BAKKER & RALSTON - [2019] FamCA 75

FAMILY COURT OF AUSTRALIA

BAKKER & RALSTON

[2019] FamCA 75

FAMILY LAW – CHILDREN – Final hearing – Where there is one child aged eight years – Where it is agreed that the child will live with the mother – Where the mother seeks that the child spend four nights per fortnight with the father – Where the father seeks that the child spend five nights per fortnight with him – Where the expert did not have a strong view about whether the child should spend four or five nights with the father – Where the child and his father have a close relationship and the father has a lot to offer the child in terms of his parenting – Where it is ordered that the child spend five nights per fortnight with the father.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the mother and father both seek that they have sole parental responsibility for decisions relating to medical treatment – Where it is agreed that the parents will have equal shared parental responsibility in relation to decisions that do not relate to medical treatment – Where the father alleges that the mother has exaggerated the child’s illnesses in the past – Where the mother has behaved inappropriately in not informing the father of medical treatments in the past but the Court accepts that she is contrite and has acknowledged this error – Where the mother will have primary care of the child – Where it is practical for the mother to have sole parental responsibility for medical decisions with the proviso that she must consult with the father.

Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA, s 65AA, s 65DAA

Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Bondelmonte v Bondelmonte (2016) 259 CLR 662

APPLICANT:

Ms Bakker

RESPONDENT:

Mr Ralston

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

7826

2011

DATE DELIVERED:

21 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

9, 10, 11 and 13 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

FOR THE RESPONDENT:

Mr Ralston in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Tran

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The following final parenting orders are made in relation to the child T born on … 2010 (“the child” or “the child”).

By consent

Both parents are permitted to attend the child’s school and extra-curricular activities at which parental attendance is permitted, whether or not the child is in their care that weekend.
The parties each continue to consult with Dr B, psychologist not less than four times each year (unless otherwise recommended by Dr B) to assist with co-parenting the child and such counselling shall continue to be confidential and non-reportable.
By no later than 31 January each year, the mother shall provide the father with a list of the dates of all regular monthly Country HH language classes at the Country HH Church in Sydney and within 28 days thereafter the father shall advise the mother about whether he will ensure that the child will attend each class that falls during his time during the year. In the event that the father does not respond and/or indicates that he is not willing to take the child and any such classes fall on the father’s weekend:
(3.1)then the mother shall within 14 days thereafter nominate an alternative weekend either one week before or one week after; and,
(3.2)time shall then not occur on the weekend upon which the Country HH language class is scheduled but shall occur in lieu on the weekend nominated by the mother in accordance with this order.
If by agreement of both parties the child enrols in sports other than his chosen sport, he shall attend such sports events that fall during his time with each parent.

Costs

The mother and the father each pay the sum of $5,716.50 to NSW Legal Aid in payment of their respective contributions to the costs of the Independent Children’s Lawyer within 28 days of the date of this order.

Orders not by consent

Time with Father

The child shall spend time with the father during school term periods each alternate week from the conclusion of school on Thursday until the commencement of school on the following Tuesday.

Parental responsibility

Subject to these orders, the parties have equal shared parental responsibility in relation to all major long term issues relating to the care, welfare and development of the child.

Decisions about health issues

Subject to Orders 9 and 10 below, the mother shall have sole parental responsibility for all aspects of, and decisions in relation to, the child’s health provided that within 48 hours of any attendance on any health professional or institution, the mother shall notify the father in writing of such attendance, the reason for the same, any diagnosis made and recommendation and/or treatment provided.
In the event a decision is required about a long term medical and/or health related issue concerning the child, the mother shall have the ability to make the decision provided that:
(9.1)within 48 hours following any medical appointment concerning such issue, the mother shall notify the father in writing of:
(9.1.1)the medical/health issue which requires a decision;
(9.1.2)all options and recommendations advised by the medical practitioner(s) and provide to him copies of any reports which have been provided to the mother; and
(9.1.3)the decision that the mother is proposing to make;
and she seeks the father’s written response in relation thereto within seven days;
(9.2)the mother shall consider, by reference to the best interests of the child, any such response from the father prior to making any such decision; and
(9.3)the mother shall advise the father in writing of the mother’s ultimate decision not later than 48 hours after the decision has been made.
In relation to medical/health related matters generally:
(10.1)the parties shall ensure that the child attends at first instance upon a medical practitioner from the II Health Centre (“the II health centre”) except for the following:
(10.1.1)in the event the II health centre is not open or it is not practicable to do so, in which case the parties shall take the child to the Suburb JJ Medical Health Centre; or
(10.1.2)in the case of an emergency.
Within 42 days the father and the mother do all things and sign all documents necessary to place the child on the waiting list of KK School, LL School and any other school as agreed between them.
the child shall continue to attend at MB School until such time as the child is offered a position at:
(12.1)KK School; or
(12.2)LL School; or
(12.3)in the event that the child is unsuccessful in being offered a position at either two schools and the parties cannot reach agreement about an alternative high school, the child shall attend MM School, for his secondary schooling, noting that is the local high school.
Both parents shall ensure that the child attends his scheduled sport competition games, fixtures and presentation days that fall during the child’s time with the parent.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7826 of 2011

