Vandale & Cino
[2024] FedCFamC1F 876
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vandale & Cino [2024] FedCFamC1F 876
File number: WOC 529 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – PARENTING – Bests interest of the child – Where the child has speech delay and other developmental challenges – Where the parties have been in conflict over medical treatment and education – Where the parties have other children from previous relationships who have a close bond with the child – Where the child is regularly cared for by the paternal grandmother – Where the paternal grandmother’s health and capacity to care for the child is an issue in dispute – Where the father has not been frank in disclosing his availability to care for the child – Where there are allegations of family violence by both parties – Where the father has admitted to an act of physical violence against the mother – Where the father has misled authorities in respect to the mother’s mental health – Where the mother has had past mental health challenges and hospital admissions – Where a Single Expert Psychiatrist has found that the mother has no diagnoseable mental health condition – Where the father and paternal family have continued to disparage the mother in proceedings – Where the father has perpetrated coercive control against the mother – Mother granted sole parental responsibility – Child to live primarily with the mother – Father to spend three nights per fortnight with the child. Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 4, 43, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAB, 64B, 68B
Family Law Amendment Act 2023 (Cth)
Mental Health Act 2007 (NSW) s 20
Cases cited: A County Council v LW [2020] EWCOP 50
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
F v M [2021] EWFC 4
Khatri & Khatri [2024] FedCFamC1A 152
Re H-N (Children) (Allegations of Domestic Abuse) [2022] 1 WLR 2681
Division: Division 1 First Instance Number of paragraphs: 317 Date of hearing: 16–19 September 2024; 1 October 2024; 30 October 2024 Place: Sydney Counsel for the Applicant: Mrs Mooney SC Solicitor for the Applicant: Kells the Lawyers Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Hennikers Solicitors Counsel for the Independent Children’s Lawyer: Ms Edwards Solicitor for the Independent Children’s Lawyer: Venus & Smart ORDERS
WOC 529 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANDALE
Applicant
AND: MR CINO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother shall have sole decision-making in relation to all major long term issues relating to the care, welfare and development of the child X, born 2020, (“the child”), including but not limited to:
(a)Education of the child both current and future; and
(b)Health of the child.
2.The mother is to have responsibility for making decisions as to the child’s day to day care, welfare and development during periods when the child is spending time with her.
3.The father is to have responsibility for making decisions as to the child’s day to day care, welfare and development during periods when the child is spending time with him.
Time Arrangements and Primary Residence
4.The child shall live with the mother.
5.Unless otherwise agreed in writing, the child shall spend time with the father until the child commences Kindergarten as follows:
(a)In Week 1, from 5.00 pm on Friday to 8.30 am the following Monday.
(b)In Week 2, no time.
6.Unless otherwise agreed in writing, the child shall spend time with the father after the child commences Kindergarten:
(a)During the school term as follows:
(i)In Week 1, from the end of school on the Friday to the commencement of school on the Monday.
(ii)In Week 2, no time.
(b)During New South Wales gazetted school holidays as follows:
(i)The parents equally share the child’s care for the school holidays at the conclusions of terms 1, 2 and 3.
(ii)The parents adopt a week about arrangement for the child’s care for the school holidays at the conclusion of term 4 until she turns 6, after which she shall spend the first half of the school holidays in even numbered years with the father and the second half with the mother. In odd numbered years the child shall spend the first half of the school holidays with the mother and the second half with the father.
Special Occasions
7.From 2025, time in accordance with Orders 5 and 6 should be suspended during the Christmas period and the child spends time with the parents as follows:
(a)With the mother:
(i)From 2.00 pm Christmas Eve to 2.00 pm Christmas Day in even numbered years; and
(ii)From 2.00 pm on Christmas Day to 2.00 pm on Boxing Day in odd numbered years.
(b)With the father:
(i)From 2.00 pm Christmas Eve to 2.00 pm Christmas Day in odd numbered years; and
(ii)From 2.00 pm on Christmas Day to 2.00 pm on Boxing Day in even numbered years.
8.Unless otherwise agreed in writing, the child spend time with the mother on Mother’s Day from 5.00pm on Saturday prior to Mother’s Day until Monday 9.00am or the commencement of school, if the child is not already spending time with the mother.
9.Unless otherwise agreed in writing, the child spend time with the father on Father’s Day from 5.00pm on the Saturday prior to Father’s Day until Monday 9.00am or the commencement of school, if the child is not already spending time with the father.
Changeover
10.Each party ensure the child is ready to commence time with the other parent at changeover time, that is, that the child have a packed bag and is ready to leave forthwith upon the arrival of the other parent at changeover time, should that time be on a non-school day.
Communication with the Child
11.The child is to have liberal FaceTime contact with each parent to be initiated by the parent who is not with the child calling the other parent’s mobile phone or other nominated number as agreed between the parties and, failing agreement, at 6.00 pm each Wednesday and Sunday.
12.The mother shall facilitate the child having FaceTime contact with the paternal grandmother at any reasonable time requested by the child.
13.The child be at liberty to communicate with each parent at their request at all reasonable times and the parent that has care of the child shall take all reasonable steps to facilitate such communication.
School and Extra-Curricular Activities
14.The parents shall each be permitted to attend any of the child’s school or extracurricular events that parents would normally be invited to or expected to attend.
15.The parents be and are hereby authorised to provide a sealed copy of these orders and Judgment dated 19 December 2024 to:
(a)any school or educational facility upon which the child attends;
(b)New South Wales Police or any other law enforcement authority; and
(c)New South Wales Department of Communities and Justice or any other child protection government authority.
Child’s Medical Practice
16.Unless otherwise agreed in writing between the parties, the child shall attend upon the one medical practice namely, B Medical Practice, for all medical appointments, provided the practice is open and it is not an emergency.
International Travel
17.Each parent be permitted to remove the child from, or allow the child to travel outside of, the Commonwealth of Australia provided that:
(a)The travelling parent provides the other parent with at least 3 months written notice of their intention for the child to travel overseas, including providing the other parent with a travel itinerary and a contact phone number of the accommodation in which the child will be staying;
(b)Unless otherwise agreed, any overseas travel should occur during such periods that the child is in the travelling parent’s care pursuant to these orders;
(c)The travelling parent shall facilitate phone contact between the other parent and the child at the request of the other parent or the child not less than once every three days.
18.Within 7 days of a request made by either party and that party providing any necessary documentation to the other party, the other party shall sign all documents necessary and give all consents so as to apply for, and or renew, an Australian travel document (as defined in the Australian Passports Act2005 (Cth)) to issue for the child.
19.The mother hold the child’s Passport and in the event that the father is to travel overseas with the child, the mother shall provide to the father the passport at least 28 days prior to the date of departure and the father is to return the passport to the mother at the time that the child returns to the mother’s care after returning to the Commonwealth of Australia.
Communication Between the Parents
20.The mother and father will immediately notify each other in the event of an emergency involving the child including, but not limited to, the child suffering a serious illness or injury or being hospitalised while in their care.
21.The parents will use the Parenting App OurFamilyWizard or such other agreed Parenting App, for all non-urgent communication in relation to the child, and within 14 days of the date of these orders, both parents will register with that Parenting App.
22.The parties are to provide each other with at least 14 days’ notice prior to any change of address unless in the event of an emergency and, in that instance, as soon as practicable.
23.The parties are to provide each other with any changes to their telephone and email contact details within 48 hours of such change occurring.
Restraints
24.That pursuant to section 68B of the Family Law Act 1975 (Cth), the mother and father be restrained from:
(a)Discussing these proceedings with or in the presence of the child and from showing or allowing the child to access any court documents connected with these proceedings.
(b)Exposing the child to excessive conflict or violent behaviour.
Dispute Resolution
25.In the event of any dispute as to the interpretation, implementation or enforcement of these orders (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (“FDR”) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
Costs
26.Within 14 days of the date of these orders, the parties are at liberty to file written submissions, of no more than 3 pages, in respect to the question of costs.
Previous Consent Orders
27.Orders made by Deputy Chief Justice McClelland dated 14 October 2024 remain in force and are annexed to this judgment and marked “A”.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vandale & Cino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This judgment concerns parenting arrangements for X, born 2020, who is three years of age. X’s parents, Mr Cino and Ms Vandale, have been in conflict in respect to parenting arrangements for X since their separation in January 2022.
Both parties are shift workers and the interim orders in place, as at the date of the final hearing, divide X’s time with the parties on a nine-day cycle, which operates in accordance with the structure of the parties’ working rosters. Currently, X resides primarily with her father in Suburb C, NSW at her paternal grandmother’s home. The father’s two children from a previous relationship (Mr E aged 18 and F aged 16) also live at the paternal grandmother’s home. X spends three nights per nine-day cycle with her mother who lives in Town D with her parents and her two children from a previous relationship (G aged 12 and H aged 9). The mother has recently begun a new relationship with Mr J, who lives with the mother at her parent’s residence in Town D.
For reasons which I explain below, I have determined that the child should live with the mother and spend three nights per fortnight with the father. In doing so, I am satisfied that the mother has demonstrated stability in her mental health. She has actively sought support and has implemented strategies to maintain mental stability. I have determined that the mother’s proactive parenting best equips her to provide primary care for the child who has particular developmental challenges.
I have also allocated parental responsibility to the mother in circumstances where I have found that she has been the subject of family violence and is likely to be the subject of ongoing coercive and controlling behaviour by the father if she is forced to try and reach agreement with the father in respect to matters impacting upon X’s long-term welfare.
OVERVIEW OF THE PARTIES’ CONTENTIONS
The parties’ respective contentions can be broadly summarised as follows.
Residential arrangements
The mother seeks orders for X to live with her, arguing that she has demonstrated mental stability, capability, and a proactive approach to X’s specific needs, including adherence to advice from medical and allied health professionals.
The father, however, contends that X should primarily reside with him, citing her happiness and emotional security in his household (transcript 30 October 2024, p.568 lines 12–13 and p.569 line 22).
Mental health concerns
The mother acknowledges her past mental health challenges but asserts that she has addressed those challenges by engaging in consistent treatment. Since mid-2022 she has been in good health and is currently not suffering from any diagnosable mental health illness (transcript 30 October 2024, p.562 line 46 to p.563 line 8).
The father disputes this, suggesting that her history demonstrates that it is likely she may not cope with the stresses of being X’s primary carer. As such, he raises concerns about her future stability and ability to care for X (transcript 30 October 2024, p.573 line 45 to p.574 line 5).
