Allinson & Eadie (No 2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

Allinson & Eadie (No 2) [2021] FCCA 1995

File number(s):	SYC 439 of 2019
Judgment of:	JUDGE BOYLE
Date of judgment:	27 August 2021
Catchwords:	FAMILY LAW – parenting – equal shared parental responsibility – time arrangements – travel to Country H
Legislation:	Family Law Act 1975 (Cth), ss 60CC, 65DAA, 65DAE
Number of paragraphs:	59
Date of last submission/s:	23 April 2021
Date of hearing:	21-23 April 2021
Place:	Sydney
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms Beck
Solicitor for the Respondent:	Tebbutt Lawyers

ORDERS

SYC 439 of 2019

BETWEEN:

MR ALLINSON

Applicant

AND:

MS EADIE

Respondent

ORDER MADE BY:	JUDGE BOYLE
DATE OF ORDER:	27 AUGUST 2021

THE COURT ORDERS THAT:

That the parties have equal shared parental responsibility for the child of the marriage, namely X born in 2015 (“the child”).
That the child live with the mother.
That the child spend time with the father as follows:
(a)During school terms each alternate weekend from after school on Friday to commencement of school on Wednesday.
(b)During school holidays as follows:
(i)For one half of each school holiday period at the end of Term 1, Term 2 and Term 3 and in the absence of a written agreement between the parties, the child live with the father for the first half of each school holiday period in each odd numbered year, and for the second half of each school holiday period in each even numbered year, and otherwise with the mother.
(ii)For one half of each school holiday period at the end of Term 4 on an alternating week basis, and in the absence of an agreement between the parties, the child live with the father for the first week block of the holiday and on an alternating basis in each odd numbered year and for the second week block of the holiday and on an alternating basis in each even numbered year and otherwise with the mother.
(c)Such further times as the parties may agree in writing.
The above parenting arrangements shall be suspended during the following periods unless otherwise agreed in writing :
(a)The child shall spend Easter with each parent as follows:
(i)With the mother from the afternoon of Easter Thursday until 1 pm Easter Saturday in odd numbered years;
(ii)With the father from 1 pm Easter Saturday until 9am Tuesday following Easter Monday in odd numbered years;
(iii)With the father from the afternoon of Easter Thursday until 1 pm on Easter Saturday in even numbered years;
(iv)With the mother from 1pm Easter Saturday until 9am Tuesday following Easter Monday in even numbered years.
(b)The child shall spend Christmas with each parent as follows:
(i)With the mother from 2 pm on 23 December to 10 am on 26 December in even numbered years;
(ii)With the father from 2 pm on 23 December to 10 am on 26 December in odd numbered years.
(c)On the child's birthday with the parent with whom he is not currently living:
(i)For 3 hours if the child's birthday occurs on a weekday;
(ii)For 5 hours if the child's birthday occurs on a weekend.
(d)On each parent's birthday as follows:
(i)With the birthday parent (with whom he is not currently living) for 3 hours if the birthday occurs on a weekday;
(ii)With the birthday parent (with whom he is not currently living) for 5 hours if the birthday occurs on a weekend.
(e)On Mother's Day, the child shall live with the mother from 4 pm on the afternoon before Mother's Day until 7 pm on Mother's Day;
(f)On Father's Day, the child shall live with the father from 4 pm on the afternoon before Father's Day until 7 pm on Father's Day.
That changeover occur to and from the child's school on school days, and subject to any written agreement on days the child is not at school the father or his nominee shall collect the child from the mother's home at the commencement of time, and the mother or her nominee shall collect the child from the father's home at the conclusion of time.
That the party with whom the child is living shall facilitate the child having telephone, Skype or Facetime communication with the other party, and neither parent shall interfere with the child's communication with the other parent, and shall allow privacy during the communication with the other parent.
That unless otherwise agreed in writing between the parties, school holidays:
(a)shall commence at 3.30 pm on the last day of school;
(b)shall conclude at 6 pm on the day before commencement of school;
(c)will be calculated from the last day of school until and including the day immediately before school resumes;
(d)pupil free days are deemed to be school holidays;
