for Ms Squires born in 2011 (“the child”). The child is currently 10 years of age.
The proceedings were listed for a four day trial commencing on 15 June 2021 and judgment was reserved on 18 June 2021.
The father previously initiated proceedings in the Federal Circuit Court of Australia (as it then was) with the filing of an Initiating Application on 28 July 2014 in relation to parenting matters. On 17 September 2015, final orders were made by consent with the child to live with the mother and spend time with the father as agreed between the parties.
On 24 October 2018, the father initiated the current proceedings in the Federal Circuit Court of Australia (as it then was) seeking, inter alia, that the orders made on 17 September 2015 be discharged and that the child live with him and spend supervised time with the mother. The father’s application was sought on an urgent basis on what he considered to be the abandonment of the child by the mother who had travelled to Country FF.
On 29 October 2018, orders were made providing the father with liberty to enrol the child, during the period of the mother’s absence, in the B School with the child to be returned to C School on 12 November 2018, namely the mother’s expected return date.
On 12 November 2018, the child returned to C School and into the mother’s primary care.
By his case outline document filed 15 June 2021, the father seeks final orders summarised as follows:
(1)That the father have sole parental responsibility for the child;
(2)That the child live with the father;
(3)That the child spend time with the mother each alternate weekend from the conclusion of school Friday to 5.00 pm on Sunday (to be extended to 5.00 pm Monday if the Monday is a public holiday);
(4)That the child’s time spending with the mother each alternate weekend be extended to conclude at 5.00 pm on Friday during school holidays;
(5)That the child spend time with the parties during the Christmas period as follows:
(a)In 2021 and each alternate year thereafter with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 2.00 pm Boxing Day; and
(b)In 2022 and each alternate year thereafter with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the mother from 2.00 pm Christmas Day until 2.00 pm Boxing Day.
(6)That the child spend time with the parties during the Easter period as follows:
(a)In 2022 and each alternate year thereafter with the father from the conclusion of school on Maundy Thursday until the commencement of school the following Tuesday; and
(b)In 2023 and each alternate year thereafter with the mother from the conclusion of school on Maundy Thursday until the commencement of school the following Tuesday.
(7)That handovers which do not occur at school shall take place at T Town McDonalds;
(8)That the child’s passport be held by the Court in the Adelaide Registry; and
(9)That the mother be restrained by way of injunction from removing the child from the Commonwealth of Australia without a Court order.
The father also seeks orders in relation to mother’s day and father’s day, the parties attending school events, the parties obtaining information from any school the child attends or health care provider the child attends upon and various injunctions.
By her case outline document filed 15 June 2021, the mother opposes the orders sought by the father and seeks final orders summarised as follows:
(1)That the mother have sole parental responsibility for the child;
(2)That the child live with the mother;
(3)That the child spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday (if Friday is a public holiday or pupil free day, then the time is to commence at the conclusion of school on Thursday and if the Monday is a public holiday or a pupil free day, then time is to conclude at the commencement of school on Tuesday);
(4)That the child spend time with each party on a week about basis during the short school holiday periods;
(5)That the child spend time with each party for alternating three week blocks during the long school holiday period with the party with whom the holidays should start alternating each year;
(6)That the child spend time with the parties during the Easter period as follows:
(a)In 2022 and each alternate year thereafter with the mother from the conclusion of school on Maundy Thursday until the commencement of school the following Tuesday; and
(b)In 2023 and each alternate year thereafter with the father from the conclusion of school on Maundy Thursday until the commencement of school the following Tuesday.
(7)That handovers which do not occur at school shall occur, if on a weekday with the father to collect the child from out of school hours care or if on a weekend at 6.30 pm at D Store in Suburb F;
(8)That the mother retain the child’s Country EE passport and Australian passport if issued;
(9)That the parties do all things necessary to facilitate the child applying for Australian citizenship; and
(10)That the parties be at liberty to travel with the child outside the Commonwealth of Australia during their time with the child provided that the non-travelling parent is provided with notice and travel details no less than 60 days prior to the proposed travel.
The mother also seeks orders in relation to other special occasions, the parties attending school events and the parties obtaining information from any school the child attends or health care provider.
At the commencement of the mother’s closing submissions, counsel for the mother tendered a proposed minute of order with slightly amended orders to what the mother sought in her case outline. It became apparent during the father’s closing submissions that the parties were agreed on certain matters summarised as follows:
(1)That the child spend time with the parties during the Christmas period as follows:
(a)In 2021 and each alternate year thereafter with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 2.00 pm Boxing Day; and
(b)In 2022 and each alternate year thereafter with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the mother from 2.00 pm Christmas Day until 2.00 pm Boxing Day.
(2)That the child spend time during the Easter period with the parties as follows:
(a)In 2022 and each alternate year thereafter with the father from the conclusion of school on Easter Thursday until the commencement of school on the following Tuesday; and
(b)In 2023 and each alternate year thereafter with the mother from the conclusion of school on Easter Thursday until the commencement of school on the following Tuesday.
