STERN & COLLI
[2020] FCCA 795
•8 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STERN & COLLI | [2020] FCCA 795 |
| Catchwords: FAMILY LAW – Parenting – consideration of equal shared parental responsibility – consideration of increased time between father and child considering child’s age, stage of development and geographical distance between the parties – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Rice & Asplund, In the Marriage of (1979) FLC 90-725 |
| Applicant: | MR STERN |
| Respondent: | MS COLLI |
| File Number: | MLC 7373 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 29 & 30 May 2019, 12 March 2020 |
| Date of Last Submission: | 12 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 8 April 2020 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondent: | Mr Marchetti |
| Solicitors for the respondent: | Quintessential Lawyers |
ORDERS
The parties have equal shared parental responsibility for the child X born in 2017 (“the child”).
The child live with the mother.
The child spend time and communicate with the father as follows:
(a)until the child attains the age of three (3) years:
(i)each Wednesday from 10:00am until 5:00pm; and
(ii)each alternate weekend from 10:00am on Saturday until 3:00pm on Sunday;
(b)upon the child attaining the age of three (3) years:
(i)each Wednesday from 10:00am until 5:00pm;
(ii)during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;
(iii)during the Easter period from 4:00pm on the Thursday prior to Good Friday until 9:00am on the Saturday prior to Easter Sunday; and
(iv)during the Christmas period from 9:00am on 24 December to 4:00pm on 26 December;
(c)upon the child attaining the age of four (4) years:
(i)each Wednesday from 10:00am until 5:00pm;
(ii)during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;
(iii)for two (2) periods of three (3) days each during the school term holidays at times to be agreed between the parties and failing agreement, from 9:00am on Saturday until 1:00pm on Tuesday each week;
(iv)during the Easter period from 9:00am on the Saturday prior to Easter Sunday until 4:00pm on Easter Monday;
(v)during the long summer school holidays between four (4) year old kindergarten and foundation, for four (4) periods of three (3) nights with the father at times to be agreed and failing agreement:
A.from 9:00am on 26 December to 4:00pm on 29 December; and
B.from 9:00am on 4 January to 4:00pm on 7 January;
C.from 9:00am on 14 January to 4:00pm on 17 January; and
D.from 9:00am on 22 January to 4:00pm on 25 January.
(d)upon the child commencing foundation year:
(i)during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;
(ii)during the school term holidays, for one period of four (4) days and one period of three (3) days at times to be agreed and failing agreement:
A.from 9:00am on the first Saturday of the school holiday period until 1:00pm the following Wednesday; and
B.from 9:00am on the second Saturday of the school holiday period until 1:00pm the following Tuesday;
(iii)during the Easter period from 4:00pm on the Thursday prior to Good Friday until 9:00am on the Saturday prior to Easter Sunday;
(iv)for the long summer school holidays in the year between the child being in foundation and Grade 1, for three (3) periods of five (5) nights at times to be agreed and failing agreement:
A.from 9:00am on 23 December to 4:00pm on 27 December;
B.from 9:00am on 6 January to 4:00pm on 11 January; and
C.from 9:00am on 21 January to 4:00pm on 26 January;
(e)upon the child commencing Grade 1 and thereafter:
(i)during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;
(ii)during the school term holidays in Grade 1, for one (1) period of five (5) nights and one (1) period of two (2) nights at times to be agreed and failing agreement:
A.from 9:00am on the first Saturday of the school holiday period until 4:00pm the following Thursday; and
B.from 9:00am on the second Saturday of the school holiday period until 4:00pm the following Monday;
(iii)during the Easter period in Grade 1 and each alternating year thereafter, from 9:00am on the Saturday prior to Easter Sunday until 4:00pm on Easter Monday;
(iv)for the long summer school holidays:
A.in the year between the child being in Grade 1 and Grade 2 and each alternate year thereafter, on a week about basis with the child to spend time with the father in the first week of the long summer school holidays and each alternate week thereafter, save and except that if the father’s time falls during the Christmas period, such time be suspended and the child spend time with the mother; and
B.in the year between the child being in Grade 2 and Grade 3 and each alternate year thereafter, on a week about basis with the child to spend time with the father in the second week of the long summer school holidays and each alternate week thereafter, save and except that if the mother’s time falls during the Christmas period, such time be suspended and the child spend time with the father;
(v)during the school term holidays in Grade 2, for one (1) period of seven (7) days at times to be agreed and failing agreement, from 9:00am on the first Saturday of the school term holiday period until 5:00pm on the second Saturday;
(vi)during the Easter period in Grade 2 and each alternating year thereafter, from 4:00pm on the Thursday prior to Good Friday until 9:00am on the Saturday prior to Easter Sunday;
(vii)during special occasions such as Father’s Day and birthdays at times to be agreed between the parties in writing;
(viii)via Skype or Facetime each alternate Sunday at 9:00am and each Friday at 6:00pm unless the child is already in the father’s care on either of those times, provided that the father, his servants and/or agents be and are hereby restrained by injunction from:
A.directly addressing the mother during the call, other than to initiate or terminate the call; and
B.taking photographs of the mother’s home; and
(ix)such other times as may be agreed between the parties in writing.
For the purpose of the implementation of these orders:
(a)“the Christmas period” is defined as the period from 9:00am on 24 December to 4:00pm on 26 December; and
(b)“the Easter period” is defined as the period from 4:00pm on the Thursday prior to Good Friday until 4:00pm on Easter Monday.
Unless as otherwise agreed between the parties in writing, changeover shall occur as follows:
(a)for the purpose of any time occurring prior to the child attending school:
(i)on Wednesdays, the father shall collect and deliver the child from the daycare centre at the commencement and conclusion of time; and
(ii)for all other changeovers, the father shall collect the child from McDonalds Family Restaurant in Town A, and the mother shall collect the child from McDonalds Family Restaurant in Suburb B at the conclusion of time; and
(b)upon the child commencing school:
(i)on a school day, the father shall collect the child from school at the commencement of time;
(ii)on a non-school day, the father shall collect the child from McDonalds Family Restaurant in Town A; and
(iii)the mother shall collect the child from McDonalds Family Restaurant in Suburb B at the conclusion of time.
The parties be authorised to discuss with the child’s medical and allied health providers any details of the child’s medical health and/or needs, subject to the following conditions:
(a)the parties discuss issues specific to the child and not in relation to information that may involve the parents’ health;
(b)the parties bear their own costs for any such discussions; and
(c)the parties keep the other informed of the name and contact information for any medical professionals, hospitals, maternal health centres and the like that the child may attend from time to time.
If the parties are unable to agree on what school X should attend, they are to engage in FDRS in relation to that issue no later than nine (9) months prior to the commencement of X’s foundation year.
Upon the child attending daycare, kindergarten or school, both parents be at liberty to:
(a)receive copies of all documents ordinarily received by parents, at their own expense, including but not limited to school reports, newsletters and photograph order forms; and
(b)attend all school and extra-curricular activities ordinarily attended by parents, including but not limited to sporting events, concerts, parent/teacher interviews and working bees.
Should the child suffer an acute illness or injury in the care of a parent, that parent notify the other parent as soon as practicable and:
(a)provide the name and contact information for the treating hospital or doctor to the other parent;
(b)provide authority to such hospital or doctor to speak with the other parent as to the child’s diagnosis, prognosis or treatment; and
(c)both parents be entitled to attend at the time of any such treatment.
The parties be restrained by injunction from using, encouraging or allowing any other person, including the child, to use the term “mummy” or “daddy” or any derivatives of same, to refer to any person other than the biological mother and father of the child.
The parties forthwith attend and complete, as soon as practicable, a parenting orders program through Region C Family Care (“the program”) and the parties:
(a)do everything reasonably necessary to enrol in, undertake and successfully complete the program;
(b)pay all costs associated with their participation in the program;
(c)attend and complete, as soon as practicable, any further course or program recommended by Region C Family Care; and
(d)provide a copy of the certificate of completion of the program/s to the other parties or their solicitors.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Stern & Colli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7373 of 2017
| MR STERN |
Applicant
And
| MS COLLI |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in relation to the child X born in 2017 (“X”).
At the time of trial, X, who was 2 years of age, was living with the mother who resides in Town A, and spending time with the father each Wednesday in Town A and for one overnight at the father’s home in Suburb G.
The parties’ proposals
Father’s proposal
The father seeks orders which provide for:
a)the parties to have equal shared parental responsibility;
b)an increase in the time that X spends with him, including additional overnight time at his home in Melbourne;
c)time with X over Christmas and Easter periods;
d)changeover to occur at either Town D or Town E;
e)increased Skype communication when X is not spending time with him;
f)the mother to make X available to spend additional time with the father if she travels within 30 kilometres of the father’s home for one night or more; and
g)make-up time in certain prescribed circumstances.
The father also seeks:
a)orders which require the parents to encourage and support X’s relationship with each of her parents and her siblings;
b)non-denigration provisions;
c)a restraint on the mother from using any name for X other than her registered surname, namely ‘Colli-Stern’;
d)orders about communication with respect to medical and educational matters;
e)that the parties engage in mediation prior to X attending kindergarten, primary school and secondary school; and
f)an order permitting either party to return to court if agreement cannot be reached in relation to educational matters following mediation.
In addition, the father seeks that the mother pay the costs of these proceedings and a further notation that he has sought these orders on the basis that the parties live a significant distance from each other. He added that if the parties relocated to an area within 90 minutes of each other, they be required to attend mediation to address any changes to the parenting orders and failing agreement, each party have leave to return to court seeking changes to the proposed orders.
