AMBERSLEY & SEDRICK
[2020] FCCA 3191
•25 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMBERSLEY & SEDRICK | [2020] FCCA 3191 |
| Catchwords: FAMILY LAW – Parenting – where subject child is 6 years old with ADHD diagnosis and learning and behavioural difficulties – where there has been a poor parenting relationship and protracted litigation – where the father seeks equal shared parental responsibility and mother seeks sole parental responsibility – where the father abandoned his application for the child to live with him mid cross-examination – where there was broad agreement as to the spend time arrangements with the father – where mother sought change of the child’s surname and authority to obtain passports. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC, Pt VII |
| Cases cited: Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93 Chapman & Palmer (1978) FLC 90-510 Beach & Semmler (1979) FCWA Reagan & Orton (2016) FamCA 330 |
| Applicant: | MS AMBERSLEY |
| Respondent: | MR SEDRICK |
| File Number: | NCC 1065 of 2014 |
| Judgment of: | Judge Costigan |
| Hearing date: | 19 November 2020 |
| Date of Last Submission: | 19 November 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 25 November 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Mueller |
| Solicitors for the Respondent: | Winder Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Carty |
| Solicitors for the Independent Children's Lawyer: | Sharon Moore Solicitor |
ORDERS
All previous parenting orders are discharged.
The mother have sole parental responsibility for the child X born in 2010 (‘the child’).
The child live with the Mother.
The child spend time with the Father as agreed between the parties in writing, or failing agreement:
(a)From 9am to 4pm each Saturday, commencing 28 November 2020 until and including 19 December 2020;
(b)From 2pm Christmas Day 2020 until 2pm Boxing Day 2020;
(c)Thereafter each alternate weekend from 9am on the Saturday until 4pm on the Sunday, commencing Saturday 2nd January 2021;
(d)Thereafter each alternate weekend commencing on the second weekend after school resumes for Term 1 2021, from 3.30pm Friday until 3.30pm the following Sunday, with the changeover to take place at Suburb B McDonalds;
(e)During school holiday periods in Terms 1, 2 and 3, as agreed and failing agreement as follows:
(i)In even numbered years, for the first half of the school holiday period commencing at 9.00am on the first Saturday of the school holiday period and concluding at 5.00pm on the second Saturday of that period; and
(ii)In odd numbered years, for the second half of the school holiday period commencing at 9.00am on the second Saturday of the school holiday period and concluding at 5.00pm on the second Saturday immediately prior to the commencement of the school term.
(f)The time that the child spends with the Father in Order (4e) above is not to coincide with the week in that holiday period that the child’s step-siblings are with the Mother;
(g)During Christmas school holidays commencing 2021 from 9am on the 1st Saturday after Christmas day for one week until 9am the next Saturday, and for 3rd and 5th weeks for the balance of the school holidays from 9am on the Saturday until 9am the following Saturday;
(h)On Father’s Day each year from 5pm on the Saturday before Father’s Day, until 5pm Father’s Day; and
(i)On the child’s birthday for 4 hours as agreed in writing between the parties, or failing agreement, between 3.30pm and 7.30pm.
The Father’s time with the child shall be suspended each year from 5pm on the Saturday before Mother’s Day until 5pm Mother’s Day.
Changeovers shall take place at Suburb B McDonalds, C Street, Suburb B unless agreed otherwise between the parties in writing.
Each parent must keep the other informed of his or her residential address and contact phone number, each parent must notify the other in writing within 48 hours of any change in contact details.
That unless otherwise agreed between the parties, the parties communicate all non-urgent issues relating to the care, welfare and development of the child via a dedicated parenting communication platform or application and unless otherwise agreed, Our Family Wizard App (with each party to bear their own costs in using Our Family Wizard), except in cases of emergencies when communication shall be via telephone or text message.
Each parent shall keep each other informed about any significant medical appointments arranged for the child, to be advised by writing in the Communication App.
Each parent shall notify the other parent at the time of the event of any emergency medical treatment and/or hospitalisation that the child requires and/or receives.
Each parent shall inform the other parent of any medications prescribed by a registered medical or health practitioner for the child and provide the medication and appropriate instructions for its administration at the time of any handover, through text message or Communication App and ensure that the child takes the medication in accordance with the instructions provided.
These orders are sufficient authority for the child’s school to provide copies of all notices, reports and circulars relating to the child’s schooling to both parents. Specifically, the Mother authorises the Father to contact the child’s school with a view to gaining access to the school’s Compass App.
Each parent is authorised, subject to the requirements of the school, to attend all the child’s future school sporting and extra-curricular functions and events to which parents are ordinarily invited to attend.
That neither the Mother nor the Father denigrate, nor permit the child to remain in the presence of any other person denigrating, the other party or members of the other party’s family to the child to or in the presence of the child.
That in the event that the parents are unable to agree by consultation with each other about any significant issues in these Orders, they shall attend upon a qualified mediator in an effort to avoid further conflict between them.
The Father shall promptly enrol in and complete an Anger Management course conducted by D Counsellors or such other suitably qualified organisation as may be recommended by the manager of the Child Disputes Service in the Federal Circuit Court at Newcastle and provide evidence of the completion of his successful completion of the course to the mother.
Without requiring the permission and/or consent and/or signature of the Father, the Mother Ms Ambersley is authorised to apply to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that X be registered as X Ambersley-Sedrick.
Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the NSW Registrar of Births Deaths and Marriages shall register the child’s name as X Ambersley-Sedrick.
The Mother shall forthwith serve a sealed copy of this Order upon the Registrar of Births, Deaths and Marriages.
That pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Mother be permitted to obtain a passport for the child X Sedrick also known as X Ambersley-Sedrick born in 2010 in the absence of consent from the father.
IT IS NOTED that publication of this judgment under the pseudonym Ambersley & Sedrick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1065 of 2014
| MS AMBERSLEY |
Applicant
And
| MR SEDRICK |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the applicant mother Ms Ambersley (‘the mother’) and the respondent father Mr Sedrick (‘the father’) who are in dispute concerning the living arrangements for their son X born in 2010 and now aged ten years.
Background
The father is 43 years old. He lives in Suburb E and operates his own business as a tradesman. He has recently separated from his partner of 4 years Ms F. On 31 October 2020 a provisional apprehended violence order was made for the protection of Ms F and the matter is next before the Suburb G Local Court on 24 November 2020.
The mother is aged 36 years. She is employed on a full-time basis as a professional. She lives with her partner Mr H in Suburb J. Mr H has three sons from a previous relationship (twins aged 12 and a 3 year old) who are in a shared care week about arrangement with their parents.
The parties’ households are approximately 60km or a 50 minute drive from each other.
The parties met in 2007/2008 when the mother was around 26 years of age and the father was around 30 years. They commenced cohabitation in 2008. They separated in 2014 when X was 3 years old.
