Watkins and Watkins

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATKINS & WATKINS

[2016] FCCA 854

Catchwords:
FAMILY LAW – Parties in continuous litigation for six years 2009 to 2015 in relation to their six year old child. Court has made 25 separate Orders during these years – father refuses to accept the finality of any orders – father pursues litigation relentlessly over trivial issues – Mother and father have toxic relationship as between themselves however child loves each parent and spending time with each parent – mother’s rants regarding the father have continued for years –father’s obsession with having the mother comply with minute aspects of her parenting as he directs – child to live primarily with the mother – Independent Children’s Lawyer and Court expert consider that if this litigation does not end – one parent will need to be removed from the child’s life. Child likely to suffer depression in the future if living within this environment.

Legislation:

Family Law Act 1975 (Cth), ss.60 CC, 65DAA, 65DA

Marzorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4

Applicant:

MR WATKINS

Respondent:

MS WATKINS

File Number:

BRC 8468 of 2009

Judgment of:

Judge Willis

Hearing dates:

2 and 3 November 2015

Date of Last Submission:

3 November 2015

Delivered at:

Cairns

Delivered on:

14 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms Downes

Solicitors for the Applicant:

Richardson McGhie

Solicitors for the Respondent:

Self-represented

Counsel for the Independent Children’s Lawyer:

Mr McGregor

Independent Children’s Lawyer:

Mr Carter

Counsel for the Applicant:

Ms Downes

ORDERS

That all previous Orders are discharged.

Parental Responsibility

The parties have equal shared parental responsibility in regards to the child X born (omitted) 2009 (“the child”).
That each parent has sole parental responsibility for day to day decisions regarding this child whilst the child is in their care.

Child’s living arrangements

That the child will live with the mother.
The child will spend time with the father each alternate Wednesday after school until the commencement of school on the following Monday. The father is to collect the child from the conclusion of school on Wednesday and the mother is to collect the child on the following Monday.

Holiday Time

The child will spend time with the father during the gazetted school holiday periods as follows:
(a)Save and except for specific times referred to in these Orders, for the first half of the child’s school holiday periods in even numbered years and the second half of the child’s school holiday periods in odd numbered years.
(b)The balance of the holiday periods, save and except as specifically provided for in these Orders, the child will spend with the mother.
The school holiday period is to commence at 3pm on the last day of the child’s school term and is to conclude at 3pm on the day prior to the child commencing the new school term and the changeover period will be the halfway point of the school holidays calculated on these dates.

Changeovers

All changeovers will occur to and from school. On a non school day, changeovers will occur at a destination nominated by the father for collection, and a destination nominated by the mother for return.

Special occasions

The child will spend time with each parent over the Easter period each year as follows:
(a)In odd numbered years, the child is to be returned to the father’s care from 10am Good Friday to 10am Easter Sunday and from 10am Easter Sunday to 10am Easter Monday the child is to be returned to the mother’s care.
(b)In even numbered years, the child is to be returned to the mother’s care from 10am Good Friday to 10am Easter Sunday and from 10am Easter Sunday to 10am Easter Monday the child is to be returned to the father’s care.
That over the (religion omitted) Easter period in the event that period does not fall within the time stipulated in Order 9 herein, should those days occur when the child would otherwise be living with the father, the child is to be returned to the mother’s care from 5pm the day prior to the (religion omitted) Easter to 9am on the day following the (religion omitted) Easter.
On the child’s birthday the parent with whom the child is not otherwise living pursuant to these Orders will spend time with the child as follows:
(a)If it is a school day, from after school on the day of the birthday until before school the following day;
(b)If the birthday is a non-school day, for one half of the child’s birthday.
On each of the parent’s birthdays:
(a)The parent with whom the child is not otherwise living pursuant to these Orders will spend time with the child, on a school day, from after school on the day of the birthday until before school the following day; and
(b)If the parent’s birthday falls on a non school day, for the day from 9am to 5pm.
On Father’s Day and Mother’s day, the parties are to swap the weekend component of the regular period provided for in these Orders to enable the child to spend the Mother’s day weekend with the Mother and the Father’s day weekend with the Father.

Christmas Day

That, subject to Order 15 herein, the child spend time on Christmas Day as follows:-
(a)In even numbered years;
(i)The child is to be returned to the mother’s care from 12pm Christmas Eve until 12pm Christmas Day; and
(ii)The child is to be returned to the father’s care from 12pm Christmas Day until 12pm Boxing Day.
(b)In odd numbered years;
(i)The child is to be returned to the father’s care from 12pm Christmas Eve until 12pm Christmas Day; and
(ii)The child is to be returned the mother’s care from 12pm Christmas Day until 12pm Boxing Day.
Notwithstanding the previous orders, the child will always live with the mother between 5pm on 6 January until 9am on 8 January to celebrate the (nationality omitted) Christmas holiday.

Communication

Each of the parties will establish an email address, provide it to the other and the parties will use this mechanism to communicate about general issues relating to the child.
Each of the parties will facilitate telephone communication with the other parent, at all reasonable times up until 7pm each day.
Each party will:
(a)Keep the other informed of their current residential addresses, home and mobile telephone numbers, and a current email address at all times.
(b)Be permitted to attend all school events and activities that parents normally attend, subject always at the discretion of the school.
(c)Be permitted to be provided with information normally provided to parents by any health care professional or educational facility upon whom the child attends, subject always to the discretion of the relevant authority.

International Travel

Unless ordered by a Court of competent jurisdiction, each of the parties (and their agents) are hereby restrained by injunction from removing or attempting to remove the child X born (omitted) 2009 from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
The Independent Children’s Lawyer is discharged.

NOTATION:

A.THE COURT NOTES the Mother is at liberty to make an Application to the Court in the event she wishes to travel overseas with the child as a discrete event as referred to in the judgment.
B.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Watkins & Watkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8468 of 2009

MR WATKINS

Applicant

And

MS WATKINS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is Mr Watkins (the father) and the respondent is Ms Watkins (the mother). These parties are seasoned litigants who have been litigating about their only child, X, born (omitted) 2009, currently aged six (“the child”) on and off since (omitted) 2009, six months after X was born. The matter has an extensive history of litigation with 25 separate sets of orders being made in the period from 5 October 2009 up to and including 3 November 2015.
The litigation was commenced by the father on 22 September 2009. Interim orders were made by consent on 14 October 2009 for the child to live with the mother, equal shared parental responsibility, the child to spend time with the father, a referral to mediation, denigration restraints, a PACE alert and restraints on the child being removed from Australia.
The year 2010 saw a contravention application filed by the father, an amended response filed by the mother, orders by consent for a Family report, mediation and the appointment of an ICL, an amended initiating application filed by the father introducing property ligation, further orders by consent for the child to remain living with the mother and spend two days each week with the father and orders for Christmas holidays.
In 2011, the Family report was prepared by Ms S, Orders were made for a trial on 26 May 201l adjourning the trial date over to 11 October 2011. In August 2011 trial directions were issued and amended on 8 September to allow further time to file material. On 12 October 2011 an order was made by consent for disclosure orders, valuation orders, $50,000 payment to each party as a partial settlement and the trial was adjourned part heard.
On 11 November 2011 whilst the matter was part heard, the father filed a 2^nd amended initiating application.
On 30 November 2011, the first set of “final” parenting orders were made after the matter had proceeded to trial. In preparation for the trial, two family reports were prepared by Ms S, the initial family report writer. Also, a psychiatric assessment was undertaken on each of the parties by Dr B with interviews undertaken in October and November 2010. I understand from what the parties have told me, that each of them paid half of what was a privately commissioned family report. This was part of the cost of what the mother informed the court had been some $300,000.00 that she has paid for her legal representation in the past.

Final parenting orders made 30 November 2011.

The final parenting orders made on 30 November 2011 consisted of orders that were agreed to between the parties and orders made by the Court after judicial determination by Judge Cassidy, in whose docket this matter has been conducted. That hearing occurred after two years of litigation.
The final orders for children provided for equal shared parental responsibility, the child to live primarily with the mother and spend times as set out with the father and generally in a two week cycle, in week 1 from 2:00 pm Wednesday until 2:00 pm Friday and in week 2 from 2:00 pm Wednesday until 4:00 pm Saturday. Interim orders were made relating to property, which was that the parties attend a financial conference.
The final orders by consent of 30 November 2011, made at a time when each of the mother and father were represented by solicitors and counsel and with the involvement of an Independent Children’s Lawyer, provided that the child live with the mother and set out times for the child to spend with the father during holidays, special occasions with each of the parties, provisions were made for the child to spend time with the mother for the (nationality omitted) Christmas holiday and shared Easter holiday period, in addition to the usual special occasions.
The father's time was not agreed to be spent with the child on a regular basis and was determined, as I said, by Judge Cassidy. Orders 18 onwards refer to the Court ordered time that the child will spend with the father on a final basis (the father’s time was to occur on a 2 week cycle from 2pm Wednesday to 2pm Friday in week one; and 2pm Wednesday to 4pm Saturday in week 2). The Court also determined Christmas day, school holiday periods, airport watch list order, a restraint on Ms A (father’s partner) from attending changeovers and reference to the child spending time with the mother for special time during the (religion omitted) Easter period. The court also ordered that the parties attend a conciliation conference in relation to their property matters. I note that a notation on the orders of her Honour, Judge Cassidy, that:
“Notwithstanding the provision of order 8, it is acknowledged that the father may work on the days that the child is in his care on occasions when he needs to work these days because of illness, a call in from his employer or a shortage of staff at his workplace.”
Order 8 is an order by consent which reads that:
“...pending the child commencing her prep year (a) both parties will ensure that they do not provide to their employer direction to roster them to work during the days that the child is in their care.”
Order number 9 says that order 8 is discharged upon the child commencing prep school. It was interesting to note this order, as throughout this trial the father's position has been “...that he is not allowed to work on the days the child is with him”.
The orders that I have just referred to do not state that the father is not allowed to work during the days the child is with him. Rather, it says that the parties will ensure they do not provide to their employer direction to roster them to work the days the child is in their care. I note also that order is to be discharged upon the child commencing her prep year, which was the commencement of January 2014. So at its highest, if the parties concluded that the father and mother weren't to work while the child was in their respective care, which is not what is said, it was to, in any event, come to an end in January 2014.
The father has referred to this, as I said, throughout the trial in answer to the mother's suggestion that he is not working to capacity. The flow on effect is that there are consequences for the amount of child support that the father has paid. The father asserts that he is only allowed to work two days a week, which as I’ve said, is not the case. And if it ever was, it has not been the case for almost two years.
The parenting matter was finalised with the final orders of 30 November 2011. As to the property matters, further orders were made on 6 December 2011 for the parties to exchange offers to settle and the matter was set down for another final hearing, this time on property matters. This proceeded on 22 February 2012, after which the parties were ordered to file written submissions and the judgment reserved.
On 4 May 2012 the Court’s orders and judgment issued for the property division 55% to the wife and 44% to the husband, wife’s claim for spousal maintenance was dismissed and the parties were ordered to file submissions regarding costs, which decision was reserved.