Allegations of family violence
The mother accuses the father of engaging in coercive and controlling behaviour including acts of actual physical violence. This includes falsely informing authorities that the mother was suffering from various mental illnesses that she did not actually have (transcript 30 October 2024, p.559 lines 16–21).
The father conceded that he had perpetrated family violence in the form of physical violence against the mother.[1] However, he denies claims that he exerted coercive control by exploiting the past mental health struggles of the mother. He submits that he has been supportive in respect to the mother’s mental health challenges,[2] and has acted responsibly in providing background in respect to those challenges to various authorities.
[1] Transcript 30 October 2024, p.575 lines 24–29.
[2] Transcript 30 October 2024, p.575 lines 6–22.
Capacity to attend to X’s needs
The mother argues that she is better equipped to meet X’s specific needs and she accuses the father of being sceptical of medical advice and failing to provide necessary care for X.[3] The father denies these allegations and contends that the mother has “over medicalise[d]” X’s various health and developmental challenges.[4]
[3] Transcript 30 October 2024, p.555 lines 4–5.
[4] Family Report dated 31 October 2023, paragraph 38.
Parental responsibility
The mother seeks sole parental responsibility, citing her capacity to meet X’s needs and the parties’ inability to communicate effectively in regard to X’s needs (mother’s Case Outline Document filed on 9 September 2024, p.3).
The father argues for shared responsibility, emphasising the need for both parents’ input in decisions regarding X’s health and therapy (transcript 30 October 2024, p.570 lines 6–18).
Adequacy of living arrangements
The mother expresses concerns that X’s health and developmental needs would not be adequately met in the father’s household. She alleges that the father often leaves X in the care of his family members due to his work commitments and the mother holds a particular concern about the paternal grandmother being a primary carer due to her frailty and health (transcript 30 October 2024, p.550 lines 35–46).
The father argues that X’s living arrangements are satisfactory and that changing X’s living arrangements would be emotionally detrimental to X.
The position of the Independent Children’s Lawyer
Other than in respect to the issue of parental responsibility, which she contends should be equal shared parental responsibility, the Independent Children’s Lawyer (“ICL”) supports the mother’s position, noting her proactive care for X, more suitable accommodation for X and stable mental health.[5] The ICL also highlights concerns regarding the father’s ability to provide adequate care due to his work commitments and reliance on others for the care of X.[6]
[5] Transcript 30 October 2024, p.542 lines 29–33.
[6] Transcript 30 October 2024, p.542 lines 39–42.
BACKGROUND
The parties helpfully agreed to a joint chronology. Drawing upon that document, the relevant facts and factual contentions of the parties are set out below.
In 1944, the paternal grandmother, Ms K, was born. She is currently 80 years of age.
In 1973, the father was born. He is currently 51 years old. In 1989, the mother was born. She is currently 35 years old.
The father has three children by his first marriage being:
·Mr L, born in 2004;
·Mr E, born in 2006; and
·F, born in 2008.
The mother has two children from her first marriage, being:
·G, born in 2012; and
·H, born in 2015.
In 2015, the mother sustained an injury which lead to subsequent chronic pain issues and potentially leading to related issues associated with depression and anxiety (Expert Report of Dr M dated 4 September 2024, paragraphs 163–164).
In late 2017, the mother was first reviewed by Dr N, psychiatrist, whilst in hospital. Dr N subsequently became the mother’s treating psychiatrist.
On 11 July 2018, the mother attended Dr N for the first time for ongoing treatment in respect to what was diagnosed to be a major depressive disorder, post-traumatic stress disorder (“PTSD”) and chronic pain.
In early 2019, the mother was admitted to hospital with chronic pain and suicidal ideation.
In mid-2019, the parties commenced their relationship and the mother moved from her parents’ home in Town D to a rental property at O Street, Suburb P.
In mid-2019, the mother, who was pregnant at the time, became distressed with suicidal ideation and attended the father’s home. The father called the police.
In 2020, the parties’ child X was born and the mother commenced maternity leave. The father took eight weeks of leave to assist the mother.
In January 2021, the parties commenced living together at O Street, Suburb P. The father, who was and remains employed as a healthcare professional, was based in Town Q in New South Wales. Since the commencement of the parties’ relationship up to the final hearing, the father has worked in the Town Q area.
In April 2021, the mother entered into final parenting orders with her former husband regarding G and H. The agreement provides that the children spend time with each parent on an equal time basis.
In April 2021, the parties and the children moved into the father’s parents’ home located at R Street, Suburb C. The parties agree that this move was necessitated by the financial pressure of renting.
In May or June 2021, the mother returned to paid employment on a part-time basis as a public servant.
In June 2021, X commenced attending day care.
In mid-2021, a violent incident occurred between the parties, who have differing accounts of the incident. I will subsequently set out further details of that incident.
In mid-2021, the mother was admitted to hospital, at her instigation, with low mood, difficulty eating and sleeping.
In late 2021, a violent incident occurred between the parties, who have differing accounts of the incident. I will subsequently set out further details of that incident.
In September 2021, final property orders were made in respect of the proceedings between the mother and her former husband. The orders provided for, inter alia, a transfer to the mother of S Street, Suburb C (“the S Street home”).
In December 2021, the father called police who attended the paternal grandparents’ home. The father advised he was not allowing the mother back into the home until she calmed down.
On 5 January 2022, the mother started moving into the S Street home. The parties do not agree whether the father told the mother he was not moving with her. At the time, the mother was moving into the S Street home, X stayed with her paternal aunt, Ms T.
On 6 January 2022, the parties separated at the father’s instigation. The father insists that he had previously advised the mother of this possibility.[7] The mother contends that it came as a complete surprise to her.[8]
[7] Father’s affidavit filed on 2 August 2024, paragraph 79.
[8] Mother’s affidavit filed on 7 August 2024, paragraph 49.
On 7 January 2022, the mother unsuccessfully sought police assistance in having X returned to her from the paternal aunt.
In early 2022, an incident occurred between the parties. The mother was emotional and dysregulated with suicidal ideation. According to records from NSW Police, which were made Exhibit M19 in the proceedings, the father drove the mother to the police station, the mother was handcuffed, sedated and transported to hospital with police escorting the ambulance pursuant to s 20 of the Mental Health Act 2007 (NSW). I will subsequently set out further details of that incident.
On the following day, the mother was discharged from hospital.
In February 2022, the parties had an argument in the father’s car. The father drove to the police station. The mother exited the car on another street. The circumstances surrounding the incident are disputed. The mother collected X from the paternal grandmother’s residence later in day. The father called the police, who spoke to both parties.
In March 2022, police attended the mother’s home after being called by the father. The father reported to the police that the mother was struggling mentally and refusing to leave her car.
From March to April 2022, the mother undertook an eight week dialectical behaviour therapy course at the suggestion of her psychologist.
In April 2022, the mother contacted the police in distress about care arrangements for X and retrieving her possessions from the paternal grandmother’s home.
Between early 2022 and mid-2022, the paternal grandfather was admitted to hospital and transitioned to a care facility.
In May 2022 the parties had a conflict, over X’s pram, at changeover. The mother made a complaint to the police.
On 3 May 2022, the parties attended mediation and reached an agreement for X to spend four days with the mother for eight and a half hours per day in a nine-day rotation.
On 17 May 2022, the mother initiated these proceedings.
In June 2022, the mother contacted the police with concerns about X being unsafe near an open window.
On 27 June 2022, interim parenting orders were made by consent. Those orders provided for X to live with the mother and spend two nights and five days in each nine-night cycle with the father.
In mid-2022, the paternal grandmother attended hospital with chronic pain.
In mid-2022, X had surgery at U Hospital.
On the following day, X became unwell post-discharge and returned to hospital where she remained until being discharged two days later.
On the following day, X again became unwell post discharge and returned to hospital where she remained until being discharged two days later.
On 5 August 2022, interim parenting orders were made by Senior Judicial Registrar Jenkinson following a defended hearing. Those orders provided, inter alia, for X to live with the father and spend three nights and four days in each nine-day cycle with the mother. The mother unsuccessfully sought a review of these interim orders.
On 9 August 2022, a letter was provided by the mother’s psychiatrist, Dr N, confirming that the mother had no diagnosis of borderline personality disorder or bipolar disorder.
On 1 November 2022, the father sent the mother a text declining to assist in daycare costs.
Records of Dr N in respect to the period between 22 November 2022 to 25 January 2024 state his assessment is that the mother has no current diagnosis with no medications or therapy recommended.
In January 2023, X hurt herself on play equipment suffering fractures.
A few days later, X attended hospital with a vomiting episode.
A few days later, X attended hospital to have the back slab on her plaster changed.
On 16 January 2023, the Child Impact Report was released to the parties.
In January 2023, X attended hospital to have a cast fitted. The mother advised the father that she was likely to be late to changeover. The father referred the matter to the police.
On 25 January 2023, the father sent a text message to the mother declining to assist in daycare costs.
In February 2023, the father takes X to her general practitioner as the mother was concerned about a rash. The general practitioner advised that the rash was resolved.
In February 2023, an appointment was made for X’s cast to be removed. The father left the premises with X prior to the cast being removed. The mother rebooks and facilitates the cast removal later in February 2023.
In early 2023, the mother commenced a personal relationship with Mr J.
In March 2023, X commenced speech therapy at V Family Services.
In early 2023, the paternal grandmother attends hospital after becoming unwell.
In mid-2023, the mother completes a “Learn to Live Again” course and in 2023 also completes “Bringing Up Great Kids” and “Circle of Security” courses through W Services.
In July 2023, X commences individual speech therapy through Y Services.
On 3 November 2023, the Family Report was released to the parties.
In November 2023, X was diagnosed with a medical disorder at Y Services by Ms Z who invited the parties to apply for National Disability Insurance Scheme (“NDIS”) assistance.
In December 2023, X attended hospital with the father where she was diagnosed with an ear infection and prescribed antibiotics.
Later in December 2023, X attended hospital with the father for assessment.
On 25 December 2023, the father advised the mother by text he was ceasing administering antibiotics to X.
In late December 2023, X attended a general practitioner with her mother. X was diagnosed as having an ear and tonsil infection and prescribed antibiotics. The parties have ongoing differences of opinion over administering antibiotics.
