Addington and Koldsjor

FAMILY COURT OF AUSTRALIA

ADDINGTON & KOLDSJOR

[2008] FamCA 143

FAMILY LAW – CHILDREN - With whom a child lives - Cultural issues

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-277
B and B; Family Law Reform Act 1995 (1997) FLC 92-775
Mazorski v Albright (2007) 37 Fam LR 518

APPLICANT:

Mr Addington

RESPONDENT:

Ms Koldsjor

FILE NUMBER:

SYF

4035

2006

DATE DELIVERED:

7 March 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

23 February 2007, 23 May 2007, and 3 August 2007

REPRESENTATION

APPLICANT APPEARED IN PERSON

SOLICITOR FOR THE RESPONDENT:

Ms Musgrave, Musgrave Peach Family Lawyers

Orders

The parents have joint parental responsibility for the child of the relationship, …, born on … October 2003.
The Father have responsibility for the day-to-day care, welfare and development of the child when she lives with the Father.
The Mother have responsibility for the day-to-day care, welfare and development of the child when she lives with the Mother.
The child live with the Father as follows:-
4.1during the 2008 school year in each alternate week from 5:00 pm on Friday to 3:00 pm on the following Tuesday commencing on 14 April 2008;
4.2as from the commencement of the 2009 school year in each alternate week from 5:00 pm on Friday to before school on the following Tuesday morning;
4.3during the school terms in each other week from 5:00 pm on Tuesday before school on the following Wednesday morning;
4.4For one half of the April school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;
4.5For the whole of the September school holidays;
4.6For one half of the December/January school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;
4.7In the event that the child is not living with the Father pursuant to these orders on the Father’s birthday then from 5:00 pm on the day preceding the Father’s birthday to 9:00 am or before school on the day following his birthday;
4.8In the event that the child is not living with the Father pursuant to these orders on Father’s Day then on the weekend of Father’s Day from 5:00 pm on Saturday to 9:00 am or before school on the following Monday;
4.9In the event that the child is not living with the Father pursuant to these orders on the child’s birthday then from 5:00 pm on the day preceding the child’s birthday until 9:00 am or before school on the following day;
4.10In the event that the Easter period does not fall during the school holiday period between term one and term two then from 5:00 pm on the Thursday immediately preceding Easter until 5:00 pm on Easter Saturday in each even numbered year and from 5:00 pm on Easter Saturday until 5:00 pm on Easter Monday in each odd numbered year;
4.11From 9:00 am on 25 December until 12 midday on 26 December in each year and the Mother deliver the child to the Father at the commencement of the period and the Father return the child to the Mother at the cessation of the period.
4.12 At such other times as may be agreed between the parties.
The child live with the Mother as follows:
5.1Subject to order 4 hereof at all other times.
5.2In the event that the child is otherewise living with the Father pursuant to these orders on the child’s birthday then from 5:00 pm on the day preceding the child’s birthday until 9:00 am or before school on the day of her birthday;
5.3In the event that the child is otherwise living with the Father pursuant to these orders on the birthdays of the Mother and the child S (being the child’s sister) from 5:00 pm on the day preceeding each of the birthdays of the Mother and S until 9:00 am on the day following each of the birthdays;
5.4In the event that the child is otherwise living with the Father pursuant to these orders on Mother’s Day then from 5:00 pm on Saturday until 9:00 am on the following Monday on the weekend of Mother’s Day;
5.5From 9:00 am on 24 December until 9.00 am on 25 December in each year;
Subject to Order 4.11 hereof the Father collect the child at the commencement of the periods the child is to live with the Father and the Mother collect the child at the commencement of the periods the child is to live with the Mother.
The Father and the Mother each be entitled to daily reasonable telephone contact with the child when she is in the care of the other party.
The Father and the Mother each be restrained from causing the child to have or use any surname other than the surname Addington.
The Mother be permitted to have the child christened in the Danish Church on condition that:
9.1the Father be at liberty to nominate a member of the clergy to co-officiate the ceremony;
9.2the Father nominate one of the two godparents for the child;
9.3the child be christened as … Addington.
Both parties do all acts and things and execute all documents necessary to remove the name of the child from the Airport Watch List.
The child be permitted to travel to Europe with the Mother each year during the July school holiday period, which holiday period shall be in accordance with the calendar for D School.
Both parties be at liberty to otherwise travel overseas with the child provided they have the written consent of the other party, which consent shall not be withheld unreasonably.
It be noted that it is intended that the Father will also have the opportunity to travel overseas for holidays periods with the child.
In the event either party does not consent to the child travelling overseas with the other party then the party who does not provide consent shall be responsible for the care of the child during the other party’s absence.
In the event that either the Father or the Mother wish to travel for more than three hours outside the Sydney metropolitan area with the child each of them shall provide to the other one weeks notice in writing of the itinerary including flight numbers and dates of departure and return, accommodation details and contact details for the entire absence of the child from the Sydney metropolitan area.
Both parties do all acts and things and execute all documents necessary to complete the enrolment of the child at D School from 2009 until completion of her secondary school education.
In the event that either parent is unable to have time with the child in accordance with these Orders then the parent shall provide to the other parent fourteen days notice in writing.
The parties provide each other with information regarding:
18.1Any medical emergency involving the child such as serious illness, accident or hospitalisation as soon as practicable.
18.2The general health of the child such as medical appointments, progress test results and details of any treatment.
18.3Occasions or events of special significance to the child or either party.
Each parent do all things necessary to authorise:
19.1the child’s school, pre-school or any child care facility to provide to the other party information or documents including photos, newsletters and notices upon request of the other party.
19.2Medical practitioners or specialists to provide to the other party information or documents including medical reports and details of any treatment upon request of the other party.
The Mother to notify the Father in writing of any change to her residential address and telephone number.
The Father to notify the Mother in writing of any change to his residential address and telephone number.
Each party be and is hereby restrained from saying anything to or in the presence or hearing of the child which is in any way derogatory of the other.
Pursuant to s 65DA(2) and s 62B 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The application by the Mother for payment of school fees be adjourned for hearing on a date to be arranged with the Listing Co-Ordinator.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4035 of 2006

