Stock & Stock
[2024] FedCFamC2F 748
•14 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stock & Stock [2024] FedCFamC2F 748
File number(s): CAC 230 of 2022 Judgment of: JUDGE W J NEVILLE Date of judgment: 14 June 2024 Catchwords: FAMILY LAW – PARENTING – limited issues concerning parental responsibility and “time-with” arrangements – Applicant Father’s focus notably on his time with his daughters rather than on their time with him – Father’s constant contests with health care specialists for the children – sole parental responsibility for health and education issues in the Mother’s favour – regular but slightly limited time between the children and the Father. Legislation: Family Law Act 1975 (Cth) ss. 60CA, 60CC(2) & (2A), 60CC(3)(a) – (m), 61DA Cases cited: AMS v AIF (1999) 199 CLR 160
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53
Fox v Percy (2003) 214 CLR 118
Godfrey & Sanders (2007) 208 FLR 287
Isles v Nelissen (2022) 367 FLR 338; (2023) 65 Fam LR 288
In the Marriage of Kress (1976) 13 ALR 309
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Partington v Cade (No.2) (2009) 42 Fam LR 401
Sigley v Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238
Vontek & Vontek [2017] FamCAFC 28
Division: Division 2 Family Law Number of paragraphs: 143 Date of last submission/s: 1 February 2024 Date of hearing: 11-12 December 2023 Place: Canberra Counsel for the Applicant Mr S Gardiner Solicitor for the Applicant Dobbinson Davey Clifford Simpson Lawyers Counsel for the Respondent Dr S Leslie Solicitor for the Respondent Neilan Stramandinoli Family Law Independent Children’s Lawyer Legal Aid City B ORDERS
CAC 230 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR STOCK
ApplicantAND: MS STOCK
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
14 JUNE 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
Parental Responsibility
1.The Mother have sole parental responsibility in relation to medical and educational decisions for the children, namely:
(a)X (born in 2015), and
(b)Y (born in 2018)
(collectively referred to as “the children”)
2.Before any major long-term decision is made by the Mother pursuant to Order 1:
(a)The Mother will notify the Father in writing of any basic information considered by the Mother as directly relevant to the proposed decision.
(b)Within 3 days of the Father receiving such notification, the Father may comment to the Mother or provide the children's treating medical practitioners and/or their schools with the information he asserts is important or relevant for the treating medical practitioners and/or school to take into account in formulating treatment for the children.
(c)If there is no response from the Father within the time specified in Order 2(b), the Mother may make such decision as she thinks is in the best interests of the children without further notice to the Father.
(d)If the Father comments in relation to the proposed decision, the Mother and/or the treating medical practitioners and/or the children’s school should reasonably take his comments into account before making the ultimate decision.
(e)The children’s treating medical practitioners and/or school are not required to respond to the Father’s comments or his requests for contact or discussion with them.
3.The Mother will authorise in writing the children’s schools and/or treating medical practitioners to provide any information the Father may require and/or the Mother will provide any information that she is provided by the treating medical practitioners and/or schools to the Father within 48 hours of receiving same.
4.The Father is permitted to take the children to any therapeutic or medical appointment that the Mother authorises him in writing to attend with the children.
5.The Father otherwise be restrained by injunction from contacting the children’s treating medical practitioners.
6.The Father be restrained by injunction from attending the children’s extra-curricular activities while the children are in the Mother’s care.
AND THE COURT FURTHER ORDERS BY CONSENT, ON A FINAL BASIS THAT:
Live with/Spend Time with Arrangements
7.Subject to any other agreement in writing between the parties, from the date of these Orders the children live and spend time with the parents each fortnight as follows:
(a)In week 1 and each alternate week thereafter:
(i)With the Mother from before school on Monday (or 3pm Monday if the children do not attend school that day), until after school on Friday (or 3pm Friday if the children do not attend school that day);
(ii)With the Father from after school on Friday (or 3pm Friday if the children do not attend school that day) until after school on Monday ( or 3pm Monday if the children do not attend school that day);
(b)In week 2 and each alternate week thereafter:
(i)With the Mother from after school on Monday ( or 3pm Monday if the children do not attend school that day) until before school Wednesday (or 9am Wednesday if the children do not attend school that day);
(ii)With the Father, from the commencement of school on Wednesday (or 9am Wednesday if the children do not attend school that day) until after school on Friday (or 3pm Friday if the children do not attend school that day);
(iii)With the Mother, from after school on Friday (or 3pm Friday if the children do not attend school that day) until before school on Monday (or 3pm Monday if the children do not attend school that day).
School Holidays
8.During the City B school holiday periods that commence at the end of Terms 1, 2 and 3, the children shall spend equal time with each parent as agreed between the parents in writing but failing agreement as follows:
(a)For the school holidays commencing in 2024 and each alternate year thereafter, with the Father in the second half of the school holiday period and with the Mother in the first half of the school holiday period;
(b)For the school holidays commencing in 2025 and each alternate year thereafter, with the Mother in the second half of the school holiday period and with the Father in the first half of the school holiday period.
9.During the City B Christmas school holiday period that commences at the end of Term 4, the children shall spend equal time with each parent as agreed between the parties in writing but failing agreement as follows:
(a)For the school holidays commencing in 2023:
(i)With the Mother for the first week;
(ii)With the Father for the second and third week;
(iii)With the Mother for the fourth and fifth week, and
(iv)With the Father for the sixth week.
(b)For the school holidays commencing in 2024 and each alternate year thereafter:
(i)With the Father for the first, second and third week, and
(ii)With the Mother for the fourth, fifth and sixth week.
(c)For the school holidays commencing in 2025 and each alternate year thereafter:
(i)With the Mother for the first, second and third week, and
(ii)With the Father for the fourth, fifth and sixth week.
10.Unless otherwise specified in these Orders, for the purpose of Orders 8 and 9 hereof, unless otherwise agreed between the parties in writing:
(a)The school holiday period commences at the conclusion of school on the last day of required attendance in that term;
(b)The school holiday period concludes at the commencement of the first day of required attendance at school for the next term;
(c)The halfway point of the school holiday periods that are two weeks long shall be at 12:00pm on the Saturday following the first week of the school holiday period; and
(d)The halfway point of the school holiday periods that are more than two weeks long, shall be calculated by dividing the number of days in that school holiday period by two and changeover occurring at 12:00pm on this day (the halfway point). In the event of an odd number of days, changeover shall occur at 12:00pm on the middle day.
Special Occasions
11.Notwithstanding these Orders, unless otherwise agreed between the parents in writing, the children spend time with their parents for special occasions as follows:
(a)For Christmas:
(i)From 12:00pm on 24 December (Christmas Eve) until 12:00pm 25 December (Christmas Day) in 2023 and each alternate year thereafter with the Father and in 2024 and each alternate year thereafter with the Mother; and
(ii)From 12:00pm on 25 December (Christmas Day) until 12:00pm 26 December (Boxing Day) in 2023 and each alternate year thereafter with the Mother and in 2024 and each alternate year thereafter with the Father; and
(iii)From 12:00pm on Boxing Day the usual time arrangements shall resume.
(b)For Easter:
(i)In years ending in an even number or zero:
A.From 12pm on Easter Friday to 12pm Easter Sunday with the Father;
B.From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the Mother.
(ii)In years ending in an odd number:
A.From 12pm on Easter Friday to 12pm Easter Sunday with the Mother;
B.From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the Father.
(c)On Father's Day from 4:00pm the day before Father's Day to 9:00am or before school the day after Father's Day with the Father;
(d)On Mother's Day from 4:00pm the day before Mother's Day to 9:00am or before school the day after Mother's Day with the Mother;
(e)On each of the children's birthdays, where the birthday falls on any day that is not a changeover day, the children will spend time with the parties as follows:
(i)From 1:00pm or after school on the birthday to 10:00am or before school the following day with the mother if the birthday falls during the Father's time with the children in accordance with these Orders; and
(ii)From 1:00pm or after school on the birthday to 10:00am or before school the following day with the father if the birthday falls during the Mother's time in accordance with these Orders;
(f)On the Mother's birthday, with the mother, from 3:00pm until before school the following morning (or 9.00am);
(g)On the Father's birthday, with the father, from 3:00pm until before school the following morning (or 9.00am);
Changeover
12.Unless otherwise agreed between the parents in writing, all handovers occur at the children's school on school days and if a non-school day at McDonald's Suburb C.
Other Matters
13.Both parents are at liberty to attend any school event relating to the children's attendance at school, including parent teacher interviews, fetes, assemblies/award ceremonies, school assemblies and concerts.
14.Both parents are at liberty to attend any special occasions or events that the children are involved in and parents are invited to (including being invited by the other parent), including but not limited to concerts, performances, carnivals, etc, and as otherwise agreed in writing between the parents.
15.Unless otherwise invited in writing by the other parent, each parent will only attend any extracurricular activities that either child is involved in when the child/children are in that parent's care, except for the following:
(a)Both parents may attend such activities in the event that the children are involved in a special event in relation to such activities such as a sporting final or extracurricular activities.
(b)Both parents can attend sports games (not training) and outdoor sports games (not training) or other field sports so long as they do not approach within
10m30m of the other parent.
Communication
16.The children be at liberty to communicate with each parent at any time as reasonably requested by the children and the parent who has care of the children will facilitate such communication as soon as reasonably practicable.
17.Each parent shall keep the other informed in writing in relation to their current contact details including email address and mobile telephone number.
18.The parties may communicate with each other using the Our Family Wizard Communication App, by text message or WhatsApp in relation to the children (and in relation to other topics as agreed between the parties in writing), and each parent will be respectful in all communication with the other party.
