Ulmer & Herrera
[2023] FedCFamC2F 279
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ulmer & Herrera [2023] FedCFamC2F 279
File number(s): CAC 610 of 2020 Judgment of: JUDGE MANSFIELD Date of judgment: 16 March 2023 Catchwords: FAMILY LAW – PARENTING – Final Orders – Two children both with high needs – Consent orders reached in relation to older child (16 years old) – Frequent conflict between parents about care and welfare of younger child (15 years old) - Communication between the parents is poor and is worsening – Parental responsibility and living arrangements in issue - Father has demonstrated greater capacity to provide for the extensive needs of the child. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) – ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B(i), 65D, 65DAA, 65DAB, 65DAC, 69ZN, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 5.09(2)
Cases cited: Cheung v R (1999) ALJR 1093
EB v CT (No .2) [2008] QSC 306
Oswald & Karrington [2016] FamCAFC 152
Summitt & Summitt and Ors (Re-Opening) [2009] FamCA 365
Division: Division 2 Family Law Number of paragraphs: 120 Date of hearing: 7 to 9 November 2022 and 7 March 2023 Place: Canberra Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Friedlieb Fox Mcleod / Self-Represented for the re-opening hearing on 7 March 2023 Counsel for the Respondent: Mr Shaw Solicitor for the Respondent: Gilbert & Partners / Self-Represented for the re-opening hearing on 7 March 2023 Counsel for the Independent Children’s Lawyer: Mr Stagg Solicitor for the Independent Children’s Lawyer: Dillon-Smith Lawyers / Ms Dillon-Smith for the re-opening hearing on 7 March 2023 ORDERS
CAC 610 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ULMER
Applicant
AND: MS HERRERA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MANSFIELD
DATE OF ORDER:
16 MARCH 2023
THE COURT ORDERS THAT:
1.All previous orders concerning the child, Y, born 2007 are hereby discharged and all outstanding applications are otherwise dismissed.
Parental responsibility
2.The Applicant Father shall have sole parental responsibility for Y.
3. In the exercise of the father’s parental responsibility the father shall:
(a)Notify the Respondent Mother in writing of any decision he intends to make under his exercise of parental responsibility within 14 days prior to making the decision and the mother may provide a response within 7 days and the father will consider the mother’s response before making the final decision; and
(b)Notify the mother in writing within 7 days of the decision made by the father.
Information sharing
4.Within 7 days of any request from the father, the mother shall:
(a)Sign all documents and do all things to transfer authority for the father to deal with the NDIS; and
(b)Provide to the father the details and information about Y’s past treating medical practitioners, specialists and therapists/counsellors.
5.The father is to provide the respondent mother with the names and contact details of all of Y’s treating medical practitioners and specialists and therapists/counsellors on an ongoing basis in writing by way of the Parenting App used for communication between the parents (‘Talking Parents’).
6.These orders authorise the mother to obtain any information directly from Y’s treating medical practitioners, specialists and/or counsellors at her request and cost.
7.These orders authorise the mother to obtain information directly from Y’s school at her request and cost.
8.In the event of a medical emergency, serious health issue or injury concerning Y, the parent with whom Y is spending time shall advise the other parent as soon as practicable and, in any event, within 2 hours of such medical emergency, serious health issue or injury.
9.In the event Y is prescribed any new or different medication, the parent with whom she is with is to ensure that the medication and instructions in relation to its use shall be provided to the other parent prior to the next changeover.
Living and time arrangements
10.Y shall live with the father.
11.Y shall spend time with the mother as agreed or failing agreement as follows:
(a)Each alternate weekend from Friday at 5.00pm or, if she is attending school on Friday then from the finish of school, to the commencement of school the following Monday, or 9.00am if she is not attending school that day.
(b)Half of the term school holidays commencing the first week from Friday at 5.00pm or, if she is attending school on Friday then from the finish of school to the following Saturday at 5.00pm.
(c)Half of the summer school holidays on a week about rotation commencing in the second week of the holidays and each alternate week thereafter unless either parent gives the other 3 months’ notice (prior to the commencement of the holiday period) in writing of their intention to travel with the child during the summer holidays in which case each parent will have a three week block or half the summer holidays.
(d)For Mother’s Day, if it is not a day that she is otherwise spending time with the mother, from 10.00am to 5.00pm; and
(i)If Father’s Day falls on a weekend that Y is otherwise spending time with the mother in accordance with these Orders, that time is suspended such that Y spends time with the father on Father’s Day from 10.00am to 5.00pm.
(e)For no less than 3 hours each year for the mother’s birthday.
(f)On Christmas day from:
(i)3.00pm Christmas Day to 3.00pm Boxing Day in 2023 and each alternate year thereafter.
(ii)3.00pm Christmas Eve to 3.00pm Christmas Day in 2024 and each alternate year thereafter.
(g)For no less than 2 hours on Y’s birthday.
12.Both parents are entitled to attend any extracurricular or other school activities usually attended by parents and shall behave in a civil and respectful manner towards the other parent at those events.
Communication
13.The parent with whom Y is with is to facilitate a video call with the other parent on each alternate day at 5.30pm and is to give Y privacy during the call.
14.The parents shall communicate about Y in writing by way of the Parenting App Talking Parents.
Changeovers
15.All changeovers not occurring at Y’s school are to take place at the Suburb B McDonalds Carpark unless otherwise agreed.
Restraints and supervision
16.If Y is to be in another person’s care for more than 24 hours, the other parent is to be advised of the arrangements.
17.If Y is spending time with the mother or father for more than 2 consecutive nights at a location other than their residential address, then the parent shall notify the other parent of the arrangements.
18.The mother is to provide the father with the residential address at which Y will be spending time with the mother.
19.The father is restrained by injunction from being on the premises at the residential address of the mother:
(a)Unless agreed to by the mother; or
(b)Except in the case of an emergency; or
(c)Except in the event the mother has withheld Y beyond the times provided for in these Orders and has ceased to meaningfully communicate with the father.
20.Each parent is restrained by injunction from:
(a)Denigrating the other party in the presence or hearing of Y or permitting any other person to do so in the presence or hearing of Y; and
(b)Discussing the proceedings or any issues of disagreement between the parties in the presence or hearing of Y.
