Wearne & Hammett
[2025] FedCFamC2F 342
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wearne & Hammett [2025] FedCFamC2F 342
File number(s): ASC 2 of 2023 Judgment of: JUDGE LIVERIS Date of judgment: 21 February 2025 Catchwords: FAMILY LAW – PARENTING – where the parties had a very short relationship – where the child was born after separation – consideration of parental responsibility and the living arrangements for the child – where the parties agreed on an order for international travel - where there are no significant risk factors – final parenting orders made Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 65D(1), 65H(2), Part 7
Cases cited: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251.
Grella & Jamieson [2017] FamCAFC 21
In the Marriage of Chandler (1981) FLC 91-008; (1981) 6 Fam LR 736
Isles & Nelissen [2022] FedCFamC1A 97
Kelly & Hutchens [2024] FedCFamC1F 662
Radecki & Radecki [2024] FedCFamC1A 246
Welter & Welter [2021] FedCFamC2F 11
Division: Division 2 Family Law Number of paragraphs: 61 Date of hearing: 18-19 February 2025 Place: Heard in Alice Springs, delivered in Darwin Counsel for the Applicant: Mr Lipert Solicitor for the Applicant: Grays Legal NT Counsel for the Respondent: Mr Fernandez Solicitor for the Respondent: Jones Elfrink Barristers & Solicitors ORDERS
ASC 2 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WEARNE
Applicant
AND: MR HAMMETT
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental Responsibility
2.The mother and father have joint parental responsibility for X born in 2022 (“the child”), and will make a genuine effort to come to a joint decision about:
(a)The child’s education, both current and future;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name;
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
3.The parties shall use their best endeavours to reach a joint decision relating to the child’s major long-term issues. In the event that the parties are unable to reach a joint decision, they will do all things necessary to participate in family dispute resolution with an accredited community service based Family Dispute Resolution (FDR) practitioner.
4.The parties are not required to consult, but may consult the other when making decisions while the child is in their care under this Order about issues that are not major long-term issues.
Parenting Arrangements
5.From the date of these Orders until 30 June 2025, the child will live with the mother and spend time with the father in each fortnight as follows:
(a)Week 1 – Midday Saturday until 5.30 pm Sunday;
(b)Week 2 – Midday Wednesday until 5.30 pm Thursday.
6.From 1 July 2025 until the child’s birthday in 2025, the child will live with the mother and spend time with the father in each fortnight as follows:
(a)Week 1 – 9 am Saturday until 5.30 pm Sunday;
(b)Week 2 – 9 am Wednesday until 5.30 pm Thursday.
7.From the day after the child’s birthday in 2025 until 31 May 2026, the child shall live with the mother and spend time with the father as follows:
(a)Week 1 – 9 am Friday until 5.30 pm Sunday;
(b)Week 2 – 9 am Wednesday until 5.30 pm Friday.
8.From 1 June 2026 until the child’s birthday in 2026, the child shall live with the mother and spend time with the father as follows:
(a)Week 1 – 9 am Friday until 5.30 pm Monday;
(b)Week 2 – 9 am Tuesday until 5.30 pm Friday.
9.From the day after the child’s birthday in 2026, the child shall live with the parties on a week about basis, in each alternate week from before school Monday (or 8 am if not attending school that day) until after school (or 3 pm if not attending school that day) the following Monday.
10.Once the child commences school, she will spend time with the father during all Northern Territory gazetted school holiday periods as follows:
(a)The first half of the school holidays in odd-numbered years; and
(b)The second half in even-numbered years.
11.Once the child commences school, she will spend time with the mother during all Northern Territory gazetted school holiday periods as follows:
(a)The second half of the school holidays in odd-numbered years; and
(b)The first half in even-numbered years.
Changeovers
12.All changeovers not occurring at daycare or school shall occur at the parties’ homes, with the father to effect changeover at the commencement of the child’s time with the mother, and the mother to effect changeover at the commencement of the child’s time with the father.
Travel
13.Neither party be allowed to travel with the child internationally before the child turns seven (7) years of age.
14.Other than as provided for in these orders, if either party intends to travel interstate with the child, the party is to provide the other party with no less than thirty (30) days notice in writing of the intended travel and provide the following:
(a)A travel itinerary;
(b)Copies of all airline or other travel tickets for departure and return; and
(c)Details of all premises where the child will be staying, including contact details of the travelling party during the period of travel.