On 21 November 2014 His Honour Judge Coakes made final orders by consent which provided for the parties to have equal shared parental responsibility and for X to be cared for by his parents in a week about, shared care arrangement.
From 2015 X commenced at K Daycare and it was around this time that he was observed to develop a marked stutter. He was assessed by Region L Health Speech Pathology and thereafter the mother says X attended speech pathology with the parents attending the appointments ‘in an alternative week about arrangement.’ [1] She says that staff turnover impacted X’s progress and so she arranged for X to commence with M Speech Pathology in late September 2016. The mother deposes,
‘At the beginning of the course, X was marked at 9/10 (severe) and by the end, at 2/10. I paid fully for this without any assistance from Mr Sedrick.’[2]
[1] Mother’s affidavit filed 14 October 2020 at [12]
[2] Mother’s affidavit filed 14 October 2020 at [16]
In February 2016 X commenced kindergarten at N School. Around the same time the mother vacated her Suburb O property and went to stay with friends in Suburb P. She asked the father to care for X during the weeks he normally spent with her, so that he would have some stability for school.
It appears common ground between the parties that X struggled with his first year in Kindergarten and received multiple suspensions. When X commenced at his current school Q School, that school made contact with the three schools previously attended by X and the notes from those conversations were recorded in a document entitled ‘Student Chronicles.’ A copy of that document appears in the Tender Bundle prepared by the Independent Children’s Lawyer and provides some insight into X’s school experiences but also the schools’ experience of and interactions with each parent. The Principal at N School was reported to say:
During Kindergarten, X was living with Dad
There were access issues all the time
In May 2018 (Yr 2) they had a SHARED ENROLMENT with Suburb R.
He had referral for speech and language
He had Tier 3 differentiation in literacy. Numeracy was stronger marginally.
There were many attendance issues – lots of time late, due to distance travelled, partial attendances were the biggest issue.[3]
He had enough social issues in class and on the playground to be included in a supported play group called ‘S’ in which he ‘cycled in and cycled out of frequency.
Issues were hitting and kicking.
Had been 5-10 suspensions for between 1-4 days because of impulsive, aggressive behaviour and one for continued disobedience.
[3] Under the parenting arrangements X was always in the care of the father at the commencement of the school.
Mum and Dad didn’t get on at all and they were back and foreward to court.
School did not receive much support from either home.[4]
[4] Tender Bundle at [29]
In March 2016 the father moved to Suburb T.
In April 2016 the father was convicted of drive unregistered and uninsured and his licence was suspended for 3 months.
In September 2016 X commenced seeing Dr U, a Paediatrician at V Group and Dr W, a Child Psychologist.
In March 2017 the mother vacated her rented property when it was sold by her landlord. She moved into emergency accommodation in Suburb Y before moving in with a friend Mr Z. The mother and Mr Z commenced an intimate relationship and became engaged in 2017.
Around the same time the father commenced a relationship with Ms F.
The parties agree that the co-parenting relationship began to deteriorate at this point but they have very different perspectives as to reasons the that happened. The mother told the Family Consultant,
‘…… the child began to express how much fun he was having with the mother and Mr Z, and the father didn’t like it. He began to make the child feel bad for speaking so positively. The father began speaking poorly of the mother and her partner and encouraged the child to do the same. The mother stated that she began to notice a decline in the child’s attitude towards her and her partner and a decline in his behaviour. She stated that this was being reinforced by the father who rewarded the child for this behaviour. [5]
[5] Family Report [21]
The father said,
‘……he does not know where or why things went wrong. ……………. The father stated that the child began to express concerns regarding the mother’s partner. The father stated that at first he would try and defuse the situation and distract the child from his concerns however he noted that as time progressed the child’s complaints increased and his reluctance to engage with the mother and her partner increased.’
On 3 August 2017 the father filed a fresh initiating application seeking orders for X to live with him. Final consent orders were entered into on 7 December 2017 which provided for X to live with the father and spend alternative weekends with the mother.
The mother alleges that the father never followed the 2017 orders and failed to facilitate telephone communicate and weekend time. He changed X’s school from N Primary School to R Primary School without her consent, despite an order which specifically stated that X was to remain enrolled at N Public School until the completion of year 6 and noting that a change of address would not be a sufficient reason to change the school.
On 6 June 2018 a provisional apprehended violence order was obtained for the protection of the mother after the father sent a series of abusive text messages in the following terms,
‘take me to court or be nice and I will. Simple, keep being a cunt and you’ll get nowhere……… Show your solicitor,”…………. “Oh shove it up your ass, see you in court, fuck you’re an Idiot.”
and
‘Our communication is done, call your son every Tuesday and Thursday between 6pm and 7pm or don’t speak to him simple. You’re a cunt, he’s 7 and not a cunt, were constantly making allowances for your childish pathetic behaviour. Don’t be a cunt. Send me you solicitors link and I’ll forward this to him please stop being a pig.’
and
‘Actually Ms Ambersley I’ve had a gutful of your pathetic bullshit ……You’re a couple of weak cunts who wouldn’t know how to fight for what’s right if you tried. You’ve had every opportunity to provide me wrong but you keep coming up with this bullshit.’[6]
[6] Tender Bundle at [23-25]
An interim apprehended violence order was made for the mother’s protection on 28 June 2018 at City AA Local Court and on 13 November 2018 the application was dismissed.
On or around 9 September 2018 the father alleged that the mother locked X in his room and not allowed him to use the toilet. When he collected the child, the father said X’s clothes were soaked in urine.
The father reported the incident to the police and to the Department of Family Consultant. Documents produced under subpoena by NSW Police report the father as telling police that he was attempting to return to the Family Law Courts to prevent access to the mother.[7] Subpoenaed documents from the Department of Family and Communities on 10 September 2018 contain the following helpline report,
‘Caller has rung expressing concerns that mother’s partner grabbed X (aged 7 yrs) around the collar of his shirt twisting it around & nearly choking X as punishment for him not wanting to have access with his mother X stated that he ended up urinating in his pants & that he was not allows out of his room for an hour.’[8]
[7] In cross-examination with Counsel for the Independent Children’s Lawyer the father denied saying this to police.
[8] Tender Bundle at [63-64]
On 12 September 2018 the father attended City AA Police Station and reported that X had been ‘left in urine soaked clothing for a number of days’. The COPS event entry records that X was spoken to by police and told the same story.[9]
[9] Tender Bundle at [9-12]
At the Family Report interviews on 21 May 2019 the father was reported to say,
‘The final straw for the father was when the child told the father that the mother’s partner had grabbed the child by the throat and threw him down a hall way.’[10]
[10] Family Report at [28].
In cross-examination with Counsel for the Independent Children’s Lawyer the father said he had definitely reported the child being thrown down the hallway to both the police and FACS so could not understand why it had been omitted from both reports.