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 Ulmer & Herrera has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
INTRODUCTION
Despite the Applicant Father (‘the father’) and the Respondent Mother (‘the mother’) (‘the parents’) separating five years ago when the child Y was 10 years old, communication between the parents is poor, and is worsening, and they have not established an effective co-parenting relationship. That is significant in the circumstances where Y has a number of mental and physical health impairments. Both parents came to the final hearing seeking sole parental responsibility and each party asserted a greater capacity to provide for the care and welfare of Y and all of her high needs.
This case is about determining the parenting arrangements that are in Y’s best interest. In particular, the capacity of each parent in the context of a poor co-parenting relationship, to provide for the extensive needs of the child, including her developmental, health and social needs.
BACKGROUND
The parties met in Adelaide in 2003 and were married in 2006. The parties’ are the parents of X (16 years old) and Y (15 years old). The children have been diagnosed with a number of conditions. X has several disorders and ADHD. Y has several disabilities and related medical conditions.
In or around 2011, the relationship began to deteriorate. In 2013 or 2014, the mother relocated for a three month period to C Town in NSW. The family then relocated to C Town in 2016. The parents separated around January - February 2018.
Since separation, the children have lived in a shared-care arrangement with the parents. At first, the father would stay in C Town in the family home for a two week period caring for the children and then return to Adelaide where after the mother cared for the children for the following two weeks. This arrangement continued until May 2018 when the father obtained his own accommodation but the shared care arrangement continued. In early 2019, the father’s time with X became sporadic and at the discretion of the mother. The father commenced proceedings on 30 March 2020 when X was 13 and Y was 12 years old.
On 22 July 2020, interim orders were made for shared care between the parties on a week about arrangement. In October 2020, the interim orders were varied to the extent that X was to spend time with the father in accordance with his wishes.
During the family report process which culminated in December 2021, agreement was reached for the father and X to relocate to Adelaide which happened in January 2022. The father also contended that Y, with or without the mother, would also be better off moving to Adelaide. At that time the mother did not agree and wanted to remain living with Y in C Town.
On 2 February 2022, interim orders were made by consent that Y would return to Adelaide with the mother by the commencement of the third school term of 2022 and thereafter live in a shared care arrangement. In May 2022, the mother informed the father through her then‑solicitors that she would not be returning to Adelaide as per the consent orders.
On 10 October 2022, the father filed a contravention application with respect to the mother’s residence decision along with a raft of other alleged contraventions. However, by the time of the mother’s Amended Response for final hearing filed on 2 November 2022, the mother had decided to move to Adelaide.
At the commencement of the final hearing on 8 November 2022, the parties reached agreement in relation to X and orders were made by consent which provided for:
(a)The father to have sole parental responsibility;
(b)In the exercise of sole parental responsibility the father shall provide the mother with all names and contact details of medical practitioners the child attends upon;
(c)Authorising the mother and father to obtain any medical and educational information from treating practitioners and educational providers;
(d)Authorising both parents to attend any extra-curricular or school activity usually attended by parents;
(e)In the event of a medical emergency the parent is to advise the other parent as soon as reasonably practicable;
(f)If any medication prescribed to X differs from the usual course, the other parent will ensure that this information and instructions are passed on to the other;
(g)X to spend time with the mother as agreed and failing agreement as follows:
(i)Each alternate weekend from after school Friday to Sunday at 5:00pm;
(ii)Half of the term school holidays;
(iii)Half of the summer school holidays on a week about rotation commencing in the second week of the holidays and each alternate week thereafter unless either parent gives the other 3 months notice in writing of their intention to travel with the child, in which case the parent will have a 3 week block or half of the summer holidays;
(iv)For Mother’s Day if it not already a day the child will be spending time with the mother;
(v)Time on the mother’s birthday, Christmas day and X’s birthday.
(h)Video call communication between the child and the mother each Wednesday at 7:00pm until 7:30pm;
(i)Changeovers to take place at Suburb D McDonalds if not occurring at school if the mother resides in City E, or if the mother is residing elsewhere, an agreed midpoint between the parties’ households;
(j)The parents are to communicate in writing by way of a parenting app.
No agreement was reached in relation to Y. The mother remained living in C Town with intentions but unspecified plans about moving to Adelaide.
ORDERS SOUGHT
The final orders sought by the father in his Amended Initiating Application filed 21 October 2022 in relation to Y included:
(a)For the father to have sole parental responsibility;
(b)For Y to live with the father and spend time with the mother:
(i)If the mother relocates to Adelaide: each alternate week from Friday after school to Tuesday before school; and for one half of the school holiday period.
(ii)If the mother does not relocate to Adelaide, for one half of the school holiday period and at other times as agreed.
The final orders sought by the mother in her Outline of Case document filed 3 November 2022 in relation to Y included:
(a)For the mother to have sole parental responsibility;
(b)For Y to live with the mother and spend time with the father:
(i)Each alternate weekend when X is with the father from Friday to Sunday, and for half of all school holidays.
Both parties sought telephone time for the non-resident parent, albeit in differing patterns. The parties sought different changeover locations. Both sought a number of restraints, and sought that the orders provided for the provision of information pertaining to the health and education of the children. Both parents sought that the children be able to travel within Australia and the mother sought this to extend to international travel with notice provided to the father. The father sought that no international travel occur without the express written consent of the other parent.
THE HEARING
On 7 November 2022, the matter came before me for final hearing. On the first day of hearing, the applicant father gave evidence and was cross-examined by counsel for the mother and the Independent Children’s Lawyer (‘ICL’). On day two of the hearing, the respondent mother gave evidence and was cross-examined by counsel for the father and the ICL. Cross-examination of the mother continued into day three of the hearing. The court appointed single expert gave evidence and was cross-examined by counsel for all parties on day three of the hearing.
The following material was received into evidence during the trial:
(a)Affidavit of Mr Ulmer filed 12 October 2022 (‘Exhibit A1’);
(b)Pages 99-115 of the ICL tender bundle (‘Exhibit A2’);
(c)N Region Policing Case Summary … (‘Exhibit A3’);
(d)Email from applicant father to respondent mother dated 27 September 2022 (‘Exhibit A4’);
(e)Map illustrating a 15km radius from the father’s residence in Adelaide (‘Exhibit A5’);
(f)Affidavit of Ms Herrera filed 3 November 2022 (‘Exhibit R1’);
(g)Certificate for Completion of G Course dated 25 October 2022 (‘Exhibit R2’);
(h)Expert Report of Dr F dated 22 December 2021 (‘Exhibit C1’); and
(i)Pages 2-5 and 200-240 of the ICL tender bundle (‘Exhibit C2’).