In mid-January 2024, the father agrees to X attending AA Daycare for one day a week increasing to two days a week in June 2024.
In January 2024, X attended her general practitioner with the mother who advised the mother that the child’s infection had spread to her nose. A prescription was given for topical antibiotic cream and a further prescription for antibiotics.
On 12 February 2024, X was assessed by a BB Disability Services case worker at the mother’s home with a further assessment on 19 February 2024.
In March 2024 , the mother and Mr J commence cohabitation.
On 18 March 2024, the child’s speech pathologist, Ms Z, emails the parties and recommends X see a learning and developmental paediatrician.
In June 2024, X has appointments with both Dr CC, paediatrician, and Dr DD, her ear, nose and throat specialist.
In mid-2024, the mother sells the S Street home. The mother and her children, with Mr J, move into the maternal grandparents’ home. The mother and Mr J commence building a home at EE Street, Town D.
On 27 June 2024, X’s speech therapy moves from fortnightly to weekly.
In July 2024, the father of the mother’s eldest daughters made an application to the Court to vary the final parenting orders for G and H.
On 24 July 2024, a letter was provided from Dr CC to the parties advising that she was referring X for an autism assessment and that she is “considering possible language disorder, autism spectrum disorder, and the impact of complex life experiences” (Annexure “[MV]-33” of the mother’s affidavit filed on 7 August 2024).
On 9 September 2024, the Single Expert’s Report of Dr M, psychiatrist, was released to the parties. Dr M’s report provided, inter alia, a psychiatric assessment of whether the mother was currently suffering from a mental illness, disorder or other mental health problems and if so, the severity of any illness or disorder and its potential impact on her functioning.
The final hearing of the matter commenced on 16 September 2024.
On 14 October 2024, the parties agreed to final orders in respect to spend time arrangements for Christmas 2024, special days, changeover, non-denigration orders and obtaining relevant information concerning the child. A copy of those orders are annexed and marked “A” to these reasons. The parties agree those orders should be included in the final published orders so that the parties have the benefit of one document setting out all parenting orders.
Currently X spends approximately 40 per cent of time in her mother’s care and the remaining 60 per cent of time is split between the father, the paternal grandmother and occasionally the paternal aunt. The paternal grandmother plays a significant role in X’s care as a result of the father working as a healthcare professional in Town Q which requires him to stay away overnight when he is rostered for work or is on standby.[9] It was accepted that the paternal aunt is also involved in X’s care including accompanying the paternal grandmother and X to changeover when the father is not available,[10] and also taking X on outings with her own granddaughter of the same age a couple of times a week.[11]
[9] Father’s affidavit filed on 1 August 2024, paragraph 104. See also transcript 18 September 2024, p.302 lines 20–23.
[10] Transcript 1 October 2024, p.508 lines 12–13.
[11] Paternal aunt’s affidavit filed on 10 July 2024, paragraph 10.
The father attested to intending to continue living in the paternal grandmother’s home. The mother and her current partner, Mr J, are building a six bedroom home in Town FF which is a relatively short distance from the home of the paternal grandmother. The home is scheduled for completion in mid-2025.
DOCUMENTS RELIED UPON
The applicant mother relied upon the following documents:
(a)Case Outline Document filed 9 September 2024;
(b)Further Amended Initiating Application filed 7 August 2024;
(c)Affidavit of the mother filed 7 August 2024;
(d)Affidavit of the maternal grandfather filed 1 August 2024; and
(e)Affidavit of the maternal grandmother filed 7 August 2024.
The respondent father relies upon the following documents:
(a)Case Outline Document filed 13 September 2024;
(b)Amended Response to Initiating Application filed 2 August 2024;
(c)Affidavit of the father filed 2 August 2024;
(d)Notice of Child Abuse Family Violence or Risk filed 8 November 2023;
(e)Affidavit of the paternal aunt filed 8 July 2024; and
(f)Affidavit of the paternal grandmother filed 2 August 2022.
The ICL relies upon the following documents:
(a)Family Report of Dr GG dated 31 October 2023; and
(b)Single Expert Report of Dr M dated 4 September 2024.
OUTLINE OF THE PARTIES’ SUBMISSIONS
The mother
The mother argues that orders should be made for X to live with her rather than the father. In doing so, the mother acknowledges that she has had past mental health challenges but refers to evidence from her own treating psychiatrist and the single expert psychiatrist indicating that her past challenges have been acknowledged, that she has consistently sought mental health support where required,[12] and that she no longer has any diagnoseable mental health conditions.[13] The mother contends that she has set in place strategies to maintain sound mental health including ongoing consultation with her treating professionals.[14] The mother highlights her own stability and capability as a mother, emphasising her successful career as a public servant, which demonstrates her ability to handle high-stress situations effectively.[15] She has consistently sought mental health support and has been assessed as suitable for parenting, countering the father’s claims that her mental health issues impede her ability to care for X.
[12] Affidavit of the mother filed 7 August 2024, paragraph 199.
[13] See Expert Report of Dr M dated 4 September 2024, paragraph 166.1.
[14] Transcript 17 September 2024, p.123 lines 38–43.
[15] Mother’s affidavit filed 7 August 2024, paragraphs 222–223
In contrast, the mother contends that the Court would have serious concerns about the father’s behaviour, including that:
·The father has engaged in systematic portrayal of the mother and her family as unsafe and unwell,[16] including making baseless allegations against the maternal grandfather that he perpetrated child abuse against the mother.[17]
·The father has sought to manipulate authorities by making false statements to law enforcement and child protection authorities that the mother has borderline personality disorder and bipolar disorder (transcript 30 October 2024, p.559 lines 19–34).
·The father has engaged in a pattern of coercive and controlling behaviour including acts of physical violence. In that regard, it is contended that the father’s past conduct raises a risk of it continuing with a new partner and that the child will be affected by such conduct (transcript 30 October 2024, p.555 lines 33–44).
[16] Transcript 30 October 2024, p.559 lines 16–20.
[17] Transcript 30 October 2024, p.560 lines 10–16.
Additionally, the mother contends that the Court should have regard to each of the parties’ capacity to support X who has specific needs relating to speech delay and potentially learning delay. The mother contends that she follows medical advice while the father is often sceptical and attempts to second-guess that advice. This is evidenced, the mother contends, by the father’s failure to consistently provide prescribed medications to the child and take her to therapies. As a result, the mother contends the Court would be concerned about the father’s ability to meet X care requirements in the future (transcript 30 October 2024, p.555 lines 29‑31).
The mother is seeking orders for the child to live with her and spend time with the father starting with two nights per fortnight and then gradually increasing once X is school-aged, to three nights per fortnight with all the time to occur in one week and no time in the second week. The mother also sets out gradually increasing school holiday time with the father as X gets older eventually progressing to a week about arrangement. Her reasons for doing so are, by way of summary:
·Given the child’s developmental challenges, there is a need for a stable base so that her medical and psychological needs can be attended to.
·The mother has demonstrated diligence and reliability of care to the child and adherence to medical and therapeutic advice. The mother has been proactive in arranging care for the child through the NDIS. The mother contends the Court would have concerns that those needs will be met if she lives primarily in the father’s household.
·Orders providing for the child to spend a greater amount of time with the father would expose X to negative attitudes towards the mother and the broader maternal family if she remains in the father’s household.[18]
[18] Transcript 19 September 2024, p.374 lines 12–15. See also transcript 30 October 2024, p.565 line 44 to p.566 line 18.
The mother contends that the Court would be concerned about the child continuing to live primarily with the father, for the following reasons:
·The father may not comply with medical and therapy advice.
·The father lacked candour in identifying the number of nights he would spend away from X during periods he is rostered to work as a healthcare professional and the extent to which X would be left in the care of the 80-year-old paternal grandmother (transcript 18 September 2024, p.224 line 42 to p.225 line 4).
·The paternal grandmother lacked candour in advising the Court about her health challenges (transcript 30 October 2024, p.551 lines 12–22).
The mother contended that the focus of court orders should be upon providing a stable, loving and supportive space for X to address her specific needs such that she is in the best possible position to be ready for school commencing in 2026 (transcript 30 October 2024, p.598 lines 27–31).
Finally, the mother contends that the Court would find that the impact of coercive and controlling conduct to which she has been subjected is such that the Court would not make orders for equal shared parental responsibility.[19] She also contends that sole parental responsibility for all matters is appropriate in circumstances where the parties are “essentially exhausted in an attempt to do it together” noting the conflict and distrust between the parties.[20] The mother maintains this view despite the father changing his mind on parental responsibility by the conclusion of the final hearing. She contends that parental responsibility should be granted to her in circumstances where she has shown greater responsibility in respect to meeting the child’s needs and will be, in the event of her submissions being accepted, the parent with whom the child will primarily live.
[19] Transcript 30 October 2024, p.550 lines 4–9.
[20] Transcript 16 September 2024, p.7 lines 4–6.
The father
After considering the evidence presented in this case, the father amended his application on the final day, such that the child would spend five nights per fortnight with the mother. That concession, it is contended, demonstrates insight on his part and that he is appropriately child focused in his approach to parenting arrangements (transcript 30 October 2024, p.573 lines 10‑13).
In having regard to Dr M’s report, the father accepts that the mother does not currently have a mental health diagnosis. However, in accepting that the mother does not suffer from mental illness currently, the father contends “that is not to say that the mother’s mental health issues … can simply be dissolved by [Dr M’s] positive report” (transcript 30 October 2024, p.573 lines 35–38).
The father denies that he acted out of malice in advising law enforcement,[21] and potentially hospital staff that the mother has a borderline personality disorder. The father does not dispute that such a statement was made but rather that he advised relevant police officers and potentially hospital staff, that he had been informed by the mother’s treating psychologist that she had such a disorder. The father acknowledges that he advised police officers that the mother also had bipolar disorder but contends that he misspoke in so advising them and regrets that it appears the information was recorded by police officers.
[21] Transcript 18 September 2024, p.283 lines 28–36.
The father was uncertain as to whether he told treating mental health professionals that the mother was bipolar himself, noting in cross-examination that he could not say for certain that he did not say this, or if his miscommunication to police officers was carried over to hospital records when the mother was admitted for treatment. [22] The father also denies that he made reports to child protection authorities that the mother was mentally ill and suffering from Munchausen syndrome by proxy in July 2024 as recorded in an anonymised complaint to the Department of Communities and Justice, which formed Exhibit ICL 2 in these proceedings.[23]
[22] Transcript 18 September 2024, p.290 line 15 to p.292 line 25.
