Ward & Downs
[2025] FedCFamC2F 154
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ward & Downs [2025] FedCFamC2F 154
File number(s): HBC 343 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 12 February 2025 Catchwords: FAMILY LAW – parenting – final orders – parental responsibility – live with arrangements – mother’s allegations of coercion or control by father – what constitutes coercion or control – findings that father’s behaviour did not amount to coercion or control – not necessary to make definitive findings in respect allegations of sexual assault – order for joint parental responsibility on conditions – order for significant and substantial time progressing to equal shared care Legislation: Family Law Act 1975 (Cth) Part VII, ss. 60B, 60CA, 60CC, 60CC(2)(a), 60CG, 102NA, 102 NA(1)(c)(iv) 102NB
Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2
Cases cited: Aldridge & Keaton (2009) 235 FLR 450
Friseal & Friseal [2025] FedCFamC2F 75
Garrido & Garrido [2024] FedCFamC2F 634
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
MRR & GR [2010] HCA 4
Pickford & Pickford [2024] FedCFamC1A 249
Division: Division 2 Family Law Number of paragraphs: 79 Date of hearing: 20-21 May 2024, 29-31 January 2025 Place: Hobart Counsel for the Applicant: Mr Verney SC Solicitor for the Applicant: CDG Law Counsel for the Respondent: Ms Mooney SC on 20-21 May 2024, then the Respondent in person Solicitor for the Respondent: Jacobs Family Law, then the Respondent in person Counsel for the Independent Children’s Lawyer: Ms Ryan Solicitor for the Independent Children’s Lawyer: Dobson Mitchell & Allport ORDERS
HBC 343 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WARD
Applicant
AND: MS DOWNS
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.All prior parenting orders are hereby discharged.
Parental Responsibility
2.The Applicant Father MR WARD (“the Father”) and the Respondent Mother MS DOWNS (“the Mother”) (collectively “the parents”) have joint decision-making responsibility in relation to major or long-term issues in relation to the child X born in 2019 (“X”) and in exercising this responsibility the parents must:
(a)Consult with each other in relation to the proposed decision; and
(b)Make a genuine effort to come to a joint decision.
3.For the purpose of exercising decision making responsibility pursuant to Order 2 of these Orders, the following terms will apply, except in the case of an emergency:
(a)If one parent proposes to exercise decision making about a long term or major issue, they must notify the other parent in writing of the proposed decision and their reason(s) for it;
(b)The parent receiving notice pursuant to sub-paragraph (a), must within 14 days provide their written response to the proposed decision, indicating if they disagree and if so, providing their reason(s) and/or suggest an alternative;
(c)Within 14 days of receiving the response in subparagraph (b) genuine consideration will be given to the reasons and any alternative exchanged by the parents and the parents must attempt to reach a child-focussed decision; and
(d)For the purpose of the written notice or response required by this order, the parents will communicate via AppClose.
4.Where the parents cannot reach agreement about a major or long-term decision relating to X pursuant to Order 3 of these Orders, the Father will have authority to make the required decision and do any act or thing reasonably necessary to give it effect and must notify the Mother in writing within 24 hours of making the decision.
5.Order 4 of these Orders does not give the Father authority to relocate with X to a location such that it would make it more difficult for X to live with and spend time with the Mother pursuant to these Orders.
Live with and spend time arrangements to January 2027
6.X live with and spend time with the Father as follows, and at all other times until January 2027 will live with and spend time with the Mother:
(a)From the date of these Orders and until the Easter holiday period in 2025:
(i)Each alternate weekend from the conclusion of school Friday (or from 5:00pm if a non-school day) until the commencement of school Monday (or from 5:00pm if a non-school day); and
(ii)Each Wednesday from the conclusion of school (or from 5:00pm if a non-school day) until the commencement of school Thursday (or from 5:00pm if a non-school day).
(b)From Wednesday 23 April 2025 (being during the Easter holidays) to the end of Term 4 2025:
(i)In Week One, from the conclusion of school on Wednesday (or 3:00pm if a non-school day) until the commencement of school on Friday (or 3:00pm if a non-school day);
(ii)In Week Two, from Friday at the conclusion of school (or 3:00pm if a non-school day) to the commencement of school on Monday (or 3:00pm if a non-school day).
(c)From Wednesday 7 January 2026 (being in the Christmas school holidays) to the school holidays at the end of Term 4 2026:
(i)In Week One with the Father from the conclusion of school Wednesday (or 3:00pm if a non-school day) until the commencement of school on Friday (or 3:00 pm if a non-school day); and
(ii)In Week Two with the father from the conclusion of school Wednesday (or 3:00pm if a non-school day) until the commencement of school on Monday (or 3:00pm if a non-school day).
Live with and spend time arrangements from January 2027
7.From the second Monday in January 2027, X live with and spend time with the parents in a seven (7) night on and seven (7) night off basis with changeovers to be on Monday at the commencement of school (or 3:00pm if a non-school day), with the Father’s seven (7) days commencing in what would otherwise be his longer spend time week with X.
Special Occasions
8.Orders 6 and 7 of these Orders be suspended on the following special occasions, and unless otherwise agreed in writing, X will spend time with each of his parents as follows:
(a)At Christmas:
(i)In even numbered years, with the Father from 5:00pm on Christmas Eve until 5:00pm on Boxing Day;
(ii)In odd numbered years, with the Mother from 5:00 pm on Christmas Eve until 5:00 pm on Boxing Day;
(b)For Mother’s Day, with the Mother from 5:00pm the day before Mother’s Day to the commencement of school Monday (or 3:00pm if a non-school day).