Father recommences in June 2013 – father files further application.

After the expense and allocation of resources to run the litigation culminating in final orders on 30 November 2011, the father nonetheless decided to recommence the litigation and filed a further application for final orders on 18 June 2013, not even two years later. He sought final orders for:
“...increased time the child spends with the father for reasons set out in accompanying affidavit, pages 1 to 30, increased time for the father sought each Tuesday, 5 pm until each Saturday, 5 pm. Accompanying affidavit page 24.13.”
The father also sought for the handover location of the child to be:
“...amended to a central location for both parents, (omitted) State School, (omitted). Accompanying affidavit page 22.123, 124.”
The father sought orders that the mother delivered the child to the father at the (omitted) State School at 5:00 pm each Tuesday at the conclusion of her time and the father was to deliver the child to the mother at the (omitted) State School at 5:00 pm each Saturday at the conclusion of his time. It seems, therefore, that the father suggested this as a central location, but certainly not necessarily to coincide with the commencement or conclusion of schools. The father also sought to overturn the orders of the court made not even two years earlier in relation to his wife, Ms A, who was restrained from attending handovers. The father (who did not appeal the previous orders) just asked for effectively the same issue to be determined again by seeking an order that she be able to attend handovers for reasons set out in affidavit page 18, 92 to 26.
The father set out in his material that he was seeking:
“...her Honourable Judge Cassidy to intervene and bring order back to this matter regarding X, date of birth (omitted) 2009.”

The father said in his affidavit, that in re-opening the litigation since the orders were made on 30.11.2011, the mother has:
“...persisted in continuing to act in a manner that is less than desirable, show no respect for the current orders set out by the Honourable Judge Cassidy dated 30.11.2011.”
The father suggested that the mother was verbally abusing the child; refusing to hand the child over to the father at nominated times or refusing to collect the child when required; refusing to provide the father with her own work rosters for each month as per the orders; refusing to communicate with the father on important issues related to the child, such as health and education; refusing to use a communications book, and the mother has been working while the child has been in her care, amongst other issues. The father also included his belief that the mother continues to treat the child as a possession and showed no respect to the emotional needs of the child and that she continues to try and dissolve and erode his family unit that the child clearly embraces. And so the litigation recommenced.
The mother filed a response to that initiating application seeking orders that the orders of Judge Cassidy be discharged in terms of 7, 8, 9 regarding consent orders as to changeovers, the order relating to not directing their employers to roster them for work when the child is in their care, including the order discharging that order upon commencing of prep. And, further, that the existing orders (which the court had previously judicially determined) regarding the father's time be amended so as to reduce this time to commence on Friday after school until the commencement of school on Monday each weekend instead of time each week as determined by Judge Cassidy.
The mother sought orders that her orders seeking to discharge and vary orders which were to commence on or before 27 January 2014, to coincide with the child's commencement of her prep schooling and that the father's application be otherwise dismissed.
The father filed an amended application on 15 October 2013 seeking to discharge orders of 30 November 2011 and the current variation dated 6 November 2012; orders that reverse the living arrangements so that the child live with the father and spend time with the mother on alternate weekends; that the mother attend counselling and provide evidence from her treating practitioner that her views have changed and that she will embrace the father’s second family unit; and evidence that the child will not be subjected to the mother’s verbal and emotional abuse. Other orders sought related to changes to the changeover location, more orders about Christmas day, Easter holidays and (nationality omitted) Christmas days, the parent’s birthdays and child’s birthdays, special days, use of a communication book, reference to a process to resolve disputes about equal shared parental responsibility (though no order actively sought for equal shared parental responsibility), extracurricular activities and the child’s name remaining on the airport watch list.

On 30 October 2013, with Mr Shoebridge of Counsel appearing on behalf of the father and Mr Burn of Counsel appearing for the mother, further final orders were put to the court to be made by consent. Those orders included that:
·the orders of the Federal Magistrate Court of Australia on 30 November 2011 be discharged;
·the parties have equal shared parental responsibility;
·the parties agreed the child should continue to live with the mother and spend time, block holiday times, with each party;
·the (nationality omitted) Christmas and Easter holidays were accommodated;
·the child's name remain on the watch list with restraints against each of the parties.
·The father was to ensure that the child did not refer to anyone other than the mother as “mummy, mum or the like”.
·Mutual denigration orders were put in place.
·Order 24 provided that Unless otherwise agreed in writing, the child is to attend the (omitted) State School.
27.The child’s time with the father was agreed to be:
a)In a two week cycle as follows:
i)In week 1 from 2 pm Wednesday until 2 pm Friday and in each alternate week thereafter;
ii)In week 2 from 2 pm Wednesday until 4 pm Saturday and each alternate week thereafter.
b)Provided that from 1 January 2014, subparagraph (7A), (meaning the times just referred to) shall cease to have effect and in lieu thereof, the child shall spend time with the applicant father each alternate week with the applicant father to collect the father from school on Wednesday afternoon and deliver the child from school the following Monday morning. (7C) reads:
“Unless otherwise agreed in writing, the parties shall arrange the alternate week time provided for in (7B) so that the child is in the respondent mother's care on her first day of school, with the applicant father at liberty to be at school on that day.”
c)(7D) reads:
“Save where otherwise provided for in these orders, changeovers will take place at (omitted), unless otherwise agreed in writing.”
Order number 12, I note, is a repeat of the previous orders, which reads:
“That pending the child commencing her prep year, both parties will ensure that they do not provide to their employer direction to roster them to work during the days the child is in their care.”
Order 13 is also a repeat, which reads:
“Order 12 is discharged upon the child commencing her prep year.”
Order 16 states that:
“That the parties not communicate with each other by text message or telephone, except in the event of any illness or injury affecting the child.”
There is also a mechanism set out in relation to exercising the parents' decision-making under the equal shared parental responsibility order, which states that if there is any further dispute between the parties or a dispute arises between them about a decision to be made in the exercise of their equal shared parental responsibility and prior to an application being filed in the court, the parties shall attend alternate dispute resolution and the process is set out. The costs of that family dispute resolution provider were to be borne jointly.
The “watch list” which was included in the orders was to expire, as referred to order 23, which reads:
“Upon expiration of the period referred to in order 21 (a period of one year from the date of the orders or until further order of the court), and subject to any further order of a court of a competent jurisdiction, the Australian Federal Police will cause the removal of the child's name from the watch list.”
This fairly cumbersome order seems to indicate that the watch list order was in place for one year or until further order of the court.
Those orders were issued on 30 October 2013 and to my knowledge, there has been no further pace alert or watch list order issued. On one reading of the orders, they remain therefore in place until a further order, which means they are current (I note the issue of overseas travel, having been determined once by Judge Cassidy, and then agreed on the terms just referred to, is once again raised by the mother in her current response).
The orders reached by consent again constituted finalisation of the parenting matters.

Contravention filed by the father 17 December 2013.

Two months after the second lot of final orders were made on 30 October 2013, the father filed a contravention on 17 December 2013. The father alleged the mother was in breach of order 7(a)(i) and (ii) of the orders made two months earlier of 30 October 2013, which related to the child spending time with the father, stating that the mother refused to hand the child over to the father, as per court order, and continues to withhold the child from the father and will not give a date and a time for the father to see the child.
The father also alleged that the mother contravened orders in that on 11 December 2013 the mother continued to withhold the child from the father, not allowing the father to see the child for the holidays, as referred to in the orders.

The father files an application in a case 5 March 2014.

After he filed a contravention application on 17 December 2013 and before it was heard, the father also filed on 5 March 2014 an application in a case. In that application in a case, the father sought orders again altering the final orders. The application in a case sought that:
“5(b) Upon the child commencing her prep year and from the Easter school holidays in 2014, the child spend time with the applicant father for the first half of the child's gazetted school holiday periods in even number years and the second half of the child's gazetted school holidays in odd numbered years.
5(b)(i) The responsible mother shall spend time with the child in the second half of the child's gazetted school holiday periods in even numbered years and the first half of the school holiday period in odd numbered years.”
The supporting material filed by the father makes reference to the orders of 30 October 2013, (the then current final orders) and the thrust of the father's application appears to be to seek to alter the orders relating to the timing of the holidays for each of the parties, some of which the mother would agree to and others which she would not. The father also makes reference to what appears to be some sort of misunderstanding he alleges between himself, the duty lawyer, registrars and so forth.

