White & Kenney

[2022] FedCFamC2F 1633

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

White & Kenney [2022] FedCFamC2F 1633  

File number(s):

ADC 4487 of 2021

Judgment of:

JUDGE PARKER

Date of judgment:

28 November 2022

Catchwords:

FAMILY LAW – PARENTING - where there is poor parental communication – where there is a lack of parental cooperation – where the parties are unable to maintain a positive co-parenting relationship – in best interests of child to remain in primary care of mother and spend substantial and significant time with father – schooling – injunction.

Legislation:

Evidence Act 1995 (Cth), s140

Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 65DAA, 68B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 12.13

Cases cited:

Bennett & Bennett [2001] FamCA 462; (2001) FLC 93-088

Flanagan & Hancock (2002) FLC 93-102

Korban & Korban [2009] FamCAFC 143

Mazorski & Albright [2007] FamCA 52

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Re G: Children’s Schooling [2000] FamCA 462; (2000) FLC 93-025 at [91]-[92]

Sigley & Evor [2011] FamCAFC 22

Willmore & Menendez [2022] FedCFamC1A 73

Division:

Division 2 Family Law

Number of paragraphs:

251

Date of last submission/s:

17 October 2022

Date of hearing:

6, 7 and 10 October 2022

Place:

Adelaide

Counsel for the Applicant:

Mr Robinson

Solicitor for the Applicant:

Websters Lawyers

Counsel for the Respondent:

Ms Betro

Solicitor for the Respondent:

Nicole Kelly Legal

ORDERS

ADC 4487 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR WHITE

Applicant

AND:

MS KENNEY

Respondent

ORDER MADE BY:	JUDGE PARKER
DATE OF ORDER:	28 NOVEMBER 2022

UPON NOTING:

A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

THE COURT ORDERS THAT:

1.Order 2 of the orders made on 28 June 2022 be discharged.

2.The orders made on 28 June 2022 otherwise remain in full force and effect.

3.The child X born 2018 (‘the child’) live with the Mother.

4.The child spend time with the Father as follows:

(a)From the date of these orders until the child commences primary school in 2024:

(i)Each alternate weekend from the conclusion of childcare/kindergarten (or 4:30pm if a non-childcare/kindergarten day) on Friday until 5:00pm on Sunday, to continue in the same cycle as the arrangements in place immediately prior to the making of these orders; and

(ii)Each other week from the conclusion of childcare/kindergarten (or 4:30pm if a non-childcare/kindergarten day) on Wednesday until the commencement of childcare/kindergarten (or 9:00am if a non‑childcare/kindergarten day) on Thursday.

(b)From the time the child commences primary school in 2024 until the commencement of the 2025 school year:

(i)During school terms, each alternate weekend from the conclusion of school (or 4:30pm if a non-school day) on Thursday until the commencement of school (or 9:00am if a non-school day) on Monday, to commence on the first Thursday of each school term; and

(ii)Half of each school holiday period at times to be agreed, and failing agreement, on a week-about basis commencing on the last day of the school term, with the child to spend the first week of the holidays with the parent in whose care he would otherwise have been for the first weekend of the school holidays.

(c)From the commencement of the 2025 school year:

(i)During school terms, each alternate weekend from the conclusion of school (or 4:30pm if a non-school day) on Thursday until the commencement of school (or 9:00am if a non-school day) on Tuesday, to commence on the first Thursday of each school term; and

(ii)Half of each school holiday period at times to be agreed, and failing agreement, on a week-about basis commencing on the last day of the school term, with the child to spend the first week of the holidays with the parent in whose care he would otherwise have been for the first weekend of the school holidays.

(d)Such further and other times as may be agreed between the parties in writing.

5.The parties each do all acts and things required to ensure that the child is enrolled in and attends B Early Learning Centre in City C for kindergarten.

6.The parties each do all acts and things required to ensure that the child is enrolled in and attends D School, City C for his primary school education.

7.All extant applications are otherwise dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE PARKER

INTRODUCTION

1. This is a parenting dispute concerning the parties’ son, X, who was born in 2018 and at the time of the trial was three years old.

2. The parties were romantically involved between 2017 and either March (according to the Mother) or May (according to the Father) in 2019. The Mother’s evidence was that the parties cohabited from approximately late 2018 until early 2019. The Father denies that they lived together and denies that the nature of their interactions was such as to constitute a ‘relationship’.[1] For reasons which are outlined later in this judgment, I find that the parties did engage in a relationship, albeit of an ‘on and off’ nature, and did cohabit for at least part of the period of their relationship. The parties ceased their relationship for the final time some time during the first half of 2019. It is not necessary for me to determine the precise period of their cohabitation or the date of their separation in order to determine the parenting arrangements that will meet X’s best interests.

   [1] Father’s Trial Affidavit, paragraph [4].

3. X has resided with the Mother since his birth. His time with the Father has gradually built up, partly by arrangements made between the parties, and partly by way of court order, in accordance with his developmental needs. At the time of the trial, X was spending time with his father on two nights each alternate weekend and one night in the other week in accordance with an interim order made by consent on 28 June 2022.

4. On 28 June 2022, in addition to the interim consent order relating to time, final orders were made by consent resolving many aspects of the dispute between the parties. Those orders provided, inter alia, for the parties to have equal shared parental responsibility for X and for the time X is to spend with each of his parents on special occasions. Those orders also made provision for various other aspects of X’s care including handover, video communication and international travel.

5. The issues the Court was called upon to determine at the trial were:

   (a)The living and time spending arrangements for X during school terms and school holidays from the time of his fourth birthday in 2018;

   (b)Which school X should attend from the commencement of his primary school education in 2024 and the related question of which kindergarten he should attend in 2023; and

   (c)Whether there should be an injunction restraining the parties from allowing X’s image to be used for commercial purposes.

6. The Applicant Father relied on the following documents:

   (a)Amended Initiating Application filed 28 September 2022;

   (b)Trial Affidavit of Mr White filed 9 September 2022;

   (c)Affidavit of Ms E filed 9 September 2022; and

   (d)Case Outline filed 4 October 2022.

7. The Father’s proposals were, in summary, that from X’s fourth birthday in 2022, he spend time with the Father from 4:00pm on Thursday until the commencement of kindergarten on Monday and from the conclusion of kindergarten on Wednesday until the commencement of kindergarten on Thursday (five nights per fortnight). From X’s fifth birthday in 2023, the Father sought an additional night in the intervening week; and from X’s sixth birthday, a week about arrangement with handovers to occur on Mondays.

8. The Father also sought that X spend time with him during school holiday periods as follows:

   (a)In the 2022/2023 summer school holidays from 12pm on 28 December 2022 until 12pm on 1 January 2023 and from 12pm on 5 January 2022 until 5pm on 8 January 2022;

   (b)In the Term 2 school holidays in 2023 from the conclusion of kindergarten or 4pm if kindergarten attendance is not required on 6 July 2023 until 9am or the commencement of kindergarten on 13 July 2023; and

   (c)From the child’s fifth birthday in 2023, on a week about basis with each of his parents during each school holiday period.

9. The Father also sought that X be enrolled at and attend F School in City C, and that he attend the G Early Learning Centre, which is associated with that school.

10. Finally, the Father sought an injunction restraining each of the parties from allowing the child or the child's photograph to be used for commercial marketing or commercial promotional material without the written consent of both parties, together with notations recording that the restraints would not include school or sports events and achievements and that any existing and previously published commercial marketing or commercial promotional material not consented to by the Father would be removed immediately.

11. The Respondent Mother relied on the following documents:

    (a)Amended Response to Initiating Application filed 20 September 2022;

    (b)Trial Affidavit of Ms Kenney filed 9 September 2022;

    (c)Affidavit of Mr H filed 9 September 2022; and

    (d)Case Outline filed 4 October 2022.

12. The Mother’s proposals were, in summary, that X live with her, and that until he commences school in 2024, he continue to spend time with the Father from the conclusion of daycare on Wednesday until the commencement of daycare on Thursday in one week, and from the conclusion of daycare on Friday until 5:00pm on Sunday in the other week, in accordance with the existing arrangements. Upon X commencing school, the Mother proposed that he spend time with the Father each alternate weekend from the conclusion of school on Thursday (or 3:30pm if Thursday is a non-school day) until the commencement of school on Monday (or 9:00am if Monday is a non-school day), together with half of each school holiday period at times to be agreed and failing agreement, on a week about basis.

13. The Mother further proposed that X remain at his existing facility, B Early Learning Centre in City C, for kindergarten in 2023, attend D School in City C for primary school commencing in 2024, and attend the associated secondary school, J School.

14. In addition to the documents outlined above, the parties each relied upon voluminous tender books. I made it clear to Counsel for both parties during the hearing that although the contents of the tender bundles were in evidence, they should draw my attention, either through cross‑examination or submissions, to any particular aspects of that evidence to which they asserted particular consideration should be given. In light of the volume of the evidence relied upon by each of the parties, it is not possible to include specific reference to every aspect of the evidence before the Court. However, I have taken all of the evidence into account. The fact that I have not specifically mentioned something in these reasons does not mean that I have not considered it.

15. In accordance with section 140 of the Evidence Act 1995 (Cth), all findings of fact in this judgment are made on the balance of probabilities.

    THE FATHER

16. The Father was born in 1986 and was aged 36 at the date of the trial. He is employed on a full‑time basis as a professional in Adelaide and resides in the Adelaide suburb of Suburb K. He is in a relationship with Ms E but does not presently cohabit with her. X is the Father’s only child.

17. The Father presented as a generally honest witness, save for some isolated instances considered later in these reasons. He made numerous frank concessions as to factual matters including admissions of poor behaviour. However, the Father tended to minimise or understate the seriousness of his conduct and to exaggerate poor conduct on behalf of the Mother. He presented as being stuck in his conflict with the Mother and lacking in insight or reflection as to his role in that conflict. This issue is considered in greater detail later in these reasons.

18. It was obvious from the Father’s evidence (and is not a matter of dispute) that he loves X deeply and is genuinely committed to ensuring that X’s best interests are met. I have no doubt that aside from his embroilment in conflict with X’s mother, the Father is an excellent father to X.

    THE MOTHER

19. The Mother was born in 1989 and was aged 33 at the time of the trial. She works part-time in an administrative role and is self-employed in the service industry in Region L. She resides in Town M, South Australia. She is in a relationship with Mr H, to whom she is engaged to be married. At the time of trial, the Mother was pregnant with her first child with Mr H. She does not have any other children.

20. The Mother gave her evidence in a straightforward and direct manner and presented as generally truthful, subject again to some isolated incidents considered later in these reasons. Counsel for the Father submitted that there would be an ‘inevitable adverse finding about the credit and reliability of the Mother’s evidence generally’. I do not make such a finding. The Mother impressed as worn down by the parental conflict.

    THE COURT CHILD EXPERT

21. A Child Impact Report was prepared on 25 November 2021 by Ms N, who was, at the time of the report, employed by the Court as a Court Child Expert. Ms N gave evidence and was cross‑examined by Counsel for both parties via videolink. Her evidence was considered and thoughtful and was not undermined in cross-examination. Ms N’s evidence was limited by the fact that she had not read the parties’ trial material prior to the hearing, had not prepared a full family report, had not met X or observed him with either of his parents, and had not interviewed either of the parties since November 2021. Neither party sought an adjournment to enable the preparation of a further report. I accept Ms N’s evidence but am mindful of these limitations.

