Tolfree & Rutter
[2023] FedCFamC1F 442
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tolfree & Rutter [2023] FedCFamC1F 442
File number(s): BRC 2133 of 2008 Judgment of: HOWARD J Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – PARENTING – Where the child currently lives with the mother and spends alternate weekends with the father – Where it is neither necessary nor desirable to make findings as to historical allegations of family violence – Consideration of the best interests of the child – Where the child is 16 years of age – Where the child expressed his wish to live in a week about shared care arrangement – Where it is in the child’s best interests to spend equal time with each parents – Equal shared parental responsibility. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 65L
Evidence Act 1977 (Qld) s 93A
Cases cited: Baghti & Baghti & Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Bondelmonte v Bondelmonte [2017] 259 CLR 662
Cox & Pedrana (2013) FLC 93-537
Cubbin & Cutler [2018] FamCAFC 84
Eagle & Scarlett (No. 2) [2020] FamCAFC 291
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johanson & Johanson [2022] FedCFamC1A 74
Whisprun Pty Ltd v Dixon [2003] 234 CLR 492
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 8 February 2023 Place: Brisbane Counsel for the Applicant: Mr Nelson Solicitor for the Applicant: County to Coast Lawyers Counsel for the Respondent: Mr Purcell Solicitor for the Respondent: Hofstee Lawyers Counsel for the Independent Children’s Lawyer: Ms Brereton Solicitor for the Independent Children’s Lawyer: Smithson Lawyers ORDERS
BRC 2133 of 2008 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TOLFREE
Applicant
AND: MS RUTTER
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
8 FEBRUARY 2023
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous parenting plans and Orders be discharged.
2.That the parents share equal parental responsibility for the child, X born 2006.
3.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision prior to the making of any decision about such issues, which include but are not limited to the children’s:
(a)Education;
(b)Religious and cultural upbringing;
(c)Relocating the residence of the children so that the existing parenting arrangements become impracticable; and
(d)Significant medical intervention for the children.
4.That the Mother and Father have the sole responsibility for all decisions concerning the children’s day-to-day care, welfare and development for the time that the children are in either parent’s care.
5.That the parents spend time and communicate with the children on the following special days at all times agreed between the parents and failing agreement as follows (and the time referred to in Order 5 shall be suspended during these times)
(a)For school holidays at the end of Term 4, 2023 the child spend time with the mother from after school at the conclusion of school until 9am on 27 December 2023 and with the father thereafter until before school at the commencement of Term 1, 2024.
(b)That the parent that does not have the care of the child on the child’s birthday spend time with the child as follows:
(i)if birthday falls on a non-school day from 4pm on the child’s birthday to the commencement of school (or 9am) the following day;
(ii)if the birthday falls on a school day from after school to 6pm.
(c)That the child spend time with the Mother for the child Y’s birthday each year as follows:
(i)if Y’s birthday falls on a non-school day from 5pm to the commencement of school (or 9am) the following day.
(ii)if Y’s birthday falls on a school day from after school to the commencement of school (or 9am) the following day.
(d)That the Mother spend time with the child from 9am on Mother’s Day to the commencement of school (or 9am) on the day following Mother’s Day.
(e)That the Father spend time with the child from 9am on Father’s Day to the commencement of school (or 9am) on the day following Father’s Day.
(f)That the child is at liberty to communicate with either of his parents at any reasonable time by telephone or facetime.
6.Unless otherwise agreed between the parents, changeovers will occur as follows:
(a)If a gazetted school day – at the children’s school;
(b)If a non-school day - the parent that has the child in their care will deliver the child to the other parent’s residence at the conclusion of their time with the child; and
(c)The parent who is delivering the child to the other parent will remain in their vehicle and not communicate with the other parent.
7.That both parents must:
(a)Inform the other of any change of address, telephone number, mobile number or email within 24 hours of such change;
(b)Not denigrate the other parent or their partner or family to or in the presence or hearing of the child;
(c)Not abuse, harass or intimidate the other parent;
(d)Inform the other as soon as reasonably practicable of any serious accident, illness or emergency involving the child and the name of the treating doctor or medical facility.