Other material referred to and relied upon by the father was:
(a)Case Outline filed 3 November 2022.
Other material referred to and relied upon by the mother was:
(a)Case Outline filed 3 November 2022.
Other material referred to and relied upon by counsel for the ICL was:
(a)Case Outline filed 7 November 2022; and
(b)Minute of Orders sought handed up on 9 November 2022.
On the third day of hearing, final submissions were heard.
ISSUES
During closing submissions, the ICL provided the court with a minute of proposed orders with respect to Y which included:
(a)For the father to have sole parental responsibility;
(b)That in the exercise of this parental responsibility the father will keep the mother informed with all details pertaining to medical practitioners and treatment; similarly with educational providers;
(c)For Y to live with the parties in Adelaide on a week about arrangement from after school Friday to the following Friday;
(d)For changeover to occur at the Suburb D McDonald carpark if the mother is residing in City E and if not residing in City E, then an agreed midpoint between the father’s and mother’s residence;
(e)For the school holiday time relating to Y to mirror the holiday time spent between the parents and X;
(f)If Y is to be in another person’s care for more than 24 hours, the parent will inform the other; and
(g)If Y is spending more than two consecutive nights with the mother or father at a location other than their residential address, the parent is to inform the other.
During closing submissions, counsel for the father submitted that the father:
(a)Maintained his position and agreed with the ICL that he ought to have sole parental responsibility and agreed with the information sharing provisions as sought;
(b)Changed his position in relation to time with the mother from Friday to Tuesday such that if the mother resides within a 15km radius of the father’s residence, that Y should live week about between the parents; alternatively, if she lives outside of this radius but within Adelaide, Y should spend time with the mother from Friday after school to Tuesday before school; and in the event the mother does not reside in Adelaide, for half of the school holidays;
(c)Maintained that changeovers occur at Y’s school or if not at the school, at Suburb B McDonalds as it is closer to the father’s residence than Suburb D (as sought by the mother);
(d)Maintained his position on restraints;
(e)Maintained his position that the parents be restrained from leaving Y unsupervised, requiring the written consent of any supervisors outside of blood relatives with the carer’s details to be provided, and requiring both parties to provide the information of any other adult who spends time when in the home with the children and requiring notification to the non-resident parent of Y spending more than one night away from home and the contact details of where she is staying.
During closing submissions, counsel for the mother submitted that the mother:
(a)Now proposed equal shared parental responsibility;
(b)Sought that the mother be provided with written notification of any decision made by the father;
(c)Otherwise broadly agreed with the orders as sought with regards to medical and educational information, changeovers and special occasion time.
At the close of the final hearing, the issues for determination were:
(i)Allocation of parental responsibility;
(ii)Time arrangements which flow from the allocation of parental responsibility;
(iii)Changeover location; and
(iv)Extent of reporting about supervision of Y when in each parents care.
INTERIM ORDERS MADE ON FINAL DAY OF HEARING
Due to the timing of the final hearing taking place late in 2022, the mother not having any details or firm plans about when or where she would be moving to, the dispute about parental responsibility and Y’s schooling for 2023 not being agreed, it was necessary to make interim orders. Those orders also provided for Y’s transition to living in Adelaide. For reasons given ex tempore, until the pronouncement of final orders, interim orders were made to the effect that:
(a)The father have sole parental responsibility for Y including her enrolment in school for 2023;
(b)There be mandatory notification and provision of education and medical information between the parents;
(c)A regime for time between the father and Y until 6 January 2023;
(d)Liberty to the father to relist on an urgent basis for consideration of a recovery order in the event the mother had not relocated Y’s residence to Adelaide by 6 January 2023;
(e)A regime for time from 6 January 2023 to the start of Term 1 2023;
(f)That Y live with the parents week about thereafter and for half of the school holidays;
(g)That the parents communicate through a parenting app;
(h)Mutual restraints on the parents in unremarkable terms;
(i)Mutual obligations to share details of other adults supervising, caring for or living with Y;
(j)For the mother is to complete the G Course by the J Organisation.
APPLICATION IN PROCEEDING
On 8 February 2023, during the period between the end of trial and the pronouncement of final orders, the father filed an application in a proceeding seeking to deal with circumstances that had arisen since Y’s and the mother’s relocation to Adelaide. That application sought further interim orders concerning the immediate arrangements for Y including that Y live with the father for 12 weeks and spend three nights per fortnight with the mother.
The matter was mentioned on 23 February 2023. Both parents were self-represented and the ICL appeared as solicitor advocate. Orders were made providing for the parties to file and serve material they seek to rely on at the hearing of the Application in Proceeding which was then listed to occur on 2 March 2023. On 2 March 2023, by consent the parties sought and were granted an adjournment of the hearing to 7 March 2023.
Preliminary matters
On 7 March 2023, the Application in Proceeding filed by the father on 8 February 2023 came before me for hearing. There were two preliminary matters to be determined prior to the substantive hearing of the application:
(i)Determining the manner in which the evidence and submissions of the parties on the father’s Application in Proceeding would be taken into account; and
(ii)On 6 March 2023, the mother sent an email to the court seeking to adjourn the hearing of the Application in Proceeding to sometime in April 2023 in order to obtain legal representation. The mother confirmed on 7 March 2023 that application was pressed.
Both of the above matters were determined on 7 March 2023 as follows.
Determining the application as an application to re-open
The father’s Application in a Proceeding prima facie is an interlocutory application. The reality of it however is that the Application, the mother’s Response and the material in support are all sought by the parties to be taken into account by the Court in the determination of final orders.
The father’s position with respect to final orders was now to the effect that Y live with him and spend time with the mother three nights per fortnight from after school on Friday to before school on Monday and for half of the school holidays.
The mother’s position with respect to final orders remained unchanged in seeking week about shared care.
The ICL’s position with respect to final orders was now to the effect that Y live with the father and spend time with the mother five nights per fortnight during school terms, in week one, from after school on Friday to before school on Tuesday, and in week two, from after school on Wednesday to before school on Thursday and for half of the school holidays.