Special Days
15.That the child spend time with the father from 9.00 am to 5.00 pm on Father’s Day.
16.That the child spend time with the mother from 9.00 am to 5.00 pm on Mother’s Day.
17.That the child spend time with the mother from 2 pm on Good Friday until 2 pm on Easter Sunday in even-numbered years.
18.The child spend time with the father from 2 pm Easter Sunday to 2 pm Easter Monday in even-numbered years.
19.The child spend time with the father from 2 pm on Good Friday until 2 pm on Easter Sunday in odd-numbered years.
20.The child spend time with the mother from 2 pm Easter Sunday to 2 pm Easter Monday in odd-numbered years.
21.The child will remain with the parent on Easter Monday, should she otherwise be spending time with that parent in accordance with these Orders.
22.In all even-numbered years:
(a)the child spend time with the mother from 12 noon Christmas Eve until 12 noon Christmas Day; and
(b)the child spend time with the father from 12 noon Christmas Day until 12 noon Boxing Day.
23.In all odd-numbered years:
(a)the child spend time with the father from 12 noon Christmas Eve until 12 noon Christmas Day; and
(b)the child spend time with the mother from 12 noon Christmas Day until 12 noon Boxing Day.
24.The child shall spend equal time with the mother and father on the child’s birthday at times to be agreed between the parties, and failing agreement the child shall spend time with the parent she is not otherwise spending time with on that day between 3 pm and 7 pm.
25.The child shall spend time with the mother from 9 am until 7 pm on the mother’s birthday.
26.The child shall spend time with the father from 9 am until 7 pm on the father’s birthday.
Communication
27.Otherwise than in the case of an emergency, all communication between the parties shall be via “AppClose” and shall only be in relation to the child.
28.Both parties will update “AppClose” with medical information, emergency contacts and any other necessary information pertaining to the child as soon as practicable.
29.The parties shall advise each other of any medical appointments the child has and be at liberty to attend.
30.In the event that the child requires emergency medical attention, the parent who is caring for the child shall advise the other parent immediately via telephone, and both parents be at liberty to attend the hospital or medical facility.
31.In the event that a child requires medical appointment, the parent caring for the child is to immediately advise the other parent via AppClose, within two (2) hours of the appointment being made and shall include details of the medical treatment provided and any ongoing medication that is required by the child.
32.Each parent is able to receive information/records from any doctor, carer, teacher, hospital, childcare institution, and any social, sporting or recreational organisations with respect to the child.
33.The parties shall advise each other of any change of telephone number or residential address within twenty-four (24) hours of such change occurring.
Other
34.The parties shall not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the child.
35.The parties shall encourage and not undermine the child’s relationship with the other party.
36.In the event of any dispute as to the interpretation, implementation or enforcement of these Orders (including any claim by a party that it should be varied) the parties shall first attend FDR with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within fourteen (14) days.
37.All extant applications be dismissed.
IT IS NOTED:
A.Order 13 herein is made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
These are my oral reasons for decision in the matter that was heard in Alice Springs on 18 and 19 February. I will review the transcript and settle written reasons for decision, which will be distributed to the parties in due course, and which will correct errors and misstatements, structure the written decision, and set references and citations out in full.
X was born in 2022. She is a happy, bubbly, talkative, and active child who loves baby dolls. She is inquisitive, and an involved learner who is meeting her developmental milestones.
Her parents, Ms Wearne and Mr Hammett, met in late 2021 after Mr Hammett moved to City B for work and was living in hotel accommodation.
In early 2022, the parties got COVID, and Ms Wearne stayed with Mr Hammett at the hotel for five weeks. The parties had a short relationship. Ms Wearne became pregnant. The relationship, however described by the parties, ended.
Both parties re-partnered soon after. Ms Wearne started a relationship with Mr C, who she had known for six or seven years. Mr Hammett started a relationship with Ms D. Ms D has three biological children from a previous relationship, aged 14, nine, and six years. Mr Hammett and Ms D have one child together, E, aged one.