Mother’s proposal
The mother seeks orders which provide for:
a)her to have sole parental responsibility with respect to education and health issues subject to seeking the father’s views on any such issue and the parents attempting to make a genuine effort to come to a joint decision about such matters;
b)the child to live with her;
c)the child to spend time with the father on a graduated basis, with:
i)the current regime to continue until X is three years of age and then an additional overnight each alternate weekend;
ii)from the age of four, two additional periods of three days during term school holiday periods and four additional periods of three nights during the long summer holidays;
iii)on commencing primary school, in addition to alternate weekends, an increase to one period of four days and three nights during school term holidays and three periods of five nights during the long summer holidays;
iv)from grade one, again in addition to alternate weekends, two additional periods during school term holidays (one of five nights and the other of two nights) and on a week about basis during the long summer holidays; and
v)from grade two onwards, in addition to alternate weekends, all school holiday periods on a week about basis.
The mother seeks that Skype time continue as currently in place, subject to the following limitations:
a)the father be restrained from speaking directly to the mother other than for the purpose of initiating or terminating the communication; and
b)the father be restrained from taking any photographs of the mother’s home during such communication.
In relation to changeover, the mother proposes:
a)the father collect and deliver X from her daycare centre at the commencement and conclusion of his time on a Wednesday; and
b)at all other times:
i)the father collect X from Town A McDonalds until she commences school; and
ii)once she commenced school, from school at the commencement of time with the mother collecting X from Suburb B McDonalds at the conclusion of time.
The mother also seeks:
a)upon giving the father 28 days’ written notice, a suspension of his time with X for a period of 7 days to facilitate the mother travelling interstate to complete her degree; and
b)that the parties use a parenting telephone app for the purpose of communicating about X and a joint calendar with respect to X.
The mother proposes that both parents be authorised to:
a)obtain medical information about X and discuss X’s medical issues with any treating medical practitioners;
b)receive information about X’s day care, kindergarten or school; and
c)attend all school and extracurricular activities.
Under the mother’s proposal, if X suffers any significant illness or injury in the care of a parent, that parent must notify the other as soon as practicable and provide the other parent with relevant information.
The mother also seeks a restraint on the father using or permitting the use of the term ‘mummy, mum’ or any variation thereof for the father’s current wife, Ms F, including in combination with another name.
Background
The parties commenced a relationship in 2014 and separated in 2016, six months prior to X’s birth. The mother is a professional. The father is a professional.
The mother and X live in Town A. The father lives in Suburb G. There is a distance of some 280 kilometres between their respective homes. The parents have never lived in the same location. The mother’s evidence at trial is that she has no intention of moving from Town A.
There is only one child of the relationship. The mother has no other children. The father has two other children with his wife, Ms F, including a daughter, H Stern-F, also born in 2017 (“H”) and a son, J Stern-F, born 2019 (“J”).
The mother, the father and Ms F were in a polyamorous relationship at the time that X and H were conceived. The mother asserts that she was never comfortable with this arrangement and, moreover, that the father had promised that he would become monogamous and marry her if she became pregnant with his child. The father denies this, and he together with Ms F, gave evidence that the mother consented to the polyamorous relationship at all times. It is not necessary for the purposes of this decision to make any findings in relation to this issue. It is common ground that irrespective of the mother’s commitment or otherwise to the polyamorous relationship, the mother ended her relationship with the father shortly after finding out that she was pregnant and expecting X. It is also common ground that the father and Ms F remain in a relationship and, as stated, now have two children together.
It was not in dispute that at the time that the parties were considering starting a family together, their intention was that the mother would return to work after a short period of maternity leave and the father would raise the child for the first couple of years as a stay-at-home father.
The mother gave evidence that whilst that was initially her intention, once the relationship came to an end, she had to reassess her plans in this regard.
It is common ground that around the time of separation, the mother raised the issue of whether the father would relinquish any ‘parental rights’ he might have in relation to X if she did not pursue him for child support. In response, the father’s position was essentially that the issue was not his rights, but X’s right to have a relationship with him.
Also around the time of separation, the mother posted the following comments online:
Living so far apart is a big help – hopefully, living on her income, it will be too far and too expensive to want to exercise his parental rights and responsibilities. I will try for sole parental responsibilities.[1]
[1] Paragraph 54(a) of the father’s affidavit affirmed and filed 3 April 2018.
…
There is a four hour drive between us, and he has his other girlfriend, who is due at the same time. I am guessing she will not be permitting him to spend weekend time coming up here. It is a long way, takes effort and costs money.[2]
[2] Paragraph 54(b) of the father’s affidavit affirmed and filed 3 April 2018.
In addition, the mother also posted the following comment on 1 December 2016:
… the father has been an enormous jerk, and I figure the four hour drive between our houses will keep him away. Hope so anyway.[3]
[3] Paragraph 54(c) of the father’s affidavit affirmed and filed 3 April 2018.
The mother concedes that she posted these comments; however indicated at trial that her position in relation to the father having a role in the child’s life had changed since making these comments. The father submits that the court should not accept her evidence in relation to this. The father relies on these comments, together with other matters, in support of his argument that:
a)the mother has sought to exclude him from X’s life since the beginning;
b)the mother does not actively support his relationship with X; and
c)this is an important factor in considering what orders ought to be made for X’s time with the father.
The mother’s case is that the father’s behaviour is controlling and she has sought to balance the impact of this behaviour on her on the one hand, while facilitating a relationship between X and the father on the other. These issues are explored further below.
On 5 September 2017, her Honour Judge Stewart made orders for X to spend time with the father twice a week in Town A, although not in the mother’s home. The mother’s application for the father’s time to be supervised was not granted, nor was the father’s application for the mother to share in some of the driving to facilitate the father’s time with X.
As stated, Ms F gave birth to H on the same day that X was born. Ms F took a period of maternity leave following H’s birth and returned to full time employment in 2017. The father commenced a two year period of parental leave in 2017, becoming H’s primary carer.
In April 2018, orders were made by consent for the father’s time with X to increase from two to three hours, three times per week.
The mother returned to full time employment in 2018 and X commenced attending daycare.
The matter was transferred to the Albury circuit at the mother’s request and after a consent adjournment, was listed for final hearing on 20 June 2018. The matter was not reached on that occasion and was adjourned to 28 November 2018. Further orders were made by consent providing that X would spend increasing daytime with the father and some Skype time.
The father and Ms F married in 2018 and it is common ground that the mother facilitated X’s attendance at the wedding.
On 28 November 2018, the matter was again not reached. The court adjourned the hearing to 3 April 2019 and made further orders increasing the father’s time with X providing for one overnight each alternate weekend.
When the matter came on for hearing on 3 April 2019 before me, it was again not reached. It was listed with priority before me in the Dandenong registry in late May 2019. Further interim orders were made by consent which provided for the mother to be permitted to travel to Sydney with X from 16 April 2019 to 23 April 2019.
The father’s evidence at trial, which was not disputed, is that when he resumed work in October 2019, he would be required to attend during normal business hours and would not have any flexibility to enable him to drive to Town A to spend time with X.
However, on 16 February 2020 the father filed an application in a case seeking to lead further evidence in this matter. That application was listed before me on 12 March 2020, at which time the parties agreed that I could have regard to the following additional matters:
a)since the final hearing in this matter, the father has continued to spend mid-week time with X; and
b)it is now the father’s intention to seek work on a part-time basis.
Issues
The following issues arise for consideration in this matter:
a)the progression of X’s time with her father, including:
i)the speed with which any additional overnight time should be ordered and when that should occur;
ii)the frequency of Skype time; and
iii)whether the mother ought to provide the father with the first option for additional time with X if she travels to within 30 kilometres of the father’s home for one or more nights;
b)whether the parents should have equal shared parental responsibility;
c)whether there should be a restraint on the father:
i)referring to, or permitting any other person to refer to someone other than the mother as ‘mummy, mum’ or any variation thereof; and
ii)speaking to the mother during any Skype time other than for the purpose of initiating or terminating the Skype call and taking photographs of the mother’s home during any Skype calls;
d)whether the orders ought to include a notation which contemplates the resumption of legal proceedings in certain circumstances.
In determining these matters, one of the key themes is the communication between these parents and their capacity to make joint decisions which are in X’s best interests.
Evidence
General comments
The father represented himself at trial and relied upon the following documents:
a)his affidavit affirmed and filed 13 June 2018;
b)his supplementary affidavit affirmed and filed 26 March 2019;
c)Ms F’s affidavit affirmed and filed 13 June 2019; and
d)her supplementary affidavit affirmed 19 and filed 20 March 2019.
Both the father and Ms F were subject to cross examination.
The mother relied upon all affidavits filed by her in these proceedings.
The mother also gave evidence and was subject to extensive cross examination by the father in these proceedings. The father stated on a number of occasions that he took no pleasure in having to cross examine the mother. Moreover, the father submitted that the court ought not draw any adverse inferences from the manner in which he communicated with the mother in the course of cross examination and in particular, ought not infer that this was representative of how he communicates with her generally.