Mr Addington

Applicant

And

Ms Koldsjor

Respondent

REASONS FOR JUDGMENT

Before me for hearing are applications for final parenting orders. The Applicant I shall refer to as the Father. The Respondent is the Mother. The proceedings were commenced by application filed by the Father on 11 October 2006.
The Father was born overseas in May 1965. The Mother was born in February 1964 in Denmark. The parties were in a de-facto relationship from September 2002 and have one child of this relationship, (“the child”) who was born in October 2003. They separated on 1 February 2006.
The Mother was married previously to a Mr Koldsjor who was born in November 1957. Mr Koldsjor died in July 2001. The Mother and Mr Koldsjor lived in Australia in the early years of their marriage and their child S was born in Australia in January 1997. The couple moved to Europe for Mr Koldsjor’s work when S was one year and three months old. The family lived in Europe until Mr Koldsjor died and the Mother and S returned to Australia to live when S was five years and six months old. S was approximately seven years of age when the Father and the Mother met and commenced living together.
I had the benefit of a Family Report.
The Father told the Family Consultant, and confirmed before me, that he would prefer an equal time arrangement with the child living one week with him and one week with the Mother but, he has not applied for this, as he believes the Mother would fight this and extend the Court case. The Family Consultant said that the Father says that he is doing all the picking up and dropping off of the child as the Mother refuses to do this. The Family Consultant said that the Mother claims that it is too difficult for her, with the two children, to organise driving the child to and from the Father’s house.
The Father had initially sought that based on a two week cycle the child live with him, in week one from Friday at 5:00 pm until Monday at 9.00 am and in week two from Tuesday at 5:00 am until Thursday at 9:00 am. He then sought that the child live with him, in week one from Friday at 5.00 pm until Tuesday at 8.00 am, and in week two from Sunday at 8.00 am until Tuesday at 8.00 am. There was also a proposal that the child live with him in each alternate week until Wednesday. He sought other orders that I need not repeat. I initially received from the Father a document in which he provided a comparison of the orders sought by each party.
The Mother seeks the following:
1A.The parties to have the joint long-term parental responsibility for the child of the parties namely […], born […] October 2003 (“[the child]”).
1B.[The child] shall live with the Respondent Mother and the Respondent Mother shall have responsibility for [the child’s] day-to-day care, welfare and development when she lives with her.
3.[The child] shall spend time with the Applicant Father as follows and during all such periods the Applicant Father shall have responsibility for [the child’s] day-to-day care, welfare and development.
2.1.Regular Routine
[The child] shall spend time with the Applicant Father save and except during all holiday periods and special events as provided by these Orders as follows:-
(a)In each alternate week a block period from 5.00pm Friday to 3.00pm Tuesday commencing 7 September 2007;
2.2Holidays
(a)Prior to [the child] commencing school in 2009:-
(i)As per Order 2.1 save and except during the July [D] school holidays and from 23 December to the commencement of the school term when Order 2.1 shall be suspended;
(ii)From 5.00pm on 5 October 2007 until 5.00pm on Wednesday 10 October 2007;
(iii)5.00pm on 11 January 2008 until 5.00pm on Friday 18 January 2008;
(iv)5.00pm on 26 January 2008 until 5.00pm on Friday 1 February 2008;
(v)5.00pm on 18 April 2008 until 5.00pm on Friday 25 April 2008;
(vi)5.00pm on 3 October 2008 until 5.00pm on Friday 10 October 2008;
(b)From January 2009 being the year [the child] commences school:-
The regular routine set out in Order 2.1 shall be suspended save and except from the last day of the final school term in each year until 23 December in each year;
(i)April school holidays
For half of the school holidays by agreement, and failing agreement for the first half in even numbered years and the second half in odd numbered years;
(ii)September school holidays
For the whole of the September school holidays;
(iii)December/January school holidays
For half of the period between 30 December and the first day of school term in the following year with the Applicant Father to have the first half in even numbered years commencing from 5.00pm on 30 December 2008 and the second half in odd numbered years;
2.3.Special events:
(a)Father’s Birthday / Father’s Day
(i)From 5.00pm on the day preceding the Applicant Father’s birthday to 9.00am on the day following his birthday;
(ii)On the weekend of Father’s Day from 5.00pm Saturday to 9.00am on the following Monday;
(b)[The child’s] Birthday
(i)From 6.00pm on [the child’s] birthday until 9.00am the following day;
(c)Easter
(i)From 5.00pm on the Thursday immediately preceding Easter until 5.00pm on Easter Saturday in even numbered years and from 5.00pm on Easter Saturday until 5.00pm on Easter Monday in odd numbered years;
(d)Christmas
(i)From 9.00am on 25 December until 12 midday on 26 December in each year and the Respondent Mother shall deliver [the child] to the Applicant Father at the commencement of the period and the Applicant Father shall return [the child] to the Respondent Mother at the cessation of the period.
4.      Such other times as may be agreed between the parties.
5.      [The child] to be returned to the Respondent Mother
In the event that [the child] would otherwise be in the care of the Applicant Father, [the child] shall return to live with the Respondent Mother on the following special occasions:-
4.1From 5.00pm on the day preceding [the child’s] birthday until 6.00pm on the day of her birthday;
4.2From 5.00pm on the day preceeding each of the birthdays of the Mother and [S] (being [the child’s] sister) until 9.00am on the day following each of the birthdays;
4.3From 5.00pm Saturday until 9.00am Monday on the weekend of Mother’s Day;
4.4From 5.00pm on 23 December until 9.00am on 25 December in each year;
4.5From 12 midday on 26 December until 5.00pm on 30 December each year.
Collection and return of [the child]
6.      The Respondent Mother shall collect [the child] at the cessation of periods that [the child] shall spend time with the Applicant Father in accordance with Order 2.1 at 3.00pm from [the child’s] preschool or school and shall deliver [the child] to the Applicant Father’s residence each Christmas Day. The Applicant Father shall collect [the child] from and return [the child] to the Respondent Mother’s residence on all other occasions.
Telephone communication
7.      The Applicant Father and the Respondent Mother shall each be entitled to daily reasonable telephone contact with [the child] when she is in the care of the other party.
Change of [the child’s] name to [Koldsjor-Addington]
8.      The Applicant Father to do all things necessary and sign all documents necessary to cause [the child] to be re-registered on her birth certificate as [… Koldsjor-Addington].
9.      In the event the Applicant Father fails to comply with Order 7 then a Registrar of the Family Court of Australia be appointed in his stead to do all things necessary and sign all documents necessary to comply with Order 7.
Removal from the Airport Watch List
10.    Both parties do all things necessary and execute all documents necessary to remove the name of [the child] from the Airport Watch List.
11.    In the event the Applicant Father fails to comply with Order 9 then a Registrar of the Family Court of Australia be appointed in his stead to do all things necessary and sign all documents necessary to comply with Order 9.
Travel
12.    [The child] shall be permitted to travel to Europe with the Respondent Mother each year during the July school holiday period, which holiday period shall be in accordance with the calendar for [D] School.
13.    Both parties shall be at liberty to otherwise travel overseas with [the child] provided they have the written consent of the other party, which consent shall not be withheld unreasonably.
14.    In the event either party does not consent to [the child] travelling overseas with the other party then the party who does not provide consent shall be responsible for the care of [the child] during the other party’s absence.
15.    In the event that either the Applicant Father or the Respondent Mother wish to travel for more than three (3) hours outside the Sydney metropolitan area with [the child] each of them shall provide to the other one (1) weeks notice in writing of the itinerary including flight numbers and dates of departure and return, accommodation details and contact details for the entire absence of the child from the Sydney metropolitan area.
Christening of [the child]
16.    The Respondent Mother be permitted to have [the child] christened in the Danish Church.
Schooling and school fees
17.    Both parties do all things necessary and execute all documents necessary to complete the completion of her secondary school education.
18.    There be a departure in relation to the Applicant Father’s Child Support liability:
17.1The Applicant Father to pay half of the educational expenses including private school fees and related school expenses, school uniforms and extracurricular activities referable to [the child] at [D School] from 2009 until completion of [the child’s] secondary schooling.
19.    The departure is made on the following grounds:
18.1In the circumstances of the case the assessment has resulted in an unjust and inequitable determination of the level of child support because of the Applicant Father’s income, earning capacity and financial resources;
18.2In the special circumstances of the case the costs of maintaining [the child] are significantly affected because [the child] is being care for and is to be educated in the manner that was expected by both parties.
Other Orders
20.    In the event the Applicant Father is unable to have time with [the child] in accordance with these Orders then the Applicant Father shall provide to the Respondent Mother fourteen (14) days notice in writing.
21.    Each party shall immediately notify the other of any serious illness, injury or medical emergency in respect of [the child].
22.    Each party be and is hereby restrained from denigrating the other in the presence or hearing of [the child].
23.    The Applicant Father pay the Respondent Mother’s costs of and incidental to this Application.
The Mother seeks that the arrangements put in place by Interim Orders made on 21 December 2006 remain the same. The Family Consultant said that the Mother said that she is prepared, as time goes on and the child becomes older, for the child to spend more and more time with her father. The Mother said that she is prepared to be flexible about these arrangements.