AND IT IS NOTED THAT except in exceptional circumstances, each parent will write to the other about long-term issues about the children no more frequently than once per week, except when responding to the other.
19.For the purpose of the preceding order, the parties may communicate face-to-face if that communication is initiated by the mother through an invitation in writing to meet to discuss the children.
20.In the event of an emergency involving the children, the parent who is caring for the children shall notify the other parent as soon as reasonably practicable, using the quickest form of communication, which may be by telephone or text message.
Restraints
21.On a without admissions basis, the parties be restrained from:
(a)committing family violence towards the children.
(b)consuming alcohol, above a BAC limit of 0.05, during the time that the children spend with them, and in the 12 hours prior to them starting that time.
(c)denigrating the other parent and/or their family members and friends to the children or in the presence of the children, and shall do all things reasonably necessary to remove the child/children from any environment in which the other parent and/or their family or friends are being denigrated in the presence of the children.
(d)passing information or messages to the other parent through the children.
(e)discussing these proceedings and/or their family law dispute with the children.
(f)recording the other parent; and
(g)bringing the children into contact with the maternal uncle, Mr D.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction & Overview
This was a significantly regrettable matter for the relatively simple reasons that (a) the issues in dispute were of very modest compass and otherwise quite straight-forward (i.e . what should the time-with arrangement be for the two children – X and Y – with their Father; and the appropriate parental responsibility Order for the children), and (b) somewhat conversely, accepting the Father’s earnest intentions and statements to the contrary, he regularly made the contest about himself and his time with the girls, rather than their time with him. This view, as noted below, was shared by the expert, Ms E in her Report and in her oral evidence.
These clear and unfortunate features of the litigation were captured in the following exchange, which began with the understandable frustration of the Independent Children’s Lawyer (ICL). Thus (emphasis added):[1]
[Ms F]: Why are we here? The mother proposes you spend five nights a fortnight with the children. You propose seven nights a fortnight with the children. It’s two nights?‑‑‑Yes.
Why are we here today?‑‑‑So I – I guess, beyond the other issues, I – I would say – like, I definitely recognise quality is most important. But quantity is also a factor. So you – you know, you’ve got to have that ‑ ‑ ‑
HIS HONOUR: Why?‑‑‑ ‑ ‑ ‑ time with the kids.
[Ms F]: Sorry. And what’s a factor?‑‑‑To have that quality time you need ‑ ‑ ‑
HIS HONOUR: Sorry?‑‑‑ ‑ ‑ ‑ you need to have time with the children, in the first place.
[Ms F]: Okay. So what is the difference between five nights a fortnight and seven nights a fortnight as to that quality of time?‑‑‑So, I – I guess, just for an example – so I – I do enjoy being involved in their extra-curricular activities.
[1] T 48; for completeness, the Court simply notes that the Father’s most recently retained Counsel and lawyers came into the matter very shortly before the Final Hearing
The Father’s emphasis upon the “quantity” of his time with the children was and remains concerning. Well-known and long-standing authorities noted later in these reasons point out that the Court’s focus must be upon the “meaningful” nature and feature of the parent-child relationship and the quality of it, rather than using the “quantity” of time as a relevant measure.
There followed this exchange with the Bench (with multiple others noted later in these reasons):[2]
[Ms F]: Okay. So what is the difference between five nights a fortnight and seven nights a fortnight as to that quality of time?‑‑‑So, I – I guess, just for an example – so I – I do enjoy being involved in their extra-curricular activities.
HIS HONOUR: Sorry. I just pause again. You notice that you use the word “I” a lot. Just an observation?‑‑‑So I – I guess, the children enjoy me coming to the extra-curricular activities. But that takes up, pretty much, Wednesday, Thursday. So they also enjoy other activities, going to the playground, just spending time with each other. So if there was additional time ‑ ‑ ‑
[2] Ibid
In my view, these passages, together with the rest of the evidence summarised below, as well as the evidence of the expert (Ms E), made very plain how self-focussed the Father was and how difficult it was for him to see (and of course, to recognise) that the focus was not, and was not meant to be, on his time with the girls but what was in their best interests.
In relation to the issues requiring adjudication, on the final day of the trial the Mother’s Counsel handed up to the bench a Minute of Proposed Final Orders with all Orders agreed except for matters of (a) parental responsibility, and (b) time-with arrangements between the children and the Father. For the reasons that follow, in my view, it is firmly in the children’s best interests (X, who will turn 9 years old this year, and Y, aged six years) that (a) the Mother have sole parental responsibility regarding major, long-term issues regarding health and education for the children (and for the Mother to consult with the Father, but once only, as opposed to engaging in the equivalent of a relentless round of “committee meetings” of discussion), and (b) the children live primarily with the Mother, maintaining the current arrangement of, essentially, a five nights per fortnight with the Father and nine nights with the Mother, unless otherwise agreed in writing between the parties. In my view, these Orders are in the best interests of the children. Otherwise, in relation to all other issues, the Mother’s Orders should be made. I note that the ICL generally agrees with them.
Applicant Father’s Orders sought (Pre-Hearing)
The Applicant Father’s Orders sought prior to the Final Hearing were contained in his Amended Application for Final Orders filed on 1st December 2023. As outlined, a Minute of Proposed Final Orders was handed up on the last day of the trial outlining updated Orders sought separately by each party, as well as a range of Orders that had been agreed between the parties. The Father’s pre-hearing Orders sought were as follows (emphasis in original; Orders no longer sought with ‘strikethrough’ formatting omitted):
Parental Responsibility
1.That the parents have equal shared responsibility for the children, [X] born [in] 2015 and [Y] born [in] 2018.
2.If the parents cannot agree on a medical treatment/procedure for [X] they will seek the written recommendations of her paediatrician [Dr G], or any other treating paediatrician [X] is under the care of at the time.
3.If the parents cannot agree on a medical process for [Y], they will seek written advice from a treating physician at the [H Medical Centre] or engage a paediatrician as required.
Parenting Arrangements
School Term Arrangements
4.From the date of these Orders until January 2024, during [City B] School Terms unless otherwise agreed, the children live with and spend time with the parents each fortnight as follows:
5.In week 1 and each alternate week thereafter:
a) With the mother from before school on Monday ( or 3:00pm Monday if the children do not attend school that day) until after school on Friday (or 3:00pm Friday if the children do not attend school that day); and
b) With the father from after school on Friday ( or 3:00pm Friday if the children do not attend school that day) until after school Monday (or 3:00pm Monday if the children do not attend school that day).
6.In week 2 and each alternate week thereafter:
a) With the Mother from after school on Monday ( or 3pm Monday if the children do not attend school that day) until before school Wednesday (or 9am Wednesday if the children do not attend school that day);
b) With the Father from the commencement of school on Wednesday (or 9am Wednesday if the children do not attend school that day) until after school on Friday (or 3pm Friday if the children do not attend school that day);
c) With the mother, from after school on Friday (or 3pm Friday if the children do not attend school that day) until before school on Monday (or 3pm Monday if the children do not attend school that day).
From 30 January 2024 (beginning of [City B] Term 1)
7.In week 1 and each alternate week thereafter:
a. With the Mother from after school on Monday ( or 3pm Monday if the children do not attend school that day) until after school on Wednesday (or 3pm Wednesday) if the children do not attend school that day);
b. With the father from after school on Wednesday (or 3pm Wednesday if the children do not attend school that day) until after school on Monday ( or 3pm if the children do not attend school that day)
8.In week 2 and each alternate week thereafter:
a. With the Mother from after school on Monday ( or 3pm Monday if the children do not attend school that day) until after school Wednesday (or 3pm Wednesday if the children do not attend school that day);
b. With the Father, from after school on Wednesday (or 9am Wednesday if the children do not attend school that day) until after school on Friday (or 3pm Friday if the children do not attend school that day);
c. With the Mother, from after school on Friday (or 3pm Friday if the children do not attend school that day) until after school on Monday (or 3:00pm Monday if the children do not attend school that day).
AND IT IS NOTED this equates to a 5/2/2/5 arrangement, with the children being in the fathers care each Wednesday and Thursday and in the Mother's care every Monday and Tuesday, with the weekends to alternate between the parents.
9.That notwithstanding these Orders, the parents will alternate in attending appointments with [X]'s psychologist and occupational therapist.
School Holiday Arrangements
10.That during the [City B] school holiday periods (excluding the Christmas school holiday period that commences at the end of Term 4), the children shall live with each parent as follows:
i. The children shall spend equal time with each parent as agreed between the parties in writing but failing agreement as follows:
a. For the school holidays commencing in 2024 and each alternate year thereafter with the Father in the second half of the school holiday period and with the Mother in the first half of the school holiday period;
b. For the school holidays commencing in 2025 and each alternate year thereafter, with the Mother in the second half of the school holiday period and with the Father in the first half of the school holiday period.
11.That during the [City B] Christmas school holiday period that commences at the end of Term 4 the children shall spend equal time with each parent as agreed between the parties in writing but failing agreement as follows:
i. For the Christmas school holidays commencing in 2023:
a. With the Mother for the first week;
b. With the Father for the second and third week;
c. With the Mother for the fourth and fifth week;
d. With the Father for the sixth week.
b) For future Christmas school holidays on an equal time basis, as agreed between the parties in writing.
12.That unless otherwise specified in these Orders, or otherwise agreed between the parties in writing:
a) The school holiday period commences at the conclusion of school on the last day of required attendance in that term;
b) The school holiday period concludes at the commencement of the first day of school for the next term;
c) The halfway point of the school holiday shall be calculated by dividing the number of days in that school holiday period by two and changeover occurring at 12:00pm on this day (the halfway point). In the event of an odd number of days, changeover shall occur at 12:00pm on the middle day;
d) Where the school holidays include a 'special day/s' as set out in these Orders the total number of school holidays will be adjusted accordingly.