There was some bitterness between the parties after they broke up and tension caused by each party's new relationship. Ms Wearne alleges that Mr Hammett was abusive and controlling toward her during her pregnancy. She felt bombarded by text messages from him whilst she was suffering from morning sickness. She felt financially unsupported. Mr Hammett alleges that Ms Wearne controlled and micromanaged him in the early stages after X was born, that she was cheating on him, and that she used him to fall pregnant to gain financial stability and child support.
Soon after X was born, Ms Wearne took her to Adelaide for three weeks. Mr Hammett objected to such a long drive for a newborn, but he felt unheard and powerless in that decision. When Ms Wearne returned from Adelaide in late 2022, Mr Hammett and Ms D met with her, also Ms Wearne's mother and one of her mother's friends, to discuss a parenting plan for X's living arrangements. Mr Hammett then wanted a shared care arrangement. No agreement was reached. Ms Wearne considered that Mr Hammett lacked insight, seeking week-about for a one-month-old, breastfed baby, and was treating X like a show pony or a toy that he could pass around. Mr Hammett thought that Ms Wearne was trying to limit X's time with him.
On 13 January 2023, Mr Hammett wrote Ms Wearne a lengthy text message to, in his words, "get a number of things off his chest" and that included a statement that he would like to take X to New Zealand for 10 days at Christmas and New Year. On 6 February 2023, Ms Wearne commenced these proceedings, seeking orders that X be placed on the airport watch list and related restraints. Ms Wearne also sought sole parental responsibility and that X spend supervised time with Mr Hammett. Mr Hammett believes that Ms Wearne withheld X's time with him because he had asked to take her to New Zealand.
On 22 March 2023, the parties were ordered to attend a Family Law conference with the Northern Territory Legal Aid Commission, following which, on 17 May 2023, they entered into interim consent orders. Mr Hammett was then self-represented. He has been legally represented since 8 June 2023. The consent interim orders included for X to spend supervised time with Mr Hammett for three months, and thereafter every Sunday from 2 pm to 4 pm. The agreed orders also provided that Ms Wearne will provide all of X's food over the time that she spends with Mr Hammett, and for neither party to remove X from within a 150-kilometre radius of the City B CBD. The preparation of a family report was also ordered on 17 May 2023. I received into evidence a report by Ms F, court child expert, dated 5 February 2024.
Ms F also gave oral evidence at the hearing. Her evidence was, and I agree, that concerns Mr Hammett was treating X as a show pony and ensuring that nobody else was present when X spent time with Mr Hammett is not a reasonable basis to utilise resources at G Contact Service and for the implementation of supervised time. In any event, the first supervised visit took place in June 2023. At that point, X had not spent any time with Mr Hammett since approximately late 2022, and Mr Hammett held the view that Ms Wearne's controlling behaviour affected his ability to be a father to X during the first months of her life.
The second scheduled visit to G Contact Service was cancelled in circumstances that disappointed Mr Hammett, but the supervised time period was completed nonetheless. Despite that history and the elements of tension and dysfunction in the parties' relationship, the co-parenting relationship has been functional. X would spend time with Mr Hammett for two hours on a Sunday afternoon, and she now spends time with him for eight hours every Sunday, from 9 am until 5 pm. Ms Wearne's trial evidence is that this appears to be working well. Overall, this has been positive for X. Ms Wearne's evidence-in-chief is that:
[X] seemed happy and well cared for whenever I collected her. On occasion, she had not had a nap, and that was very evident by her behaviour. But by and large, she seemed to enjoy the time with [Mr Hammett].
ISSUES
Against this background, the central issue for determination is whether X should start spending overnight time with Mr Hammett, and if so, what the appropriate regime for that time should be.
The parties are effectively in agreement that they will share the responsibility to make major long-term decisions for X jointly. Ms Wearne seeks orders that X live with her and that she spends time with Mr Hammett from 9 am to 5 pm on Saturday and Sunday in each alternate week. She also seeks an order that upon X turning five years of age, so in nearly three years, the parties engage in family dispute resolution to renegotiate the parenting arrangements in line with X's evolving needs and requirements.
Mr Hammett seeks orders that X live with Ms Wearne, and that she starts to spend overnight time with him immediately on a graded, increasing basis moving toward an alternate week care arrangement once she turns four. In determining the central questions and what parenting orders to make, I must regard X's best interests as the paramount consideration.[1]
[1] Section 60CA of the Family Law Act 1975 (Cth).