22. Ms N opined that ‘it is important that [X] continues to (as much as possible) have a structured and similar routine in both parents[’] home. … The current lack of communication between the parents means that [X] could have a different routine in each parents’ [sic] home.’[2] Under cross-examination, she confirmed that it will still be the case that X will need structure and routine in both parents’ homes when he reaches the age of six.

    [2] Child Impact Report dated 25 November 2021, paragraphs [21]-[22].

23. The Child Impact Report recommended that ‘until [X] starts school, he spends two overnights a week or one overnight on the alternate week with his father. This time could be every second weekend and one or two weeknight/s on the alternative week’[3] and that ‘[o]nce [X] attends schooling on a full time basis, then consideration could be given to [X] spending a longer block period of every second weekend for four or five nights with his father’.[4]

    [3] At paragraph [25].

    [4] At paragraph [25].

24. Ms N’s evidence included that:

    (a)The question of whether a build up to equal time would ultimately be in X’s best interests was conditional upon a number of as yet unknown factors, including how he handled the transition to school and how he coped with any increase in time with his father;

    (b)If the Court made a finding that the Father denigrates the Mother to X, this was a risk factor;

    (c)If the Court made a finding that the Father was controlling of the Mother, that would be indicative of a poor co-parenting relationship and would be a risk factor; and

    (d)Regardless of whether the Court finds that one or both parties is in fact controlling, the existence of competing allegations of controlling behaviour indicates that the parties have a poor co-parenting relationship.

25. Ms N appeared to have been under the impression at the time she prepared her report that the parties had consistently shared a positive and cooperative co-parenting relationship until an incident had arisen shortly prior to their interviews with her, at which the Mother alleged that the Father had threatened to kill the Mother’s partner Mr H, and that the parenting dynamics had changed in the context of the Mother’s new relationship.[5] She otherwise indicated that it was a strength that both parties were able to speak positively about each other.[6] Ms N’s understanding that the parties’ co-parenting relationship had been positive save for the developments concerning the introduction of the Mother’s new partner is consistent with the Father’s case but is disputed by the Mother.

    [5] Child Impact Report dated 25 November 2021, paragraphs [13], [16].

    [6] Child Impact Report dated 25 November 2021, paragraph [20].

26. Counsel for the Father put to Ms N that in the absence of evidence of such an incident having occurred, the logical conclusion would be that there would have been no incidents of harmful conflict that had been reported to her. She agreed with that proposition and said in relation to the change of parenting dynamic ‘I wouldn’t even say conflict, actually, just a not being able to co-parent as they had previously.’ She agreed that if the Court accepted the Father’s evidence as to the history of the co-parenting relationship being positive, the difficulties surrounding the commencement of the Mother’s current relationship could be considered a ‘blip’ or a transitionary period.

27. It was submitted on behalf of the Father that Ms N’s evidence ‘supports the Father's position in this matter, both in respect of the past and in going forward with Final Orders for the future.’ I do not agree with that submission. The Father relies on paragraph [23] of Ms N’s report, in which she said ‘[i]deally, it would be positive for [X] to spend every day with each of his parents, but that is often not a reality with separated parents’. I do not interpret this paragraph as being an endorsement of the orders sought by the Father. Indeed, Ms N went on to make a recommendation that is different from the outcome promoted by the Father.

28. Under cross-examination by Counsel for the Father, Ms N was repeatedly invited to accept the proposition that equal time was the optimum outcome to which the Father’s time should build. She consistently declined to do so, on the basis that X was too young for such an assessment to be made, and further assessment would be required, having regard to the situation, including the situation between the parents, at the relevant time, how they are co-parenting and how X copes with transitions between their homes.

1. Ms N confirmed that equal time could be a goal if X transitions well between his parents, there is no significant risk, and the Court accepts the Father’s evidence that the parties have a successful co-parenting relationship in which they communicate in a friendly manner and prioritise X’s needs. She agreed with the proposition that if the Court were to make findings that one of the parents was controlling towards the other, this would be relevant to the nature of the co-parenting relationship, which is in turn a factor upon which the success of a transition to equal time would depend.

2. Ms N also emphasised that it would be important for the parties to demonstrate flexibility towards one another. She accepted that the Father’s allegations that the Mother is trying to restrict his time with X, does not keep him informed about X’s routine and development and ‘isolates [him] from as much information and communication about and with [his] son as humanly possible’[7] would tend to contradict the suggestion that the parties have a positive co‑parenting relationship.

   [7] Father’s Trial Affidavit, paragraph [213].

3. Ms N agreed with Counsel for the Mother that the Mother’s stated concerns that the Father controlled her and placed unrealistic demands on her were a risk factor. She also agreed that irrespective or their veracity, the very existence of mutual allegations of control, unrealistic demands and denigration constituted a risk factor.

4. Ms N opined that if there was an emotional reaction from the Mother if she was feeling undermined by the Father’s actions, her parenting and attachment with X could be affected, which is not appropriate. She agreed that actions such as sending the Mother an email accusing her of having a ‘poor attitude and demeanour’ and ‘not setting a good example’ for X[8] were concerning, undermining and not appropriate. Ms N agreed that if the Father was undermining the Mother’s parenting this would indicate that there was not the kind of co-parenting relationship she had seen, and that the Mother’s allegations of control and the Father’s allegation that the Mother ‘uses [X] as a weapon against him’ both indicated a poor co‑parenting relationship.

   [8] As the Father has done, according to the unchallenged evidence of the Mother: Mother’s Trial Affidavit, paragraph [84.13].

5. As is discussed at length in these reasons, Ms N’s understanding that the parties did not engage in harmful conflict and shared a positive co-parenting relationship other than an isolated period of trouble around the time of commencement of the Mother’s current relationship is simply not borne out by the evidence before the Court. By way of example, Ms N referred to the parties’ ability to co-parent in the sense of ‘agreeing on appropriate parenting arrangements after their separation,’[9] but the Father’s evidence was that the Mother dictated the time he could spend with X, that he was required to beg for time, that he was ‘never allowed regular, consistent time with [X]’ and ‘got barely any time with [his] son at all.’[10] As a result, although Ms N’s evidence remains of considerable assistance, I have approached it with care, having regard to the fact that she was under the impression that the parties’ co-parenting relationship was significantly more positive than the evidence has ultimately revealed.

   [9] Child Impact Report dated 25 November 2021, paragraph [17].

   [10] Father’s Trial Affidavit, paragraphs [82]-[83].

   OTHER WITNESSES

6. Each of the parties called evidence from their respective partners.

7. The evidence of the Father’s partner, Ms E, was unremarkable. She impressed as a credible witness whose evidence was appropriate. The Court holds no concerns about her ongoing involvement in X’s life.

8. The Father submits that the evidence of the Mother’s partner, Mr H, was ‘wholly unsatisfactory, in that he appeared to take delight in deposing to the hostility between himself and the Father, and glibly confirmed that he saw his role as continuing to intervene in the parenting of young [X], even though this is not the proper business of a step-parent.’ I do not agree. I saw nothing to indicate that Mr H took delight in any aspect of his evidence. He did not give evidence that he saw his role as ‘continuing to intervene’. His evidence was that ‘[i]f the father is willing to accept I’m not going anywhere, I still plan on being part of the handovers’ and ‘I wouldn’t call it inserting myself, but if I can be part of a conversation, I will be.’

9. It is true that, as submitted by the Father, Mr H did not support the Mother’s claim made to the Court Child Expert that the Father had threatened to kill him,[11] but nor did he dispute it. He merely said, plainly honestly, that he had not heard such a threat.

   [11] Child Impact Report dated 25 November 2021, paragraph [13].

   PARENTAL CONFLICT

10. The level of conflict between the parties was a key feature of the manner in which both parties presented their cases. As summarised by the written submissions filed on behalf of the Father, the Mother claims that she cannot co-parent with the Father because of the Father's allegedly controlling and coercive behaviour towards her, but the Father's position is that their co‑parenting relationship is in fact perfectly fine as and when the Mother wishes it to be.

11. For the reasons which follow, I find that there is an extremely high level of conflict between X’s parents. Both parties are heavily engaged in the conflict between them and both have acted poorly in their interactions with the other, which is to X’s detriment. I am unable to accept the Father’s position that the problems in the parties’ co-parenting relationship derive wholly from the Mother.

12. Indeed, it is the Father, in particular, who presents as overly critical and unduly controlling of the Mother, her life choices, and her parenting. His evidence demonstrated an overwhelming sense of dislike for the Mother and lack of respect for her and her actions as a parent and an inability to engage consistently with her in a positive co-parenting relationship. Despite having been presented with numerous examples of his own poor conduct, the Father maintained throughout his evidence that the Mother was the major cause of the parties’ ongoing conflict, and that this was deliberate on her part. He appeared to have little insight into the impact of his own conduct on the Mother and on X.

13. It is not necessary to traverse every issue which has given rise to conflict between the parties, nor every incident in which that conflict has played out as referred to by the parties in their evidence. The evidence, including both parties’ tender books, is replete with examples of conflictual, antagonistic and abusive communications between the parties. These reasons will focus on a number of examples which are representative of the manner in which the parties interact with and treat each other.

    The Mother’s Partner

14. A significant issue for the Father is the involvement in X’s life of the Mother’s partner, Mr H. As the Father said under cross-examination, when the Mother commenced her relationship with Mr H, the co-parenting relationship suffered a ‘massive hit,’ there was a lot of distrust, and ‘the fuse was lit.’ The involvement of Mr H is described in the written submissions filed on behalf of the Father as ‘egregious intervention’. I am not satisfied that there has been anything egregious about the involvement of Mr H in X’s life other than the way the Father has reacted to it.

15. The Father told the Court Child Expert that Mr H had been taking on a step-parenting role that limited the time that X spent with his father. There was no evidence before the Court to suggest that any aspect of the Mother’s relationship had led to a reduction in the time spent between X and his father.

16. One of the many criticisms levelled at the Mother in relation to her relationship was that it became serious and involved X too quickly, which the Father says occurred in a context in which the Mother had become serious with two previous partners in a manner which the Father also considered to be fast, and those past relationships had not lasted for lengthy periods. The Father describes what occurred in a condescending manner, deposing that the Mother ‘was instantly in love from the get-go, and started making impulsive and irrational decisions regarding [X's] wellbeing.’[12]

    [12] Father’s Trial Affidavit, paragraph [157].

17. This criticism is hypocritical given that X met the Father’s current partner in the same month in which their relationship commenced and started spending overnight time with her (together with the Father) approximately two months later.[13] Even more hypocritical is the Father’s attitude that it is appropriate for him to pass judgment on the circumstances of the Mother’s relationship and expect his views to be followed when he did not even disclose to the Mother, or to the Court Child Expert at the time of the Child Impact Report (despite his complaints made to the Court Child Expert about the Mother’s partner), that he too had repartnered, and that his partner, Ms E, had met X several months earlier and had already commenced spending overnight time with him by the time of the interviews with the Court Child Expert.[14] Not only did he fail to disclose the existence of his relationship, but the Father told the Court Child Expert that he would like to re-partner and introduce his partner to X in the future[15] and thus actively misled her, the Mother and the Court as to the existence of his relationship and his partner’s involvement in X’s life.

    [13] Affidavit of Ms E filed 9 September 2022, paragraphs [8], [10].

    [14] Affidavit of Ms E filed 9 September 2022, paragraph [8].

    [15] Child Impact Report dated 25 November 2021, paragraph [19].