No party made an application to be allowed to re-open their cross-examination of any of the other parties. I take into account Rule 5.09(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 which states cross-examination will only be allowed at a hearing of an interlocutory application in exceptional circumstances. However, both parties’ affidavits were evidence that they sought the Court to take into account in the making of final orders such that there was a real question as to the applicability of r 5.09(2).
I was also satisfied that the scope of the issues raised by the parties on and in Response to the Application in Proceeding were not beyond or outside of the scope of issues which were explored at final hearing.
I took into account the principles for conducting child related proceedings in s 69ZN of the Act. In particular:
(a)Principle 1 -- that the court is to consider the needs of the child concerned and the impact that the conduct of proceedings may have on the child in determining the conduct of the proceedings. I am satisfied that a further adjournment of the hearing of the Application and the proceedings will have a negative impact on Y.
(b)Principle 3 --that a further adjournment of the proceedings will likely continue Y’s exposure to the conflict between her parents.
(c)Principle 4 -- that an adjournment will not promote cooperative and child focussed parenting as between the parties.
(d)Principle 5 -- that the proceedings are to be conducted without undue delay and with as little formality, technicality and form as possible.
I was satisfied that it was in the best interests of Y, and it was in the interests of justice, to exercise my discretion to re-open the hearing:
To admit further evidence where the hearing has concluded but judgment has not been delivered on the following grounds:
(a)The further evidence is so material that the interests of justice require its admission;
(b)The further evidence, if accepted, would most probably effect the result of the case;
(c)The further evidence could not by reasonable diligence have been discovered earlier;
(d)No prejudice would ensue to the other party by reason of the late admission of the further evidence.[1]
[1] (see Summitt & Summitt and Ors (Re-Opening) [2009] FamCA 365 where Murphy J referred to the decision of Applegarth J in EB v CT (No .2) [2008] QSC 306).
I comfortably found in the positive with respect to each of the four criteria above. Further, it is not necessary to determine the Application in a Proceeding separately to the final orders in circumstances where the final orders are imminent. Further still, and perhaps the most cogent reason of all, the issues for determination as set out above at paragraph 24 had not changed.
·Accordingly, the manner in which the evidence and submissions of the parties on the father’s Application in Proceeding filed 8 February 2023 would be taken into account was in determination of the final orders; and
·Neither party was permitted to re-open their cross-examination of the other parties.
The mother’s application for an adjournment
Though not in affidavit form, I had regard to the mother’s email to the court of 6 March 2023 and in particular her reliance on s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) in support of her oral application to adjourn. The application was considered against three principles.
Firstly, s 67 of the Federal Circuit and Family Court of Australia Act 2021 states the overarching purpose is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. Sub-section (3) says that I must exercise any power under the rules in the way that best promotes the overarching purpose. Referable to the overarching purpose, the Courts have attached increasing importance to case management issues such as the impact of the adjournment on court resources, lists and time, and the rights of other litigants.
On this principle, I find that the mother had not brought her application to adjourn the hearing in the proper form. Concessions were granted to her in dealing with it and the evidence in support of it. Granting the adjournment would offend the second limb of facilitating the just resolution of the dispute as quickly, inexpensively and efficiently as possible.
Secondly, per Kirby J in the matter of Cheung v R (1999) ALJR 1093 - The fundamental consideration is to do justice between the parties. The court has a wide discretion. It should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to the other party which cannot be compensated for by way of costs. But the fundamental consideration is to do justice between the parties.
On this principle I found:
(a)In this case, the adjournment was sought principally to obtain legal representation and avoid being cross-examined by the father personally;
(b)On the directions I had made, that was not going to happen in any event;
(c)The parties had complied with the directions made for the hearing of the application;
(d)There was no evidence that demonstrated that the wife was prevented in some way from obtaining the representation that she desired; and
(e)Granting of the adjournment would have been an injustice to the father and the ICL.
Thirdly, s 60CA of the Act says that in deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration. (I am also satisfied that the order sought is a Parenting Order pursuant to s 64B(i) as it is an order dealing with an aspect of the care, welfare or development of the child).
There was no evidence to suggest that the adjournment was in the best interests of the child. The adjournment was sought principally to obtain legal representation and avoid being cross-examined by the father personally. On the directions I had made, that was not going to happen.
I considered s 60CC(2)(a) and the benefit to the child of having a meaningful relationship with both of the child's parents – the reality is that whilst ever these proceedings remain unresolved, the likelihood of disagreement and conflict between the parents is high.
I also took into account Principles 1, 3, 4 and 5 as set out in s 69ZN of the Act and previously mentioned which did not support the mother’s application to adjourn.
For those reasons the mother’s oral application to vacate the hearing date was dismissed.
Further material and submissions
The following further material was received into evidence:
(a)Application in a Proceeding filed by Mr Ulmer on 8 February 2023 (‘Exhibit AIP-1’);
(b)Affidavit of Mr Ulmer filed 8 February 2023 (‘Exhibit AIP-2’);
(c)Affidavit of Mr Ulmer filed 22 February 2023 (‘Exhibit AIP-3’);
(d)Response to AIP filed by Ms Herrera filed 27 February 2023 (‘Exhibit AIP-4’);
(e)Affidavit of Ms Herrera filed 27 February 2023 (‘Exhibit AIP-5’);
(f)Affidavit of Mr Ulmer filed 1 March 2023 (‘Exhibit AIP-6’);
(g)South Australia Civil and Administrative Tribunal letter dated 3 March 2023 (‘Exhibit AIP-7’); and
(h)South Australia Civil and Administrative Tribunal Hardship or Domestic Violence form of 8 pages (‘Exhibit AIP-8’).
Other material referred to and relied upon by the applicant father was:
(a)Case Outline filed 6 March 2023.
Other material referred to and relied upon by counsel for the ICL was:
(a)Minute of Final Orders sought dated 7 March 2023.
Further submissions were received from all parties.
LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper, having regard to section 61DA and section 65DAB of the Act. Section 60CA provides “In 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.”
Parental responsibility
Division 2 of Part VII of the Act is titled ‘Parental responsibility’ and deals with the concept of parental responsibility including (a) what parental responsibility is; and (b) who has parental responsibility.
Section 61B provides that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C provides that each of the parents of a child who is not 18 years of age has parental responsibility for the child, despite any changes in the nature of the relationships of the child’s parents, but is subject to any order of a court for the time being in force.