(e)Not discuss these proceedings with the child nor allow the child to read any document relating to these proceedings.
(f)Not discuss changes or variations to these Orders with the child or in the presence of the child.
8.That both parents are at liberty to attend any school, sporting or extra-curricular event that the child is involved in.
9.That both parties may obtain directly from any school, doctor, health professional or counsellor all records, notes, documents and information in relation to the child and this Order is authority for all schools, medical practitioners or counsellors to provide to either parent all such information at the requesting parent’s cost.
10.That neither parent will discuss any changes to these Orders with the other parent during changeovers or at any school, sporting or extra-curricular event.
11.That both parties will communicate by SMS text message or email unless an emergency where they may telephone the other parent.
12.That should either parent wish to travel with the child overseas they must provide to the other parent at least 3 months prior to any travel the following:
(a)A detailed copy of itinerary for the trip including the dates of travel, the addresses of each place where the child will be staying and a contact phone number;
(b)A copy of return airflight ticket for the child;
(c)Details of any internal flight tickets whilst travelling;
13.That unless otherwise agreed in writing by the parents, the travelling parent must:
(a)Ensure that the child contacts the other parent at least once every second day during the travel;
(b)Ensure the child only travels to countries that are signatory to the Hague Convention;
(c)Ensure the child does not travel to countries where there is a travel warning above level 1 (exercise normal precautions).
(d)Only travel during times when the child is ordinarily in their care
14.That both parents will ensure the child’s clothing, school supplies and other belongings are returned to the other parent at the conclusion of their time with the child.
THE COURT FURTHER ORDERS ON A FINAL BASIS:
15.That the child live with and spend time with each parent as agreed between the parents and failing agreement as follows:
(a)With the father from 2.40pm Thursday 9 February 2023 until 2.40pm Monday 13 February 2023;
(b)Commencing Monday 13 February 2023, with the Mother – from 2.40pm Monday in week 1 to 2.40pm Monday in week 2 and each alternate week thereafter.
(c)Commencing Monday 20 February 2023, with the Father – from 2.40pm Monday in week 2 to 2.40pm Monday in week 3 and each alternate week thereafter.
(d)For the shorter school holidays at the end of Terms 1, 2 and 3 the child continue to spend week-about time with each of the parents.
16.That the child X born 2006 have an international travel document, namely an Australian passport and be permitted to travel internationally pursuant to these orders.
17.That the father be permitted to lodge an application for an Australian passport for the Child and the mother’s signature be dispensed with on any application lodged by the father.
18.The father pay the costs of obtaining the child’s passport.
19.The passport be held by the father during periods where the child is not travelling internationally and shall be released to the travelling parent 7 days prior to any such travel and returned to the father within 7 days of return to Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tolfree & Rutter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
A. These reasons were delivered ex tempore on 8 February 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is a parenting dispute involving one child, X. X was born in 2006. He is currently aged 16 years. The applicant father is Mr Tolfree, born in 1978. Mr Tolfree was born in New Zealand. The respondent mother is Ms Rutter, born in 1981. Ms Rutter was born in Australia. The parties in this case have been taking care of X pursuant to an order made in 2008.
The parties commenced a relationship in the year 2000. They married in 2005, and they separated on a final basis in 2008. X is the only child of this particular union. The mother has another younger child named Y. Pursuant to the 2008 Court orders, X has lived primarily with the mother and spent four nights a fortnight with the father since the time he was approximately two years of age. The matter comes back to the Court at this stage in the boy’s life because X has been consistently expressing the view that he wants to spend more time with his father. The parents have not been able to agree on an appropriate parenting arrangement.