(c)For Father’s Day, with the Father from 5:00pm the day before Father’s Day to the commencement of school Monday (or 3:00pm if a non-school day).
THE COURT NOTES THAT:
A.For the avoidance of doubt, at the conclusion of special occasions or any other variation to the Fortnightly Pattern, X’s time with the parents will resume immediately thereafter as though it had not been interrupted and operates on a continual repeating basis, overlayed by the special occasion and school holiday arrangements set out above.
Changeover of Care
9.That changeover of care will occur as follows:
(a)When changeover is due to occur at the commencement or conclusion of school, changeover will occur at X’s school;
(b)Changeover on non-school days (including days when X is unwell and unable to attend school) will occur:
(i)Unless otherwise stated in these Orders, at 3:00pm; and
(ii)The parent who is concluding their time with X will return X to the other parent’s home, with the returning parent not to enter onto the property of the other’s home, but may walk the child to that boundary to ensure the child transitions safely to the other parent’s care.
(c)Each parent may delegate changeover to another adult known to X and the other parent and will use all reasonable endeavours to ensure that this person is aware of and abides by the terms of this Order.
10.In the event that X becomes unwell at school on a day when changeover is due to occur and needs to be collected from school early, the parent who is due to spend time with X from the conclusion of school that day will be responsible for collecting X early.
Additional Parental Responsibility Orders
Medical and health
11.Except in the case of a genuine medical emergency or situation of urgency, X’s General Medical Practice (“GP”) is the B Clinic, C Street, Suburb D , unless otherwise agreed between the parents in writing.
12.Either parent can arrange X’s routine childhood vaccinations on or before the month they fall due, and also influenza, Covid-19 or other vaccinations if recommended by the GP and for this purpose the parent making the appointment for X:
(a)Is to facilitate his attendance at the appointment; and
(b)Will notify the other parent in writing within seven (7) days of the appointment being made; and
(c)Will notify the other parent in writing within twenty four (24) hours once the vaccinations are administered.
13.That except in respect of vaccinations, within 48 hours of X attending a consultation with his GP the parents will inform each other of:
(a)X’s diagnosis;
(b)Any medication or treatment prescribed; and
(c)Any referrals made to medical specialists including the full name and contact details of the specialist to whom a referral has been made.
14.Each parent has full authority to speak with X’s GP and any treating medical specialists or other health professionals (including but not limited to mental health professionals, occupational therapists, physiotherapists, dentists, and orthodontists) to obtain medical records, feedback, and information in relation to X’s health and treatment at any time regardless of whether that parent is the person who has attended or facilitated X’s appointments with that professional.
15.In the event that X requires urgent or emergency medical treatment, the parent with whom X is living at the time will notify the other parent as soon as possible by AppClose call, and will provide details of:
(a)The nature of the injury, illness or condition which requires urgent/emergency medical treatment;
(b)The location of the hospital or medical clinic where X is being treated; and
(c)If known, the name of the doctor in charge of X’s medical treatment.
16.In the event that X attends hospital in a medical emergency, both parents are permitted to attend the hospital.
17.In the event that X is admitted to hospital for scheduled medical treatment, subject to the hospital’s policies and procedures:
(a)The Father or a third party nominated by him and known to X is permitted to stay in hospital with X on the days when X is living with him pursuant to these Orders; and
(b)The Mother or a third party nominated by her and known to X is permitted to stay in hospital with X on the days when X is living with her pursuant to these Orders.
Education and extracurricular activities
18.Unless otherwise agreed between the parents in writing, X will attend E School until the conclusion of his Year 10 education.
19.Each parent will bear responsibility for 50 per cent of the cost of X’s attendance at E School.
20.Each parent has full authority to communicate directly with X’s school to obtain newsletters, updates, school reports, school photographs (at his or her own expense) and any other information ordinarily available to parents.
21.Each parent is permitted to attend parent/teacher meetings at X’s school.
22.Each parent is restrained from engaging or enrolling X in an extracurricular activity or event (including birthday parties or play dates) which encroach on time when X is living with the other parent unless agreed in writing by both parents.
Return of belongings and clothing
23.Each parent will ensure that all items and clothing brought or provided with X at changeover from the other parent’s home will be returned at the next changeover.
Daily routine and responsibility for cost of child care
24.Each parent is responsible for determining X’s daily routine and care arrangements for when X is living with them.
25.If either parent is unable to care for X for a period of five (5) or more consecutive nights, during any time X is living with that parent (i.e. because of work commitments, illness, or travel), that parent will offer the other parent the opportunity to care for X during the period of unavailability.
26.Where a parent arranges for X to attend childcare (including before or after school or during school holidays) on days when X is living with them, that parent is solely responsible for the costs of the childcare service.
Communication between parents
27.Except in the case of an emergency, the parents will communicate in writing using the AppClose app;
28.In the event of an emergency, the parents will communicate with each other by audio call using AppClose or, if AppClose is not available (e.g. because there is no internet connection), by phone call as soon as possible with the correct number to be provided within twenty four (24) hours of these Orders being made;
29.At all times, the communication between the parents will be conducted in polite, child-focused language, and will be limited to matters directly related to X including exchange of information as required by these Orders.
30.Where these Orders refers to notice being provided in writing, that means via the AppClose app.