(3)That the child spend time with the father from 5.00 pm on the Saturday prior to Father’s Day until the commencement of school Monday in the event the child is in the mother’s care.
(4)That the child spend time with the mother from 5.00 pm on the Saturday prior to Mother’s Day until the commencement of school Monday in the event the child is in the father’s care.
(5)That all handovers which do not occur at school shall be facilitated with the parent who takes the child into their care collecting the child from the home of the other parent, or as otherwise agreed between the parties via text message with the partner of either parent at liberty to attend handovers.
(6)That each party advise the other of their residential address within seven (7) days of any change.
(7)That the parties each be authorised to obtain information directly from any school the child attends and attend the school on occasions normally attended by parents.
(8)That when the child is in their care, the parties are responsible for ensuring the child’s attendance at school and extracurricular activities previously agreed between the parties in writing.
(9)That the parties each be authorised to obtain information directly from any health care provider the child attends upon.
(10)That the father do all things necessary and sign all documents necessary to facilitate the child’s application for Australian citizenship with the cost to be shared equally between the parties, with the mother to advise the father of the ceremony date and time with both parties at liberty to attend the ceremony.
(11)That each party is restrained by way of injunction from denigrating the other party in the presence or hearing of the child and from allowing any other person to do so.
That father was willing to agree to the mother’s orders sought in relation to travel. However, with respect to overseas travel, the father was only willing to agree to the parties travelling overseas with the child to countries that are signatories to the Hague Convention[1].
[1] Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343
UNTS 89 (entered into force 1 December 1983).
The parties still remain largely in dispute as to the issue of parental responsibility, with whom the child is to live and spend time with and the issue of the child’s schooling.
CHRONOLOGY
1977 Date of birth of the father 1989 Date of birth of the mother 2008/2009 Parties meet in Country FF 2010 The parties commence cohabitation in Country EE 2010 The parties marry in Country EE 2011 Date of birth of the child 2012 The parties and the child move to Australia December 2013 The parties separate 28/07/2014 The father initiates parenting proceedings in the Federal Circuit Court of Australia (as it then was) 01/05/2015 The parties obtain a divorce 17/09/2015 The parties finalise parenting proceedings by way of consent order 24/10/2018 The father initiates current proceedings in the Federal Circuit Court of Australia (as it then was)
BACKGROUND
The father is 44 years of age and is an professional. The mother is 32 years of age and is a professional.
The father was born in Country EE. He is a Country EE citizen and a permanent resident in Australia.
The mother was born in Country FF. She is a Country FF citizen and has been a permanent resident in Australia since 15 January 2018. The mother intends to apply for Australian citizenship.
On the father’s case the parties met in or around 2009 in Country FF whilst the father was on a business trip. The mother considers that this occurred in 2008. The mother eventually moved to Country EE where the father was residing and in February 2010 the parties commenced living together. On 6 May 2010 the parties married in Country EE.
In 2011, the child was born in Country EE. The child is a Country EE citizen and is a permanent resident in Australia, with her residency currently attached as a dependent to the mother’s visa. The child holds a Country EE passport which is currently being held by this Court in the Adelaide registry. Both parties are seeking that the child obtain Australian citizenship.
In 2012, the father’s employer transferred his employment to Australia. Subsequently, on 28 September 2012 the parties and the child moved to Australia.
It is the mother’s position that during the relationship she was the child’s primary caregiver, with the father often travelling for work overseas.
The parties separated in December 2013 and were divorced in 2015.
On 17 September 2015, final parenting orders were made by consent whereby the child would live with the mother and spend time with the father as agreed. From about January/February 2017, the parties had an agreement where the father would spend time with the child each alternate weekend.
The current proceedings were initiated by the father in October 2018 on an urgent basis. It was the father’s position that the mother had abandoned the child and travelled to Country FF, Country HH and Country JJ with no advice as to her return. In his trial affidavit filed 21 September 2020, the father states that he became aware of the mother’s travel plans only after the child had informed him on 13 October 2018, the day after the child came into his care. The father subsequently sent a text message to the mother asking if the travel plans were correct. The father received confirmation of the travel plans from the mother with a message that the mother hoped he would have the child in his care whilst she was away.
In her trial affidavit filed 16 November 2020, the mother indicates that she contacted the father via email on 5 October 2018 advising him that she was intending to travel to Country FF to visit her father who had experienced a stroke and was deteriorating. The mother did not receive a reply. The father concedes that the mother sent the email to him but that he was on sick leave at the time and did not have access to his work emails until 15 October 2018.
The mother concedes that she did not confirm her final travel dates of 15 October to 8 November 2018 until after the child was in the father’s care on 12 October 2018.