The father commenced these proceedings in March 2019. The matter was dealt with originally in the Federal Circuit Court of Australia and was subsequently transferred to Division 1 of this Court on 3 December 2021. The father seeks an outcome whereby X would live in a week about shared care arrangement with the father and the mother during term time, as well as half holidays between the parents. The mother would prefer to see the current arrangement remain in place so that X lives primarily with her and spends each alternate weekend with the father from after school Thursday until before school Monday.
Exhibit 1 in the proceedings is the tender bundle that was handed up by counsel for the ICL, Ms Brereton, at the commencement of the trial. Exhibit 2 are the proposed orders handed to the Court by the parties. These proposed orders indicate certain matters that have been agreed, and the orders also show those paragraphs that have not been agreed between the parents. Regarding the paragraphs that remain in dispute, each parent’s proposal is delineated and the ICL has made it clear which orders she supports. The ICL supports the father’s position.
The Court is required by reason of Part VII of the Family Law Act 1975 (Cth) (“the Act”) to regard the best interests of the child as the paramount consideration. Section 60CA of the Act states:
“s 60CAIn deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
How a Court is to determine what it in a child’s best interests is then set out in s 60CC of the Act.
There is no doubt that there is a benefit to young X of having a meaningful relationship with both of his parents, and indeed, the evidence in this case is clear enough (s 60CC(2)(a)). He has that already, and I have no doubt it will continue. Section 60CC(2)(b) – relates to the risk of harm and the protection of children from identified harm. This section is not relevant in this case.
The mother does seek an order that X not be brought into contact with Mr B. Mr B is the previous partner of the mother. Indeed, he is the father of the child Y. Pursuant to family law orders made by her Honour Judge Spelleken, Y lives primarily with her mother and otherwise lives five nights a fortnight with her father, Mr B. Those orders were made by her Honour, I apprehend from the evidence here, after a trial, there having been, so I am told, no consent position.
The evidence in this case shows that about once a month the father spends time with Mr B. It seems they are friends, and it seems that the father’s view is that there is no harm in X coming into contact with Mr B, and the father, I infer from his evidence, on occasions makes arrangements with Mr B so that when X is with the father, he and the father might catch up and have dinner, for instance, with Mr B and the child Y. I accept the father’s evidence in that regard, and whilst it may be the case that historically, there may have been some sound reasoning for keeping Mr B away from X, the issues, whatever they may have been in the past, appear to have disappeared over time. I note the father’s evidence that he and X spend time with Mr B and Y, and from the father’s evidence, which I accept, I infer that this goes well and it means the siblings, X and Y, get to spend that bit of extra time together when they are both in the care of their respective fathers.
To the extent there may have been risk issues in the past relating to Mr B, the view that I have formed is any such issues have long since receded, and I do not need to make any specific findings about those allegations, such as they are. Noting that I have heard and accept the father’s evidence today, I am not concerned with young X being brought into contact with Mr B and the mother’s proposed order paragraph number 28 is not, in my view, in the best interests of the child X and ought not be made. I note that the ICL supports the father’s position in that regard.
In case it were not abundantly clear already, I have had regard to the mother’s trial affidavit filed 19 January 2023 in relation to those issues. I am not certain, but it may be the case that there was – or is - another order in existence in relation to X and Mr B being kept apart, but it was not brought to my attention, certainly not in submissions, but, in any event, if such an order exists, so be it. I am not concerned about the issue, certainly not concerned enough to make an order in terms of paragraph 28 as proposed by the mother. The reality is that a judge of Division 2 of this Court has decided that the child Y should spend five nights a fortnight with her father, Mr B. My attention has not been drawn to any evidence that would be of sufficient concern to this Court to take the move urged on behalf of the mother and outlined in paragraph 28 of her proposed order. I am not prepared to do it. I will not make that order. It is not in X’s best interests. I accept the evidence of the father in relation to that issue.
In relation to a ‘best interests’ consideration in relation to X, it is important to keep in mind various principles which can be derived from the authorities in relation to Part VII of the Act. For instance, I note the following. This Court is not required to consider the various sections and subsections in Part VII of the Act in any particular order. In this regard, I note the decision of Cox & Pedrana (2013) FLC 93-537 at [29]-[31] and Beckham v Desprez (2015) 55 Fam LR 310 at [31].