Section 61D provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any): (a) expressly provided for in the order; or (b) necessary to give effect to the order.
Further, the effect of a parenting order that provides for shared parental responsibility is set out at section 65DAC where the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child. The order is taken to require the decision to be made jointly by those persons which requires each of those persons: (a) to consult the other person in relation to the decision to be made about that issue; and (b) to make a genuine effort to come to a joint decision about that issue.
In section 4 – Interpretation, “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)The child’s education (both current and future); and
(b)The child’s religious and cultural upbringing; and
(c)The child’s health; and
(d)The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard.
I have had regard to the totality of the evidence. It is not possible (or necessary) to refer to every matter raised, alleged, countered, thrusted or parried by the parties in these proceedings. There are simply too many. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it. Likewise, where I have referred to a particular fact or matter, it does not follow that I have had regard to that fact or matter only in reasoning a finding.
In these reasons and pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof is to a balance of probabilities. Having regard to the evidence and my observations of the witnesses, in these reasons a statement of fact is a finding of fact, unless it is stated otherwise or is obvious from the context that I am reciting the position of one of the parties.
DETERMINATION OF PARENTAL RESPONSIBILITY
That a parenting order is to be made triggers s 61DA of the Act, which applies a presumption that it is in the best interests of Y for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. The presumption may also be rebutted by evidence that satisfies the court that it would not be in Y’s best interest for her parents to have equal shared parental responsibility.
The mother asserts in her affidavits that the father is controlling of her, and the volume of his communications to her are coercive. The mother reported in her attendance with the Family Report author that she ‘has Post-Traumatic Stress Disorder related to family violence during her marriage with [the father]’. It was reported that:
49She viewed him to be rigid, explosive, with a short fuse. There was conflict related to financial worries. She asserted that he had viewed her as a cash cow. She had gradually pulled away in the relationship.
50On one evening, he had attempted to push her out of the house. She had fought back. The children had witnessed this incident in 2015. She became very upset talking about it. On another occasion, [Mr Ulmer] had been in a foul mood. In anger, he had flipped her rack of clothes over. She had called the Police in response. On these occasions, he had left the house to stay with his mother.
51[Ms Herrera] complained about [Mr Ulmer’s] driving. She described how he would pull over on the gravel due to a passing car. On one occasion, when the children were in the back, he had told her to get out. She had refused. She stated that she had been in a state of shock. There had been many times when he had become enraged, which left her feeling unsafe. In counselling, she had been encouraged to stand up to him. He would become upset with the smallest things. This had created difficulty when her eldest daughter, [Ms O], was a teenager.
52[Ms Herrera] alleged that, on the relocation to [C Town], [Mr Ulmer] had become even more volatile. She felt like she was walking on eggshells. She viewed [Mr Ulmer] as being like a snake: “You just never know when he’s going to come out and bite you.” She became more and more concerned about the children's exposure to this. [X] had become aggressive, yelling at her. It was necessary for her to draw limits regarding [Mr Ulmer’s] behaviour.
53[Ms Herrera] had left [Mr Ulmer] in February 2018, when he had confronted her, with his fist to her face. He had told her that she was ruining [X’s] education and that she was the worst mother in the world.
The mother maintained these allegations under cross-examination. The father denied these allegations in his affidavits and maintained his denials under cross-examination. I am not satisfied to any legal test that family violence has occurred. I am also not satisfied that there are reasonable grounds to believe that either party has engaged in family violence.
I do not find that the circumstances outlined in the mother’s evidence that she seeks to describe as the father’s behaviour being controlling amounts to family violence. In the context of dysfunctional communication between the parents with two high needs children, I accept his explanation under cross-examination in regards to the volume of communications, that
the volume of communication that happened last year from me was unhelpful for [Ms Herrera]. I guess it triggered her distress, and – and that didn’t help because then we were at – at loggerheads. I mean, I was catch-22. I had to get this – I had to get [Y’s] supports in place and the – and the specialists, but – but I copped flak – flak for it. So – so I – I – I – I learned from that, and I thought, “Okay. Well, I will – I will – I will,” – I wanted us to have a transition plan.
Some level of discord attends most marital breakdowns and this case is no exception. The occurrence of family violence however is not proven merely by demonstrating disagreement or irritation. I have no doubt that the mother resents the circumstances whereby the father presses her for commitments and information as to the care and welfare of the children. The Act however requires “violent, threatening or other behaviour” by one person to “coerce or control” the other or to cause the other to be “fearful” before such conduct enters the realm of family violence. The mother does not depose or explain precisely what it is she was fearful of. She would just rather not feel as though she is accountable to the father. There are no allegations that anyone has engaged in abuse of Y. The presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility is not displaced on grounds of family violence.
Nevertheless, and of considerably more weight in this case, I am satisfied that the presumption is rebutted by the evidence that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. I am unable to find that the parents could comply with the mandatory requirements of s 65DAC of the Act to consult each other and make genuine efforts to come to a joint decision about major long-term issues.
The parents have a poor co-parenting relationship and are unable to effectively communicate with each other. For example:
(a)Both parents reported to the Family Consultant they find communication with the other parent less than desirable. The mother reported that ‘she was unwilling to co-parent with [Mr Ulmer] and no longer wished to play his power games…although [s]he [sic] asserted that communication was required for the children, it was her view that since 2018 this was not possible’. Under cross-examination, the report writer clarified, with reference to contemporaneous notes, that the mother expressed she did want to have a co-parenting relationship with Mr Ulmer, but that it was not possible.
(b)While asserting they are willing and able to facilitate a close and continuing relationship with the other parent, the mother has on a number of occasions failed to insist upon regular contact between X and the father and additionally has failed to comply with the consent orders providing for her to relocate to Adelaide with Y, having the result of impacting regular contact between Y and the father.
(c)The parents have failed to jointly make decisions about a number of major long term issues in relation to the children including the vaccination status of X and Y, some major health procedures for Y and where Y was to go school in Adelaide.
My observations of the mother were that she is defensive, vague and argumentative especially when pressed. She is hyper-vigilant to any suggestion of shortcomings in her care of the children and blames the father for unnecessarily pressuring her or not disclosing information to her even when that clearly was not the case on the evidence. While the mother identified under cross-examination that she wishes to have ‘a healthy, functioning co-parenting relationship with the father’, she was unable to identify a pathway towards establishing such a relationship, or a dispute resolution mechanism in the event they maintain different views about a major long-term decision.