At the time of the mother’s travel, the father was living and continues to reside at Suburb G. The child was attending C School and still does. Given the distance from his residence to the child’s school, the father sought an order that he be permitted to enrol the child at B School for the duration of the mother’s absence. Orders were made to this effect on 29 October 2018.
On 12 November 2018, the child returned into the mother’s care and to C School.
Both parties have re-partnered. The father and his partner Ms J have been living together since 2014. In 2017, they purchased a home together at Suburb G. Ms J has three children from a previous relationship who live with her and the father. The father and Ms J also have a six year old child together. The mother and her partner Mr K have been in a relationship since February 2017. They lived together from July 2017 to March 2019, however they now live separately but remain in a relationship. Mr K has two children from a previous relationship who spend time with the child when the mother and child stay overnight at Mr K’s residence, approximately once every fortnight. The mother and child reside in rental accommodation at Suburb MM.
The geographical distance between the parties’ residences has been a root for contention between the parties with respect to handovers and adding further to the dispute between the parties as to the child’s secondary schooling.
Pursuant to orders made on 19 December 2018, the child is currently living with the mother and spending time with the father each alternate weekend from the conclusion of school on Friday or 5.30 pm if a non-school day until the commencement of school on Monday or 8.30 am if a non-school day and half of school holiday periods.
A point of significant concern during the proceedings concerned the former wife of Mr K, Ms L. The father and his partner Ms J know Ms L socially, meeting with her and the children of Ms L and Mr K on several occasions. In his trial affidavit, the father indicates that he was contacted by Ms L in June 2018 via Facebook and was advised that Ms L was the former wife of Mr K. Throughout parts of his trial affidavit, the father refers to information obtained from Ms L in relation to the mother and Mr K and what occurs within their households and relationship. At paragraph 7 of the father’s trial affidavit, the following appears:
This affidavit contains evidence provided by Ms L (née Ms L) ex-wife of Mr K the mother’s partner. This evidence has been sent to me through Messenger. Ms L retrieved this information from the iPad of her son X aged (9) while he was in her care.
There is no affidavit of Ms L and she was not called as a witness, despite the father seeking to rely upon her evidence as detailed in his trial affidavit.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
(1)Trial affidavit of the father filed 21 September 2020;
(2)Affidavit of the father filed 16 December 2020; and
(3)Affidavit of Ms J filed 15 June 2021.
The mother relies upon the following documents:
(1)Response to Initiating Application filed 29 November 2018;
(2)Trial affidavit of the mother filed on 16 November 2020; and
(3)Affidavit of Mr K filed 28 May 2021.
Each party also relied upon case outline documents filed on 15 June 2021.
THE EVIDENCE
The father
The father was initially concerned to reserve the child’s ability to retain Country EE citizenship. He understood that the wife wanted the child to become an Australian citizen and he was concerned that the child may not be able to retain dual citizenship.
No evidence was called by the father to assist as to the citizenship status of the child either in Country EE or in Australia. The parties have now agreed that they will do all things necessary to facilitate an application for Australian citizenship to be made on behalf of the child.
A significant issue in the proceedings is the distance that separates the home of each of the parties. The father resides at Suburb G and the mother resides in Suburb MM but she and Mr K intend to build a home in N Town. If the mother’s plans to move to the N Region eventuate, the distance between the mother’s present or new residence and the father will remain the same with travelling time of about fifty minutes by car.
The father seeks that the child be in his primary care. If that occurs, then his proposal is that the child would attend S School at Suburb G with her half-sister NN.
The father concedes that he did not see the child between October 2015 to January 2017. He agreed that he did not try to communicate with the child other than sending a present.
It was only when the mother made contact with the father seeking his cooperation for the child’s permanent residency application that he had contact with her.
The father justified his separation from the child on the basis that the mother asserted that he was travelling excessively and that if he did not agree to the child living in the mother’s primary care she would allege that he had sexually assaulted her.
In summary, the father contends that he was fearful of the mother and given that he and his partner had just had a child he was not prepared to risk the consequence of even a false allegation.
The more difficult question not answered by the father is why he did not retain an involvement with the child, particularly when he considered that the child was at risk in the mother’s home arising from her alleged alcohol and drug use and family violence perpetrated by the mother’s partner.
The father placed heavy reliance on a purported history of excessive physical discipline of the child by the mother and a report from the child on 14 July 2018 that the mother had slapped her on the lower back as punishment for losing the mother’s mobile phone.
The father also accepted information he had received from Ms L, the former wife of the mother’s partner Mr K.
The allegations of family violence and drug and alcohol abuse in respect of Mr K are set out at paragraph 64 of the father’s trial affidavit.
Ms L apparently sent text messages and pictures to the father showing Mr K with blood streaming down his head and a smashed bottle of wine. The information provided to the father was that this was an incident of family violence between the mother and Mr K in 2018.
The mother had previously denied that the pictures displayed images arising out of family violence but rather were capable of benign explanation.