Furthermore, as was pointed out by the Full Court of this Court in Baghti & Baghti & Ors [2015] FamCAFC 71 at [63], that this Court is not required to make findings in relation to all of the facts that have been put in issue by the parties. A Court need only determine those facts that are necessary for the determination of the issues between the parties. This particular principle is in line with High Court authority, in particular, a decision of Whisprun Pty Ltd v Dixon [2003] 234 CLR 492 at [62]. At that paragraph, Gleeson CJ, McHugh and Gummow JJ stated:
“62.A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.”
I would also note that more recently the Full Court of this Court specifically cited and relied upon Whisprun. Those Full Court decisions are Eagle & Scarlett (No. 2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43]. The views expressed in Baghti by the Full Court of this Court are consistent with the well-known passage from a judgment of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378.
By s 60CC of the Act, the Court is required to consider the various provisions that are set out in that part of the Act. It is important to note that the Court is not required to specifically mention each particular factor in s 60CC. In Cubbin & Cutler [2018] FamCAFC 84 at [12] and [13], the Full Court noted that it is erroneous to suggest that there is an obligation to give reasons about each s 60CC factor. I am, of course, delivering these reasons for judgment today ex tempore. The trial was short. It took no more than approximately an hour and a half, including submissions. In 15 years as a judge in this jurisdiction, it is one of the shortest trials I have had to adjudicate. But the issues are narrow.
The boy is almost 17. The Court has to have regard to the additional considerations in s 60CC(3). What looms very large in this case is s 60CC(3)(a), which in essence says that the Court must consider any views expressed by the child, and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views. Now, Mr Nelson of Counsel appears on behalf of the father and has drawn the Court’s attention to paragraph 34 of the decision of the High Court called Bondelmonte v Bondelmonte [2017] 259 CLR 662. At that paragraph, the High Court stated:
“In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.”
For present purposes, I would merely point out the following: X is a young man who has on more than one occasion expressed his view to spend more time with his father. Indeed, he has gone further than that and made it clear that he would like to live week on/week off so that he can spend more time with, as he put it:
“I can spend more time with my dad and do more things with him and do more coding with Dad.”
I note paragraph 5.3 of the Family Report of Ms C, which is annexed to her affidavit filed on 6 October 2020. Ms C is the Family Report writer in this case, and those views were expressed by X at an interview conducted by Ms C as long ago as July 2020 at the D Centre. It is approaching three years since that interview took place. Another judge (in Division 2), Judge Tonkin, ordered a short report pursuant to s 65L of the Act and Ms E, a family consultant with the Court, prepared the report dated 15 March 2022. I am told it forms part of Exhibit 1. For ease of reference I will make that stand-alone document Exhibit 3.
Ms E asked X, while the mother was present in the interview room, if X’s views and wishes remained the same as they had been when he participated in the Family Report process in July 2020. This interview with Ms E took place in March 2022. X told Ms E in the presence of his mother that his views were the same and that he wanted to live in an equal shared care arrangement. He explained that there are things he is interested in that he does when he is with his father and he would like to have a greater opportunity to do those activities. The mother, whilst acknowledging X’s views in that interview, maintained the position – and maintains today, that she would prefer to see the current arrangement of four nights a fortnight stay in place.
In terms of X and his expressed wishes - in July 2020, he expressed his view that he wanted to live in a week on/week off arrangement with his parents. In March 2022 he repeated the same view. The matter has waited almost a year to get to trial. Once it was transferred to this Division the matter waited almost a year to get a trial date. It has come on today. As I indicated at the end of the hearing, this family needed a quick decision. The evidence is not extensive. I have had regard to all of the evidence. I have had regard to the written evidence and the oral testimony. Cross-examination was quite short. There was no cross-examination required in respect of the experts.