Father files further amended contravention application 12 June 2014.

That application in a case was then followed up by the father with a further amended contravention filed on 12 June 2014, again referring to the mother refusing to hand the child over to the father as per court order, which I understand the mother said she had a reasonable excuse for, and, it seems, deleting the contravention about the mother continuing to withhold the child. There was a further contravention of the mother's alleged - that she insisted on having a nine day holiday instead of the parent having two periods of six day holidays.
On 14 July 2014 the contravention matter was adjourned to 9:30am on 17 July 2014, with a notation that the court will consider on the next date whether the parenting matters should be reopened and an ICL appointed, possibly the appointment of a single expert psychiatrist for a psychiatric assessment of each parent and a family report if the contravention is proven and breaches are serious. The contravention hearing was heard and reserved over until 9 September 2014 with a notation that:
“In the event that the parties forward consent orders to the court, the court will consider vacating the next court date and making the orders in chambers –“
This notation suggests to me that her Honour gave the parties time to revisit their own orders and come to some agreement.
On 9 September 2014, with each of the parties appearing on their own behalf, Judge Cassidy made orders which noted an undertaking of the mother namely that “Upon the undertaking of the mother to ensure that the child will not be in the presence of or exposed to the dog, (omitted), without the supervision of an adult –the court orders, until further order, the appointment of an ICL and a preparation of a family report and other orders. Order 12 states neither party is to take the child to any counsellor or psychologist without the written consent of either party and a special time allocated for the mother at the conclusion of a dental appointment. The mother was ordered to file and serve a response and affidavit no later than 10 October 2014. The matter was listed for an interim hearing at 9:30am on 6 November 2014.
Order 15 stated that this matter be adjourned for judgment of the contravention application at 9:30am on 24 September 2014 and giving the parties leave to attend by phone.
The notations included a request that the next Family Report be prepared by a senior and very experienced Family Report writer and this is noted because of the number of times this matter has been litigated it is anticipated that the child may not be put in a shared care arrangement on the next occasion.

Father files 3^rd separate initiating application for final orders – 8 September 2014.

On 8 September 2014, the father decided he would file another initiating application recommencing the litigation for the third time. The father sought to discharge all previous orders, and seek orders that the child live with the father, that the child attend school at a residence closest to him, that the child live with the parents for one half of the school holidays and special days, and spend each alternate weekend with the mother from Friday afternoon at 5pm until Sunday afternoon at 5pm. Lengthy orders were also sought about what the parties were to do if they had disputes in the exercise of their shared parental responsibility. He sought the same orders on an interim basis. This initiating application was filed the day prior to the matter being mentioned on 9 September 2014. On the face of the initiating application a red stamp reads “Abridgement of time – upon application by the husband for abridgment of time to enable the urgent hearing of the within application, it is listed as shown, on condition that service be effected forthwith”.
On 9 September 2014 orders were made for the appointment of an ICL, the ICL to prepare a Family Report, the mother was to file her response material, the judgment for the contravention application was adjourned to 24 September 2014 and that the matter be adjourned for interim hearing on 6 November 2014.
On 24 September 2014 her Honour Judge Cassidy handed down her reasons regarding the father’s contravention applications namely that the amended application by the father for contravention filed 12 June be dismissed. I note the reasons for decision, in which her Honour dismissed each of the father's applications, the finding that the mother having a reasonable excuse. Judge Cassidy also made an order that:
“All changeovers in relation to the child occur with the father to collect the child from the (omitted) State School at the beginning of his time and the mother to collect the child from (omitted), School at the conclusion of such time (which would be a Monday after school).”
The notation on the orders also states:
“It's noted that the father did not attend at the delivery of the judgment, despite attempts to contact him on the mobile phone number provided on the last occasion.”
On 29 September 2014 the mother filed her response to the father’s initiating application filed on 8 September 2014, in which she agreed that all previous orders be discharged; agreed with orders sought by the father for half the school holidays; that the child remain living with her and the child remain at the (omitted) State School; time for the child to spend (religion omitted) Easter with the mother; father to have either alternate weekends or a weekend each month with the child and other agreed orders.
On 4 November 2014 the Family Report was prepared by Ms V.
On 6 November 2014 orders were made adjourning the interim hearing until 12 March 2015. On 12 March a further adjournment was issued on the day adjourning the matter over until 15 April 2015.
On 15 April 2015 the parties were ordered to attend a child dispute conference and a memorandum prepared pursuant to section 11F of the Family Law Act. The matter was adjourned over to the June trial call-over on 2 June 2015.
On 2 June 2015, the matter was listed for a two day hearing on 2 November 2015.
Prior to the hearing, the father filed an amended initiating application on 30 September 2015, and in this application, the father sought that the child live with him and that he have sole parental responsibility, with the child spending time with the mother in a two week cycle from Wednesday after school until 7:30am the following Monday morning and each alternate week thereafter. The father sought orders that the child be enrolled and attend at (omitted) State School. Intricate orders were sought about the differing handover times on the school holiday period depending on whether there are “even number of full days in the holiday period or odd number of days”, specific orders for changeovers and collections, Christmas day and the (nationality omitted) Christmas, Easter and the (nationality omitted) Easter period.
Despite seeking orders for sole parental responsibility, the father sought orders that both parties attend medical, optical, dental appointments and that both parties receive all information from health care professionals and educational facilities. The father also sought an order that the parties not text or telephone each other, except in the event strictly relating to the child. Copious orders were sought about the parties attending dispute resolution “in the event a dispute arises and prior to filing in the court” as seen in orders 27 to35. More miscellaneous orders are sought at 36 through to 49.

Father files notice of discontinuance 23 January 2015

However, on 23 January 2015, prior to 12 March 2015, the father filed a notice of discontinuance in which he sought to discontinue all of the applications he had filed.

Application in a case filed by the father 27 February 2015

The father then filed an application in a case on 27 February 2015 seeking orders to re-instate his discontinued application. He stated that he:
“...wished to be reinstated as the applicant in this case before Judge Cassidy on 12 March 2015. The notice of discontinuance filed by the applicant, Mr Watkins, on 23 January 2015 was filed in good faith in an attempt to prevent any further court appearances, as this long and tedious process has been stressful on all parties involved.”
Order 2 was:
“I am seeking that the mother's response dated 29 September 2014 be dismissed to allow all parties to continue moving forward and focusing their time on the daughter, X.”
And 3:
“That current orders dated 30 October 2013 and 24 September 2014 remain in place.”
The father also sought orders for equal shared parental responsibility, that the child live with the mother, equal school holiday time; time with the mother on the (nationality omitted) Christmas holiday, shared time with each parent over the Easter period; special days; child to spend time with the father in each alternate week commencing Wednesday afternoon until Monday morning; changeovers at (omitted) school; travel restraint and denigration clauses. Seemingly, all the same orders that were in place.
On 15 April 2015, Judge Cassidy ordered a child dispute conference and this occurred on 26 May 2015 with Family Consultant Ms R.
Then on 2 June 2015, orders were made for trial and directions for trial issued.
As can be seen from this chronology, this matter has had a tortured history and this is the third occasion that the mother has been brought back by the father following two final orders and following his contravention applications being dismissed by Judge Cassidy. The notice of discontinuance filed by the father on 23 January 2015 did seek to withdraw all matters. However, the evidence has transpired that the mother refused to do this, saying effectively, " You started, now let the court decide." To say that this matter needs to have come to a final hearing and a final conclusion for this child would be an understatement.
I have told the parties that having embarked on a third trial since 2011 that findings will be made by me and final orders will be made and thereafter either party wishing to change these orders will need to satisfy a judicial officer as to the provisions representing a significant change as described in the relevant case law, such as Rice & Asplund. I would suggest to the parties that bringing failed contravention applications will also be viewed in the same light, as this has been used by the father to recommence proceedings, and I can only highlight this mechanism used by the father to alert the next judicial officer to this conduct.
The father now relies upon his third amended initiating filed on 30 September 2015 to seek for the fourth time, “final orders” since 2009. His third amended response sought orders for the father to have sole parental responsibility, the child to live with the father and that X spend from Wednesday after school until 7.30 am the following Monday morning and each alternate week thereafter. Effectively the father is seeking to reverse the current position of the child and that he alone make decisions in relation to the long term issues for X.
There are a myriad of other orders sought about holiday time and school holidays, most of which are on uncontentious. The father also, however, sought that on the basis the child is to live with him that she have a change of school and that she attend the (omitted) State School at (omitted). The father also seeks to retain X's name on the watch list. There are 49 orders sought by the father.
Since that time, the Independent Children’s Lawyer (ICL) has been reappointed and two further family reports have been prepared. These reports were prepared by Ms V, a Regulation 7 family consultant. Both of those reports are relied upon by the Independent Children’s Lawyer, together with a child dispute conference memorandum of 26 May 2015.
The mother's response remains that filed by her on 29 September 2014. The mother seeks that X remain living with her and continue to attend at (omitted) State School and spend time with the father from each alternate weekend commencing Friday at 5 pm until Sunday 5 pm or each month from Friday 5 pm until Sunday at 5 pm or as the court sees fit and in the best interest for the child, X. The mother's application is to therefore reduce the father's time currently from Wednesday afternoon to Monday morning, five nights a fortnight, to either two nights a fortnight or two nights a month. The mother also seeks to ensure that the child's name is removed from the watch list.
By the conclusion of the trial, the father had again changed his position and no longer sought orders for sole parental responsibility. It was submitted on the father's behalf that he now seeks an order for equal shared parental responsibility.
The court during the trial explained to the father that some of the issues which have occupied discussion and dispute between the parties and were particularly agitated by the father, did not constitute long term issues. Complaints about what is in the child's lunchbox or what cream the mother applies or does not apply, or the behaviour of her dog, are to do with the day-to-day care, welfare and development of the child. That being so, even with an order for sole parental responsibility for long term decisions, the father is not in a position to tell the mother what to do. It’s clear to me, and can be seen in the various orders sought by the father, that he misunderstands the legal position and meaning of the legislation which provides (unless altered by a court) for each parent to make day to day decisions regarding the child. It is not for the father to have control over each minute aspect of the mother’s parenting, as he has continuously sought to do. The mother's position did not alter throughout the trial.