On 1 November 2018 the mother filed her initiating application seeking interim and final orders for the child to live with her and have sole parental responsibility.
The father says he ceased his employment at Employer BB, Suburb R to focus on the court proceedings.
On the first return date of the application on 18 January 2019, orders were made for the parties and the child to participate in a section 11F Child Inclusive Conference and for the father to undertake urinalysis for illicit drugs.
On 27 February 2019 interim orders were made for the parties to enrol in and complete a Keeping in Contact program, for the mother to spend time with X from Wednesday 5.30pm to 8pm after sports training and on Saturdays from 11.30am to 3.30pm. The father was restrained from relocating the child’s residence away from Suburb R and orders were made for the appointment of an Independent Children’s Lawyer and the preparation of a Family Report.
In May 2019 the father says that he was given notice that his lease would be terminated. He says he could not find any suitable or affordable housing in the Suburb R area so he moved to Suburb CC to live with his partner Ms F. The father alleges that the move was made with the consent of the mother, the mother says she was informed, not consulted.
At the Family Report interviews on 21 May 2019 the father told the Family Consultant that he was in the process of moving to Suburb CC and had commenced the enrolment process for the child at DD Public School. The mother said that the father had informed her that he had already moved. The Family Consultant observed,
‘While the father’s previous two breaches of orders can be explained in a way that may support his view that he was prioritising the child, the most recent breach is harder to explain in terms of prioritising the child. The father indicated during the family assessment interview that he was provided with plenty of notice to relocate and he was given an extension due to the current uncertainty regarding Court outcomes. Despite this, he states that he was unable to find any other accommodation in Suburb R. Further, he didn’t relocate to another area that remained close enough to the mother to ensure the child’s time with her could continue. The father chose to relocate to the Region EE because it is where his partner resides and it is where he wanted to relocate to. The impact on the child of no longer living near both parents was not adequately considered or understood.’ [11]
[11] Family Report at [82]
X was enrolled at CC Public School from Term 3 2019. This was his third school in less than 3 years. The Student Chronicle notes of the conversation with the Principal of R Public School records as follows:
Mum began proceedings to sue the department – nothing came of it[12]
[12] In cross-examination with Counsel for the Independent Children’s Lawyer the mother denied any contemplation to sue the Department of Education but agreed she had challenged their decision to accept a dual enrolment for X at N and R Public Schools.
Constant chaos between mum and dad
Ms FF advised that we don’t speak to mum on our own
He started about May 2018
He was ok in class – similar behaviours to those we are seeing here
Very anxious
Dad was always anxious – crying and manic, hard to get him to leave
Mum and Dad were always in court
Shared enrolment was supported to be short term, about 10 weeks, but this went on for 5-6 terms
Main school was N – attendance numbers had to be sent to them
Dad moved (Suburb CC) but at the time mum didn’t know where they were.
No suspensions while he was there
Attendance was poor, due to location
Sat Naplan at R in 2019, then moved to Suburb CC.
In relation to Suburb CC Public School, the Assistant Principal was reported to say,
Attended mid T2 to en T2 2019 (enrolled with us beginning of T3)
Phone call from Dad at beginning of T2, but didn’t show until middle of the term
Dad made no mention of court papers
School had to take him – Director of Education made that ruling
Had shared enrolment with N
No suspension
2 incidents - kicked a student. He was also kicked by a student on one occasion
Dad wanted meetings all the time
Dad wanted/expected financial help
Never met mum, although she called once.
Attendance was satisfactory
Dad said he was bullied because of his stuttering but there was no evidence of this
Dad was on high alert all the time.
On 13 June 2019 the Family Report was released. In conversation with the Family Consultant X was reported to say,
‘……… he had told a lie about the mother’s boyfriend and his father thought it was best he stopped seeing his mother. X said he liked things much better now that he gets to see his mother.’[13]
[13] Family Report at [74]
On 14 June 2019 the father filed an application in a case seeking interim orders for the mother to spend time with X on alternate weekends from 5pm Friday until 2pm Sunday, with changeovers at Suburb O.
On 19 June 2019 the mother filed a contravention application.
On 27 June 2019 interim orders were made by consent for X to spend time with the mother for 3 weekends per month and during school holidays.
On 19 July 2019 the mother says that the father dropped X off to her place of work some 4 hours early. She described X as having,
‘………….a pale complexion, he smelt like wet clothes, his hair was messy and in knots, his nose was red, there was snot on his nose and his jumper sleeves and he had ripped jeans when it was during winter He was constantly coughing and could not breathe through his nose.’[14]
[14] Mother’s affidavit filed 14 October 2020 at [50]
The mother reports X as saying that he and his father had been sleeping at a pub because the father’s partner Ms F had kicked them out. She did not let them take any clothes or toys with them so he had been sleeping in the clothes he was wearing. He said that his father and Ms F had been yelling and Ms F’s brother had ‘walked at Dad with his fists up and we left.’ He went on to say,
‘Later that night dad, forced me to call Ms F and tell her to ‘fuck-off’ otherwise he was going to throw GG (our dog) out the window.’
X said that his father had slept in the bed at the Pub and he had slept on the floor. He did not have a shower because they had no towels or clothes.[15]
[15] In cross-examination with Counsel for the Independent Children’s Lawyer the father conceded that he and Ms F had argued and that he and X had stayed one night in a pub but denied all other allegations by the mother about the incident.
The mother retained the child in her care.
On 23 July 2019 the mother enrolled X at Q School in Suburb HH.
The mother says that she attempted to arrange for X to spend time and communicate with the father but the father did not return her calls. The father sent a text message on 1 August 2019 saying that he had ‘some hiccups with hospital and phone details.’[16] The father deposes to being involved in a quad bike accident and fracturing his knee which restricted his movements. It was for this reason the father tells the Court, that he did not oppose X remaining in the care of the mother.
[16] Mother’s affidavit filed 14 October 2020 at [60]
In 2019 the mother commenced a relationship with Mr H and in early 2020 she and X moved into Mr H’s home in Suburb J.
In late 2019 the father moved to Suburb JJ and recommenced spending time with X on alternate weekends. The father says that time did not regularly occur, rather it happened ‘only as the mother choose [sic] to allow.’[17] He says that he received ‘dysfunctional, vindictive, abusive messages’ from the mother and that when he spoke with her, the mother was always ‘forceful, aggressive and abusive’ to him often in the presence of X.[18]
[17] Father’s affidavit filed 15 October 2020 at [128]
[18] Father’s affidavit filed 15 October 2020 at [131-132]
On 21 October 2019 interim orders were made for the X to live with the mother and spend time with the father on alternate weekends and during school holidays. The father’s application in a case was withdrawn and dismissed as was the mother’s contravention application.
On 8 November 2019 the matter was set down for hearing on 11 May 2020.