The Family Consultant said that the Mother said that, as the child is only three, until recently she had spent only limited overnight time with her father, being one night every second weekend and on the other weekend, only daytime “contact”. The Mother said that she is happy for the child to spend more and more time with her father as she gets older as long as he looks after her and does not send her off to be looked after by relatives as he has done in the past.
The Family Consultant said that the issues in dispute are:
•The amount of time the child should spend with her father.
•Whether S should spend time with her stepfather.
•Whether the child should be christened in the Danish Church.
•Whether the child should take the name Koldsjor-Addington.
There is also an issue about the Father taking the child overseas.
The Family Consultant made the following recommendations:
·The parents have equal shared parental responsibility for the child and that the Mother have sole parental responsibility for S.
·The arrangements in the Interim Orders, dated 21 December 2006, remain the same except for one change, that is: in week one the child spend time with the Father from 4.00 pm on Friday until 9.00 am on Monday morning and in week two from 5.00 pm on Tuesday until 9.00 am on Wednesday and at all other times live with the Mother. This time could be expanded as the child gets older and when the child commences school she can spend more time with her father during the school holidays.
·S spend time with the Father only if she requests to do so.
·The child be christened in the Danish Church.
·The child’s middle name be dropped and that her surname be hyphenated, using both surnames.
The child in now four years of age and will commence school in 2009.
The Father is in full time paid employment. The Family Consultant reported that the Mother said that she is a full-time mother at the moment and that she had trained in medicine but does not intend to return to it. She said that she hopes to find paid employment that will fit around the children’s school hours when they are older.
On behalf of the Father I had evidence from YG and NC and they were not required for cross-examination.
The Father appeared without legal representation and the Mother was represented by counsel.
The Mother and the Father live in suburban Sydney. The parties live in reasonable proximity to each other.