Christmas and Easter
13.That notwithstanding these Orders, the children spend time with their parents for the Christmas period as follows:
i. From 12 noon on 24 December (Christmas Eve) until 12:00 noon 25 December (Christmas Day) in 2023 and each alternate year thereafter with the Father and in 2024 and each alternate year thereafter with the Mother; and
ii. From 12:00pm on 25 December (Christmas Day) until 12:00pm 26 December (Boxing Day) in 2023 and each alternate year thereafter with the Mother and in 2024 and each alternate year thereafter with the Father; and
iii. That from 12:00pm on Boxing Day the usual time arrangements shall resume.
14.That notwithstanding these Orders, for the Easter period in 2024, and each alternate year thereafter:
i. From 12pm on Easter Friday to 12pm Easter Sunday with the Father;
ii. From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the Mother.
15.That notwithstanding these Orders, for the Easter period in 2025, and each alternate year thereafter:
i. From 12pm on Easter Friday to 12pm Easter Sunday with the Mother;
ii. From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the Father.
Special Days
16.That notwithstanding these Orders, the children spend time with each parent as agreed between the parties in writing, but failing agreement as follows:
i. On Father's Day from 4:00pm the day before Father's Day to 9:00am 8:00am or before school the day after Father's Day with the Father;
ii. On Mothers Day from 4:00pm the day before Mother's Day to 9:00am 8:00am or before school the day after Mother's Day with the Mother;
iii. On each of the children's birthdays, where the birthday falls on any day that is not a changeover day, the children will spend time with the parties as follows:
a. From 1:00pm or after school on the birthday to 10:00am or before school the following day with the Mother if the birthday falls during the Father's time with the children in accordance with these Orders; and
b. From 1:00pm or after school on the birthday to 10:00am or before school the following day with the Father if the birthday falls during the Mother's time in accordance with these Orders;
iv. Other holidays, birthdays, and significant dates may be celebrated as agreed between the parties in writing.
Changeover
17.That unless otherwise agreed in writing, changeover shall occur at the children's school in the event of a school day, and in the event that the children are not at school, at the residence of the parent whom the children are about to commence spending time with McDonald' s [Suburb C].
Information Sharing and Schooling
18.That both parents shall authorise all schools attended by either child, to provide to either parent, upon request, all reports, information or photos relating to the child, at the requesting parent' s cost, and to that end. the parents are permitted to provide a copy of these Orders to all childcare/schools attended by either child.
19.That the parents shall authorise all of the children's General Practitioners or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to either child at that parent's cost (if any), and to that end. the parents are permitted to provide a copy of these Orders to all General Practitioners or treating medical and/or allied health practitioner/s attended by either child.
20.That both parents shall agree in writing in relation to any change of school for the children.
21.That both parents are at liberty to attend any school event relating to the children's attendance at school, including but not limited to parent teacher interviews, fetes, assemblies, award ceremonies, and concerts.
22.That both parents are at liberty to attend any special occasions or events that the children are involved in and parents are invited to (including being invited by the other parent), including but not limited to concerts, performances, carnivals, etc, and as otherwise agreed in writing between the parents .
23.That both parents are at liberty to attend any extracurricular activities that either child is involved in.
Restraints
24.Without admission, both parties be restrained from committing Family violence towards the children.
25.Without admission, both parties be restrained from having a blood alcohol reading above 0.05 during the time that the children are in their care.
26.That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to the children or in the presence of the children and shall do all things reasonably necessary to remove the child/children from any environment in which the other parent and/or their family or friends are being denigrated in the presence of the children.
27.That each party be restrained by injunction from passing information or messages through the children to the other parent.
28.That each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with the children.
29.That each parent be restrained by injunction from recording the other parent.
30.That the parties are restrained by injunction from bringing the children into any form of contact with the maternal uncle, [Mr D]. ~
Communication
31.That the children be at liberty to communicate with each parent at any time as reasonably requested by the children and each party be able to respond to such communication.
32.That each parent shall keep the other informed in writing in relation to their current contact details including: address, email address, and mobile telephone number.
33.That the parties may communicate with each other using the My Family Wizard Communication App, by text message or WhatsApp in relation to the children (and in relation to other topics as agreed between the parties in writing), and each parent will be respectful in all communication with the other party.
34.That the parties may greet each other and discuss key issues as required at handovers or extracurricular events and each party will be respectful in all communication with the other party.
AND IT IS NOTED THAT except in exceptional circumstances, each parent will write to the other about long-term issues about the children no more frequently than once per week, except when responding to the other.
35.That in the event of an emergency involving the children, the parent who is caring for the children shall notify the other parent as soon as reasonably practicable, using the quickest form of communication, which may be by telephone or text message.
Respondent Mother’s Orders sought (Pre-Hearing)
The Respondent’s Orders sought prior to the Final Hearing were contained in her Further Amended Response to Initiating Application document filed on 29th November 2023. They were as follows (emphasis in original):
Parental Responsibility
1.That the mother have sole parental responsibility in relation to medical and educational decisions for the children. namely:
a. [X] born [in] 2015 . and
b. [Y] born [in] 2018.
(collectively referred to as "the children")
2.Before any major long-term decision is made by the mother pursuant to Order 1:
a. The mother will notify the father in writing of any basic information considered by the mother as directly relevant to the proposed decision.
b. That within 7 days of the father receiving such notification the father may comment to the mother or provide the children's treating medical practitioners and/or their school with the information he asserts is important or relevant for the treating medical practitioners and/or school to take into account in formulating treatment for the children.
c. If there is no response from the father within that specific time the mother may make such decision as she thinks is in the best interests of the children without further notice.
d. If the father comments in relation to the proposed decision, the mother and/or the treating medical practitioners and/or the children’s school should reasonably take his comments into account before making the ultimate decision.
e. The children’s treating medical practitioners and/or school are not required to respond to the father’s comments or his requests for contact or discussion with them.
3.That the mother will authorise in writing the children’s school and/or treating medical practitioners to provide any information the father may require.
4.That the father be restrained by injunction from contacting the children’s treating medical practitioners, except to make an appointment with the children’s treating general practitioners.
Live with/Spend Time with Arrangements
5.That the children live and spend time with the parents each fortnight as follows:
a. In week 1 and each alternate week thereafter:
a. With the mother from before school on Monday (or 3pm Monday if the children do not attend school that day), until after school on Friday (or 3pm Friday if the children do not attend school that day);
b. With the father from after school on Friday (or 3pm Friday if the children do not attend school that day) until after school on Monday (or 3pm Monday if the children do not attend school that day);
b. In week 2 and each alternate week thereafter:
a. with the mother from after school on Monday (or 3pm Monday if the children do not attend school that day) until before school Wednesday (or 9am Wednesday if the children do not attend school that day);
b. with the father, from the commencement of school on Wednesday (or 9am Wednesday if the children do not attend school that day) until after school on Friday (or 3pm Friday if the children do not attend school that day);
c. with the mother, from after school on Friday (or 3pm Friday if the children do not attend school that day) until before school on Monday (or 3pm Monday if the children do not attend school that day).
School Holidays
6.That during the [City B] school holiday periods that commence at the end of Terms 1, 2 and 3, the children shall spend equal time with each parent as agreed between the parents in writing but failing agreement as follows:
a. For the school holidays commencing in 2023 and each alternate year thereafter, with the mother in the second half of the school holiday period and with the father in the first half of the school holiday period.
b. For the school holidays commencing in 2024 and each alternate year thereafter, with the father in the second half of the school holiday period and with the mother in the first half of the school holiday period;
7.That during the [City B] Christmas school holiday period that commences at the end of Term 4, the children shall spend equal time with each parent as agreed between the parties in writing but failing agreement as follows:
a. For the school holidays commencing in 2023:
a. With the mother for the first week;
b. With the father for the second and third week;
c. With the mother for the fourth and fifth week, and
d. With the father for the sixth week.
b. For the school holidays commencing in 2024 and each alternate year thereafter:
a. With the father for the first, second and third week, and
b. With the mother for the fourth, fifth and sixth week.
c. For the school holidays commencing in 2025 and each alternate year thereafter:
a. With the mother for the first, second and third week, and
b. With the father for the fourth, fifth and sixth week.
8.That unless otherwise specified in these Orders, for the purpose of Orders 6 and 7 hereof, unless otherwise agreed between the parties in writing:
a. The school holiday period commences at the conclusion of school on the last day of required attendance in that term;
b. The school holiday period concludes at the commencement of the first day of school for the next term;
c. The halfway point of the school holiday periods that are two weeks long shall be at 12:00pm on the Saturday following the first week of the school holiday period; and
d. The halfway point of the school holiday periods that are more than two weeks long, shall be calculated by dividing the number of days in that school holiday period by two and changeover occurring at 12:00pm on this day (the halfway point). In the event of an odd number of days, changeover shall occur at 12:00pm on the middle day.
Special Occasions
9.That notwithstanding these Orders, the children spend time with their parents for special occasions as follows:
a. For Christmas:
a. From 12:00pm on 24 December (Christmas Eve) until 12:00pm 25 December (Christmas Day) in 2023 and each alternate year thereafter with the father and in 2024 and each alternate year thereafter with the mother; and
b. From 12:00pm on 25 December (Christmas Day) until 12:00pm 26 December (Boxing Day) in 2023 and each alternate year thereafter with the mother and in 2024 and each alternate year thereafter with the father; and
c. That from 12:00pm on Boxing Day the usual time arrangements shall resume.