On 29 March 2020 the father stopped spending time with X. He says that he decided to ‘step back’ in order to ‘protect X from being stuck in the middle’ and because of the ‘insurmountable difficulties I have encountered with the mother and her influence on X and his school. [19] He complains that:
·The mother was unnecessarily present at the school when he attended to collect X on Fridays. She would ‘take his school bag and give him another bright coloured bag before allowing him to come to me’[20] which made X uncomfortable and upset.
·The mother sent the father text messages trying to discourage him from attending the school. She sent him a text saying the school had a photo of him and the police would be called if he attended.
·The mother has influenced the school to have a negative view of the father. He feels unwelcome at the school, is ‘palmed off’ and his calls not returned.
·When the father has been able to speak with X he is happy to talk with him but the mother can be heard in the background coaching X and telling him what to say. The last call he had with X was on 30 September 2020.
[19] Father’s affidavit filed 15 October 2020 at [143] & [168]
[20] Father’s affidavit filed 15 October 2020 at [148]
On the 26 March 2020 the parties and Independent Children’s Lawyer participated in a Legal Aid Intervention Conference by telephone link but no agreement was reached.
Neither party complied with the trial directions for filing of affidavits, and the matter was not ready to proceed on 11 May 2020. The hearing was adjourned to 18 November 2020.
The hearing on 18 November 2020 proceeded by way of the Microsoft Teams Platform. Ms Carty of counsel appeared on behalf of the Independent Children’s Lawyer, the mother was self-represented and the father was represented by Mr Mueller of counsel. The father attended the hearing from his home in Suburb E. His internet connection was poor but the difficulties the Court subsequently experienced in maintaining the father’s engagement with the hearing had nothing to do with the technology.
At the commencement of the hearing the father sought orders in accordance with his amended response filed 8 May 2020 for the parties to share parental responsibility, X to return to live with him and spend time with the mother on alternate weekends and for one half of all school holidays.
In the course of cross-examination with counsel for the Independent Children’s Lawyer the father’s position changed without, it would appear, prior notice to his legal representatives. I therefore suspended the father’s cross-examination and granted leave to counsel for the father to speak with the father and obtain instructions with respect to the orders now sought by the father. When the hearing resumed an hour later, the father did not re-join the link. The matter was adjourned for what turned out to be another hour while the father’s solicitor tried to contact him.
When the hearing resumed, the father’s solicitor said he had tried to telephone but the father wasn’t answering and was concerned for his welfare. The father belatedly joined the link and said that he had been trying to re-join and to contact his solicitor for the past 2 hours without success. The father’s attitude was one of irritability and impatience.
Leave was granted to the father to re-open his case and adduce evidence in chief as to the orders he now sought. The father’s oral evidence was that:
·He continued to seek an order for equal shared parental responsibility;
·He would consent to an order for X to live with the mother;
·He would consent to an order for X to spend time with him on alternate weekends from 3pm Friday until 3pm Sunday;
·He would consent to an order for X to spend one half of the Term 1, 2 and 3 school holidays with him;
·He would consent to an order for X to spend half of the Christmas school holidays with each parent on a week about basis;
·He would oppose any order for his time to be supervised;
·He proposed that changeovers occur at Suburb KK McDonalds;
·He opposed any change of surname but if the Court were to make an order he would prefer that the surname be ‘Sedrick-Ambersley.’
The father then continued in cross-examination with counsel for the Independent Children’s Lawyer. He continued to be irascible and argumentative under fairly mild pressure in cross-examination.
When discussing the arrangements to recommence his time with X the father insisted,
‘I want the same afforded to me that Ms Ambersley had afforded to her.’
When asked by counsel for the Independent Children’s Lawyer about passports the father said he would not agree to sole parental responsibility because the mother could move with X to ‘anywhere in the world she wants’ and doesn’t want the mother ‘moving to Country LL which has been on the cards before 100%’.
He deflected questions about his prior non-compliance with court orders complaining;
‘How long you going to smash me for.’
and
‘I feel backed into a corner and I feel like I’ve been asked the same questions a million times to wear me down and it’s worked. I’m a good Dad. On the part I may have failed in I have picked up plenty other places. I’m a good Dad.
The Family Consultant Dr MM had been on standby to give her evidence later that afternoon. However, when the father failed to re-join the link after 2 hours, she was excused. In any event, the mother and legal representatives advised that they no longer required the Family Consultant for cross-examination.
During the submissions of counsel for the Independent Children’s Lawyer, the father sighed heavily, left his chair several times, opened a sliding door to let his dog out and on a second occasion walked out himself. While I accept that hearings conducted by AVL have an air of informality and litigants may not feel the same restraints on behaviour as if they were in a court-room, the father’s behaviour was disrespectful to the participants and to the Court.
Documents Relied Upon
The mother relied on the following material:-
a)her amended initiating application filed on 13 October 2020;
b)her affidavit filed on 14 October 2020; and
c)her Case Outline (Exhibit A).
The mother did not seek to call any other witnesses, in particular, did not seek to call her partner Mr H with whom she and X live.
Nevertheless, as a self-represented litigant, the mother was very well organised and had put much effort into complying with the Court’s directions. She impressed as an honest witness and a dedicated mother who has sought out appropriate medical and educative assistance for X upon him coming into her care. I am also satisfied that despite her criticisms of the father and their difficult, conflicted relationship, she genuinely accepts the father has an important role to play in the child’s life.
The father relies on the following documents:-
a)his amended response filed on 8 May 2020;
b)his affidavit filed on 15 October 2020; and
c)his Case Outline filed 16 November 2020 (Exhibit B).
I have described above the father’s behaviour during the hearing. He offered a multitude of excuses for his failure to comply with court orders, the unilateral decisions he has taken in relation to X’s accommodation and schooling and the apparent discrepancies in his report to agencies in the lead up to his suspension of the mother’s time. For these reasons I have difficulty accepting the father’s evidence. He appears to have little insight as to the impact of his behaviour and decision-making on the mother but more importantly on X.
The Independent Children’s Lawyer’s relied on the following documents:-
a)her Case Outline filed 5 May 2020 and minute of proposed order (Exhibit C); and
b)Tender Bundle of subpoenaed material – 84 pages (Exhibit D).
Family Consultant
Dr MM prepared a Family Report in these proceedings dated 12 June 2019. Dr MM was due to give evidence in the afternoon of the second day of hearing. However, the father’s 2 hour absence meant his evidence could not be completed as planned.