In determining what is in X's best interests, I must consider the six matters specified in section 60CC(2) of the Act. I must also make such orders as I think are proper within the objects of Part VII of the Act.[2] Because of the focus on the future, this requires me to make a discretionary judgment involving significant elements of value judgments, assumptions, necessarily uncertain predictions, and intuition.[3] The objects of Part VII of the Act, set out in section 60B, are to ensure X's safety and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
[2] Section 65D(1).
[3] Grella & Jamieson [2017] FamCAFC 21.
Further, in making findings, section 140 subsection (1) of the Evidence Act 1995 (Cth) provides that:
...the court must find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities.
In deciding whether it is so satisfied, subsection (2) proves that, without limitation, the court is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings; and
(c) the gravity of the matters alleged.
I must consider the conduct of the parties, but not with a view to rewarding one's conduct or punishing the other's conduct. In Kelly & Hutchens,[4] in refraining to the extent possible from making adverse findings about the parties, McNab J cited Nygh J in In the Marriage of Chandler[5] at paragraph 1, where it was said:
It is a fundamental principle in this court that where it is clear from the evidence that the relationship between the children and each of the parents is going to continue, the court should refrain from making any finding, unless absolutely necessary, which adversely reflects upon the self-esteem or integrity of each of the parties.
[4] [2024] FedCFamC1F 662.
[5] (1981) FLC 91-008; (1981) 6 Fam LR 736.
A parenting order in relation to a child stops being in force if the child turns 18, marries, or enters into a de facto relationship.[6] My focus is on final parenting arrangements that will regulate X's living and care arrangements over the long term.
[6] Section 65H(2).
WHAT ORDERS SHOULD BE MADE FOR X’S LIVING ARRANGEMENTS?
I turn to what orders should be made for X's living arrangements. At the interviews with Ms F on 24 January 2024, Ms Wearne spoke about fears that Mr Hammett might abduct X to New Zealand. Ms D is originally from New Zealand. The biological father of her children lives there. She moved to City B in around 2016 to be close to her family, some of whom have been living there for some 20 years. Ms D has no intention of returning to live in New Zealand. Mr Hammett denied having any plans to take X to New Zealand and not return. Ms Wearne did not give any evidence-in-chief about this concern expressed to Ms F, and Mr Hammett and Ms D were not challenged on this fact.
The risk factors asserted by Ms Wearne are great concerns for how Ms D may discipline X in the future if she misbehaves, and concerns about Ms D's mental health. Neither of these concerns were the subject of any detailed evidence. In cross-examination, Ms Wearne said that she does not think X's physical safety is at risk with Mr Hammett, but that mentally, down the track, she thought she might be screamed at by Ms D. She is not aware that this has happened before, and these particular concerns stem largely from what she considers to be Ms D's dominating influence over Mr Hammett, and the lengthy message that she sent her on 15 October 2024, which she considered to be toxic and unprovoked. She has said that she has been on the receiving end of bullying behaviour by Ms D.
As identified in Isles & Nelissen,[7] quoting Austin J in Fitzwater & Fitzwater,[8] the consideration of risk is:
...a predictive exercise, and while it is naturally enough liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.
[7] [2022] FedCFamC1A 97 at [50].
[8] (2019) 60 Fam LR 212; [2019] FamCAFC 251.
This involves me considering both the potential harm and the arrangements for the care of X that are protective from that potential. I do not find that the matters raised by Ms Wearne constitute unacceptable risks of harm. Ms F found that family violence is not a risk factor, that child safety and well-being is not a risk factor, that drugs and alcohol is not a risk factor, and that mental health is not a risk factor, with neither party reporting any history of mental health illness or concerns about their own or of the other parent's mental health.
At interview, Ms Wearne expressed a wish for X to develop strong relationships with Mr Hammett and his family, understanding this to be in her best interests. She accepted Ms D as X's stepmother and said that she would not take any issue if X chose to refer to her as "Mum," saying that she believed that children could benefit by developing strong parent-like relationships with their parent's partners. In any case, the evidence was that X calls Ms D "babe," and Ms D refers to her as her "bonus daughter."