The evidence discloses – in addition to the express wishes of the child – the evidence discloses that he is, for his age, in fact a very well behaved child; he causes no problems or issues for his parents. He has been described as a boy who is quiet, well-behaved, well-mannered, and intelligent. I have seen his school reports: they support the assessment which has been generally agreed to by the parents, for what I can see – that the boy’s behaviour is very good.
I note page 79 of Exhibit 1 is a F School Semester 2, 2022 report for X, when X completed year 10. In six of his subjects his behaviour was described as very good; in one subject it needed attention. In four of his subjects his effort for work was described as satisfactory; a couple of aspects needed some attention, a couple of subjects. But so far as behaviour is concerned – it is very good. So, he is a young man, almost 17 years old, mature for his age, intelligent. He does not get the highest marks, that is for sure; and there is room for improvement in his academic results, yes. But nonetheless, a young man who, in my view, the Court should ascribe significant weight to his stated wishes. That is the view expressed by the ICL, and I agree with that submission.
It is convenient at this point, while I am considering s 60CC(3)(a), to note one aspect of the Specific Issues Report prepared by Ms E that was drawn to my attention by Mr Purcell, counsel for the mother. The mother’s preference is that the boy has a primary home and then the option to elect to spend more time with the father when he wished to do so. The reality, however, for this young man is that he is not a boy who likes to disappoint people, and in particular, he does not like to disappoint his mum. This is understandable.
In fact, in paragraph 5 of her report, the Ms E notes that before the mother went into the interview room, X indicated that he felt nervous about discussing his views and wishes with his mother as he was worried that she would feel sad. He said he has a good relationship with his mother and feels able to speak with her about other matters unrelated to the parenting dispute. I do not think that it is practical or workable to leave an open-ended position whereby X gets to decide where and when he will live. It is much better, and it is in his best interests, for there to be clear Court orders in this regard.
I do note that X had said that– as at March of 2022 – his mother’s house does feel like home, and then when asked by Ms E whether X thought he could feel that way at his dad’s, if there were an equal shared care arrangement, he said he did not know because it had not been attempted, but he did say he feels comfortable at his father’s home. There is nothing there in those comments by X that would in any way persuade the Court that the Court ought not to give strong weight to the boy’s clearly expressed views and wishes to live in a week about shared care arrangement between his parents. I note that report was in March 2022. The evidence before the Court from the father, which I accept, is that the boy continues to express his wish to live week-about with each parent. I note that the mother’s evidence appears to be that she has not specifically raised the issue with the boy.
As to s 60CC(3)(b) – the nature of the relationship of the child with each parent – he has a good relationship with each parent. He certainly appears to have a good relationship with Y, his sister, and I infer from the evidence of the father, who is the only one in a position to really give this evidence at the moment, that the boy has a good relationship with Mr B. There is nothing to suggest otherwise. I will put it this way: my view of the father is, having listened to him in the witness box, that if he thought there was a problem in the relationship between X and Mr B, he, the father, would do something about it. I am convinced that that is the case – that he would, if it was at all necessary, act protectively. The most important thing here, though, is, and I reiterate it now for the benefit of the father and the mother, X has a close and loving relationship with his father and with his mother. It is to the credit of both parents.
As to s 60CC(3)(c), the parents have abided by earlier Court orders that were made when the boy was only two. I think you would have to say that both parents have taken every available opportunity to spend time with the child. The father drew the Court’s attention to the fact that the earlier order provided that, if there was an agreement, there could be some additional time in the off week, and apparently, this occurred for some time. The import of the father’s evidence appears to be that this extra time in the off week was eventually terminated by the mother, and I tend to think from the evidence that I heard that that is probably correct.
As to s 60CC(3)(ca), I note the father is behind some thousands of dollars with child support. I have noted that, but I also note that this father is willing to take this boy on and wants the boy to live with him 50 per cent of the time, during which time, of course, he, the father, will be obligated to maintain the child. Obviously, the mother has fulfilled all of her obligations in that regard, and certainly, the father, when the boy is with him, is clearly looking after him.