18. The Father sought to justify this conduct by saying that he does not reside with Ms E and does not leave X in her sole care for extended periods. That explanation is wholly inadequate, particularly in circumstances in which the Father’s evidence was that notwithstanding their lack of cohabitation and the absence of extended periods in her care, X has become a stepson to Ms E.[16] The Father’s decision not to share with the Mother the existence of a person who had taken on a stepparenting role in X’s life demonstrates a lack of judgment and is a reflection of a poor attitude towards co-parenting. This is compounded by the significant extent to which the Father considered himself entitled to control the involvement of the Mother’s partner in X’s life, which is considered in greater detail below. Ms N’s evidence was that the Father’s lack of disclosure could be a concern because there should be ‘an equal share of information which then leads to more of that trusting, co-parenting relationship.’

    [16] Father’s Trial Affidavit, paragraph [207].

19. The Father also sought to justify his failure to disclose his relationship on the basis that the Mother ‘never asked’ until a letter was received from her lawyers. The letter in question was sent in February 2022, and was ignored, with the consequence that the Mother did not learn of the relationship until the Father’s trial documents were filed in September 2022. The Father sought to explain his conduct under cross-examination by saying that he did not feel that the Mother had complied with a previous agreement between the parties with respect to new relationships when it came to her relationship with Mr H, so as far as he was concerned, that agreement had been ‘thrown out of the window.’ This response was immature and not child focused. It reflects poorly on the Father’s ability to co-parent appropriately.

20. The Father’s lack of disclosure of the existence of his new relationship can be contrasted to the Mother’s conduct in relation to her relationship with Mr H, as demonstrated in messages appearing at pages 105-107 of the Father’s Tender Book. Those messages demonstrate that on 3 June 2021, the Mother asked the Father to meet Mr H before X spent time with him, saying ‘Please. Im [sic] trying so hard to co parent the right way with you.’ The Mother also expressly reassured the Father that she would never allow any man to replace him as X’s father. The Mother’s messages to the Father were polite and appropriate. The Father’s response was to engage in verbal abuse of the Mother, by telling her that ‘you are the most selfish person I’ve ever met’ and ‘the fact that you are forging on ahead without considering how I feel shows how childish, self-centred and manipulative you really are…’. Despite this exchange, the Father complained in his oral evidence that he had ‘never been given any opportunity to really get to know’ Mr H.

21. On 22 June 2021, the Father, apparently having changed his mind, told the Mother that he would be ‘happy’ to meet Mr H and proposed that the parties have dinner with both him and X. Yet on 5 July 2022, after X had been on a trip with the Mother and Mr H and photographs of them together had been posted on social media, the Father told the Mother ‘it is inconsiderate and rude and I won’t stand for it’ and warned her to ‘be prepared when it comes back at you to suck it up and eat shit’.

22. The Father deposed that the Mother’s decision to commence cohabitation with Mr H within a few months of the commencement of the relationship ‘infuriated’ him.[17] This is plainly truthful evidence. This, together with his clear expectation that she comply with his expectations and demands as to the speed at which she entered into the relationship and involved her partner in X’s life, while not even going so far as to inform the Mother of his own relationship and his new partner’s involvement with X, is evidence of a controlling attitude towards the Mother and her freedom to make her own life choices, and a lack of trust and respect for her as X’s parent. This was part of a pattern apparent in the evidence before the Court, in which the Father appears unwilling to accept or even tolerate any parenting decisions made by the Mother with which he does not agree. There is no evidence before the Court other than the Father’s opinion (for which no sound basis was offered) to suggest that the Mother has behaved in a way that compromised X’s wellbeing or put him at risk in relation to her relationship with Mr H or indeed in any way at all other than her role in the intense conflict between the parties, which is mirrored by the Father’s own conduct.

    [17] Father’s Trial Affidavit, paragraph [161].

23. Much of the conflict surrounding Mr H centred on handovers. The Father alleged, somewhat vaguely, that Mr H was ‘rude and obnoxious’ at handovers, that he was ‘arrogant and insensitive’ and that he ‘imposed himself on [the Father’s] relationship with [X].’ The Father’s allegations include that Mr H stood close by with a ‘smug grin’ and interjected in a conversation between the parties by saying ‘yeah yeah’.[18]

    [18] Father’s Trial Affidavit, paragraphs [157], [174]-[179].

24. The Mother’s evidence was that the unpleasantness at handovers came from the Father and not Mr H. Mr H deposed that the Father was rude to him, with one example being a handover in January 2022, at which Mr H responded ‘okay’ to a comment made by the Father, to which the Father responded rudely and in X’s presence, ‘it’s none of your business, mate,’ following which the Father sent a long email to the Mother complaining about ‘continual disruptive and arrogant behaviour’ on the part of Mr H.[19]

    [19] The email appears at the Father’s Trial Book, p 133.

25. It is beyond doubt that the Father himself was rude and obnoxious towards Mr H at a handover in mid-2021, to the point where he felt compelled to apologise to the Mother and Mr H.[20] He conceded under cross-examination that he had told Mr H in an ‘upset’ manner to ‘pull [his] head in,’ in X’s presence, in response to X having said that Mr H had kissed him, which had caused the Father to become ‘infuriated’, even though Mr H had denied it. Even if the Father’s evidence as to the involvement of Mr H at handovers were accepted as true, it would not justify the Father’s abusive conduct in relation to this issue.

    [20] Exhibit M5.

26. The Mother alleged to the Court Child Expert that the Father had threatened to kill Mr H at a handover in mid-2021.[21] She maintained this allegation under cross-examination. It did not appear in her affidavit or the affidavit of Mr H, and Mr H gave evidence under cross‑examination that he had not heard the threat and that he had walked away at the relevant time to separate himself from the situation. Notwithstanding that it would have been consistent with other threats made by the Father towards Mr H[22] and it is entirely possible that the Mother heard what the Father said and Mr H did not, the evidence is insufficient to support a finding that such a threat was made.

    [21] Child Impact Report dated 25 November 2021, paragraph [13].

    [22] Such as the threat to ‘knock his head off his shoulders,’ which appears at p 107 of the Father’s Tender Book.

27. The Mother alleges that the Father resented the assistance that Mr H could provide to her with the care of X.[23] This allegation is supported by the evidence before the Court. In particular, the Father was extremely critical of the Mother for allowing Mr H to drop X at childcare when he, the Father, does not have the opportunity to do so.[24] While the Father’s desire to drop X off himself, though self-focused, is understandable, his criticism of the Mother in this regard is not reasonable. Mr H is a member of the Mother’s household, while the Father resides approximately 40 minutes away, and Mr H works near X’s childcare. It is also noteworthy that the Father does routinely collect X from childcare and is not excluded from that part of his life.

    [23] Mother’s Trial Affidavit, paragraph [103].

    [24] Father’s Trial Affidavit, paragraph [111].

28. The Mother is entitled to make day-to-day decisions about matters such as childcare drop off without seeking the Father’s permission and the Father’s insistence that he be involved in such matters rather than her partner during the time X is in her care is controlling and betrays a fundamental lack of trust in her as a parent. The Father’s criticism of the Mother for having her partner assist her with daily parenting tasks is also hypocritical in light of the evidence from his own partner about her availability to assist with the care of X during school holidays should the need arise,[25] which is likewise an entirely reasonable arrangement for the Father to make during the time X is in his care.

    [25] Affidavit of Ms E, paragraph [26].

29. The Father’s reaction upon learning that Mr H had dropped X off at childcare included declaring in mid-2021 that he was going to move to the Town M area, where the Mother resides, on Tuesdays, Wednesdays and Thursdays ‘as of next week’ and dictating that he would thereafter be taking X to childcare ‘in lieu of a stranger’[26]. Although this did not eventuate, under cross-examination, he said that he had genuinely intended to do so. Although he conceded that it was inappropriate and that it ‘could be viewed as’ controlling and manipulative, he gave no indication that he had any real insight in the likely effect of this conduct on the Mother, or of how significant an intrusion into the Mother’s life, daily routine and parenting such an action would have been, particularly in light of the poor way in which the Father frequently speaks to the Mother, especially around that time.

    [26] Mother’s Tender Book, p 199.

30. It was put to the Mother that although having her partner drop X off at childcare was convenient, it was not in X’s best interests. She agreed that in an ideal scenario where everything was good, it would have been ‘lovely’ for X to have his father involved in the childcare drop offs, but said ‘I believe the best interests of [X] at that time was not to see his parents argue in front of each other or show any disagreements within [X’s] presence.’ She also referred to the fact that having the Father undertake the drop offs would have meant having the Father come to her house at a time when she felt threatened and scared by him. The Mother’s sentiments in this regard were reasonable and child focused and, unlike the Father’s position, took account of the reality of the nature of the parties’ co-parenting relationship.

1. Another significant issue of dispute between the parties concerning Mr H was an email sent by the Mother to the Father on 16 June 2021 attaching a document entitled ‘changes to parenting plan.’[27] The Father’s evidence was that this document caused him to believe that the Mother was giving Mr H ‘full parental rights’, which ‘made him anxious for [his] son’ and that he felt that his ‘world [was] being ripped apart.’[28] Under cross-examination, the Father’s evidence was that his interpretation of ‘full parental rights’ meant ‘leaving [X] solely in their care…for extensive periods of time’ similar to the care that would be provided by a family member such as a grandparent or aunt. He described this as ‘very scary’. The Father’s evidence on this issue was difficult to follow. In particular, it is not clear how involvement akin to a non-parent such as a grandparent or aunt could be considered ‘full parental rights’.

   [27] Father’s Tender Book, pp 128-129.

   [28] Father’s Trial Affidavit, paragraphs [159]-[160].

2. The Father’s reaction to this document disregarded a number of aspects of its contents, including that it proposed that X’s time with his father increase from one night to two per fortnight (which was dismissed in the witness box by the Father as being ‘a very minor increase in time, at best’ based on a calculation of the number of waking hours it would involve), and that it included a proposal that if the parent with the care of X was unable to care for him for two or more nights, the other parent be given first option to do so.

3. The controversial part of the document was premised on a parent’s relationship with their partner being registered and proof of registration being provided to the other parent (which had not occurred in relation to the Mother’s relationship with Mr H, though the Father’s evidence was that there had been ‘threats’ made by the Mother and Mr H to register their relationship). The document provided for a registered partner to care for X ‘as would an immediate family member when the parent is not available to do so,’ including conducting handovers, childcare and school pick up and drop offs and caring for X overnight for periods not exceeding two nights.

4. The Father described this document in his trial affidavit as reflecting ‘controlling and unfair proposed changes’ and deposed that he ‘saw [his] son being taken away.’ This perspective is difficult to reconcile with the fact that the document proposed an increase in X’s time with him and could only, on any rational view, have reflected that any intended involvement of Mr H would occur during the times X was in the care of his mother. The Mother’s evidence was that she had sent the document to the Father for the purpose of discussion. In my view, the document was not unreasonable and it is to the Mother’s credit that she consulted with the Father about her proposal prior to implementing it. The Father’s ongoing heightened reaction to this incident, which was demonstrated by his demeanour in the witness box when he was cross‑examined about it, is indicative of a lack of trust, a tendency to assume the worst of the Mother and a poor co-parenting relationship.

