Victor & Victor
[2023] FedCFamC2F 887
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Victor & Victor [2023] FedCFamC2F 887
File number(s): PAC 3773 of 2018 Judgment of: JUDGE MURDOCH Date of judgment: 20 July 2023 Catchwords: FAMILY LAW – PARENTING – Where consent orders made in 2019 provided for a graduated increase in time the child spends with the father, culminating in an equal shared care arrangement – Where the father alleges the mother has on numerous occasions not complied with the final orders – Where the child has been highly resistant at changeover into the father’s care – Where the mother commenced these proceedings seeking a reduction in the father’s time – Where the mother now seeks equal time in accordance with the final orders – Where the father seeks majority care of the child – Where the father alleges the mother will not facilitate equal time nor encourage a meaningful relationship – Where the single expert opined that the child would experience significant distress if she were to be separated from the mother – Finding that the maternal family has denigrated the father to the child – Findings as to the mother’s parenting capacity – Balancing of potential harms to child – Finely balanced case – Orders made for equal time. Legislation: Family Law Act 1975 (Cth) ss 60B 60CA, 60CC, 60DA, 60DAA, 65D Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
M & M [1988] HCA 68
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 149 Date of hearing: 26 – 28 June 2023 Place: Parramatta Counsel for the Applicant: Mr O’Brien Solicitor for the Applicant: Russell Kennedy Lawyers NSW Counsel for the Respondent: Ms Spain Solicitor for the Respondent: O’Loan Family Law Pty Ltd ORDERS
PAC 3773 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VICTOR
Applicant
AND: MR VICTOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MURDOCH
DATE OF ORDER:
20 July 2023
THE COURT ORDERS THAT:
1.All prior parenting orders with respect to X born in 2018 (“X”) are discharged.
2.The parties have equal shared parental responsibility with respect to X.
School Terms and Holidays
3.From the date of these Orders until the last day of the 2025 Term 4 long school holiday period X shall live with each parent as follows:
(a)During school term:
(i)With the father in week one from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Wednesday, such time to take place each alternate week thereafter (five nights);
(ii)With the mother in week one from the conclusion of school or 3.00 pm on Wednesday until the commencement of school or 9.00 am on Monday, such time to take place each alternate week thereafter (five nights);
(iii)With the father in week two from the conclusion of school or 3.00 pm on Monday until the commencement of school or 9.00 am on Wednesday, such time to take place each alternate week thereafter (two nights);
(iv)With the mother in week two from the conclusion of school or 3.00 pm on Wednesday until the commencement of school or 9.00 am on Friday, such time to take place each alternate week thereafter (two nights).
(b)During the Term 1, 2, and 3 school holidays:
(i)With the mother:
A.In odd numbered years from the conclusion of school on the last day of the school term until 6.00 pm on the day that is the midpoint of the school holiday period;
B.In even numbered years from 6.00 pm on the day that is the midpoint of the school holiday period until the commencement of school on the first day of the following school term;
(ii)With the father:
A.In even numbered years from the conclusion of school on the last day of the school term until 6.00 pm on the day that is the midpoint of the school holiday period;
B.In odd numbered years from 6.00 pm on the day that is the midpoint of the school holiday period until the commencement of school on the first day of the following school term;
(c)During the Term 4 school holidays as follows:
(i)From the last day of Term 4 until 3.30 pm on Christmas Eve, in accordance with the existing cycle pursuant to Order 3;
(ii)With the mother:
A.Where Christmas Day falls in an even numbered year, from 3.30pm on Christmas Eve until 3.30 pm on Christmas Day;
B.Where Christmas Day falls in an even numbered year, from 3.30pm on 9 January the following year until 3.30pm on 23 January;
C.Where Christmas Day falls in an odd numbered year, from 3.30pm on Christmas Day until 3.30 pm on 9 January the following year;
(iii)With the father:
A.Where Christmas Day falls in an even numbered year, from 3.30pm on Christmas Day until 3.30 pm on 9 January the following year;
B.Where Christmas Day falls in an odd numbered year, from 3.30pm on Christmas Eve until 3.30 pm on Christmas Day;
C.Where Christmas Day falls in an odd numbered year, from 3.30pm on 9 January the following year until 3.30 pm on 23 January.
(iv)At 3.30pm on 23 January, changeover to occur and time to recommence in accordance with the cycle pursuant to Order 3.
4.From the first day of Term 1 2026 X shall live with each parent as follows:
(a)During school term:
(i)With the father in week one of each fortnight, from the conclusion of school or 3.00 pm on Monday to the commencement of school or 9.00am the following Monday;
(ii)With the mother in week two of each fortnight, from the conclusion of school or 3.00 pm on Monday to the commencement of school or 9.00am the following Monday.
(b)During short school holidays, in accordance with the existing week-about cycle, with changeover to occur at 3.00 pm each Monday.
(c)During Term 4 school holidays:
(i)With the parent with whom X is living pursuant to Order 4(a)(ii) above on the last day of the Term 4 school term for the first half of the Term 4 school holiday period (“the Term 4 holiday”) until 3.00 pm on the day that is the midpoint of the Term 4 holiday; and
(ii)With the other parent from 3.00 pm on the day that is the midpoint of the Term 4 holiday until the commencement of school on the first day of school in Term 1.
Christmas
5.Notwithstanding any orders to the contrary the child shall spend time with each party as follows:
(a)With the father in each odd numbered year from 3.30pm on Christmas Eve until 3.30pm on Christmas Day and in each even numbered year from 3.30pm Christmas day to 3.30pm Boxing day; and
(b)With the mother in each even numbered year from 3.30pm on Christmas Eve until 3.30pm on Christmas Day and in each odd numbered year from 3.30pm Christmas day to 3.30pm Boxing Day.
Child’s birthday
6.Notwithstanding any orders to the contrary, the child shall spend time with each party as follows:
(a)With the Father in each odd numbered year from 3:30pm until 3:30pm the next day and in each even numbered year from 3:30pm until 3:30pm the next day; and
(b)With the Mother in each odd numbered year from 3:30pm until 3:30pm the next day and in each even numbered year from 3:30pm until 3:30pm the next day.
Mother’s Day and Father’s Day
7.If the child is in the care of the mother on Father's Day, the child shall spend time with the father from 4.00 pm the day prior until 9am (or before school) on the Monday immediately following Father's Day, and the above orders as to the mother's time with the child shall be suspended accordingly.