Limited weight can be given to the father’s evidence sourced from Ms L in circumstances where she was not called to give evidence. The father was also asked to consider the orders sought in his Amended Initiating Application filed 1 September 2020 which conceded that the parties should have equal shared parental responsibility, that the child should live with the mother and spend time with the father each alternate weekend and half school holidays until 1 January 2023 whereupon the child would spend time with each of the parties on a week about basis.
The father conceded that the orders sought by him in the Amended Initiating Application were inconsistent with the allegations of domestic violence and drug and alcohol abuse in the mother’s home as set out in the father’s trial affidavit.
All of the significant allegations promoted by the father predated the filing of the Amended Initiating Application.
The father expressed confidence that the child would make the transition into his primary care.
There is no basis on the father’s evidence to support such a contention.
Ms J
Ms J is the father’s partner and has been in a relationship with him since February 2014. She has three children from a prior relationship who live with her and the father.
Ms J has no relationship with the mother. She is however supportive of the father’s application for the primary care of the child and has made observations of the positive relationship that exists between the father and the child when they are together and engaging in various activities.
Paragraphs 23 to 30 of Ms J’s affidavit filed 15 June 2021, repeat information allegedly provided by the child of the mother’s excessive discipline and provided her assessment of the inadequate behaviour by the mother in terms of family violence and the mother’s extensive overseas holiday.
Much of the matters raised in Ms J’s affidavit are either inadmissible or not able to be afforded weight.
The mother
The mother tendered the 2019 and 2020 school reports for the child. Each report recognised the child as a competent and keen student. She was considered to be a pleasure to teach and had a positive academic year 4. The mother recognised that at times where handover is between the parties it has been problematic. The mother considered that there was no reason for there to be any difficulty at handover and promoted that the child be picked up and returned from each of the parties homes.
A significant issue in the mother’s affidavit material is an allegation that whilst the parties were together she was sexually assaulted by the father on fifteen occasions.
The father has denied the allegation and the mother did not present any credible evidence that would enable a finding on the balance of probabilities.
The mother recognised that the orders she sought were inconsistent with an allegation that the father perpetrated repeated sexual assault. The mother had the opportunity to present evidence but did not do so.
The mother’s position now is that whilst she maintains that she was the victim of sexual assault by the father it is irrelevant for the current proceedings.
I do not share the mother’s view. Were there to be substance to the mother’s allegation, it would impact adversely on orders that the Court would be prepared to make in terms of the child spending time with the father.
Whilst I do not dismiss the mother’s complaint, given the absence of any evidence I do not propose to give the matter any weight.
The mother was readily prepared to concede that the father is not a risk to the child and that the child needs to spend significant time the father.
After separation, the parties attempted a week about arrangement but the mother considered that it was not in the child’s best interests.
The mother confirmed the orders sought by her in her most recent Amended Response, namely that the parties have equal shared responsibility, that the child live with the mother and spend each weekend and half school holidays with the father.
The mother was opposed to two weekends out of three on the basis that it would impact upon her relationship with the child.
The mother was asked to consider her mental health in August 2015 in circumstances where it appears she was in an abusive relationship with a former partner.
The relevance of the mother’s mental health was as to the basis upon which the father was prepared to enter into a final consent order on 17 September 2015 for the child to live with the mother and spend time with the father as agreed between the parties. It was put to the mother that she did not convey to the father that on 1 August 2015 she had been taken to the P Hospital after threatening self-harm and did not advise him of her admission.
The mother was shown the photographs annexed to the father’s trial affidavit concerning an allegation that on 23 April 2018 there was an altercation between the mother and Mr K evidenced by spilled red wine, a smashed wine bottle and blood on Mr K’s face. The mother repeated her denials as set out in her trial affidavit, referring again to Mr K hitting an overhead cupboard with his head, causing a laceration and bleeding together with wine being spilt and a wine bottle being knocked over and it being smashed when it hit the floor.
The father’s allegation that in 2018 the child was disciplined by the mother for mistakenly taking her phone was denied.
The mother contends that the child did take the phone and gave it to the father who then downloaded its contents. The mother was not able to say how she came to believe that the father had interfered with her phone.
When she thought that the child had again taken her phone the mother admits that she was angry with the child but now concedes she was mistaken. The mother was asked to reflect upon her alcohol use between April and August 2018. The mother admits that at times she did consume alcohol to excess but that it was a reaction to the ill health of her father and her sister’s inability to cope. The mother denies any physical discipline of the child.
The mother did not accept that she was a problem drinker and other than on a few occasions when she admits to consuming more alcohol than was wise, she drank what she believed to be at a normal level. She also admits to having experimented with cocaine use on three occasions, the last time was in mid-2018.