Dr MM’s report was almost 18 months old by the time of hearing. There have been numerous changes in these parent’s lives and of course for X who has moved to the primary care of the mother and had no face-to-face contact with his father for the last 8 months. In June 2019 the recommendations of the Family Consultant were:
[89] The family consultant finds it difficult in this situation to make clear and concise recommendations given the uncertainty regarding the father’s capacity to follow orders. Therefore, the following is suggested:
[90] The child and father relocate to an area that is local to the mother to facilitate a co-parenting arrangement. The child live with the father and have alternative weekends with the mother, in addition to extra overnight mid-week and additional time during extra-curricular activities and school events. Changeovers should all occur at the child’s school. The child’s school is negotiated and agreed to between the parents and both parents are listed on the enrolment form. However, this is only with the condition that the father will follow orders without exception.
[91] If the Court determines that the father and child returning to an area local to the mother is not the best outcome for the child, then the family consultant is of the view that the next best option is for the child to live with the father and have three out of four weekends with the mother with the father facilitating this time. In addition to equal shared care during school holidays. However, once more this is only with the condition that the father follows orders without exception.
[93] If the Court believes that the father will not follow orders then this will result in a disruption to the mother and child’s relationship and will cause harm to the child. In this case, it is recommended that the child relocate to live with the mother and have weekend time with the father in addition to equal shared care during school holidays.
Agreed Orders
On completion of the evidence, the Independent Children’s Lawyer provided the Court with a comprehensive minute of order that became the reference point for submissions. It was adopted by the mother with some minor variations, and by the father save for the orders in relation to parental responsibility, some aspects of his time, change of name, passports and parental communication.
The agreed orders were as follows:
1. That all previous parenting orders are discharged.
2. Deleted - Not agreed
3. The child live with the Mother.
4.The child spend time with the Father as agreed between the parties in writing, or failing agreement:
a.From 9am to 4pm each Saturday, commencing 21 November 2020 until and including 19 December 2020, thereafter
b. Deleted - Not agreed
c.Thereafter each alternate weekend from 9am on the Saturday until 4pm on the Sunday, commencing Saturday 2nd January 2021,
d.Thereafter each alternate weekend commencing on the second weekend after school resumes for the Term 1 2021, from 3.30pm Friday until 3.30pm the following Sunday, with the changeover to take place at Suburb B McDonald’s.
e.Deleted - Not agreed.
f.During Christmas school holidays commencing 2021 from 9am on the 1st Saturday after Christmas day for one week until 9am the next Saturday, and for 3rd and 5th weeks for the balance of the school holidays from 9am on the Saturday until 9am the following Saturday.
g.On Father’s Day each year from 5pm on the Saturday before Father’s Day, until 5pm Father’s Day; and
h.On the child’s birthday for 4 hours as agreed in writing between the parties, or failing agreement, between 3.30pm and 7.30pm.
5.The father’s time with the child shall be suspended each year from 5pm on the Saturday before Mother’s Day until 5pm Mother’s Day.
6. Deleted - Not agreed.
7.Each parent must keep the other informed of his or her residential address and contact phone number, each parent must notify the other in writing within 48 hours of any change in contact details.
8.Deleted - Not agreed.
9.Each parent shall keep each other informed about any significant medical appointments arranged for the child, to be advised by writing in the Communication Apps.
10.Each parent shall notify the other parent at the time of the event of any emergency medical treatment and/or hospitalisation that the child requires and/or receives.
11.Each parent shall inform the other parent of any medications prescribed by a registered medical or health practitioner for the child and provide the medication and appropriate instructions for its administration at the time of any handover, through text message or Communication App and ensure that the child takes the medication in accordance with the instructions provided.
12.These orders are sufficient authority for the child’s school to provide copies of all notices, reports and circulars relating to the child’s schooling sent to both parents. Specifically, the mother authorises the father to contact the child’s school with a view to gaining access to the school’s Compass App.
13.Each parent is authorised, subject to the requirements of the school, to attend all the child’s future school sporting and extra-curricular functions and events to which parents are ordinarily invited to attend.
14.That neither the mother nor the father denigrate, nor permit the child to remain in the presence of any other person denigrating, the other party or members of the other party’s family to the child to or in the presence of the child.
15.That in the event that the parents are unable to agree by consultation with each other about any significant issues in these Orders, they shall attend upon a qualified mediator in an effort to avoid further conflict between them.
16.The Father shall promptly enrol in and complete an Anger Management course conducted by D Counsellors or such other suitably qualified organisation as may be recommended by the manager of the Child Dispute Services in the Federal Circuit Court at Newcastle and provide evidence of the completion of his successful completion of the course to the mother.
17. Deleted - Not agreed.
18.Deleted - Not agreed.
19. Deleted - Not agreed.
20. Deleted - Not agreed.
Issues for Determination
The remaining issues in dispute therefore were:
a)Whether the parties should have equal shared parental responsibility or the mother have sole parental responsibility;
b)The father’s time on Christmas Day 2020;
c)The father’s time during the term school holidays;
d)The venue for changeovers outside of school;
e)The communication app that the parties should use;
f)Whether the child’s surname should be changed and if so whether it should be Ambersley-Sedrick or Sedrick-Ambersley;
g)Whether the mother should be permitted to obtain a passport for the child absent the father’s consent.
Proposals
The Independent Children’s Lawyer proposes the following orders in relation to the outstanding issues:
1.That the mother have sole parental responsibility for the child X born in 2010 (‘the child’).
2.The child spend time with the Father as agreed between the parents in writing, or failing agreement:
a)from 12 noon Christmas Day 2020 until 12 noon Boxing Day 2020.
b)During school holidays at the end of terms 1, 2 and 3 each year from 9am on the 1st Saturday of the school holiday period, until 9am on the mid Saturday of the school holiday period.
3.Changeovers shall take place at Suburb B McDonalds, C Street, Suburb B, unless agreed otherwise between the parties in writing.
4.A Communication App is to be used between the mother and the father to record matters related specifically to the child.
5.Without requiring the permission and/or consent and/or signature of the Father, Ms Ambersley (“the mother”) is authorised to apply to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that X be registered as X Ambersley-Sedrick.
6.Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the NSW Registrar of Births Deaths and Marriages shall register the child’s name as X Ambersley-Sedrick.
7.The mother shall forthwith serve a sealed copy of this Order upon the Registrar of Births, Deaths and Marriages.
8.That pursuant to section 11 of the Australian Passports Act 2005 (Cth), the mother be permitted to obtain a passport for the child X also known as X Ambersley-Sedrick born in 2010 in the absence of consent from the father.
The mother adopts the proposals of the Independent Children’s Lawyer save in the following respects:
1.The child spend time with the Father as agreed between the parents in writing, or failing agreement:
a)from 2pm Christmas Day 2020 until 2pm Boxing Day 2020.
b)An order that would permit X to spend time with Mr H’s children during the term school holidays.
The father adopts the proposals of the Independent Children’s Lawyer save in the following respects:
1.He proposes that the parties have equal shared parental responsibility for the child.
2.Changeovers other than at the child’s school should occur at McDonalds Suburb KK.