Ms Wearne raised no concerns about X's safety at the time of the family report interviews, nor Ms D's mental health, and Ms F observed that X felt happy and confident in the care of Mr Hammett and Ms D. Whilst Ms Wearne gave general evidence of controlling and demanding behaviour by Mr Hammett, in her notice of child abuse, family violence, or risk filed on 6 February 2023, she answered no to the questions that asked, amongst other things, if she alleges that she has experienced family violence or is at risk of experiencing family violence, including as those questions asked about X. With references to the orders that she was then seeking, the risk alluded to was one of abduction to New Zealand. Similarly, the notice of child abuse, family violence, or risk filed by Mr Hammett on 14 June 2023 made no declarations of any risks or concerns of family violence about Ms Wearne.
I now turn to the specific criteria in section 60CC(2) of the Act.
What arrangements promote the safety of X and her caregivers?
As I have said, Ms Wearne has not given any evidence in the trial about a concern that Mr Hammett might abduct X to New Zealand, and he was not challenged about it. To the extent that these issues were traversed by Ms F and in existence as a concern at the time, the allegations were strongly refuted by Mr Hammett.
Ms F's impression was that Mr Hammett did not intend to abduct X, but rather hoped for greater care of and responsibility for her much sooner than Ms Wearne felt comfortable with, and believed it was developmentally appropriate for her in terms of spending extended time away from her.
Ms F recommended that if X was to travel with Mr Hammett, it should occur after she has become familiar with spending consecutive overnight time away from Ms Wearne and has developed a stronger relationship with Mr Hammett. In the interviews with Ms F, Mr Hammett expressed regret for having raised the request to take X to New Zealand. As it transpired, this issue was largely removed from contention after the parties' cases had closed, with the parties agreeing to an order that neither be permitted to take X outside of Australia until she reaches at least seven years of age.
In considering what arrangements would promote safety, I must include consideration of any history of family violence, abuse, or neglect involving X or a person caring for her, whether or not the person had parental responsibility, and also any family violence order that applies or has applied to X or a member of her family.[9]
[9] Section 60CC(2A).
There are no family violence orders that apply or have applied to X or a member of her family. Ms Wearne says that Mr Hammett became controlling, demanding, and abusive during her pregnancy such that she came to the conclusion that she did the right thing by avoiding a relationship with him beyond one of co-parenting.
Despite these concerns, Ms Wearne's assessment of the co-parenting relationship is that it is functional, and that changeovers occur amicably between the parents' homes. Both parties have moved on in their personal relationships, and as I said, there are no risk factors identified by Ms F.
X’s Views
X is just over two years of age, and her views have no relevant bearing in my determination of what is in her best interests.
X’s developmental, psychological emotional and cultural needs
X is a young child who is entirely reliant on her caregivers. Ms Wearne is her primary attachment figure and her safe base. It was reported to Ms F that Mr C has played a strong parental role and participated in X's care since her birth. Indeed, Mr C was there at the hospital with Mr Hammett and Ms Wearne when X was born. Ms F observes X to have strong and secure relationships with both Ms Wearne and Mr C.
Ms F said that X is at a stage in her development when the foundations of basic trust and relationships are formed. She said that it was not usually recommended that a child of X's age experience any significant change in their routine and parenting arrangements, unless they were at risk of harm or there are other compelling reasons for such a change to occur. Ms F was of the view that children in X's age group fair best when they experience predictability, consistency, and routine, and their relationships with each parent and their family are supported and encouraged.
That said, Ms F said that whilst routines are important, if children don't have experiences out of the ordinary, they do not grow resilience. The importance of a routine involves a consistency of things such as bedtime routines - that is, going to bed around the same time - and processes, consistency in bathing, as I say, bedtime stories, eating around the same time, and children not being hungry or over fed. Ms F said that ideally, X will experience an arrangement whereby both parents outwardly support her time in the other's home and she can incrementally transition to spending greater time, including overnight time, with Mr Hammett.
The capacity of each party to provide for X’s developmental, psychological, emotional, and cultural needs
Ms F formed the impression that Mr Hammett is a conscientious parent who has capacity to provide X with appropriate meals and snacks and tend to her personal care needs during her time with him. Ms Wearne told Ms F that she did not identify any significantly negative traits in Mr Hammett's approach to parenting. She reported that X always appeared happy transitioning to his care and in good spirits upon returning to her care, and this was replicated in Ms Wearne's trial evidence.