5. In his trial affidavit, the Father criticised the Mother for being ‘more than happy to allow a person she barely knew to care for my baby boy.’[29] His evidence under cross-examination was ‘[Ms Kenney] barely knew this person. How can you say that you know someone after six weeks.’ In fact, the Mother’s unchallenged evidence was that she had first met Mr H when she was in high school, and the text messages between the parties at page 104 of the Father’s tender book demonstrate that prior to swearing that affidavit, the Father had been told by the Mother that she had known Mr H for 10 years, and he had acknowledged that this was the case, yet had dismissed this fact on the basis that she had not known him ‘as [her] partner’ and purported to dictate that he would not ‘allow’ X to be placed in the ‘predicament’ of being introduced to Mr H. In his oral evidence, he complained that X had been introduced to Mr H ‘despite me saying I think you should maybe just take a little bit more time, get to know this person. That was disregarded…’

   [29] Father’s Trial Affidavit, paragraph [168].

6. This evidence demonstrates more about the Father’s controlling attitude towards the Mother than it does about her parenting. The same is true of messages from the Father to the Mother in mid-2021 in which he said he didn’t ‘approve’ of Mr H having ‘100% care’ of X in any capacity including car drives or being home alone with him and, in relation to the prospect of Mr H collecting or delivering X to childcare, he is ‘not to do so’ because the Father found it ‘hurtful’ and ‘infuriating’.[30] Not only is the Father’s attitude as demonstrated in these messages wholly self-focused, it is controlling. The Father, who makes reference to what he believes is his ‘right’ as X’s father, appears not to have any understanding that the Mother is free to make day-to-day decisions about parenting X, such as when and in what circumstances she introduces him to new people and the extent to which her partner assists her with daily parenting duties, and it is not up to the Father to dictate whether he will ‘allow’ or ‘approve’ it.

   [30] Mother’s Tender Book, p 200.

7. It is also to be remembered that this was the same month in which the Father commenced his current relationship. Despite his conduct towards the Mother in relation to her involvement of her partner in daily routine parenting and his apparent belief that he was entitled to determine the extent of that involvement, he did not even disclose the existence of his relationship to the Mother until over a year later, despite the fact that he (quite reasonably) likewise involves his partner in day-to-day parenting activities, such as looking after X while he goes to run errands.

8. The implication in the Father’s evidence that the Mother ought not be free to make her own decisions about who assists her with the care of X during the time he spends in her care is controlling. It is also, as submitted by the Mother, demonstrative of a lack of trust between the parties and a poor co-parenting relationship.

9. Mr H deposed to having witnessed bullying and intimidating behaviour by the Father towards the Mother, usually involving the Father’s disapproval of the role played by Mr H in X’s life. That evidence is consistent with the other evidence before the Court, including independent evidence in the form of text messages, and I accept it.

10. Annexed to the affidavit of Mr H are text messages received by the Mother from the Father which are dictatorial, threatening and controlling in nature, including messages saying ‘if [Mr H] isnt [sic] going to show me the respect of saying hello he's not to come to any more handovers. I'm [X] [sic] dad and should be respected accordingly’ and

    “I want to see [X] [sic] sleeping arrangements. If i [sic] find out he is sharing a bed with [Mr H] look out. I also don't allow [X] to be looked after by [Mr H] tomorrow while you work, so you will have to drop him to childcare. I look forward to seeing the notification when he arrives. If i don't see a notification I'm driving to [Town M].”

11. These messages contradict the evidence of the Father, the tenor of which is that Mr H is the aggressor in the context of the difficulties surrounding his involvement.

12. The Father demonstrated little insight into his own poor behaviour surrounding Mr H, which included threatening ‘if I find out he’s sharing a bed with [X] Ill [sic] knock his head off his shoulders’.[31] The Father admitted under cross-examination that this message would have induced fear in the Mother, and that nothing had occurred to give him any reason to believe that Mr H was sharing a bed with X.

    [31] Father’s Tender Book, p 107.

13. At the time of the interviews with the Court Child Expert, the conflict surrounding the Mother’s relationship with Mr H had recently arisen. Ms N described this as ‘a change of the quality in the co-parenting relationship’ and expressed concerns that it had ‘the potential to create obstacles in the co-parenting relationship and if this occurred, it might impact [X].’[32] The Father’s evidence was likewise that the conflict surrounding Mr H was a deviation from an otherwise generally positive co-parenting relationship. Although the time of the commencement of the Mother’s relationship with Mr H was clearly a particularly troubling time, this evidence is not consistent with the extensive evidence before the Court, which is of longstanding and entrenched conflict.

    [32] Child Impact Report dated 25 November 2021, paragraph [16].

14. The Father deposes that he started seeing his previous partner, Ms P, in early 2020, and that after three months he approached the Mother as he intended to introduce X to her. He alleges that the Mother objected and ‘disregarded [their] relationship’ by continually asking if it was legitimate and trying to ‘throw as many roadblocks in [their] path as she possibly could.’ He complains that the Mother told him that his relationship was not serious enough to introduce X to his partner. This complaint is extremely hypocritical in light of the Father’s reaction to the Mother’s relationship with Mr H. Furthermore, messages relied upon by the Father in support of this evidence in fact demonstrate that the Mother asked him whether he and Ms P were boyfriend and girlfriend and told him that it would be nice to know what was going on, in response to which the Father said ‘Is it any of your business? Do I ask you what’s going on in your life? Why are you always so nosey?’ Notwithstanding this behaviour, the Father told the Mother on 5 July 2021 that he ‘couldn't have been more considerate of your feelings when I was with [Ms P].’[33] The contrast between the Father’s evidence and the independent documents he himself relies upon demonstrates a lack of insight into his own conduct and treatment of the Mother.

    [33] Mother’s Tender Book, p 203.

15. The evidence of the Mother and Mr H in relation to the conduct of each of the Father and Mr H at handovers and the Father’s conduct in relation to Mr H more broadly is consistent with the evidence before the Court as to the Father’s conduct towards the Mother in relation to many other areas of dispute between them. It is also consistent with the Father’s demeanour in the witness box when being cross-examined about Mr H, from which I gained the impression that he continues to harbour significant ill will and anger about the involvement of Mr H in X’s life. This, together with my concerns about the Father’s lack of insight into his own role in the conflict between the parties more broadly, leads me to accept the evidence of the Mother and Mr H.

16. The Mother alleges that the Father does not accept or support her relationship with Mr H. That is plainly so. The reality is that the Mother and Mr H are expecting a child, who will be a half sibling for X, and they are engaged to be married. The Father gave evidence under cross‑examination that he had ‘come to accept the fact that [Mr H]looks after my son a lot, be it nights, weekends, whenever. I’ve grown to accept that.’ That evidence was not consistent with the manner in which he conducted his case in relation to the issue of Mr H or with his attempts in the witness box to justify his conduct towards the Mother and Mr H in relation to this issue. The Father’s ongoing antagonistic attitude towards Mr H can only serve to undermine X’s best interests. It is an indicator of a poor co-parenting relationship.

    Maternity Hospital Incident

17. At paragraph 34 of the Mother’s trial affidavit, she alleged that when she was in hospital after X’s birth, the Father ‘slept soundly for several hours’ on her maternity bed. The Mother was cross-examined about this incident and conceded that she had a call button and could have summoned a nurse to evict the Father from her bed, but maintained her allegation that the Father had slept in her bed.

18. I gained the impression that the reference to ‘several hours’ was likely an exaggeration, but that the Mother’s evidence that the Father had napped in her bed and that she had felt exhausted and unable to stand up to him was truthful. The Father’s evidence as to this hospital stay describes himself as having undertaking a caring and supportive role,[34] but as discussed elsewhere in these reasons, the Father’s evidence has on multiple occasions painted his own conduct in a significantly more favourable light than was the reality of the circumstances. Furthermore, notwithstanding the Father’s evidence, which I accept, that X’s birth was a significant and proud event for him, the evidence before the Court demonstrates that this did not prevent him from treating the Mother in a callous and disrespectful manner both in the lead up to and following the birth.[35]

    [34] Father’s Trial Affidavit, paragraphs [59]-[62].

    [35] For example, the messages at pp 10-15 and 31-32 of the Father’s Tender Book and those at p 105 of the Mother’s Tender Book.

    Tracking Device

19. The Father alleges that on one occasion prior to the parties’ separation the Mother had in her possession a tracking device, which he believes she used or intended to use to track him.[36] The Mother asserted that the device belonged to her former partner Mr Q, a claim of which the Father is suspicious, in part because of what he says is the limited battery life of the device in question (a matter about which no supporting evidence was adduced) and in part because of his opinion that ‘it’s totally plausible with the controlling nature that [Ms Kenney] has and what she subjected me to that absolutely she would not bat an eyelid at doing something like that.’

    [36] Father’s Trial Affidavit, paragraphs [22]-[25], together with his evidence under cross-examination.

20. Written submissions for the Father describe the Mother’s evidence as a claim that ‘the tracking device was planted by a former boyfriend [and] was no big deal’, which is described as ‘jaw dropping’ evidence. The Mother’s evidence was that she had not been alarmed by the discovery of the tracking device because she and Mr Q had been separated for a long time. Her evidence was that she had not gone to the Police about the device, but rather had raised the issue with Mr Q directly. This was described in submissions on behalf of the Father as ‘ludicrously inconsistent [and] improbable in the extreme’. Counsel for the Father submitted that it was inconsistent for the Mother to assert that she was intimidated by text messages from the Father but not by the discovery of the tracking device. I do not accept that submission. In my view, the temporal context is relevant. It is not illogical to suggest that a person might be intimidated by text messages from a person with whom she has ongoing interactions at the time she receives them, but not by the actions of a former partner with whom she does not have an ongoing parenting relationship which are not discovered until a long time after the event, at a time when the former partner no longer poses a threat.

21. The Mother tendered[37] copies of text messages between herself and her former partner dated 1 August 2018 in which she asked him about the tracking device and he confirmed that it had been his. It was not put to the Mother that these messages were not genuine and I have no reason to doubt their veracity.

    [37] Exhibit M6.

22. It was submitted on behalf of the Father that the Court should conclude that given that the Mother did not go to the Police, either she is not as afraid of the text messages she receives from the Father or indeed any conduct on behalf of the Father as she claims and her evidence in that regard is embellished and unreliable; or the tracking device was not planted by her former partner as she claims. I do not accept that these options are the only available conclusions to be drawn or the asserted nexus between the Mother’s conduct in relation to the tracking device incident and her feelings in relation to text messages received from the Father.

23. I do not accept that the Mother’s lack of fear arising from the actions of one former partner means, as submitted on behalf of the Father, that she could not have felt fear in relation to the actions of a different partner in different circumstances and within a different dynamic. The Father alleges that the tracking device was in fact the Mother’s and that she intended to plant it on him, which is denied by the Mother. The evidence is insufficient to enable such a finding.

    ‘Barrage’ of Text Messages

24. The Father accuses the Mother of ‘harassing’ him with ‘a barrage of text messages’ during his first day in a new job in 2018.[38] The messages in question appear at pages 6-15 and 31-32 of the Father’s Tender Book. It is clear from those messages that the parties were engaged in an argument about whether the Father would still go on a planned interstate trip if X were born early.

    [38] Father’s Trial Affidavit, paragraph [54].

25. The exchange began with a message from the Mother, who was pregnant, saying ‘babe, I’m a little confused with our last conversation. Can you just let me know straight out if bubs comes early would you go or not go to Melbourne. No maybe or we will see how healthy bubs is. Just need a straight forward decision. It’s made me feel flat and sad not knowing if your [sic] joking or serious.’ The Father responded ‘I told you its [sic] dependant [sic] on the situation I’m not saying yes or no now’ and ‘don’t get hung up on a situation that may not even eventuate.’ The Mother responded by saying ‘ok…that just doesn’t leave me feeling great. Will be good if you can just make up your mind so I can feel at ease and possibly prepare my mental thoughts.’ The Father’s response was ‘stop being silly,’ to which the Mother responded that she was trying to emotionally and mentally prepare herself for any situation, which, she explained, she had been doing with everything. It is clear from these messages that the Mother was feeling uncertain about whether the Father would be present for X’s birth or the period shortly thereafter and was seeking reassurance.

26. Rather than provide her with that reassurance, which would have been consistent with the caring approach the Father claims he took towards the Mother when she was pregnant,[39] the Father’s responses were rude, aggressive and wholly focused on himself. He said ‘thanks for ruining what was meant to be a great day for me’ and ‘this is so unfair I’m nervous and anxious about this new job and now you put this on me’.

    [39] Father’s Trial Affidavit, paragraphs [41]-[42].

27. The argument between the parties continued into the afternoon, with messages from the Father including ‘geez you just don’t get it do you …it’s crazy and psychopathic to be honest,’ ‘you need to get your emotions in check, I have done absolutely nothing to deserve this to be honest’, ‘it was a no brainer you moron’, ‘I said the whole time I wouldn’t say yes or no so you’ve assumed I’m saying no to suit your own agenda and carry on like a spoilt child to get your own way while I’m at a new job trying my fucking best to get through the day and had to put up with your disgusting attitude all day which has been nothing short of selfish and cruel’, ‘today has been hell thanks to you’, ‘you have been incredibly selfish and inconsiderate about an issue that may not even happen and it is a side of you I do not like at all’, ‘you are sick and need help’, ‘you went mental…and acted like a petty child’, ‘want me to just say yes so you’ll shut up?’, ‘fuck me, you’re a control freak,’ ‘I hate my life’, ‘I’m at work, you selfish cunt,’ ‘fuck me dead you’re just trying to pigeon hole me’ and ‘you went mental because you have problems’.

28. Throughout these messages, the Mother repeatedly told the Father that she was feeling anxious and scared and was seeking reassurance, which prompted abuse from him.[40] The messages also reveal that contrary to the Father’s assertion that it was the Mother sending him a ‘barrage’ of messages, not only were there multiple instances where the Father sent numerous consecutive messages without even waiting for a response from the Mother, there was a period of time that day during which the Mother blocked his number, which she described as having ‘needed to separate myself from the situation because it was upsetting [her]’. This prompted further anger from the Father. During the exchange, the Mother apologised to the Father and asked whether he also apologised. His response was ‘for having an opinion and refusing to commit to an answer about something that might not even happen?’ and ‘I don’t think I have to apologise for anything I didn’t ask for you to start an argument then block me.’ Notwithstanding his conduct as shown in these messages, the Father claimed that during the exchange that he had ‘done the right thing’ by the Mother throughout her pregnancy and had done ‘everything I can to show you how much I care.’

    [40] Father’s Trial Book, pp 10-15.

1. At one point during the exchange, the Mother sent a message to the Father proposing that they buy ‘the cutest little outfit’ for the baby. The Father’s response was abrasive: ‘buy whatever you want’ and ‘if I said no you’ll just cry and block me and carry on like a child anyway’.

2. The Father was cross-examined about this incident. He remained dismissive about the Mother’s feelings on that day and focused on his own perspective, saying ‘why am I going to waste my energy on a what-if scenario?’ and that the Mother’s messages were ‘just uncalled for’ and ‘in poor taste’. He maintained his allegation that the Mother had been harassing him. The Father sought to dismiss the Mother’s concerns about his presence at X’s birth, saying ‘I was never not going to be at my son’s birth.’ When I asked him why, instead of saying to the Mother ‘I told you it’s dependent on the situation. I’m not saying yes or no now,’ he had not simply reassured the Mother that he would be there for the birth, which presumably would have put an end to the problem, he conceded that ‘upon reflection, I probably could have said that.’ However, he soon reverted to his previous narrative, saying ‘I try not to waste energy on things that may not happen’ and describing interactions with the Mother as ‘a daily drag’.

3. The abusive and callous nature of the Father’s treatment of the Mother on that day is of great concern. More concerning still is the Father’s complete lack of insight into and inability to grasp the seriousness of his conduct. It is noteworthy that it was the Father who brought this incident to the attention of the Court and adduced evidence of these messages, which not only demonstrates his lack of insight into his own conduct but suggests that he was unable to resist the temptation to criticise the Mother. This is not indicative of the kind of cooperative or respectful co-parenting relationship that would support a successful equal time arrangement.

   Daily Video Calls

4. The Father’s insistence on daily video calls between himself and X has been a point of contention between the parties. Prior to the commencement of the court proceedings, the Mother had agreed to X having a Facetime call with his father each evening. The Mother alleges that the Father expected X’s routine to be suspended to facilitate these calls. This is borne out by the independent evidence before the Court and the Father’s evidence given under cross-examination.

5. The Father made it clear that he expected these calls to occur every day, even if the Mother was engaged with family or friends.[41] For example, on 10 September 2021, the Father sent a message saying that he would like to talk to X. The Mother responded ‘we’re busy tonight with family. He can call you tomorrow afternoon’, to which the Father’s response was ‘how is that my problem’.[42]

   [41] Father’s Trial Affidavit, paragraph [101].

   [42] Mother’s Tender Book, p 132.

6. Rather than acknowledging the Mother’s actions in facilitating the calls, the Father berated her about the times at which the calls were arranged. For example, on 27 April 2021, he sent her a message saying ‘I'm sick of having my daily phone calls at 3 in the afternoon or getting wedged in between your life stuff. I'm his dad and deserve to spend a decent amount of time talking to my son.’[43] On 12 September 2021, the Father sent a message to the Mother asking to speak with X. She responded ‘not home at the moment’ to which he replied ‘you’re a salty piece of shit.’[44]

   [43] Mother’s Tender Book, p 125.

   [44] Mother’s Tender Book, pp 132-133.

7. Daily calls is an arrangement which could be expected to be intrusive and disruptive to the Mother’s daily life (as was ultimately conceded by the Father under cross-examination), and it is to her credit that she agreed to it. Despite this, the Father gives the Mother no credit for the effort she put into it, and instead complains about occasions upon which it did not occur, accusing her of ‘disregarding [his] position in [X’s] life’.[45] The Father’s own evidence was that his approach to the Mother in relation to this issue was to tell her ‘this was unacceptable, and [he] was sick of getting the scraps that she would allow [him] in terms of access to [X] when it suited her’.[46] The Father showed no recognition of the controlling nature of this conduct.

   [45] Father’s Trial Affidavit, paragraph [101].

   [46] Father’s Trial Affidavit, paragraph [102].

8. The Father conceded under cross-examination that the calls were for his own benefit. In his Notice of Child Abuse, Family Violence or Risk, he described them as ‘[his] right’. In a message to the Mother on 19 September 2021, he said ‘every parent should be entitled to speak to their child every single day’.[47]

   [47] Mother’s Tender Book, p 139.

9. It was submitted on behalf of the Mother that daily calls were not age appropriate (noting that the difficulties surrounding this issue arose in or around April 2021, at which time X was not yet three years old) or child focused. I accept that submission. The evidence before the Court demonstrates that the Mother attempted to change the arrangement to a more child focused arrangement of two calls per week and the Father’s response was abusive. In response to the Mother saying that she was listening to her lawyer, he said ‘your lawyer isn’t a mental health professional, for the 100^th time …. we both know you're a compulsive liar who uses [X] to punish me, which is sad and makes you a bad parent. I will tell him about it when he's older and you'll have to suffer those consequences, not me.’[48]

   [48] Mother’s Tender Book, p 133.

10. In September 2021, the Mother sent the Father videos depicting X in a distressed state. The Mother’s evidence was that X was becoming distressed and having tantrums as a result of being forced to communicate by phone with the Father every night. She said that she had tried to communicate with the Father about the issue but he had refused to believe her or to consider reducing the frequency of the calls.

11. The Mother’s interpretation of these events is consistent with messages between the parties on 21 September 2021 in which the Father requested a call, the Mother sent him a video with a message saying ‘I have tried getting him too [sic] and this is the reaction im [sic] getting’, to which the Father responded ‘:( breaks my heart but thank you for trying’.[49] In the course of the same conversation, the Mother said ‘I honestly do try. I ask him numerous ways while we have been at the shops and even try to give him suggestions on things to talk about. He will get better with age’. The Father’s response was to say ‘…obviously I think you’re just saying it to spite me’.[50] On 22 September 2021, the Father, in the context of asking the Mother not to send further videos, said ‘I appreciate you're only just trying to ask if he wants to talk but it hurts a lot to hear [X] talk like that.’[51] The Father also said ‘[d]on't know what Ive [sic] done to him to deserve this.’[52] The Father’s focus was on himself and what he ‘deserved’, not on X and X’s experience. Notwithstanding these developments, the Father persisted in his insistence on daily calls, which was not child focused.

    [49] Mother’s Tender Book, p 141.

    [50] Mother’s Tender Book, p 141.

    [51] Mother’s Tender Book, p 143.

    [52] Mother’s Tender Book, p 143.

12. The Father is critical of the Mother for filming X rather than consoling him and for not agreeing to his proposal that X be ‘assessed’ by a mental health professional.[53] The Mother did not consider there was a medical issue at play, which the Father pejoratively describes as being that the Mother ‘didn’t want to ensure our son is coping.’

    [53] Mother’s Tender Book, p 144.

13. The Father initially accused the Mother of coaching and manipulating X not to like the phone calls in an attempt to hurt him, of ‘torturing’ X and of ‘warping his little mind’, for which he called her ‘a different kind of twisted’ and warned her that X would see her ‘true colours’ as a ‘manipulative piece of shit’.[54] Under cross-examination, he attributed X’s distress surrounding the calls not to the calls themselves but to the changes in his life associated with the commencement of the Mother’s new relationship and the allegedly ‘impulsive and irrational’ decisions made by her. He did not mention other changes that had occurred in X’s life at that time, which were referred to by the Mother under cross-examination, including the introduction of the Father’s new partner, the commencement of blocks of two nights with his father and away from his mother, and the heightened emotions of both parents arising from the commencement of the court proceedings.

    [54] Mother’s Tender Book, p 144.

14. It was not until after receipt of Ms N’s report, in which she opined that daily contact was prioritising the parents’ needs above X’s needs and could be viewed as an intrusion in the other parent’s daily life[55] that the Father relented in his insistence on daily calls. In the witness box, he continued to lament that they had been ‘taken away from [him],’ admitted he had not forgiven the Mother for the events of that period of time, and refused to accept that his insistence on daily calls could have had an impact on the Mother and X and their routine, despite acknowledging that the situation had improved once the frequency of the phone calls had reduced.

    [55] Child Impact Report dated 25 November 2021, paragraph [23].

15. I was left with no doubt that the parties were both being entirely genuine in the way they gave their evidence in relation to this issue. The upshot of this unfortunate series of events is that rather than co-parenting cooperatively, they dealt with this issue by engaging in conflict and mutual criticism, much to the detriment of X, whose distress remained unaddressed for an extended period.

    Extracurricular activity

16. The Father is critical of the Mother for not involving him in X’s extracurricular activity. His disappointment at not being involved in this activity with X is entirely understandable. However, the Father presented as wholly lacking in insight as to his own role in the Mother’s reluctance to have him involved in this activity which she undertakes with X. It is understandable that the Mother would not wish to spend time in the presence of a person who treats her and speaks to her and about her the way the Father often does and that she would not want to expose X to either the conflict between his parents or the tension resulting from their joint presence. Her evidence was that she has suggested that the Father arrange sessions during the time X spends with him, which is a sensible proposal in the circumstances.

    Facilitation of relationship with Father

17. The Father alleges that the Mother engages in ‘gatekeeping’ behaviour,’[56] ‘uses [X] as a weapon against him,’[57] has persistently minimised his time with X and has sought to marginalise his involvement his life. He alleged in his trial affidavit[58] that the Mother failed to facilitate regular and consistent time with X after X was born and that she has ‘never been forthcoming or willing to allow [him] significant time with [X].’[59] He submits that the Court cannot have confidence that she will effectively promote X’s relationship with his father.

    [56] Father’s written submissions, p 1.

    [57] Father’s Trial Affidavit, paragraphs [76], [139].

    [58] Father’s Trial Affidavit, paragraph [84].

    [59] Father’s Trial Affidavit, paragraph [246].

18. The Father’s allegations in this regard fluctuate between allegations that the Mother has been obstructive since X was an infant[60] and allegations that she actively encouraged and facilitated the relationship between X and his father until around September 2021 when the parties’ previously positive co-parenting relationship experienced a difficult time.[61]

    [60] For example, the allegation in his Notice of Child Abuse, Family Violence or Risk that she has been using X as a weapon against him since 2019 and the evidence at paragraphs [82]-[83] of his Trial Affidavit that the Mother dictated the time he could spend with X, that he was required to beg for time and that he was ‘never allowed regular, consistent time with [X]’ and ‘got barely any time with him at all.’

    [61] For example, Father’s Trial Affidavit paragraphs [126]-[131], [237]-[239].

19. The Mother denies having been obstructive. Her evidence under cross-examination was that ‘the bond between a separated father and a child is very important, and that’s something I made sure they could still have.’

20. The evidence before the Court is replete with examples of the Mother actively facilitating X’s relationship with the Father.[62] One example of this is the uncontested fact that in 2021, the Mother instigated overnight time between the Father and X upon X’s cessation of breastfeeding other than for comfort.[63] The Father also acknowledges that from 2019 (when X was an infant) to 2021, being a period prior to the commencement of the Court proceedings, he was spending time with X each Saturday from 9:30am until 3:00pm or 4:00pm, and each Tuesday from 4:00pm until 7:00pm or 8:00pm.[64] It is not in dispute that the Mother was expressing breast milk to enable this time to occur.

    [62] Examples include the messages between the parties on 30 December 2021 in Exhibit F3, and pp 74-101 of the Father’s Tender Book.

    [63] Father’s Trial Affidavit, paragraph [115].

    [64] Father’s Trial Affidavit, paragraph [122].

21. The Father also acknowledged that as at August 2021, he had spoken to X ‘every day since he was born’[65] and admitted in evidence in chief that until the current arrangement commenced he had never gone more than four days without seeing X. The Mother’s unchallenged evidence was that between 2019 and 2020, she facilitated the Father staying overnight at her home three times per week in order to facilitate time with X.[66] It is also the Mother’s unchallenged evidence that she arranged for the Father to be involved in professional photo shoots with X and had hoped that X could have the opportunity to participate in such photoshoots with both of his parents every few years.[67]

    [65] Father’s Trial Affidavit, paragraph [164].

    [66] Mother’s Trial Affidavit, paragraph [47].

    [67] Mother’s Trial Affidavit, paragraph [111].

22. The Father alleges that the Mother threatened him with having less time with X should he not follow her every instruction. In support of that allegation, he relies on text messages[68] which show that the Mother suggested on 11 July 2019 that she might look into childcare on Thursdays because things were getting ‘far to [sic] nasty’ and she could not deal with the stress. The text messages relied on by the Father also include messages from 22 April 2021 which include him calling the Mother ‘incredibly selfish’ and making reference to his ‘rights’. In my view, these messages do not support the Father’s allegation, but rather demonstrate a dysfunctional co-parenting dynamic between the parties.

    [68] Father’s Tender Book, pp 124-126.

23. The Father alleged in his trial affidavit that X was being ‘manipulated emotionally by his mother in order to hurt [the Father]’ because X had said to him ‘[m]y mummy said you have bad daddy breath’ and ‘[m]y mummy says you're mean.’[69] The Father was not challenged on this evidence and I accept that X made those comments. I note that at the time of the comments (August 2021), X was not yet three years of age. I do not accept that such comments of a two year old child without context are sufficient evidence upon which to form a conclusion that the Mother was emotionally manipulating him order to hurt the Father.

    [69] Father’s Trial Affidavit, paragraph [165].

24. The Father alleges that the Mother ‘has been actively doing everything she can to come between [X] and [him]’ and ‘it is clear that [he has] become a nuisance to her life because [he refuses] to fade into the background of [his] son's life’. There is no evidence other than the Father’s bald allegation to suggest that the Mother has done everything she can to come between X and the Father. Indeed, the Father does not allege a single occasion upon which the Mother has not complied with the orders of this Court and he conceded under cross-examination that she has facilitated all the time that has been ordered. The Father does not appear to have considered that if the Mother perceives him to be a ‘nuisance,’ this may be as a result of his behaviour towards her.

25. The Father alleges that the Mother ‘does not share any information about [X's] routine, his development in certain areas of his life and isolates me from as much information and communication about and with my son as humanly possible.’[70] This evidence directly contradicts the Father’s evidence that the parties generally have a positive co-parenting relationship and is not consistent with the contents of many of the text messages between the parties which are in evidence, including but not limited to those in exhibit F3, which contain many examples of the Mother providing the Father with information about X and his routine. As with many of the allegations made by the Father, this evidence demonstrates more about the Father’s attitude towards the Mother than it does about the Mother herself.

    [70] Father’s Trial Affidavit, paragraphs [213].

26. The Father alleges that the Mother deliberately distracts X during his video calls with him, in order to ruin the experience for both X and the Father, such as by giving him gifts, offering him toys, food or drink, or turning on the television.[71] In the witness box, he described this as the Mother ‘us[ing] those communication times to inflict pain’ on him which he described as ‘cruel’, and said (contradicting his claim that the parties have shared a positive co-parenting relationship in recent times) it happens ‘still to this very day’.

    [71] Father’s Trial Affidavit, paragraphs [241]-[242].

27. The Mother’s evidence was that X is often difficult to focus and tends to move around during the calls and that giving him food is sometimes the only way she can encourage him to sit and talk.[72] The Father presented as lacking in insight as to the appropriateness and feasibility of regular calls with a child as young as X. I accept the Mother’s evidence.

    [72] Mother’s Trial Affidavit, paragraph [123].

28. I do not accept that the Mother generally is or has been obstructive or restrictive in relation to time or the Father’s relationship with X. Rather, the evidence suggests that the Mother actively facilitates the relationship and despite this, the Father is unable to give her credit and is critical of her on any occasion upon which she does not facilitate any further requests or demands that he makes. This is not an indicator of a positive co-parenting relationship or an ability to parent cooperatively.

    Father’s treatment of Mother

29. In addition to the evidence outlined above, there are numerous other examples of controlling, dismissive or patronising conduct and communications by the Father towards the Mother apparent in the evidence. These include:

    (a)A message to the Mother in 2018 (during her pregnancy) saying ‘don’t you ever threaten me with an abortion again, you hear me,’[73] which was followed by a message two days later instructing her to terminate her pregnancy so ‘we can all move on and have a nice life’.[74]

    [73] Father’s Tender Book, p 24.

    [74] Exhibit M1.

    (b)A Facebook message sent to the Mother in 2018 (when she was pregnant with X) berating her for having taken her phone into the bathroom with her, saying ‘Ive [sic] repeatedly asked you not to do that, ive [sic] told you why. Last night you get a snapchat message from "[…]" who the fuck is that? Then you do what you always do and take your phone into the bathroom so what the fuck do you want me to think? If you weren't pregnant I wouldn't be with you you're a fuckin bitch.’[75]

    [75] Exhibit M1.

    (c)A threat in mid-2021 to ‘alert the authorities’ in relation to bruising he alleges he observed on X.[76]

    [76] Mother’s Tender Book, p 200.

    (d)Filming handovers.[77]

    (e)Threats to tell X about the parties’ toxic relationship and the Father’s views of the Mother should he ask in the future. In this regard:

    (i)In a message dated 10 September 2021, the Father sent a message to the Mother saying ‘the more you stand between us the better it looks for me so do whatever you want but I'll always tell [X] the truth and won't hide what you have done and are trying to do with his and my relationship.’[78]

    (ii)On 13 September 2021, in the context of an argument about daily phone calls, the Father sent the Mother a message saying ‘…we both know you're a compulsive liar who uses [X] to punish me, which is sad and makes you a bad parent. I will tell him about it when he's older and you'll have to suffer those consequences, not me.’

    (iii)Under cross-examination, when asked whether this was appropriate, the Father said ‘I will never lie to my son. If he asks me questions, I will tell him the truth’ and ‘I’ve never called [Ms Kenney] a bad parent in front of [X] and I never will, but when things happen … I’ve got no reason to lie to [X]. I’ve never done anything wrong by him, and if he asks me the questions, I will tell him the honest answer.’ When asked ‘when you say I will tell him about it when he’s older, you’re talking about her being a bad parent, aren’t you?’ the Father responded ‘I’m talking about everything that goes on, everything that happened around that period of time…’ Asked what he meant by ‘suffer those consequences’, the Father replied ‘if [X] asked the question and got told an answer and it affected how he felt about the situation, that’s not on me. I’m just going to tell him the truth.’

    (iv)The Father conceded his message was threatening and that it may have induced a sense of fear in the Mother, but he could not see that it was manipulative. The Father did not appear to appreciate the irony that this was in fact him using X to punish the Mother. He also did not appear concerned about the likely significant emotional harm that he was threatening to inflict on X by exposing him to his father’s negative views about his mother or details of the dispute between his parents, despite the express acknowledgment in his message that his proposed actions would lead to ‘consequences’ for X’s relationship with his mother. His view that if he acted as he had threatened to do, the consequences would not be ‘on him’ reflected a very limited capacity to reflect on his own choices and behaviour. The Father’s evidence in relation to this issue gives rise to significant concern as to his parenting capacity in addition to his ability to co-parenting with the Mother in a respectful fashion.

    (f)A message sent to the Mother on 17 September 2021 saying ‘pick up Sunday will be here at 6.30.’ After she said that she had not been given enough notice and that pick up would be 3:30 like normal, the Father responded ‘[w]e don't have an agreed handover time. You've robbed me of phone calls so go fuck your self’ and ‘[t]old you if you fuck with me I’ll give you the same in return’.[79] This argument continued, with the Father engaging in many communications which were antagonistic and not child focused, demonstrating his anger about no longer having daily telephone calls with X. The Father acknowledged under cross-examination that his conduct was not appropriate and was controlling.

    (g)Text messages to the Mother on 5 October 2022 (the day before the trial commenced) in which he told her ‘I don’t appreciate the attitude around this’ and ‘you’re being overbearing’, the latter of which was sent in response to a reasonable request for the details of a doctor who had been consulted about X.[80]

    [77] Father’s Trial Affidavit, paragraph [182].

    [78] Mother’s Tender Book, p 132.

    [79] Mother’s Tender Book p 136.

    [80] Exhibit F3.

1. Neither party’s proposal would involve any separation of X from either of his parents or any other significant person in his life or any significant change to his circumstances.

   The capacity of the child’s parents and any other significant person to provide for the child’s needs, including their emotional and intellectual needs

2. There is no dispute that both parties are capable of providing for X’s physical needs. I accept the evidence of the Court Child Expert that both also presented with a good understanding of his overall developmental needs.[147]

   [147] Child Impact Report dated 25 November 2021, paragraph [17].

3. However, I hold significant concerns about the high level of conflict between the parties and in particular the Father’s pervasively negative attitude towards the Mother and her parenting, and the impact this has on X’s emotional needs. Despite the warning in the Child Impact Report that ‘[i]f the mother is feeling anxious and finds the father to be controlling, this could affect her mood and ultimately, negatively affect the emotional attachment between [X] and his Mother,’ the Father did not appear to understand that his behaviour and attitude towards the Mother is detrimental to X. Rather, the Father’s approach to this concern was simply to dismiss any possibility that the Mother might be so feeling.

4. The Father makes many complaints about the Mother’s parenting, as outlined throughout these reasons. However, in my view, the Father’s focus on these issues is more concerning for what it reveals about the Father’s attitude towards the Mother and the likely impact on X of being parented within such a dysfunctional interparental dynamic than for any concerns about the Mother’s parenting.

5. The Father’s threats to tell X ‘the truth’ and his insistence in this regard that he had ‘no reason to lie’ to X constitute a risk that the Father will, in future, share with X things which are not appropriate for a child to be exposed to, such as his opinion of the Mother and her conduct. This stated intention constitutes a deficiency in the Father’s capacity to provide for X’s emotional needs. The orders made on 28 June 2022 included an injunction restraining the parties from denigrating the other in X’s presence or hearing, and it is to be hoped and expected that the Father will comply with that injunction notwithstanding his threats in this regard.

6. I am not otherwise satisfied that there is any deficiency in either party’s parenting or in their ability to meet X’s physical, emotional or intellectual needs, save for their mutual inability to contain their conflict and the extremely negative attitude held by the Father in particular towards the Mother.

   The attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents

7. Each of the parents has demonstrated an exemplary attitude towards X when their parenting of him is considered in isolation. However, in my view, the responsibilities of parenthood include pursuing the development of a mature, respectful, civil and cooperative co-parenting relationship with the child’s other parent. I find that both parties have been unsuccessful in meeting that aspect of their responsibilities as parents.

   Any family violence involving the child or a member of the child’s family

8. Each of the parties has engaged in conduct towards the other which could be considered to be family violence, particularly in the form of verbal abuse (including in written form, by way of text messages) and derogatory taunts, as outlined above.

   Whether it would be preferable to make the order that would be least likely to lead to further proceedings

9. Given the high levels of conflict in this matter, it would be preferable to make the order that would be least likely to lead to further proceedings, to minimise the risk that further proceedings will exacerbate the levels of dispute between the parties and impact negatively on X.

10. As X is only three years of age, it is difficult to make orders that can be expected to serve his interests throughout his childhood. Nonetheless, I consider it appropriate to make orders which will serve X’s best interests not only in the immediate future but as far into the foreseeable future as the evidence before the Court will permit.

    TIME

11. The Father submits that:

    “since the Mother can cope with co-parenting for four overnights per fortnight on her own proposal, she can continue to do so building up to 7 such overnights a year later; if she cannot co-parent at all then her position would surely be alternate weekends only plus half of school holidays, being the minimum time spending needed for any child to have a meaningful relationship with its non-custodial parent.”

12. The difficulty with this submission is that the test is not whether the Mother can cope or whether she can co-parent, but what arrangement is in X’s best interests. The Mother’s ability to co-parent effectively is relevant to this determination, but so too is the Father’s ability to do so and the level of mutual conflict between the parties.

13. The Father submits that the Mother has ‘failed to demonstrate that a co-parenting relationship between the parents is fractured or unworkable (or at all likely to become so)’. In my view, the evidence of both parties amply demonstrates that they lack a workable co-parenting relationship much of the time.

14. The Father submits that despite the fact that the parties have each made ‘mistakes’ in their dealings with each other ‘the parties are not so antipathetic towards each other that they cannot continue to work together for the mutual benefit of their young son.’ I do not agree. The Father’s antipathy towards the Mother, in particular, is palpable, and his poor treatment of her goes far beyond mere ‘mistakes’.

15. It is submitted on behalf of the Father that ‘the only way of avoiding the inevitable consequence of the Mother's evident attitude to parenting … is for the Father's time to build up to a week about shared care arrangement.’ I do not accept that submission. It is in fact the Father’s attitude to co-parenting and to the Mother, together with the high levels of conflict between the parties, which I have found is the greatest barrier to the prospect of an equal time arrangement being implemented in a manner which would serve X’s best interests.

16. I am not satisfied that a build up to an equal time arrangement is in X’s best interests for the reasons outlined above, and in particular:

    (a)As Ms N indicated, an equal time arrangement being in X’s best interests would be conditional upon a number of unknown factors, including how he transitions to school and how he transitions between his parents as he gets older;

    (b)I have made findings that the Father is controlling towards the Mother, which, as Ms N indicated, is a risk factor for X;

    (c)The parties each allege that the other behaves in a controlling manner towards them, which, as Ms N indicated, is in itself suggestive of a poor co-parenting relationship;

    (d)I have found that the Father treats the Mother in an abusive and disrespectful manner and undermines her as a parent, which is indicative of a poor co-parenting relationship and makes it unlikely that he could work effectively with her in the context of an equal time arrangement;

    (e)The Father has made and continues to make a litany of complaints against the Mother which demonstrate that he does not trust or respect her as a parent, which is a strong indication of the absence of a sufficiently workable co-parenting relationship to support a successful equal time arrangement;

    (f)I have found that notwithstanding some periods where they have communicated well from time to time, overall, the parties have an extremely high conflict relationship and lack the mutual respect, trust, friendly communication, flexibility or ability to cooperate that Ms N indicated would suggest that an equal time arrangement is in X’s best interests; and

    (g)I am satisfied that requiring X to live equally between the parties’ two households in circumstances in which the parties lack a consistently cooperative and flexible co‑parenting relationship would expose him to a risk of harm from being exposed to and caught up in the parties’ conflict.

17. Notwithstanding what I have found to be barriers to the operation of an equal time arrangement, I have regard to the evidence of the Father’s parenting capacity other than in relation to the Mother and the undoubtedly close and loving relationship between X and his father.

18. Having regard to the considerations outlined above, I am satisfied that X’s best interests will be met by an order providing that he continue to live in the primary care of his mother and spend substantial and significant time with his father.

19. I find that the Mother’s proposal that X continue to spend three nights per fortnight in the Father’s care and progress to spending four nights per fortnight with his father from the time he commences school to be child focused and to represent an appropriate balance between the need to protect X from the real risk of harm arising from the high levels of conflict between his parents and their inability to work cooperatively together on jointly meeting his needs on an enduring basis, and the need to foster the continued development of his relationship with his father in accordance with his developmental needs.

20. Once X has completed his first year of schooling, is older and is therefore likely better able to handle significant periods of time away from his primary carer, and has become accustomed to spending extended blocks of time with his father, I consider that it will be in his best interests to commence spending an additional night per fortnight in the care of his father. This will foster X’s need to continue to grow and develop his relationship with his father as he gets older, whilst maintaining a stable home base in the care of his mother and continuing to shield him as far as is as possible from the aspects of the parties’ high conflict dynamic which act as a barrier to them engaging in collaborative shared arrangement. This is also designed to ensure that the orders will cater for X’s needs as far into the foreseeable future as possible.

21. This outcome is consistent with the recommendations of Ms N, and represents a cautious interpretation of her recommendations, in light of the disparity between her understanding as to the levels of the parties’ conflict and the nature of their co-parenting relationship when those recommendations were made and the findings of the Court in that regard.

22. The orders which are to be made, which will provide for X’s fortnightly time with his father to take place in a single block from the time he commences school, are designed to minimise direct contact between the parties at handovers and minimise the number of transitions X is required to make between his parents’ often warring homes, in the hope of minimising opportunities for him to be exposed to, caught up in and harmed by his parents’ conflict.

23. It is common ground between the parties that when X commences school, it will be in his best interests to spend equal time with them during school holidays, with such time to occur in a week about arrangement unless otherwise agreed. The Mother seeks that the regular arrangement continue during school holiday periods until X commences school. The Father proposes that there be additional time provided for during the school holidays in 2023. There is no evidence to suggest that there is any change for X, his routine, or the quality of the time he is able to spend with each of his parents in school holiday time compared to regular time while he remains below school age. As a result, my findings as to the arrangement that will serve his best interests during school terms apply equally to school holiday times. There will therefore not be an order deviating from that arrangement until such time as X commences school.

    SCHOOLING

24. Despite their consent to an order for equal shared parental responsibility, the parties have been unable to reach agreement as to the school X will attend from the commencement of his primary school education in 2024 (which will also affect where he attends kindergarten in 2023).

25. The Father proposes that X attend F School in City C, and that he attend the Early Learning Centre associated with that school, being G Early Learning Centre in City C, in 2023.

26. The Mother proposes that X attend D School, which is also in City C, and that he remain at his existing facility, B Early Learning Centre in City C for kindergarten in 2023. D School is a primary school, and the Mother’s proposal involves X attending its associated secondary school, J School.

27. The relevant authorities, in particular Re G: Children’s Schooling[148], make clear that where there is a dispute about the school a child is to attend, there is no legal presumption in favour of the parent with whom the child resides. Ultimately, the question is the child’s best interests.

    [148] [2000] FamCA 462; (2000) FLC ¶93-025.

28. Both schools are private schools. The fees for both are comparable.

29. The Father relies on the National Assessment Program – Literacy and Numeracy (‘NAPLAN’) results for each of the schools.[149] He was cross-examined about the fact that the scores for D School, being the school preferred by the Mother, are in fact higher on a number of measures, such as year 3 reading, writing, spelling, grammar and numeracy. He pointed out that by year 5, D School was ‘well below’ average for students with a similar background. The scores for year 5 do not differ greatly between the schools, however, and the scores for writing, grammar and numeracy remained higher for D School than those for F School. It was submitted on behalf of the Father that although the ‘raw scores’ for F School might be lower than the school promoted by the Mother, they are superior when adjusted for socio-economic factors by way of an algorithm that adjusts the scores to account for the socio-economic background of the students, thus evaluating how much value each school adds.[150] It was submitted that ‘when that process is applied to [D School] and [F School], [F School] actually does come out as being the better school in the relative sense of adding more value’. In my view, the NAPLAN scores for the two schools are sufficiently comparable that they do not provide a basis for differentiating between the schools. In any case, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory,[151] which in this case, they are.

    [149] Father’s Tender Book, pp 161-162.

    [150] As outlined in Exhibit F4.

    [151] Re G: Children’s Schooling [2000] FamCA 462; (2000) FLC ¶93-025 at [91]-[92].

30. It is not in dispute that D School has a traditional classroom setup, while F School has a more ‘open’ learning environment. The Father’s evidence was that he found the open style ‘impressive’, that the facilities were superior and the class sizes were smaller when compared to D School. The Mother’s evidence was that the open plan learning environment at F School would not be well suited to X.[152] Her evidence was that she attended during school hours and observed the classrooms to be loud, chaotic and disorganised, with three classes in each open plan unit, each with one teacher for approximately 30 students, and that it was not a structured learning facility. The Mother’s evidence was that X is better suited to quiet, calm environments and does not do well in busy, chaotic settings.

    [152] Mother’s Trial Affidavit, paragraph [100].

31. The Mother’s evidence was that if X attended D School, she and Mr H would be likely to send their soon to be born child to the same school, but if X attended F School, his younger sibling would likely attend school in Town M. The evidence of the Father’s partner, Ms E, is that she intends to send her children to F School in future.

32. Both schools under consideration have religious affiliations, F School being Catholic and D School being Protestant. It is common ground that neither party is particularly religious and X will not be given a religious upbringing in his non-school life.

33. The Father deposed that he was ‘not opposed to [X’s] school being public, Catholic or [Protestant]’[153] and that he had approached the school selection process with an ‘open mind’ and formed a view about which of the two schools could offer X the best education.[154] This evidence was directly contradicted by a series of messages he sent to the Mother on 31 March 2021, in response to her proposal of D School and prior to enquiring of the Mother as to the other available options in City C. Those messages included: ‘[…] is Protestantism, I can't send my son there,’ ‘I feel incredibly passionately opposed to anything Protestant,’ ‘I'll happily pay for the more expensive school for [X] not have to be in a Protestant thought System’, ‘I won't personally fund Protestantism’, ‘I personally don't think Protestantism is in his best interests, being his father that's my prerogative’, ‘[D School] is full of dirty orange order incest bastards’, ‘I don't want my son having a [Protestant] education, I won't be convinced otherwise’ and ‘I don't agree with the fundamentals of Protestantism’. In response to a suggestion from the Mother that he ‘put [his] religious beliefs aside and consider whats [sic] best for his education’, the Father responded ‘you told me to put my beliefs aside and that is offensive and rude. I do have beliefs and I'm entitled to them.’[155]

    [153] Father’s Trial Affidavit, paragraph [235].

    [154] Father’s Trial Affidavit, paragraph [230].

    [155] Mother’s Tender Book, pp 187-192.

34. The Father sought to distance himself from the assertion that he was not opposed to X attending a school being ‘public, Catholic or [Protestant]’ by saying that it had ‘obviously come across from my previous affidavit and that is not how I feel.’ However, the previous affidavit to which he referred was affirmed in October 2021, which was after he had sent the messages outlined above, and it is clear that at the time he affirmed that affidavit, he was not being candid about his views about the prospect of X attending the school proposed by the Mother.

35. Notwithstanding his conduct in sending the messages referred to above, the Father is critical of the Mother for subjecting him to what he called ‘sectarian abuse’,[156] being a concept which he did not explain, and he alleges that she is ‘hurting [him].’ The Father sought to justify the message referring to D School being ‘full of dirty orange order incest bastards’ by saying that it had been ‘taken out of context’. He alleged in the witness box that the Mother had made ‘a denigrating comment about Catholic school’ and that was his ‘rebuttal’. In fact, the Mother had made a comment about a different Protestant school that is not under consideration by or associated with either of the parties.[157] The Father’s evidence was that no weight should be placed on his comment because ‘[h]ow would I know what [D School] was full of?’. This both misses and encapsulates the very point that he was immediately dismissive and derogatory about that the school proposed by the Mother before he had even looked into it.

    [156] Father’s Trial Affidavit, paragraph [233].

    [157] Mother’s Tender Book, p 188.

36. The Father’s lack of candour with the Court in relation to the true basis for his objection to the school chosen by the Mother as revealed in his text messages casts doubt on the veracity of his assertions as to his assessment of the superiority of F School as a suitable school for X. The combined effect of the Father’s messages to the Mother and his evidence to the Court gives rise to an inference that the Father has not in fact reached any measured or balanced conclusion as to the school that would best meet X’s needs and has instead had a knee-jerk reaction to the Mother’s proposal without giving it proper consideration, and then looked for reasons to promote a non-Protestant school over the school proposed by the Mother.

1. In contrast to the Father’s reactionary approach to this issue, the Mother’s suggestion to the Father was significantly more child focused, being a suggestion that ‘I think we need to just have a look at our options and go with whats [sic] best for [X]. Need to put personal choices aside.’[158] The Mother’s stated priorities were also child focused, including X commencing school with his friends and receiving a good education and her understanding that D School is the number one school in the area.[159]

   [158] Mother’s Tender Book, p 190.

   [159] Mother’s Tender Book, pp 189-190.

2. The Father deposed that the enrolment criteria for D School[160] ‘clearly states that the most important aspect is [sic] being involved in their school community is hinged on being an active participant in their congregation.’ That is not what the document says. Rather, it lists a set of criteria, in order of priority, to be considered in relation to an enrolment application. Membership of the congregation is second on the list. The Father, in his evidence, referred to the school’s ‘insistence on becoming a part of their congregation.’ When it was put to him that it was not a requirement for enrolment, he said ‘it’s very highly recommended, as stipulated in their enrolment criteria in big, bold letters’. It is not the case that the enrolment criteria stipulate this in big, bold letters.

   [160] Father’s Tender Book, p 159.

3. The Father’s evidence was that the Principal of D School had repeatedly referred to the ‘congregation’, whereas the Father would have preferred the word ‘community.’ He said that X may suffer from feeling like he does not belong if he is not a part of their congregation when the majority of their other students are or may feel ‘pressure to fit in or not fit in’. When asked how he knew that the majority of students were members, the Father said ‘I can only assume’ and said that the Principal had mentioned that ‘many students’ were. The Mother’s evidence, based on her sister’s attendance at D School, is that the school does not insist or strongly encourage its students to be members of the congregation.

4. The Father gave oral evidence that ‘[D School] is more focused on bible study, whereas [F School], their religious stuff is based more about being a part of your community, helping your community and just being a good member of society.’ He asserted that the approach of F School is more modern and its focus is on things such as volunteering, he felt were ‘more important than studying a bible.’ There is nothing in the independent evidence before the Court to support the Father’s opinion that the focus of D School is on bible study rather than community engagement.

5. The Father gave as a further reason for preferring F School that it is a reception to year 12 school, meaning that X could have consistency and make and keep lifelong friends. The Mother’s evidence was that he could do likewise at D School, as most of the children at that school would transition together to J School.

6. The Father submits that it is ‘somewhat characteristic of the Mother's 'hot and cold' attitude to her co-parenting…that at the same time as she promotes an Order for Equal Shared Parental Responsibility generally, she seeks a specific Order from the Court that the Child be enrolled in her choice of schools.’ This submission fails to recognise the fact that the Father, likewise, consented to an order for equal shared parental responsibility yet asked for an order from the Court providing for X to attend the school of his choice.

7. There is little to choose between the two schools in terms of the opportunities they will provide to X, and I am satisfied that he will have the benefit of a good education regardless of which of the schools he attends. Each proposal has aspects to commend it. I am persuaded that it is in X’s best interests to attend D School by the Mother’s evidence that the open plan environment is not well suited to X, and by the fact that if X attends D School, he will likely be at the same school as his sibling, which is likely to be in his best interests. Most significantly, I am persuaded by the fact that the messages between the parties suggest that the Mother has proposed D School on the basis of a genuine child focused consideration of which of the available options would be in X’s best interests, while the Father’s position was an immediate rejection of the Mother’s proposal before he had even learned of the alternatives, which casts doubt on his assertion that he has undertaken an open-minded assessment of the educational opportunities available to X. As such, I shall order that X attend D School for his primary schooling.

8. As to kindergarten, although he was critical of it in his trial affidavit,[161] in a text message to the Mother dated 4 April 2022, the Father acknowledged that X is settled and happy at B Early Learning Centre,[162] where he has been attending childcare since he was one year old. The Father asserted that if X were to continue at B Early Learning Centre, he would be broken up from his entire peer group at the end of 2023 and would start school potentially not knowing anyone.[163] However, the Mother’s unchallenged evidence was that two of X’s close friends will be attending kindergarten at B Early Learning Centre and then school at D School. In circumstances in which X will not be transitioning to F School for primary school, I do not consider it to be in his best interests to remove him from a place in which he is well settled ahead of his kindergarten year. As such, I shall order that X attend kindergarten at B Early Learning Centre.

   [161] Father’s Trial Affidavit, paragraph [220].

   [162] Exhibit F3.

   [163] Father’s Trial Affidavit, paragraph [220].

9. The Mother’s application included an application that X attend J School, the secondary school associated with D School, for his secondary education. Given that X was aged only three at the time of the trial, I consider it premature to determine at this stage which secondary school he will attend. There may be any number of changes to his life and circumstances which may occur between now and the time he commences secondary schooling and there is limited evidence before the Court about J School. As such, no order will be made pertaining to X’s secondary schooling. Nonetheless, it would be expected that in the absence of any significant change to his circumstances, it would likely be in X’s best interests to join many of his peers at the secondary school that is associated with his primary school.

   INJUNCTION REGARDING PHOTOGRAPHS

10. The Father seeks an injunction restraining the use of X’s image for any commercial purposes. The Father’s evidence was that he has ‘been vocal about [his] discomfort around [X's] image being used for marketing and promotional purposes, particularly those by '[S Company]'’ and that ‘a photo shoot that has images of [X] breast feeding is still on their website despite [his] requests for these images to be removed.’[164]

    [164] Father’s Trial Affidavit, paragraph [133].

11. The Mother’s evidence was that the Father initially consented to S Company posting photographs of X on their website and ‘liked’ the photographs, and that the Father’s objection to X’s image being posted online did not arise until after photographs of X which included Mr H had been posted.[165] It is not in dispute that once the objection arose, the photographs were taken down.

    [165] Mother’s Trial Affidavit, paragraphs [111]-[112].

12. The Mother’s evidence was that she had professional breastfeeding photographs taken, but those photographs were never made public.[166] Under cross-examination, her evidence was that the photograph to which the Father had taken objection did not depict her or X.

    [166] Mother’s Trial Affidavit, paragraphs [114].

13. The Father explained that he wanted to ‘protect [X’s] image for him’. He said that while he had concerns that ‘photos of [X] not fully clothed or as part of a breastfeeding photoshoot … could create some avenues of bullying for [X]’, he sought that X’s image not be used in ‘any form of marketing or promotional photography’ and said ‘I just don’t want my son’s image used for commercial purposes’.

14. Section 68B of the Act empowers the Court to grant such injunction as it considers appropriate for the welfare of the child. Although the paramountcy principle in section 60CA does not apply to the granting of an injunction, X’s best interests are a relevant consideration.[167]

    [167] Bennett & Bennett [2001] FamCA 462; (2001) FLC ¶93-088; Flanagan & Handcock (2002) FLC ¶93-102.

15. I am not satisfied on the evidence before the Court that X’s welfare warrants the making of the injunction sought by the Father. He has adduced no evidence of any risk arising for X from which he needs protection nor any other proper basis for an injunction. The Father’s application is based merely on his preference. In my view, there is no evidence to suggest that the Mother will act in anything other than a child focused manner in relation to X’s image and there is no basis for restricting her parenting decisions in the manner sought by the Father.

    COSTS

16. Each of the parties sought an order for costs in their respective applications, though neither party addressed that aspect of their applications at trial. There is insufficient evidence before the Court to determine these competing costs applications, and no costs order will be made contemporaneously with these reasons. This does not prevent either party from bringing an application for costs in proper form in accordance with rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 following delivery of these reasons should they consider it appropriate to do so.

    CONCLUSION

17. For the reasons outlined above, I shall make orders as set out at the commencement of these reasons.

I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker.

Associate:

Dated:       28 November 2022