As to s 60CC(d), the likely effect of any changes in the circumstances, the parents do not live very far apart. X will keep going to the same school. X is very keen for the change to occur, that is, the increase in time. I do not think there will be any particular effects upon this child of any separation. Now, it is obviously the case that he will have somewhat less time with his mum, three nights a fortnight less time with his mum, possibly less time with his sister Y, but I am also mindful of the fact that the father is able to facilitate time between X and Y on occasions when Y is being cared for by her own father, Mr B.
I do not think s 60CC(3)(d) looms large in this case. Neither does s 60CC(3)(e), relating to practical difficulties. Apparently, this boy lives quite close to his current school where he is with his mum and he can walk to school, which is fine. He can keep walking to that school, the F School, when he is with his mum. When he is with his dad, his father will drive him. It is a short drive. It is not far. As to the capacity of these parents to provide for the needs of the child, including his emotional and intellectual needs, I have got no doubt they both have the capacity to do that. They have been providing for his needs, his emotional needs and his intellectual needs.
As I say, he presents very well to the independent observers and experts, which means the parents in this case have done a very good job, and I am sure they will continue to do a good job. I have had regard to the maturity of the boy and the other matters referred to in s 60CC(3)(g). I do not need to say anything further about that. My attention has not been drawn to any evidence that would make s 60CC(3)(h) relevant, nor s 60CC(6).
As to s 60CC(3)(i) – the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. They have both demonstrated a very good attitude towards young X. They have accepted the responsibilities of parenthood. I do note that the father is behind in his child support, and whilst this, of course, is not a child support application, I would encourage, in strong terms, the father to address that issue as soon as possible. Address that issue as soon as possible. Whether that means he has to get a loan off a friend or family or from somewhere, it will be a better outcome for young X if the father gets the child support issue up to date. It may be that child support needs to be rejigged after this outcome, but we will see what happens. It is a matter for the parents and the Child Support Agency.
I note the subsections relating to family violence. I note there is some evidence, historical evidence, concerning allegations of family violence. In the context of this case, noting that the parents have been separated for about 14 years, noting that this boy is almost 17, I do not consider that it is necessary for me to make specific findings in relation to any historic allegations of family violence. There was apparently some abusive verbal communication by the father towards the mother. I do not find it necessary for the purposes of this particular parenting case to make specific findings about it.
There was also, for instance, an incident that occurred when the boy was two years old, not long after separation, at the G Venue car park when the mother and some friends arrived and the young X was at G Venue with his father and his paternal grandparents. There was an altogether unsatisfactory situation where the child was removed from the father’s care and taken into the mother’s care. The family report writer’s assessment was that a review of the police reports was not favourable towards the mother, but I do not find it necessary in the context of a boy who is almost 17 for this Court now to go and make findings about what happened in the car park at G Venue.
Similarly, I take the view in relation to other allegations of family violence – such as those allegations are. The only time it might have become relevant, it seems to me, is if we were looking at all this about 10 years ago. It seems to me as children get older, and in particular, including X here, the issue of the quality of communication between the parents becomes less important. These children who are living in separated families often have to grow up a lot faster than their peers.
The father gave evidence that changeovers have been happening at McDonalds for quite a while, and the father will drive into the car park and so will the mum, and the parents stay in their respective cars, and X gets out. He walks to the other vehicle. He does not seem to be too fazed by any of that. The parents do not seem to talk to each other. The parents do not like each other. That is very apparent to me. But nonetheless, there is evidence, certainly in the family report, that the parents do communicate by text and on occasions by email. The mother says sometimes she emails the father, he does not write back. If that is the case, then that needs to be addressed by the father and the parents need to communicate by email in a prompt and polite manner.