The Independent Children’s Lawyer deferred their final position in this matter until close of evidence. Mr McGregor, Counsel for the Independent Children’s Lawyer, made submissions to the effect that the problems in this ongoing litany of complaint and litigation lie fairly and squarely between the parties themselves and that the problems are not about the child.
Mr McGregor submitted that there was no order which could possibly resolve the toxic relationship and dynamic that has played out between these two parents since separation in 2009, a period of seven years now. Mr McGregor submitted that courts can adjudicate but don’t have solutions and this court did not have a panacea to resolve the conflict created by the parents.
Although many of the matters raised between the parties, and particularly by the father, are minor, the ICL was mindful of the disturbing evidence of the report writer that ongoing conflict will likely lead to X suffering depression later in life. Mr McGregor submitted that one would hope the parents would have heard that very alarming evidence, namely that if each of you continue to abuse each other, you are abusing one half of the child. If the mother abuses the father to the child, the child knows that that is half of her and she will not be able to handle being abused in that manner and that turmoil will be created. Mr McGregor submitted that this evidence sent a strong message to the parents and they needed to cease their current conduct.
In all of the circumstances, the ICL submitted that the best of the worst solution is to leave things as they are. The child is at least seeing her mother and seeing her father. She is going to school and progressing well at school and regularly sees her step-siblings, A and B, and also her stepmother, Ms A.
The ICL submitted that the mother's pleas for “herself and the father to have some counselling”, so that the mother could “obtain closure”, as she put it, were likely to be unsuccessful, as referred to in the evidence of the family report writer.[1]This was particularly so, noting the observations of the report writer:
I am reasonably confident that Mr Watkins would throw himself into this (counselling) with the same intensity and detail, quite apart from the likelihood that Ms Watkins would see no value in this from the outset. His approach and judgmentalism are the very things that frustrate her beyond her tolerance levels. I fear that I am left only to conclude that all roads lead to Rome."
[1] Paragraph 102, Family Report, 4 November 2014.
Mr McGregor made reference to the accusations of the mother contained in her text messages and the significant concern of the ICL that if the parties continue on their current path, there is likely to be damage to X in terms of her ultimately suffering depression in the long term. The other option considered by the ICL was to exclude one or the other of the parents from X’s life. However, in going down this pathway, the ICL considered the evidence of the family report writer, which was that this would result in the child receiving permanent scarring and is not a realistic option.
The ICL considered that both parents were guilty of exposing the child to psychological damage and that the mother's conduct is much more overt than the father. The mother is overtly critical of the father and hostile, whereas the father is less overt, but his obsessing about matters, if they aren’t dealt with in the manner precisely as he would do result in him raising a succession of minor issues with the mother and being very judgmental. Ultimately, the ICL has made submissions that the orders ought to stay as they are, that is the child lives with the other and spends time with the father.
In terms of parental responsibility, the ICL notes that now each of the parties seek an order for equal shared parental responsibility. That is supported by the ICL on the basis that it is not in this child's best interests to have one or other of the parents making her long term decisions.
In terms of the mother's request to travel to (country omitted) with the child, the ICLs position is that (country omitted) is a member of the Hague Convention, which would create some comfort for the court. However, there is a lack of trust between the parties and the ICL notes that there are no specific trips planned at this point in time. Consequently it is probably preferable to make an order that in the event either party wished to travel overseas, they are to give notice to the other party with the relevant itinerary, the parties are to then attend dispute resolution and that if they are unable to resolve it after dispute resolution, then the travelling parent is to file the relevant application and a court can determine the matter on the application at that point in time.
The father's position in relation to overseas travel to (country omitted) was that he opposed the mother's request to do so, saying that the mother and/or her own mother have made threats to go back to (country omitted), where the child will be retained and the father will never see her again. The father says those threats were made after separation back in about September 2009 and allegedly by the grandmother very recently at a handover sometime in 2015. The mother's position is that she would like to take the child back to her own birthplace and to meet relatives in (country omitted) who have not yet met X.
There is little contention of the issues of holidays and each parent seeks orders about the same times during (nationality omitted) Christmas and Easter periods, special occasions, Father's Day, Mother's Day and birthdays. I have suggested to the parties that it is preferable to make an order to actually swap the whole of the weekend in relation to Mother's Day and Father's Day and not simply have changeovers at the beginning of the day and the end of the day and each have agreed that this is preferable. The ICL supports that position.
The father has conceded that in the event the child remains living with the mother, that child should remain attending at the (omitted) School.
The mother was self-represented at this hearing. As well as being self-represented, the mother requested the assistance of an interpreter throughout this hearing.
I should note that the mother has never had a translator in any previous proceedings nor had any jurat been included on her affidavits (including when she was legally represented) to indicate that her understanding of English was such that she needed to have the contents of her own affidavits translated to her. However as a self-represented, an interpreter was requested by the mother and provided at this hearing at the expense of the Court. On the first day of the hearing, throughout the whole day, the interpreter interpreted one word. On the second day of the hearing, only because the mother appeared to be non-responsive was the interpreter requested to repeat one or two questions.
Statements in this judgment represent findings of facts, unless indicated otherwise.

The Law

This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s.60CC(2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of X, I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for X’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
In this matter I have had regard to all of the evidence and the exhibits. A statement of fact represents a finding unless indicated otherwise. I have also have had regard to the written submissions and oral submissions of each party.