8.If the child is in the care of the father on Mother's Day, the child shall spend time with the mother from 4.00 pm the day prior until 9am (or before school) on the Monday immediately following Mother's Day, and the above orders as to the father's time with the child shall be suspended accordingly.
Parents’ birthdays
9.That if the child is in the care of the mother on father's birthday, the child shall spend time with the father
(a)If his birthday falls midweek from after school on the day of his birthday (or 9.00 am if the child is not attending school) until before school the next day (or 9.00 am if the child is not attending school); or
(b)If his birthday falls on a weekend from 9.00 am on the day of his birthday until 9.00 am the next day and the above orders as to the mother's time with the child shall be suspended accordingly.
10.That if the child is in the care of the father on mother's birthday, the child shall spend time with the mother:
(a)If her birthday falls midweek from after school on the day of her birthday (or 9.00 am if the child is not attending school) until before school the next day (or 9am if the child is not attending school); or
(b)If her birthday falls on a weekend from 9am on the day of her birthday until 9.00 am the next day and the above orders as to the father's time with the child shall be suspended accordingly.
Easter
11.Notwithstanding any order to the contrary, X shall spend time with the parents at Easter:
(a)In even numbered years, with the father on Easter Sunday from 9.00 am to 7.00pm;
(b)In odd numbered years, with the mother on Easter Sunday from 9.00 am to 7.00pm.
Family Therapy
12.The Mother and Father forthwith do all acts and things necessary to engage in reportable family therapy with Ms B of C Counsellors (“the therapist”) for a period of no more than twelve months from the date of these Orders and for the purpose of this Order:
(a)The parties do all acts and things so as to attend upon the therapist at such times and at such places as may be directed for the purposes of family therapy and shall ensure that any other person in their household attends as directed also;
(b)Both parents shall facilitate X attending upon the therapist including but not limited to encouraging her to attend therapy at such times and at such places as may be directed by the therapist;
(c)Each party will do all things necessary to comply with the reasonable recommendations made by the therapist;
(d)The parties shall equally meet the costs of any joint sessions;
(e)The parties shall meet the cost of their own individual sessions.
13.Leave is granted to the parties to provide to the therapist copies of the following documents:
(a)These Orders and Reasons for Judgment;
(b)The single expert’s report dated 30 March 2023 and the addendum thereto by way of affidavit filed 31 May 2023.
14.Each party is restrained from discussing with X any material discussed in therapy unless it is under the guidance of the therapist.
Communication
15.That if the child expresses a wish to communicate with either parent while in the care of the other party, then that party shall facilitate such communication at any time.
Changeover
16.That for the purpose of changeovers unless otherwise agreed in writing between the mother and father, the following shall occur:
(a)On days the child attends school changeover shall occur at the school and the parent whose time with the child is due to commence shall collect the child from the child’s school; or
(b)On a non-school day changeover shall occur at McDonalds in Suburb D.
Extracurricular activities
17.That in the event that either parent wishes to enrol the child in any extra-curricular activities that fall during the other parent's time with the child, any such activities must be agreed between the parties in writing.
Interstate travel
18.Each parent is permitted to travel interstate with the child for a holiday during their time with the child.
Overseas travel
19.Each parent is permitted to travel outside of Australia with the child pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) for a holiday during their time with the child.
20.If either parent proposes to travel overseas for a holiday with the child pursuant to these orders, that parent shall give at least 28 days written notice prior to the commencement date of the proposed travel a full itinerary to include:
(a)The name of the airline/s and flight number/s, or ship and details or other mode or transport;
(b)The departure and return dates and times;
(c)The countries to which the child shall be travelling and/or passing through;
(d)The dates on which the child will arrive and depart each country;
(e)A landline or mobile telephone number and contact addresses at which the child will be in each country; and
(f)Confirmation of the payment of travel insurance covering the child for the full period of the overseas travel including a copy of the insurance policy.
Passports
21.That if the child's Australian passport is required to be applied for or renewed, both mother and father shall do all necessary acts and things and sign all necessary consents to enable this to occur so that the child has a valid Australian passport at all times and renewals are to take place not less than 6 months prior to expiry. The cost to renew the child's passport shall be borne 50% by the father and 50% by the mother.
22.In the event either parent refuses to complete and return the Australian passport application then the other parent is permitted to apply for an Australian passport for the child without the other parent's consent.
23.Both parents are restrained from obtaining a passport for the child other than an Australian passport, until such times as the child is legally entitled to hold her own international passport. When the child can obtain her own international passport, if the child is under the age of 18 years such application cannot be made without the consent of both parents.
Non-denigration and other
24.That neither party shall, within the earshot of the child or at all, denigrate the other party, including but not limited to, through any other family member or third party.
25.That without admission the parties be and are hereby restrained by injunction from posting on any publicly available social media including in their profile picture any photo of the child where the child's genitals, breasts, bare back or bottom are visible.
26.That the mother is at liberty to provide a copy of these reasons to the maternal grandparents provided that the mother do all things necessary to ensure that the maternal grandparents do not publish or disseminate these reasons to any other person.
Change of contact details
27.That each party keep the other informed of their current residential address and advise the other party of any change thereto 48 hours prior to such change.
28.That each party keep the other informed of their mobile and landline telephone numbers and advise the other party of any change thereto within 24 hours of such change.
Authority to school
29.That the parties do all acts and things and sign all documents necessary to instruct and authorise the administrators of any school as the child may attend from time to time to forward to each parent copies of all the school reports, newsletters and all notices relating to school events, functions, parent/teacher meetings, parent-helper discuss any aspect of the child's education with each parent, and a copy of these Orders may be given by either parent to any school the child attends and shall serve as authority to this effect.
Medical
30.That these Orders authorise the child's medical practitioners and health professionals to communicate with both mother and father, and a copy of these Orders may be given by either parent to any hospital, medical practitioner and health professional and shall serve as authority to this effect.
31.That each parent advise the other parent by email of the practitioner name, practice name and contact details of each hospital, medical practitioner or allied health professional that they take the child to see within four hours of the child's treatment or appointment and each parent is to authorise the medical practitioner to provide the other parent with copies of any test results, letters of referrals, reports and any letters received from hospitals, medical practitioners and health professionals to the other and authorise hospitals, medical practitioners and health professionals to discuss any aspect of the child's health with each parent.