Communication between X and the parents
31.X will communicate with the parents by audio or video call on Monday when X is not in their care, with the parent who has him in their care to initiate the call between 7:00pm and 7:30pm;
32.In the event that X requests additional communication with the parent with whom he is not currently living, the parent with care of X will notify the other parent in writing and will use their reasonable endeavours to arrange for such communication to occur within a timely manner.
Travel
33.Each parent is permitted to travel interstate with X at any time when X is ordinarily living with them pursuant to these Orders provided that they notify the other parent in writing at least seven (7) days prior to the date of departure of:
(a)The location to which X will travel; and
(b)The date and estimated time of X’s return to Hobart.
34.Subject to the terms of Orders 36 and 37 of these Orders, the Father is permitted to take X on overseas holidays once in each twelve (12) months period which encroaches on time when X would usually be living with the Mother.
35.That subject to the terms of Orders 36 and 27 of these Orders, the Mother is permitted to take X on overseas holidays once in each twelve (12) months period which encroaches on time when X would usually be living with the Father
36.For the purposes of Orders 34 and 35 of these Orders, and unless otherwise agreed in writing between the parties:
(a)The total period of travel:
(i)Will not exceed fifteen (15) days unless otherwise agreed between the parents in writing;
(ii)Must include the Term 1, Term 2, Term 3 or Term 4 school holiday period; and
(iii)Unless otherwise agreed between the parents, will not encroach on the non-travelling parent’s special occasion time with X, or X’s schooling.
(b)The travelling parent must:
(i)Not travel to a country which is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
(ii)No less than sixty (60) days prior to the intended date of departure, notify the non-travelling parent in writing of the dates of departure and return and the location/s to which X will travel;
(iii)No less than fourteen (14) days prior to the intended date of departure, provide to the non-travelling parent copies of paid return airline tickets to Tasmania;
(iv)Maintain comprehensive travel insurance for X for the total period of travel;
(v)Inform the non-travelling parent of a method by which X will be contactable for the duration of travel if not by the travelling parent’s usual Australian mobile telephone number.
37.Unless otherwise agreed between the parents in writing, when X is travelling either overseas or interstate, the travelling parent will facilitate X’s communication with the non-travelling parent by initiating communication with the non-travelling parent which, as much as reasonably practicable with respect to time differences, allows X to communicate with the non-travelling parent on the allocated day being Sunday between 7:00pm and 7:30pm in the time zone in which X is staying.
38.Within fourteen (14) days of a request being made by one parent to obtain or renew a passport for X, the parents will do all such things and sign all such documents necessary to apply for or renew an Australian Passport for X at the expense of the Mother.
39.The Father is to hold X’s passport and provide it to the Mother, within fourteen (14) days of a written request by the Mother, for the purposes of X’s overseas travel pursuant to Order 35 of these Orders or for the purpose of obtaining a visa for X.
40.Within eight (8) days of the date of X’s return from overseas with the Mother or submitting a visa application for X, the Mother must return X’s passport to the Father.
Protections and Restraints
41.Each parent is restrained by injunction from:
(a)Making video or audio recordings, or taking photographs, of changeovers;
(b)Publishing images or referring to the other parent or members of his or her household on any social media platform;
(c)Abusing, denigrating, harassing, or belittling the other parent or members of the other parent’s household at any time verbally or in writing, including in X’s presence or hearing;
(d)Using profanity when communicating with the other parent;
(e)Discussing any allegation raised by either party in these proceedings with X;
(f)Stalking the other parent within the definition of stalking pursuant to the Family Violence Act 2004 (Tas); and
(g)Exposing X to parental conflict or family violence as defined by section 4AB of the Family Law Act 1975 (Cth).
Psychological Treatment
42.The parties are to each continue to engage with their treating psychologists and/or mental health practitioners for as long as recommended, and must follow treatment plans as advised by such practitioners.
Provision of Orders
43.The parties have leave to provide a copy of these Orders to:
(a)X’s GP or any treating medical practitioner for X; and
(b)E School.
44.Each party has leave to provide a copy of the following documents to his/her treating psychologist:
(a)These Orders;
(b)The Single Expert Report of Dr F dated 4 November 2024; and
(c)The Family Report dated 9 February 2024.
Other Orders
45.All extant applications or proceedings concerning the parents and X are dismissed.
46.The Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
These proceedings concern X (“the child”) born in 2019, now aged six years. The applicant is his father Mr Ward (“the father”) and the respondent is his mother Ms Downs (“the mother”).
The defended hearing commenced before me on 20 May 2024 and was adjourned part-heard due to the father giving evidence for the first time about mental health difficulties during the relationship and which had apparently not been seen as relevant. At this time, both parties were represented by Senior Counsel.
I made an order for the parties to engage a single expert psychiatrist to assess the parties and provide a report to the Court. I considered this necessary because each party to some extent maintained that the other’s mental health impacted their parenting capacity or posed a risk of harm to the child.
The Single Expert report of Dr F was released to the parties on 4 November 2024. The defended hearing then resumed on 29 January 2025. The father continued to be represented by Senior Counsel, however the mother appeared self-represented because I had declined to make an order pursuant to s102NA of the Family Law Act 1975 (Cth) (“the Act”). However, procedural orders were made pursuant to s102 NB of the Act in recognition of allegations of historical family violence in circumstances where I was not persuaded to exercise my discretion and make an order pursuant to s102NA(1)(c)(vi) of the Act.