I had the benefit of observing both the mother and father in the witness box for a significant period of time. On the basis of those observations and having considered the affidavit material filed by each of them, I make the following general observations:
a)The father has a positive and loving relationship with X and she with him.
b)X also has a positive and loving relationship with her mother with whom she has lived since birth.
c)Both parents, to their credit, acknowledge the benefit to X of a meaningful relationship with each of her parents. The question raised in this proceeding is how that is best achieved in circumstances where X is still very young, the parents live some four hours away from each other and there are issues between the parties as to how they interact with each other.
d)For his part, the father finds the mother’s refusal to accede to his requests for additional time with X to be unreasonable and an unnecessary limitation on his relationship with his daughter.
e)Contrary to the father’s assertions, the mother has and continues to facilitate X’s relationship with him.
f)Whilst the father clearly has, and wishes to continue to have, a significant parenting role in relation to X, the father appears unable to appreciate the impact of his communication style on the mother. It is clear from the mother’s evidence and her demeanour that she finds the father’s constant demands for more time with X to be intrusive and unreasonable.
X’s birth
It is not in dispute that the father first met X two days after she was born. The father is critical of the mother for refusing to allow him to meet X earlier. The mother maintains that notwithstanding her own desires about limiting her interactions with the father, she advised him of the fact that labour had commenced and of X’s birth in a timely manner. Her evidence is that the father’s persistent calls to the hospital whilst she was in labour and in the days that followed were a further example of his controlling behaviour.
As to X’s birth, the father gave the following evidence:
I never ‘demanded’ to be present at X’s birth. I was conscious of Ms Colli being a single mother in a country town and not having local supports so I offered to be present in support and Ms Colli declined. I later asked if Ms Colli could have one of her support people keep me advised as to the progress of her labour. After Ms Colli told me she was in labour and there was no other way to find out what was going on, I did ring the hospital to find out whether X had been born. I did not ask to speak with Ms Colli while she was in labour. I did start driving up to Town K as my other daughter was not due for 6 days and I wanted to be able to see X after she was born, but partway up turned back. In the end, Ms Colli refused to let me see X until two days later.[4]
[4] Paragraph 171(t) of the father’s affidavit affirmed and filed 13 June 2018.
The mother’s evidence about this is that:
a)she advised the father in advance that she did not want him to be present during labour;
b)notwithstanding this, he insisted that she tell him when labour began, which she did;
c)at 11:00pm, she told the father that X had been born at …pm, and ‘afterwards he expressed anger that it took so long to contact him and showed absolutely no understanding that I had been busy with the medical issues that occur after the birth such as stiches and giving the first feed to X.’[5] and
d)the following day, she was transferred from Region L Health to Town A Hospital, and did not want to be visited by the father as she and X were still recovering from the birth.
[5] Paragraph 3(t) of the mother’s affidavit affirmed 30 August and filed 1 September 2017.
In the course of cross examination, when it was put to the father that the mother’s response in not permitting the father to see X for two days after her birth was reasonable, the father said:
Well, I didn’t at that point appreciate the level of hostility there. I actually had hoped that we would be able to co-parent in a friendly fashion at that point. …there are text conversations in that period of time where I thought that we were going to – we were trying very to be good, friendly parents with each other.[6]
[6] Transcript page 45 at lines 31 to 35.
July 2017 incident
It is also common ground that following X’s birth, the mother facilitated the father spending time with X in her home until 17 July 2017 (a period of almost two months).
Both parties concede that this was tense and difficult for them.
The mother gave the following evidence about the father’s visits with X in her home:
a)although the agreement was for the father to visit for some two hours, he would often stay for as much as three hours;
b)the father would insist on holding X when he came, even if she was sleeping or in need of a feed or other care routines;
c)although she found it difficult, she did object to the father waking X if she was sleeping when he came to see her, but if she left the room he would wake her and this resulted in her being more difficult to settle when the father had left; and
d)it was very uncomfortable for her to have the father in her home during these visits as he took issue with X’s sleep habits and complained that the mother did not express so that he could feed X during his time with her.[7]
[7] Paragraph 3(v) of the mother’s affidavit affirmed 30 August and filed 1 September 2017.
The father deposed that he was unable to see X as usual on the weekend of 15/16 July 2017 as the mother had travelled to City M and did not agree to his request to spend time with her in City M, even though this was closer to Melbourne than Town A. The father then attended the mother’s home on 17 July 2017.
An incident on 17 July 2017 resulted in the mother calling the police to her home (“the July 2017 incident”). It is common ground that on that occasion, the father wanted to take X out for a walk in her pram and the mother refused. The father asserts that following this incident, the mother ‘cut off all time with X’. The mother denies this and says that the father’s response to this was another example of his controlling behaviour.
The father’s evidence in relation to the July 2017 incident is that the atmosphere throughout his visit was tense. After X had been fed, he asked if he could have a coat so that he could take her outside for a walk, that the mother refused and told him that if he took her outside, she would call the police. The father stated that he did not wish to argue with the mother and therefore took X to the car, but then realised that it was too cold for her without a warm jacket and returned to the mother’s home, by which time she had called the police. The father deposed:
In the meantime Ms Colli had called the police. The officer on the phone asked her to hand the phone to me, and after ascertaining that the environment was calm, told me they would come over and to wait for them at the house. …When they arrived, they spoke with each of us separately, and Ms Colli asked through the officer speaking with her for me to leave the house, which I did. She did let me say goodbye to X and that we would discuss the next visit, for Saturday, by email or text.
This was the beginning of a pattern from Ms Colli where she would insist on a course of action and if I did not accede to her demands in full, she would escalate the conflict regardless of its impact on X.[8]
[8] Paragraph 37(d), (e) and (f) of the father’s affidavit affirmed and filed 13 June 2018.
The father then went on to say that following this visit, the mother ‘refused to respond to my attempts to contact her and arrange the next visit with X, and I then commenced these proceedings.’[9]
[9] Paragraph 38 of the father’s affidavit affirmed and filed 13 June 2018.
The father emailed the mother on 18 July 2017 proposing a parenting plan to which the mother did not respond immediately.
The mother’s evidence about the July 2017 incident is largely consistent with that given by the father. She says that the father was angry when he arrived for his visit with X, that he woke X from her sleep so he could spend time with her and after having spent time with X in her home, the father asked to take X for a walk.
The mother said that she did not agree to this and the father then said he would take her for a drive. The mother said that the father did not say how long he would be and she was concerned for a number of reasons, not least of which was because at that stage, X was less than two months old and was being breastfed on demand.
The mother told the father that if he took X out of her home, she would call the police. Notwithstanding this, the father did take X outside and she called the police.
To the extent that there are differences between the father and the mother’s evidence about the July 2017 incident, I prefer the mother’s evidence.
The mother deposed that she was left feeling distraught following the July 2017 incident and it was in this context that she received the father’s email attaching a proposed parenting plan the following day. The mother accepts that she did not respond to the father’s email immediately although she did respond four days later on 21 July 2017. The mother received a text message from the father on 19 July 2017 expressing concern about her state of mind when they last met on 17 July 2017 and stating that he was considering calling the police for a welfare check. The police did subsequently contact her and she presented herself at the police station with X.
It was in this context that the father then advised the mother on 21 July 2017, that he had initiated these proceedings because of her failure to respond to his correspondence from 18 July 2017. Not unreasonably in my view, the mother deposed to being quite astonished at this given that they were in the process of arranging mediation to discuss parenting matters. The father had initiated the mediation process and an intake interview had been scheduled for the mother. Notwithstanding this, the father initiated these proceedings before the parties had an opportunity to attend any such mediation.
The father says he initiated these proceedings because he was aware of the likely delay in the matter reaching the court and was concerned that the mother had ‘cut off all time’ with X.
The mother says that in part, she did not immediately respond to the father’s communications between 17 and 21 July 2017 because she was seeking assistance from the Centre Against Violence after feeling under ‘a huge degree of pressure’.[10]
[10] Paragraph 3(jj) of the mother’s affidavit affirmed 30 August and filed 1 September 2017.
The mother’s evidence is that it was in this context that she sought and obtained an intervention order.[11] She refutes the father’s assertion that she sought and obtained an intervention order to improve her prospects in these family law proceedings. I accept the mother’s evidence in this regard.
[11] The mother obtained an interim intervention order on 4 August 2017 naming her and X as affected family members.
Father’s time with X
The father has given detailed evidence about X’s time with him and the various activities they engage in when together. It is not disputed that:
a)X has a loving and positive relationship with her father; and
b)the father has taken, and continues to take, all reasonable steps to be a positive and constant presence in X’s life.
This is to both parties’ credit. For the father, he has undertaken a significant amount of travel to spend time with X on a frequent and regular basis. So much is not in dispute. I also accept that if X were to spend more time with the father, she would be able to benefit from more of these activities. However, the father’s capacity to parent X is not the issue in this case.
The issue in this case is, and always has been, how quickly the father’s time with X should progress having regard to:
a)X’s age and stage of development;
b)importantly, the distance between the father’s home and that of the mother, as X’s primary carer; and
c)the significant communication issues between these parents.
In relation to X’s overnight time which commenced on 8 December 2018, the father states, and I accept, that X has adapted well to the overnight time, including the travel from Town A to Melbourne each alternate weekend.
Ms F has given evidence about the father’s parenting capacity with respect to their children, H and J and also with respect to X. In circumstances where no issue is taken with the father’s parenting capacity generally and the fact that X has a positive and loving relationship with him and with his family, I do not propose to set out that evidence in any great detail, save to say that it is consistent with the father’s evidence and I have had regard to it.
Ms F deposed that X’s overnight time is positive, that X is well settled and that both X and H enjoy each other’s company.
The father continues to express concerns about X’s mid-week time with him in Town A given that there are limited facilities for him to spend such time with her in Town A and also as this time interrupts her daytime sleep.