32.That both parents shall do all acts and things to ensure the child's treating general medical practitioner is Dr E at the F Medical Practice (“the Practice”) or any other general practitioner at the Practice and if the Practice is closed the child shall attend Suburb D Medical Centre.
Notification if the child suffers serious injury or illness
33.That if the child suffers any serious injury or illness while the child is residing with either parent or is taken to hospital or in an ambulance for any reason, that within one hour that parent notify the other parent of the nature of such injury or illness and the name, address and telephone number of the relevant hospital or medical practitioner treating the child.
Private health for the child
34.That within 14 days of the date of these Orders the mother shall provide the father with the details of the child's private health insurance policy and in the event there is a change to the child's private health arrangements the mother shall notify the father of such change within seven days of the change being made.
Direction and Leave
35.The mother is to forthwith provide a copy of these Reasons for Judgment to the maternal grandparents and is to request the maternal grandparents read these Reasons.
36.Leave is granted to the father to relist the matter within 12 months of the date of these Orders in the event of non-compliance with any of these orders.
Disposition
37.Save as to the question of costs all extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Murdoch
INTRODUCTION
The parties to these proceedings are in dispute as to the parenting arrangements for their only child X (“X”) currently five years of age.
These are the second set of substantive proceedings that have come before the court with respect to X’s care arrangements. Prior proceedings commenced by the father were finalised by consent of the parties on 16 December 2019 (“the current orders”). Such orders provided for X to spend increasing amounts of time with the father until an equal shared care arrangement commenced in June 2022.
It is uncontested that difficulties arose in implementing X’s shared care arrangement due to her resistance in spending time with the father, which culminated in distressing changeovers for her. The mother commenced these proceedings seeking to reduce X’s time with the father. The father sought to uphold the current orders.
Since December 2022 X has managed to live with each of the parties in an equal shared care arrangement pursuant to the current orders. The mother now seeks to uphold the current orders. Paradoxically, it is now the father that seeks to vary the current equal shared care arrangement and seeks orders for X to be in his majority care.
The father alleges that the mother’s lack of parenting capacity is a risk to X and seeks orders for X to be in his majority care so as to reduce the opportunity for X to be exposed to the maternal family’s negative views of the father and to allow the relationship between X and the father to continue to develop. The mother submits that removing X from her primary attachment figure will cause emotional harm for the child; the initial problems in implementing X’s shared care arrangement have ceased and the current equal shared care arrangement is working well and should continue.
For the reasons that follow it is found that X’s best interests are served by a continuation of the current equal shared care regime with the assistance of reportable family therapy.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties.
The parties commenced their relationship in 2005 and married in 2010. X was born in 2018. The parties separated in February 2018 when X was only a few weeks old and at this time X and the mother began living with the maternal grandparents in their home, where they continue to live.
X did not spend any time with the father from the date of separation until 9 June 2018, a period of four months.
In early 2018 the mother signed and later lodged a Birth Registration Statement for X. The father was not listed by the mother on the form.
In early 2018 the father was served with an application for an Apprehended Domestic Violence Order for the protection of the mother. The father was subsequently charged with domestic violence offences. In early 2018 the father consented to an interim Apprehended Domestic Violence order on a “without admissions” basis for the protection of the mother at Suburb G Local Court.
The mother did not invite the father or any members of his family to X’s christening which occurred in early 2018.
On 21 May 2018 the parties reached an agreement for X to spend supervised time with the father each Saturday from 10:00 am to 12:00 pm.
The charge against the father was dismissed by the Local Court in mid-2018.
On 14 June 2018 the parties received correspondence from “H Contact Service”, a private supervisory service, confirming that they were suspending their supervision service. The parties agreed thereafter to use J Contact Service to undertake such supervision. From July 2018 to September 2018 X spent supervised time with the father each Saturday at K Centre from 10:00 am to 12:00 pm.
Subsequent to proceedings being commenced by the father in August 2018 orders were made by consent on 24 September 2018 that X spend supervised time with the father each Saturday from 10:00 am to 1:00 pm at K Centre, that the mother provide the father with X’s birth certificate and authorise X’s general medical practitioner to provide the father with X’s medical records.
On 4 October 2018 the father consented on a “without admissions” basis to condition one of a standard Apprehended Domestic Violence Order restricting his behaviour and protecting the mother for a period of six months.
On 17 October 2018 further interim orders were made by consent that X spend unsupervised time with the father on a graduating basis, culminating in X spending time with the father each Saturday from 10.00 am until 6.00 pm and each Tuesday evening for three hours. Further orders were made by consent on 15 March 2019 again increasing the time X was to spend with the father on a graduating basis, culminating in X spending time with the father each Wednesday overnight, Friday evening, and each alternate weekend from 10.00 am Saturday until 4.30 pm Sunday.
On 16 December 2019 the current were made by consent and provide broadly as follows:
·That the parties have equal shared parental responsibility;
·That X live with the mother;
·That X spend time with the father on an increasing graduated basis of five stages culminating in an equal shared care arrangement commencing on 1 June 2022 as follows:
·In week one:
·With the father from 3.00 pm on Friday until 9.00 am Wednesday and each alternate week thereafter (five nights); and
·With the mother from 9.00 am Wednesday until 3.00 pm Monday and each alternate week thereafter (two nights);
·In week two:
·With the father from 3.00 pm Monday until 9.00 am Wednesday and each alternate week thereafter (five nights); and
·With the mother from 9.00 am Wednesday until 3.00 pm Friday and each alternate week thereafter (two nights).
The mother does not depose to any significant difficulties occurring until approximately December 2021, wherein she alleges that X disclosed to her in December 2021 that the father had said “fuck off” to her. The mother deposes that from this time X began displaying opposition to spending time with the father including:
·Stating that she did not want to go to her father’s;
·Crying when told she was going to see the father;
·Resisting getting out of the car at changeover, requiring the mother to pick her up and carry her in whilst X continued to cry;
·Moving around in the car away from the father when she saw him and saying “I’m scared”; and
·Crying and saying “no nights?”
X’s time with the father in accordance with the current orders did not occur on 31 May 2022 and commenced instead the following day.