Ms Wearne does, however, raise questions over Mr Hammett's insight, capacity, and awareness of X's needs, particularly when she was a newborn baby. She says this is evident in his request for X to spend equal share time with him as a young baby, not adequately understanding her attachment and feeding needs, and a general lack of awareness about X's young age and needs. Ms Wearne also points to Mr Hammett's actions in criticising her parenting of X. These issues were traversed in some detail, including as they are in dispute between the parties in the interviews and the assessment by Ms F.
The evidence at trial is that X is a very restless sleeper. Since October 2023, Ms Wearne has experienced a significant disruption in night time routines. She has pointed to the need for her to be there to settle X at night as one of the reasons why she does not think it is appropriate for X to start spending overnight time with Mr Hammett. Ms Wearne did not give evidence-in-chief about this concern, and also, in the interviews with Ms F on 24 January 2024, it was recorded that Ms Wearne told her that X generally sleeps through the night from 7.30 pm to 6.30 am. It was not suggested to Ms F that she incorrectly recorded what Ms Wearne said to her.
However, Ms Wearne also added to Ms F that she was concerned that if X were to spend overnight time with Mr Hammett, that she may wake up in the night after having a bad dream and fret for her, and be unable to settle, particularly without being able to have access to a breastfeed. Ms F noted that Ms Wearne gave the impression of feeling highly emotional about X spending overnight time away from her, commenting:
I'm worried that if [X] was upset or needed me, [Mr Hammett] wouldn't tell me, especially at night if she can't be consoled. If she was screaming and upset, I would be happy to go around to feed her. I would be okay with that.
How X will respond to potentially being unsettled at night in Mr Hammett's home is one of the unknowns, and an area where I am required to make the kind of value judgment and uncertain prediction. However, in my view, the risks of X being unsettled at night is not a reason to delay the incremental increase of time toward a shared care arrangement where there is a foundational relationship and no risk factors, because as Ms F said:
You don't know until you try.
What is important is that if X becomes inconsolable, the parties need the quality of relationship to be able to address it. I do not assess there being any question about either party’s capacity or willingness to support X's ongoing relationship with the other or to be able to respond to such an occurrence. I accept Mr Hammett's evidence as appropriate that if X becomes distressed at night, he will soothe her. If he is not able to soothe her, he will seek Ms D's assistance, failing which he will call Ms Wearne, as has occurred in the past during a day visit. And indeed, as reported to Ms F, this aspect is an outcome that Ms Wearne is open to.
In terms of capacity, Ms F concluded that despite the presenting contentions between the parents, it was her overall impression that they both are strongly interested in X's well-being, and each will endeavour to understand and best meet her needs when she is in their care.
Where, as there is here with Mr Hammett, an invested parent who wants to spend time with X, and where there are no risk issues, it is important and in X's interests for that parent to participate in all aspects of her routine, including night times and school and day care. This would include Mr Hammett being there to participate in X's day care routine, and indeed, where X has night time sleep disruption, Mr Hammett being involved in assisting her back to sleep, or at times when she wakes in the night. And in my view, that is a factor that can assist in developing trust and the relationship between X and Mr Hammett more strongly.
I see Mr Hammett's actions in seeking a copy of the contract for day care, for example, not as a sign of control, but as a sign of proactive engagement and interest in the affairs in X's life.
The benefit to X of being able to have a relationship with her parents and other people who are significant to her where it is safe to do so
Speaking generally, Ms F was of the view that in order for children to develop strong and trusting relationships with their primary figures in their early years, they need to spend routine time with them and experience significant care by them, which should include meaningful interactions that build foundational trust such as soothing, feeding, bathing, and bed time activities. Ms F ultimately concluded that Mr Hammett's proposal that X's time with him be incrementally increased is appropriate, although she cautioned about whether that translated to an equal time arrangement at that stage.
In my view, an incremental increase of time will allow X to continue to develop her relationship with Ms D, Ms D's children from her first marriage, and her half-sibling, E. I do not consider that orders for X to spend day times on alternate Saturdays and Sundays over a period of several years with no advancement to be consistent with the benefit to her of being able to have a relationship with her parents and people who are significant to her. Although time spent is a qualitative and not quantitative assessment, Ms Wearne's proposal is for this alternate weekend day time contact to continue until X’s birthday in 2027, without there being any progression of time.