3.He proposes that communication between the parties in relation to parenting issues should utilise a specific parenting app.
4.He opposes any change of name for the child, but if the Court was minded otherwise, he proposes the surname be Sedrick-Ambersley.
5.He opposes the mother being permitted to obtain a passport for the child without his consent.
The Law
Part VII of the Family Law Act 1975 (‘the Act’) provides the statutory framework in which this Court exercises its powers to make parenting orders. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of child are met and details how those objectives are achieved and the principles that underlie those objects.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” in subsection (2) and the “additional considerations” in subsection (3) that the Court must consider in determining what is in a child’s best interests. The primary considerations set out in section 60CC(2) are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court must place greater weight on the need for protection referred to than on the benefit to a child of having a meaningful relationship where those two considerations are in contest.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. That section expressly provides that the power is subject to s 61DA of the Act. Section 61DA(1) of the Act requires the Court to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. However that presumption does not apply in circumstances of abuse or family violence within the meaning of the Act, and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
I now wish to consider the primary and additional considerations under section 60CC (2) and 60CC(3) of the Family Law Act 1975.
Primary Considerations
Section 60CC(2)(a) - the benefit of the child having a meaningful relationship with both of the child’s parents.
It is clear both from the observations and interviews conducted by the Family Consultant and from the parent’s own report, that X loves each of the parents and that they love him. Since separation both parents have pursued a peripatetic lifestyle that has involved several short lived relationships and multiple changes of residences.
X has endured numerous disruptions to his school and living environments as well as changes in his primary care. Following separation he was in a week about arrangement with each parent. Then he moved to the primary care of the father and there was a period of around 5 months when he had no contact or communication with the mother.
In July 2019 X moved to the primary care of the mother and in March 2020 the father decided to cease all time and communication, which had not re-commenced by the time of the final hearing 8 months later.
Since coming into her care, the mother has been committed to addressing X’s academic and medical issues.
The father says that his life is now more stable. His recent chaotic relationship with Ms F has ended, he has appropriate accommodation in Suburb E where he is working to build up his new business.
I am satisfied that each of the parents has much to offer X and that it is of benefit to the child to have a meaningful relationship with both parents, to be organised to ensure the stability, routine and predictability he needs but has not enjoyed up to this point.
Section 60CC(2)(b) - the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
The mother alleges family violence in her relationship with the father which the father denies. The parents have been separated since 2014 and issues of violence are not central to this current dispute. The parties raised no concerns of drug or alcohol misuse issues impacting the parents’ parenting capacity.
The mother deposes that,
‘Since February 2020, I have noticed that Mr Sedrick’s appearance has changed significantly – rapid weight loss and some of his teeth appear missing. I do not know why this has taken place but it gives me concerns about his mental headspace and capacity to take care of himself and X.’ [21]
[21] Mother’s affidavit filed 14 October 2020 at [99]
Certainly, the father’s displays of emotional dysregulation and anxiety during his evidence raised concerns for the Court about the father’s current mental health. R Public School report the father as ‘crying and manic’ though in cross-examination the father denied every presenting in such a way at the school.
However, neither party alleges that the child is at an unacceptable risk of harm in the other’s household which is reflected in their respective proposals.
The mother sought to introduce the prospect of the father’s time being supervised initially, stemming from a concern that X may be anxious having spent no time with the father for so many months. Sensibly, that was not pursued and she readily adopted the proposal of the Independent Children’s Lawyer for a graduated regime without the requirement of supervision.
Additional Considerations: Section 60CC(3)
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.
I am satisfied that X has a close attachment to both parents. They have both been his primary carer at certain times. The observations of the Family Consultant made in June 2019 remain relevant in my view. Dr MM wrote at paragraph 74 of her report:
X and the family consultant then built a Lego castle while chatting. Conversation with X indicated that he has a strong and important relationship with both parents he indicated that he enjoys his time with both parents and wouldn’t mind who he lived with as long as he had time with the other parent. X reflected on the time when he alternated weeks between parents and he noted that he prefers the current arrangement referring to living with one parent and having weekends with the other. He also reflected on the time he didn’t see his mother he noted that it was for about six months. He stated that not seeing his mother made him cry. He noted that he had told a lie about the mother’s boyfriend and his father thought it was best he stopped seeing his mother. X said he liked things much better now that he gets to see his mother.
The mother’s evidence is that X enjoys the ‘stability and routine at my place.’[22]
Section 60CC(3)(b), the nature of the relationship of the child with each of the child's parents and with any other persons
[22] Mother’s affidavit filed 14 October 2020 at [110]
In June 2019 the Family Consultant conducted observations of X with both of his parents and wrote,
X participated in observations with the father. It is noted that there was no change in X’s behaviour when interacting with the father. They spoke with ease, and sat close to one another sharing affection. At one point X sat on his father’s lap and the father stroked his hair in an affectionate way. X continued playing with the toys that were available to him, he showed things to the father and directed his attention. The father responded appropriately and engaged with X in a warm and child focussed manner. It was clear that X and his father maintain a loving and close relationship that was very comfortable for them both.[23]
[23] Family Report at [76]
I am satisfied that X loves both his parents. He has been living with his mother since July 2019 and I have no doubt that he enjoys a close and loving relationship with her.
He has not spent any time with the father since March 2020, however, the mother says that X loves his father and becomes anxious and upset when his father does not spend time with him or ring him. She says that X has fun with the father surfing and playing outdoors.
The mother and X now live with the mother’s partner Mr H and his three boys. The mother says that X and Mr H have a ‘healthy relationship’ and that the children get on well together. She deposes,
‘X enjoys playing with Mr H’s older sons, on the trampoline, doing backflips, wrestling and playing Fortnite. X also enjoys playing with Mr H’s three-year old son, playing with Lego, cars and drawing.’[24]
Section 60CC(3)(c) - the extent to which each of the child’s parent 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.
[24] Mother’s affidavit filed 14 October 2020 at [128]
It is obvious that this consideration was a significant issue in these proceedings.
Since X has come into her primary care, the mother has in my view been a most responsible parent. She has sought additional support for X’s schooling and medical needs and she has made very sound and sensible decisions.
The mother acted upon the suggestion of X’s teacher to have him assessed by Catholic Schools Office psychologist Ms NN. A copy of Ms NN’s report is annexed to the mother’s trial affidavit. She conducted assessments in March and May 2020 of X’s ‘academic progress and behaviours at school.’ X was said to be working below his peers across all key learning areas. Testing indicated,
‘significant issues with inattention, Learning Problems, Executive Functioning, DSM-5 SDHD Inattentive and DSM-5 ADHD Hyperactivity/Impulsive. The Screener items suggested further consideration be given to anxiety issues and depression issues.’[25]
[25] Mother’s affidavit filed 14 October 2020, Annexure I
In a further assessment conducted on 28 July 2020 Ms NN recommended that X would ‘benefit from an adjusted academic program’.