ISSUES TO BE DETERMINED
The issues to be determined relate to two central matters:
(a)Parental responsibility and major or long-term decision making for the child. The father initially sought an order for sole parental responsibility, but ultimately pursued an order for joint decision making subject to the condition that he make the decision if the parties cannot agree. The mother sought a joint decision-making order, with terms for how the parties should reach agreements and default decision making by her if agreement is not reached; and
(b)Live with and spend time arrangements for the child, including the pattern and rate of progression of increase of the child’s time with the father.
THE PARTIES’ CASES
As both parties changed their positions regarding the final orders they sought during the defended hearing, it is preferable for clarity of reasoning and comprehension that I address their final contentions and orders sought only.
In summary, the father’s case was that:
·The mother has demonstrated poor communication and mistrust, making joint decision-making impractical. He emphasised the importance of the child’s relationship with both parents and significant others, and he argued that the mother’s actions were potentially damaging these relationships;[1]
·In support of the order for joint decision-making conditional on him being solely responsible for the decision to be taken if the parties could not agree, he argued that the mother’s failure to inform and include him in decision making and lack of trust between the parties warranted him being authorised to make decisions in event of impasse;
·He relied on evidence which he says demonstrated that he can better meet the child’s developmental, psychological, and emotional needs, providing a stable and supportive environment;[2] and
·The father also sought orders for equal care and immediate progression to that, due to the strength of the child’s relationship with him, the child’s resilience and sound developmental progress.
[1] Case Outline of the father filed 16 May 2024 at [31] and [32].
[2] Case Outline of the father filed 16 May 2024 at [18].
The mother’s case, in summary, was that:
·She should remain the primary carer for the child, noting that role has been discharged by her in the past since the child’s birth. The mother adopted the Independent Children’s Lawyer’s position in relation to how the 9/5 arrangement should progress to block time, noting that it was presently a 9/5 arrangement across a fortnight involving five changeovers;[3]
·Having heard preliminary remarks about the likely benefits to a child of having both parents contribute to major decisions as they may bring different perspectives and strengths to the decision to be made, the mother proposed an order for joint decision making. However, she also sought specific terms about how the parties were to seek to agree, including attendance on mediation. Ultimately in default she sought an order authorising her to make the required decision alone.
[3] Affidavit of the mother filed 7 May 2024 at [39].
CONTROVERSY ABOUT ALLEGED SEXUAL ASSAULT
Senior Counsel representing the father in effect submitted that the mother’s allegation that the father had sexually assaulted her in 2018 and that this assault led to the child’s conception, was false and central to the lack of trust between the parties. He submitted that this was a major consideration in determining why there should not be joint decision making for the child.
The allegation in these proceedings was first made by the mother in her affidavit filed 7 May 2024. She had not given a description of this event in any way capable of interpretation as non-consensual sexual intercourse previously. In particular, it is not mentioned in her Notices of Risk filed 14 June 2022 and 27 April 2023, to the Sexual Assault Support Service (“SASS”),[4] or to the Court Child Expert.[5]
[4] Exhibit A22.
[5] Child Impact Report dated 17 August 2022 and tendered as Exhibit ICL3; Family Report dated 7 February 2024 and tendered as Exhibit ICL4.
During her oral evidence, the mother stated that she had told police in early 2022 that the father had sexual intercourse with her without a condom when they had agreed that one would be used and that it was at this time, due to comments by police, that she formulated the view that she had been raped or sexually assaulted.
The effect of the mother’s evidence is that she did consent to sexual intercourse, but now says that her consent was conditional on the father not ejaculating until a condom was in use. However, she has not previously stated this.
The father denies the mother’s allegation as now framed in her affidavit and oral evidence, and he steadfastly maintained that the pregnancy was planned and that the mother did not require use of a condom at the time the child was conceived.
Relatively contemporaneous information within to mother’s general practitioner records do not corroborate the mother being offended, upset or aggrieved by the pregnancy, nor any complaint that the pregnancy occurred through the father ejaculating without a condom contrary to their previous agreement. [6] It records the mother being “happily pregnant” in 2018 and inferentially in my view corroborates the father’s evidence that the pregnancy was planned.
[6] Exhibit A20.
I am not required by law,[7] and I do not consider it necessary to make a definitive finding that the father did or did not rape or sexually assault the mother at the time the child was conceived, for the following reasons:
(a)The parties have different accounts about whether the intercourse was conditional on use of a condom, something that is unlikely to be remembered some five years post a specific date and when conception may or may not have occurred on that date. The evidence before the Court does not permit a safe finding about the date of the child’s conception, particularly given that both parties were consistent in saying that different forms of contraception were used during their relationship, and accurately recalling what type was used and when seems unlikely;
(b)The state of the evidence does not rise to the level of the Court being satisfied on the balance of probabilities that one party’s evidence is to be preferred to that of the other, but I place great weight on the views of Dr F, which I accept. In effect, he stated that it is not uncommon and is intrinsic in human nature for individuals to form perceptions of events in the past that are not necessarily consistent with objective facts;
(c)Both parties gave evidence that the child was wanted from very soon after the now-alleged sexual assault, which is not entirely congruous with the act of conception being non-consensual;
(d)There are other more pertinent facts and considerations that inform the issues in dispute and what parenting orders should be made as addressed in the following reasons; and
(e)Making a definitive finding would be counter-productive to promoting a positive co-parenting relationship for the child when the parties agree that the child should spend significant time in the care of the other parent.