My observations of the father are that he is exacting. He is thorough. He is concerned with facts and views most circumstances as binary. Since separation the father has engaged in counselling and education. Encouragingly, it is evident in the evolution of his affidavit material that his approaches to communication with the mother over time have become child focussed and far less adversarial. Despite there being a series of consent orders, and even an offer from the father to assist the mother with the costs, the mother has chosen not to engage in any counselling or robust post separation parenting education, despite interim orders for her to do so.
Both parties now have a considerable bank of previous interactions with the other which has eroded their trust and ability to work together. The reality is they cannot effectively communicate with each other and are dysfunctional. It is not about family violence and it is not because of family violence. It is a fundamental inability to speak the same language. The strengths of each party do not operate to compliment or cover the weakness of the other. The strengths of each of them actually operate as stressors to the other. The father has managed to obtain insight, learn and implement strategies to mitigate these stressors but the mother has not.
The unfortunate aspect of this reality is that Y has high needs such that it might otherwise be of enormous value and great relief that there are two parents available. Despite both parties, and I accept that they genuinely would like that to be the case, that is not possible here. Without an order for sole parental responsibility Y is highly likely to continue to suffer from delay, confusion and unresolvable disagreement about major long-term decisions.
Before arriving at his recommendation that the parents should have joint parental responsibility in his final report, the Family Consultant stated:
147.The benefit of a sole parent having responsibility for [Y's] health and educational needs would be the separation of her care from the ongoing conflict between the parents.
Under cross-examination, the family consultant stated that he respected the position of both parties in seeking sole parental responsibility in respect of Y and in the circumstances which have prevailed since the authoring of his report, he would support that the court makes an order for sole parental responsibility- it is a question of who should hold this responsibility. The Consultant went on to say:
And I think that highlights the – as a case in point highlights the, you know, problem associated with the mother having sole parental responsibility for [Y’s] care. And, if one looks at [X’s] experience, there had been very similar issues related to [X’s] school attendance and the management of his developmental needs, and there has already been the lived experience on the – on [X] being placed in – in the father’s care where, rather than there being a catastrophic outcome as predicted by the mother, that there has been a positive outcome with regard to [X’s] attendance at school, engagement in activities, which had just not been happening for an extended period in the mother’s care.
And so, on balance, based on the additional material that I have been provided with and my reading of the affidavits of the parties, it would be my recommendation that the father is granted sole parental responsibility, based on the information that I have to hand.
In determining the allocation of parental responsibility on a final basis, I have had regard to:
(a)Being satisfied that Y has the benefit of a meaningful relationship with both of her parents. I take into account that the father has lived in Adelaide since early 2022 and Y had lived with her mother in C Town prior to that time;
(b)The demonstrated longstanding quantum of Y’s absenteeism from school whilst in the mother’s care;
(c)The mother’s misreading and delay in dealing with the child’s sexualised behaviours and reproductive health;
(d)The mother’s extensive delay in attending to immunisations;
(e)The underutilisation and under engagement by the mother with the NDIS;
(f)The mother’s non-compliance with the consent orders to relocate in 2022;
(g)The mother’s repeated and ongoing non-compliance with consent orders in relation to communication with the father in a high conflict post-separation environment;
(h)The remarkable success of X’s educational and social development since coming into the care of his father in January 2022; and
(i)The mother’s inability to provide permanent and stable accommodation for herself and the children in Adelaide despite agreeing to move to Adelaide at least 14 months ago.
On balance I find that Y’s developmental, health and social needs are better able to be met by the father. I also find that the father has demonstrated a capacity to recognise and a willingness to promote the benefit to Y of her relationship with the mother. I am not so satisfied with respect to the mother. I am satisfied that it is in Y’s best interest that an order for sole parental responsibility be made in favour of the father.
In the orders sought by the father in his Amended Initiating Application, the father sought a condition to the exercise of sole parental responsibility obliging him to inform the mother of a decision to be made in order to provide the mother with an opportunity to have input into the decision and to consider any response before making the decision.
Despite the parties having polarised views, Y is likely to benefit from each of her parents having input into the major long-term issues affecting her. I am satisfied that the order proposed by the father compelling him to provide the opportunity for the mother to provide her views and for him to consider those views, is in Y’s best interests. The requirement to first consult the mother is not a requirement of the father’s exercise of parental responsibility in the orders concerning X which were made by consent.
I understand that the mother feels that she has been shut out of Y’s care to a significant extent already and I anticipate that the mother feels that the allocation of parental responsibility to the father on a final basis would further sideline her. The order is not a judgment as between the better parent, nor is it a vindication or endorsement about anything that has happened as between the parents- it is about what is best for Y moving forward.
DETERMINATION OF TIME ARRANGEMENTS
The family consultant’s evaluation stated that Y will ‘continue to benefit from spending equal time with each parent’. The ICL originally supported an order for equal time.
At trial, the mother adopted the positon that she would be relocating to the Adelaide region early in 2023. While this is reminiscent of the position prior to and at the entering into of the 2 February 2022 consent orders to which the mother did not comply with, her presentation at trial was that she was in the process of obtaining accommodation in the Adelaide region and had been in contact with local real estate agents. On that basis, I did not doubt that the mother had every intention of relocating to Adelaide as soon as she could sort out the logistics of the move.
A practical difficulty raised by the father was the concern about travel time between the father’s current residence, Y’s school and the mother’s residence, given neither party knew where that was going to be. The mother proposed and maintained at trial the position that she would like to live in the City E area. On her evidence, this is over 30 minutes from the father’s residence. The ICL shared the father’s concern. Notwithstanding, the ICL supported an order for equal time.
The father proposed an order for equal time in the event the mother lived within a 15km radius of the father and if the mother lived outside of this radius, he sought orders on a fortnightly cycle providing for four overnights with the mother from Friday to Tuesday each alternate week. In my view, such an order would amount to the pursuit of a coercive order on the mother. Whilst I understand the practical difficulties to which the father is attempting to circumvent - the avoidance of excess travel time between the parties – the authorities are clear that the circumstances which justify the exercise of the Court’s coercive power are rare and exceptional. (See Oswald & Karrington [2016] FamCAFC 152). I am not satisfied that this is a matter which has rare and exceptional circumstances that warrant the consideration of a coercive order that the mother live inside a radius against her wishes.