[23] Transcript 19 September 2024, p.432 lines 14–36.
The father contends, however, that while the mother is not currently taking psychotropic medications, her past history of mental health challenges extending as early as 2017 raises a risk of recurrence. In that respect, it is contended that the mother has admitted to ongoing anxiety and stress including taking medication immediately before the court case to deal with the stress of litigation. It is contended that the Court would be concerned about the mother suffering future stresses associated with:
·Building a new home and moving into it;
·Developing her relatively new relationship with Mr J and facing the decision of potentially having children with him; and
·Confronting the challenges that X will experience in the event of there being a change in her living arrangements.
The father acknowledged, both in the witness box and through his counsel, that he engaged in an act of physical violence against the mother, when he dragged the mother by her arms and then her legs to remove her from the household and locked her out. The father also acknowledges that there were two other occasions when the mother was locked out of the family home. He claimed, however, that his actions were in response to the mother’s agitated behaviour and that his actions were protective of other members of the family.
The father contends that the mother’s criticism of the father engaging in coercive and controlling conduct is inconsistent with statements she made to the father, including by way of text and email, wanting to maintain her relationship with the father including the mother encouraging sexual relations with the father after separation (transcript 30 October 2024, p.571 lines 11–17).
As previously stated, the father contends that it would be contrary to the interests of X for her living arrangements to be substantially changed. This is in circumstances where X has lived with the paternal family for most of her life, she has been described as happy, bubbly, and bright. This, the father contends, reflects positively on the current living arrangements and her sense of emotional security in those arrangements.
The father contends that a significant change in the child’s current living arrangements would be emotionally difficult for her and there is no justification for causing that to occur.
The father contends that the level of care that he can provide to the child living in his household is comparable to that of the mother noting that they both work on nine-day shift cycles. The father contends that even if he is away from home on the evening prior to commencing a shift, he would leave home after the child is in bed thereby limiting the impact of his absence on the child (transcript 30 October 2024, p.568 lines 28–31).
The Court would be satisfied that even on those occasions where he is absent, the child is well cared for by the paternal grandmother and the paternal aunt, where required.
The father denies that he has been neglectful of the child’s health needs but that he legitimately raised concerns about the frequency with which the child had been prescribed antibiotics. He contends that the questioning of medical advice in those circumstances is not inappropriate but rather, demonstrates appropriate concern for the child’s welfare.
The father contends that the Court would have a number of concerns regarding the support the mother would receive from the broader maternal family. He contends that her parents have tended to gloss over the mother’s mental health challenges including characterisation of her hospital admissions as “respite” rather than acknowledging they have been for the purpose of treating the mother’s mental health (transcript 30 October 2024, p.582 line 44 to p.583 line 4). From the reverse perspective, he contends that the maternal family have deliberately magnified issues of concern relating to the child living arrangement and standard of care that she receives by the father, paternal grandmother and paternal aunt while living in the paternal home.
The father contends that the Court would question the reliability of Mr J’s evidence in circumstances where he provided uncritical support of the mother’s perspective even where aspects were implausible. He further contends that the Court would be concerned about his lack of experience with children, having been an only child and having never lived with children. The father did concede during cross-examination that despite having limited contact with Mr J, the father thinks “he actually has an open, positive personality or personal approach with [X] and the girls … I think he’s a good bloke” (transcript 19 September 2024, p.424 lines 3–5).
The father agrees that it is appropriate that orders provide for X to spend time with her younger sisters every second Christmas Day.
The father contends that in the event of orders being made for the child to live primarily with the mother then the parties should share parental responsibility. This is in the context where it is acknowledged that X has complex health issues and both parents have health-related training. The father contends that the child would benefit from multiple perspectives in future decision-making in respect to the child’s health and ongoing therapy (transcript 30 October 2024, p.583 lines 39–45).
The ICL
The ICL noted that the parties’ relationship was characterised by high conflict. This was in circumstances where, during the COVID-19 pandemic, they were living in the home of the paternal grandmother where the living conditions were notably crowded. The tension was exacerbated by the fact that the paternal grandfather was increasingly suffering with dementia and there were tensions regarding the equitable sharing of the workload in the home. The ICL noted that both parties acknowledged they were also under financial pressure at the relevant time.
The ICL observed that both parents tended to adopt rigid positions regarding X and often engaged in conflict that would appear petty and unnecessary to outsiders.
The ICL contended that the evidence is such that the Court is able to find that the father has been the primary perpetrator of family violence including engaging in a pattern of coercive and controlling behaviour.
The ICL contended that the Court would find that the mother is proactive in her care for X. Comparatively, the ICL contended that there are concerns regarding aspects of the father’s care, including:
·The father is required to rely on others to provide care for X in circumstances where he spends a number of nights each month away due to his work commitments;
·The father’s lack of honesty about the amount of time he spent away from home;
·The father gave unsatisfactory evidence regarding the sleeping arrangements of the child in the father’s household.
The ICL contended that this matter is not suitable for an equal time arrangement due to misaligned parenting styles and poor communication. The ICL contends that the child should live primarily with the mother for the following reasons:
·The mother’s mental health is stable;
·The mother and her new partner and children will be moving into new accommodation in the middle of next year which will be very suitable for all children, including X;
·The mother appears attuned to X’s needs;
·X’s sisters in the home of the mother are closer in age to X and, in that context, are likely to more closely engage with X including engaging in common play activities;
·The mother appears to be well supported by her new partner, Mr J; and
·The mother has a high standard of presentation for herself and her children which can be to X’s advantage.
The ICL acknowledged that there is the potential for X to experience a level of distress resulting from the change in her primary place of residence, however she noted that X appears to have a level of resilience in adapting to changing parenting arrangements (transcript 30 October 2024, p.544 lines 22–26). This is confirmed, it is contended, from evidence from preschool notes that suggest X has the ability to adapt to receiving and providing affection and support from her care givers whether it is the mother or the father.
The ICL contends that an appropriate spend time regime would be that which results in X living with the mother and spending five nights with the father. A significant consideration in the ICL advocating for that amount of time was the importance of X maintaining her relationship with her older siblings on her father’s side, Mr E and F.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Parenting proceedings are to be determined in the context of two objects set out in s 60B of the Family Law Act 1975 (Cth) (“the Act”). They are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
[Note omitted]
Additionally, when exercising jurisdiction under the Act the Court is required to have regard to a number of principles set out in s 43(1), which relevantly, in respect to parenting proceedings, includes:
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure protection from family violence;
In Bielen & Kozma (2022) FLC 94-123, the Full Court stated at [30] that: “the welfare of the child necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being”.
Applications for final parenting orders must be determined with the paramount consideration of the children’s best interests pursuant to s 60CA of the Act. The Act provides guidance as to the matters that the court must consider in determining what orders are in the best interests of the child. These are set out in s 60CC(2) of the Act and are set out below:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering s 60CC(2A) of the Act, the Court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
CREDIT
The mother
There were aspects of the mother’s evidence that were exaggerated; however, I am satisfied that, overall, the mother was an honest witness. She gave her answers in clear and responsive terms. The answers that the mother provided to questions during cross-examination were internally consistent with other answers, her affidavit evidence and other documents tendered during the course of the proceedings.
She maintained her dignity and composure throughout the proceedings despite being questioned in respect to sensitive issues including the nature of her sexual relationship with the father and being asked to recall the nature of previous suicidal ideation.
Relevantly, in circumstances where the state of her mental health is a significant issue in the proceedings and one that is relied upon by the father in contending that the child should live predominantly with him, the mother gave evidence that she had obtained a non-ongoing prescription for medication in the week prior to the hearing in order to address anxiety that she was experiencing due to the impending litigation. The mother made this concession even though it was adverse to her interests. This included an acknowledgement that she had taken a tablet on the evening prior to the hearing. The mother also readily admitted that prior to and during the course of the parties’ relationship there had been times where she was emotionally dysregulated and was not coping. This included times where she would yell due to feeling overwhelmed, exhausted and burned out.
The mother readily conceded that on those occasions where she experienced acute mental health episodes, which will be subsequently referred to in this decision, her behaviour was inappropriate on those particular occasions.
The mother also appropriately conceded that the child has a happy and loving relationship with the paternal grandmother and other members of the paternal family. In that context, the mother also acknowledged that the parental grandmother is a very important carer of the child and that the child also has a loving relationship with her siblings on her father’s side, Mr E and F.
The father
Comparatively, the father was a poor witness. His answers were, at times, unnecessarily long‑winded and frequently failed to respond directly to the question that had been asked of him. There were occasions where the father actually reframed the question being asked of him to give the response that he wanted to give.[24] For instance, in respect to a significant issue that subsequently caused the mother considerable prejudice, the father was asked whether he falsely advised police who attended an incident in early 2022, that the mother had been diagnosed with bipolar disorder. The father prevaricated in his response as to whether he so advised the police and proceeded to ask himself several questions: “What I mean by that is, did I say it more than once? Did I get confused more than once, because once I had said it once, it was in my head? I quite possibly may have”.[25] For reasons which I subsequently explain, I am satisfied that the father deliberately and falsely gave that advice to the police which can reasonably be inferred to have influenced their decision to chemically restrain the mother on that evening. That information was also communicated to nursing staff when the mother was admitted, after she was chemically restrained.
[24] Transcript 18 September 2024, pp.280, 284 and 292.
[25] Transcript 18 September 2024, p.292 lines 23–25
There were many instances where the father delayed responding to questions, including when asked whether he photographed and filmed the mother at a changeover that occurred on 1 May 2022. The following passage reveals how the father initially gave clear and concise answers denying the mothers allegations:
[SENIOR COUNSEL FOR THE MOTHER:] And you did film her on that occasion, didn’t you?
[THE FATHER:] No.
[SENIOR COUNSEL FOR THE MOTHER:] So she’s not telling the truth there?
[THE FATHER:] That’s correct.
[SENIOR COUNSEL FOR THE MOTHER:] All right, were you taking photos?
[THE FATHER:] No.
[SENIOR COUNSEL FOR THE MOTHER:] You weren’t even taking photos?
[THE FATHER:] No.