[7] Pickford & Pickford [2024] FedCFamC1A 249 per McClelland DCJ at [36], per Alridge and Carew JJ at [48] and [49], and per Austin and Williams JJ at [80].
LEGAL PRINCIPLES
In addressing the issues outlined above and determining what parenting orders are in the best interests of the children, the principles of law are well established. As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Act.
I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive, non-hierarchical considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[8] Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[9]
[8] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2; and Aldridge & Keaton (2009) 235 FLR 450.
[9] Sections 60B and 60CG of the Act.
Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remain important because of the need to make parenting orders that promote the safety and welfare of children.[10]
[10] Section 60CC(2)(a).
I consider that the assessment of risk of harm to a child remains informed by the principles established in MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.
In Friseal & Friseal [2025] FedCFamC2F 75 (“Friseal”), I discussed the meaning of coercion or control and how it may, depending on the circumstances, constitute family violence. I provided a summary of relevant legal principle as to the meaning of coercion or control. At [27] of my reasons, I stated:
The notion of command or dominating influence, whether by physical or verbal means, that causes another to comply, act or agree contrary to their own will is at the core of coercion or control and amounts to family violence under the Act. Compliance that occurs due to ambivalence, acquiescence or indifference is unlikely to constitute coercion or control.
In my view, nothing which I stated in my reasoning in Friseal stands contrary to anything which the Full Court has stated in Pickford & Pickford [2024] FedCFamC1A 249 (“Pickford”) Further, the reasoning of the Full Court is entirely consistent with the proposition I put to Counsel for the ICL in these proceedings, namely that a finding of coercive or controlling conduct by an alleged perpetrator of family violence is one to be made on an objective basis and is not to be assessed purely on the subjective perception of the conduct on a purported victim.
In short, coercive or controlling conduct only amounts to family violence under the Act if the conduct which dominates or causes a person to act contrary to their will, is objectively found to have that effect on the balance of probabilities. If it were otherwise, any truthfully given subjective evidence that a person was controlled or dominated by any conduct of another would constitute family violence. I cannot accept that to be the case and in my view is contrary to what is intended by the Act.
I illustrate this proposition by extreme example. If a person with a mental health diagnosis which causes them to disassociate or suffer delusions from time to time, believes their partner is coercive or controlling because they repeatedly remove or hide the keys to the family car, it would be necessary to find objectively and on balance of probability that the keys were removed to deprive the person’s ability to drive as a means of controlling them in the home, rather than because there was objective concern that the keys would permit the person to drive and put themselves or a child at risk.
This reasoning is entirely consistent with the reasons of Austin and Williams JJ in Pickford at [105] and [109], with which I agree.
FINDINGS ABOUT RELEVANT CONSIDERATIONS
Family violence including coercion or control
The mother alleges that the father perpetrated family violence including by exercising coercion or control, to which the child was exposed. Her trial affidavit includes extensive evidence about these allegations at [311] to [389]. Overall, her evidence and that of the father[11] satisfied me that the parties had different likes and dislikes or preferences which caused discord and break down of the relationship. However, by her own evidence the mother states that she would pursue her own preference and likes either overtly or covertly, from which I infer that she was not dominated or controlled.[12]
[11] Transcript of proceedings dated 20 May 2024 on pages 123 and 124.
[12] Eg. [311], [318], Annexure “R” and many of the text exchanges between the parties about various topics.
Many, but not all, of the detailed examples of behaviour to which the mother affirms in her trial affidavit demonstrate that the parties had different expectations or preferences about many aspects of daily life and their relationship. I am not satisfied that the father perpetrated any form of physical violence or coercion or control. Rather, I accept the evidence of Dr F[13] and the CCE,[14] and I find that:
·The mother disliked the father’s regimented, organised and obsessive traits and found them to be unacceptable which likely contributed to the relationship breaking down, but objectively the father’s conduct did not control or coerce the mother;
·The father’s regimented, organised and obsessive traits likely were tolerated by the mother until the parenting arrangements became contentious; and
·More recently, in the midst of the parenting dispute, the mother’s vulnerability, insecurity and fear of abandonment caused by her childhood experiences of inappropriate sexual abuse, have caused her to make allegations of coercion or control which are not objectively established.
[13] Single Expert Report at [20] and [281]-[282].
[14] Family Report at [69].
Further, the mother conceded that she told SASS that the father was supportive of her when in 2019 she accessed counselling about childhood sexual abuse. In the SASS records,[15] there is no suggestion at all that she found the father’s behaviours coercive or controlling.
[15] Exhibit A21.
While she maintained in her oral evidence that the parties’ sexual relations were all at the father’s instigation and on his terms, this not borne out by the text messages exchanged between the parties which reflect mutuality.[16]
[16] Exhibit A17 and Exhibit A18.
The mother agreed that there was no risk to the child when he is in the father’s care and there is no evidence of family violence perpetrated against the child by either party.
There is ample evidence of the parties engaging in conflict and verbal arguments and sometimes abuse post separation, also in the presence of the child. The video recording taken on 29 October 2021[17] is compelling evidence. It demonstrates that both parties had continued to engage in such conflict and argument, apparently unconcerned about the impact on the child of their conduct, as they persisted with it in a child-like manner, making tit-for-tat allegation and counter-allegation. The child can be heard to shout to the mother to leave, which I find demonstrates that he was aware of the conflict and was affected by it.