On 7 June 2022 the mother’s solicitor forwarded correspondence to the father’s solicitors stating that X was not coping with the applicable time arrangements and it was the mother’s belief that she would not be able to progress to the equal time arrangement as required pursuant to the current orders on 1 June 2022. The mother suggested that X instead spend three nights a fortnight with the father, being each alternate weekend from Friday afternoon to Monday morning. The mother advised that she was intending to file an application to vary the existing orders but would comply with the current phase of the final orders (being the penultimate stage of the graduated arrangement) pending the determination of such application. By way of reply dated 15 June 2022, the father advised the mother that he did not agree to alter the time arrangements and suggested family therapy. There was no reply by the mother to such suggestion.
X was in the father’s care in late June 2022 as the mother was in isolation due to COVID.
From July 2022 to December 2022 there were approximately 22 occasions where X spent time with the father but not in accordance with the current orders. The reduction of time X spent in the father’s care on each occasion was unilaterally decided by the mother. The mother deposes that on the vast majority of these occasions this was due to X resisting attempts to take her to changeover. There is no dispute that X exhibited crying and distress at changeovers from July 2022 to December 2022.
Some specific examples of the challenges deposed to by the mother in having X move to the father’s household are as follows:
·In April 2022, X cried and kept saying “I’m not going” when told she needed to get ready to go to the father’s. X resisted being taken out to the car and kicked at the mother when she tried to remove her, screaming “I don’t want to go, I don’t want to go.” X kept kicking and thrashing in the mother’s arms when the mother passed her to the father and whilst he carried her away.
·In May 2022, X cried and refused to get in the car for changeover. The mother suggested to X that they ask the father if she could go the next day instead, to which X agreed. The mother telephoned the father and told him of this agreement and that X was otherwise refusing to come.[1]
·In August 2022, X refused to go to the father’s house, screamed and kicked and said “not two.” The mother called the father and they had a conversation. The mother alleges she continued to encourage X to attend but she refused to go on that date, and eventually agreed that she would go the following day.
·In August 2022, the mother was unable to convince X to go to the father’s; X got angry, throwing her toys and pillows off the bed and thrashing her arms and legs whilst yelling “I won’t go. Leave me alone.”[2] The mother alleges she kept encouraging X to go but X kept running away. The mother deposes: “In the end I stopped pushing because I did not want X to hurt herself so at about 2pm I sent Mr Victor a SMS message to let him know I was not able to get X to go.”[3] Events transpired similarly in August 2022,[4] and on 19 August 2022.[5]
·In August 2022, after X “put up similar resistance” and the mother was unable to secure X in the car, the mother texted the father “… She is again saying she won’t come. I will keep trying again tomorrow… I’ve tried everything…” and the father responded “You are lying, and X expresses what’s really happening. Can’t wait to see you in Court.” [6]
·In September 2022, X ran away and hid. Upon being found by the mother crying in a corner, X screamed, continued to hide out of the mother’s reach and threw toys at the mother. After encouragement by the mother X “eventually… relented and agreed to go to [the father] the following day.”[7]
·In September 2022, the mother deposes that X again refused to go to the father’s, crying and running away. She eventually agreed to go the following day.[8] The day after, X again refused to go. The mother called the father and asked him for suggestions and the father terminated the call.[9] The mother said to X, “I’m very upset that you didn’t keep your promise.”[10]
·In October 2022 when the mother attempted to get X to go to her father’s she became distressed; running away, crying, yelling “no”, kicking and thrashing and then began coughing. The mother deposes she eventually “managed to get [X] to agree to see [the father] the next day. [11] The mother’s attempts again the next day were unsuccessful with the mother alleging that X “..cried, tucked herself into a corner, kicked and began coughing from distress.” [12] X again promised to go to her father’s the following day, which eventually occurred after further crying.
[1] Mother’s affidavit, paragraph 56; father’s affidavit, paragraph 83.
[2] Mother’s affidavit, paragraph 79.
[3] Mother’s affidavit, paragraph 79.
[4] Mother’s affidavit, paragraph 80.
[5] Mother’s affidavit, paragraph 83.
[6] Mother’s affidavit, paragraph 84.
[7] Mother’s affidavit, paragraph 96.
[8] Mother’s affidavit, paragraph 98.
[9] Mother’s affidavit, paragraph 99; father’s affidavit, paragraph 83.
[10] Mother’s affidavit, paragraph 99.
[11] Mother’s affidavit, paragraph 108.
[12] Mother’s affidavit, paragraph 109.
The maternal grandmother deposes that most occasions, X became worn out from crying and shouting, at which point the mother was able to physically force her into the car.[13] She elaborated that on occasions members of the maternal family physically pinned X down to restrict all her movement and force her into the car.
[13] Maternal grandmother’s affidavit, paragraph 17.
On 12 August 2022 the father filed an Application – Contravention. Such application was dismissed by consent on 23 November 2022.
The mother commenced these proceedings on 29 August 2022 seeking to vary the time X spends with the father to each alternate weekend from 3.00 pm Friday to 4.00 pm Sunday and for two periods of five consecutive nights during school holiday periods.
On 27 September 2022 the father filed a Response simply seeking that such application be dismissed with the mother to pay the father’s costs.
On 28 October 2022 orders were made by consent that the parties engage in reportable family therapy with Ms B of C Counsellors (“the family therapist’).
From 13 December 2022 by agreement between the parties changeover of X between the parties took place at L Centre in Suburb G. The mother deposes that whilst X still became upset on occasions when told she was going to the father’s home, the mother was able to encourage X to attend pursuant to the current orders.
X commenced kindergarten at M School, Suburb G in February 2023 and for the most part changeovers between the parties’ households have occurred at X’s school. At other times the mother now buckles X’s seatbelt, lifts her out and takes her into the venue to meet the father which is:
…less problematic, quicker and less distressing. [The mother] is more positive about successful changeovers being able to occur. Christmas and birthday changeovers were successful for all.[14]
[14] Affidavit of the family therapist, page 22.
Subsequent to December 2022 X has generally lived with each of the parties in an equal time arrangement in accordance with the current orders.
From 7 April 2023 to 24 April 2023 X spent holiday time with each of the parents in accordance with the current orders.
THE PARTIES’ PROPOSALS
The mother seeks that the current orders continue and that each party pay their own costs. During the course of final submissions the mother advised that she would agree to an order that the family engage again in non-reportable family therapy with Ms B either fortnightly or monthly for a limited period of time.