(e)after a period of school holidays, the child shall spend time with the father pursuant to 3 (a) above, the first week after school has resumed if the child lived with the father during the first period of the school holidays immediately preceding the new school term or school year and the child shall spend time with the father pursuant to 3 (a) above the second week after school has resumed if the child lived with the father during the last period of the school holidays immediately preceding the new school term or school year.
That either party is permitted to travel with the child within Australia for holidays provided that:
(a)each party give to the other at least four (4) weeks written notice of the proposed travel;
(b)it is during the child's scheduled time with that party, unless otherwise agreed to in writing;
(c)it is not during the school term unless agreed in writing by both parents and consented to by the child's school;
(d)each party shall provide to the other party an itinerary of the dates the child will be leaving and returning to Sydney, any flight details including carrier and flight number, telephone number and address of where the child will be staying during the absence from Sydney.
That when X is aged between twelve and eighteen years, the father may remove him from the Commonwealth of Australia for two overseas visits to Country H for a period of not more than four weeks on each occasion, during the Australian summer school holidays.
That the father shall provide to the mother in writing details of the arrangements for travel for X including flight details, and where X will stay one year before the holiday is due to take place.
The court notes that the father has no objection to the mother travelling with him and X if she wishes.
The mother shall keep X’s passports, providing the passports to the father not less than 14 days prior to any scheduled travel, and the father shall return the passports to the mother not more than 7 days after his return.
The parties shall each co-operate by completing and signing any documents required for X to have current Australian and Country H passports, and the father shall pay any expenses arising from the issuing or renewing of the passports.
That each of the parties are restrained from enrolling the child in extracurricular activities that occur during the other parent’s time without the other’s written agreement.
That each of the parties shall ensure that the child attends all agreed extracurricular, sporting and religious activities in which the child is enrolled during the child's time with that parent.
That each parent is at liberty to attend any school, sporting, cultural or religious activity in which the child is involved or participating and to which parents are also able to attend or participate and each parent is to advise the other parent of any such activities.
That each party shall keep the other informed of all organisations or medical treatment providers with whom the child is involved including visits to any medical treatment providers and details of any medication prescribed or given to the child, and shall authorise the said organisations or medical treatment providers to provide information requested by the other parent.
That each party shall as soon as practicable telephone the other party upon the happening of any of the following in respect to the child:
(a)becoming seriously ill;
(b)being hospitalised;
(c)becoming involved in an accident requiring medical attention.
That each party shall authorise the child’s school to provide each of them with copies of all notices, information, newsletters and reports directly to each of the parties, and shall authorise any person or institution conducting the child’s extracurricular activities to provide each of the parties with copies of all notices and newsletters.
That each party is to maintain a separate wardrobe of clothing for the child at the home of that parent, such clothing to include school uniforms and sports uniforms and equipment and that when that clothing is worn by the child to the home of the other parent, then that parent is to ensure that the clothing is returned, washed and ironed to the other parent as soon as practical and/or that clothing is worn by the child at the time of the changeover to these arrangements.
That each party shall give the other at least 4 weeks notice of any intention to move from their current residential address.
That each party shall notify the other party of any change to the following details within 2 weeks of the change taking place:
(a)the party's residential address;
(b)the party's landline telephone number;
(c)the party's mobile telephone number.
That each party be restrained from denigrating the other party, or any member of the other parties’ family or household in the presence or hearing of the child, and that each party not allow any other person to do so.