Witnesses

The Father

The father gave evidence and was cross‑examined. The father does not really present as the person portrayed in his material in as much as his material is, what I regard as, minutely detailed and a myriad of issues are raised by him in voluminous material. When given the opportunity though to explain to the Court what kind of activities he does all day and how he spends his time at home, given that X is at school during the school days, the father was unable to articulate anything. By that I mean literally the father said he did not know what he did all day. The father, in my view, gave many answers which sounded rehearsed and repeated mantras such as “the mother does not show respect for our family unit.” This particular mantra was repeated, word for word, by the father’s current wife.
As I have said elsewhere, the father showed no insight into the effect of his own behaviour in choosing to engage in a relationship with a third party female, then leaving his marriage and moving seamlessly into a full on relationship with that female, at a time when he was the father of a four month old baby and leaving his former partner to be a single parent with a baby of such a tender age.
The father, it seems, approached the state court to get a domestic violence order against the mother because of the barrage of insults he said he and his new partner were receiving. The father was naïve if he seriously expected to end a relationship in the manner he did, at a time when X was 16 weeks old, and move on to his next relationship without some emotional fallout from the mother.
The father seemed quite immature, lacking in ideas and an ability to articulate and describe his parenting and, as I have said, even to ask him to explain what he did all day seemed to be a rather major challenge. The father showed no evidence that he was an experienced parent.
Given the nature of the father’s occupation, being a (occupation omitted), I had expected him to be rather more responsive and seemingly competent but this was never evident to me. I was not impressed with the father’s description of his inviting the mother to a christening for the child in which he said he rang up the mother and told her when it was on and said she could come if she wanted to. Telling the mother when a christening is on is in no way complying with orders requiring the parties to exercise equal shared parental responsibility to make long term decisions or his obligation to engage in genuine discussion about the whole issue of being christened. The mother’s evidence was that the father did this after she had the child undertake a (nationality omitted) baptism. It seems therefore that the child has been baptised twice.
I saw nothing in the father’s presentation that suggested to me that he had the ability for good communication. In relation to all of the text messages which the father has retained, and used in these proceedings, I am mindful of the fact that these were all sent and then relied on by him at the trial.
It became obvious to me that the father has not been the primary carer of X and that the time he has spent with X has primarily occurred in the company of his wife. The father sets out in his material that he has the ongoing assistance of his wife (a (occupation omitted)). I am satisfied that the father has never been in a position for any great period of time, if at all, of being a single parent.
Unfortunately I had no confidence, having observed the father under cross‑examination, that he would ever engage appropriately and genuinely, as he said he would, with the mother in any discussions about long‑term issues, before he made a decision. I found his evidence in that regard completely unconvincing. There was no evidence that he had ever attempted to properly engage with the mother, as was evident in his description of what he did in ringing up the mother to tell her when X’s christening would be on.
In terms of his credibility, I was satisfied that for the most part the father was telling the truth, though not unsurprisingly, he sought to minimise his own conduct where it assisted his case to do so. The father showed no insight, as I said, into the effects of his rather unfortunate manner of leaving his marriage in the manner he did.
I also do not accept the father’s position that he could not work any more than two days a week because the orders prevented him from doing so. The orders that he referred to, which I have mentioned elsewhere, in any event expired in January 2014. The father seems to be a young and healthy man and he chooses to work two days a week. When asked why he didn’t take up the option of a third shift of nightshift each week he said that, “It was awful.” As I said, I saw very little maturity exhibited by the father and I am still wondering what it is that he does with the rest of his time during the week. He, certainly, didn’t know.
In terms of the mother’s allegations that the father has poisoned her, I regard such allegations as without any foundation and bizarre. I am not satisfied on the evidence before me that the father has engaged in any conduct intended to poison the mother.
The mother, having made such wild allegations, of course discredited her own case when it came to her other allegations such as domestic violence and allegations such as the father hiding $281,000 from the Court. This allegation was subsequently proven to be another wild and fantastic yet groundless allegation by the mother given this sum appeared in the asset pool which formed part of the final consent orders for property.
Six years on I understand that the father would be tiring of the mother’s tsunami of criticisms which she engages in whenever she feels the need to “vent”.
As to the father’s argument that if the child lived with him, the child needed to change schools, given that the father does not work when the child is with him and does not know what he does for the rest of the day, I did not regard a longer drive for him driving the child to a school that was not close to him as overriding the benefit of the child continuing her same school.
Although the prospect did not concern the family report writer, in terms of the father not being child‑focused, I saw no concern the father had about the child changing schools but, rather, the father putting forward a proposal to suit his own convenience and the convenience of his stepchildren and current wife in terms of all the children attending one school. I regard the father as not being prepared to put his own interests behind those of his child.
Whilst the father has not been as overt in his insults directed to the mother as the mother has to the father, and the mother is her own worst enemy for doing this, as she does it seemingly obliviously without any understanding of the impact of her vehement insults, the father is nonetheless expert at needling the mother. As the family report writer observes, the father will not give up on minor issues and cannot leave them alone. I am satisfied that this is his way of still attempting to exert some control over the mother, many years after separation.
In some respects it is unfortunate, indeed, that when the father, finally decided it was the right thing to do to withdraw all of his applications in this litigation, that the mother then insisted that it continue. However, I have no doubt, bearing in mind the father’s propensity to file initiating applications, then amend them, then agree to final orders only to start over, that it would only have been a matter of time before the father would be back filing another application even if the mother had agreed for all applications to be withdrawn.
I have the impression that the father is using this court as a mechanism to achieve what he wants, which is to be the primary carer of the child so that he can do everything in relation to this child's parenting in the manner that he wishes to do it. To that extent, I have reservations about the father's real willingness to promote a relationship between the child and the mother. He is much more subtle in his manoeuvring, as submitted by the ICL counsel, than the mother, but, in my view, nonetheless unfailing in his desire to criticise the mother's parenting.
I had a strong impression the father knew the mother well and that she would and did not hold back with her insults directed to the father. That being so, I was not satisfied that the father was as troubled by the mother’s text messages as he would suggest. This dynamic is par for the course for these very experienced litigants and legal combatants. The father is constantly telling the mother to get over things and each of them continue to go about their business after the mother's insulting exchanges with the father, writing back denying everything and I saw no evidence that the father, after all these years, was actually affected by this barrage of insults. It seemed more of an irritation than something which deeply affected him.
I had the impression that the father is so preoccupied with issues that it is possible for him to lose sight about the effects of his insistence or obsessions on the child.

Ms A

Ms A gave evidence and was cross‑examined. I found her to be quite a sensible, pragmatic person who did not seem to be dramatising the situation. I note in her material she says that:
“When X is in Mr Watkins and my care I always ensure that X has clean clothes, clean sheets and blankets on her bed. I attend to both of the girls’ hygiene, ensuring that they are bathed, showered daily, hair washed regularly and blow-dried. I always ensure that the three children are provided with healthy meals, including a variety of fresh fruits, vegetables and meats.”
And, as I said, I had the impression that she is a competent parent and that she is a source of significant support for the father in sharing the work and responsibilities of parenting X. I accept the evidence of Ms Watkins that she and her former husband (noting that she left her marriage as well to take up with the father) have resolved their parenting issues by way of consent orders.

The Mother

The mother gave evidence and was cross-examined. She was an extremely difficult witness to contain and at any and all opportunities she gave an outpouring of her mantra about how the father has been treating her for the past six years. The mother stated at every and any opportunity what sounded like a well-worn statement that the father left her, took the house, took all her money, tried to poison her, took her dog, and is now trying to take her daughter.