RELEVANT PRINCIPLES

For a discussion of the relevant provisions of Pt VII of the Family Law Act 1975 (Cth) see Goode and Goode (2006) FLC 93-277.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Good and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met. These objects are, first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential; and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) and they are, except when it is or would be contrary to the best interests of a child. First, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth, that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at p 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make. I observe that in Mazorski v Albright (2007) 37 Fam LR 518 Brown J dealt with the additional considerations (at 543-550) before her Honour dealt with the primary considerations (at 550- 551).
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.
In conclusion, as Brown J said in Mazorski v Albright (supra) at 523 the Act places far more emphasis on the importance of substantial parental involvement in their children’s lives. Her Honour said, with which I agree, at 524:
[15]…There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
and at 526:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

BACKGROUND

In 1994 the Mother and her then husband migrated to Australia.
S was born in January 1997.
In May 1998 the Mother and her husband travelled to the United Kingdom and France as a consequence of the husband’s work.
In 1998 the Father commenced to reside in Australia.
In July 2001 the Mother’s husband died in France.
In May 2002 the Mother and S returned to reside in Australia. The Mother enrolled S at D School. The child continues to attend this school.
The Family Consultant reported that the Mother said it had been quite hard for S to come back to Australia to live as she had had very little English at the time although she said that the child quickly learnt to speak the language. The Mother said that she had chosen a very good school, D School, for S to attend and added that the school has been caring and helpful with the child’s education. She said that S now speaks English as well as the other children in her class and that she has a lot of good friends and enjoys school enormously.
In September 2002 the Mother leased premises.
The parties commenced cohabitation in September 2002.
The Family Consultant reported that the Mother claimed that she had made a decision to return to Australia instead of going back to Denmark to live, after her husband died, because she believed Australia would be a better place to bring up her daughter. She said that falling pregnant with the child was not planned and that she and the Father had discussed termination but decided against it. The Mother maintained that her relationship with the Father had been turbulent from the very beginning and had only lasted about three years. She said that their arguments had been very heated, which she believed was not good for the children, and that that was why they decided to separate.
In January 2003 the Father commenced full-time employment working long hours and travelling interstate.
In early 2003 the Mother became pregnant.
In May 2003 the Father requested the Mother terminate the pregnancy.
In May 2003 the parties commenced to consult with Ms W, Psychologist.
In June 2003 the Mother and S travelled to Denmark for approximately one month on their annual trip to visit the Mother’s family.
In October 2003 the Mother instructed lawyers to prepare a Cohabitation Agreement.
In October 2003 the child was born.
In March 2004 the parties entered into a Cohabitation Agreement excluding the Father from any responsibility for S.
In June 2004 the Mother and the children travelled to Denmark for one month to visit the maternal family.
In September 2004 the parties’ relationship deteriorated.
In November 2004 the parties commenced counselling with Dr P.
In June 2005 the Mother and children travelled to Denmark for one month. The parties’ relationship continued to deteriorate.
On 7 November 2005 the parties agreed to separate.
In January 2006 the Mother told the Father that she had found alternate accommodation.
The parties separated in February 2006. In February 2006 the Mother and the children moved to their current residence.
In March 2006 the Mother sought to put in place some ongoing contact arrangement for the child and the Father.
In May 2006 the Mother’s solicitors confirmed arrangements for the Father to have time with the child each week from 10.00 am on Saturday to 10.00 am on Sunday in week one and 7.30 am to 4.00 pm on Sunday in week two.
In September 2006 the Mother informed the Father of her intention to travel to Denmark with the children. The Father objected, but ultimately the Father agreed.
In October 2006 the Mother and the children travelled to Denmark.
On 11 October 2006 whilst the Mother was in Denmark the Father made an application for final orders and interim orders in respect of both the child and S.
On 8 November 2006 a Case Assessment Conference was held. The matter was stood over to 23 November 2006.
On 19 December 2006 orders were made, by consent, for the child to have time with the Father over Christmas and New Year and thereafter:
1.Each alternate weekend from 4.00 pm on Friday to 5.00 pm on Sunday; and
2.Each alternate Tuesday from 5.00 pm to 9.00 am on Wednesday.
In summary, prior to the current Interim Orders, the child lived with her father for four nights per fortnight. The Interim Orders state that the child should live with her father, in week one from Friday evening until Sunday evening, and in week two for the Tuesday evening. The child lives with her mother the rest of the time. The Family Consultant said that these arrangements have engendered a lot of tension and distress as the Father is not happy with them.
On 23 February 2007 I made the following orders:
1.Pursuant to s 62G Family Law Act 1975 (Cth), Ms [M] prepare a report relating to the care, welfare and development of the child […] born […] October 2003 and [S] born on […] January 1997.
2.In preparing the report the Family Consultant is directed to consider the matters set out in s 60CC of the Family Law Act, and matters raised in discussion today.
3.The parties attend all appointments fixed by the Family Consultant and to ensure that the subject child/ren attend all such appointments with the Family Consultant as may be required.
4.The Family Consultant has leave to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to at least one party in this matter.