In the course of cross examination, Ms F conceded that the mother had facilitated time between X and the father; however, she maintained that on numerous occasions, the mother had not agreed to small variations sought by the father, and therefore implied that she had not shown goodwill towards the father on those occasions.[12]
[12] Transcript page 18.
The mother has given evidence, which I accept, that she acknowledges the importance of X’s relationship with her father and her siblings and that she has, and continues to, facilitate X’s relationship with both her father and her siblings.
In response to questions in cross examination, the mother conceded that as a two year old child, X needs regular and frequent time with her father and also with her siblings.[13]
[13] Transcript page 106 at line 45 to page 107 at line 38.
In response to questions about whether the mother had an opinion about the impact on X of not seeing her father for some 12 days between visits, she said:
I’ve seen X go up to a month between visits from her uncle, my brother, and she is delighted to see him. I know that she remembers people for weeks. …he hasn’t gone more than six weeks between a visit, but I know that she… loves him and she remembers him for weeks.[14]
[14] Transcript page 112 at lines 29 to 32.
Overnight time and travel
Given the significant distance between the parents’ respective homes, it is also not surprising that two key issues in dispute have been:
a)the amount of travel which X would be required to undertake to spend time with both her parents, when that is to occur; and
b)importantly, which parent should undertake that travel.
Whilst acknowledging that in an ideal world it would be preferable for X not to have to travel, from his observations, the father believes that she would adjust to the increased travel and ultimately benefit from the additional time that would allow her to spend with him and her siblings. The father made the following comments in this regard:
…the report writer just says that we should be cautious based on general ideas about two year olds, but she also says that X is resilient, and I would say that the circumstances of this case, there’s enough that says that X will deal with better with the time with her dad, given the family connections there, the fact she’s familiar with the house, the fact that she has had this regular time with me throughout her life, I think she will adapt well to… having multiple nights.
…I’m arguing that on balance, when weighing up that versus the harm to her of going 12 days without time, I’m saying… is that on balance, that the potential harm from one extra trip a fortnight, and two nights in a row, given X’s ability to adapt to things that have been shown so far, and given the other factors that I’ve just raised, …I think… that is by far the lesser harm than the significant gap that she would undergo under the alternative proposal that has been put – and I’m open to any other proposal.[15]
[15] Transcript page 37 at line 29 to page 38 at line 2.
In response to questions from the father as to the basis of her opposition to additional overnight time, the mother referred to X’s condition on return from overnight time with her father to date. In particular, she said:
After her first overnight, she came back late in the day and she hadn’t had a nap during the day, I believe, and she slept on me. Her nap was at 3pm on return and she wouldn’t let me put her down...
…
She’s very clingy on return.[16]
[16] Transcript page 173 at lines 3 to 13.
The mother does not take issue with the fact that X is very keen to see her father when he comes to collect her, however she maintains that on return from an overnight, ‘she’s very enthusiastic to see her mum’.[17]
[17] Transcript page 173 at line 30.
Additional weekend time
The father’s proposal would mean that X would not spend a full weekend with the mother, as the mother’s time would commence on Saturday mid-morning in week one and she would spend the whole weekend in week two with the father. The father’s proposal places greater importance on X having regular and frequent time with him and with her siblings in Melbourne over the mother spending weekend time with X.
It is common ground that the mother returned to full time employment in 2018, just before X turned one and X then commenced attending daycare during the week. Consequently, the mother’s evidence, which was not challenged is that the only time which she has to undertake errands with X or spend time with X and friends is on the weekend.
In addition, the mother’s evidence, which I accept, is that as she lives in a small country town, shops and medical services tend to shut at about midday on Saturday and therefore she has limited time on the weekend to attend to such services if and when required with X, unless she has some time with X on Saturday morning in Town A.
X’s time with her siblings
The father has also given detailed evidence about the relationship between X and H. The father’s evidence, which I accept, is that their relationship is developing, that they know each other, recognise each other as ‘sisters’ and very much enjoy spending time with each other.
This is clearly an important sibling relationship for X. The father places significant weight on this relationship as a factor in the court’s determination of appropriate orders. Both in his written and oral evidence, he refers to X and H as ‘almost twins’ and submits that as sisters who share the same birthday, they have the potential, if properly supported, to develop a very close and supportive relationship which will be a benefit to each of them. The father understands that they are not biologically ‘twins’ but stresses the close nature of their relationship and relies upon this as a further reason in favour of his proposal for increased time with X.
The father also gave the following evidence about X’s relationship with her ‘‘twin’ sister’:
Although they have different mothers, the girls are effectively ‘twins’, sisters born the same day with the same father, developing together at similar rates and having a strong and close bond despite the physical distance between their primary homes.[18]
[18] Paragraph 223 of the father’s affidavit affirmed and filed 26 March 2019.
The father gives evidence about the close bond between X and H and how they both relate to their new brother, J and is critical of the mother for not encouraging this relationship. The father added:
H misses X a lot when she is gone. After X goes back on Sunday afternoon H goes to the picture of them together and says ‘sister?’ and looks hopefully at the door. Throughout the week she goes over to photos of X or the computer where we skype X and says ‘sister?[19]
[19] Paragraph 228 of the father’s affidavit affirmed and filed 26 March 2019.
In cross examination, the father further added:
…X is entitled to those relationships. I believe that they will be seriously harmed if the orders (the mother) seeks are made. That will cause them… there will be a massive diversion in their lives between what they could have had – this bond that they could have had, particularly between X and H as the sisters who are not technically twins but are two sisters born the same day and the same age going through life’s vicissitudes together. I think that… that is a massive benefit for them in their life, and I think that… the counter of that version that would happen if… your client’s orders were made is one where they both miss out… I think that that is not in her best interests. I think her best interests are served by an order where they get to have those relationships, those strong meaningful relationships, particularly at this fundamental stage…[20]
[20] Transcript page 79 at line 7 to 19.
The mother accepts that X’s relationships with H and J are important and denies being unsupportive of those relationships.
Mummy Ms F
The mother gave evidence that, notwithstanding having advised the father that it is distressing to her, the father and his wife continue to refer to his wife as ‘Mummy Ms F’ to X and in her presence.
The mother deposed that the father does this during Skype calls with X, when he knows that the mother is within earshot, and understanding that this term distresses her.[21]
[21] Paragraph 15 of the mother’s affidavit affirmed and filed 17 May 2019.
The father concedes that he and Ms F have encouraged X to refer to Ms F as ‘Mummy Ms F’. He recognises that the mother does not like this term being used by X but nevertheless dismisses her concerns, saying:
I believe Ms Colli’s opposition to us using… the term ‘Mummy Ms F’ shows a lack of insight into X’s needs with respect to her connection with her siblings and stepmother. First, X is growing up with siblings who call Ms F ‘Mummy’. I believe that X calling her ‘Mummy Ms F’ will help to reinforce that bond with her siblings and avoid feelings of being different and outside the family. Second, there is no indication that using the term will harm X’s connection with her mother.[22]
[22] Paragraph 250(e) of the father’s affidavit affirmed and filed 26 March 2018.
Ms F also confirmed that she was aware that the mother was uncomfortable with her using the term ‘Mummy Ms F’ but, notwithstanding that, she did not discourage X from using that term. She stated that the mother was asked to come up with an alternative and had not done so. When asked by counsel for the mother why X could not simply refer to her as ‘Ms F’, Ms F said:
No, because… my other children call me ‘Mummy’, and she’s my step-daughter and she’s the sister of my other children. I’ve known her since she was a few months old, and have been a constant in her life since then.[23]
[23] Transcript page 11 at lines 31 to 33.
Ms F stated that in her view, the use of the term ‘Mummy Ms F’ was not confusing to X.[24]
[24] Transcript page 13 at lines 18 to 20.
Mother’s Day 2019
Whilst the father has been critical of the mother for not agreeing to changes to the orders he has sought from time to time, he acknowledged there were occasions when he refused to agree to changes to the orders when requested by the mother.[25]
[25] Paragraph 20 and 21 of the mother’s affidavit affirmed and filed 21 March 2019.
On 5 April 2019, the mother says that she asked the father if they could swap weekends to allow her to spend time with X on Mother’s Day. The father refused to swap on the basis that this would result in X having a three week break in overnight time in the father’s home.
In the week preceding Mother’s Day, X developed a virus. The mother deposed that she took her to the doctor on Monday 7 May and was told that the symptoms were consistent with hand, foot and mouth disease. The doctor saw X again on Wednesday 9 May and advised that she was concerned about X going to a house with two young children over the weekend.[26]
[26] Paragraph 7 of the mother’s affidavit affirmed and filed 17 May 2019.
The doctor then spoke to the father and communicated her concerns. The mother’s evidence is that the father was insistent that the visit go ahead that weekend, dismissed the doctor’s opinion and questioned whether X was unwell at all.[27]
[27] Paragraph 7 of the mother’s affidavit affirmed and filed 17 May 2019.
Leaving aside the question of the father’s response to X potentially being infectious when spending time with his other children, the effect of the father’s approach in relation to this issue was that the mother collected X from the father’s home in Melbourne at 3:00pm on Mother’s Day and they drove home. She deposed that most of her time with X on Mother’s Day was spent travelling.[28]
[28] Paragraph 8 of the mother’s affidavit affirmed and filed 17 May 2019.