Following the release of the first report the mother consulted X’s general practitioner Dr OO at the Suburb O GP Clinic and obtained a referral to a paediatrician and mental health plan.
On 16 June 2020 X saw Dr PP at The City AA Paediatric Clinic. A copy of Dr PP’s report is annexed to the mother’s trial affidavit. Dr PP was of the opinion that X met the criteria for ADHD which in combination with his school absences had contributed to his learning deficits. Dr PP referred X for speech therapy and psychological management of his ADHD but also raised the option of medication (Ritalin).
It was the mother’s evidence that in consultation with his general practitioner and Dr PP, X started his Ritalin medication on 24 July 2020.
On 4 September 2020 X commenced seeing psychologist Mr QQ at RR Health in Suburb SS and has regular, fortnightly appointments. He has also recommenced speech therapy. The mother says that X has benefited from these interventions and that his teachers and treating medical practitioners have observed that the medication has had a positive impact on X’s functioning.
The mother does not seem to have much faith in the father’s ability to meet X’s medical and academic needs. She is critical of the father for ceasing X’s speech therapy and the changes of school, with some justification.
Certainly the father’s attempts to re-commence speech therapy with TT Centre at Suburb DD in June 2019 were not successful and the initial consultation was cancelled because of ‘financial constraints’.
On 18 June 2019 the father’s report to the speech practitioner at TT Centre that X’s ‘persistent stutter which is variable in severity from mild and minimally impacting communication to severe and having significant impact on communication’ appears at odds with his report to the Family Consultant just one month earlier in May 2019 that,
‘……..the decision [to cease the child’s speech therapy] was made in consultation with the child’s therapist. The therapy was occurring at school and it was not a positive experience for the child. In addition, his speech had improved significantly and it was suggested to the father that further improvement at this stage would be unlikely. The father noted that the current stutter that was clearly apparent during the family assessment had significantly reduced at the time that the decision was made to cease speech therapy. The father stated that they have always had the option to recommence if needed however at the time it was recommended by the child’s therapist to finish.’[26]
[26] Family Report at [64]
The mother has been critical of the father in failing to take up opportunities to spend time with or communicate with the child since March 2020.
The father asserts that the mother has obstructed his relationship the child and he took the ‘very difficult decision’ to stop seeing X in order to protect him from the parental conflict. I regret to say I find the father’s explanation unbelievable.
It was the father’s decision and his alone not to see X. Since separation the father prioritised other aspects of his life including his personal relationships, over his relationship with X. I do not accept there was any basis for the father’s belief that the mother was undermining his relationship with X rather, I find a lack of insight on the father’s part into the contribution of his own behaviour, conduct and choices he has made.
Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
The mother’s evidence was that she pays X’s school fees, uniforms, after school care, speech therapy, psychologist fees, medication, private health insurance, extra-curricular activities and all his basic needs without any assistance from the father.[27] She says that the father refuses to speak with the Child Support Agency to confirm that X is in her sole care.
[27] Mother’s affidavit filed 14 October 2020 at [115]
The father’s trial affidavit is silent on the issue of child support.
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 either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The orders upon which the parties have agreed will see no change to X’s primary residence with his mother. They will see X recommence time with his father, day time initially but increasing to overnight and alternate weekends fairly quickly.
I am satisfied that X will be able to cope with and in fact is likely to enjoy the recommencement of time, given his well-established relationship with his father. It will, however, require the parents to communicate in order to facilitate this arrangement. At present their communication is strained and having regard to their past, conflictive relationship it could prove challenging. The orders proposed by the Independent Children’s Lawyer will see the changeovers move away from the school which will ensure that school remains for X a place of refuge and respite from the parental dispute.
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.
The distance between the parents’ homes is approximately 60 kilometres (50 minutes driving time).[28]
[28] Google maps
Both parent’s appear to have drivers licence and access to a motor vehicle.
Neither raised any practical difficulty or expense (of such moment) in relation to the child spending time with the father other than the concerns raised by the mother with respect to the father’s proposal for changeovers to occur at Suburb KK. She said that she works at Suburb B and X’s school is at Suburb HH. If changeovers were at Suburb B as she proposes then she would be able to leave work at 2.55pm to collect X from school, drop him at the changeover venue and return to work. The Independent Children’s Lawyer proposed that changeovers occur at Suburb B McDonalds.
The father’s evidence was that he runs his own business which affords him some flexibility around his working arrangements. His employees would be able to keep the shop open while he collects X. Suburb KK is a location halfway between the parents’ residences and both parents should share the costs of transporting the child.
As the father has previously raised concerns about changeovers at school and his perception that the mother exercises some influence with teachers and staff, I am satisfied that it would be preferable for changeovers to occur at a more ‘neutral’ venue. The mother is employed on a full-time basis and has less flexibility around her hours of work than the father. She is also fully responsible for the support of their child.
For these reasons of costs and convenience changeovers will occur at McDonalds Suburb B.
Section 60CC(3)(f) - the capacity of each of the child's parents; and 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.
I have dealt with the consideration at length elsewhere in these Reasons.
However, I make one further observation and that is each party alleges that the other is providing the child with too much information regarding the parental conflict and is seeking or has sought to undermine their relationship with the child.
To his credit the father was able to recognise the sterling work undertaken by the mother to address and manage X’s specific learning, emotional and behavioural needs, describing the mother as the ‘academic champion’. The mother was able to appreciate the different dimension of care the father brings to his relationship with X.
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.
I have nothing to add under this factor.
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:
This is not a relevant consideration.
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Since July 2019 when X came into her care, the mother has taken the primary responsibility for providing for the child, financially and for his overall wellbeing. The mother has made sensible long term decisions for the child particularly with respect to health and education.
The father has failed to participate in these decisions and has withdrawn completely from X’s life since March 2020 which has undoubtedly caused the child distress. This single action amply demonstrates the impaired capacity of the father to recognise the emotional needs of the child.
Section 60CC(3)(j) & (k) -any family violence involving the child or a member of the child’s family.
There are cross-allegations of family violence during the relationship and the mother also reported the child complained that he could not sleep at the father’s home when he and his partner were fighting.[29]
[29] Family Report at [34]
There is no evidence of current or past apprehended violence order(s) being in place between the parties but there are current AVO proceedings in Suburb G Local Court between the father and his ex-partner Ms F.
The mother’s partner Mr H was named as a person in need of protection in an apprehended violence order made in January 2019 where a former neighbour was the defendant. The incident pre-dated the mother’s relationship with Mr H.
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
I intend to make final orders. The parties have been in litigation since 2014. They need, and the child deserves finality so that they can get on with their lives without the spectre of further litigation. However, given the level of distrust, there remains a high possibility that these parties will return to Court at some time in the future.