The father seeks orders that X live with him and spend time with the mother from 3.00 pm Thursday until 9.00 pm Monday each alternate week. X would spend an additional two nights with the mother during short school holidays, and block periods of time over the Christmas school holidays in line with the current orders. During the course of final submissions the father advised that he seeks that the parties continue to engage in reportable family therapy with Ms B.
The orders agreed upon by the parties has been marked as Exhibit J3. The parties agree that they will continue to have equal shared parental responsibility and have further agreed to extensive orders as to special occasions, changeover, and communication.
Thus the ambit of the dispute to be determined by the court is the time X is to spend with each of the parties during school terms and school holidays, and whether family therapy is to be reportable.
THE EVIDENCE
The mother relied on the:
·Amended Initiating Application filed 28 April 2023;
·Affidavit of the mother filed 5 May 2023;
·Affidavits of the maternal grandmother and grandfather filed 5 May 2023; and
·Affidavits of the maternal aunt and her husband filed 5 May 2023.
The father relied on the:
·Amended Response to Initiating Application filed 5 May 2023;
·Affidavit of the father filed 12 May 2023;
·Affidavit of the paternal grandfather filed 5 May 2023;
·Affidavit of the father’s best friend and business partner filed 12 May 2023; and
·Affidavit of the family therapist, Ms B, filed 31 May 2023.
The Single Expert Report
In evidence is the Single Expert Report of Dr N (“the Single Expert”) dated 30 March 2023 (“the substantive report”) and a supplementary report by way of affidavit filed 11 May 2023 (“the supplementary report”). Broadly, the Single Expert’s recommendations were:
·The equal shared care arrangement to continue, with changeovers to occur at school wherever possible. An alternative week pattern could be considered in the next few years to ensure fewer changeovers and allow both parties to be involved in school activities.
·Equal shared parental responsibility to be ordered together with a consideration of the appointment of a parent coordinator to assist the parties in negotiating matters regarding X’s best interests.
·The family to continue family therapy.
·In the event the mother continued to contravene orders or denigrate the father then a change in time with each parent should be enacted so that the father have majority care. This would involve a move towards a 70/30 schedule and alternate “long weekends” being Thursday through to Monday with the mother or a continuation of the current schedule, however the father would have X in his care during the five-day allotments.
There was no challenge to the Single Expert’s expertise and I am satisfied she is suitably qualified to provide her opinion to the Court. I found her written and oral evidence to be clear, thoughtful and reasoned. She was an impressive expert witness. I give significant weight to her report and oral evidence which is discussed in more detail later in these reasons.
The evidence of the family therapist
The family therapist prepared an affidavit as to the nature of the family therapy undertaken by her with the family since November 2022 and her opinions with respect to same. At the time of her report the family therapist had undertaken approximately two sessions with the mother, four sessions with the father, one session with X and each of her parents separately, and one session with X and both parents. She was due to have a further session with the father in June 2023. The family therapist has numerous graduate and postgraduate degrees including a Masters of Gender and Cultural Studies, a postgraduate diploma in psychological science and counselling and a Bachelor of Arts – Sociology. Her qualifications were not challenged and I accept she is suitably qualified to provide her opinions to the court arising from her therapy with the family. Her evidence was not successfully challenged and I give it significant weight.
The lay witnesses
I had the opportunity to carefully observe both the parties during the course of the hearing. In cross-examination I found the mother to be evasive in her answers. I formed the view that if the mother perceived that an answer to a question would not assist her she would respond by asserting that she could not recall, did not know the answer, or was unsure. Whilst I will make specific findings based on the evidence, I approach the mother’s evidence with some caution.
The maternal aunt gave evidence on the mother’s behalf. She had to be told on several occasions during the course of her cross-examination to simply answer the question rather than telling the court what she wanted it to hear. As with the mother, I found the maternal aunt evasive in her responses and unable to recall evidence which she perceived would not assist the mother’s case. I approach her evidence with some caution.
The maternal grandmother was responsive in her answers and I found her to be a credible witness.
The father appeared to have difficulty in understanding the questions asked of him. This is not a criticism but an observation explaining his requirement to have questions asked again in a different manner. Whilst at times the father was unable to allow the question to be completed prior to answering same, I found him to be clear and responsive in his oral evidence. Whilst I will make specific findings based on the evidence, I found the father to be a credible witness.
The paternal grandfather was not required for cross examination.
I have read and considered all of the material relied upon by the parties but do not propose to traverse all of the evidence in these reasons; rather, I will address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
THE LEGAL PRINCIPLES
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA.
A child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M [1988] HCA 68. The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97.
There is a rebuttable presumption pursuant to 61DA(1) of the Act that it is in the best interests of a child that their parents have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of a child or family violence. (s61DA(2)). The presumption may be rebutted if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility (s61DA(4)).
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Meaningful relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright [2007] FamCA 520. The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Both the parties now agree that there is a clear benefit to X in having a meaningful relationship with each of her parents and I accept and find that this is so. Both parties agree that the orders sought by each of them promote at least substantial and significant time for X with both parents. What is at issue is how to best ensure that such meaningful relationships continue in the future.
Protection from harm arising from abuse, neglect or family violence
The father’s assertion that X is at risk of harm in the event the current care arrangements are to continue will be addressed later in these reasons in circumstances where it is not alleged that such harm arises from a risk of abuse, neglect or family violence in the mother’s care.
The mother alleged when commencing these proceedings that:
·X had been exposed to family violence perpetrated by the father upon her.
·X was at risk of harm from the father from his misuse of alcohol and his excessive use of pain medication.
·X was at risk of emotional and/or psychological harm from the father’s mental health issues as evidenced by his lack of control over his anger, telling X to “fuck off” in a very aggressive tone and losing his licence for speeding “during 2019”.[15]
·The father was cold and responsive to X’s distress and advice to the father that she did not want to spend time with him and at other times has not provided comfort to X when she is distressed and asking to be returned to the mother.
·X comes back from her time with the father depressed in mood and fatigued and has advised the mother she has been playing inappropriate video games.
·X appears scared of the father when she sees him on occasion and has had “angry outbursts, sobbing, has been depressed in mood and gone off her food in anticipation of going to [the father] or after coming back… I’m concerned about her mental health at this stage.”[16]
[15] Notice of Child Abuse, Family Violence or Risk filed by the Mother on 29 August 2022.