[17] Exhibit A22.
The conduct and statements of the parties in the video amply demonstrate that they were each willing and able to go toe-to-toe, and that they mutually created conflict to the potential detriment of the child’s emotional well-being.
I do not accept the submission made by the mother or ICL that the mother was controlled or coerced. The video was taken relatively soon after separation and so is likely to be indicative of the parties’ relationship dynamic, and it demonstrates both parties persistently demanding information of one another and being unreasonable and not child focussed. However, I attribute somewhat more criticism of the mother as she perpetuated the conflict by unreasonably refusing to leave the father’s then residence and unreasonably demanding to know what the father would be doing with the child. I attribute criticism to the father by continuing to film the incident and repeatedly asking the mother to leave rather than simply calling the police sooner, which would clearly have ended the impasse.
The video is also telling in that it demonstrates the mother defiant, verbally articulate and completely at ease in the confrontation with the father. It is inconsistent with the manner in which she presented in the witness box. I agree with the submission of counsel for the ICL that the mother presented differently in the witness box, but I consider this is likely to be the result of her gaining insight and making necessary concessions in the face of the views of the CCE and Dr F, which she had clearly taken into account by the time she gave evidence.
Notably, neither party presented as intimidated or fearful on the recording of this event and during cross-examination the mother admitted that she was not fearful at that time. The mother also conceded that she had told police that she did not consider the child at risk in the father’s care.
Frankly, the parties engaged in one upmanship, were childish, and lacked insight.
As I am not persuaded that the father perpetrated family violence (including coercion or control) in the relationship. I give this factor no weight in assessing what is in the best interests of the child. I agree with the formulation of the parties’ dynamics given by the CCE that each party has sought to pursue their own objectives due to acrimony at the time of and post-separation. However, in my view this does not constitute coercion or control as described by the authorities and legal principle referred to at [20] to [24] of these reasons.
Arrangements that would promote the safety of the child and parties?
Despite positions adopted by the parties at various times, they ultimately sought orders that acknowledged that neither considered the other to be a risk of physical or emotional harm to the child. This is not surprising given the views of the CCE and Dr F. Accordingly, the mother’s written closing submissions about the risk to the child due to the father’s mental health are disingenuous and are rejected.[18]
[18] MFI R2 at [3(f)] and [3(g)].
The mother does not resist the child having substantial time in the father’s care, yet she continued to press a submission that the father suffered major depressive disorder and inferentially that this impacted on his capacity to care for the child. The evidence of Dr F is that the father is in remission from a major depressive disorder and that, providing he undertakes treatment when impaired, his capacity to care for the child is not affected.
Counsel for the ICL cross-examined Dr F, suggesting that the father would not be compliant with treatment as required. However, Dr F’s evidence does not rise to support such a conclusion. It did support the conclusion that a course of cognitive behavioural therapy administered by the father’s treating psychologist would be preferrable in treating the father’s regimented, obsessive and inflexible traits to improve communication and co-parenting.
Accepting the totality of Dr F’s evidence and the views of the CCE, I find that the father’s mental health does not impair his parenting capacity or put the child at risk of either physical or emotional harm.
I find that the mother has been the child’s primary carer to date and that he is relatively young. However, the oral evidence of the CCE about the child’s developmental needs based on his age, personality, resilience and maturity, was to the effect that the degree of upset experienced by the child at changeovers was not abnormal and would improve providing the changeovers of care were child-focussed and the parents’ communication and co-parenting continued to improve.[19] I accept her evidence and find accordingly.
[19] The CCE stated, under cross-examination by counsel for the ICL, that if the communication improves and animosity between the parents decreases, then that will be supportive of the child transitioning between their care.
The evidence is that both parents have now engaged in psychological treatment and, consistent with the opinion of Dr F and the CCE, I find this should continue to ensure the parents improve their insights in relation to their conflict and communication so to promote a satisfactory co-parenting relationship.[20]
[20] Family Report at [79] and [80]; the Single Expert stated under cross examination that the father may be assisted by further cognitive behavioural therapy provided that it is delivered in person by a qualified therapist rather than online, and that the mother may be assisted by further therapy provided that she is open to it.
The unchallenged evidence of the CCE is, and I find, that despite the parenting dispute, the child:
·Is progressing according to expected developmental goals given his age;
·Is bonded to and loves both his parents greatly;
·Has a good relationship with the father’s partner, part-sibling and step-sisters, which he values; and
·Is well cared for in each parent’s care.
Given the history of interlocutory proceedings and the type of disputes the parents have had about health and education issues, I consider that the parents have been entrenched in their own emotions and experience of their relationship and their own perceptions of why it failed. Each party, for different reasons, has been unable to focus on the best interests of the child, and instead has focussed on their own personal view of what is better. This has likely arisen due to the lack of trust which the father had towards the mother and the mother’s sometimes unreasonable exclusion of the father in the child’s parenting. For example, about the child’s school enrolment or immunisations.[21] I accept the views of the CCE given orally during cross-examination that each party has unreasonably contributed to these disputes.
[21] Family Report at [20], [24], and [72].
At the eleventh hour, there appears to be evidence of improvement in the co-parenting dynamic. Based on agreements reached about the father’s time at Christmas 2024 and the improved communication between the parties evidenced in the AppClose messaging.[22] I find that there has been some improvement in the parents’ ability to cooperate and agree, but I wonder if this recent improvement arose because of the pending resumption of the final hearing.