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 under the pseudonym Allinson & Eadie (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BOYLE:

These are parenting proceedings with respect to the child X, who is now 5 ½ years old. X’s parents separated when he was not yet one year old. Proceedings were commenced on 25 January 2019, when the father filed an initiating application. The father has sought orders for an equal time arrangement throughout these proceedings.
There have been orders in place for X to spend time with his father for five nights each fortnight since 5 September 2019. The orders formalised time arrangements already in place for X. Prior to the final hearing the parties reached an interim agreement for the specific days to vary, so that time occurs Friday afternoon to Wednesday morning each fortnight.
An interim hearing was required on 16 November 2020 to determine where X would commence school in 2021. The mother had moved to the Suburb G area, and wanted him to attend a nearby Catholic school. The father wanted him to attend a primary school local to him in Suburb D. Orders were made for enrolment at school near the mother’s home. No issue was raised during the final hearing that the primary school X is attending does not meet his needs, nor that he should change school.

BACKGROUND

The father was born in Country H, and is 45 years old. The mother was born in Australia, and is 38 years old. The parties commenced cohabitation in Country H in 2012. They moved to Australia in 2013, and married in 2014.
On 10 August 2016 the parties separated. The parties were able to make arrangements for the father to spend time with X during the week, and on weekends.
The father has sustained significant work related injuries commencing in December 2015, when he was off work for 2 ½ months. In late 2016 he sustained a further workplace injury, and has not worked in paid employment since. He receives workers compensation payments, and his health is managed through the workers compensation scheme. In short, his injuries cause him pain and loss of movement through his neck, back and shoulder.
The father has had psychological, as well as medical, assistance to deal with the impact of his injuries. Previously he consulted with a psychologist, and is now seeing a psychiatrist. The psychiatrist has prescribed diazepam. Although initially concerned about taking medication, the father is finding medication useful. It is not clear whether he will be able to return to full-time, or part-time, work in the future.
In 2018 the mother commenced a relationship with Mr J. He has a daughter K, who is two years older than X. In 2019 the mother and Mr J commenced cohabitation. K lives with them on a week about basis. Mr J’s evidence is that he, K’s mother, and her new partner have a co-operative relationship.
Previously the mother’s sister Ms L, and her daughter, also lived with them. Ms L separated from her partner, in circumstances of family violence. Her ex-partner is currently incarcerated for offences related to violence against her. A statement from her ex-partner was part of the material relied on by the father in these proceedings. The father was aware of his conviction, and incarceration, at the time of these proceedings.
In 2019 the mother was diagnosed with cancer, and underwent surgery in 2019. The evidence suggests she is in good health.

ISSUES

The issues for determination are:
(a)the parties’ ability to reach agreements about health, education, and extracurricular activities so as to sustain, or not, an order for equal shared parental responsibility;
(b)whether it is in X’s best interests for there to be an order for equal time, or whether time should continue at five nights each fortnight;
(c)whether orders should be made permitting the father to travel to Country H with X, and whether X should have a Country H passport.

APPLICATIONS

The mother seeks equal shared parental responsibility for X in relation to his religious and cultural upbringing, changes to his living arrangements, and any other welfare issues. The mother seeks sole parental responsibility in relation to the child’s health and medical issues, education, and extracurricular activities. She seeks that time arrangements remain as they are at present: five nights each fortnight with the father, with additional time for holidays and special occasions.
The father seeks orders for equal time on a week about basis, with shared holidays and special occasions. He wishes to travel with X to Country H on two occasions before X turns 18 years, and seeks that X have both a Country H and an Australian passport.

DOCUMENTS RELIED ON

The mother and father filed case outline documents identifying the documents relied upon.
The witnesses were the parties, the mother’s partner, and the report writer. This is not a matter involving significant credit issues, and any specific issues with the parties evidence are dealt with as they may arise below.

THE LAW

The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth) (“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.

PRIMARY CONSIDERATIONS

Section 60CC(2) The primary considerations are:

(a) Benefit to the children of having a meaningful relationship with both of their parents;

X has the benefit of a meaningful relationship with each of his parents. There is no issue that his relationships with both parents have been sustained and nurtured by both parents following separation.
The orders sought by both parties guarantee a continuation for X of a meaningful relationships with each of his parents, by providing for regular and significant time in each household.

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There is no evidence that X has been subjected to, or exposed to, abuse, neglect or family violence by either of his parents. There have been disagreements between the parents with respect to aspects of his care. This has led to voluminous emails and texts, predominantly from the father to the mother. Some of the father’s communication has been aggressive, argumentative, and harassing. In the initial stages following separation, some of the mother’s communication with the father could also be characterised in that manner. The mother no longer communicates with the father in that manner.
The occasions when there are voluminous messages from the father, suggest that when he may feel overwhelmed, or not heard, he bombards the mother with communication. For example:
…Ms Eadie dinYou have to hear !!!??? Please Ms Eadie. Please think a lot more about our child!!!!!!
This sucks!!!!!!!!!! !!!!!!!!!!!!!! I just can not believe you are like this!!!!!????
Will someone please F’n help me here. Enough is enough with this careless lack of any thought to a child’s safety and welfare.
X does not no any better!!!!! I can’t do anything about you. Ms Eadie. I just continually get ignored and insulted!!!! You continue to cripple me with a sense of helplessness in regards for read concern for my son’s health and welfare. A
X is a blessing and I am not overreacting here!!!!!!
Ms Eadie!!!!!!!!!
Please Ms Eadie. Please have better practices for X in toilet training. Please. Ms Eadie.[1]
[1] Respondent’s Affidavit, filed 12 March 2021, Annexure C.