On 2 March 2007 a letter was sent on behalf of the Mother to the solicitors for the Father seeking the Father’s agreement to enrol the child at D School in 2009. On 22 March 2007 a further letter was sent to the solicitors for Father in relation to D School.
On 2 April 2007 the Father commenced to act on his own behalf.
On 2 May 2007 I released a copy of the family report to the parties.
On 23 May 2007 I made the following orders:
1.A copy of today’s transcript be taken out.
2.Each of the parents will file and serve by 4.00 pm on 31 July 2007 an affidavit setting out his/her evidence in chief in relation to the issues identified in discussion today.
3.Each of the parents file and serve by 4.00 pm on 31 July 2007 an affidavit setting out the evidence in chief of each lay witness that each parent proposes to call at the hearing again dealing with the issues identified in discussion today.
4.It be NOTED that the Mother proposes to call evidence from two lay witnesses dealing with the issue of the relationship of the Father and [S].
5.The Father shall provide to the solicitor for the Mother within 14 days of today’s date written notice of the names of the lay witnesses whom he proposes to call at the hearing and the issues that their evidence is directed to.
6.Each of the Father and Mother file and serve by 4.00 pm on 31 July 2007 a financial statement in accordance with the Family Law Rules.
7.The matter be listed for a further two days before me on 5 and 6 September 2007.
8.The matter be listed for mention before me at 9.30 am on Friday 3 August 2007.
9.Arrangements be made for the Family Consultant to be available for examination at the further hearing in September 2007.
On 3 August 2007 I noted that all material had been filed and that it was anticipated that the matter should conclude within one day.
The Father contended that since mid September 2007 he has experienced difficulties having telephone conversations with the child.
On 27 October 2007 the Father sent an e-mail to the Mother asking if she still opposed the Father taking the child overseas in November 2007. On 31 October 2007 the Mother sent an e-mail to the Father and confirmed that the Father was travelling overseas. On 31 October 2007 the Father sent an e-mail to the Mother and confirmed that she refused to allow the child to go with the Father overseas and that he assumed that while he was away the Mother would care for the child.
The Father travelled overseas on 1 November 2007 and was absent from Australia until 16 November 2007. He had planned this trip some time before and sought orders that he be able to take the child with him. The Father wanted the child to meet members of the paternal family. The Mother opposed the child going with the Father because of her concern about the level of violence overseas. The Father had sought to have the child in his care for a period of 15 days and the Mother also contended that this period of time was too long for the child to be away from her.
The Mother travelled to Denmark on 2 November 2007 and was absent from Australia for eight days.
On 4 November 2007 the Father ascertained that the Mother had travelled overseas and left the child in the care of a friend. The Mother gave no prior notice to the Father or requested that he care for the child while she was overseas. The Father gave evidence explaining how he ascertained the Mother had left Australia and what he did to ascertain why the Mother had left Australia and who was caring for the child. The Mother sent an e-mail to the Father and said that she had “an urgent need to travel to Denmark for family reasons”. In an affidavit the Mother swore on 20 December 2007 she contended that the purpose of the trip was to provide assistance to her first mother in law. The Mother gave no evidence explaining what assistance she was required to give or why she had to give it. The Father spoke to the Mother’s parents and although they were aware the Mother was in Denmark they did not know where the Mother was or what her circumstances were.
On 11 December 2007 I made the following orders:

1.The Wife will endeavour to file and serve by 4 pm on 20 December 2007 an affidavit in reply to the affidavits of the Husband sworn on 7 November 2007.

2.The matter be listed for mention by telephone conference facility at 9.30 am on 21 December 2007.

Note

It be noted that a copy of the Wife’s proposed affidavit will be emailed to the Husband and I note that the lawyers for the Wife do have the relevant email address.

On 21 December 2007 I made the following orders:
1.The child […] born on […] October 2003 spend time with the Father as follows:

1.1    from 9-00 am on 25 December 2007 until 5-00 pm on 1 January 2008;
1.3    from 4-00 pm on 8 January 2008 until 9-00 am on 9 January 2008;
1.4    from 4-00 pm on 11 January 2008 until 5-00 pm on 13 January 2008.
1.5    from 4.00 pm on 22 January 2008 until 5.00 pm on 1 February 2008.

The Mother may have travelled overseas between 22 January and 2 February 2008 and during this period the child was cared for by the Father.