During cross examination, the father conceded that this was the case and that this was not ideal. He went on to say however, that whilst spending time with her mother was important, it was not the only consideration. He said:
There is also the factor that I had to consider the importance to X of the regular time, and the only proposal that your client would accept is one of a three week gap for X without time with her sister and brother – or one where X’s regular time was cut down.
…
…I tried very hard to make it possible… I did ask if your client was prepared to work with me and have a way so she has an entire Mother’s Day, and I have an entire Father’s Day, your client said no.[29]
[29] Transcript page 30 at lines 2 to 13.
Communication between the parents
The father repeatedly said during the course of these proceedings that his hope has always been to have been able to co-parent X in a co-operative and positive manner. Notwithstanding, the reality falls significantly short of this desire.
When asked about the quality of communication between the parties, the father described it as ‘brisk and efficient’.[30] He went on to say:
…what I want most of all is that we co-parent in a friendly way. I am… terrified… of this conflict that has been here during the litigation… I desperately want that not to be the case. I don’t want X feeling torn between two households, two worlds where, you know, when she’s with Mum she doesn’t mention Dad because a chill descends and… she certainly won’t feel that at my house, but I don’t… want her feeling torn between two worlds.[31]
[30] Transcript page 46 at line 15.
[31] Transcript page 46 at lines 16 to 23.
However, it is apparent from the father’s evidence, including his written submissions that he considers that the mother has intentionally behaved in a manner aimed at excluding him from X’s life since separation.
The father relevantly states:
I believe the main limitation to Ms Colli and my effective co-parenting of X has been Ms Colli’s attitude that X is her child alone and that her relationship with me is at Ms Colli’s discretion, rather than X’s right, and in X’s best interests, and that she shouldn’t have to co-parent with me if she doesn’t want to.[32]
[32] Paragraph 261 of the father’s affidavit affirmed and filed 26 March 2019.
For the reasons which are set out below, I do not accept the father’s submission in this regard.
Whilst I accept that at or around the time of separation, the mother expressed views about wishing to be able to move on without having to involve the father in X’s life, these comments must be viewed in context of the time at which they were made; namely, shortly after ending a relationship. More importantly, they must be viewed against the prism of the mother’s conduct since making those statements; namely, as stated above, supporting and facilitating the child’s relationship with the father.
The mother has given evidence, which I accept, that she told the father that she did not wish him to be in attendance at X’s birth. She says that by the time she was due to go into labour, her relationship with the father was such that she felt uncomfortable for him to be present at the birth. Given the fact that the parties separated some six months earlier, this is not unreasonable.
The father’s inability to see the mother’s perspective in relation to this is indicative of his mindset which is focused on what he assesses as being in X’s best interests and further, his inability to accept that the mother’s view ought to be given some weight, particularly in relation to when she felt comfortable in seeing him following X’s birth. It is true that it was X’s birth, but it was also the mother’s labour.
It is not an insignificant fact that from two days after X’s birth, the mother facilitated time for the father in her own home for some two months.
I do not accept the characterisation put forward by the father that the mother sought to exclude him from X’s life after the July 2017 incident. Rather, I find that it was the father’s own conduct, in disregarding the mother’s request not to take X outside on 17 July 2017 and then in initiating these proceedings less than a week later, and rather than allowing a planned mediation to proceed, which contributed to the break in his time with X.
The mother’s response to the father’s request to take X out of the house was not, in all of the circumstances, unreasonable. She indicated that if he did so in the face of her objection, she would call the police, which she did. I accept that this was an example of the father acting as he thought best, without having regard to the mother’s concerns. In those circumstances, it is also not surprising that the mother did not immediately respond to the father’s email received the following day.
The father maintained that the mother is hostile to X having a meaningful relationship with him. In support of this, he refers to:
a)comments posted by the mother on 20 October 2016, 3 November 2016 and 1 December 2016 online, i.e. at or around the time of separation and when the mother was less than three months pregnant;
b)various text message exchanges between the parties, also within the first trimester of the mother’s pregnancy;
c)the fact that ‘Ms Colli refused to let X meet me until she was two days old’; and
d)the mother’s controlling behaviour during times he spent with X between May and July 2017 including by requiring that:
i)those visits occur at the mother’s home;
ii)objecting to the father taking X out of the cot;
iii)refusing to let the father bathe X or take her for a walk;
iv)various other adverse comments by the mother about the father and X’s relationship with him; and
v)following the July 2017 incident, ‘…punish(ing) me for trying to take X outside for a walk, Ms Colli cut off all of her time with me’[33].
[33] Paragraph 77 of the father’s affidavit affirmed and filed 13 June 2018.
The father is also critical of what he perceives to be the mother’s inflexibility around his time with X following the commencement of proceedings in this court.[34] I do not propose to set out each of the matters to which the father refers, suffice to say that he highlights a number of requests made by him to alter the court ordered arrangements which the mother refused, unreasonably, in his view.
[34] See paragraphs 79 to 94 of the father’s affidavit affirmed and filed 13 June 2018.
Importantly however, after setting out various examples of where he had requested changes to the arrangements provided for in the orders regarding X’s time with him, the father acknowledged that the mother has complied with court orders. He said:
… Accordingly I am optimistic that, if the court were to make firmer orders addressing the behaviours set out above, firmer than usual orders that rely on goodwill between the parents, then the co-parenting relationship between Ms Colli and me would improve, to X’s significant benefit. In contrast, if Ms Colli continues to ‘get away’ with her efforts trying to drive me from X’s life, or at least minimise my role in it, without the court taking steps to restrain that behaviour, then I believe the behaviour will get worse, to X’s significant detriment.[35]
[35] Paragraph 96 of the father’s affidavit affirmed and filed 13 June 2018.
The father also alleged that the mother’s refusal to vary court orders at his request is further evidence of her failing to interpret the current orders in a child focused manner. For example, he asserts that the mother unreasonably refuses to alter the court ordered time he spends with X to allow for any delays on his trip to Town A. Similarly, when he arrives early, the mother does not allow the time to commence until the time specified in the orders.
The father also complains that:
a)the mother does not travel towards Melbourne to allow more frequent visits with the father, nor does she let X see the father if they happen to be in or close to Melbourne for other reasons; and
b)the mother has failed to keep him informed of various matters regarding X’s care, made it difficult for him to liaise with X’s medical providers and denigrated him to the Town A Maternal Child Health Service.
The father did concede in evidence that the mother is ‘a good mother to X’, but went on to say:
I… believe the mother is capable of providing for X’s emotional needs, with the major exception that her actions so far have demonstrated that she will continue to downplay X’s relationship with her father and sister and exclude us from X’s life as much as possible unless the court makes very careful orders to prevent that from happening.[36]
[36] Paragraph 157 of the father’s affidavit affirmed and filed 13 June 2018.
The father is also critical of the mother seeking an order that the parents communicate via a parenting app in circumstances where, notwithstanding a request to do so, she has failed to propose a particular application.
To the extent that there is a problem in the co-parenting relationship, the father attributes blame solely at the mother and says:
Where our co-parenting has run into problems it has been due to Ms Colli choosing to make decisions regarding X’s care unilaterally, or seeking to control and reduce X’s relationship with me. I believe that if the court were to make an order other than for equal shared parental responsibility it would increase conflict, as it would encourage Ms Colli to indulge her preference of trying to erase me from X’s life as much as possible.[37]
[37] Paragraph 162 of the father’s affidavit affirmed and filed 13 June 2018.
For her part, the mother:
a)says she feels that the father places undue pressure on her to agree to changes to the orders when he requires them;
b)explains that where she has not responded favourably, or to the father’s satisfaction, to the father’s requests for time with X, she is motivated solely to limiting her experience of the father’s controlling and bullying behaviour and is not seeking to limit the father’s relationship with X; and
c)stated:
At the various stages when time has been agreed to or ordered, the father has regularly, after court proceedings, sought to vary outcomes from the court matter as quickly as a day or two after the hearing. On each occasion if I do not agree with his variation, he will commence hounding me or my solicitor requiring reasons why I do not agree with his position. The father has very little concern for my position in these matters and seems to feel that I need to do things that he believes are reasonable… He expects when he wants something done differently that I do it his way or he complains I am not being flexible.[38]
[38] Paragraph 9 of the mother’s affidavit affirmed and filed 21 March 2019.
The mother gave further evidence that following X’s birth, the parties spoke occasionally on the telephone although there was increasing tension as she felt the father was making unreasonable demands about X, including when she would announce that she was pregnant on Facebook and whether he could stay at her home after X was born.[39]
[39] Paragraph 3(r) of the mother’s affidavit affirmed 30 August and filed 1 September 2017.
The mother further deposed that in this context, the father has consistently told her that as a professional, she needed to do things his way,[40] which compounded the pressure she experienced to acquiesce to his requests.
[40] Paragraph 3(mm) of the mother’s affidavit affirmed 30 August and filed 1 September 2017.
Importantly, the mother stated that from her perspective, she does not feel that the father has ‘supported my position as the mother nor listened to any objections that I have in a reasonable manner. If I do not agree with him he defines this as being inflexible or controlling. If I adhere to the orders I am not being a reasonable person.’[41]
[41] Paragraph 13 of the mother’s affidavit affirmed and filed 21 March 2019.
In addition to the difficulties experienced in negotiating alternative arrangements for Mother’s Day in 2019, the mother gave evidence about the communication difficulties between the parties in negotiating additional time for X to spend with her father during the final hearing of this matter on 29 and 30 May 2019.