Despite the efforts of all of the parties to try and make a week about shared care arrangement work, the evidence simply does not support the proposition that a week about shared care arrangement is in the best interest of Y. For example, the father annexed to his affidavit of 8 February 2023 an excerpt of communications between the parties. The mother emailed the father as late as 13 January 2023 outlining her intentions for her ‘return to SA’:
Just letting you know that I’ll be in Adelaide by early afternoon Sunday22 Jan.
I would like to pick up the kids approx. […] on Sun 22 Jan from [McDonalds Suburb H] and have them for 3 days together. Staying […] in town. I’ll drop [X] off after that and head to [Ms K’s] with [Y].
I will be sharehousing with another single Mum, [Ms K] (who you know) in [L Town] until my place becomes available.
Thankfully I have work back […]. There is an opportunity to bring this work with me in the coming months to Adelaide however for the immediate future it involves travelling back and forth a bit.
This will need us to go back to your original idea of 2 weeks on 2 weeks off shared care this will facilitate my income in the interim.
If we could start this arrangement from the date I pick the kids up this would help me out financially and enable the kids and everyone being looked after.
Are you able to support this? I am keen to work with you for what’s best for the children and to help make them feel secure.
The father’s response to this email was sent three days later and responded inter alia with the following:
[Ms Herrera]: you are expected by me, the court, the kids and the legal counsel and parties to the final hearing to relocate to Adelaide, find appropriate accommodation, and generally provide a stable base of [Y] near to [Suburb M] and [Y’s] school, so that her support workers can provide consistent weekly support to her and that she can attend therapy sessions and other supports which are all located nearby. This is not consistent with the proposal you are putting forward.
The mother sought wholesale changes to the arrangements in an unfair and dysfunctional manner, putting to the father her unfounded proposals and seeking his consent, whereby his consent would amount to dismantling previous arrangements and interim orders. The father, on the other hand, demonstrates a consistent and child focussed approach to his communication with the mother and is illustrative of the father having improved his communication and parenting capability, perhaps due to undertaking the courses recommended to him by the family report writer.
The communication from the father is further notable as it is on the back of the mother shutting down communications from the father from within December 2022 to January 2023 being a time when Y’s relocation was to occur. Contrary to the orders requiring the parties to communicate via a parenting app, the mother was unable to comply with this. I do not accept her excuse that it was some of unresolvable and unforeseen billing issue beyond her control.
In the mother’s affidavit filed on 27 February 2023, she outlines that she has relocated to Adelaide and is living in L Town outside of Adelaide with a friend. The mother is staying in the spare bedroom and asserts that Y has her own bed in this room. When X is in the mother’s care she asserts they stay in temporary accommodation so that the three of them can be together. On the mother’s own evidence, her accommodation is not suitable to support the time arrangements between her and X. The mother has not been able to comply with the interim time arrangements.
It is the mother’s evidence that she finds the communication from the father in relation to the children to be controlling and coercive and says she finds the father’s requests to amount to harassment. The father annexed to his affidavit of 1 March 2023 a series of excerpts from the Talking Parents App. After Y had been sick for five days and had had three days off school, the father requested the mother to take the child to the doctor. The mother’s response to the father was ‘please stop harassing me.’
Also contrary to orders, the mother would not provide the father with details of her residence or other people with whom she was residing. It is perfectly reasonable information for the father to have to facilitate a shared care arrangement. I find the mother will continue to circumvent court orders in order to avoid what she subjectively perceives as coercive and controlling behaviour of the father.
Aspects of the mother’s submissions that demonstrate a fundamentally misconceived approach to these child related proceedings include:
(a)That “it would be harmful for [Y] to move away from fifty fifty care because I am her mother and I’m entitled to have her fifty fifty.”
(b)That “I didn’t create the housing crisis in Adelaide but I feel like I am being penalised.”
(c)That she sought a further adjournment of these proceedings in order to present further evidence of the outcome, once it is known, of her application to the South Australia Civil and Administrative Tribunal to terminate the lease early in order to move into the property in Adelaide that she owns.
(d)That she questioned X in 2021 about her beliefs that the father was telling X that “mum is unwell” and her current and ongoing beliefs that the father is still telling X this.
(e)That “I don’t have the energy and tenacity of the father, that doesn’t mean I should be punished and have the children taken away from me.”
(f)That “I have a right to enjoy my children, just like any mother and any parent.”
(g)In response to the ICL’s position that the father’s communications are not aggressive or coercive and do not necessarily amount to family violence, that “as a woman I would expect far more than that.”
(h)Her fundamental misconception of the operation of the interim orders of 9 November 2022 with respect to the allocation of sole parental responsibility and the notation providing clarity around the order including the father’s ability to select and enrol Y at school. The mother was highly critical of the father for not consulting with her and first obtaining her agreement.
(i)The persistent failure when in the care of the mother for Y to communicate electronically with her father at the times provided for in the interim orders.
(j)That the mother’s submissions were largely about denigrating the father and pursuing her allegations that his behaviour amounts to family violence by way of coercion and control.
Aspects of the mother’s evidence and submissions that are irreconcilable include:
(a)That she considered the father denying her request for him to contribute to the costs of her relocation to Adelaide as a further example of his coercion and control towards her.
(b)That she “would like to enter a co-parenting face to face workshop” but says to the SACAT as recently as 2 March 2023 that “I wish to leave my abuser behind me and have very little to do with him as possible.”
(c)That she “is a great believer in communication” and “really wants to co-parent” and identified the J Organisation as being a useful resource to assist the parents but has not complied with the Orders that she consented to and attend and participate in the courses offered by that same institute.
(d)That she relies on aspects of Dr F’s report she deems as favourable but also submits that “it was proven in court that [Dr F] is known to misconstrue words” in relation to aspects of the report that are unfavourable to her.
I have taken into account other people with whom Y has relationships. Only two others have been mentioned in the evidence. The paternal grandmother and their maternal step-sister who both live in Adelaide. The relationship with the paternal grandmother is sufficiently provided for by living with the father. On the mother’s evidence, the maternal step-sister will only engage with Y when she is in the mothers care. The step-sister has not given evidence. I am satisfied that the time Y is with the mother is sufficient to enable the maintenance and development of her relationship with the maternal step-sister. Especially now that Y is living in Adelaide which makes her more available compared to any arrangement when living in C Town.