10.For Easter:
a. In years ending in an even number or zero:
a. From 12pm on Easter Friday to 12pm Easter Sunday with the father;
b. From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the mother.
b. In years ending in an odd number:
a. From 12pm on Easter Friday to 12pm Easter Sunday with the mother;
b. From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the father.
11.On Father’s Day from 4:00pm the day before Father’s Day to 9:00am or before school the day after Father’s Day with the father;
12.On Mother’s Day from 4:00pm the day before Mother’s Day to 9:00am or before school the day after Mother’s Day with the mother;
13.On each of the children’s birthdays, where the birthday falls on any day that is not a changeover day, the children will spend time with the parties as follows:
a. From 1:00pm or after school on the birthday to 10:00am or before school the following day with the mother if the birthday falls during the father’s time with the children in accordance with these Orders; and
b. From 1:00pm or after school on the birthday to 10:00am or before school the following day with the father if the birthday falls during the mother’s time in accordance with these Orders;
14.On the Mother’s birthday, with the mother, from 3:00pm until 7:00pm;
15.On the Father’s birthday, with the father, from 3:00pm until 7:00pm.
Changeovers
16.That, unless otherwise agreed between the parents in writing, all handovers occur at the children’s school on school days and if a non-school day at McDonald’s [Suburb C].
Other Matters
17.That both parents are at liberty to attend any school event relating to the children’s attendance at school, including parent teacher interviews, fetes, assemblies/award ceremonies, school assemblies and concerts.
18.That both parents are at liberty to attend any special occasions or events that the children are involved in and parents are invited to (including being invited by the other parent), including but not limited to concerts, performances, carnivals, etc, and as otherwise agreed in writing between the parents.
19.That both parents are at liberty to attend any extracurricular activities that either child is involved in when the child/children are in that parent’s care.
Communication
20.That the children be at liberty to communicate with each parent at any time as reasonably requested by the children and the parent who has care of the children will facilitate such communication as soon as reasonably practicable.
21.That each parent shall keep the other informed in writing in relation to their current contact details including email address and mobile telephone number.
22.That the parties may communicate with each other using the My Family Wizard Communication App, by text message or WhatsApp in relation to the children (and in relation to other topics as agreed between the parties in writing), and each parent will be respectful in all communication with the other party.
23.AND IT IS NOTED THAT except in exceptional circumstances, each parent will write to the other about long-term issues about the children no more frequently than once per week, except when responding to the other.
24.That in the event of an emergency involving the children, the parent who is caring for the children shall notify the other parent as soon as reasonably practicable, using the quickest form of communication, which may be by telephone or text message
Restraints
25.That the father be restrained from:
a. committing family violence towards the children.
b. consuming alcohol during the time that the children spend with him, and in the 12 hours prior to them starting that time.
c. denigrating the mother and/or her family members and friends to the children or in the presence of the children, and shall do all things reasonably necessary to remove the child/children from any environment in which the mother and/or her family or friends are being denigrated in the presence of the children.
d. from passing information or messages through the children to the mother.
e. from discussing these proceedings and/or their family law dispute with the children.
f. from recording the mother.
Proposed Minute of Final Parenting Orders (Post-Hearing)
On 12th December 2023, the second day of the Final Hearing, the Respondent Mother’s Counsel handed up a proposed Minute of Final Parenting Orders, with the consent of the Applicant Father. The Minute was colour coded, reflecting concessions made by the Mother in cross-examination and her updated Orders sought in red, the Father’s Orders sought in blue, and agreed Orders in black. For the purposes of this Judgement, the Mother’s Orders are italicized and the Father’s Orders are underlined. The Minute is outlined below (emphasis added):
Parental Responsibility
1.That the mother have sole parental responsibility in relation to medical decisions for the children, namely:
a) [X] born [in] 2015, and
b) [Y] born [in] 2018
(collectively referred to as “the children”)
2.Before any major long-term decision made by the mother pursuant to Order 1:
a) The mother will notify the father in writing of any basic information considered by the mother as directly relevant to the proposed decision.
b) That within 7 days of the father receiving such notification, the father may comment to the mother or provide the children’s treating medical practitioners with the information he asserts is important or relevant for the treating medical practitioner(s) to take into account in formulating treatment for the children.
c) If there is no response from the father within that specific time the mother may make such decision as she thinks is in the best interests of the children without further notice.
d) If the father comments in relation to the proposed decision, the mother and/or the treating medical practitioners should reasonably take his comments into account before making the ultimate decision.
e) The children’s treating medical practitioners are not required to respond to the father’s comments or his request for contact or discussion with them.
3.That the mother will authorise in writing the children’s treating medical practitioners to provide any information the father may require and/or the mother will provide any information that she is provided by the treating medical practitioners to the father within 48 hours of receiving same.
4.The mother will inform the father of any medical appointments that she makes for the children within 48 hours of making the appointment and will offer to make arrangements for him to attend these appointments by video or phone, if video is not available providing that such facilities are available and that his attendance is not opposed by any treating practitioner.
5.The father is permitted to take the children to any therapeutic or medical appointment that the mother authorises him in writing to attend with the children.
6.That the father otherwise be restrained by injunction from contacting the children’s treating medical practitioners, except to make an appointment with the children’s treating general practitioner.
7.That the parents have equal shared parental responsibility in relation to educational decisions for the children, and in this regard when deciding on each of the children’s respective high schools:
a) The mother will nominate two schools by no later than the commencement of Term 3 in the school year prior to each of the children commencing high school;
b) The father will nominate one of the two schools nominated by the mother within 14 days of receiving notification from the mother of her two nominated schools, and
c) Within 14 days of the father nominating the school of his choice from the two schools nominated by the mother, the parents will do all acts and things and sign all documents necessary to enrol the child in that school.
8.That both parents shall authorise all schools attended by their children, to provide to either parent, upon request, all reports, information or photos relating to the children, at the requesting parent’s cost.
9.That the parties have equal shared parental responsibility in relation to the children, namely:
a) [X] born [in] 2015, and
b) [Y] born [in] 2018.
(collectively referred to as “the children”)
10.If the parents cannot agree on a medical treatment/procedure for [X] they will seek the written recommendation of her paediatrician [Dr G], or any other treating paediatrician [X] is under the care of at that time.
11.If the parents cannot agree on a medical process for [Y], they will seek written advice from a treating physician at the [H Medical Centre] or engage a paediatrician as required.
12.Within 14 days of the date of these Orders, the parties shall do all acts and things to appoint an agreed parenting coordinator, for a minimum term of 24 months from the date of these Orders and at their joint cost, to assist the parties with the implementation of these parenting orders and resolve any dispute that may arise in the exercise of the parties equal shared parental responsibility.
Live with/Spend Time With Arrangements
13.That from the date of these Orders the children live and spend time with the parents each fortnight as follows:
a.In week 1 and each alternate week thereafter:
a.With the mother from before school on Monday ( or 3pm Monday if the children do not attend school that day), until after school on Friday (or 3pm Friday if the children do not attend school that day);
b.With the father from after school on Friday (or 3pm Friday if the children do not attend school that day) until after school on Monday ( or 3pm Monday if the children do not attend school that day);
b.In week 2 and each alternate week thereafter:
a.with the mother from after school on Monday ( or 3pm Monday if the children do not attend school that day) until before school Wednesday (or 9am Wednesday if the children do not attend school that day);
b.with the father, from the commencement of school on Wednesday (or 9am Wednesday if the children do not attend school that day) until after school on Friday (or 3pm Friday if the children do not attend school that day);
c.with the mother, from after school on Friday ( or 3pm Friday if the children do not attend school that day) until before school on Monday (or 3pm Monday if the children do not attend school that day).
14.That from the commencement of Term 3 2024, the children live and spend time with the parents each fortnight as follows:
a.In week 1 and each alternate week thereafter:
a.With the mother from before school on Monday ( or 3pm Monday if the children do not attend school that day), until after school on Thursday ( or 3pm Friday if the children do not attend school that day);
b.With the father from after school on Thursday (or 3pm Friday if the children do not attend school that day) until after school on Monday (or 3pm Monday if the children do not attend school that day);
b.In week 2 and each alternate week thereafter:
a.with the mother from after school on Monday (or 3pm Monday if the children do not attend school that day) until before school Wednesday (or 9am Wednesday if the children do not attend school that day);
b.with the father, from the commencement of school on Wednesday (or 9am Wednesday if the children do not attend school that day) until after school on Friday (or 3pm Friday if the children do not attend school that day);
c.with the mother, from after school on Friday ( or 3pm Friday if the children do not attend school that day) until before school on Monday (or 3pm Monday if the children do not attend school that day).
15.That from the commencement of Term 3 2025, the children live and spend time with the parents each fortnight as follows:
a.In week 1 and each alternate week thereafter:
a.With the mother from before school on Monday ( or 3pm Monday if the children do not attend school that day), until after school on Wednesday (or 3pm Friday if the children do not attend school that day);
b.With the father from after school on Wednesday (or 3pm Friday if the children do not attend school that day) until after school on Monday (or 3pm Monday if the children do not attend school that day);
b.In week 2 and each alternate week thereafter:
a.with the mother from after school on Monday ( or 3pm Monday if the children do not attend school that day) until before school Wednesday (or 9am Wednesday if the children do not attend school that day);
b.with the father, from the commencement of school on Wednesday (or 9am Wednesday if the children do not attend school that day) until after school on Friday (or 3pm Friday if the children do not attend school that day);
c.with the mother, from after school on Friday ( or 3pm Friday if the children do not attend school that day) until before school on Monday (or 3pm Monday if the children do not attend school that day).