STATUTORY CONSIDERATIONS

In this case I have already identified the competing proposals. It is apparent from what I have set out in relation to the proposed parenting regimes where the parties are at issue.
There are a number of agreed relevant facts. There are a number of relevant facts which are in dispute.
I propose to first deal with each of the 13 additional considerations in s 60CC and then deal with the two primary considerations in that section having regard to the objects and principles of Pt VII of the Family Law Act. I will then consider whether the presumption of equal shared parental responsibility does not apply having regard to the matters in s 61DA(2) or if it is rebutted having regard to s 61DA(4). If the presumption does apply and it is appropriate that it be applied and it has not been rebutted then pursuant to s 65DAA I will consider whether the child is to spend equal time or substantial and significant time with each parent.
However before proceeding I will refer to some of what the Family Consultant said about the parents and the children. In doing so I will identify three matters. First, the nature of the relationship between the parents. Second, the relationship between the Father and S. Third, the relationship between the Father and the child.
As to the first matter the Family Consultant said that when she interviewed the parents it was obvious to her that the parents have great difficulty communicating. The Family Consultant said that both parents made accusations of reported past wrongdoings, complaining about each other. The Mother spoke at great length about their past history and about how she could not imagine their being able to communicate at all well in the future. She described the Father as manipulative and controlling. The Father described the Mother as lying and as embellishing stories to fit her case. The Family Consultant said that it was very difficult to bring the parents’ focus to the children’s future and their relationships with each parent.
The Family Consultant reported that the Mother pointed out to her, as she had observed in the joint interview, how difficult it is for the parents to get along as they have opposing views on everything.
The Family Consultant said that both parents are very focussed on past events and seem unable to overcome their anger towards each other. She said that unfortunately this makes it very difficult for them to come to any sensible agreement about the child’s future. The Mother emphasised that the Father does not really spend much time with the child but has taken her to stay with his relatives and she believes that the Father is not available in the daytime for the child. The Mother told the Family Consultant that, if the child is at pre-school or is staying with the Father’s relatives, this is disruptive for her.
I agree with what the Family Consultant said about both parents and their inability to communicate with each other and also their inability to focus on the best interests of the children. This in turn reflects on the capacity of each of them to care for the children and their attitude to the children and the responsibilities of parenthood.
As for the second matter the Family Consultant said that the Father said that he believes that he is not only a good father to the child, but also to S. The Father said that he does not know why his stepdaughter refuses to spend time with him. He works as a professional and that although he works very hard, his time is flexible and he is able to work around the children’s school hours if he needs to. He said that the time he spends with the child is very limited and he would like to have an extension of his weekend time to include Monday so that the child could sleep four consecutive nights at his house. He claimed that it would be ideal for him to have the child for one week on and one week off but he believes his relationship with the Mother would make this impossible.
The Family Consultant reported that the Father said that he has been a good stepfather to S and that he believes that she loves him. He said that his brother’s children are around the same age as S and that these cousins do not understand why S is no longer part of their life. The Father maintains that he has taken S on school excursions, camping trips and swimming lessons and said that he finds it confusing that she does not want to see him now. The Father accused the Mother of poisoning S against him. He claimed that he has never treated S and the child any differently from each other and he denies that he ever yelled at S about her homework, as was alleged by the Wife and S.
The Family Consultant reported that the Mother emphatically denied that the Father treats S the same as he treats the child. The Mother claimed that she has been the sole caregiver to S since her father’s death and that she has had sole responsibility for her education, financial support and emotional and physical care. She said that any time S needed help with her homework, she would ask the Mother as she was fearful that the Father would get angry at her not understanding some concepts.
The Family Consultant interviewed each of the children. The Family Consultant said that S presented as a happy, articulate little girl. Her English is extremely good and she has no sign of an accent. The Family Consultant asked her whether she would like to see the Father in the playroom. The Family Consultant reported that S looked fearful, shook her head and said, “No, I don’t want to see him”. The Family Consultant saw no point in pursuing this and took S into one of the interview rooms. The Family Consultant said that S said that she does “not trust” the Father and that she believes that he does not really care about her. S said that she was very happy that her mother had broken up with the Father because it was very hard and confusing living with them and “everyone was fighting”. She said that now she, her mother and little sister are happy. S claimed that her happiness was also due to the fact that the Father could “no longer yell at her”.
The Family Consultant reported that S said that she knows that the Father believes that her mother prevents her from going to see him, but that this is not the case. She said that the Mother encourages her to go and see the Father as often as she wants, but that she has made up her mind that she does not want to see him. S stated that when the child comes home from seeing her father, she tells her about all the wonderful things that they have done during the day. S said she feels envious that the child has a father to do things with but she does not see the Father as her father and she does not want to go with him. S added that she has a lot of fun with her mother and that they have a lot of “girly nights” and that everything works well at home.
Although the Father cannot understand why S does not want to have anything to do with him, he agreed to drop his application to have her spend time with him. He was adamant however, that S be told that if she changes her mind, she is very welcome to spend time with him. S was very distressed at the notion of spending time with the Father. She talked about her fear of being with him and her body language indicated that she has an aversion to him at the present time. The Mother is also very clear that there be no pressure put on S to go with her stepfather. She feels that S has not grieved properly for her own father and that, in time, she may need professional help for this.
The Father told me that he wants S to know that she is welcome to come with the child to visit him at anytime. He added that, if S does not want to come with the child, he would drop this part of his application, as he does not want to put pressure on her.
I am going to proceed on the basis that S does not want to spend time with the Father. Further that given this attitude of this child I do not have to deal with any aspects of the welfare of this child. I also make no findings as to why S has this attitude towards the Father. It may be that it is a reflection of the very high level of conflict between the parents. It may be that it is a reflection of the attitude of the Mother. I note however that the Father has no objection to S also accompanying the child when the child lives with the Father.
As to the third matter the Family Consultant observed the child with the Father and said that the child appears “…[t]o love her father very much”. When he came into the playroom the child ran towards him, hugged him and held onto him. The Father settled himself on the floor and began playing games with the child. The Family Consultant said that at the time of leaving, the child, sitting on her father’s lap, said that she did not want to leave him and go with her mother but the Father encouraged her and said that it was time to go but that he would see her that afternoon. The child reluctantly let go of her father, giving him a hug and waving as she walked away with her mother.
As I have already noted the Family Consultant said that S stated that when the child comes home from seeing her father, she tells her about all the wonderful things that they have done during the day. Further that S said that she understands that the child loves her father and she is happy that the child has a good relationship with him.
The Family Consultant also said that she observed the child with her mother when they played together in the playroom and she and the Mother appear to have a loving relationship.