[22] Exhibit ICL 9.
I have reservations about the mother’s ability to share information that is relevant to the child’s welfare because of her attitude to this in the past and also because she insisted unreasonably in maintaining privacy around her relationship with her partner, Mr G.
The mother believed erroneously that the relationship was not relevant to the parenting proceedings, which shows ignorance of factors relevant to determining the child’s parenting arrangements. Alternatively, she deliberately sought to conceal the seriousness of the relationship because she thought it would be adverse to her case. Either way, it demonstrates an extreme example of the mother continuing to exclude the father from information relevant to the child’s welfare and relevant to what the Court is to decide.
The CCE stated that the lack of disclosure about Mr G to the father and the fact that Mr G and the mother are now living together, given that the relationship has existed for some two years and the nature of the Facebook posts,[23] rightly were matters of concern for the Court. I strongly agree.
[23] Exhibit A6.
Parental responsibility/major and long term decision making
In view of all the above findings, I do not accept the submissions that the father should be which disqualified from participating in decision making about major or long-term decisions for the child.
The height of the mother and ICL’s closing submissions appear to be that joint decision making will be consistent with the child’s best interests, but a safeguard to avoid future proceedings is required should the parties’ communication and co-parenting fail to facilitate agreement. Accordingly, they contend that in the event agreement cannot be reached, the mother should be authorised to make the required decision.
The father adopts the inverse, stating he should have the authority to make the required decision in event of disagreement.
The submissions on behalf of the ICL and the mother were in effect that it was preferable that the mother make the final decision if agreement cannot be reached for essentially two reasons. First, that the mother has been the child’s primary carer and that his young age meant by inference she may be more equipped to make required decisions in the future.
Second, due to the father’s mental health or personality traits, he may have differing views to the mother and will frustrate decision making about required decisions.
However, I find that the mother has unreasonably failed to communicate or include the father in the child’s parenting arrangements, which is demonstrated by:
·At times not complying with orders for the father to spend time with the child;
·Not informing the father of where the child was residing;
·Agreeing that the child was safe in the father’s care, but opposing him caring for the child when she was away and instead asking her mother to care for the child;
·Withdrawing half the parties’ savings post-separation without the father knowing;
·Taking control of the sale of the former matrimonial home and telling the agent to communicate with her only; and
·Only informing the father of interstate trips after they arrived at their destination.
Further, I find that the mother’s exclusion of the father has caused him to initiate communication, but he has then been inflexible in reaching agreements. The father’s inflexibility is demonstrated by, for example:
·Insisting that the mother obstructed the child’s enrolment at E School after the court had made orders, but only abandoned the claim when required to produce the email said to show the obstruction. From this I infer that it did not show the alleged obstruction by the mother;
·Pressing an application for daily phone contact with a young child, when there was no evidence supporting this was in the child’s best interests and in my view was unreasonably intrusive given the child’s age and expected ability to concentrate and communicate; and
·Unreasonably expecting the mother to accept an invitation to attend sports events during his time with the child.
During her evidence and in the way the mother has conducted her case, she has acknowledged some of her contributions to the parenting disputes. She alleges the father has not acknowledged his part.[24] I agree that the father has not given any apology, and this likely is explained by Dr F’s evidence that the allegation of sexual abuse has been pivotal in the father’s lack of trust because of his rigid and obsessive personality traits. A contribution to the father’s lack of trust in the mother also possibly lies in his belief that the mother was unfaithful during their relationship.[25] The mother denies this, and it is unnecessary to make any finding about that fact. It has no direct relevance to assessing the best interests of the child and what parenting orders should be made.
[24] MFI R2 at [3(a)].
[25] Affidavit of the father filed 30 April 2024 at [11] and [147.5]; affidavit of the mother filed 7 May 2024 at [487] and [559].
The mother did not directly apologise in relation to the allegation referred to at [56] of these reasons. During the second last day of the defended hearing she apologised for verbal abuse and denigration. It was only during closing addresses, after having heard Dr F’s evidence about perceptions formed in retrospect, that the mother acknowledged the father’s alleged conduct at the time of the child’s conception was “without malice”. When the mother made this statement, the father had already abandoned his position of sole parental responsibility and he did not hear the mother’s statement because he was out of the court room giving instructions to his solicitor about video recordings to which his counsel had referred in closing submissions. I directed that counsel for the father convey what the mother had stated to the father.
It seems to me that whether the parents should have joint decision making and shared parental responsibility depends on the parties’ capacities to continue their improved interactions, insights and focus on the child’s welfare, rather than their own acrimonious relationship breakdown and the rights and wrongs of the same.
As most decisions of a major or long-term kind are those that will affect the child in the medium- to long-term future, I do not consider the fact that the mother has been the primary carer in the past while the child was young to be a meritorious reason for her alone making required decisions if the parties cannot agree. Particularly, when she has been reluctant to allow the child to have more time with the father and include the father, when the indications in the Child Impact Report and Family Report have supported otherwise.
The mother and ICL point to the father’s personality traits or controlling behaviours and mental health to disentitle the father as the most suited to make major or long-term decisions in the child’s best interests. The views of the CCE and Dr F do not support their contentions and nor do the findings I have made.[26]
[26] At [26] and [36] of these reasons.