[16] Notice of Child Abuse, Family Violence or Risk filed by the Mother on 29 August 2022.
Despite these prior allegations and assertions, the mother no longer alleges that there are risk issues to X in the father’s care that would trigger the operation of this provision.[17] The mother’s change in this regard will be discussed further below. In any event, the mother now seeks that the current equal shared care regime continue. I am satisfied that there are no risks to X of physical or psychological harm arising from abuse, neglect or family violence in the father’s care.
[17] Outline of Case Document (Final Hearing) of the mother filed 16 June 2023, page 3.
THE ADDITIONAL CONSIDERATIONS
I turn now to the additional considerations as set out in s 60CC(3) as are relevant in this matter to determine what is in X’s best interests.
Any views expressed by the child
The mother informed the Single Expert that X has always struggled to attend visits with her father; a clear indication that X does not want to spend a significant amount of time with him.[18] It was the mother’s view at the time of her interview with the Single Expert that X’s wishes to reduce her time spent with the father should be respected, despite X being only five years of age at the time.
[18] Single Expert Report, paragraph 75.
During her interview with the Single Expert in February 2023 X initially stated that she wanted to spend time at both parent’s houses and then said “I don’t like to go to dad’s house.”[19] She then spoke fondly of both parents, stating she has fun with both of them and misses both when staying with the other parent. X then corrected herself and stated: “I don’t miss Dad, I miss O (the dog).”[20]
[19] Single Expert Report, paragraph 82.
[20] Single Expert Report, paragraph 82.
The mother deposes that subsequent to changeovers occurring at X’s school, X has been much less distressed and resistant to spending time with the father. The father concedes that he has observed X to sometimes be crying or generally upset when arriving for changeover but that within a few minutes of the mother leaving X is smiling and engaging in planned activities. This evidence was not challenged and I accept and find that it is so.
Having regard to paragraphs 68 to 74 of these reasons, I accept the Single Expert’s unchallenged opinion that X’s high level of alignment with her mother means that she is unable to consider an alternative perspective to that of the mother. I further accept the Single Expert’s unchallenged opinion that given X’s age and level of maturity her opinion regarding parenting matters should not be awarded considerable weight.
The nature of the child’s relationship with parents and other significant persons
I accept the unchallenged evidence of the Single Expert that X has warm and affectionate bonds with both her parents. X told the Single Expert that both parents are nice to her and there is nothing at either of the parties’ homes that she does not enjoy. The family therapist found X to be: “relaxed, comfortable, affectionate, and attentive to both parents when in their care.”[21]
[21] Affidavit of the family therapist, page 20.
The mother was X’s primary caregiver until the parties successfully implemented the equal care arrangement between them in December 2022 and it unchallenged that the mother remains X’s primary source of comfort. The family therapist deposes:
[X] also talked happily about activities with her mother, being at home, playing with her toys, spending time with her mother, grandmother and other family members. The recent dance competitions have been important to her, and this household has been deeply involved.[22]
[22] Affidavit of the family therapist, page 21
During her observation by the Single Expert X only experienced distress on separation from the mother. Such separation was not referable to the father as he had not been mentioned at that point.
The family therapist’s oral evidence was that during her sessions with X and the mother, X would check with the mother prior to answering questions. She opined that X was considered in her words and how she answered, especially for a child her age. Further, when X “…answered a question that she thought would be in her father’s favour, she turned her shoulder, turned her back, to answer questions.” Such observations led the family therapist to opine that there is some anxiety in X wanting to please her mother, especially around discussions with her concerning her father.
The family therapist recorded that she did not witness any anxiety in X wanting to please her father; her attachment to him is secure but is still growing and will require more time to reach a similar level of familiarity to that of the mother.
The family therapist deposes that X seems to be comfortable in the father’s care at his home and:
…talks of their outings, being at home, her toys, [O], the dog, games that she plays with her father and the creative and art projects they do together. She was happy to talk about bedtime, eating together and generally spending time with her father. They had their own jokes; [X] was affectionate with her father and comfortable to tease and disagree/correct him. I have no concern with [X]’s care or safety while with her father. [The mother] also holds this view.[23]
[23] Affidavit of the family therapist, page 21.
When told about the upcoming observation with her father by the Single Expert X stated “I don’t want daddy to come in here” but was unable to provide reasoning. X did not appear upset about the father’s impending arrival. The Single Expert opined that her observation of X when she saw the father and her behaviour with him appears to corroborate the changeover experience which has been less intense when there is reduced contact between the parties. This “lends weight to [the family therapist’s] suggestion that X is anxious about her mother’s perception about her relationship with [the father].”[24] I accept and find that X exhibits anxiety in wanting to please her mother and is anxious about her mother’s perception of X’s relationship with the father.
[24] Single Expert Report, paragraph 88.
X continues to live with the mother and maternal grandparents. The mother and her family are close and spend significant time together. It is uncontested that X has a warm and close relationship with her maternal grandparents. The Single Expert records that X spoke about missing the maternal family during the five-day periods spent away from them whilst with the father and that at the mother’s home she gets to see her grandparents, aunt and uncle and cousin every day and this is enjoyable. I accept and find that X has a very close relationship with the extended maternal family.
X’s relationships with her paternal grandparents were not observed. The unchallenged evidence of the paternal grandfather is that they have a loving relationship with X, who is their only grandchild. The paternal grandfather deposes that he and his wife “love spending time with X and are immensely proud of her.”[25] The paternal grandmother is a primary school teacher and shares pre-school activities with X, which she enjoys.
The capacity of each parent to provide for the child’s needs and the attitude to the child and responsibilities of parenthood demonstrated by the parents
[25] Affidavit of the paternal grandfather, paragraph 3.
The Single Expert opined that the interactions observed between X and both parents “showed comfort and familiarity”[26] and “did not raise any concerns as to either parent’s ability to attune and respond to X’s verbal and non-verbal emotional communications.”[27] X was soothed by both parties’ interactions with her; both parties were able to set limits with X and she responded well to their interventions.
[26] Single Expert Report, paragraph 86.
[27] Single Expert Report, paragraph 86.
The father asserts that the mother’s deficits in her parenting capacity and the attitude of both the mother and the wider maternal family places at risk X continuing a meaningful relationship with him; past events are predictive of future events.