The father found it difficult to acknowledge problems with his communication when cross examined. I accept that he gives no thought to the impact on the mother of receiving his communications. His enquiries over X’s care the night before the mother was undergoing surgery for cancer is an example of that. The father was anxious about who would be caring for X, and his priority was to get answers from her. His persistent communication was extraordinarily insensitive. He agreed in cross examination that he knew she would make appropriate arrangements for X’s care. He agreed that X would want to see his mother as soon as practical after the surgery. Nonetheless he believed that X should be in his care, and so he badgered the mother, despite it being obvious that it was causing her stress and distress at an extraordinarily difficult time.
If X were present when the father was feeling emotionally overwhelmed, there is a risk that X would be exposed to that. It would have the effect of putting X at the centre of his parent’s conflict, and could cause him psychological harm.
The family consultant was clear in her evidence that X at five years is already aware of conflict between his parents. The report writer noted on the day of the interviews a bag was passed from the mother to the father, via X. The father was “observed to huff and sigh… X was observed to walk away from Mr Allinson and Mr Allinson did not seem to notice that his mood change seemed to create an uncomfortable atmosphere. The family consultant attempted to redirect Mr Allinson, as she did not consider that it was the right time to be discussing this in front of X”.[2]
[2] Family Report dated 9 July 2020, paragraph 63.

ADDITIONAL CONSIDERATIONS

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

X is not of an age or stage of development where his views, were he able to express them, would carry weight.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

And

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

X has a close relationship with each of his parents. They both provide him with loving care and support.
X is developing close relationships with the mother’s partner, and his daughter. The mother’s partner said that X “looks out for K” and has developed a good relationship with her. The mother’s partner is developing a close relationship with X. He said that he treats X as he treats his daughter.[3]
[3] Family Report dated 9 July 2020, paragraph 52.
X sometimes calls the mother’s partner dad. This is, understandably, upsetting to the father. There is no evidence that X has any confusion about who his father is, nor that he is encouraged to call Mr J ‘dad’. I accept that this is not an attempt by the mother, or her partner, to undermine the father’s relationship with X. K calls her father ‘dad’, which X hears, and at times repeats. I accept that it is difficult to correct without making more of an issue for the child than it should be.
The mother’s partner attempted to talk to the father about his experience of the difficulties of parenting following separation. I accept that it was a genuine attempt on his part to build a working relationship between them. The father was unable to acknowledge that, or that his subsequent communication was unhelpful:
Mr J. Please do not give me any advice. Please when you can find the strength to answer my question, I will look forward to your answer..[4]

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

[4] Affidavit of Mr J, filed 12 March 2021, Annexure A.

(iii) to communicate with the child.

A consideration of this factor does not assist in a determination of this issue. Both parties take all opportunities available.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

The mother meets the majority of X’s needs. She does so by providing for him when he is in her care, and previously paid up to $100 per month in child support to the father. She now pays $1.40 per month to the father in accordance with the current assessment from the child support agency.[5]

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

[5] Evidence from Cross-examination of father on 21 April 2021

(i) either of his parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

X has lived the majority of his time with his mother since separation with his mother. He has no experience of managing an equal time arrangement between his parents. It is uncertain how he would manage the regime sought by the father.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

This is not a relevant consideration given the proposals of each party.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs.