School Holidays
16.That during the [City B] school holiday periods that commence at the end of Terms 1, 2 and 3, the children shall spend equal time with each parent as agreed between the parents in writing but failing agreement as follows:
a.For the school holidays commencing in 2024 and each alternate year thereafter, with the father in the second half of the school holiday period and with the mother in the first half of the school holiday period;
b.For the school holidays commencing in 2025 and each alternate year thereafter, with the mother in the second half of the school holiday period and with the father in the first half of the school holiday period.
17.That during the [City B] Christmas school holiday period that commences at the end of Term 4, the children shall spend equal time with each parent as agreed between the parties in writing but failing agreement as follows:
a.For the school holidays commencing in 2023:
a. With the mother for the first week;
b. With the father for the second and third week;
c. With the mother for the fourth and fifth week, and
d. With the father for the sixth week.
b.For the school holidays commencing in 2024 and each alternate year thereafter:
a. With the father for the first, second and third week, and
b. With the mother for the fourth, fifth and sixth week.
c.For the school holidays commencing in 2025 and each alternate year thereafter:
a. With the mother for the first, second and third week, and
b. With the father for the fourth, fifth and sixth week.
18.That unless otherwise specified in these Orders, for the purpose of Orders 16 and 17 hereof, unless otherwise agreed between the parties in writing:
a.The school holiday period commences at the conclusion of school on the last day of required attendance in that term;
b.The school holiday period concludes at the commencement of the first day of required attendance at school for the next term;
c.The halfway point of the school holiday periods that are two weeks long shall be at 12:00pm on the Saturday following the first week of the school holiday period; and
d.The halfway point of the school holiday periods that are more than two weeks long, shall be calculated by dividing the number of days in that school holiday period by two and changeover occurring at 12:00pm on this day (the halfway point). In the event of an odd number of days, changeover shall occur at 12:00pm on the middle day.
Special Occasions
19.That notwithstanding these Orders, unless otherwise agreed between the parents in writing, the children spend time with their parents for special occasions as follows:
a.For Christmas:
a. From 12:00pm on 24 December (Christmas Eve) until 12:00pm 25 December (Christmas Day) in 2023 and each alternate year thereafter with the father and in 2024 and each alternate year thereafter with the mother; and
b. From 12:00pm on 25 December (Christmas Day) until 12:00pm 26 December (Boxing Day) in 2023 and each alternate year thereafter with the mother and in 2024 and each alternate year thereafter with the father; and
c. That from 12:00pm on Boxing Day the usual time arrangements shall resume.
b.For Easter:
a. In years ending in an even number or zero:
i.From 12pm on Easter Friday to 12pm Easter Sunday with the father;
ii.From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the mother.
b. In years ending in an odd number:
i.From 12pm on Easter Friday to 12pm Easter Sunday with the mother;
ii.From 12pm on Easter Sunday to 12pm the immediately following Tuesday with the father.
c.On Father's Day from 4:00pm the day before Father's Day to 9:00am or before school the day after Father's Day with the father;
d.On Mother's Day from 4:00pm the day before Mother's Day to 9:00am or before school the day after Mother's Day with the mother;
e.On each of the children's birthdays, where the birthday falls on any day that is not a changeover day, the children will spend time with the parties as follows:
a. From 1 :00pm or after school on the birthday to 1 0:00am or before school the following day with the mother if the birthday falls during the father's time with the children in accordance with these Orders; and
b. From 1 :00pm or after school on the birthday to 1 0:00am or before school the following day with the father if the birthday falls during the mother's time in accordance with these Orders;
f.On the Mother's birthday, with the mother, from 3:00pm until before school the following morning (or 9.00am);
g.On the Father's birthday, with the father, from 3:00pm until before school the following morning (or 9.00am);
Changeover
20.That, unless otherwise agreed between the parents in writing, all handovers occur at the children's school on school days and if a non-school day at McDonald's [Suburb C].
Other Matters
21.That both parents are at liberty to attend any school event relating to the children's attendance at school, including parent teacher interviews, fetes, assemblies/award ceremonies, school assemblies and concerts.
22.That both parents are at liberty to attend any special occasions or events that the children are involved in and parents are invited to (including being invited by the other parent), including but not limited to concerts, performances, carnivals, etc, and as otherwise agreed in writing between the parents.
23.That unless otherwise invited in writing by the other parent, each parent will only attend any extracurricular activities that either child is involved in when the child/children are in that parent's care, except for the following:
a.both parents may attend such activities in the event that the children are involved in a special event in relation to such activities such as a sporting final or [extracurricular activities].
b.Both parents can attend [sports] games (not training) and outdoor sports games (not training) or other field sports so long as they do not approach within 10m of the other parent.
Communication
24.That the children be at liberty to communicate with each parent at any time as reasonably requested by the children and the parent who has care of the children will facilitate such communication as soon as reasonably practicable.
25.That each parent shall keep the other informed in writing in relation to their current contact details including email address and mobile telephone number.
26.That the parties may communicate with each other using the Our Family Wizard Communication App, by text message or WhatsApp in relation to the children (and in relation to other topics as agreed between the parties in writing), and each parent will be respectful in all communication with the other party.
AND IT IS NOTED THAT except in exceptional circumstances, each parent will write to the other about long-term issues about the children no more frequently than once per week, except when responding to the other.
27.For the purpose of the preceding order, the parties may communicate face-to-face if that communication is initiated by the mother through an invitation in writing to meet to discuss the children.
28.That in the event of an emergency involving the children, the parent who is caring for the children shall notify the other parent as soon as reasonably practicable, using the quickest form of communication, which may be by telephone or text message.
Restraints
29.On a without admissions basis, the parties be restrained from:
a.committing family violence towards the children.
b.consuming alcohol, above a BAC limit of 0.05, during the time that the children spend with them, and in the 12 hours prior to them starting that time.
c.denigrating the other parent and/or their family members and friends to the children or in the presence of the children, and shall do all things reasonably necessary to remove the child/children from any environment in which the other parent and/or their family or friends are being denigrated in the presence of the children.
d.from passing information or messages to the other parent through the children.
e.from discussing these proceedings and/or their family law dispute with the children.
f.from recording the other parent; and
g.from bringing the children into contact with the maternal uncle, [Mr D].
Independent Children’s Lawyer’s Orders Sought
As already noted, the ICL essentially supported the Mother’s Orders sought post-Hearing. This was confirmed in her written submissions, set out below.
Oral evidence on behalf of the Applicant Father
As a general observation, and subject to what is said later in these reasons, a significant proportion of the issues canvassed with both parties in their oral evidence were exercises in “micro-management” of this family and these children in which the Court should not have been involved. Indeed, at times, with due respect to all, it almost felt like everyone (including the Court) was involved in a form of “committee meeting” about, and micro-managing of, “parenting issues”. Indeed, at one stage, as recorded at the outset of these reasons, the ICL fairly articulated the question that I suspect was on many peoples’ minds during the trial, namely, “Why are we here?”, because of the quite small (but important) differences in the respective Orders sought.
The Father confirmed that since separation, the parties had only communicated in writing, and likewise confirmed that they had not been able to agree on a number of issues in relation to the children. [3]
[3] T 10
Questions proceeded on the topic of the parties’ differing views on medical treatments for the children. The Father said that he did not think X should see an osteopath, despite the Mother thinking the contrary. He said that he had supported this later on. He accepted the statement or proposition that he had to be ‘personally satisfied of the scientific basis of something before [he] is willing to support it.’ He holds no degree in science. He said that much of the Mother’s research in relation to the treatments for the children comes from the internet. He confirmed that he did not keep track of her internet access, and unless the Mother shared an article with him, he cannot possibly know what she is reading and from where it comes.[4]
[4] T 10 – 12
The Father denied that he had refused to allow X to participate in one of the therapies put forth by the Mother. He said that the parties had discussed it, and he had said he did not think it was helpful. The Father was asked whether he understood that, if the parties have equal shared parental responsibility, both parties must agree on allowing the children to do something. Hence, this was an example of him not agreeing, preventing X from engaging in the treatment. He said he was (or had been) concerned about X’s medical condition if she had undertaken it.[5]
[5] T 12– 13
The Father was asked to give some examples of things that the parties had not agreed on, that he was now willing to allow X to undertake. He said that he had allowed X to attend the osteopath, but it had not progressed. He said that if the parents had equal shared parental responsibility, it would effectively allow him to be a ‘gatekeeper’ of the treatments or therapies that the children could obtain. He confirmed that it gave him the ability to control things, although said that he wanted them to have equal say.[6] Both of these comments were concerning, if not bordering on alarming.
[6] T 13 – 15
The Father acknowledged that the children had lived primarily with the Mother since separation, and that X has made significant progress since her presentation with a medical condition in preschool. He said that he was willing to give the Mother credit for this, which he conceded, was not in his Affidavit. He denied that she had done the majority of the paperwork and interactions required to arrange X’s NDIS support.[7]
[7] T 16
He said that, effectively, he was seeking that the Court make orders that the parties should obtain an expert opinion to assist in making the final decision if they could not agree on an issue. Hence, in some circumstances, he would prefer that a third party make a decision rather than the children’s Mother. He said that he thought she makes ‘some’ good decisions, and hence confirmed that, by inference, this means he thought there were a range of areas that she did not make good decisions about. He conceded that his decisions were not always “spot-on”. He confirmed that he still pressed for a parenting coordinator. He said he thought this would help, as the Mother had expressed anxieties when dealing with him. He confirmed that the parties would also need to make a decision on who this person is, and how they would be paid.[8] He seemed not to see or appreciate at least some irony in this, in my view, remarkable proposition or suggestion that arose from the ongoing circumstances that beset the parents and the Mother in particular arising from the “merry-go-round” or “committee-meeting” approach to parenting upon which the Father insists. His proposal was, in short, because we cannot regularly or easily reach agreement on parenting decisions, pay someone else to do so!