Whilst acknowledging that the mother has been through an extremely difficult period post‑separation when the father left the marriage, his wife and his baby, and that her hopes and dreams of a happy house, a baby and a loving husband were shattered back in 2009, I observed that the mother maintained the rage to the extent, volume and intensity exhibited over two days in the witness box, which had clearly not abated at all in the seven years which have since passed.
The mother produced in her evidence a Centrelink document which was purported to be signed by her doctor in which it said she had anxiety and severe depression. This document turned out to be something that the mother (who has been retrenched) relied on to present to Centrelink to relieve her of the obligation to seek employment for the period specified in the certificate. The mother says that, although she has had severe depression and anxiety, she takes no medication, and I note that the document refers to her engaging in mindfulness and counselling.
I saw no evidence of the mother being able to deal with what she refers to as her unresolved issues arising from the breakdown of her marriage. There was no sign that her mindfulness training or any other counselling assisted her restraining from willingness to engage in what I now regard as verbal abuse of the father by the mother. The mother has sent many, many text messages to the father and he to her, both in contravention of the last orders which provide that the parties cannot text each other. Each of the parties at the end of the trial said that they would wish to have the opportunity to text each other. Clearly those consent orders were over proscriptive.
The mother’s text messages are sent by her at any time she feels like it, when she is engaging with the father. These messages represent the “red hot rage” of which the family report writer observed. As an example, the text message sent by the mother in August 2015 only two months before the trial reads as follows:
“Y do u lie I did not make her cry stop making up lies to sound good in your end it doesn’t get u far in life ten years of your lies n u continue when r u going to grow up n tell the truth for once u r supposed to give me location if X’s extra activities as per orders I had to beg u for the address n u were keeping a secret I only found out about X so remember our daughter is growing up n can tell me the truth always as I taught her never to lie to me like how she says that u n your inlaws still have all my furniture in their place n yours she saw pictures of them n told us u lied in court saying that dad n I went to the house and got them lie lie n another lie in court u told judge Cassidy u had a garage sale so keep up the stories with lies n it’s not going to get u anywhere but being truthfull n honest will b much easier in life to get what u want u – betrayed us n that the worst lie ever in life against the priest n god.
u are a lier cheater abuser selfish freeloader psychopath narcissist cruel minipulator stealer unhuman evil odd barbaric behaviour etc I just pray to god u treat X as a dad n show her luv n care that’s all n karma will deal with the rest n hope justice will be served at court in November so I can move on with my life again u took slit if my happiness n health n material things from me but I can start again as soon as I get justice from u n answers.”
Later the mother then continues:
“See you at 3pm at school gates with X on Wednesday. Thanks.”
There are other exchanges that are fairly benign such as:
“Hi how was X’s science day-”
to which the father replied:
“It was great, she said. Also I spoke with office today. I asked if I could have a receipt for when I paid for the (omitted) which she attended today. They said they gave a receipt to myself and also you. Can I please have the receipt that they sent you if you still have it since you did not pay for it.”
Response:
“I left it in her library bag. If you can’t find it I’ll have a look again.”
Reply further:
“That said my name so I kept it sorry but I don’t have yours.”
There are responses by the father in relation the mother’s allegations of his betrayal of her saying:
“It’s an interesting point that you say stop my nonsense yet you are the one infatuated and obsessed with my life by constantly wanting to know about my life, second I have always shown you respect, third there was no betrayal you hated me and you still state now how much you hated me and then you stole our daughter so I needed a court order so I could see X our daughter and very disturbing your last text you say X would not be here without you think about what you are saying please.”
That leads to a huge response by the mother saying, in part:
“U poisoned me so I end up in hospital so u can have the house and X and your new wife and children freeloaders in my house that I worked for u had nothing but a car loan I owned my car and had a house investment that made you rich you lived at (omitted) now in a brand new house in (omitted) and tell me how you got that me yes that’s right me my hard earnings you stole from me made you rich blood money Mr Watkins not earned by you working stolen money and inheritance so grow up the truth is known by you even if you won’t admit it you had an affair who takes another girl to (country omitted) n leaves his wife and baby daughter home to ten days to go on a holiday with his flussie n move her and her children in his wife’s house she watched being build fir 18 months heartbroken and devastated that you can b so cruel n evil and n all other things u did I have all in my heart and memories and your sister and aunty and cousins know the truth so as much as u deny and blame me I don’t care u have guilt in your heart I don’t I can sleep with clear conscience I am honest and caring and never would do what you did n yes our daughter will be told the truth when she is old enough and asks why we rr not together and I will tell her the truth.”
That message is followed up with, and this is page 128 of the bundle at exhibit F9:
“There r 1000 of fathers but ONLY one mother that is fact n I agree.”
That text was sent at 7:50 pm and by 8:20pm the mother starts all over again in what is a 40 line text message effectively– repeating all of her same themes of abandonment, blood money, stealing property, and concluding that the father should grow up and act his age, that he is nearly 40, and telling the father that she hopes that the father and wife both read her text messages and:
“Feel free to print them in your affidavit as the court needs to see what kind of person u really r and the ICL should also see it so he can also see what I am dealing with- ”
Followed by more threats of “karma”.
In her evidence the mother showed no insight at all as to her own conduct in continuing to engage in what I believe has now become the mother’s story, which she appears to thrive on. The mother clearly portrays herself to all around her (and anyone else who will listen) how she has suffered through the father’s wrongdoing. The story has grown from being left with a four month old baby to accusations of the father poisoning her based on nothing but the fact that after she had a cup of coffee one day that the father prepared for her, she felt ill and went to hospital, along with many other allegations that have developed into her belief that the father has taken virtually everything she owns in the world.
The mother has engaged in this storyline to the point where I consider that this is how she identifies herself. It does not suit the mother to move on and create for herself a new profile. I would go so far as to say she is revelling in her own descriptions of alleged trials and tribulations with the father.
During the morass of applications in this past seven years of litigation, there has been a property settlement. It has been determined by the Court. Unfortunately the mother showed gross disrespect to all who questioned her, whether it was Counsel for the father, Counsel for the ICL or the Bench. She would not allow any person to finish their question before launching into a tirade or rant about the father’s conduct. As I have said, the mother was uncontainable in this regard.
I was not able to accept the veracity of her statements in many regards. She has a tendency to engage in avoidance when this happens. When her allegations are met with reality, such as was demonstrated by her formal complaint to the Child Support Agency that the father did not disclose missing moneys of $287,000 in his court case. Once that was shown to be completely false, given that the consent orders had a schedule attached listing that specific amount as an asset, the mother quickly moved on and said that what she meant was that he did not disclose it in the Child Support case. On rereading her material lodged with the Child Support Agency this was not the case at all.
The mother glossed over her allegations that the father poisoned her, refusing to see the logic that she had many medical conditions such as referred to in the medical records, any number of which could have explained why she felt unwell. But the mother preferred a storyline which saw her being painted as a victim of the father’s poisoning when there was not one skerrick of evidence to support what I regard a scandalous allegation on her part.
No matter how many times the mother was asked to listen to a question and think about the answer, she was incapable of doing so, having almost a forced speech which had to begin the moment someone started to ask her a question. The mother was domineering and chose to talk over the top of everyone. The father, who seemed to be completely undemonstrative or show very little personality which is almost the extreme opposite of the mother’s presentation, would be well used to these tirades.
Her pleas to the Court and the father’s Counsel that all she needed to do was to have some more time to “offload her unresolved issues” were completely hollow in my view. No amount of counselling could ever deal with the torrent of abuse in which the mother has happily engaged for years oblivious, it seems to me, of the effect it has upon all around her.
Part of the mother’s storyline was that the father had forced her to have a termination early in their marriage – relationship. The evidence of a letter that she had written at the time completely contradicted her own evidence. It was clear that she and the father made a decision that they were not ready to have a baby yet financially. This was another of the mother’s failed allegations of her history with the father about a strongly held position which formed part of her fictional storyline.
I accept that the father had good reason to take out a domestic violence order, however it is not clear to me why he locked the mother out of the house and changed the locks when she was out. Even allowing for this conduct, it is not the case that the mother who says that “she got nothing when she left the house”. I am satisfied that she got at least 40‑odd boxes of her own belongings. It may be that she didn’t get any of her furniture, but to seriously be arguing six years later that she should still be getting some of the furniture after final orders have been made for property, is an example of how the mother will not move on.
I was not able to accept the mother’s allegations of family violence perpetrated by the father. What the mother does not seem to realise is that engaging in these wild and fantastic stories of poisoning and the father hiding from the Court hundreds of thousands of dollars, which are actually identified in a property pool, have undermined her credibility in so many ways.
I accept the view of the report writer that the mother sees the child as an appendage of hers. This was quite evident when the mother started to make what I regard as threats to the Court that if she did not get what she wanted, she would walk away from the child. This statement was made in submissions showing no regard for the child’s relationship with herself. I strongly warned her to desist from this conduct which I considered was done for theatrical effect. I warned the mother not to make idle threats to the Court about what she would do if she did not get what she wanted. For once the mother was silenced.
The mother admitted in earlier evidence that she made idle threats to the father to “get him going”. The mother wrote a letter to the father after an earlier separation saying she was seeing solicitors. In contrary oral evidence, the mother said she did not in fact engage solicitors and this was done to “get him going” referring to the father.
I do not accept that the mother had any genuine concerns about the child spending time or living with the father. Rather, she took the moral high ground that the child ought not live with the father because of everything he had done, i.e., leaving her with a child at four months old and having what she perceived as an adulterous relationship.
The Family Law Act provides that children have a right to know and be cared for by both their parents regardless of whether their parents live together or have never lived together. There is nothing in the Family Law Act that says a child ought not be spending time with or live with a parent if that parent has engaged in what the other parent alleges is an adulterous relationship. To this extent I accept the view of the family report writer that the mother sees the child as an extension of herself. The mother therefore wishes to have the child adopt similarly the same stance and therefore concludes that the child ought never be living either at equal time or primarily with the father.
I was troubled by the mother’s blinkered determination to perpetrate the myths which she has done for years without a second thought.
I accept the report writer’s position that, given the vehemence of the mother’s feelings towards the father six years later, this child is never going to be able to say freely in the mother’s house that she loves the father. I could not anticipate that occurring. This is despite the mother saying that she would “never try and stop the child having a relationship with the father but she does not like him as a former husband”. I have given thought to those types of statements by the mother but I am not satisfied that they are said with any genuine belief. I am quite troubled at the prospect of the mother’s continuation of her engagement with the father and I accept the force of the report writer's view that the mother continues to engage in red hot rage with the father. The difficulty for the court is that the father is not innocent in this toxic dialogue. As the report writer says, he continues to engage and insists that the mother does things precisely in the manner he wishes them done. He simply cannot leave those issues alone and is dogged in his pursuit of controlling the minute issues associated in parenting this child.
The mother has also made some poor decisions. Her decision to allow the child to sleep in a double bed with herself and her boyfriend, whether he was her boyfriend for six weeks or six months, in my view, was a very unwise decision and could have compromised the child. It seemed the child complained to the father. Though I have the impression that the father complained too loud, about too many issues, I consider that his objection on this occasion was valid. The mother, at least, finally admitted that it was not a wise decision.
From that time onwards, the father seems to be obsessed with who the mother's boyfriends are and how many she has got and sought orders, as he did in one of his applications, that the child is never introduced to any of the mother's boyfriends. This is an indication of the father adopting an unreasonable stance. The mother, as the father has done, is free to have friends of the opposite sex.
I regard the mother as being able to clothe and house the child, attend arrange her attendance at school and provide for her education. The father has been doing this as well; however, as I said, he has never done it alone and does it with great support from his current wife. As a parent, the mother, apart from her indiscretion about the sleeping arrangements with a past boyfriend, appears to have the requisite capacity to attend to all aspects of the child raising aspect of her parenting. The single most concerning issue is her attitude to the father.

Mr G

In terms of the mother's current friend, Mr G, I was not satisfied that her friend, Mr G, was simply a family friend. The Facebook entries of Mr G showed pictures posted of the mother modelling new dresses, and which ultimately turned out to be pictures of a new dress Mr G was buying for her birthday. The photographs of the two of them sitting together at almost 3am on a Saturday night, did not really support, in my mind, the mother's assertion that they were just all going out as friends and they are not in a relationship. Mr G, when questioned, could not remember the names of the people that he was allegedly out with that night, which was strange and unconvincing as it was only in October, some weeks before the trial.
I am sure Mr G is a friend of the mother's and great support. I do not understand why he was reluctant to say that they were in a relationship when all the evidence pointed that way. As I said to the mother, she is perfectly entitled to have a boyfriend and she does not need to account to the father for the names of all her boyfriends and it is not up to the father to give his approval or otherwise to the boyfriends. This is, in my view, the intrusive and passive control that the father attempts to exercise over the mother.

Ms V, Family Report Writer

Ms V gave evidence and was cross-examined, having prepared two reports in this matter. One in October 2013 and another in November 2014. Ms V was quite exasperated with the conduct of each of the parties. And as can be seen in her report, was not prepared to make a recommendation either way. Ms V considers that each of the parties have significant deficits in terms of their conduct toward the other party. The mother is overtly hostile towards the father and continues with insults directed to the father in text messages (and indirectly in her own Facebook messages which the father has managed to view, having been assisted by other friends who have access to the mother’s Facebook).
The mother’s propensity to engage in a dialogue with the father, which from time to time is interspersed with a barrage of insults, is met by the father’s ongoing conduct of what amounts to, in my view, controlling behaviour by insisting that the mother parent in precisely the same way that the father does. His correspondence and complaints about a myriad of minor day-to-day issues to do with pierced ears, lunchboxes, clothing, shoes and medical matters provide an ongoing source of annoyance for the mother, and these two parties, it seems to me, are locked into an unhealthy cycle of action and reaction which they have been playing out together now since 2009, if not earlier.

Circumstances of Marriage Ending

It was very clear to me at the commencement of the trial that nowhere in the father’s material or in any of his oral evidence had he ever actually acknowledged his own conduct in leaving the mother with a four month old baby to take up a relationship with another person. The father’s version of events surrounding his departure from his marriage to the mother was less than candid and the mother knew this. The father says during the marriage he went for an overseas holiday with a friend and that when he came back he told the mother the marriage was over. He then happened to move into a relationship and physically move in with his friend, who he took to (country omitted), who is now his wife. The festering issue is that the mother perceives that the father entered into an adulterous relationship at a time when she was either pregnant or had just had their young child.

The father in my view is irresponsible in the sense of his parenting in wishing to prolong this litigation. To that extent I am not as critical of the mother for saying to the father, that as she did prior to this trial, he started it and so the Court should determine it.