The mother has demonstrated her capacity to meet X’s needs. She has changed her approach towards the father, and now seeks not to engage in ongoing argument so as to facilitate better communication about X. I accept that previously she engaged in disputes with him.
The occasions when the father sends voluminous and frequent communication to the mother demonstrates the problems in the father’s parenting capacity. He at times is not able to focus on X’s needs, instead venting his own frustrations without thought of the consequences for X, or his mother, of conflict. The father’s lack of insight in this area is reflected in his belief that the mother is to blame for the issues between them leading to separation, and that he bears no responsibility for that. His evidence about this during cross examination was clear.
There is no issue that both parents are able to meet X’s day to day needs when with them. They are both interested in furthering his education, and giving him access to experiences and opportunities.
The father is aware that there has been serious dispute between the mother’s sister and her former partner. Her former partner has been incarcerated for violence towards her. There are concerns for her safety were he to know her address. I accept that as the father was unrepresented, the lack of probative value of a statement annexed to his affidavit may not have been understood by him. The statement pre-dates the criminal conviction. The father should have given consideration to the current relevance of the statement, balanced against any upset and worry to the mother in his reliance on it. It was clear in his evidence that he did not give consideration to that.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

X is a 5 year old boy of mixed Country H and Australian heritage. His parents are able to connect him to his culture and heritage. X will be permitted to travel to Country H, and spend time with his extended Country H relatives, in the future.

Section 60CC(3)(j) any family violence involving the children or a member of the child’s family.
and

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

There have been no family violence orders with respect to either party. There have been mutual allegations of family violence by each parent against the other.
The mother’s evidence relates primarily to difficulties during the relationship. She says she felt criticised by the father regarding her parenting abilities, which led to numerous arguments. She regards this as the father being emotionally abusive. She refers to feeling pressured into sex at times during the relationship. His criticisms have continued in some email correspondence, circulated to the paternal and maternal grandparents.
The father concedes that he has sent “emotionally driven emails”[6] at times but denies that could be described as a form of violence. He is concerned that the mother manipulates X, and has sought to marginalise his role in X’s life.
[6] Father’s affidavit filed 19 March 2021, paragraph 16.
Looking at the complaints of the parties there is no concern about ongoing issues of family violence. Rather the issue between them is about poor communication, and a lack of insight into the impact of their conduct on the other parent.

Section 60CC(3)(l) 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.

X’s parents separated when he was very young. He has spent all his childhood thus far as the subject of conflict between his parents. It would be preferable for him to enjoy the rest of his childhood without further litigation between his parents.

TRAVEL TO COUNTRY H

The mother seeks no orders in relation to overseas travel, arguing that it can happen by consent in the future. The father seeks that he be able to travel to Country H twice with X before he attains 18 years. The mother has concerns that the father may take X to Country H and not return. She argues that the father’s primary tie to Australia is X. He is not employed in Australia, and does not have family here.
The father wants to be able to visit his family, and provide X with relationships with his extended paternal family. This is understandable. The current pandemic has highlighted the difficulties for families spread across the world in maintaining their connections. I note that Country H and Australia are both signatories to the Hague Convention on the Civil Aspects of Child Abduction.
It is unlikely that overseas travel will be able to occur in a way that is trouble free for some time, due to Covid-19. There is no suggestion that the father has done anything to seek to remove X from Australia, nor sought to prevent his relationship with his mother. The father is the recipient of ongoing assistance pursuant to workers compensation arrangements in Australia. Otherwise, I accept that his main ties to Australia revolve around X, as he is not employed and does not own property in Australia. The father’s ties are likely to strengthen, rather than diminish, over time as he builds community connections. He may, for example, undertake employment in the future.
Very young children have limited ability to communicate independently with the other parent, and to travel as unaccompanied minors. Orders permitting X to travel twice to Country H once he has attained twelve years, allow for him to be more independent and able to telephone, Face Time and text his mother easily when travelling.
X is entitled to a Country H passport through his father. He should have the benefit of that, both as recognition of his connection to Country H, and so that he and his father can travel together subject to the same conditions, as holders of the same nationality passport. The mother sought orders that she retain X’s passports, so he cannot travel other than as agreed or ordered. I accept that provides a sense of security to her about use of the passport, and will order that the mother retain X’s passports within her possession when they are not being used for travel.