Ms F's view is that the incremental introduction of additional time is a good thing for X to develop her bond with Mr Hammett and her extended paternal family, especially whilst she is in her younger years. In my view, putting this time in an effectively holding pattern until X turns five, to merely then have the parties undergo further family dispute resolution with a view to renegotiation, is not a pathway forward that is consistent with the benefit to X in developing these bonds in her early childhood.
In terms of the stages of increase, Ms F put importance on whether a child has had enough time to develop a trusting relationship with a non-primary parent. X has been spending consistent and extended time with Mr Hammett since 21 September 2024, and in my view, that relationship of trust has a solid foundation, and it is one that should be built on rather than effectively be held in abeyance. In the circumstances, I do not consider that Ms F's recommendation for a four-month period of day time on Saturday and Sunday every weekend to be a necessary precursor to the commencement of overnight time.
Anything else that is relevant to X’s particular circumstances
In my view, it is relevant to take into account Ms F's opinion that it is important for each parent to support X's ongoing relationship with the other and for there to be a cooperation and consistency of approach. In my assessment, the parties have this. They have communicated consistency in X's routines in examples such as eating, day time, sleeping, toilet training, and car safety seats. As Ms F said, for X's time with Mr Hammett to increase, something needs to give. There is a quantitative sacrifice of time with the other parent, in this case the primary caregiver, Ms Wearne. I appreciate the significant impact that this will have on Ms Wearne and the necessary adjustment that all parties will need to make to facilitate the transition.
It is consistent with Ms F's observation about the higher motion in the concept of X spending overnight time away from Ms Wearne. However, the reality is that the brief relationship between the parties ended well before X was born. They have lived their own lives since. X is the single unifying feature in their lives where they would otherwise have no ongoing relationship at all. They both recognise the importance to X of her relationship with each of them. In the circumstances, it is important to establish X's comfort and ease in progressing toward a childhood that will involve her living at both her mother and her father's homes as a necessary consequence of her reality. However, as Ms F emphasised, that does not mean that there is undue impact on the well-formed and established safe base relationship between X and Ms Wearne.
WHAT ORDERS SHOULD BE MADE?
I now turn to what orders should be made. In light of my findings and my assessment of the evidence, final orders are, in Ms F's words, mostly a good thing. People can get on with their lives. Litigation and uncertainty is less beneficial than final orders, and it is beneficial for children for their parents to agree. The adverse impact of continuing litigation on children was referred to in Radecki & Radecki,[10] citing the High Court in CDJ v VAJ.[11] Albeit in the context of whether to permit a party to adduce further evidence, the High Court referred to the public and private interest in the finality of litigation and said:
The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
[10] [2024] FedCFamC1A 246.
[11] [1998] HCA 67; (1998) 197 CLR 172 at [118].
I can understand why Ms Wearne, as a relatively new first-time parent and X's primary caregiver, may take an approach that contemplates short-term orders and reassessments of parenting arrangements from time to time based upon X's point in time needs and requirements. However, I am required to make final parenting orders after a trial. I do not consider that the halfway point that was suggested of effectively making extended interim orders to be in X's best interests. In my view, it creates uncertainty, and it lays a foundation for further litigation.
Whilst the parties have been able to agree on a number of things, and that is to their great credit, they have not been able to agree on parenting orders, and that has been the source of an escalation of tension and conflict. The finality of parenting orders can enable the parties to move on with their lives in X's best interests.
In Welter & Welter,[12] Brown J said:
[12] [2021] FedCFamC2F 11 at [78] – [81].
Litigation regarding the parenting of children is usually expensive, both financially and emotionally. At the conclusion of proceedings, the parties concerned are likely to remain in some form of contact with each other throughout the remainder of their lives, as they will be connected by the shared relationship to their children and quite possibly, with the effluxion of time to their grandchildren.
This renders family law litigation distinct to other forms of litigation, such as an action about a contract or a tort. In the former case, the parties must patch up their relationship, if they can, at the end of the proceedings and attempt to co-parent their children in a constructive and amicable manner. In the latter case, the parties may choose to never see each another again, and so the quality of any future relationship between them is irrelevant.