(Transcript 18 September 2024, p.231 lines 19–25)
After being shown a photograph that the father actually sent the mother at that changeover, the father recanted in respect to his evidence but only after a considerable pause.[26] I am satisfied that the pause was not for the purpose of enabling him to give a considered answer to satisfy the Court but rather, for the father to work out how he was going to get himself out of the hole that he had dug for himself.
[26] Transcript 18 September 2024, p.244 lines 15–37.
Despite being shown a text message in which he stated that he had also been filming the mother, the father maintained his denial that he had done so. In that respect, he claimed that his reference to the video footage was actually about footage retained by the particular supermarket. However, that explanation is clearly implausible. The father maintained that untruth in response to direct questioning from myself where the father acknowledged that he had never been into the security room of the supermarket and therefore could not have known what particular video footage they had obtained or retained. I do not accept the father’s denials that he both photographed and filmed the mother on that occasion. His actions in recording the mother was part of a pattern of coercive and controlling behaviour to which I will subsequently refer.
I prefer the evidence of the mother in respect to significant acts of physical violence perpetrated by the father upon her in circumstances where the father’s evidence was confused and inconsistent. The mother attested that at approximately 5.15 pm on an afternoon in mid-2021, she became distressed during the course of an argument. She states this was exacerbated by the father repeatedly touching her face despite her requests for him to stop. The mother contends that the argument escalated when she refused to leave the premises in accordance with the father’s request for her to do so. The father then dragged her out of the house and left her on concrete outside. The mother attested to being left outside for approximately two hours and was denied entry into the home despite it being a cold winter’s night and whilst seeking access to the bathroom, including, to take steps to address a heavy period that she was experiencing on the evening. Curiously, the father recalled that the temperature on the evening was 13 degrees Celsius but had difficulty recalling details of what he told police that evening including if he repeatedly touched her face or if he “had to use physical force to walk her out of the premises” (transcript 18 September 2024, p.257 line 3 to p.258 line 13).
The father’s credibility in respect to this issue is undermined by the fact that, based on the police records, he advised attending police officers that he had to use physical force to walk the mother out of the premises.[27] He told the family report writer that he physically picked up the mother and locked her outside on occasion to de-escalate or contain the mother’s behaviour.[28] However, under cross-examination from senior counsel for the mother, the father conceded that “I actually dragged [the mother] out”.[29]
[27] Exhibit M19, p.36.
[28] Family Report dated 31 October 2023, paragraph 30.
[29] Transcript 18 September 2024, p.258 lines 19–20.
The father subsequently attempted to withdraw from that concession with responses to questions from senior counsel for the mother as follows:
[SENIOR COUNSEL FOR THE MOTHER:] Okay. I will try the question one more time. I know it’s hard to remember things in the heat of the moment … but did you grab her, either by the ankles or the legs, while she was on her back, and dragged her up the hallway?
[THE FATHER:] Up the hallway? No.
[SENIOR COUNSEL FOR THE MOTHER:] Did you drag her at any stage, by the legs or the ankles, while she was on her back?
[THE FATHER:] I don’t recall doing that.
(Transcript 18 September 2024, p.269 lines 8–15)
The father’s non-responsive answers continued as follows:
[SENIOR COUNSEL FOR THE MOTHER:] All right. So you know she was being dragged whilst on her back, but you said … She was on the ground.
[THE FATHER:] Yes.
[SENIOR COUNSEL FOR THE MOTHER:] But she was on her back, yes?
[THE FATHER:] On her back?
[SEINOR COUNSEL FOR THE MOTHER:] Or was she on her stomach?
[THE FATHER:] I don’t recall the positioning. I just took her outside, because she was a threat.
[SENIOR COUNSEL FOR THE MOTHER:] She was either on her back or her stomach, you’ve got to remember?
[THE FATHER:] Why do I have to remember?
[SENIOR COUNEL FOR THE MOTHER:] Because you must have this recollection of such a momentous event. You were dragging a woman who was on the ground, out of your house, either by the arms or the legs, you can’t remember. Was she on her stomach, or on her back, or on her side?
[THE FATHER:] My concern was to remove the threat.
(Transcript 18 September 2024, p.270 lines 7–21)
After an exchange with counsel for the father, I sought clarification of the issue directly from the witness and he conceded that, at some point during the incident of mid-2021, the mother was lying on her stomach, her back or her side and he dragged her out of the house.
I prefer the mother’s account of the events that occurred on that evening in circumstances where she had a clear recollection of events, and the father had a poor recollection of events and prevaricated in response to direct questions from counsel. In so accepting the mother’s evidence, I also accept that, at some point during the physical encounter, the father pulled the mother’s jumper off. I also accept the mother’s version of the events that it was extremely cold on the evening, she was outside without a jumper, she was experiencing a heavy period that was bleeding onto her clothes, and that she was denied access to the home to go to the toilet so that she could attend to her hygiene needs. She remained locked out of the home for approximately two hours albeit, during that time the maternal father came to provide some support to her and eventually take her to the home of the maternal grandparents after the police attended.
I note that the act of physical violence occurred in the context of the father engaging in controlling behaviour in physically locking the mother out of the house until she engaged in behaviour that he found acceptable. The father’s protestations as to the mother presenting a risk to himself or any other person in the household lacks substance in circumstances where the father is a large, solidly built man and acknowledged his capacity to manhandle the mother by either physically carrying her out of the house or dragging her out of the house.
Another physical altercation occurred in late 2021 in the course of the parties arguing about how the father was interacting with the mother’s two older daughters, H and G. The mother attested to attempting to gain entry to the parties’ bedroom to gather some belongings to leave the house but she was prevented from doing so by the father opening a chest of drawers, which obstructed the door opening. She submits that the father placed his weight against the door, jamming her arm in the door. The mother further attested to the father then physically removing both herself and her two older daughters from the house by their arms.
The father did not dispute the fact that the mother had been locked out of the house but denied that the children had been locked out of the house. The father acknowledged that the children were distressed. He stated that “they were asking me to go outside to [Ms Vandale]. And I opened the door up for them, and they walked outside to [Ms Vandale]”.[30] When I asked him why the children were distressed in circumstances where he conceded they could readily open the sliding door, the father stated that at the time they approached him, he was standing at the door and obstructing their exit until he got out of the way.[31]
[30] Transcript 18 September 2024, p.277 lines 24–26.
[31] Transcript 18 September 2024, p.277 lines 34–43.
After subsequently being shown a text message responding to the mother’s complaint about herself and her two older daughters being locked outside in the rain, the father stated “if the girls want to come in, they can”. The father acknowledged that the mother was locked outside and her two eldest daughters were with her. The father was unresponsive to the mother’s counsel’s question as to how G could re-enter the home if the mother could not and the father was standing at the door. The father stated: “she was willing to stay out there … I get the fact that it was not a good situation for the kids, and it was not a good situation overall”.[32]
[32] Transcript 18 September 2024, p.278 lines 38–40.
The father maintained his denial however that he had forcibly removed either the mother or her daughters from the house. His response to a question from senior counsel highlights the implausibility of the father’s account.
[SENIOR COUNSEL FOR THE MOTHER:] I put it to you that they wanted to be with her because she was upset and distressed, needed consoling because she had been chucked out of the house forcibly by you?
[THE FATHER:] I did not forcibly remove her outside. I had run outside, she had run after me, and I ran around in circles and then ran back inside and closed the door.
(Transcript 18 September 2024, p.279 lines 17–20)
It was, with respect, the father who was running around in circles in the evidence that he gave in respect to this issue. As a result of the implausibility of the father’s account of events, I accept the mother’s evidence. In doing so, I have noted the mother to be a witness of truth. Further, her account of being locked outside with her two eldest daughters is corroborated by a text message exchange between the parties. I also accept her evidence that the father again denied her access to the bathroom, responding to her request to do so with a text message saying “you need to calm down and stop” and then advising her that he would block her.[33] I regard the mother to be a witness of truth and I accept she sustained injuries to her arm as a result of being jammed in the door when the father placed his weight against the other side of the door.
[33] Annexure “[MV]-5” to the mother’s affidavit filed on 7 August 2024.
As a result of the father’s dishonesty in respect to the three events to which I have referred and the general manner in which he responded to questions, other than in one respect, I prefer the evidence of the mother where it is in conflict to that of the father. The one exception to that finding is in respect to the mother’s assertion that she was under the duress of the father to have sex with him in the period subsequent to their separation. That finding would amount to finding the father engaged in a serious criminal act. The mother’s evidence is not sufficiently precise for me to be satisfied that the father engaged in that conduct in accordance with the standard set out in s 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”).
As a related issue, I am not satisfied to that standard that the father forced the mother to send text messages to him indicating a willingness to engage in sex to absolve him of any alleged sexual misconduct. In indicating that the mother’s evidence is not such that I am satisfied to the requisite standard that she was forced to have sex under duress, I stress that I do not find the mother to be dishonest in her perception that by engaging in such acts there were greater prospects of reconciling with the father and, consequently, X being restored to her primary care.
BEST INTERESTS CONSIDERATIONS
Family violence
Neither party contends that the child is at risk of being exposed to physical violence in the care of either party irrespective of what parenting orders are made by the Court.
For reasons that I have earlier explained, I have found that the mother was the victim of actual physical violence perpetrated by the father on two occasions. That violence occurred in the course of the father engaging in coercive and controlling conduct directed towards the mother. In that respect, I have earlier referred to the multiple occasions where the father removed the mother from the home in which they were living in order to regulate her behaviour.
Additionally, I accept the mother’s evidence that the father has engaged in a pattern of coercive and controlling conduct directed at the mother. In so finding, I respectfully adopt the analysis of Hayden J in F v M [2021] EWFC 4 at [4] (“F v M”) that:
… ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation …[34]
[34] The analysis of Hayden J has been adopted and applied by the England and Wales Court of Appeal in Re H-N (Children) (Allegations of Domestic Abuse) [2022] 1 WLR 2681 at [29] (“Re H-N”).
I also respectfully adopt and apply his Honour’s observation that “[a]busive behaviour of this kind will often be tailored to the individual circumstances of those involved”.[35]
[35] F v M at [61], citing A County Council v LW [2020] EWCOP 50 at [22].