S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

The father’s desire to litigate parenting orders is overwhelming. Unless prevented from doing so, I am sure the father will litigate until the child is 18. Even if the child lived with him, my impression is that his focus will be on a myriad of small issues to do with the child’s time with the mother. Whilst the father is not as gregarious or explicit as the mother, he is quiet and nonetheless as steadfast as the mother, I have the impression that whilst he does not overtly undermine the mother that he is nonetheless intent on having the mother play as small a role in the child’s life as possible. The history of his numerous applications and the copious and particular orders sought by him, illustrate his determination in this regard.

Parental Responsibility

Each of the parties asked the Court to make an order for equal shared parental responsibility. I have made references throughout about the toxic relationship between the parents. The difficulty for the Court in this matter is that I do not have confidence in either party to singularly make decisions about the best interests of the child. I have no confidence that the father would effectively carry out that responsibility as I do not see him as being a parent who has the capacity to make decisions by himself about long term matters to do with his child. I am not sure who prepared the father’s material, but he is not the involved hands on father portrayed in his evidence.
Equally I do not consider that the mother has the ability to decide long term issues alone. She sees the child as an extension of herself. I consider that seven years post separation, many issues about long term matters are largely determined at this point. Neither parent is seeking to change the child’s religion and the father seemingly acknowledges in his orders sought the mother’s (nationality omitted) heritage and there is no issue about the child attending (nationality omitted) religious observation with the mother.
I cannot do anything about the fact that each of the parties has had the child baptised in their own respective churches though I have little evidence of the father having any particular religious views. The basis upon which he chose where to have the child baptised was that he simply got married in a particular church. His decision to baptise the child, when she was already baptised, was not a child focussed decision. There is no suggestion that the child’s name is to be changed. The father’s evidence is that in September of this year they jointly attended a dental appointment and that there were no bad outcomes. It seems the parties did this quite willingly and cooperatively, however, one swallow does not make a summer.
There have been other times over the past years where they have been able to cooperate for a period of time. Each of the parties is now seeking an order for equal shared parental responsibility and it is supported by the ICL. As I do not accept either party as being a candidate to exercise sole responsibility I intend to make that order. I will however make orders that the parties in the event of disagreement about a long term issue must attend first at dispute resolution and obtain a certificate indicating they have each attended and engaged in a genuine attempt to resolve the matter (not that only one has attended and the other refused to attend) before either party has liberty to have a matter listed for determination by the Court. To be clear, I am not referring to day to day issues, or the child’s living arrangements.
Having made an order for equal shared parental responsibility I am required to consider equal time and if not equal time significant and substantial time. I accept the submission of the ICL that these parties do not have an ongoing ability to cooperate about day to day issues that arise and would arise in the event that this child was moving from house to house on a week on week off basis. The father has a style of parenting with minute attention to every tiny detail about medical issues and other matters, lunchboxes and what is in the lunchbox, which is not conducive to the parties having an equal time arrangement. The myriad of day to day issues that arise in an equal time arrangement, with a child continuously moving from one house to the other, would open the way for ongoing dispute about such issues, particularly initiated by the father.
The mother’s propensity to take every opportunity to send abusive text messages to the father is not conducive to her having an ongoing opportunity to engage with him frequently, as would inevitably be the case with an equal time arrangement. Whenever a musical instrument, swimming costume or shoes are left behind in either house, a tirade of insults will come forth from the mother. I have had regard to equal time and have discounted it.
In looking at significant and substantial time, I have the same reservations. I have had regard to the orders being sought by the father for a nine/five arrangement whether or not the child lives with him or lives with the mother.
That arrangement which I consider is in the child’s best interests in that it provides for the child to live primarily with one party. This enables the child to have stability without continuous movement from home to home, hopefully be protected from the possibility of regular disputes between the parents and to be able to attend schools and engage appropriately and effectively to have time with the child on school days and non-school days as is required by significant and substantial time. In terms of the holidays I see no reason, and no party now seeks any other orders, other than there is equal division of time. Initially the mother sought orders that the holidays are shared, but that during the father’s holidays, the child spent time with the mother. The court advised the mother that proposal was without any merit.
The orders in this matter need to be drafted with precision so there is no scope for either party to misinterpret the orders, which they have both done in the past, in terms of whether the child should live primarily with the father or primarily with the mother I note that it is agreed that the child, if she remains living with the mother, will remain attending at the (omitted) School where she has attended by order of the Court in their 2011 orders and by agreement in the 2013 orders.
In terms of the mother’s parenting capacity generally, I am not satisfied that her misjudgement about the child sleeping in the same bed as herself and a boyfriend is a misjudgement which has been repeated over and over. I consider that basically the mother is quite capable of primarily parenting this child as she has demonstrated her ability to do this since separation in 2009. And it has been determined by a Court in 2011 that the child live with the mother primarily and again by consent in 2013.
Also, I am not satisfied that there is a necessity to move the child to live with the father based on his current criticisms of the mother in her parenting. The issue of the child moving primary residence from the mother’s house to the father’s, in my view, involves the child unnecessarily changing schools and unnecessarily spending less time with the mother. I am just not satisfied that the father’s proposal is the proposal which is in this child’s best interests.
The single biggest issue is the mother’s ability to quarantine her comments about the father to keep it out of the child’s life. I am not sure that the mother is able to do this. And I do not know, however, that she would be able to do that whether or not the child lived with her or lived with the father. If the father had been a more impressive witness who exuded an ability to step up and be the primary parent my views may have been different. However having considered all of the matters, I regard the change to the child’s primary residence to live with the father, as a radical change and not one which I consider is in the child’s best interests.
I have a strong impression that the child would be raised primarily by the father’s wife. If I am mistaken about that I am not satisfied that the father has the capacity to be a primary resident parent. What I do know at the time of this decision is that the child has a loving relationship with the father and a close bond. All of the father’s material on this topic is to that effect. To that extent, despite the mother sending all of the messages that she sent to the father (I do not accept that those messages will have been seen by the child and I do not accept that the child has seen a Facebook entry of the mother’s friends) and despite the fears of the family report writer as to the future, there is no evidence that the mother’s poor conduct has affected the child’s relationship with the father.
I consider that the proposal of the father represents an unnecessary burden on this child to be removed from her long standing arrangements of living with the mother. It involves some degree of experimentation in relation to that proposal as the father has never been a primary parent. Having regard to all of the evidence, I am not satisfied that he has the ability to be a primary parent. I am not satisfied that he has the ability to provide for the child’s intellectual and psychological needs. The father does not exude such qualities. He is self-focused. Whilst he may have a desire for the child to live with him, he does not in my view have the capacity to actually perform this role.
Similarly I do not consider there is any advantage to the child in spending even more time in the father’s household. I am quite satisfied as the father has told me throughout this trial, that the child has a wonderful relationship with him, with his wife and the child’s step siblings. None of the step siblings on the father’s evidence are the child’s siblings. Therefore, I do not intend to elevate the importance of the child spending time with these children as a significant consideration, as the father would ask the Court to do. I am satisfied also, that the child would not have her current “wonderful” relationship with her step mother and step siblings if the mother did not respect the father’s family unit. It is time for the father to cease litigation, based on his mistaken belief that the mother does not respect his second family unit. In any event, for the most part it is idealistic and unrealistic for the father to seek orders to change attitudes. An order of a Court is not the mechanism to change attitudes. Mutual respect between the father and mother, will only occur if they both want it to.
I am satisfied that through the course of these proceedings the mother has understood that her conduct is unacceptable in continually issuing insults to the father. If the mother continues with that conduct she is on notice that it will be ultimately affect her child and X will end up with depression.
In terms of the future damage likely to be caused to this child in the event the mother and father continue to engage with each other as they have done over six years, they know that if the child is exposed to that indirectly or directly, it is likely to lead to the child suffering depression. The decision to change that behaviour lies with two people who bought this child into the world, not the Court. Generally I regard the mother as being a competent mother who has by and large parented this child solely, and the child currently is a delightful and engaging child who has a loving relationship with her father and mother.
To that extent I take some comfort in the mother’s evidence that she has not engaged the child in any direct denigration and that she will cease that conduct. I consider that the mother’s conduct is quite contrived and has been so repetitive, it has become like white noise. I am hopeful that she will do as she says and desist from that behaviour.