The parties had a significant disagreement in May 2018 concerning the mother’s intention to travel with the child to Bali for a holiday. Initially, the father agreed to sign the documentation necessary for the child to obtain a passport however he further reflected upon the lack of information provided by the mother about the proposed trip and changed his mind. It is his evidence that he was not comfortable with the mother’s proposal and was fearful that the child would be left alone whilst the mother attended a birthday party.
The father acknowledged that the mother was angry when he withdrew his permission and the father’s concern was that the mother was inappropriate in involving the child by explaining that the trip was cancelled because the father withdrew his consent.
The mother then removed the child from her school and took her on a holiday to Queensland. The consequence was that the father did not see the child for about eight weeks.
The mother’s evidence on this issue was unconvincing.
Whilst she may well have been upset at the father’s change of heart, her conduct in unilaterally removing the child from school for an impromptu holiday to Queensland was discourteous and disruptive. The mother’s explanation is that the father had promised the child a holiday and she was determined that it would occur.
The mother’s evidence strongly supports the father’s contention that the mother’s conduct was cavalier, impulsive and unnecessarily involved the child in the adult conflict.
The mother was questioned as to her relationship with Mr K.
The mother agreed that she went out with some friends and returned home very late on 1 September 2018. Mr K was angry with the mother and sent a text message to her setting out in stark terms his concerns. Exhibit “4” comprises the text message between the mother and Mr K on 2 September 2018.
A curious aspect of the evidence surrounds an overseas trip by the mother to Country FF and Country JJ in 2018. It is the mother’s evidence that the purpose of the trip was to attend upon her father who had suffered a stroke in July 2018. The mother and Mr K had been planning an overseas trip to Country JJ in any event. The mother booked flights and accommodation on 31 August 2018 but did not book for the child. The mother emailed the father and asked whether he could look after the child given that she needed to travel urgently and her father’s health was deteriorating.
In the end, the mother decided to leave the child with the father for between three to four weeks. The mother left Australia on 15 October 2018 but did not tell the father that she was going.
Exhibit “6” comprises an email from the mother to the father on 5 October 2018 seeking the father’s permission to enable a passport for the child to issue.
The mother promotes her father’s poor health as the basis for both she and the child to travel to Country FF and see the paternal grandfather one last time.
Even though the notice of her imminent departure was wholly inadequate, the gravamen of the father’s complaint is that he contends the primary purpose of the mother’s trip was to have a holiday and not to attend upon her father. In particular it was put to the mother that she travelled to Country FF, Country JJ and Country HH. The behaviour of the mother was such that she conceded that in placing the child with the father for an extended period she would have been satisfied that the child was not at risk in his care.
The mother was asked about an incident in mid-December 2018 when the child fell down some steps at the beach. The mother agreed that the child had fallen and sustained some cuts and bruises to her legs. More importantly, the mother was aware that the child had hit her head on the stairs.
The mother took the child to the doctor but the import of questions put to the mother was that at the time the child fell down the stairs the mother was some distance away. The implication was that the child was not being properly supervised by the mother.
The mother did not agree with the father’s contention and whilst she was temporarily absent, the child was with friends and other parents. The mother denied that the child was not under appropriate supervision.
A more egregious issue was that the mother did not tell the father that the child had fallen and sustained some injury. The mother acknowledged that she should have raised it with the father but that she was reluctant to do so in circumstances where the father was hypervigilant and as such she wished to avoid further conflict.
Whilst I do not find that the mother left the child without supervision, given that there were some injuries sustained by the child it would have been of more benefit to the child if the father had been informed that an injury had been sustained.
The mother denied that there was any need for concern in respect of drug use. The mother took a hair follicle test on 8 January 2019 but denied the father’s allegation that the mother had dyed her hair after the order.
The mother agreed with the assertion that between 17 and 20 December 2019 the mother left the child with Mr K in LL Town. The mother acknowledged that she had done so to enable her to attend work for three days but the child was given the option of either staying with Mr K or returning with the mother.
In June 2020 the mother also took the child for a COVID-19 test because she had a runny nose. The issue was not the child being administered a COVID-19 test but rather she did not inform the father.
The mother and the child were also involved in a four car motor vehicle collision. The mother posted pictures of the cars on social media. The mother’s car was the third vehicle in the chain collision. The mother denied that the accident was serious although her motor vehicle did sustain damage.
Again, the issue was that the mother did not advise the father that the child had been involved in a motor vehicle accident.
The father sent a message to the mother asking why she did not tell him that the child had been involved in a car accident.
The mother’s response again was that the father was hyper vigilant and she did not wish to give him any concern that would exacerbate the already conflicted relationship between them or elongate the proceedings.
The mother’s response to counsel’s questions was unconvincing.
It is more likely than not that the mother adopted a cavalier attitude to the father and rather than to attempt to engage him in discussion, she determined that it would be easier to exclude him from the child as much as possible.
As considered, there were unconvincing aspects of the mother’s evidence. The mother’s conduct also shows a propensity to take unilateral action if she considers that the father is unduly interfering with what she intends to do.