Parental Responsibility
Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The mother, supported by the Independent Children’s Lawyer, seeks an order for sole parental responsibility. The Independent Children’s Lawyer submits that the presumption should not apply in circumstances where the father has admitted sending abusive text messages to the mother.[30]Alternatively, she submits that the presumption should be rebutted because there is clear evidence that that these parents are unable to communicate in an effective and co-operative manner such that it would not be in X’s best interest for these parties to have equal shared parental responsibility.
[30] See father’s affidavit filed [38]
The father seeks an order for equal shared parental responsibility. He says there is a recent pattern of the mother of excluding him from decision-making. An order is necessary to ensure that he is not excluded from the child’s life as this would cause X long term emotional harm.
An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires that the parties “make a genuine effort to come to a joint decision.”[31]
[31] Family Law Act 1975 (Cth) s.65DAC(3)(b).
At paragraph [68] of the Family Report, the Family Consultant wrote,
‘There is minimal communication between the parents at the moment. The mother feels as though the father maintains all the control as he ceases facilitating the child’s relationship with the mother whenever the mother antagonises him or when she does not comply with his demands. The father is of the view that the parents attempts to communicate always ends in conflict and so he avoids this whenever possible. Both parents stated that if the other parent could prioritise the child and only communicate on issues that are directly related to him then their co-parenting capacity would improve.’
Despite the change in primary care or perhaps because of it, nothing appears to have changed for these parents. I am not satisfied that the parties are able to communicate with each other to resolve difficulties that might arise. They have a deep-seated mistrust of each other.
I am satisfied that the conflict between these parties is too pronounced and that it is in X best interests that one party should have sole parental responsibility, and that should be the party with whom the child primarily lives.
Having found that the presumption is rebutted and an order for equal shared parental responsibility cannot be made, s.65DAA of the Act is not engaged.
Father’s Time on Christmas Day 2020
The proposal of the Independent Children’s Lawyer was for the father to spend time with X from 12 noon Christmas Day 2020 until 12 noon Boxing Day 2020.
The mother sought a commencement and conclusion time of 2pm.
The father did not seek to be heard.
The later time of 2pm will allow X to have Christmas lunch with his mother and Christmas dinner with his father. There will therefore be an order as sought by the mother.
Father’s Time for the Term School Holidays
All parties agree that from 2021 X should spend one half of the term 1, 2 and 3 school holidays with the father.
The mother submits, however that the order should ensure that the week that X is in her care coincides with the week that her partner Mr H’s sons are with them.
The mother says the children all enjoy each other’s company and it would be unfortunate if they were unable to spend the holidays together.
Communication App
The parties agree that their co-parenting relationship would benefit from the use of a co-parenting app to reduce the need for direct communication about routine matters. The father was concerned that a mobile app such ‘WhatsApp’ would not be suitable.
A co-parenting app may alleviate tension and conflict and enable the father to be kept informed of important information concerning X’s education and health issues. There will be an order for the parents to utilise a co-parenting app for non-urgent issues in relation to X’s care. If the parties cannot agree upon an appropriate app then they consider using the Our Family Wizard App with the costs to be shared equally by them.
The Child’s Surname
The mother proposes that the child’s surname be changed from Sedrick to ‘Ambersley-Sedrick’.
The father opposes any change of surname but his evidence was that if there was to be a change of name he would prefer that his name be first in other words ‘Sedrick-Ambersley’.
The Full Court in Chapman & Palmer (1978) FLC 90-510 sets out the relevant factors which the Court must consider in determining whether or not there should be a change of name:-
a)The welfare of the child is a paramount consideration;
b)The short and long term effect of any change in the child’s name;
c)Any confusion of identity which may arise for the child if the name is or isn’t changed;
d)Any embarrassment likely to be experienced by the child of the name if the name is different from the parent who has the primary care;
e)The effect which any change of surname may have on the relationship between the child and the parent whose name the child bears; and
f)The effect of random and frequent changes of name.
In Beach & Semmler (1979) FCWA Connor J referred to additional matters relevant to a change of a child’s name:
a)The short and long-term advantages to the child of no change of name;
b)Extent of contact with the father (past and future);
c)Extent to which the child identifies with the father; and
d)Extent to which the child identifies with the mother.
In Reagan & Orton (2016) FamCA 330 at [34] Foster J said “the factors frequently considered in determining whether there should be any change to a child’s name include:
a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control.
b)Any confusion of identity which may arise for the child if his or her name is changed or not changed.
c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
d)The effect of frequent or random changes of name.
e)The contact any non-custodial parent has had and is likely to have in the future with the child.
f)The degree of identification that the child or children have with their non-custodial parent.
g)The degree of identification the child or children have with the parent with whom they live”.
The mother offered no evidence in her trial affidavit in relation to this issue but in cross-examination with counsel for the Independent Children’s Lawyer she said:
·The parents discussed the possibility of a hyphenated name before the child was born;
·X has spoken of wanting to be ‘part’ of both parents. The conversation arose as part of a Church initiative about name heritage and history;
·He already refers to himself at school at Ambersley-Sedrick; and
·She has not raised this with the father because she knows he will disagree.
X is aware that he has a different name from his mother who is his primary carer. He also refers to himself as Ambersley-Sedrick at school so is unlikely to be embarrassed by any formal change in surname.
I have previously found that X has a loving relationship with the father who as a consequence of the orders of this Court will ultimately spend substantial and significant time with him.
A hyphenated surname which includes the existing surname of the father and the additional surname of the mother, will enable the child to have a connection with both parents.
The mother’s evidence was that ‘Ambersley-Sedrick’ is easier for X to pronounce with his stutter.
I am satisfied that the hyphenated surname of ‘Ambersley-Sedrick’ will not diminish the child’s relationship with the father as the birth surname of Sedrick remains in the hyphenated surname.
Having considered the evidence and the submissions I am satisfied that it is in child’s best interest for their surname to be changed from Sedrick to Ambersley-Sedrick.
Passports
The mother seeks a passport for the child in order to travel overseas with either parent. It appears that the reason why the mother is seeking the order now, when there are no plans in the foreseeable future for travel, is because she is concerned that the father will be unreasonable and refuse when a request is subsequently made and which may result in further litigation.
In cross-examination with counsel for the Independent Children’s Lawyer the father agreed that the child should have his own passport but objected to the mother having sole parental responsibility in this respect for fear that the mother may take the child overseas permanently. The father was dismissive when counsel referred to the mother being resident and holding a permanent job in Australia but provided no credible evidence that the mother posed any flight risk.
The Court will therefore make orders for the mother to be able to obtain a passport for child without the father’s consent, if the father fails, refuses or delays signing a passport application. The absence of such an order is likely to lead to the institution of further proceedings.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of Judge Costigan
Date: 25 November 2020.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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