The point I am making at this stage, is that I do not find it necessary to make specific findings concerning family violence allegations. Frankly, I think it would be more unhelpful than helpful to this family, noting how old the boy is now and noting how well he presents, for this Court to go delving into allegations of a historical nature relating to issues like family violence. It would be more harmful to X if I were to go through and say in this instance the father is at fault, in that instance the mother is at fault. It is not going to assist X. It is not relevant for present purposes.
Furthermore, I find it not relevant and not necessary for the Court to make any findings in relation to the s 93A interview that took place more than 10 years ago relating to X. It seems to me – from what I can gather from the affidavits and from the family report, was that there was certainly no follow-up, and there was no charges, and, once again, the allegations by the mother that related to allegations of sexualised games and inappropriate behaviour. Once again, I do not find it necessary in the context of these particular parenting proceedings to make specific findings one way or another. I was not pressed to do so.
There was no cross-examination about those issues nor would I expect there to be at this point in time, noting how many years have passed and how well the boy presents to the independent experts, how well settled he is in his school life. In those circumstances, again, my view is that it would be unhelpful to X if this Court now, after so many years, went through and made findings in relation to those allegations that are, again, of an historical nature. This family does not need it. It would do more harm than good. It is not in X’s bests interests. It is not necessary for me to decide those issues in the context of this case and I do not need to add anything further in relation to those aspects of the evidence.
Section 60CC(3)(l) is not particularly relevant except to say this. If I left it open-ended, that is to say, if I left it for X to decide where he wants to spend more time, that could well lead to the institution of further proceedings. As I said earlier, the best way to approach this is with clear and definite orders so X and his parents will know precisely where he is going to be on what particular day. As to s 60CC(3)(m), I note the family reports, that is to say, the family report of Ms C and the Specific Issues Report of Ms E. I note the opinions expressed by Ms C, which I accept. Her opinion almost three years ago was that the boy should have been living in a week-about arrangement with each parent.
Of particular note in this regard is the unchallenged opinion expressed by the expert, Ms C, and pressed by the father, that as children get older they often seek to gravitate more towards the parent who is the same gender as them. This is not surprising, nor is it new nor is it likely to change. Young X enjoys playing sport with his father each second Saturday. It is quite a drive to get to the sports location in Suburb H from where the father lives. They have that in common, they both enjoy sport, and they go for lunch afterwards.
Young X very much enjoys working on computers. I dare say X is likely to pursue such a career, which would have been unheard of when I was a schoolboy. No doubt given his current level of maturity he is highly likely to pursue it successfully. I note in particular the father’s evidence that he likes computer programming. Well, there is a pretty large market worldwide for that sort of thing.
There are others in this courtroom who will have a better idea of that than I do, certainly the father does, I am sure the mother does too. But nonetheless the father is interested in it. He has a computer set up at home in the same room that the boy also has a computer in. This is an interest and a hobby and a pastime that the father and the boy enjoy. And the boy has said more than once it is one of the reasons he wants to spend more time with his father. Now, I see this is particularly important given the father’s evidence that the boy has expressed a wish to pursue a career along those lines: in IT and in computing, in programming and in coding. The father himself has completed studies in this field.
X’s friend, J, is also interested in this pastime. The father confirmed that J visits X when he is with his father. I also gather that there is a likelihood that J visits at the mother’s house too. I think J lives nearby. The other point I note is the driving aspect. X has recently got his learners. He has done some hours of driving with his dad, and it seems to be a pursuit that they will follow up together.
The parents have agreed on an order for equal shared parental responsibility. That is definitely appropriate. The presumption has not been rebutted in any event. The Court is required, having noted s 61DA, to have regard to s 65DAA. Now, in relation to those sections, the Court is required to consider equal time. I do think it is in the best interests for X for the reasons I have stated – primarily his age, his maturity, his very clearly stated wishes. I think that equal time is appropriate for this boy. He has been wanting it, he has been waiting for it and it has finally arrived.
In this regard, I note s 65DAA(5) as it relates to reasonable practicality. I note the parents do not live terribly far apart. The mother is very close to the school. The father is seven minutes’ drive from the school. I am satisfied they have a current and a future capacity to implement the arrangement for equal time. They have been implementing an arrangement for four nights a fortnight for 14 years. I do not see why they cannot implement an equal time arrangement.