It is the mother who has not involved the father and who has kept information relevant to the child’s welfare from him. While the father may over-communicate, be inflexible or bombard the mother due to his personality traits,[27] I am satisfied that this likely comes from a place of concern for the welfare of the child. Furthermore, he has now engaged in psychological treatment and completed recommended parenting courses. This demonstrates insight and willingness to address his traits.
[27] Single Expert Report at [277].
I find that the mother has not completed the recommended parenting courses and has continued to limit information given to the father. Her conduct is avoidant and non-inclusive about matters concerning the child.
For the reasons at [61] and [62] of these reasons, I consider that the father is more likely to include the mother in decision making and will consider her perspective, than the mother is to do the same with the father. I also consider that the father will comply with court orders that he have treatment and follow recommendations by his psychologist. This conclusion is consistent with findings about his regimented background and personality traits.
The findings at [62] of these reasons cause real concern as to whether the mother is able to genuinely consider the father’s perspective, despite the apologies and statements made during the hearing. I consider there is a greater risk of her frustrating joint decision making if she were given authority to make required decisions when the parties cannot agree.
For all the reasons at [63] and [64] of these reasons, the orders relating to parental responsibility and major or long-term decisions will be according to those sought by the father as they will likely best promote the interests of the child.
Live with orders?
In view of the findings about relevant factors informing the best interests of the child, I am satisfied that the child should, in the near future, progressively increase time in the father’s care. This is entirely consistent with the views of the CCE overall, which I accept and were as follows:
(a)Any progression of time should occur during school holidays as it permits a more seamless adjustment to change;
(b)Due to the bond and love between the child and father, he would likely manage block time in the near future of six to seven days, but that deferring a move to block or equal time would be best until the child had settled well into full-time school;
(c)The child’s resilience likely meant that he would cope with a change to block time in the Easter school holidays in 2025; and
(d)There appeared to be improvement in changeovers recently.
I consider that the child should initially spend nine nights with the mother and five with the father. However, to reduce the possible conflict at changeovers, the chance of the child experiencing the co-parenting dynamic poorly and to promote routine and stability, the arrangement will change to block time during the Easter holiday period in 2025.
The best interests of the child will then be served by further progressions in time being given effect and during successive holiday periods.[28] This being consistent with the views of the CCE referred to at [66].
[28] Consistent with the unchallenged views of the CCE.
A progression of the child’s time with the father to equal time within the next couple of years will most likely be of benefit. This will enable him to better experience the mutual strength of his relationship with both parties and allow exposure to different experiences and opportunities which each parent is likely to offer, including enjoying relationships with extended family. It will promote, a well-rounded upbringing, enabling him to develop his independence and flourish in the future, consistent with the tenor of the CCE’s opinion.
There is no material risk of harm posed to the child due to mental health concerns, warranting slower increase in the child’s time with the father. I am satisfied that when the child is in the care of the father and his partner, he will likely be protected from the father’s anxiety or depressive symptoms should they manifest. In any event, the Court will make a protective order for the father to engage in psychological treatment which will likely mitigate possible harm.
Finally, there is no evidence that the child has experienced any harm due to the father being “sad”, which was the highest point of the mother’s case. It is also important in my view that children gain age-appropriate awareness of depressive and anxiety symptoms and can recognise those and empathise.
I consider that the father’s proposal to defer consolidation of the child’s time with him to a single block until 2032, fails to recognise the benefit of minimising opportunity for conflict by way of fewer changeovers.
The mother’s proposal to fix the child’s time with the father to a maximum of five nights, in my view, is not child-focussed or supported by any factors relating to risk of harm to the child. Instead, I consider the mother is motivated to remain the primary carer because of her own insecurities or because of her historical role as primary carer.[29]
[29] Single Expert Report at [281] and [282].
Based on the findings and reasons from [66] of these reasons and following, the child’s time with the father will progress to 5/9 block time from Easter 2025 and gradually increase to a 7-on-7-off fortnightly arrangement from January 2027. This will likely be well tolerated and experienced positively by the child, minimising risk of future disputes and proceedings.
Changeovers should be effected at school wherever possible, as this will mostly avoid the child being exposed to any negativity that may persist between the parents. On non-school days, the alternative proposed by the ICL is child-focussed and logical, being that:
· Changeovers occur at 5:00pm at the residence of the parent who is to take care of the child in accordance with the orders; and
· The parent effecting changeover or an authorised adult to walk the child to the boundary of the property where the child is to spend time and ensure that the child enters that property, but they will not enter it.
Other orders sought
The orders proposed by the parties about special occasions and restraints were largely agreed in substance. Any variations in what the parties proposed was insignificant and of no consequence.
The parties agreed that there should be an injunctive order concerning discussing or disclosing the controversy referred to at [9] to [16] of these reasons in light of evidence given by the CCE about harm that may cause to the child. I agree and have invited the parties to provide a proposed form of order which will be made as a separate order.
CONCLUSION
For all the foregoing reasons, the Court makes final parenting orders which essentially provide:
(a)For equal parental responsibility and joint decision making, but the father being authorised to make the final decision required if the parties cannot agree;
(b)Reduction in changeovers and consolidation of the child’s fortnightly time into a block of nine nights with the mother and five nights with the father from the Easter holidays 2025;
(c)Increase in the child’s time with the father to seven nights a fortnight during the Christmas school holidays in 2026/2027.
There will be further orders to promote the parents’ effective and respectful communication and co-parenting, including orders for the parties to continue with psychological treatment according to recommendations, and restraint orders.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 12 February 2025
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