The mother’s past allegations of risk
In cross-examination the mother affirmed that when commencing these proceedings she was of the view that X was at risk of harm in the father’s care arising from her allegations set out in paragraph 60 above; including exposure to family violence and the father’s misuse of alcohol and pain medication.
The mother now accepts that the father’s use of alcohol and pain medication is not a risk to X. “My evidence is what I have seen [the father] with X, I haven’t got evidence to the contrary. I have evidence which is that he is okay.”
The mother’s evidence to explain her change in position in this regard is as follows:
[Mr Victor] and I communicated about this and my concerns, and [Mr Victor] agreed that he would seek professional help. [Mr Victor] told me that he had attended AA meetings after consulting with Clinical Psychiatrist [Dr P]. I am unaware of [Mr Victor]’s current drinking habits but feel confident that he is now responsible with alcohol when caring for [X].[28]
[28] Mother’s affidavit, paragraph 155.
The mother conceded in cross-examination that she had no evidence of the father’s alcohol use other than her own observations when she has seen him with X: “My evidence is what I have seen Mr Victor with X, I haven’t got evidence to the contrary. I have evidence which is that he is okay.”
It was not submitted on behalf of the father that I should find that the concerns initially expressed by the mother were not genuine, and indeed I am unable to make such a finding on the evidence before me. I am not satisfied, however, that the mother provides an adequate explanation for her significant change of view as to any risk of harm to X whilst in the father’s care.
The mother’s ability to involve the father in important decisions
Upon their marriage both parties by agreement changed their surname to a hyphenated and agreed that any child of the relationship would bear the same surname. In evidence (Exhibit F2) is the birth registration statement completed by the mother and witnessed by an officer of the New South Wales Registry of Births, Deaths and Marriages in early 2018. It does not record any details as to X’s father. The mother conceded in cross examination that she did not want the father listed as X’s father. When asked why the mother failed to list the father on the birth certificate her answer was “I couldn’t sign for him” and that whilst she could have sent him the form in the post, she did not, as “it was very volatile at the time.” The mother conceded that she would not have had to see the father if she sent it to him but she chose not to do so, and that she made the decision to list X’s surname as “Victor” only, despite the parties’ prior agreement.
The mother did not provide a copy of the issued birth certificate for X (which had no details listed for the second parent) to the father until she was required to do so by consent orders dated 24 September 2018. Pursuant to a later consent order of 17 October 2018 the parties were required to add the father to X’s birth certificate and change her registered surname. In evidence (Exhibit F4) is the form required to give effect to such order executed by the father in October 2018 and the mother in December 2018. Recorded on this form as the mother’s reason for the amendments is:
The father did not sign the birth registration form and the parents separated on 4.2.18. The father was placed on a DVO and it was difficult to obtain details.
The mother could not recall during cross-examination what she told the person at the New South Wales Registry of Births, Deaths and Marriages. She conceded that there was no Apprehended Domestic Violence Order in place at the time she registered X’s birth. This reflects poorly on the mother’s ability to promote a relationship between X and the father.
During the course of cross-examination the mother conceded that the decision to christen X was significant. Despite its significance the mother did not advise the father of her decision to christen X, nor were the father or any members of his family invited. The father deposes that he only learnt of X’s christening when he found a photo of it on Facebook. When asked how she thought the father felt about this the mother stated “horrible.” The mother was unable to answer the proposition that the father felt horrible as a result of a decision she had made, or the question of how she would explain to X why her father was not at her christening. The mother’s actions again do her little credit and appear to be simply vindictive – certainly not in X’s best interests.
The mother conceded she did not advise the father prior to having X vaccinated. The mother conceded she did not consult with the father about her decision to not enrol X in preschool as: “I assumed [the father] would let me know if he had other thoughts.” This again does her little credit.
The mother conceded that she was aware that the father was keen to consider X attending Q School. The mother wanted X to attend M School. She did not attend at Q School to look at the school in the year of X’s commencement, nor did she ask for an enrolment form. The mother conceded in cross-examination that she did not consider X attending the school the father wished her to attend.
The mother’s apparent inability to consider that the father had a meaningful contribution to make to joint parental decisions, and by attending important events, does her little credit. I accept that at the time the mother did not see the father’s input as beneficial to X’s upbringing. I accept the Single Expert’s unchallenged opinion that:
This is a poor prognostic sign of the ongoing work ability of shared parental responsibility and will likely require intervention in order to shift.[29]
[29] Single Expert report, paragraph 93.
In cross-examination it was put to the mother that she had not allowed the paternal grandparents to attend the hospital following X’s birth, which she denied. She was read an extract from an expert report which was not tendered into evidence. She agreed that she had made those statements to the report writer. That extract ran as follows:
She explained she did not want them to come alone as they were too hard, so had told [Mr Victor] that they could only come when her family was there as well. When questioned further, [Ms Victor] stated that her parents-in-law didn’t end up coming to the hospital because they didn’t want to.
The mother’s inability to facilitate the paternal grandparents attending and meeting their granddaughter is unfortunate and reflects poorly on her.
Denigration of the father
The father deposes that subsequent to the making of the current orders:
·On at least ten occasions, X has said to the father unsolicited:
·“Mummy and Nanny say you are a nasty man”;
·“You are a liar”;
·“This is not sustainable”;
·“The situation needs to change”;
·“Mummy says you hurt her”; and
·“The things we do together are dangerous and are not age appropriate.”[30]
[30] Father’s affidavit, paragraph 43.
·On at least five occasions, X has said to the father words to the effect of: “Mummy and Aunty Ms S and Grandpa and Nanny were all talking about all the things they are going to do without me like going to the shops, and walking in the park. I want to go with them.”[31]
·On at least 20 occasions since mid-2021, X has said to the father:
·“I don’t know if Mummy will come and get me from your place”;
·“Am I staying here for a long time?”; and
·“Will I ever see Mummy again?”[32]
·In August 2021, X was distressed and crying for several hours through the night while in his care. She asked the father, “Do you love me?” and when he reassured her that he did, she responded “Mummy said that Daddy doesn’t love you and that you are not a real part of my family.” She further told him, “Mummy said I was never going to see you again.”