The principles outlined in division 12A of the Act recognise that it is in a child's best interests for those involved in their care to avoid, as far as possible, the deleterious consequences of litigation. Court proceedings are rarely a constructive process, and is often focussed on finding fault and emphasising the failings of the other party, and does little to foster a constructive parenting relationship.
The principles outlined in section 69ZN of the Act appear to have the following objects, and provide that Courts are directed to:
•discourage unnecessary litigation;
•closely manage the litigation which cannot be avoided, for example: cases that involve an unreasonable risk of harm to the child or matters involving family violence;
•focus the minds of the parties concerned on the potential harm, which can occur to children through litigation as a result of parental conflict; and also
•invite parties to consider the fiscal implications, both private and public, in the conduct of such litigation.
To the extent that any dispute arises about the implementation or enforcement of the final orders that I will make, the appropriate mechanism in my view is for me to make an order that the parties first attend family dispute resolution with a view to making attempt to resolve the dispute. That mechanism should be engaged if necessary, but in the context of final orders that regulate parenting arrangements for X until she turns 18, rather than an approach that is left open and unspecified beyond a certain age.
Ms F considered that X is likely to benefit by becoming familiar and emotionally comfortable with spending greater time in Mr Hammett's household over time without this causing any significant disruption to her primary care arrangement with Ms Wearne. Overall, there are a range of risks, in my view, if X's time with Mr Hammett is increased too quickly, and that includes the risk that it may lead to increased anxiety, conflict, and hostility between the parties and their households when at this stage that is not a risk factor or a particularly prominent one, and that occurrence would not be in X's best interest, of course.
In my assessment, Mr Hammett has been frustrated by not being able to have had X spend time with him in the quantitative terms that he thought were appropriate from the outset, and this has led to some degree of tension between the parties. I consider it also explains Mr Hammett's desire to move forward quickly in his proposals for X to spend greater proportions of time with him. Now, however, in his orders sought at trial, Mr Hammett has responded to the family report by seeking orders for a graded increase in the time he spends with X leading up to the commencement of an equal time arrangement after she turns four.
I recognise Ms Wearne's caution. Ms Wearne is 24 years old. She was 22 when X was born. Mr Hammett is 42. He was nearly 40 when X was born. Ms D is 37 years old, and she is an experienced caregiver and the birth mother of four children. In an AppClose message sent on 20 March 2024, Ms Wearne described it as this:
I am a first time mother who is extremely worried about anything that my child does, and I know you go off of [Ms D] a lot, as anyone would, being a partner.
She went on to say:
[X] and I will both need time to adjust.
On 26 June 2024, Ms Wearne also wrote:
I am struggling a little bit at the moment with finding the balance between work and childcare and spending time with [X] between dinner and getting ready for bed whilst she is overstimulated from childcare, and then only having her one day on the weekend. Obviously, I am used to being with her almost 24/7, and it's a big adjustment to not have my sidekick constantly. She is still very all over the place at night, and will just scream for me some nights, which makes me nervous that she may not cope at this stage. So if it's okay, maybe we can look at that after her birthday and see if she is getting any better.
I appreciate the apprehensions and concerns with a view to the future and the changes, but I also consider that the AppClose messages between the parties over a lengthy period of time show a very considerate and functional co-parenting relationship in X's best interests in the main. There is the sharing of experiences, of photos, of matters going to routine, of eating and drinking, of allergies, of communication about X when she's sick. There is open and responsive discussion about her needs between the parties. I recognise that there are still areas of tension, but occasions such as Ms D's message to Ms Wearne are an exception, and in overall terms the way the parties have been able to move forward in co-parenting bodes, in my view, very well for the future. The trial evidence of the parties and Ms D reaffirmed the goal of civility in co-parenting between the four significant adult figures in X's life.
The orders to be made need to give certainty to concluding the parenting arrangements for X, and in my view it is in X's best interests for her to commence spending overnight time with Mr Hammett. In my view, that should start immediately, and the graded increase sought moving forward is faster moving than the recommendations made by Ms F, but I also consider that, in light of the parties' trial evidence - including the time that X has been spending with Mr Hammett since September 2024 - the united view that X enjoys that time and that it is working well provide a foundation for an effectively shared care arrangement to be in place for X around the age of four, even though she won't yet have started primary school. I consider that the relationship of trust between X and Mr Hammett and his family provides this basis.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 17 March 2025
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