[8] T 16 – 17
The Father denied that his communication style was aggressive. He was taken to a file note from late 2022 from X’s school, where a teacher there, Ms J, was insisting that there be an executive teacher present for any future conversations between herself and the Father due to the way he conducted himself in a meeting. The meeting had been in relation to concerns that a six-year-old student named K was bullying X. The file note recorded that the Father had asked about the possibility of getting a restraining order against K. The file note ended with Ms J noting that following the conversation she spoke with the Principal as she had found the conversation to be challenging and felt that the Father was aggressive and upset when speaking with her. The Father said he did not believe that he behaved aggressively but confirmed that he understood that although he may not think he was behaving in a certain way, his behaviour may nevertheless impress on people something different.[9]
[9] T 17 – 19
It was suggested to the Father that the parents had not agreed on the extent to which the school needed to act on the situation involving K. The Father denied this and said they did agree on all things related to the situation. The Father was shown an email from the school, where it was outlined that there appeared to be a ‘difference in relation to the strategies proposed in supporting X to continue to thrive’ at her primary school. He corrected himself and said that at this point, they had not reached an agreement. He confirmed that it was not resolved at the end of the school year, as he had raised it again in early 2023. He said that he had written to the Mother’s lawyers accusing the Mother of refusing to sign off on the safety plan, because in his view, she was still friends with the child’s mother. He said that perhaps they simply had different views. He said that regardless, he had implied that the Mother was not acting in X’s best interests and was behaving in a way that was selfish. He did not apologise for making these accusations.[10] Not for the first time, in my view, this incident and the Father’s responses showed significant lack of insight, both in relation to what was best for the children (X in particular here) and regarding better and insightful “co-parenting.”
[10] T 19 – 21
The Father confirmed that he disputed the ASD diagnosis made by Ms L, a clinical psychologist, in early 2023. He and the Mother had attended upon Dr G, X’s paediatrician, to discuss the diagnosis. Dr G had recorded that although the Mother agreed with the diagnosis, the Father disagreed that all of the difficulties were not ‘seen’ by him. He acknowledged that, just because he did not see certain things, it did not mean that it did not happen. Dr G had then noted that the conversation was very difficult with the Father, and that he wanted Dr G to amend the report and diagnosis. He also acknowledged that this was correct. He said that Dr G did not make the diagnosis. Ultimately, Dr G had ended the conversation by suggesting that the Father get a second opinion, and that the parents see another paediatrician. He confirmed that X had been seeing Dr G since 2020, and that it was not in her best interest to change this.[11] This was a totally unnecessary, indeed unfortunate, incident between the Father and the paediatrician, Dr G. Again, lack of insight, and not a few other things, was readily on display by the Father.
[11] T 21 – 23
The Father said he could not recall whether he had queried Dr G’s referral letter to the clinical psychologist before the ASD assessment was done. He denied that the parents ended up in a dispute about which occupational therapist X should be engaged with. However, he confirmed that he had arranged for X to see a different occupational therapist. He denied that the occupational therapist had withdrawn their treatment due to X having two occupational therapists at the same time. He said that he had then accused the withdrawing occupational therapist of ‘not taking X’s own interests into account through [the] process.’ It was confirmed by the Father that during the meeting he had interrupted, and on two occasions he was effectively asked to stop interrupting. It was suggested that this had taken up some of X’s NDIS funding. He said it had not been settled yet. He confirmed that this was because he had challenged the occupational therapist’s bills. He said he had done so, because they had not ‘delivered anything yet.’ He saw this as a productive problem-solving tactic. They had then explained to the Father that all of the preparation and communication work that they had done was chargeable under the fee arrangement. The Father did not agree that it was payable by the NDIS. He said he had offered to ‘discuss’ it, and they had refused. He confirmed that, when they had said that they needed a copy of this email correspondence so that the Mother was aware of the context for any delays in X’s treatment, he had accused them of breaching his privacy. He confirmed that the bills were still unpaid. It was suggested to the Father that it was untrue that they had refused to discuss it further, and in fact, they were not able to and his only course would be to make a complaint to the NDIS organisation. He said he had not made a complaint.[12] Again, regrettably, the Father’s complete inability to see, or to restrain, the impact of his regularly unrestrained conduct upon others was disturbing. Plus, his conduct here, as with other occasions, ultimately impeded treatment for one or other of the children. The instances and examples of the Father’s lack of insight and unconstrained, ultimately negative, behaviour, was as alarming as it was unfortunate. Further still, the range and frequency of “events” recounted in the Father’s oral evidence strongly suggested almost a pattern of behaviour.
[12] T 24 – 25
The Father accepted that he had engaged well with the current occupational therapist (“OT”). He said that he listened and tried to understand what she said. The Father was taken to a bundle of notes taken by the therapist. In mid-2023, it was recorded that the Father ‘provided minimal reciprocal conversation or questioning.’ He accepted that this was the OT’s perception of him at the time. Further notes by the OT suggested he did not provide much feedback on the social skills that the children had been practicing with him. He confirmed that the feedback was ‘little.’ Further notes stated that there were no reports by the Father on incorporating the learned skills into the children’s daily routines, conversations were led by the OT with great difficulty, and there was difficulty in gaining reports from the Father.
The Father denied that the gist of these notes from the OT was to suggest he was not engaged in the occupational therapy process. The therapist had noted that she was frustrated with the Father’s lack of engagement with the therapeutic process and was unsure whether the Father was able to understand what occupational therapy involves and how to implement it in the children’s lives. He said he did not understand that this was how she had interpreted his behaviour. He understood that, if interpreted in this way, it would have caused frustration to the therapist. Further notes, this time from late November, were shown to the Father, in which it was suggested that he was not intervening in an activity to assist the therapist when the children were not listening to the therapist. He denied that he was not actively engaging because he did not want the children to see this therapist. He acknowledged that she was found by the Mother. He accepted that there were long waitlists in City B currently to see paediatricians, psychologists and occupational therapists, and that accordingly, if they refuse to work with him, X will have to go back on a waitlist.[13]
[13] T 25 – 28
It was summarised that, from the documents, the Father has had issues with the children’s teachers, paediatrician, occupational therapist and audiologist. The Father denied that he was aggressive, abrasive and confrontational in the way he deals with service providers in the examples that he was taken through. He said he thought the occupational therapist had interpreted his actions as being ‘a bit passive.’ He said he was advocating for his child. He accepted the possibility that his actions and communications could impact on the Mother in ways of which he is not conscious or aware.[14]
[14] T 28 – 29
The Father accepted that the Mother might find it difficult to co-parent with him. He said, however, that she had no reason to feel anxious or threatened by her interactions with him. He understood that after the separation and while they were living under the same roof, the Mother had said that she could not leave the house with the children unless approved by him.[15]
[15] T 30 – 31
Questions moved to the occasion in which the Mother and children had spent the night at her relative’s house. He said that the Mother had told him that she was going to their house for dinner. Ultimately, he had contacted the police to attend a relative’s house for a welfare check. He said he had done this because he was worried. He was asked why he would not have believed the Mother. He said she could have taken the children to Victoria, he was unsure. He said he had tried to call her and her relatives, and he had attended the house to see if they were there and did not see them. He denied that he had contacted some friends and told them that the Mother was abducting the children. He denied that he, and his brother, attending the house was an intimidating thing to do. He said that he had left when the Mother’s relatives had said they were at the house. He then attended the house at 6:30am the next morning. He said he did this because he did not see the car there, and they were not home yet. It was suggested to him that the only way he could have realised the car was not there, was by him attending the house. Again, he raised his concerns that she had gone interstate. He was asked why he would have expected her to arrive home by 6:30am. He said he did not expect her to do so.[16] As a comment only at this stage: the Father’s actions were, in my view, again significantly lacking in insight, and a number of them were an obvious over-reaction.
[16] T 31 – 33
The Father had then run into the Mother’s relative who was going for a run. He said he had not planned on seeing anyone, he was just checking up on the car being there. With hindsight, he reflected that it was not a good idea.[17]
[17] T 33
Due to these events, the Mother obtained an interim Family Violence Order. The Father confirmed that he then filed one against the Mother in retaliation.[18] Such conduct, again, lacking in insight and very poor co-parenting at every level. Should it need to be stated: “retaliation” is not generally considered to be a good co-parenting strategy and more likely to undermine what of it exists.
[18] T 33
Questions moved to the Father’s ‘diagnosis’ of the Mother as having “attachment issues”. He said he had no qualifications, but he had deposed to the statement in his Affidavit to ‘explain some of the issues.’ He acknowledged that he had also accused the Mother of neglecting X, as X had put on weight in his view. X was six years old during this period. He said that he had been honestly concerned about X’s BMI. He said in his household, the children live a far more active life. He said that he no longer thought X was neglected by the Mother, despite the allegation being in his Affidavit filed a month before the trial.[19]
[19] T 34 – 35
The Father said he observed the Mother’s new partner watching the children getting changed and confirmed that he had sent a letter to the Mother’s lawyer in early 2023 outlining that the Mother’s partner had involvement with ‘an organisation that has had significant issues with sexual abuse of minors and where there has been considerable media coverage of sexual misconduct.’ The organisation he referenced was M Organisation. He said the Mother’s partner was a member of M Organisation. He said he regretted sending the letter now, but he had been worried about the matters raised. He said that in the same letter, he raised that the Mother’s partner had lost custody of his child. He then said at this point he had not met the Mother’s partner. He also said he was not certain that he had ‘lost’ custody, but he knew that he did not have his daughter living with him. He acknowledged that this might have been a ‘leap.’ It was suggested to him that in the Mother’s partner’s Affidavit, the Mother’s Affidavit and in correspondence with lawyers, it was outlined that because of the distance between the child’s mother and the Mother’s partner, the child only spent every third weekend and half school holidays with him. After some deliberation, he confirmed that he had been told this. He said he never apologised for the letter.[20]
[20] T 35 – 37
The Father accepted that for any equal time arrangement, good communication is necessary. He said there had been a ‘couple’ of occasions this year where communication was not good. He said that the current arrangement was for him to have five nights a fortnight with the children.[21]
[21] T 37 – 40
The Father was asked why he had included in his Affidavit a passage in which he said that, on mid-2023, the Mother had sent him a message that the children were sick and that he had not seen the message so she rang him. He had deposed that current FVO and Court Orders permit the parties only to ring each other in an emergency, and that this was not an emergency. He then deposed that he did not report this as a breach of Court Order. The Father was asked whether he had included this to receive credit for not reporting any contraventions here. He said he thought what he did was a good thing and he wanted everybody to understand that. The Mother had still made the children available, even though they were sick. He said this was a positive example of their capacity to communicate, because he did not expose the children or Mother to extreme actions such as reporting it or refusing to pick them up.[22] Respectfully, I do not share the Father’s “perception” or “understanding” of what transpired here, which was a somewhat gauche attempt to present himself in a better light.