·In late 2022, the paternal aunt was planning to move house the following weekend. X excitedly offered to help by looking after the paternal aunt’s cats while she moved. X then became withdrawn but would not tell the father what was wrong, saying “I’m not allowed to tell you Daddy.” X then asked the paternal grandfather to go outside and had a conversation with him, which she told the father he was not allowed to hear. The paternal grandfather relayed to the father that X had told him “… she wasn’t going to be able to look after the cats. She said that Ms Victor won’t let her come because Ms Victor hates you. X then told me that she feels guilty because she said she would look after the cats… X says that she was instructed to ‘not tell Daddy’ so she told me instead.”[33] The paternal grandfather gave similar evidence in his affidavit.[34] He was not cross examined.
[31] Father’s affidavit, paragraph 46.
[32] Father’s affidavit, paragraph 47.
[33] Father’s affidavit, paragraph 87.
[34] Paternal grandfather’s affidavit, paragraph 29.
The father submits that orders providing for X to be in the majority care of the father will provide her with increased opportunities to spend time with him free from the mother’s influence and a reduction in the opportunity for the maternal family to denigrate the father to X.
This is a finely balanced case. I am required to weigh the certain harm to X in suffering significant distress in being removed from her primary attachment figure if I accede to the father’s proposal against the potential harm to X in not maintaining a meaningful relationship with the father in the future having regard to the limitations of the mother’s parental capacity and the inability of the maternal family to promote a meaningful relationship.
It appears that, at least in part, the Single Expert’s hope that X’s transition to school and the subsequent lack of contact between her parents would lessen the intensity of X’s dilemma of competing loyalties has come to fruition. I am satisfied that the conduct of the mother and the maternal grandparents in the past has not been child focused and has not promoted X’s relationship with the father. I am unable to make a positive finding based on the evidence as to why X now appears able to transition between the parties’ respective care. I am unable to make a finding that the apparent change in X’s attitude to spending time with the father has arisen solely from the mother’s perceived change in attitude, nor am I able to make a finding as to whether the mother’s perceived change in attitude is sincere or merely self-serving in light of the Single Expert’s opinions. It is uncontested that for whatever reason/s, subsequent to December 2022 X is managing to live with each of the parties in an equal shared care arrangement pursuant to the current orders.
Balancing the certain harm if I were to order a change in X’s residence against the potential or possible harm if I make orders maintaining the status quo, I find that it is in X’s best interests to maintain an equal shared care arrangement.
During final submissions the father advised the Court that in the event X’s current equal shared care arrangement is to continue he agreed with the Single Expert’s opinion that an arrangement with fewer changeovers and changing days would be more suited to X as she matures. The Single Expert opined that: “an alternative week pattern could be considered in the next few years to accommodate growing school commitments, a dedicated changeover day and allowing both parents to be involved in school activities.”[54] This opinion was unchallenged in cross-examination.
[54] Ibid, paragraph 99(l).
The mother advised that she did not agree to any change in the current shared care regime. This will result in X continuing to experience four changeovers a fortnight between the parties’ households. No submissions were made by the mother as to why the Single Expert’s opinion should not be adopted, nor how her proposal with frequent changeovers was in X’s best interests.
I am satisfied, grounded upon the Single Expert’s unchallenged opinion, that it is in X’s best interests that the equal shared care regime move to an arrangement with fewer changeovers and having a dedicated changeover day. I am satisfied that such change should occur when X commences Year Three of primary school with changeover to be at the commencement of school or 9.00 am each Monday.
Family therapy
Both parties agree with the Single Expert’s opinion that it would be helpful for X and the parties to continue family therapy to support X with emotional regulation and it is hoped that the current family therapist will be able to provide this to both parents equally.[55] It is uncontested that both parties would benefit from receiving targeted strategies about how to talk to X when she expresses a negative opinion about the other parent and to understand the impact of ongoing denigration on X. Such therapy should also address the mother’s permissive and overprotective parenting style. I am satisfied that it is in X’s best interests that the family therapy should continue with the same therapist that has assisted the family previously so as to avoid X having to establish a relationship of trust with another party.
[55] Ibid, paragraph 99(j).
In light of my earlier findings, I adopt the position of the father that the family therapy should be reportable so as to keep the parties accountable. I am satisfied that such therapy should be limited in both its duration and frequency to avoid any potential disputes in the future. The parties are of course at liberty to engage in further therapy in the future if they agree it is of benefit.
Further orders including consensual orders
In circumstances where X continues to live in the home of the maternal grandparents it is in her best interests that they are fully aware of the negative impact their conduct to date has had on X and its potential for harm to X in the future. I am satisfied that it is in X’s best interests that the mother be required to provide a copy of this judgement to the maternal grandparents. It is hoped that this assists them in recognising they must regulate their behaviour in the future for their granddaughter’s emotional and mental well-being.
In light of the above findings made by me I am granting the father leave to relist this matter for the next 12 months by emailing my chambers in the event that he asserts there is non-compliance by the mother with the above orders.
The balance of the orders sought by the parties by consent mirror many of the current final parenting orders of 2019. There is no evidence that these orders have not worked to date and I am therefore satisfied that it is in X’s best interests that they continue in the future. In light of the opinions of both the Single Expert and the family therapist that it is of fundamental importance to X’s emotional and mental well-being that any continued alienating behaviour or negative conversation about the father around X cease, the injunctive order consented to by the parties in this regard is of utmost importance and must be heeded. I will thus make the balance of the orders as sought by the parties.
CONCLUSION
The mother must be under no misapprehension as to the consequences of the findings I have made with respect to her conduct and parenting capacity to date. The weighing of the competing considerations, while closely balanced, supports the relief sought by the mother in circumstances where X is currently enjoying the benefit of spending equal time with each of her parents pursuant to the current orders. The mother has a positive obligation to facilitate X continuing with family therapy and living in a shared care arrangement with each of the parties. Token compliance is not sufficient. The mother is now clearly aware of the various forms of assistance available to her should she allege she experiences difficulty in the future in implementing the equal shared care regime. The Single Expert has clearly opined that it is important that the mother “seeks support in understanding her own behaviour and making changes, otherwise she risks further harming [the child’s] emotional well-being and identity development.”[56] I do not propose to make an order requiring the mother to obtain such assistance – her doing so must come from her own willingness to accept her parenting limitations and seek to improve them.
[56] Single Expert Report, paragraph 99(m).
The mother should be under no illusion as to what may be the binary options in the event the orders made by me are not complied with and further litigation is necessary.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 20 July 2023
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