The father was scheduled to spend time with X on 29 May 2019, so requested a change to allow him to spend time with X either on Tuesday 28 May 2019 or Friday 31 May 2019. The mother gave the following evidence in relation to this request:
a)she told the father that Friday 31 May was not possible and she wanted to spend the day with X;
b)she told the father that he could see X on Tuesday 28 May; however, as the mother was required to work on that day in Town A, X would be in Town A on that day, so he would need travel to Town A to see her;
c)the father refused this option on the basis that it was too much travel before court; and
d)the father proceeded to send ‘harassing’ emails to her about this even after she had made her position clear.[42]
[42] Paragraphs 11 and 12 of the mother’s affidavit affirmed and filed 17 May 2019.
The mother relied on this as a further example of the father’s demands and failure to acknowledge any compromise offered by the mother.
The mother further alleges that the father’s conduct of this litigation against her in all of the circumstances amounts to ‘systems abuse’. For example, the mother deposed to the following:
I have found it extremely difficult dealing with the fathers (sic) constant berating of me both in litigation and his demanding attitude towards me in communications. In particular with respect to the litigation it has cost me a great deal of funds to deal with his initial application. The father did not seek mediation but rather took the matter directly to court. It was my understanding that mediation might have been an option to resolve the matter however the father would not wait for mediation even though we had an appointment as he felt that his actions were entirely reasonable and that there was an urgency to bring the matter to court. The father had actually commenced the mediation process prior to filing and I had agreed to same having taken the first available appointments to ensure that mediation continued…[43]
[43] Paragraph 29 of the mother’s affidavit affirmed 3 and filed 4 April 2018.
The mother also claims that the father is critical of her parenting in emails he has sent her comparing H’s development to X’s, which the mother interpreted as being a put down of X’s development and by implication, of her mothering. The father took issue with this and said that his intention was merely to see whether there might be ways that they could as parents take a consistent approach to various matters. The mother then said:
To me it read like, H does all these great things. X isn’t. What are you doing wrong? And in the greater context at swimming lessons, the previous year… X had started doing swimming lessons. He had taken her to the pool and he said something that’s going to haunt me for ever, which was, ‘She was screaming before I even put her in the water’. And he sent an email. It was essentially, ‘What are you doing wrong that she didn’t enjoy swimming with me?’… Are you bathing her? What are you doing wrong?[44]
[44] Transcript page 183 at lines 1 to 7.
The father rejected any such suggestion. The following exchange then ensued during the father’s cross examination of the mother:
Mr Stern:I put to you therefore that… what you’re saying to the court, is that, any time that I mention X and H, or ask questions about X, who doesn’t live with me, in relation to the things that I’m doing with H, you perceive that, no matter how I phrase it, no matter what I say, you perceive that as a criticism and an attack. Correct? …
…
Ms Colli:I am saying that, I perceive questions that are in the form of H is doing this amazing thing, X isn’t, I see that as a… criticism of X, that she is not doing what H is doing.
Mr Stern:…Is there a way in which I can ask you about developmental things for X that… are questions about, is she potty training? … any questions like that – as co-parents… is your evidence to the court that there is any way for me to as those things that you will not perceive as an attack and that’s putting X down?
Ms Colli:How is X doing with potty training? Not ‘H was fully potty trained at three months old.” “What’s – Why isn’t X?”. That’s the form.[45]
[45] Transcript page 184 at lines 12 to 34.
Both parents accept that it is important to X for them to be positive towards each other as she can and will perceive any negativity in the way they treat each other. However, the following exchange between the mother and father during the mother’s cross examination is indicative of the difficulty these parents have in communicating with each other.
Mr Stern:Do you remember me saying to you… I said very clearly that I do not think X is lesser than H in any way, and anything you’ve ever read from me that you’re interpreting that way, that’s not how it’s intended. That’s not what I feel…
…
Ms Colli:You did have a conversation with me about that, and you followed it up in an email, and in that email, you said,
…You respect me as a mother. You then went on to criticise me as a mother.
Mr Stern:How did I do that?
Ms Colli:By saying that… in general I’m a good mum, except that you feel that I am hostile towards you, and then went on for several paragraphs on that topic…
Mr Stern:…do you recall… in that conversation, I said something to the effect of how… I feel like I can’t raise with you any of the things that I’m concerned about or that I’m wanting information about that you could in any way perceive as being negative because you will perceive them as an attack when they’re not. Do you remember that I said that to you?
Ms Colli:You said that to me.
Mr Stern:And… you said, “Bingo.” Do you remember?
Ms Colli:I feel that I am frequently criticised and attacked by you. Yes.
Mr Stern:…So going back to what I’m asking you, X benefits from us being able to work together. Is it possible that the way you are choosing to interpret… do you want me to support challenges for X as they happen? Do you want me to be involved when X is facing challenges?
Ms Colli:I would like you to recognise that as well as challenges, she might have great talents or have things that she’s deeply passionate about. It was framed as… ‘if she is facing challenges, I will work with you,’ not ‘I will help our child fulfil her deepest potential.’
Mr Stern:I put to you – and I believe there… are quite a few emails to this effect annexed to the affidavits already, but I put to you that there are countless emails where I have emailed you after the weekend talking about the great things that X has been doing, and that I replied to emails from you… where you have said ‘This is what X is up to’, and I’ve said, ‘Our clever girl. Well done X’, and I’ve been positive about it…
Ms Colli:There’s usually a dig in them. They’re not pure, ‘X is wonderful’. They’re – you know – she’s ‘she did so well at swimming with her dad.’ …there’s always something, and you can see this in all the emails that he… attaches. There always ‘thank you for at least letting me talk to her by Skype on Christmas Day’ … it’s always a little… there’s always the ‘at least’. There’s always… the small put-down.
Mr Stern:…I put to you that that’s not the case. There isn’t always an ‘at least’ or anything of the sort… but… the material is before the court and the court can review the material.[46]
[46] Transcript page 194 at lines 33 to page 195 at line 14.
This exchange evidences the lack of trust between these parties which appears to infect even the smallest of interactions between them.
Intervention orders
It is common ground that the mother sought and obtained an intervention order naming herself and X as the affected family members.
The father asserts that the mother initiated intervention order and breach proceedings cynically and strategically to assist her family law litigation and to further limit his ability to spend time with X.
For his part, the father asserts that the mother is controlling and uses X to control him. He states that in August 2017, he filed an intervention order application against her due to her controlling and threatening behaviour. He subsequently agreed to resolve his application together with the mother’s application against him on 21 September 2017 by way of mutual undertakings. He said that he did this because by that stage, ‘the FCC had made parenting orders and I believed Ms Colli’s ability to punish me at will by cutting off all time with X again was therefore more limited.’[47]
[47] Paragraph 104 of the father’s affidavit affirmed and filed 13 June 2018.
The father also claims that the mother’s complaint about communication from him amounting to a breach of the interim intervention order was further evidence of the mother’s attempts to harm him. The father was charged with a breach of the intervention order and was summonsed to attend the Town N Magistrates’ Court. Ultimately, however, these charges were withdrawn. The father stated:
I felt extremely bullied, threatened and ironically, dominated by the situation. Being found guilty of such an offence would be professionally devastating, and even thought I believe there was no merit to the charge I had to take it very seriously. It was a very unsettling event.[48]
[48] Paragraph 114 of the father’s affidavit affirmed and filed 13 June 2018.
The mother denies that she acted inappropriately in advising the police about the email communication from the father which she considered to be in breach of the intervention order and says that she simply followed the directions given to her by the police. She said:
I did go to the police. When I received an IVO it was made very clear to me at the court that if there was any breach, no matter how minor I thought it might be – if it was a breach I must report because, as it was put to me, there is no minor breach to an IVO and I don’t make that decision. I am to report it, and the police then carry it out for the rest. I did not have any knowledge about hat would happened. I knew that if I believed there was a breach I should report.[49]
[49] Transcript page 246 at lines 13 to 19.
The mother claims the father’s application for an intervention order was made on a ‘tit for tat’ basis rather than because of any real concern he had for his safety.
Both the father and the mother’s interim intervention order applications were ultimately withdrawn and no final orders made.
Changeover
Another key issue in this matter is where changeover is to occur. The father proposes that changeovers on a Thursday night should occur in Town D at 6:00pm until he resumes full-time employment and then occur at 7:00pm in Town E. In the course of cross examination on this issue, he maintained that Town D is about 75 minutes from Town A so the mother would need to leave work at about 4:45pm to collect X and then drive to Town D.
His evidence is that he has undertaken the vast majority of the driving to facilitate time spent with X and that it is appropriate for the mother to undertake some of the driving to a midpoint.
The father rejected the proposition that his proposal in relation to changeover, was ‘too much, too fast too soon’.
There was a dispute between the parties as to the time it would take from Town A to Town D. The mother said it was closer to 90 – 105 minutes’ travel rather than 75 minutes as suggested by the father.
Skype communication
The mother’s evidence in relation to Facetime/Skype is that it has had its difficulties. The mother deposed that she finds the father’s Skype time with X intrusive and distressing as, according to her, the father uses these calls as a further opportunity to put her down in front of X or complain about various things, including that:
a)the house is too noisy;
b)X is being distracted; or
c)the father does not approve of certain things in her home.[50]
[50] Paragraphs 22 to 28 of the mother’s affidavit affirmed and filed 21 March 2019.
Even after orders were made for Skype time between X and the father, the mother states that there continue to be issues with this communication, generally relating to X’s age and attention span. In situations where the father has brought the Skype call to an end early because X has been distressed, he immediately calls back and seeks to arrange a further Skype call later that day.[51]
[51] Paragraph 23 of the mother’s affidavit affirmed and filed 21 March 2019.