Mr K
Mr K denied that he had engaged in physical altercation with the mother. He was shown the photograph of blood on his head and he denied it was occasioned by the mother but rather that something fell on his head.
Mr K presented as a reliable witness and whilst I suspect that there is some volatility to the relationship with the mother, there was nothing about his evidence which suggested that either he or the mother engaged in physical violence.
There is nothing to suggest that Mr K is otherwise than a responsible adult.
Mr K agreed that he was upset with the mother that she had stayed out with friends on the night before father’s day in 2018.
Whilst it is likely that Mr K adopts much of the mother’s evidence surrounding the allegation that the parties were involved in a serious physical altercation in 2018 and that the mother had caused an injury to Mr K in September 2018, I am satisfied that he is a responsible adult and that there is no circumstance where he would deliberately harm or place the child at risk.
The father remains concerned as to the stability of the relationship between the mother and Mr K. Whilst the mother and Mr K have spent time with each other both in cohabitation but also separately, the mother is the responsible parent. Whatever potential exists for the mother to be distressed should there be a breakdown of her relationship with Mr K, the issue is whether the mother and the father are capable of being responsible parents committed to the ongoing care, welfare and development of the child.
Dr Q
Dr Q published a family report dated 10 December 2020 following orders made on 3 November 2020.
Dr Q correctly noted the current parenting arrangements in respect of the child and set out in brief the history of the dispute, bringing to account two earlier reports by Ms R dated 5 March 2015 and 11 April 2019.
Dr Q noted that Ms R recommended that the children live with the mother and spend time with the father on alternate weekends and alternate weeks in the school holidays. Ms R’s report was influential in terms of the basis for the current interim arrangements.
Dr Q considered the separate proposals of the parties wherein they equally shared parental responsibility and the child to live with each of them on a shared week about basis.
The parties were not able to agree the future educational arrangements of the child. For reasons that are not readily understood, the mother’s parenting proposal, whilst initially generous in terms of equal time, was conditional upon significant financial contribution by the father towards private school fees and the ability of the mother to take the child out of the Commonwealth of Australia and to travel to any country but in particular Country FF.
Each of the parties alleged historic and current allegations of family violence, drug and alcohol abuse and high conflict, in particular at handover.
Consistent with his evidence, the father reported to Dr Q his concern for the child’s wellbeing in the presence of the mother’s partner, Mr K.
The family assessment included input from the partners of each of the parties. Ms J was supportive of the orders sought by the father as was Mr K supportive of the mother’s proposal, in particular that he considered it important for the child’s welfare and development that she attend a private school.
The child impressed Dr Q as being unhappy and anxious. When asked, the child expressed a wish to live one week with her mother and one week with her father. Dr Q made observations of interaction of the child with the mother and Mr K and then the child with the father and Ms J. The child appeared to be strongly attached to each of the parties and their stepfamilies and appeared relaxed and comfortable during the observed interactions.
Dr Q considered that the separate applications of the parties were complex as a result of family violence and competing allegations of emotional, psychological and physical neglect.
Dr Q summarised the child’s presentation as follows:
98.It appeared that nine-year-old [the child] was concerned about what she could say, and possibly concerned that she would be not be heard or acknowledged without inviting a negative parental response. It also appeared [the child] blames herself (e.g., being a bit annoying), and likely is not confident that she has a right to disagree, or to have an opinion. She did not demonstrate any confidence or hope that things might change or that she is a child who is valued by her parents simply for being herself. It appeared quite possible that [the child] may be learning to believe that she is not seen as a good, lovable and hardworking child by her mother and therefore, she is coming to believe she is not such a child. [The child] may be learning, to her emotional and psychological detriment, to take responsibility for the conflict between her parents and responsibility for her mother becoming angry with her.[2]
[2] Family Assessment Report dated 10 December 2020.
Dr Q was concerned that the mother’s wishes and needs may be prioritised over those of the child. The mother did not impress with her ability to manage her high expectations for the child in respect of travel, academic achievement and the attendance at a prestigious college.
Dr Q considered that neither party were able to appropriately shield the child from their conflict and considered that even though the parties appeared to have some level of agreement about a shared care arrangement, she did not consider that the child’s long term interest would be served by such an arrangement.
The principle recommendation is that the child should live with the father and spend each alternate weekend and half school holidays with the mother.
Following the interviews between the parties, children and Dr Q but before the preparation and distribution of her report dated 10 December 2020 Dr Q facilitated extensive negotiations between the parties. During cross-examination Dr Q was presented with a bundle of documents by counsel for the mother. They contain email communication passing between the parties and Dr Q setting out various proposals and counterproposals. Dr Q had not retained a copy of the documents because she may have received an advice by the Independent Children’s Lawyer that the information was not admissible in court.
Whilst she was not able to compare the documents provided by counsel with the deleted documents, I am satisfied that the bundle of documents that now comprise exhibit “11” are correct copies of the original communication.
The period of communication is between 10 November and 17 November 2020. The subject that appears as a header to the correspondence is variously described as “Proposed mediation”, “Continuing discussions seeking agreed consent orders” and “continuing discussions working towards consent orders”.
The tenor of the communication is focussed on issues relating to the child’s citizenship, education, child support and the financial arrangements between the parties as may be required if the child was to attend the private schools of choice of each of the parties, in particular the mother.
The concerns raised by Dr Q in her subsequent report were not mirrored in her views concerning the separate proposals of the parties during the attempted mediation. Her facilitation of the negotiations and possible settlement between the parties was inconsistent with her recommendations.
The involvement of Dr Q in the parties’ negotiations was extensive and I find that it overwhelmed the assessment process. I do not suggest that it is inappropriate for a child expert to explore a possible resolution between the parties if the opportunity presents itself but care must be exercised that by focussing on a possible settlement the child expert has not created a conflict of interest.
In circumstances where Dr Q was prepared to support and promote an outcome in respect of the child spending time with each of the parties that is qualitatively different to her recommendations in the report, I consider that the recommendations are unreliable. Whilst there are aspects of the report which are of assistance in terms of the information passing between the parties and Dr Q together with her observations of interaction between the children and the parties, the assistance that would normally be provided by a well-considered family report is not available in this case.
Given the extent of Dr Q’s involvement in the parties’ negotiations, the child expert should have considered that it was no longer appropriate for her to provide a family report. Even if Dr Q properly considered that the negotiations between the parties may well be inadmissible, that does not mean that she was entitled to remain silent on her extensive post assessment involvement.
PRINCIPLES RELATING TO PARENTING
Section 60CA of the Family Law Act 1975 (Cth) (“the Act) requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I give weight to the primary considerations and additional considerations in respect of the factors as set out in ss 60CC(2) and (3) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
PARENTING CONSIDERATIONS
Meaningful relationship
The parties are agreed that the best interests of the child are served by maintaining a meaningful relationship with each of the parties.
Whilst it appears that the parties may well have been able to reach a comprehensive agreement as to the future parenting arrangements for the child but for the hurdles created by their disagreement as to where the child should go to school, costs associated with curricula and extracurricular involvement and issues relating to the child’s citizenship and overseas travel, even on the more limited basis of the orders sought by the parties, a meaningful relationship is able to be maintained.
The need to protect the child from physical or psychological harm, or exposure to abuse, neglect or family violence
Each of the parties allege that the other has engaged in conduct that is consistent with family violence. As discussed, the proposals of each of the parties are inconsistent with an assertion that the child is at significant risk in their separate care. I bring to account the dispute between the parties and in particular the father’s allegation that there is a volatile relationship between the mother and her partner Mr K. I do not consider that the state of the evidence is such that I am able to make a finding on the balance of probabilities that there was a violent altercation between the mother and Mr K in 2018. To the extent that much of the evidence that underpins the father’s allegations of family violence in the mother’s home has Ms L as its source, I place no weight on that evidence.
I do not consider that the child is at risk in either the father or the mother’s care nor do I consider that Ms J and Mr K are other than appropriate caregivers.
Views of the child
The child is 10 years of age. In interview, Dr Q noted that the child appeared unhappy and anxious.
She expressed a wish to live week about with the parties.
When asked where she is the happiest her response was on her body board in a river near the father’s home.
Her justification for wanting week about, a friend of hers was in a similar parenting arrangement.
I bring to account the wishes and views expressed by the child but in the circumstances of this case, I do not consider that significant weight can be attached to what was effectively an utterance by the child. The child did not impress as having the ability to maturely reflect upon her circumstances and in particular the logistics of her navigating between the homes of each of the parties.
The child’s views do however reinforce a finding that she is safe and secure in each of the parties’ respective households.
The nature of the relationship of the child with each of the child’s parents and other persons
The child has a close attachment to each of the parties.
Whilst there were differences noted by Dr Q in the child’s interaction with each of the parties, the child was observed to enjoy a close relationship with each of the parties and their partners. The child appeared comfortable and relaxed following each observed interaction.
The observations of the interaction reinforce a finding that the child feels safe in the separate households of the parties and is not fearful of either party or their partners.
Whilst the father maintains a concern as to the volatility in the mother’s household, the observed interaction does not support a finding that the child is fearful of the mother or in particular Mr K.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues
The parties each want to spend as much time with the child as is practicable.
Either party does not wish to participate in attempting to reach consensus and accord as to major issues that are likely to impact on the child.
The conundrum that the parties face in attempting to reach agreement about education, citizenship and overseas travel underpins and highlights the extent to which they want to play an important part in the child’s life.
Whilst critical of the involvement of Dr Q in the lengthy negotiations between the parties in circumstances where her primary function was to undertake a family assessment, the very nature of the communication between them suggests that when they set their minds to the task, they are able to give proper consideration to the child’s needs.
The important aspect of the parties’ negotiations is not that they could not agree but that they genuinely attempted to work through issues of significance to the child.
That consideration is important in that it underpins the ability of the parties to explore a consensus as to significant issues affecting the child and provides a proper foundation for a determination that there should be shared parental responsibility.
The likely effect of any changes in the child’s circumstances
The consideration by the parties of whether the child’s care should be shared has not been the subject of agreement and is likely to be unworkable. The mother’s focus was on a particular focus on the child being schooled at a private school. The father is not necessarily opposed to a private school education but the parties were not able to reach agreement as to how the costs could be met or shared.
The more important consideration is the practicality of an order for shared care. Given the distance between the parties’ current residences and potentially the mother and Mr K’s new residence in the N Region, there is a concession that shared care would be unworkable.
The parties separated in December 2013. Following separation, the child spent alternate weekends with the father.
In mid-2014 the parties commenced a week about arrangement which ultimately reduced to each alternate weekend from early 2015.
The child has spent time with the father effectively pursuant to interim orders made on 30 June 2015 and then the final consent order made on 17 September 2015.
There is no evidence presented that would assist in understanding how the child would react to either transitioning to the primary care of the father or even to shared care.
I do not ignore the evaluation and recommendations of Dr Q but given her support of the negotiations between the parties are inconsistent with her recommendations, they are of little assistance.
I do not bring to account the long standing arrangements between the parties other than as one of a number of factors that must be considered.
The practical difficulty and expense of the child spending time with and communicating with a parent
The significant difficulty is that the parties are not able to agree as to a method and manner by which the child is to be schooled that would enable each of them to maintain a significant involvement.
The reality is that in the absence of agreement between the parties, there is a practical difficulty in an order for shared care. The consideration is therefore whether the child should remain in the primary care of the mother or transition to the primary care of the father. In either scenario the parties would be able to maintain a meaningful relationship with the child.
Family violence
Each of the parties allege a history of family violence. I do not ignore the concerns of each of them but in circumstances where I am not able to place weight on those allegations and where the separate proposals of the parties are inconsistent with the issue of family violence presenting as a risk to the child, I do not consider that it is a matter I should bring to account.
Any other factor or circumstance that the Court thinks is relevant
The parties have agreed to do all things necessary to enable the child to apply for Australian citizenship. There is also agreement that the child is able to travel with each of the parties to countries that are not signatories to the Hague Convention.
The parties are not agreed as to whether the child will receive a private school education and if so, how the fees and charges are to be paid.
It is readily apparent that the mother considers that the child’s interests would be best served by her attendance at a private college. The school nominated by the mother is understood by the parties to be high charging. The father was prepared to make a contribution but not to the level as sought by the mother. There was some evidence from the mother’s partner that he would be prepared to pay for the child’s school fees. Such an outcome would not be appropriate.
There is no history of the child attending a private school nor did either of the parties present evidence that the needs of the child would be best met by the school nominated by each of them.
To exceed to the mother’s proposal for the child’s education would be to concede that a private school education and in particular at the school nominated by the mother provides a superior level of education than either a public school or the school nominated by the father. If that thinking underpins the position of either of the parties then the proposition should be rejected.
It would be an anathema to an equal and inclusive society to suggest that without there being a particular need or focus of the child, a private school education is superior to a public school education.
I do not consider that one parent has the right to force the other parent to contribute to the private school fees of a child if there is no history of prior attendance at a private school.
It is a potential area of conflict for the parties as to where the child will attend school but in the absence of evidence that would enable the issue to be determined, no order can be made.
The very fact that the parties are not able to agree the child’s future education arrangements could be a relevant consideration to parental responsibility. In the circumstances of this case, the mere fact the parties are not able to agree as to the future educational arrangements for the child is not enough to consider enabling one party to determine where the child should go to school.
PARENTAL RESPONSIBILITY
The parties are not in agreement but do not strenuously oppose equal shared parental responsibility. There has been a consideration as to whether the parties should have equal shared care. I consider that the evidence determines that it would not be in the child’s best interests for shared care.
I do not consider that such an order would be practicable and in any event the current arrangements for the child have been in place for a number of years. But for the recommendation of Dr Q, no evidence was presented that enables a consideration of the impact on the child of a significant change, namely a transition to the primary care of the father.
I consider that the parties will be able to act in the child’s best interests and reach consensus on major issues affecting the child. Each of the parties’ expectations may need to be reconsidered in order that agreement can be reached but their ability to reach consensus is likely to result in the best opportunity for the child to develop and progress.
CONCLUSION
I consider that the child should remain in the primary care of the mother and spend each alternate weekend and half school holidays with the father.
I will make orders that also incorporate the agreement of the parties.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 26 November 2021
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