I am satisfied that there is an absence of the conditions conducive to a successful week about shared care arrangement. I find that forcing the parents to work together to the extent that a shared care arrangement requires is highly likely to lead to the institution of further proceedings.
I am satisfied that the father has demonstrated his ability to provide a consistent, supportive, loving and stable environment for Y. The mother has not been able to demonstrate this or provide confidence that it is imminent. I am satisfied that it is in the best interests of Y to live with the father and to spend time with the mother.
The time arrangements at order 11 align with the Final Orders concerning X in relation to school terms, school holidays and special days. The exception being that time for X during school terms is alternate weekends from after school on Fridays to Sunday at 5.00pm, whereas for Y it is alternate weekends from after school on Fridays to the commencement of school on Monday. This provides an additional night for Y with the mother, avoids a changeover between the parents and provides the mother with an opportunity to prepare Y for school and to attend her school.
I decline to make the Order as proposed by the ICL for an additional overnight with the mother on Wednesdays in the alternate week. I agree with the father that it is likely to disrupt or deny the opportunity for Y to engage with and attend upon her extensive supports.
DETERMINATION OF CHANGEOVER LOCATION
The father sought that changeover occur either at Y’s school on changeover days which are school days or at Suburb B McDonald’s carpark if not on a school day. The mother sought that changeovers are to occur at Suburb D McDonald’s carpark if not occurring on a school day and otherwise at the child’s school. The ICL supported an order which mirrored the orders made with regards to X - that changeover occur at Suburb D McDonald’s carpark if not occurring at the school, or another agreed midpoint between the parties’ residences.
Suburb D is proximate to where the mother first intended to live in City E. The mother no longer intends to live there so Suburb D is no longer relevant even though it is mentioned in the Orders concerning X. In the absence of being able to identify a mid-point between residences, and the preference for certainty in this case, changeovers that do not occur at Y’s school are to occur at Suburb B McDonalds unless otherwise agreed.
DETERMINATION OF EXTENT OF SUPERVISION ORDER & RESTRAINTS
The father sought a suite of orders under the heading ‘Supervision’:
31.The mother and father are restrained from leaving the child [Y] unsupervised.
32.The mother and father are restrained from leaving the children in the care of any other person without the express written consent of the other parent with the exception of close blood relatives.
33.That in the event either parent arranges for the children to be cared for by a third party they shall take all reasonable steps to ensure that:
a.The party has the contact details (address and phone number) for each parent in the case of an emergency; and
b.The third party’s contact details are provided to the other parent to be used only in pressing circumstances; and
c.Each parent shall use their best endeavours to ensure that the third party will not refuse to receive calls from the other parent.
34.That the mother and father shall notify the other parent and provide at a minimum details including their name, and phone number, of any other adult who may reside or spend significant time in the home with that parent and the children and with the exception of the paternal grandmother, that adult is to hold a valid Working With Children Check.
35.That if [Y] is, on more than one occasion, spending time with the mother or the father at another location overnight other than the residential address, then the parent shall notify the other parent of details of the address, any emergency contact details and names of other persons also at that address.
The ICL did not support his orders 31 to 34. The ICL did not support his order 35 in its proposed form but submitted a more appropriate order would be if the child is going to be left in another person’s care for more than two nights, the other party should be advised of who this person is and of their contact details.
The mother resents the father’s position and alleges it is controlling and micromanaging of her parenting and an invasion of her post separation life. The father perceived the mother’s position as avoidance and a lack of organisation which requires protection and amelioration of the impact upon the children. The quantum of disharmony on this issue is illustrative of the disharmony in this case.
Orders such as those proposed by the father at his 31-34 are not appropriate or necessary. For example, they oblige the mother to report to the father in years to come if she steps out of her house and leaves Y in the care of another adult. In my view this is not helpful for the co‑parenting relationship nor appropriate in circumstances where abuse or neglect of Y in the other parent’s care is not an issue.
Nevertheless, in circumstances where the father has sole parental responsibility, it is necessary and appropriate that the father know where Y is and who she is generally with. I also take into account Y’s unique vulnerabilities. Orders 16 and 17 are in line with those sought by the ICL and seek to strike the right balance. For these same reasons, it is necessary and appropriate that the father knows where Y is residing when she is with her mother and Order 18 requires the mother to provide the father with her residential address. Noting that this has caused the mother anxiety in the past, Order 19 is made in order to mitigate the mother’s anxiety to the indirect benefit of Y.
Order 20 is in unremarkable terms and seeks to shield Y from conflict between the parents.
OTHER ORDERS
Orders 4-9 are about information sharing and are in the same or similar terms to the Orders concerning X.
Order 13 is along the lines of the order for communication proposed by the ICL on 7 March 2023 in conjunction with the position whereby Y would be living with the father and not in a week about arrangement. The father agreed with the orders for electronic communication between Y and the mother. The order has been made such that it applies to both parents when Y is in their care.
Order 14 is essential to the effectiveness of the co-parenting relationship. It is unequivocal.
Order 1 dispenses with all outstanding applications including the mother’s application in proceeding dated 21 September 2022 (which was about adjourning the final hearing in November 2022) and the father’s contravention application dated 10 October 2022 (which was about the mother not moving Y to Adelaide and other interim orders). In the context of these final orders, there is no further work to be done in these applications that is in the best interests of X or Y.
Also in the context of these final orders the balance of the orders sought in the father’s Application in Proceeding dated 7 February 2023 and the orders sought by the mother in her Response to an Application in Proceeding dated 24 February 2023, are unnecessary, inappropriate or in the case of monetary payments and the possession of the dog Oscar, not available in these proceedings.
No order has been made with respect to international travel. It was an issue that was barely mentioned by the parties and there is no evidence that it is something contemplated by either parent. I note also the relatively advanced ages of the children. As such, any international travel and the obtaining of a passport will fall within the father’s exercise of parental responsibility.
Pursuant to s 60CA of the Act, and having had regard to all of the matters in s 60CC of the Act, I am satisfied that the final orders are in the best interests of Y.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 16 March 2023
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