[22] T 40
The Father confirmed that his proposal before the Court was for the children to commence spending six nights with him within seven months, and equal time in the year thereafter. He said that the pattern was not a block of time, but a block of five nights and two nights. He denied that the Mother’s time should be in three blocks; two nights, two nights and three nights, despite it being written as such in his Orders sought. He said he meant to convey that he wanted a block of five with the Mother and a block of five with him, and then a block of two with him and two with her. He accepted as a general proposition that the more changeovers, the more disruptions for the children and parents. He agreed that the mathematical calculation of the number of hours that the children spend with a parent is of less importance than the quality of time. He said that he sought holidays to be divided equally. He accepted that this may mean having to do a calculation on a yearly basis. He did not think this would cause confusion and conflict. The Father said that the parties were in agreement regarding special occasions.[23]
[23] T 40 – 42
The Father did not accept that the children could pick up on the tension between their parents when they were in the same location. He said that he thought they did a good job in shielding it from them. He accepted though, that if the evidence from the expert was that children tend to pick up on tensions, not exposing them would be a good idea. Regardless, he continued to seek an order to allow him to attend the children’s extracurricular activities even when they are in their Mother’s care. He acknowledged that he sometimes spoke with the children when they were in the Mother’s care at these events. He accepted that the Mother’s evidence was that this causes her stress. The Father said that, in relation to extracurricular activities, he would agree with an Order that he would only take the children in his own time. He said they had also agreed on the same for sports.[24]
[24] T 42 – 45
The Father accepted that it might be a good idea to give the Mother some space. He conceded that he could let the mathematical division of school holidays go. He could not let go the idea that he would like to attend extra-curricular activities even in the Mother’s time, except for extracurricular activities.[25] In my view, and subject only to other comments later in these reasons, it is imperative that the Father not attend any of the children’s extra-curricular activities during the time when they are with their Mother. Given the tensions and the Mother’s obvious difficulty in dealing with the Father, such a common-sense practice should have been self-evident and not require Court intervention. Alas, due to the Father’s almost compulsive conduct and his need to involve himself in every aspect of the children’s lives, even when they are in the Mother’s care, requires that the Father be restrained from attending such events while the children are in the care of the Mother.
[25] T 45
Cross-examination by the ICL commenced with a focus on the Family Report of Ms E. The Father confirmed that he had read that the children reported to Ms E that the parents once loved each other but now they do not like each other. It was suggested to him that they seem to know about the tension between the parents. He said that they had not said that, so he did not accept this proposition. He said he drew a distinction between knowing the parents do not like each other and being exposed to conflict. He said they were never exposed to conflict. He was asked how they would then form the view that the parents did not like each other. He said this would be due to them not spending time together.[26]
[26] T 45 – 46
Written Submissions were filed on behalf of the Applicant Father in reply on 1st February 2024, they were as follows (emphasis in original; footnotes omitted):
1.Both the ICL and the mother ignore the wishes of the children. In the father’s submission plainly, their views cannot be determinative, but they are not 2 and 4 years of age respectively: [X] is 8 and [Y] almost 6. What they say is relevant. [X] asked for more time with the father in her consultation with the family consultant in April 2023 and the father gives evidence that they have consistently told him they wish to spend more time with him. The ICL apparently interviewed the children but just submits that no weight should be given to their wishes.
2.On the subject of [Ms E]’s opinion, it’s true she rejected the idea in her oral evidence that ignoring [X]’s wishes could be damaging to her in the long term. But then, the court child expert also saw fit to give evidence without seeing any of the parties’ trial affidavits1, nor give any weight to the earlier opinion of [Dr Q] who was of the view that equal time was in the children’s best interests ([Dr Q] has [qualifications in] clinical psychology). Furthermore, neither the ICL or the mother challenged [Dr Q]’s evidence that the children need regular sustained time with the father and 7 days is too long to go without seeing the father face to face.
3.The ICL wrongly interprets the orders sought by the father. The pattern is a 5/5/2/2/arrangement whereby both parents have a block of 5 days. The mother does not only have a block of 3 days as the ICL suggests. This was made clear in the father’s affidavit and during cross examination that it is proposed that the mother have a block of 5 days from Friday 3pm in week 2 to the commencement of school on the following Wednesday (inclusive of Monday and Tuesday night in week 1).
4.The mother herself said the children are “thriving”. [Ms E] says the Court should reassess how the children are going in 2 years before increasing the father’s time. The Court cannot and will not wait for another 2 years. Orders will be made now and there is no cogent reason why the children’s time with their father should not increase in accordance with the father’s proposal.
5.The mother and the ICL make much of the contention that the father’s communication with the mother has been aggressive or argumentative. As deposed in the father’s trial affidavit his communication with the mother has been civil and polite. His ‘businesslike’ manner was adopted because it was a key recommendation from the [O Centre] course he completed. This is underscored by over 40 pages at Annexure G in the father’s trial affidavit. Despite being separated and communicating over child related issues for over 2 years the mother did not provide any examples in her affidavit, or at trial to support her contention.
6.Again, much is made in relation to the father’s engagement with medical therapists so as to support the mother’s proposal of her being granted sole parental responsibility. No examples of aggressive or argumentative communication are in evidence in respect to [X]’s psychologist [Ms U]. This is also true of the children’s treating doctors, [Drs CC] and [Dr BB]. This is also true of [Y]’s treating specialist [Dr DD]. Again, also true of [X]’s former occupational therapist [Ms EE] who describes the father as active, willing and capable, although quieter and more passive than the mother. It is conceded that the father did question some aspects of [X]’s ASD diagnosis with [Dr G], however, the father asking questions of medical professionals could better be described as the actions of an involved and concerned parent.
7.There has been no evidence adduced by the mother of treatment being delayed due to disagreement between the parents. In respect to [Y]’s [medical] issues joint parental responsibility ensured that [Y] received treatment, whereas it would have been unlikely that [Y] would have received any treatment if the mother had sole parental responsibility.
8.The ICL complains of the father’s conduct when noting the children knew of the parenting dispute. No evidence was provided that the children are aware of the dispute. The ICL interviewed both children but did not raise any evidence from this interview that the children were exposed to conflict. [Ms E] suggested that one of the children stated that the parent’s did not like each other, and that this shows “that the children are aware that their parents are separated and live in separate homes”. No further evidence of any conflict is provided, and the children also advised the family expert that “both Mum and Dad are loving and none of them are angry or growly”.
9.In respect to the father’s engagement with the school it is respectfully submitted that those circumstances show he was acting in a protective manner by separating [X] from a child who had repeatedly threatened her. It is unfair to characterise that as a dispute caused by the father with the school. Only in one interaction between the school and the father did a teacher report that the father sounded upset. That occurrence was shortly after [X] had said she was too scared to go to school as the other child had threatened to [harm her]. The father, unremarkably, was concerned that this incident was not being taken seriously.
10.Finally, the mother’s submission that the father’s proposal to engage a parenting coordinator is proof that he believes co-parenting is impossible must be rejected. It is only the mother who complains that the current communication and co-parenting is poor: and she would say that to assist her case. The proposal rather reflects a father that is responsive to the concerns the mother has put forward and remains open minded in relation to other approaches that might improve the efficacy of the parenting relationship.
Outline of Principle
The following outline of principle has been developed and used in various other matters, with relevant adjustments regarding the particular issues before the Court here.
In U v U, Gummow and Callinan JJ stated the perhaps obvious point that becoming a parent has implications for a person’s freedom to do as he or she wishes, including very often where he or she chooses to live. Being a parent necessarily imposes obligations and restrictions. Their Honours said, at [92]: [84]
… maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.
[84] U v U (2002) 211 CLR 238.
In AMS v AIF, Kirby J simply observed that there is, in parenting cases that involve relocation, but which (in my view) necessarily apply to all parenting matters, a “large element of judgment, discretion and intuition.”[85]
[85] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[86]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[86] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ were in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments remain important.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in the Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[87]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[87] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
It is important now to set out the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have regard in making Orders that are in the children’s best interests. In particular, I note that s.60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”) requires that, in making parenting Orders and taking into account the wide range of considerations set out in other parts of s.60CC, the Court must give greater weight to matters that concern the safety and protection of the child from “physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[88]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[88] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[89]
[89] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and later by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. A different Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court, somewhat more recently, in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], admittedly in a different context to what the situation is in the present proceeding, where his Honour said (emphasis added):[90]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[90] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments, which in my view have wider application, were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[91]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[91] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[92] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].[93]
[92] McCall v Clark (2009) 41 Fam LR 483.