PARENTAL RESPONSIBILITY

The mother seeks that the parties have equal shared responsibility for issues other than health, education, and extracurricular activities. She raises issues of family violence as rebutting the presumption in favour of equal shared parental responsibility.
The mother refers to a dispute between the parties following X receiving immunisations in 2019. The mother did not tell the father in advance that X was receiving his vaccinations. X complained to his father of a sore arm, which led to him making enquiries of the mother. The father was concerned that they did not discuss the matter. Sensibly, he raised that he needed to be aware of possible adverse reactions to manage X’s care. He was clear that he is not opposed to vaccinations, but that he should have been consulted. No issue was raised in the hearing about any dispute between the parties when X had the usual raft of vaccinations as a baby and toddler. I accept that the father’s issue was lack of information, rather than an objection to vaccinations.
X does not have chronic health issues. There was a dispute about the management of X isolating when he was awaiting the results of a COVID test, and what was required by the NSW Health guidelines in those circumstances. The father was of the view he should remain in his care until results were available. He argued that he was acting to protect the mother, given her cancer treatment. The mother collected X at the end of his time with his father, on the basis that she could manage his isolation. I accept that the mother was in a position to make decisions about her own health and risk. I also accept that given the living arrangements, when X was required to isolate, both households would be impacted by that requirement given the orders in place. The father was outraged by the mother’s position. I accept his response was not in keeping with a discussion between two caring parents about how to manage a health situation for their child.
The circumstances of the pandemic have been difficult to navigate for many separated families. It has been a time of changing health messages, and considerable stress. I do not accept the argument that the father’s conduct requires an order for sole parental responsibility to the mother for medical matters for X. There is no evidence that either of them have views about medical treatment that is significantly at odds.
The parties have similar views on the importance of education. The interim hearing about where X should start school was not a dispute about the schools nominated by either of them, rather the location. Each wanted him to attend a school nearer to them. There is no reason to suppose that they will not be able to reach agreements in the future for X with respect to high school, or a change of school if that is necessary for X. I am not satisfied that it is in X’s interests to exclude his father from participating in that decision making process. If the parties find it difficult to negotiate matters between themselves there are community organisations available to assist with mediation.
The mother seeks an order about decision making for which extracurricular activities X participates in. I do not regard this as being an exercise of sole parental responsibility. The Act refers to “major long term issues”, and that a parent is not required to consult any other person who holds parental responsibility about decisions that are not major long term decisions.[7]
[7] Section 65DAE.
Committing to becoming an elite athlete may be a major long term parenting decision. It would occupy the child in significant time for training and activities, to the exclusion of other activities and family life. X is not in that situation. He is attending, by agreement, rugby on Saturdays with an afternoon training session each week, and weekly swimming lessons. He will no doubt want to try other sports, and activities like music, drama, and dance as he grows, and his interests vary. Both parents have been able to attend, behave civilly, and provide photographs to the other around his current activities.
If a parent proposes an activity that falls within the other parent’s time, there needs to be an agreement about the child’s participation. That is not because it is a long term parenting decision, but because it impacts on time arrangements. Both these parents are enthusiastic about X participating in activities. If they are not in agreement about an activity that impinges on their time, they either reach an agreement, or the child does not do that activity. It is similar to what happens in intact families when parents are not able to take children to all activities they may be interested in.
As regards the presumption in favour of equal time,[8] those arrangements place greater stress on parents’ capacity to communicate about their child’s needs. It requires parents to be flexible and ready to negotiate with each other, particularly with a child as young as X. The opportunity for homework, uniforms, or sports equipment to be forgotten or misplaced increases in equal time arrangements. The father has had difficulties with communication when things happen that are unexpected, or stressful. In those circumstances he has demonstrated a poor capacity to communicate effectively with the mother.
[8] Section 65DAA
It is not in X’s interests to be exposed to conflict between his parents. The opportunities for that decrease if the time arrangements are for substantial and significant time, rather than equal time. I propose making orders that retain the current time regime. It is working well for X, and is manageable for each of the parents.
The father is concerned that if the time spent by X with him is not the same as with the mother, he will effectively be marginalised as a parent. I do not accept that is the case. X has a strong and close relationship with him. He will be spending significant and substantial time in his father’s home. The father is an engaged and committed parent. I find that the mother has supported X’s relationship with his father. The time arrangements seek to minimise the opportunity for conflict between the parents over X, as that the most significant risk for X.

CONCLUSION

Both parents have a lot to offer X. They have been able to make arrangements so that he has been able to maintain a close relationship with each of them. The father has been concerned that X may come to view his relationship as less important than the mother’s if the time is not equal. The evidence supports the finding that a close relationship between X and his father exists that is important for X, which will be nurtured by the orders made.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle.

Associate:

Dated: 27 August 2021

[2021] FCCA 1995

27 August 2021

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