Additional considerations

I am required to consider any views expressed by the child and any factors, such as the maturity or level of understanding of the child, that I think are relevant to the weight I should give to the views of the child. Section 60CD sets out how I may inform myself of views expressed by a child. However, I am not permitted to require a child to express views in relation to any matter: see s 60CE.
Notwithstanding the age of the child I have no doubt that she wants to spend time with the Father.
I am required to consider the nature of the relationship of the child with each of the parents and other persons including any grandparent or other relative of the child.
I am satisfied that the child has a very close and loving relationship with both her parents.
I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. In this context, as provided by s 60CC(4) I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her obligation to maintain the child. If the parents have separated then pursuant to s 60CC(4A) I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
There are some aspects of this matter that concern me particularly given the very high level of conflict between the parents and their inability to focus on the best interests of the child. However, overall I accept that both parents have a willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
I am required to consider the likely effect of any changes in the circumstances of the child including the likely effect on the child of any separation from either parent or any other child or other person including any grandparent or other relative of the child, with whom the child has been living.
The Mother relies upon this matter. She seeks that the amount of time the child spends with the Father should be phased in. However, in my view I do not consider that this matter is important, whatever orders I make, given the nature and strength of the relationship of the child with the Father.
I am required to consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the right of the child to maintain personal relations and direct contact with both parents on a regular basis.
Again, I am concerned about the effect of the very high level of conflict between the parents and whether that may affect the child spending time with both parents. However, overall I am of the view that there are not material practical difficulties and expense of the child spending time with and communicating with each parent
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs.
Overall I am satisfied that both parents have the capacity to provide for the needs of the child, including emotional and intellectual needs. However I am concerned about the inability of the parents to focus of the interests of the child.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of the child and of either of the parents and any other characteristics of the child that I think are relevant.
It is important for the child to have the opportunity to be exposed to the culture and traditions of both her parents.
I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, as provided by s 60CC(4), I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her obligation to maintain the child. If the parents have separated pursuant to s 60CC(4A) I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.

Overall I am satisfied that both parents have an appropriate attitude to the child and to the responsibilities of parenthood. However again I am concerned about their inability to focus on the interests of the child.
I am required to consider any family violence involving the child or a member of the child's family. I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Family Law Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. Pursuant to s 60CF the parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2). This matter is not relevant.
I am required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
This matter is of some concern given the matters I have already identified about the relationship of the parents and their attitudes. There may be further litigation whatever I do.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing more I need to say as this point.

Primary considerations

I am required to consider the benefits to the child of having a meaningful relationship with both of the parents. This is a significant matter.
I am required to consider the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. With the exception of the issues the Mother raised about the level of violence overseas this matter is not relevant.

PARENTAL RESPONSIBILITY

The Family Consultant said that equal shared parental responsibility of the child was discussed and agreed to by both parents although there are some concerns about their ability to communicate with each other.

TIME SPENT WITH EACH PARENT

School term

The Family Consultant said that it is hard to see how an equal time arrangement could occur, given that the parents have such difficulty communicating with each other. I agree.
The Family Consultant was of the opinion that the Orders made in December 2006 appear to take into account the child’s age and they have been adhered to until now. The Father wants to have four nights on one weekend with the child, that is, to have her on Monday instead of Tuesday night. The Mother disagrees with this, stating that she takes the child to ballet on Monday afternoon.
The Father claimed that his application to have the child on a Monday night and not a Tuesday was because he wanted to have his daughter for four nights in a row. He claimed that the Mother disagreed with this idea as the child went to ballet on Monday afternoon and she said that he could not pick her up from ballet because of his work. The Family Consultant said that when discussing this with the Father he said that he could not take the child to ballet on Monday or any other day unless it was after 4:30 pm as he is too busy at work.
In written submissions on behalf of the Mother it was stated that a block period in each alternate week from 5:00 pm on Friday to 3:00 pm on Tuesday is in the child’s best interest.
The Family Consultant reported that the Mother stated that she has no objection to the child spending time with the Father and added that she has tried to include him as much as possible. However, she said that the Father works very long hours and that, when they were living together, he sometimes came home after the children had gone to bed. She said that she could not see how he would manage to spend a great deal of time with the child if he was given more time by the Court because she said that he would send the child to pre-school or to be looked after by relatives.
There was a deal of argument about various matters which I am not going to address including times for collection and return, extra curricular activities and other commitments. The issues are reflective of the conflictive relationship of the parents rather than matters that are material to the best interests of the child. I am going to proceed on the basis that when the parents tell me that they would do all that was necessary in the best interests of the child I can assume that they would.
I am of the opinion that it is in the best interests of the child to spend substantial and significant time with the Father. I am therefore going to order that in 2008 in each 14 day period the child live with the Father each alternate week from 5:00 pm on Friday to 3:00 pm on the following Tuesday. Then when the child commences school in each 14 day period the child live with the Father each alternate week from 5:00 pm on Friday to before school on the following Tuesday, and in the other week from 4:00 pm on Tuesday to 9:00 am or before school on the following Wednesday. Thus the child will live with the Father for five nights in each 14 day period and at all other times with the Mother.

School holidays

The Mother seeks that the holidays should primarily be shared however with the Mother having the whole of the July school holidays so that the children may continue to travel to Europe with her to visit extended family each year. The Mother proposes the Father have the whole of the September school holidays in lieu.
The Mother seeks a sharing of Easter with a changeover on Saturday to ensure that the Mother and the children are able to attend Church on Easter Sunday. As to Christmas it is the Mother’s contention that Christmas Eve is very special for her and the children. She and the children have celebrated each Christmas Eve in accordance with Danish culture including attending church on Christmas Eve. The Mother proposes delivering the child to the Father at 9:00 am on Christmas Day so that she may continue to have the traditional Christmas Day with the Father as she has done to date. The Father seeks that in each alternate year he have the opportunity to have the child with him on Christmas Eve and thus be in his care on Christmas morning. The approach of the Father is reasonable.
I am of the view that the school holiday periods should be shared equally and I see no reason why this should not commence now. However the Mother seeks to have all of the mid year holiday so that she can travel to Denmark with the children to visit her family. The Mother has done so for some years. The Father would like to take the child skiing. I am going to make the orders sought by the Mother but on the basis that the Father has the child in his care for all of the September holidays.
I am going to make an order reflecting what the Mother seeks for Christmas Eve given the traditions of Danish culture which the Father acknowledged. However I am not prepared to make the order sought by the Mother about the Easter period.