The father concedes that there have been some issues with respect to Skype given X’s age. However, the father’s proposal in relation to Skype is that if the time does not proceed for some reason, including where X has ‘not been in the right place for it’[52], the mother should be required to allow him to try again at a later point in time when X is in a better frame of mind.[53]
[52] Transcript page 63 at line 20.
[53] Transcript page 63.
On the question of Skype, the mother conceded in cross examination that X enjoys Skype ‘within her attention span’.[54]
[54] Transcript page 175 at line 27.
In relation to the mother’s proposal that there be an injunction on the father communicating with the mother during Skype calls with X, the following exchange occurred in the course of cross examination.
Mr Stern:…You sought an order, and it was a condition of Skype continuing… that I couldn’t address you… Wouldn’t it be better for X if I could simply say to you… “Ms Colli, X is clearly not in the right place. Can I Skype – try again later? Can you message me when and we try again then”…
…
Ms Colli:It is my belief that you would use Skype to communicate. It would become a means of control over me.[55]
[55] Transcript page 177 at lines 21 to 44.
The mother then went on to give some examples of how she felt ‘put down’ by the father during Skype sessions, including a reference to her profession whilst reading a story to X.[56] The following exchange then occurred:
Mr Stern:Well I put to you that it was, a professional came up in a story and I said, ‘Professional. There’s a professional like your mummy’ to X. There was nothing negative about it. I was simply – in fact, if anything, trying to boost you, being encouraging – you know, positive about you. I don’t understand? …
Ms Colli:Not that kind of professional.
Mr Stern:As in not a professional. …so you say it was the tone… can you contemplate that possibly that was actually me trying to be positive and that I don’t have any negative thoughts about your type of occupation at all? Can you contemplate that that’s what I was trying to do?
Ms Colli:But that’s not your position. So no. I don’t… accept that.[57]
[56] Transcript pages 179 to 180.
[57] Transcript page 179 at line 46 to page 180 at line 12.
Make up time
The father seeks orders which provide for make-up time in circumstances where he is unable to spend time with X due to his illness or the illness of either H or J.
The father argued that if make-up time was not expressly provided for in the orders, then X would not see her father for an unnecessarily long period of time, through no fault of her own.
In relation to make-up time, the mother gave evidence that when X has been ill and therefore unable to attend time with her father, the mother has arranged make-up time. However, in circumstances where the father has cancelled his time with X because either he or H was unwell, she did not arrange make-up time.[58]
[58] Paragraph 14 of the mother’s affidavit affirmed and filed 12 June 2018.
Ultimately, the mother’s evidence is that whilst she is prepared to be reasonable in responding to unexpected circumstances impacting the father’s time with X, the father too needs to appreciate that her time with X is equally important.
Interstate travel
The mother has also given evidence that in 2018, she commenced studying a degree by correspondence. Her evidence in relation to this is as follows:
a)the course requires her to attend on campus in Sydney for three days a few times a year;
b)these classes are likely to occur in April, September and January;
c)whilst in Sydney, she has the support of her family to care for X whilst studying;
d)when taken together with the two days required to travel to and from Sydney, she would need to have the capacity to travel for at least five days, although her preference would be to be permitted to travel for seven days each time she is required to attend university in Sydney, to allow her some time with X to spend with her family and friends; and
e)during these periods, she seeks that the father’s time be suspended.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The evidence at trial, which I accepted, was that from October 2019, the father was to return to full time employment and consequently, the arrangements which had been in place up to the date of the hearing which saw X spend time with him each week, including one overnight each alternate weekend and one day during the week in the off week, were no longer feasible.
The father had therefore proposed that X spend time in Melbourne each week, in week one from Thursday evening to Saturday morning and then in week two from Friday evening to Sunday evening. He submitted that this time was necessary given X’s young age to ensure that she has frequent and regular time, both with him and also with her siblings. Essentially, the father’s case is that if his proposal is not accepted, X’s relationship with him and with his siblings will suffer.
The father further said that under his proposal, the mother would continue to have time with X during the bulk of each week and also for most of the weekend in week one, where changeover occurs on a Saturday morning.
The mother’s proposal would continue to provide the father with the opportunity for mid-week time in week one in Town A and then for weekend time in the father’s home in week two. This would allow her to spend an entire weekend with X in Town A every second weekend while the father would spend an entire weekend with X in Melbourne.
The mother acknowledged that if the father was not able to continue to take up the mid-week time in Town A, this would represent a reduction in X’s time with him and with her siblings in Melbourne.
Notwithstanding the evidence given by the father at trial, it is common ground that he has continued to see X on Wednesdays, although not on every occasion provided for in the interim orders.
It is also common ground that the father now intends to seek part-time employment which would allow him to better meet his parental obligations to all of his children.
In those circumstances, I accept that leaving the travel issue aside, on either proposal X would continue to spend frequent and regular time with the father each week.
The mother’s proposal is that her mid-week time with the father continue until X starts kindergarten and then cease. Whilst X’s capacity to spend time with the father mid-week will clearly become an issue once X commences school, there is no evidence as to what days/times X would attend kindergarten and whether the father could continue to spend time with X on Wednesdays in the week during which he would otherwise not see her. In those circumstances, I propose retaining X’s midweek time with the father in the week that she does not travel down to Melbourne.
Section 60CC(3)(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
In light of the father’s indication that he has in fact continued to see X mid-week and his intention to seek part time employment, the only remaining practical difficulty in relation to X spending regular and frequent time with him relates to the travel which he undertakes and the concerns he has about suitable locations in Town A at which to spend time with X mid-week.
In relation to the father’s proposal, he acknowledges that there is significant travel involved to facilitate the additional time that he seeks and, that in an ideal world, it would be preferable for a child of her age not to have to travel so extensively, but says that on balance the benefit to X of maintaining her relationship with him and her siblings outweighs the difficulties created by the additional travel.
The mother argues that the father’s proposal does not adequately take into account the child’s age and stage of development. She submits that the father’s proposal is ‘too much, too soon, too fast’ on the basis of X’s already busy schedule, the family report’s recommendations and the significant travel required for X under the father’s proposal.
The family consultant does not support the father’s proposal and has given evidence that caution needs to be exercised in extending the child’s overnight time with the father at this stage.
I agree with the family consultant.
This is a case in which X has established a solid relationship with both her parents. The father to his credit, has continued to travel to Town A regularly to ensure that X has regular and frequent time with him and also with his family. It is understandable that he wishes to spend more time with X. However, in the circumstances of this case, having regard to X’s age and developmental stage, the additional travel which is required to accommodate the father’s proposal, together with the additional time away from her primary carer is not, in my view, in her best interests.
The mother’s proposal provides for regular and frequent time between X and the father which increases in an age appropriate manner as X grows older.
The mother also seeks an order restraining the father from talking to her during Skype sessions between X and him other than for the purposes of initiating the call or terminating the call.
The mother’s evidence is that the father uses this as an opportunity to put her down or to engage in discussions with her. The father denies this and says that if there is an issue arising during the skype call he should be able to discuss that with the mother.
As is evident from these reasons, communication is an issue between the parties. At the moment, it is preferable to minimise the circumstances in which they have to engage in unhelpful communication, particularly in the presence of X. Skype time is intended to be time spent between the father and X. In the circumstances, it is appropriate in my view to limit Skype communication between the father and the mother to commencing the call and to ending the call. If there are other issues that need to be communicated between the parties, this should occur externally from the Skype calls.
The mother also seeks an injunction prohibiting the father from taking photographs of her home. There is no reason for the father to take photographs of the mother’s home during Skype calls. I therefore propose making an order as sought by the mother in this regard.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(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
Both parents are clearly intelligent and well educated. They are each capable of providing for X’s needs. However as X grows up, she will undoubtedly become more aware of the poor communication between the parties and this risks exposing her to parental conflict.
On the basis of the evidence before me, I find that the father has demonstrated an inability to appreciate the negative impact of his continuous demands on the mother. The fact that he frames these demands as being in X’s best interests does not alter their impact on the mother.
Examples of this have been discussed above, including but not limited to:
a)his approach to X’s birth;
b)his criticism of the mother for not ‘allowing’ him to meet X for two days;
c)his approach to the time spend arrangements following X’s birth; and
d)his continual requests for changes to the spend time arrangements agreed to or ordered by the court.
It goes without saying that unless the parties are able to find a more effective method of communication, X will increasingly be exposed to the conflict between them. To this end, I have included an order that the parties attend a parenting orders program.
In relation to the use of the term ‘mummy Ms F’, the mother has given evidence, which I accept, that she finds it upsetting for the father to allow and encourage the use of this term by X.
The family consultant gave evidence that caution ought to be exercised in relation to this issue. Moreover, when asked about whether there was any benefit to X in using this term as a means of supporting her sense of belonging in the father’s home, the family consultant said it was ‘limited… and… it raises more issues than it perhaps meets’.[94]
[94] Transcript page 238 at lines 13 to 15.
On the basis of the totality of the evidence, I am satisfied that it is in X’s best interests for the parties to be restrained from using or allowing any other person to use the term ‘mummy’ or ‘daddy’ or any derivative thereof in relation to X for any person other than X’s biological mother and father.
Section 60CC(3)(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
X is only two years of age. She has formed a primary bond with her mother. She has also formed a positive relationship with her father and with the father’s family.