General Discussion

This is a difficult matter in that in certain respects as both the mother and father have deficits in their parenting. The mother’s propensity to engage in ranting and raving about the father is a significant issue when considering her attitude towards the father. However it has to be weighed up with all of her parenting for seven years, as a primary parent. Overall, she has demonstrated she has the capacity to provide for the child emotionally, intellectually and every other respect. The child has a loving relationship with the father, notwithstanding the mother’s own views about the father. I acknowledge the observation of the report writer that the child is unlikely to be able to openly express her love for the father in the household of the mother. To date, there is no evidence that this has occurred though I accept it is possible in the future.
Despite the litany of insults expressed by the mother to the father in her text messages, there is no evidence that the child has ever been made aware of these text messages. I have little to no evidence that the mother has actually engaged in direct denigration of the father with the child. Certainly the mother gave evidence that at family gatherings she talks to her relatives in the (nationality omitted) language about the father. The mother said the child understands some (nationality omitted) however, the mother’s evidence was that she did it with the relatives at one end of the room and children at the other.
Significantly, there is no evidence that the child has adopted the mother’s views at this stage or more importantly, ever been exposed to them. The child has a loving relationship with her father and with his current partner and her children. The mother’s tendency to launch into her set pieces of insults against the father, seem to me to be predictable, boring and melodramatic. It is all part of the enmeshed dynamic between these parties.
I am not satisfied that the father has the ability to be a primary resident parent. Unfortunately I was not impressed with the father. He has trouble in even expressing himself. He was not prepared to share details of his day to day life with the Court. He acted as though he did not understand questions when they were very basic. He said he had completed courses, but knew little about them and could not explain what the courses were about. Unlike what is written in his affidavits, he had significant difficulty communicating in the witness box even allowing for the stresses and strains put on litigants in being cross-examined. I very much had the impression that he was being significantly assisted by his current wife who seemed very competent in a most understated manner.
I am not satisfied the father has the ability or capacity to provide for the child’s intellectual and emotional needs. He seems preoccupied with his own world about which he was somewhat secretive, which seems to include spending significant time in continually looking for minor issues in which to engage in criticism about the mother. The father does not show any maturity or insight to be able to assume a primary parenting role. Whilst I have read with dismay, the texts and emails of the mother to the father personally, there is little substance in his case for the child to have her living arrangements reversed. There is no evidence that the mother has denigrated the father in the presence or hearing of the child. The evidence of the father is that he has a wonderful, close and loving relationship with his daughter.
He has launched unsuccessful contraventions. When judgments have been handed down against him, the father just starts the litigation again, either through the mechanism of a contravention or just filing another application. Much court time has been devoted to this family and public resources in the form of the appointment of an Independent Children’s Lawyer and family reports, judicial time and resources. Despite the never ending applications, amended applications, contraventions and applications in a case filed by the father, going on for seven years, the orders reflect the mother has been primary parent. The basis of all of this litigation must be questioned. The child is doing well educationally and has excellent relationships with both parents. It seems to me that the father is pre-occupied with this litigation, and he has obsessively marched on with further applications after each order is made on a final basis that the child remains living with the mother, and after his failed contraventions. The father is frighteningly unaware of the toll that continual litigation takes on the child, and the primary parent. The father’s conduct in this regard leaves me with the impression, that like many other issues, he just cannot let it go. One way or another he is going to continue to seek residence of this child.
It is most unsettling and not in this child’s best interests for her to have been in this somewhat pointless litigation, for the past six years of her child hood – in other words, for the entirety of her childhood. It is time that this father found something else to do with his spare time of which he seems to have plenty. I am most troubled at the prospect of the father continuing this litigation. Decisions such as Rice and Asplund and many others since that time, have stressed the importance of children being protected from the effects of litigation, the risks associated with children being continuously involved in the uncertainty of litigation and the danger of re-litigating the living arrangements of children over and over. This is what the father is doing. I am particularly critical of the father for his attitude towards parenting and being prepared to engage in endless litigation in this regard. It reflects very poorly on his responsibility towards parenting.
The issues of family violence are largely in the background of this matter. I am satisfied at this point that there is scope for one last opportunity for this child to have a meaningful relationship with each of her parents noting her love and good relationship with each of them.
I am mindful that the report writer says that the child would know already that the mother hates the father. To date though there is no evidence that the mother’s attitude or tendency to engage in rants about the father, has in anyway affected the child’s relationship with the father. I have the impression the father is so used to this, that he regards it as white noise. It seems to me the father raises some trivial issue and then stands back and wait for the mother’s predicable response, he keeps it and then uses it in his quest for residence of or more time with the child.
The Court accepts of course that the father loves this child. That is not in question. However I am most troubled about his obsessive conduct in relation to wishing to argue about a plethora of minor parenting issues (as seen throughout his applications) with the mother and his inability to let go of an issue once he has ceased on an issue as observed by and referred to by the Family Report writer. I accept her views and assessments of the father as they accord with my own, based on the evidence before me the father has little to no insight into his own inadequacies as a parent. I am satisfied that in the same way he will not let up on his criticisms of the mother’s parenting, such as his belief that the mother is trying to dissolve and erode his new family unit, that he is as steadfastly focused on litigation. I regard this attitude of the father as deeply troubling and representing a significant deficiency in his ability to parent.

I am not satisfied that the mother has attempted to, or is dissolving, eroding or undermining the father’s family unit and I am satisfied that despite her personal insults directed to the father, that in truth, the mother does accept the father’s role in the child’s life and that she is wishing for the child to continue her loving relationship with her father.
In my view, the proposal put forth by the father for the child to live with him does not represent a living arrangement that the court considers is in the best interests of this child. I therefore decline to make the orders sought by the father on the basis that his proposals for the child to live with him, or spend equal time with him, (which I have also considered but rejected for the same reasons) are not in the child’s best interests. Of the two proposals before the Court, the proposal which the Court considers to be in the best long term interests of the child, is in line with the well considered submissions of the ICL Counsel, namely that the child live primarily with the mother and spend time with the father. I accept and adopt the submissions of the ICL in this regard as they are in accord with my own position, having considered all of the evidence, and weighed up the advantages of each of the proposals.
As to the application of the mother to have the child’s time with the father reduced, there is no justification for this, except if I was to consider effectively eliminating one parent or another from the child’s life as referred to by the report writer. I have considered this. To some extent, I understand that by reducing the child’s time with the father, that might lead to less trivial issues being constantly raised by the father. However, because this child has such a good relationship with both her mother and father, I prefer to make orders enabling for this to continue and that her time remain as it is with the father.
I am satisfied that the order which will enable the child to have a meaningful relationship with the father and mother is for her to live primarily with the mother and spend time with the father from Wednesday afternoon until the commencement of school on the following Monday morning. This enables the father to become involved in the child’s schooling and spend weekend time with the child. The father spends little time actually at work, and has the opportunity for involvement at the child’s school if he chose to. This time is also sufficient for the continued enjoyment of the child with her step siblings and step mother. I am satisfied that it enables the child to be protected to the extent possible, from the opportunity of ongoing conflict between the parents and what occurs in their respective homes.
I am also satisfied that the child should remain at her current school and that any application by the father to have her change school should be dismissed. There is no basis for her changing schools given the Orders I am making.
I suggest that the father concentrate on his own parenting and accept that the mother may do things differently, and that such differences do not warrant filing an application in the Federal Circuit Court. Under these orders each parent will have (as they always have) the ability to make day to day decisions about the child. This includes what goes in a lunchbox, how a parent decides to treat an infection, and the myriad of other issues that arise.
I will order that all changeovers occur to and from school, with the father collecting the child Wednesday afternoon and the mother organising collection of the child on the following Monday afternoon. For changeovers for non-school days, the mother will deliver the child to the (omitted) where the father will collect her, and the father will return the child to (omitted) where the mother will collect her.
I intend to make no orders about the work roster of either parent. I am satisfied that this has been relied upon in the past by the father to say he cannot work, and to thereby reduce his ability to pay child support. If the father works during the time the child is in his care that is a matter for him. If the mother works whilst the child is in her care, that is a matter for her. Each party can make their own arrangements for the child during this time. I also consider that any orders about rosters and providing them, simply provides more opportunity for the father to bring contraventions.
These parties will establish an email address, and use that facility to exchange information relevant to the child’s care which is necessary for the other party to know. I do not intend to make restraints about the use of text messages as I regard such orders are too restricting and unnecessary. The parties themselves agreed with this during the trial.
In terms of doctors, I will order that the mother nominate the child’s general practitioner, and keep the father so informed from time to time in the event of changes, and that the father use this doctor in the event that the child needs medical assistance whilst in his care.
But I will put the parties on notice that after this hearing, and particularly the father, that if this matter comes back to Court I am quite confident that the living arrangements will be altered quite dramatically, likely to one or two nights a fortnight or less, or possibly no contact. The strong submission of the ICL at this contested hearing was that based on the evidence of the family report writer given the history of this matter, if the conflict continues that there is no other solution than one parent being removed from the child’s life.
In terms of overseas travel with the child to (country omitted), this issue was not really addressed during the trial. The mother sought orders to travel but they were not seriously pressed. The father remains steadfast in his refusal to agree to such travel. There is significant mistrust between the parents at this time and I am not prepared to make orders for the mother to travel overseas. However, in the future if the mother wishes to do so, she is at liberty to bring a discrete application well prior to the proposed travel, with the details of the proposed holiday, together with all of the relevant information about the trip. It may be that the travel will be permitted if the mother placed a significant amount of money or equity in a solicitor’s trust account by way of surety whilst she travels away. Or alternatively on the facts available to the Court, the travel will be allowed or disallowed. It will be a matter for the Court to determine at the time, noting the age of the child at the time. It may be that such travel is better undertaken when the child is much older. I was not satisfied with the evidence relating to alleged threats by the mother’s mother of kidnapping the child as alleged by the father, however, the grandmother was not cross examined. In my view mediation on this matter would be a pointless exercise.
All previous orders have included the child’s name being placed on the airport watch list. Whilst there is no evidence before me that the mother is a flight risk, I will order that the child’s name be placed on the airport watch list simply to prevent any further application by the father to do this. In the meantime, as I have said the mother is free to bring an application to travel to (country omitted) at a time in the future that she wishes to do so and it will be dealt with on its merits at the time of the application.
In the meantime it remains an offence for either party to remove the child from the Commonwealth of Australia when there are orders in place providing for the living arrangements of this child, as provided for under the Family Law Act.
I do not intend to make copious orders as sought by the father about precisely what is to be done if there is a further dispute. I note that he appears to ignore those orders when it suits him. Moreover, any further application regarding parenting orders at all in this matter will need to address the legal threshold issue as explained in Rice and Asplund and all other requirements in the legislation.

I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date: 14 April 2016

[2016] FCCA 854

14 April 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction