XCQ v XCP

Facts

The appellant husband and the respondent wife married on 24 October 2014 and have one daughter, who was about to turn five. The wife began divorce proceedings on 23 May 2023, and interim judgment was granted on 9 November 2023. The ancillary matters were settled by consent except custody, care and control and access, which a District Judge decided on 15 July 2024 and clarified on 23 August 2024.

The District Judge gave the wife sole care and control. The husband received weekday access on Wednesdays and Thursdays until 8.30pm and weekly overnight access, to be spent at the paternal grandparents' home. School holiday access and overseas travel were to increase in stages as the child grew older. He was also required to take a breath analyser test before each access session for six months, and both parties undertook not to drink alcohol during care and access (the Access Conditions). The husband appealed against the whole decision in District Court Appeal No 88 of 2024 and applied in HCF/SUM 10/2025 to adduce further evidence, including a supplemental report from a court-appointed psychologist.

Issues

1. Whether the parties should have been given shared care and control of the child
2. Whether the husband's weekday, overnight, holiday and overseas access should be varied
3. Whether the breath analyser and alcohol Access Conditions should be revoked
4. Whether makeup access should be ordered and the costs below increased

Holding

The High Court allowed the appeal in part. It admitted the further evidence, extended the weekday drop-off time to 8.45pm, and removed the requirement that overnight access take place at the grandparents' home. School holidays are to be shared equally once the child begins primary school, when the husband may also travel overseas with her unaccompanied, with no limit on the length or frequency of either party's trips. It added interim pre-school holiday access and Christmas Eve access, and revoked the Access Conditions. Sole care and control, the access days, the refusal of makeup sessions and the $1,500 costs order below were left undisturbed. Each party was to bear its own costs.

Reasoning

On care and control, the court noted that shared care requires parents who can work well together and is not normally ordered. The parties' relationship appeared to have become acrimonious, and moving a young child between two homes every few days could be disruptive, so the sole care and control order stood.

On access, seeing the child several times a week gave the husband enough time to bond with her, so the access days were not changed, though the short extension of the drop-off time was granted. There was no need to require overnight access at his parents' home, a condition that would also burden grandparents who owe no legal duty of care. Rather than wait until the child turned nine, the court held that equal holiday access and unaccompanied overseas travel should start at primary school, with interim access meanwhile allowing the husband to become familiar with her routine.

On the Access Conditions, the psychologist's reports found no evidence of alcohol use or safety risk to the child, and the wife's police reports led to no further investigation or findings. There was insufficient evidence of aggression after drinking or of alcohol dependency, and such conditions encourage acrimony, so the mutual undertaking was enough.

On makeup access and costs, the court agreed that makeup access should be left to give and take between the parents, and that the costs awarded below were appropriate.

From the judgment