The mother raises concerns about the father’s continuation with polyamorous relationships and the prospect that the father will introduce X to other partners at inappropriate times. Neither party sought orders addressing this issue. I am not satisfied that it is in X’s best interests for any such orders to be made in relation to this.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As stated, both parents dearly love X and have accepted the responsibilities of parenthood. Unfortunately, they have different ideas about what is in X’s best interests, particularly when it comes to the issue of how much time X should spend with her father and how quickly that time should progress.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
I have addressed the history of allegations and counter allegations of controlling behaviour above.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There are no current family violence orders in place in relation to these parties.
Section 60CC(3)(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
For the reasons set out above, in my view the proposed orders are least likely to lead to the institution of further proceedings in relation to X.
As discussed earlier in these reasons, the father seeks orders which permit the parties to return to court if they cannot resolve further issues without the need to address the principles in Rice & Asplund, In the Marriage of (1979) FLC 90-725.
The orders which I have made address the key issues in dispute between these parties. They make it clear that X is to live with the mother and spend time with the father on an increasing basis which appropriately has regard to stage of development and the physical distance between the parties.
The orders also provide for X’s time to increase at an age-appropriate pace.
It is hoped that once these proceedings have come to an end, the parties are able to settle into a routine and co-parent X outside of the litigation process. It is not in X’s interests for this litigation to continue or for the door to remain open for further litigation. Therefore, I have not made orders providing the parties with any automatic right to return to court if an issue arises which they are unable to agree on.
This child is very young. These parties are going to need to work out a way of communicating effectively for X’s long term benefit.
I have also given consideration to whether it is appropriate to include an order which would allow for additional time ‘as agreed between the parties’. Generally speaking, such an order is appropriate as it allows the parties flexibility once the stress of litigation hopefully subsides and allows them to deal with unforeseen circumstances or changes which may be required to address the child’s needs. This is particularly so in cases where final orders are being made for such a young child.
In this case, such an order was made on an interim basis. Unfortunately, this has itself become a source of conflict. I find that the father has interpreted that order as suggesting that the orders themselves are the bare minimum amount of time to be prescribed and permit the parties to negotiate additional time. The father has repeatedly been critical of the mother for not agreeing to a proposal for additional time with X and has suggested that the mother has improperly used some discretion by not agreeing.
Given X’s age, on balance it is important to provide the parties with flexibility to agree alternative arrangements should the need arise.
However, given the history to this matter, it is appropriate to be explicit in saying that the orders which I have made are orders which I have determined to be in X’s best interests, having regard to the relevant considerations which I need to take into account under the Family Law Act 1975 (Cth) (“the Act”). If the parties need to vary those orders to address other circumstances which may arise in the future and where it is appropriate to do so, such agreement will be permitted if in writing.
However, the fact that such orders are permitted does not mean that they are required. Nor it is an invitation for either party to repeatedly request changes to the orders made.
If no agreement is reached, the orders made apply. It is in that context and subject to those overriding comments that I include an order as sought permitting additional time between X with the father as agreed in writing.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The mother sought an order that the parties communicate via a parenting mobile telephone app. No evidence was led as to what app might be appropriate in the particular circumstances of this case. I therefore do not propose making an order providing for communication via a parenting app.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child … has engaged in:
(a) ...
(b) family violence.
(3) …
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The father seeks orders for equal shared parental responsibility. The mother seeks an order for sole parental responsibility.
As stated, each party alleges that the other has engaged in family violence against the other. This is discussed above. Both parties allege the other has engaged in controlling behaviour.
Family violence is defined in section 4AB(1) of the Act to mean:
… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful.
The father asserts that the mother has sought to control his time with X and that this, together with her reporting his alleged breach of an intervention order amounts to family violence. I do not accept this submission.
Similarly, I do not accept the father’s submission that the mother has sought to control his relationship with X and has failed to facilitate X’s relationship with her father. On the contrary, the mother’s actions speak to the opposite. In circumstances where the parties’ relationship came to an end well before X was born, and notwithstanding comments initially made by the mother that her preference was for her not to have to deal with the father, the mother ultimately understood the importance to X of her developing a relationship with her father and acted accordingly.
It was only after the July 2017 incident that the mother refused to allow the father to spend time with X in her home. Despite this, she has continued to facilitate X’s time with her father pursuant to court orders or otherwise as agreed.
On the basis of the totality of the evidence, I accept that the father’s insistence on pressing his views as to how and when X ought to spend time with him and what the mother needed to do to facilitate X’s relationship with him has been unreasonable. I accept the characterisation attributed to the father’s conduct throughout X’s life as ‘too much, too soon, too fast’.
For her part, the mother alleges that the father engaged in family violence towards her, in the form of controlling behaviour. For the reasons set out above, I find that the father’s ongoing demands for additional time with X and for changes to orders which were made or agreed to, could have been experienced by the mother and characterised as unduly controlling.
Notwithstanding my finding that the father’s conduct towards the mother was unreasonable, even if it rises to the level of family violence, on the totality of the evidence before me, I am not satisfied that it warrants an order for sole parental responsibility.
The question then arises as to whether it is in X’s best interests for an order to be made in the terms sought conferring sole parental responsibility on the mother.
It is apparent that there has been significant limitations demonstrated by both these parents in their capacity to resolve any dispute they have with the other parent, and to co-parent effectively for X’s benefit.
However, what is clear is that both parents care deeply for X and each have much to offer X as she grows up. I am not satisfied that an order for sole parental responsibility is in X’s best interests at this stage. X is not yet three years of age. These parents will need to co-parent for another 15 years.
In my view, the preferable course is for the parties to undertake a parenting orders program to enable them to develop strategies which:
a)focus on X’s best interests; and
b)help them to develop strategies to be able to communicate in a manner which is less likely to lead to increased parental conflict in the future.
As stated, both parents are highly intelligent and committed to their daughter. It is hoped that in participating in this program, they are able to learn how best to focus on her needs and support them.
As X is not yet three years of age, it will be some years before the parties are required to consider her education. I will therefore order that the parties participate in FDRS in relation to that issue when X turns 4 years of age. I reiterate that it is hoped that in the coming year with the benefit of learnings from the parenting orders program, the parties will be able to engage in FDRS in a constructive manner.
I therefore do not propose to make an order for sole parental responsibility at this point in time.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of section 65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
For the reasons discussed above, having regard to X’s age and stage of development, together with the physical distance between the parties’ homes, it is not reasonably practicable for X to spend equal time with each parent.
Moreover, the father has indicated that he is able to continue to spend time with X each week at present, albeit that involves him driving to Town A to spend time with her on a Wednesday.
As X commences school, it will not be reasonably practicable for the father to spend mid-week time with her as is currently occurring given the significant distance between the parties’ respective homes.
Having considered the matters specified in section 65DAA of the Act, even though it may not amount to ‘substantial and significant time’ as defined, I am satisfied that the proposed orders are in X’s best interests, as X will:
a)continue to spend frequent and regular time with her father, her siblings and the paternal family;
b)spend increasingly more time in the father’s home in an age appropriate manner; and
c)spend time with the father on school holidays (again, increasing at an age-appropriate pace) and on special occasions.
Conclusion
I accept that the father has put forward a proposal which he genuinely considers to be in X’s best interests. He focuses on the need for her to have regular and frequent time with him and importantly, with his siblings, including H who was born on the same day and with whom he says X has the potential to form a significant lifelong bond.
His proposal is also based on the fact that X lives with the mother and therefore ‘spends’ the bulk of the week with the mother.
What the father’s proposal does not address is the fact that whilst X lives primarily with the mother, she works full time and X is in daycare for much of the day each week day. In effect therefore, X’s time with her mother is limited to after daycare during the week and on weekends. If the father’s proposal were accepted, X’s capacity to have any meaningful time with the mother on weekends would be significantly limited. Indeed, it would be restricted to late Saturday afternoon and Sunday each alternate weekend.
It is apparent from the father’s submissions that he has adopted the view that if orders do not deal expressly with an issue, it is a matter for the parties to negotiate. This may well be so and it is of course open to the parties to engage in such discussions. However, the father then argues that the mother’s failure to agree to his proposals, or indeed to engage in further negotiation, amounts to a misuse of her power. It is a bridge too far to suggest that in circumstances where the mother does not agree or engage with the father either at all or to his satisfaction, that she is not facilitating time between the child and the father and his family.
As stated earlier, I have no doubt that both parents in this case love X and want to provide the best childhood for her that they can. It is to the father’s credit that he has made himself available to spend as much time as he has been able with X, particularly in circumstances where he has had another two very children to care for at the same time.
It is also to the mother’s credit that she has been able to facilitate a relationship between the father and X and indeed between X and her siblings notwithstanding her initial views expressed quite openly that she would have preferred for the father not to be involved in X’s life following the breakdown of their relationship. The mother says she has moved from this position. I accept that evidence, not only because that is what she has said but also because it is reflective of her conduct since X was born, both before and after the father commenced proceedings in this matter.
It is hoped that the parties are able to work more productively together once this litigation is finalised for X’s benefit. No doubt this will require each of them to reflect on their approach to communicating with the other. In the case of the mother, the question is whether she can move beyond the lack of trust she has in the father. For the father, it will require him to reflect on the implications of his conduct and the difference between his intention and the actual impact of his demands.
On balance and having regard to the matters canvased in these reasons, I make the orders as set out at the beginning of these written reasons for judgment which I find are in X’s best interests.
I certify that the preceding two hundred and ninety-nine (299) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 8 April 2020
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