In this case, for reasons which I explain, I am satisfied that the father used the mother’s past history of mental health challenges to undermine her confidence and corrode her sense of personal autonomy, including by using physical force to exclude her from the family home. I am also satisfied that, as a healthcare professional employed by the public service, the father was able to use his credibility with attending police officers to convey false information that the mother had been diagnosed with borderline personality disorder and was bipolar. As a related issue, the father used several car trips to the police station where he left the mother as a means of causing the mother to be concerned that he may report her to police and thereby exercise control of the mother in circumstances where he did not find the mother’s conduct to be acceptable.
Conduct of that nature is reflected in the father dismissing the mother’s legitimate concerns, including about living arrangements in the home of the paternal grandmother, as being due to mental illness (mother’s affidavit filed 7 August 2024, paragraphs 43–44). In so finding, I recognise that the mother has had a history of mental health challenges and that whilst living with the paternal grandparents especially, she struggled to cope with the frustration and stress of that living situation and consequently exhibited dysregulated behaviour that would have been challenging not only for the father but others who lived in the paternal grandparent’s household.[36]
[36] Transcript 16 September 2024, p.65 line 31 to p.66 line 2.
I accept the mother’s evidence in the context where I have accepted the mother to be a witness of truth and where her testimony is supported by other evidence. I find that the father went further than was reasonably necessary to assist the mother to cope with situational challenges and dismissed her often legitimate concerns about tensions in the home of the paternal grandmother as being attributable to mental health disorders including having a borderline personality disorder and that she was bipolar. I am also satisfied that the father’s controlling behaviour continued in the period subsequent to the parties’ separation. In so finding, I note that other documentary evidence recording the father’s statements to police and hospital staff supports the mother’s assertion.
I accept the mother’s evidence set out in her affidavit at paragraph 136, that when she arrived at hospital in January 2023 to attend an appointment with X, who was to have the back slab on her cast changed, the father was aggressive to her and repeatedly called her “emotionally unstable”. I regard this as another example of the father disparaging the mother by reference to her mental health. The father denied that he called the mother “emotionally unstable” on this occasion during cross-examination.[37] I have chosen that example because it was contended by counsel for the father that the fact that the mother required medication to address her heightened susceptibility to stress “tends to negate the proposition of gaslighting”.[38]
[37] Transcript 19 September 2024, p.317 line 41 to p.318 lines 1–4.
[38] Transcript 16 September 2024, p.48 lines 4–7
It is to be noted that by letter dated 22 June 2022, the mother’s solicitors wrote to the father’s solicitors attaching reports from both her treating psychologist, Ms HH and treating psychiatrist Dr N, confirming that the mother had no mental health diagnosis other than some anxiety symptoms and chronic pain, which did not adversely impact upon her parenting capacity. Significantly, the report of Dr N confirmed that as of 22 June 2022, the mother had been cleared to cease taking medication to address her past mental health challenges.[39]
[39] Annexure “[MV]-49” to the mother’s affidavit filed 7 August 2024.
The mother’s evidence of those statements having been made to her in January 2023 is consistent with her evidence that other similar statements had been made to her by the father during the course of the parties’ relationship. The mother’s evidence is also consistent with records made by police who attended various calls at the home of the parental grandmother. Those notes record the father advising the attending police officers that the mother had borderline personality disorder,[40] and, on occasion, he advised that she had bipolar disorder. The father acknowledged that there was no basis for his advice to police that the mother had bipolar disorder. He explained his actions in advising police that the mother had bipolar disorder,[41] was that he had been informed by the mother’s treating psychologist that she had such symptoms.[42]
[40] Transcript 18 September 2024, p.259 lines 20–28.
[41] Transcript 18 September 2024, p.283 lines 5–12.
[42] Transcript 18 September 2024, p.284 lines 23–29.
In circumstances where that evidence by the father as to what he was told by Ms HH is hearsay and in circumstances where I found the father to be a poor witness who gave self-serving evidence, I prefer the evidence of the mother that it was the father who raised an issue before Ms HH and Ms HH never, in the mother’s presence, advised the father that the mother had borderline personality disorder. The mother’s evidence in that respect is consistent with a report from Ms HH indicating that she was not in a position to provide such a diagnosis, which was the mother’s treating psychiatrist’s responsibility.
The father implicitly acknowledged that it would have been inappropriate for him to have advised the police that the mother had borderline personality disorder. In that respect, he was at pains to stress that he did not make such a statement to police but rather, that he informed police he had been advised by Ms HH that the mother had such a disorder. This was in the context where the father acknowledged that such a diagnosis would need to be made by the mother’s treating psychiatrist and no such diagnosis had in fact been made.
The father’s evidence that he was simply providing helpful contextual information to attending police officers is undermined by the fact that not only did he advise police officers that he had been informed that the mother had borderline personality disorder, the father went further on one occasion, advising attending police officers that the mother also had bipolar disorder. The father also conceded he may have told treating medical practitioners that the mother had bipolar, but also referred to the possibility that his previous false report to law enforcement had been carried over to the hospital notes. In responding to questions from senior counsel for the mother, the father acknowledged there was no reasonable basis for him to tell attending police officers the mother was bipolar, conceding that it was “an inaccurate statement” (transcript 18 September 2024, p.292 line 27).
As noted by senior counsel for the mother in her closing submissions, it can be reasonably inferred that the father’s misleading advice to attending police officers resulted in them failing to take protective measures to support the mother who, as I have found, on two occasions was the subject of actual physical violence.
Concerningly, in early 2022, a decision was made by attending police officers to handcuff and chemically restrain the mother in circumstances where the father had provided misleading advice to those officers. While I am not in a position to find a necessary causal connection between the misleading advice provided by the father and the action taken to chemically restrain the mother and compulsorily admit her to a mental health facility, the circumstances in which that occurred are very concerning.
I am also satisfied that the father used the threat of police intervention as a means of attempting to control the mother. I accept the mother’s evidence that on the day of the parties’ separation, the father drove the mother to Woolworths to buy some basic items to move into her new household and during the course of the car journey a discussion and subsequent argument arose as to when X would be returned to the mother’s care. The mother was not challenged on her evidence that the father drove the mother to the police station and threatened the mother that if she did not get out of the car, he would call the police. I accept that the mother did alight from the vehicle and was forced to walk home (mother’s affidavit filed 7 August 2024, paragraph 52).
The mother was not challenged on her evidence that on a further three occasions the father similarly drove the mother to the police station and has driven away leaving her to make her own way home including late at night (mother’s affidavit filed 7 August 2024, paragraph 88).
A further example of the father exercising control over the mother or forcing her to alight from the car he was driving occurred in mid-February 2022. The mother was not challenged on her evidence, set out at paragraph 91 of her affidavit, that during the course of an argument, the father drove the mother to Suburb C before again forcing her out of the car and leaving her to walk home on hot bitumen barefoot. The mother’s unchallenged evidence is supported by evidence of significant blistering to her feet evidenced by a photograph at Annexure “[MV]-6” to her affidavit.
The mother’s evidence that the father continued to use the mother’s mental health challenges as part of his pattern of controlling behaviour in the period subsequent to the parties’ separation is also consistent with the objective evidence. A clear example of the father questioning the validity of the mother’s conduct by referring to mental health conditions is his response to the mother’s inquiry as to an injury X sustained on one of her toes. On 12 December 2022, the father responded with a text message that read “what? did you cause it to try and accuse me of lying… there is a name for that munchausen [sic] by proxy”.[43]
[43] Mother’s affidavit filed 7 August 2024, paragraph 132 and Annexure “[MV]-15”.
The paternal grandmother was also very negative towards the mother, claiming that the mother provided little assistance during the time that the mother resided in the home of the paternal grandmother. At one point during cross-examination for example, she stated: “[Ms Vandale] never vacuumed the floor while I was around”.[79]
[79] Transcript 19 September 2024, pg.440 lines 16–21.
The paternal grandmother also suggested that the mother was neglectful of X by rejecting the proposition advanced by senior counsel for the mother that when living in the home of the paternal grandmother, the mother “was continually making sure that little [X], who was on the floor, just learning to crawl and later walk, was okay” in circumstances where the paternal grandfather was, at that time using a walking frame to ambulate throughout the house.[80] In rejecting that proposition, the paternal grandmother said: “[Ms Vandale] wasn’t there half the time”.[81]
[80] Transcript 19 September 2024, pg.440 lines 34–38.
[81] Transcript 19 September 2024, p.440 line 40.
In giving evidence at the final hearing, the paternal aunt also took the opportunity to give unresponsive answers to questions to denigrate the mother. After being requested to provide responsive answers to questions asked of her,[82] the paternal aunt responded to a question regarding the alleged incident of when the mother attended the home of the parental grandmother in early 2022 with the following elaborated answer:
[PATERNAL AUNT:] I actually was there on [that date]…and [Ms Vandale] did come to the front door. She even entered the place uninvited; [Mr Cino] telling her not to come in a few times and – and to the point where [Mr Cino] and [Mr E] blocked her from coming further because she was actually quite motivated to get in. She was quite aggressive to – her stance to coming in. We were actually scared of her at the time.
(Transcript 1 October 2024, p.509 lines 1–7)
[82] Transcript 1 October 2024, p.508, lines 18–20.
In response to a question from senior counsel of for the mother, the paternal aunt confirmed that the paternal grandmother and herself locked themselves in the bathroom with X as they were “afraid that [Ms Vandale] would be physically aggressive with us”.[83] The paternal aunt was persistent with that assertion in response to the following questions from senior counsel for the mother:
[SENIOR COUNSEL FOR THE MOTHER:] Now, despite the fact that [Mr Cino], who was a large man, and [Mr E] were there, you locked yourselves in the bathroom with the child. Is that right?
[PATERNAL AUNT:] Yes, because I’ve seen – I’ve heard [Ms Vandale] in progress.
…
[SENIOR COUNSEL FOR THE MOTHER:] So, despite the fact that you had [Mr Cino], a very large man, and [Mr E], his son, there, you were physically frightened of [Ms Vandale]. Is that right?
[PATERNAL AUNT:] Yes, absolutely.
(Transcript 1 October 2024, p.518 line 35 to p.519 line 8)
[83] Affidavit of the paternal aunt filed 10 July 2024, paragraph 15.
The paternal aunt attested to being fearful of the mother in circumstances where she subsequently attested that the mother had been verbally rather than physically abusive to her.