[93] Sigley v Evor (2011) 44 Fam LR 439.
Subject to what is said below, the repeated reference in the cases mentioned to the quality of a parent-child relationship is not relevantly dependent upon the quantity of the time spent between the two.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):[94]
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
[94] Sigley v Evor (2011) 44 Fam LR 439.
In addition to the principles already outlined, because of the unique and delicate issues in this matter, the following further matters should be noted.
First, in Bondelmonte v Bondelmonte, the High Court confirmed that as important as it is to have regard to a child’s views, they are but one of a range of considerations under part VII of the Act, nor is a Court bound to follow any such views.[95]
[95] Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34] – [35] and [43]. Of course, in considering a child’s views, the Court should also be mindful of potential consequences if Orders are made that are contrary to any expressed views of a child or children.
Secondly, it is also the case that issues of relevant “risk” can apply to situations that concern various kinds of pressure that are brought to bear on a child or children, and no less so of the other parent, that does not otherwise constitute either physical or sexual abuse.
Issues and assessment of “risk” (of a wide variety) may be relevant to a parent’s general parenting capacity.[96] In the current matter, it is “parental capacity” and insight (or lack of it) that is very much a crucial consideration for the Court. In this regard, it is useful to record comments, now of a little age, from the decision in Kress, where Goldstein J said, at 319:[97]
Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
[96] Among other places, see the Full Court decision in Partington v Cade (No.2) (2009) 42 Fam LR 401 at [48] and [56], and generally regarding the assessment of relevant “risk”, Isles v Nelissen (2022) 367 FLR 338; (2023) 65 Fam LR 288.
[97] In the Marriage of Kress (1976) 13 ALR 309.
This is very much the case here and the Court’s delicate task in the light of the troubling, discordant evidence of the parties, the Father in particular.
Thirdly, I remind myself (and the parties) of the High Court’s comments in Bondelmonte at [32] regarding the wide but structured exercise of the Court’s discretion in making parenting Orders that are in the best interests of a child (internal citations omitted; emphasis added):
A parenting order made under s.65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s.60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s.60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
Consideration & disposition
In addition to what has been set out and commented on in the course of these reasons, I note the following matters quite summarily stated, each of which should be taken to be formal “findings” by the Court. Unless otherwise stated, I should be taken to follow the considerations in s.60CC(3) seriatim. I also should be taken to prefer and to accept the submissions of the Mother and the ICL in preference to those of the Father. But first, by way of summary, a comment or two on the evidence.
The expert, Ms E, observed that the Mother was quite child-focussed in her comments and responses, and certainly more so than the Father, who was (in my terms) rather self-absorbed. I share the same concerns. One of the most troubling aspects of the Father’s evidence was his complete inability to see or to accept the regular and consistent problems he had, and regularly oppositional stance he took, in dealing with health care professionals for the children, X in particular. The obviously independent reports (recorded quite contemporaneously to the events in question) from the paediatrician, Dr G, and from the occupational therapist, provide cogent evidence of the singular difficulties, pretty much to the point of exasperation, in dealing with the Father and his consistent ill-informed obduracy. Their notes and reports supplement similar and ongoing difficulties experienced by the Mother in dealing with the Father, who has an almost obsessive need to “meet and discuss” any and every matter. It seems that such relentless meetings and discussions almost are ends in themselves. Such an approach is the complete antithesis of good, co-operative parenting with the other parent.
The Father’s evidence about one of the reasons for seeking joint parental responsibility, namely so that he can check (if not block) any decisions of the Mother with which he disagrees, and then as it were, to farm out the decision-making to a third party if/when there is any impasse with the Mother, again is the complete antithesis of good co-parenting.
As also noted above, the Father’s focus upon the quantity of his time (as opposed to the quality of it) with the girls as being a central concern was, and remains, a significant issue and consideration for the Court. Again, it seemed almost an obsession for the Father that the quantity of his time with the children was at least as important as the quality of the relationship with them. As the authorities noted above point out, this is not an accurate or appropriate application of the principles set out in Part VII of the Act.
As also noted in the course of the evidence of the parties, together with the comments of Ms E in her Report and in her oral evidence, the impact on the Mother of the Father’s conduct, especially his relentless and insight-less actions especially with the health professionals (and others) of the children, was and remains significantly inappropriate. It must be, in my words but reflected generally in the Mother’s evidence (and in the comments from the health professionals referred to), exhausting and regularly debilitating having to cope with the Father’s obsessive, lacking in insight, and self-centred conduct. I certainly accept the Mother’s evidence about how understandably anxious she is in having to deal with him. It cannot be pleasant or remotely productive for the children – or for the Mother.
I turn to the “considerations” in s.60CC(3) of the Act (I should be taken to follow the basic order of them in this sub-section unless otherwise specified)..
Given the ages of the children, such limited views as they have (noted or implied in the Report of Ms E at pars.35 - 37) can be, and are, of quite limited utility to the Court.
There is no question or issue that both children have good and close relationships with both parents.
In general terms, and subject to other matters already recorded and others noted below, regarding the considerations embraced by the matters set out in sub-paragraphs (c), (ca), (f) and (i), both parents are able to provide for the needs of the children, and to exercise their parental responsibilities reasonably well. In the light of the evidence, such general comment must be qualified in the light of the Court’s findings above, summarised here (albeit repetitive) about the Father’s abject and regular lack of insight regarding (i) his dealings with health care professionals for the children; (ii) his insistence upon the quantity of his time with the children; and (iii) his insistence upon endless discussion with the Mother about any decision involving the children, especially regarding what can be described generally as “health issues.”
The matters comprehended by sub-paragraphs (d) and (e) effectively have little or no application to the circumstances here. And the matters in sub-paragraph (g) are well and clearly set out in (i) the evidence of Dr G, (ii) the notes and comments from the occupational therapist, and (iii) in the Report and oral evidence of Ms E. Regarding matters set out in sub-paragraphs (j) and (k), there is in place a Family Violence Order to which the Father consented.
Crucially, the children are painfully aware of the conflict between their parents. Again, Ms E’s Report makes this abundantly clear. Pursuant to the clear terms of s.60CC(2) and (2A), the children need to be protected from being exposed to this discord and the risks of exposure to psychological harm arising or flowing from it.
I have noted a number of times, and in different contexts, my concerns about the endless committee meetings that characterise the co-parenting relationship. I have also noted my concern about the Father’s insistence upon the quantity of time he spends with the children. There is a pointed and alarming lack of insight on the Father’s part, including the impact of his intrusion(s) into the lives of the children when they are in the Mother’s care. Among other things, in my view, the issue here is to ensure that the children are able to spend good, quality and regular time with the Father, but at the same time, to ensure that his opportunities for such intrusion are reduced and the children (and the Mother) are protected from it. Part of that protection is to very slightly limit the opportunities for such “intrusion” and disruption. In my view, this would best be achieved by keeping the 5 nights per fortnight with the Father arrangement (and 9 nights per fortnight with the Mother) in place. There needs to be a basic certainty for everyone, the children and their Mother most particularly, in the organisation of the children’s lives. Usually, and as more of a suggestion than anything else, this would also result in all changeovers at school and to keep the time-with arrangements in simple, standard blocks. Put another way, multiple changeovers are invariably situations of disruptions and the risk of needless engagement between the parties. Noting, however, that the parties have agreed to maintain the current, shorter, blocks of time to facilitate the 5/9 arrangement, as well as Ms E’s recommendation that the current arrangements remain in place for at least the next 2 years, these Orders will be made. The same reasons (and those set out earlier), demand that the Mother have sole parental responsibility for the children in relation to health and education. The whole object is to provide a legal and procedural environment that will reduce (and hopefully eliminate) the risk of further and ongoing contest between the parents, of which the children are acutely aware.
In light of the above, the Mother’s Orders filed pre-hearing regarding parental responsibility, in my firm view, provide the carapace or shield of protection the children need from the serious discord between their parents. That shield necessarily includes that in relation to matters of health and education for the children, the Mother is to have sole parental responsibility. The current situation of “everyone” but especially the Mother, having to constantly discuss matters relating to the health of the children and their treatment, and to have health experts regarding such matters challenged by, the Father, is intolerable and must not be permitted to continue. The fact that the Father cannot (and will not) accept the reports of health experts regarding his inappropriate conduct only makes the Order for sole parental responsibility in the Mother’s favour even more imperative. For the same reasons, sole parental responsibility should extend to educational decisions made by the Mother as well.
The same considerations and reasons readily and firmly rebut the presumption of equal shared parental responsibility under s.61DA of the Act. The co-parenting relationship is decidedly skewed, utterly impractical, and seriously compromised, all by the Father’s most unfortunate conduct and his inability to see beyond his own needs and wishes, rather than those of his children.
The evidence also makes plain, in my view, that the children’s very good relationship with the Father will not likely (if at all) be impaired by keeping the “time-with” arrangement whereby the children spend 5 nights per fortnight with the Father.
Before making any major, long-term decision concerning health or education regarding the children, the Mother’s “consultation Orders” sought should be made, save that the period for the Father to consider and make any comments is to be no more than 3 days, rather than the proposed 7 days.
For the reasons provided (noting again the Court’s acceptance of and agreement with the submissions provided by the Mother and the ICL), the Orders sought by the Mother as outlined in the post-hearing Minute, as well as any agreed Orders therein, should be made. Regarding parental responsibility, the Court accepts the Orders sought by the Mother pre-hearing, specifically, sole parental responsibility for both matters of health and education. These Orders are clearly in the children’s best interests under s.60CA of the Act.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 14 June 2024
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