The parents’ current and future capacity to communicate with each other and resultant difficulties that might arise. Well, they seem to have done okay so far in terms of four nights a fortnight for 14 years. I have made some comments about communication already. With the boy being as old as he is, the aspect relating to communication, in my view, diminishes - that is to say, to what extent the Court should have regard to the parents’ ability to communicate is somewhat reduced. It is certainly not the same for a boy who is nearly 17 as opposed to a child who might be seven. In any event, I am satisfied that the level of communication is sufficient, noting X’s maturity and age.
I have had regard to the impact of an equal time arrangement on the boy. He is the one who wants it, primarily. To the extent that my other reasons and comments which have been stated elsewhere in this judgment are relevant, in my view, the evidence points towards an order for equal time. In those circumstances, so far as the time arrangements are concerned, paragraph 9 of Exhibit 2 is the appropriate order. The ICL supports those orders, and if X was to go to his father tomorrow, that will stay the same, stay with his dad until Monday 13 February this year, then go to his mum for a week, then back to his dad for a week from 20 February, and then the orders will just flow on from there. The parents have been able to agree on a large amount of these orders, and that is to their credit. It is another aspect which would lead me to conclude that they are sufficiently able to communicate and agree on issues for the benefit of young X.
There was some evidence in relation to overseas travel. I would have to say there is no evidence to support a finding that the father is a flight risk. The father wants the boy to get a passport and it seems to me that is appropriate, and it is primarily appropriate because the paternal family lives in New Zealand and the father wants to be able to take the boy there for visits or holidays, obviously, to spend time with the paternal family in that country. This, of course, is in the best interests of X. The mother is worried about these issues. She wants to be the one to hold the passport. She wants a security bond of $5000 if the boy travels overseas with the father, but there is no evidence to support the making of an order for a security bond or a surety. There is no evidence the father is a flight risk.
What I would say here is I think a passport should issue, and I actually think that the father should hold the passport for the following reasons. Firstly, he is the only one thus far who has expressed a wish to take the boy overseas. In particular, the wish he has expressed is to take the boy to New Zealand to see the paternal family. Secondly, I am particularly mindful of s 60CC(3)(l). The legislature has made it clear that it wants Courts exercising family law jurisdiction to take into account the orders that would be least likely to lead to the institution of further proceedings in relation to the child.
If the passport is with the mother, it seems to me that it is more likely in the context of this particular case to lead to the institution of further proceedings in relation to X than if the passport is with the father. My view in this regard is based on the following evidence. For many years now, the father has sought an equal time order. The boy himself has said almost three years that he wants to live week about between his parents. The mother has continued to resist such a change. The mother furthermore thinks the father is a flight risk based on no evidence that has been drawn to my attention.
The father may need to travel to New Zealand on short notice at some stage, for example, if family members want to gather to provide support, noting that his own father is now 80 years old. I can foresee the possibility of trouble or issues or delay if the passport is in the care of the mother. There is no evidence the father is a flight risk. There is no evidence he would abscond with the child. I would have every reason to expect that this father is keen for this boy to stay at the F School and complete his schooling. I have every reason to expect that the boy would say, even if he visited New Zealand, “Well, I am going home now,” even if the father wanted to stay in New Zealand.
That is pure conjecture on the Court’s part, of course. I am just trying to consider some of the possible scenarios. In the circumstances, I think that the orders should be as per 19, 20, 21, 22 and another order, 23, will say that the child’s passport be held by the father. The reason for these other orders about dispensing with the need for signature and so on is such that again, I refer back to s 60CC(3)(l). This family does not need to be coming back to Court. I actually find it reasonably incredible that they are in Court at this moment in time, having regard to the weight of the evidence in the case, including the expert evidence and the clearly expressed wishes of a child who is almost 17.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 29 May 2023
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