In that respect, the paternal aunt stated that she will not communicate directly with the mother “as she has been difficult and abusive to me”.[84] When asked by the father’s counsel as to what the mother said to the paternal aunt that constituted verbal abuse, the paternal aunt took the opportunity to provide a long-winded answer that was simultaneously quite unresponsive to counsel’s question and denigrating of the mother by suggesting that she was erratic:
[PATERNAL AUNT:] Well, it depended on the day but she can be quite, like, gruff, and she doesn’t act – her tone – she could say – say, if somebody else was saying the same thing, it wouldn’t come out the same way, but then there’s also the fact that she often – on the rare – no, not often. On the rare occasion would actually swear, but I must admit that hasn’t happened for a long time now. So, she – that’s Maybe she has changed … but when she greeted us, she was calling us gutless, among other things, and that – on [that date], but like, there’s other times when she was in the house and there was an incident when there was a filling up – dishing out the meals, and she actually swore around the children saying, “Of course, it’d be my effing child that did something”, because the peas fell on [X] and – not [X]. The peas fell on her middle daughter, [H], and [Mr Cino] had raced into the bathroom to turn the shower on, and [Ms Vandale] just stood there. My other brother […] had to walk around to pick up [H] and take her into the shower because it was hot peas. But – yes, but [Ms Vandale] used to swear, and I can – but she wouldn’t just hold off on one. If she was on a bit of a rant, she would let you know. But then there’s other times when she’s nice as pie.
(Transcript 1 October 2024, p.521 line 42 to p.522 line 10)
SUMMARY OF SECTION 60CC CONSIDERATIONS
[84] Transcript 1 October 2024, p.514 lines 23–24.
The child’s development and health needs.
X has been diagnosed with speech delay and other developmental challenges, requiring ongoing therapy and monitoring. The mother has been diligent in ensuring the child receives necessary interventions and follows professional recommendations.
The father’s ambivalence towards these needs raises concerns about his ability to support the child’s needs and developmental challenges.
Mother’s capacity to attend to the child’s needs
The primary reason for my decision that the child should reside primarily with the mother is the mother’s superior ability to provide for the child’s needs.
I recognise that the mother has a history of mental health challenges, however, I have observed that she has been stable without medication since mid-2022. In that respect, I am satisfied the mother’s parenting ability is not currently impacted by any mental health disorder, as confirmed by the expert opinions of both her treating psychiatrist and the single expert psychiatrist. They both acknowledge her proactive approach to managing any potential issues and her insight into her mental health.
As a related matter, the mother has exhibited a dedication to the effective management of stress and the preservation of her mental health. Consequently, it is improbable that her parenting capacity will be adversely affected by a future decline in her mental health.
The mother has taken a proactive approach to addressing X’s health needs by adhering to medical advice and ensuring that the child receives the necessary therapies. This encompasses occupational therapy assessments and the child’s speech therapy, which includes her consistent attendance to ensure progress.
The mother has taken steps to foster a nurturing environment for X by participating in activities that foster her development and, where necessary, providing comfort items.
The mother has also implemented measures to guarantee that the child is participating in activities that foster her emotional and social growth, including by attending daycare and participating in playdates and activities with her older maternal sisters and friends of comparable age.
Concerns about the father’s conduct and parenting capacity
As previously stated, comparatively, the father has shown a lack of diligence in following medical advice for X’s health, including relying on his training as a healthcare professional to “second-guess” that advice including failing to administer prescribed antibiotics and pain medication. This is particularly significant where antibiotics had been prescribed to address a post-surgery ear infection that the child had in circumstances where she has delayed speech development and maintaining sound hearing is important to maximise her prospects of addressing that.
As a related issue, the father has been ambivalent as to the importance of the child’s speech therapy, missing appointments and questioning its necessity.
I am satisfied that the father is not as committed as the mother in respect to promoting the child’s social development. This is evidenced, for instance, by the father’s initial resistance to enrolling the child in daycare.
Regrettably the father has placed his animus towards the mother ahead of the best interests of X and, in that respect, I am satisfied that the father’s behaviour has directly impacted the child, such as ignoring vital text messages from the mother concerning X’s treatment, removing her from medical appointments and limiting her communication with her mother and siblings.
The child’s relationships with her siblings
X has a loving and close bond with her paternal and maternal siblings. Living with her mother would allow X to attend school with her younger siblings, and there would be greater opportunity for her to engage in play interaction with them.
Mother’s capacity to provide emotional scaffolding to support change of residence orders
For the above reasons, I have determined that the child should live primarily with the mother. The mother appropriately recognised that such a change may be hard for X. The family report writer expressed that a relevant consideration in determining whether orders for change of residence should be made is an assessment of the parent’s capacity to put in place appropriate emotional scaffolding to assist the child’s transition.[85]
[85] Transcript 1 October 2024, p.486 lines 36–40.
The mother impressed as having carefully considered the child’s needs in that respect. I am satisfied that the mother will facilitate the child have regular electronic communication with the paternal grandmother and her older siblings. In that respect, in response to a question from counsel for the father, the mother stated:
I am aware, given they do their most developmental growing between zero to five, it’s going to be hard for her. I’m more than happy to facilitate daily FaceTime calls, weekly visits. I’m very open to her having that close and loving relationship with his family and promoting that. I do acknowledge it’s going to be hard, but she has everything of comfort in my home. I implement all the things to meet her goals, like reading to her, singing to her. Everything that’s possible. Whilst it will be hard, I think she will transition very well into my primary care.
(Transcript 17 September 2024, p.107 lines 15–21)
The mother impressed as frank and aware of the realities of X’s transition to living in her home primarily and I am confident that she will take all such steps as is necessary to ensure that the child is not unduly distressed by orders requiring a change in residence.
DETERMINATION
Determination on the child’s time with the father
Having determined that the child should live primarily with the mother, the question becomes how much time the child should spend with the father. I have considered the submission of the ICL that the child should live with the mother but spend five night per fortnight with the father.
I have determined however that such an order would not be appropriate for the following reasons:
·I am satisfied that the father has engaged in a pattern of coercive and controlling conduct directed towards the mother that has impacted the child.
·I am satisfied that the child is likely to be exposed to the father’s coercive behaviour during interactions between the parents. In particular, the child will be exposed to conduct of that nature in the event of there being face-to-face changeovers.
·The child will also be exposed to tension that exists between the mother and the paternal aunt on those occasions that the paternal aunt attends changeover.
·Additionally, there is potential that the child will be exposed to negativity on the part of the father, the paternal grandmother and the paternal aunt, in respect to the mother. Limiting the amount of time that the child spends in that household will limit the extent to which she is exposed to that negativity while at the same time, orders for the child to spend three nights per fortnight and half of the NSW gazetted school holidays in the care of the father, will provide sufficient time with the father and the paternal family to maintain a loving and secure relationship with them.
·Additionally, I have favoured the child spending three nights with the father to facilitate changeover after the child’s preschool on a Friday with the child being returned to preschool by the father on the Monday. This will minimise the number of face-to-face changeovers between the parties or between the parties’ respective immediate family members.
Parental responsibility
Section 61C of the Act provides that in the absence of an order of the Court, “[e]ach of the parents of a child who is not 18 has parental responsibility for the child”.
Parental responsibility is a term that is defined in s 4 of the Act (by reference to s 61B of the Act) as: “in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Parenting orders may “expressly” provide for a parent to exercise parental responsibility generally or to a limited extent: s 61D of the Act.
If the allocation of parental responsibility relates to a “major long term issue” it may “provide for joint or sole decision-making in relation to all or specified major long-term issues”: s 61D(3) of the Act. The definition of the term major long term issues is set out in s 4 of the Act as set out below:
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.
…
(Emphasis in original)
In other words, a parenting order can include such orders in respect to parental responsibility which, subsequent to the enactment of the Family Law Amendment Act 2023 (Cth), are now viewed more broadly than major long-term issues and include matters that the Court considers appropriate and in the best interests in respect to a child.
The powers of the Court to make an order that “deals with” parental responsibility is set out in s 64B of the Act. It includes the power to make an order allocating responsibility for making decisions about major long-term issues: s 64B(3) of the Act. However, the Court is not limited to do so only in respect to major long-term issues. Specifically, the Court can make an order dealing with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child” (s 64B(2)(i) of the Act).
The Court can also make an order dealing with how parents are to consult with one another in making decisions concerning the exercise of responsibility: s 64B(2)(d) of the Act. This includes the obligation to attempt to resolve any dispute concerning the exercise of parental responsibility before approaching the Court: s 64B(2)(h) of the Act.
Pursuant to s 61CA of the Act, if no order is made in respect to parental responsibility, the parents are “encouraged” to consult about major long-term issues, provided “it is safe to do so”. But that obligation does not apply with respect to the exercise of responsibility for decisions that are other than those relating to a major long-term issues: s 61DAB of the Act.
Accordingly, the crucial issue for determination is to consider whether it would be safe for the parents to fulfill the expectation of consultation set out in s 61CA of the Act. This is emphasised in s 60CC(2)(a) and (e) of the Act, to which I have earlier referred.
If the Court considers that there is a risk that a parent would be exposed to family violence, including coercive or controlling conduct, in communicating with the other parent about the exercise of parental responsibility, or any aspect of it, then the Court must consider whether any orders around the nature of communication would address the risk or whether it is such that one parent should exercise responsibility in respect to one or more of the major long term issues to which I have referred.
The father and ICL seek that the parties share parental responsibility. Senior counsel for the mother submitted that the mother should have sole-parental responsibility in respect to matters including, but not limited to, X’s education, religion, health, changes to living arrangements and international travel and passports.
For reasons that I have earlier set out, I have found that the mother has been exposed to a pattern of coercive and controlling conduct engaged in by the father against the mother. In light of that history and the father continuing to denigrate the mother during the course of these proceedings, I am satisfied that it is likely the father will continue that pattern of coercive and controlling behaviour in the future should the mother be required to consult with the father, particularly in respect to the child’s health and education. In the context of a coercive and controlling dynamic and confirmed physical family violence perpetrated by the father against the mother, I respectfully reject the ICL’s submission that the parties “need to grow up and share decision making”.[86] The evidence satisfies me that there has been controversy in respect to virtually all aspects of the parties’ communications in respect to X’s best interests including but not limited to the child’s health, care and attendance at daycare.
[86] Transcript 30 October 2024, p.541 lines 1–2.