Transportation

As to the responsibility of transportation of the child the Mother proposes collecting the child at the cessation of the period that the child spends with the Father at 3:00 pm from either the child’s preschool or school and that she would deliver the child to the Father each Christmas Day. The Mother proposes that otherwise the Father to be responsible for the collection and return of the child to the Mother’s residence.
I am of the view that the responsibility for the transportation should be shared. I am going to make an order that the Father collect the child at the commencement of the periods the child is to live with him and the Mother collect the child at the commencement of the periods the child is to live with her.

OTHER ISSUES

Change of name to Koldsjor-Addington

It is the Mother’s contention that the child should carry not only her Father’s name but also the Mother’s name, particularly as it is also the name of her sister.
The Family Consultant said that the Mother said that she believes that it is important that the child have the same last name as her mother and sister and that she also have her father’s name. The Mother said she knows that Koldsjor-Addington is a big surname but thought that the child could drop her middle name and become … Koldsjor-Addington. The Family Consultant said that the child resides primarily with her Mother and it is in the child’s interest that the community in which the child lives relate to the children as sisters. The Family Consultant said that many people have hyphenated surnames so if the child’s middle name is dropped, as suggested by the Mother, then a hyphenated surname is not too cumbersome.
For reasons I have already given there are concerns in this matter particularly the relationship of the parents and the attitude of each of them to the relationship of the child with the other parent. There are also issues about what appears to be an estrangement between the Father and S. Both parents have to recognise that the child has to have a meaningful relationship with both parents and do nothing to suggest that such relationships are not important. I do have some concerns about the attitude of the Mother and her attitude towards the relationship of the child and the Father. The Mother is not seeking that the child adopt her maiden name but her first married name. The Mother may re-partner and nothing has been said as to what may then happen. Thus the primary reason for the proposal appears to me to be because the surname of S is Koldsjor.
In all the circumstances, I am not persuaded that it is in the best interests of the child that her surname be Koldsjor-Addington. I am of the view that it is in the best interests of the child that her surname remain as Addington.

Christening

It is the Mother’s contention that the child should be christened in the Danish Church of which she and the children are members. The sacrament could include the Father and a priest from a church nominated by the Father. It is the contention of the Mother that each party should select a person to be a godparent for the child and that S be the godmother holding the child throughout the ceremony.
The Family Consultant recorded that the Mother said that she wants the child christened in the Danish Church because this is the church that they attend and where they have made a number of friends in the congregation.
The Family Consultant said that the Mother is a regular churchgoer and takes the children with her to the Danish Church. The Father does not attend church regularly although he said he has been to the Anglican Church about three times. The Family Consultant said that given this, the Mother’s affiliation seems reason enough for the child to be christened in the Danish Church.
I am of the opinion that the child should be christened in the Danish Church of which she and the Mother and S are members. The Sacrament should include the Father and a clergyman from a church nominated by the Father. The Father can also select a person to be a godfather for the child. I note that the Mother proposes that S be the godmother.

Removal from the Airport Watch List and travel overseas

It is the Mother’s contention that it is unnecessary to have the child remain on the Airport Watch List. It is the Mother’s contention that she and the children travel annually to Denmark to visit extended family and it is her intention to do so on an ongoing basis.
The Mother opposes the child travelling overseas with her father at this time given the high level of crime, noting that their destination has been classified as one of the most dangerous countries.
I did not make orders allowing the Father to take to the child on a holiday overseas in November 2007. However I am of the view that henceforth the Father should have the opportunity, from time to time, to take the child overseas. The Father has what he described as a “whole family network” overseas including a grandmother and it is in the best interests of the child that she has the opportunity to have a relationship with members of the paternal family. I accept that there are areas where there may be a concern about the level of violence. However I also accept that the Father would ensure that the child was not taken to areas where the child may be at risk of harm and that he would take all steps to protect the child. It may also be that he would like to take the child for a holiday in other countries.
I propose that both parents should have the opportunity to travel overseas with the child. However each parent must always give adequate notice of the proposed trip and information about arrangements for the care of the child while overseas. This is to include when the Mother takes the child to Denmark during the mid year school holidays.

Schooling and school fees:

It is the Mother’s contention that the child should attend D School from 2009 in accordance with the joint application completed by her and the Father. It is the Mother’s contention that the child should attend the same school as her sister. Until approximately March 2007 the Mother contends that she believed the child would attend D School and has supported the child in her belief that she would be attending D School. It is the Mother’s contention that the Father has the financial ability to meet half of the costs of the child’s schooling as sought by her. It is the Mother’s contention that she otherwise meets the majority of the day-to-day expenses for the child.
I am of the view that the child should attend D School as and from the commencement of the 2009 school year. The parents can of course agree on some other arrangement. It is in the best interests of the child that she attend the same school as her sister. The school is also within reasonable proximity of the residence of each parent.
As to the financial circumstances of each parent the Father swore a Financial Statement on 31 July 2007 and the Mother swore such a statement on 3 July 2007. The Father has a total average weekly income of $4,731. The Mother has a total average weekly income of $2,438. The Mother may have greater assets than the Father.
I am not going to make any orders as to payment of school fees. No final submissions were made. In the event that the parties are unable to agree then the issue can be litigated. However, I note that subject to the financial circumstances of each parent the proposal of the Mother that each parent pay one half of the school fees appears to be sensible and reasonable. I propose to adjourn the hearing of the departure application to another date.

CONCLUSION

The orders I propose to make are in my view in the best interests of the child. It is of course always open to the parties to vary the orders and agree on some other arrangement(s).
In the event that there are further disagreements then I urge upon the parties to seek other professional assistance to resolve the issues rather than a judicial adjudication.

I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate:

Date: 7 March 2008

[2008] FamCA 143

7 March 2008

Key Legal Topics

Areas of Law

Family Law