In deciding that the mother should have sole parental responsibility, I have had regard to offensive text messages sent by the father including where he has accused her of suffering Munchhausen’s by proxy and engaging in a “fishing expedition” for medical and other developmental challenges affecting the child. I have also had regard to the tone of those messages sent by the father including where he has chosen to capitalise words suggesting aggression, including when he accused the mother of lying in respect to his contention that she owed him money.
As an example of the sort of conduct that I am satisfied the mother would likely be subjected to if she was required to consult with the father in respect to major long-term issues concerning the child, is the conduct of the father in January 2023, where the father refused to accept the truth of the mother’s text messages that she would be delayed at arriving at changeover because she had to wait for the child’s cast to be changed. Instead of expressing empathy and understanding for the mother’s situation, the father made his own inquiry as to the usual closing time of the clinic that resulted in him rejecting the mother’s explanation that staff had stayed back to assist their daughter.
Rather than also expressing understanding that the mother would be delayed in travelling in peak hour traffic from City NN to Suburb C, the father continually texted the mother his demand for her to attend the changeover on time and, if she failed to do so, threatening to notify the police. The father made good on this last threat, calling the police who, subsequently attended the mother’s home later that evening to interview her.
While I appreciate the father concedes that he “overreacted” and that his reaction on that evening was “a bit over the top”,[87] his conduct was in my opinion completely unacceptable and subjected the mother to unnecessary stress in what already must have been and extremely stressful day for her. It is not in the child’s best interest for the mother to be exposed to similar conduct on the part of the father in the future.
[87] Transcript 19 September 2024, p.236 lines 40–41.
Aside from the coercive control that the mother may be exposed to if joint parental responsibility was ordered by the Court, I am satisfied that the parties have a limited capacity to exercise joint parental responsibility in accordance with X’s best interests in the context of the breakdown of trust and increased hostility between the parties. The parties have failed to collaboratively make decisions without significant conflict on matters such as X’s daycare enrolment, treatment of X’s immediate health issues or treatment as regards to X’s developmental challenges. The father has conceded that the parties are unable to effectively communicate by text as he admitted to regularly ignoring the mother’s text messages, including messages containing critical information to X’s health and wellbeing. As such, I accept the submission by senior counsel for the mother that the parties are exhausted by their attempts to jointly exercise parental responsibility, and one party must exercise sole parental responsibility in regard to long-term issues.[88] I emphasise that it is not in X’s best interests of the parties to have joint parental responsibility.
[88] Transcript 30 October 2024, p.548 line 45 to p.549 line 2.
For reasons I have earlier detailed, I am confident in the mother’s capacity to meet X’s needs and I do not share that confidence in respect to the father’s capacity I will make orders for the child to live with the mother and for the mother to have sole parental responsibility in respect to major long-term issues impacting the child.
Ancillary orders
As previously stated, the major issues in dispute in this hearing were in respect to X’s primary residence, parental responsibility and time with the non-residential parent. However, a range of ancillary orders were also sought at the final hearing.
Prior to the final hearing, the parties were able to reach agreement in relation to arrangements for the child for the 2024 Christmas period, Easter, birthdays of the child, the parties and the parties’ other children, non-denigration orders, changeover and obtaining information regarding the child. At the final hearing, senior counsel for the mother requested that the Court provide one consolidated set of orders for the ease of the parties. I have made an order affirming those October 2024 orders and will annex them to this judgment.
Orders agreed or unopposed
On the final day of the hearing, helpfully, the parties narrowed the issues in dispute and were able to agree on a range of parenting orders. The ICL noted that where the parties were able to reach an agreement on an order, that she was prepared to also agree to that order also in circumstances where she wanted the parents to work together.[89]
[89] Transcript 30 October 2024, p.600 lines 39–40.
The parties’ respective proposed minutes of orders also contained duplicate orders or orders that were substantially similar to those made on 14 October 2024. I have disregarded those orders from the parties’ minutes in accordance with their preference.
The parties were able to agree on the below orders, and as such, I have made these orders:
(a)The father’s proposed orders regarding the child having FaceTime contact with the non‑residential parent, the paternal grandmother and as the child reasonably requests.
(b)The ICL’s proposed order that provides both parents with permission to attend any of the child’s school or extracurricular events. I note that the father also had a proposed order to this effect, but I prefer the ICL’s more succinct wording.
(c)The mother’s proposed orders for international travel and for the child’s passport.
(d)The ICL’s proposed order providing that parties alert each other to changes to their telephone and email contact details.
(e)The ICL’s proposed orders permitting parties to provide sealed orders to educational facilities the child attends, amended by myself to include law enforcement and child protection authorities.
(f)The mother’s proposed orders for ongoing Christmas period arrangements, noting that by the end of the final hearing, the father was agreeable to the child spending Christmas day with G and H every second year.[90]
[90] Transcript 30 October 2024, p.593 lines 12–23.
There were a range of orders that were not sought or agreed to but were not opposed by the other parties. As such, I have made those orders, which are set out below.
(a)The father’s proposed order requiring parties to be appropriately prepared and punctual at changeover.
(b)The father’s proposed orders that the parent of whom the child is in the care of has responsibility to make decisions for the day-to-day care of the child.
(c)The father’s proposed order providing for communication between the parents in medical emergencies.
(d)The father’s proposed order for the preferred medical practice of the child, subject to amendments for practical implementation.
(e)The father’s proposed order for an injunction pursuant to s 68B of the Act but only in regard to discussing the proceedings with the child or exposing the child to excessive conflict or violent behaviour, having already made non-denigration orders in October 2024.
(f)The father’s proposed dispute resolution order.
Disputed orders
The parties are in dispute regarding a range of ancillary orders and I set out my findings and reasons for doing so below.
The father seeks an order that the mother notify the father immediately should she be admitted to hospital for mental health reasons and the child be in the care of the father should these circumstances arise. The mother opposes this order. As previously stated, I accept that the father has made false reports to authorities in respect to the mother’s mental health in the past, and that this conduct was part of coercive control. I find that this proposed order may expose the mother to further coercive control by the father. Moreover, I have found that the mother has dealt with her previous mental health issues responsibly and does not currently have any mental health condition, such that an order to this effect is necessary.
The parties all agree that the parties should communicate non-urgent matters through a parenting application. However, the parties are in dispute as to which application should be used. In circumstances where the mother already has paid for OurFamilyWizard and has experience in using it,[91] I am satisfied that this is the most appropriate application for the parties to use.
[91] Transcript 30 October 2024, p.594 lines 27–29.
Other orders
The parties were in error as to the scope of the 14 October 2024 orders and asserted that mother’s and father’s day were provided for by those orders. The mother and father have similar orders for both mother’s day and father’s day. The key difference is that the father seeks the parent whose celebratory day it is has the child overnight on the Sunday and returns the child to school on the Monday. The mother seeks that the child is returned to the party whose time has been suspended for special occasion time to proceed at 7.00 pm. I prefer the father’s order which would minimise face-to-face contact at changeover as the child attends daycare on Monday and will do so until she commences school.
The father proposed an order that the mother remain engaged with and follow the advice of her treating psychiatrist or psychologist. The mother does not seek this order but does not oppose it. In circumstances where the mother has historically acted responsibly and has no current mental health diagnosis, I find that such an order is unnecessary and as such, I will not make that order.
During submissions, the mother orally amended her final order sought as regards to costs. The mother seeks that the question of costs be reserved. This was not opposed by either party. Accordingly, I have provided that the parties have 14 days from the date of these orders to file written submissions on the question of costs.
I certify that the preceding three hundred and seventeen (317) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 19 December 2024
ANNEXURE “A”
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FILE NO: (P)WOC529/2022
BETWEEN:
MS VANDALE (Applicant)
AND:
MR CINO(Respondent)
AND:
INDEPENDENT CHILDREN’S LAWYER
BEFORE: THE HONOURABLE DEPUTY CHIEF JUSTICE MCCLELLAND
DATE: 14 October 2024
MADE AT: SYDNEY
UPON APPLICATION MADE TO THE COURT being considered in chambers and there being no appearances required by or on behalf of the parties.
THE COURT ORDERS THAT:
1.BY CONSENT and pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), orders, declarations and notations are made in terms of the Consent Orders attached.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FILE NO: (P)WOC529/2022
BETWEEN:
MS VANDALE (Applicant)
AND:
MR CINO(Respondent)
AND:
INDEPENDENT CHILDREN’S LAWYER
BY CONSENT IT IS ORDERED:
1.That the child X, born 2020 (“the child”), spend time with each of her parents during special occasions as follows:
1.1With the father:
1.1.1At Christmas in 2024:
1.1.1.1From 2pm on Christmas Day to 2pm on Boxing Day.
1.1.2At Easter:
1.1.2.1From after school or 3pm the day before Good Friday to 3pm on Easter Saturday in odd numbered years; and
1.1.2.2From 3pm on Easter Saturday to 5pm on Easter Monday in even numbered years.
1.1.3On the father’s birthday, and any birthday of the child’s paternal half-siblings, from the conclusion of school or 3pm if not a school day until 6.30pm on such birthdays;
1.1.4On the child’s birthday, if the child is not already in the care of the father on such day, from 9.00am until 1.00pm;
1.1.5At any other times as agreed between the parties in writing.
1.2With the mother:
1.2.1At Christmas in 2024:
1.2.1.1From 2pm Christmas Eve to 2pm Christmas Day in 2024.
1.2.2At Easter:
1.2.2.1From after school or 3pm the day before Good Friday to 3pm on Easter Saturday in even numbered years; and
1.2.2.2From 3pm on Easter Saturday to 5pm on Easter Monday in odd numbered years.
1.2.3On the mother’s birthday and any birthday of the child’s maternal half-siblings, from the conclusion of school or 3pm if not a school day until 6.30pm on such birthdays;
1.2.4On the child’s birthday, if the child is not already in the care of the mother on such day, from 9.00am until 1.00pm;
1.2.5At any other times as agreed between the parties in writing.
2.For the purpose of changeover the parties or their nominees shall attend for changeover at the entrance to Woolworths Suburb C.
3.The parties are restrained by injunction from denigrating or undermining the other parent in the presence of or within hearing of the child or allowing any other person to do so.
4.These Orders operate as the authority to both parents to obtain any relevant health or educational records, reports, information and documents relating to the child and to discuss those relevant issues with professionals or other persons.
5.Each parent provide full authority to allow the other parent to access all relevant information regarding the child including but not limited to issues relating to the child’s health, education and to discuss those relevant issues with professional or other persons.
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