Ms Bakker

Applicant

And

Mr Ralston

Respondent

REASONS FOR JUDGMENT

Introduction

These are final parenting proceedings in relation to the child, T born in 2010 and currently almost nine years of age (“the child”). His parents are Mr Ralston (“the father”) and Ms Bakker (“the mother”).

Applications

To their credit, at the commencement of the hearing, the parents resolved many aspects of their parenting applications. I then made consent orders dealing with these aspects. Those orders are as follows:
BY CONSENT (9 October 2017)
(1)BY CONSENT orders be made in accordance with the Minute of Orders, as amended, filed in Court today, signed by the parents, the Independent Children’s Lawyer and by me and placed with the Court papers as set out hereunder:
1.Each parent shall notify the other by email or sms of their intention to consult with a health/medical professional for the child prior to attending upon such health/medical professional including providing details of that professional.
2.That each parent shall ensure that they authorise any health/medical professionals to consult with and provide information to the other parent.
3.In the case of the child experiencing a medical emergency, the Mother and Father shall immediately seek medical treatment for the child and shall immediately inform the other parent by calling that person’s mobile telephone and forwarding a text message setting out details of the emergency and treatment obtained for the child.
4.That the parties are at liberty to provide a copy of these Orders to any medical practitioner, or other health professional, upon whom the child attends.
5.That the child live with the Mother.
6.That the child spend time with the Father as follows:
6.1    During school holiday period at the conclusion of Term 4, 2017:
6.1.1.From 11.00am 25 December 2017 until 11.00am 26 December 2017
6.1.2.From 12noon 30 December 2017 until 12noon 6 January 2018
6.1.3.From 12noon 17 January 2018 until 12noon Saturday 27 January 2018
6.2    During school holiday periods at the conclusion of Terms 1, 3 and 4 from 2018 onwards, for the first half of each school holiday period in 2018 and each alternate year thereafter and for the second half of each school holiday period in 2019 and each alternate year thereafter.
6.3    During the school holiday periods at the conclusion of Term 2 for one half of each school holiday period save that if the mother wishes to take the child to [Country HH] then she is at liberty to do so for a period up to 3 weeks and the Father’s time shall be suspended during that period. In the event part of this time is to occur during the school term, the Mother shall advise the Father that the school does not object to the proposed absence.
6.4    Father’s Day from 9am Sunday until the commencement of school (or 9am) on Monday.
6.5    Such other times as are agreed between the parties, including compensatory time in the event the Mother suspends the Father’s time pursuant to Order 6.3 as agreed and failing agreement for an additional 8 consecutive nights in the immediately following school holiday period (being that at the conclusion of Term 3).
7.That for the purpose of implementing Order 6:
7.1    each school holiday period shall commence as from the conclusion of the last day of school and shall conclude at the commencement of school on the first day of term; and
7.2    The “midpoint” shall be that day falling at the middle of the period defined in Order 7.1 and, in the event of an add number of nights in such period, the midpoint shall be determined by the first half being one day longer than the second half of such period.
8.That either party may travel with the child to any Hague Convention Country provided they provide the other parent with written notice and travel details not less than 3 months prior to the intended departure date and such travel is during that parent’s time pursuant to these orders and within the school holidays (other than as agreed between the parties or pursuant to Order 6.3).
9.That for the purposes of travel, the Mother shall retain the child’s passport and shall provide the same to the Father in the event the Father intends to travel with the child pursuant to Order 8 not less than 21 days prior to intended departure and the Father shall return the passport to the Mother not more than 21 days following return.
10.That in the event that either parent travels interstate with the child, they shall notify the other parent of the destination, details of accommodation and dates of travel not less than one (1) month prior to the proposed departure date.
11.That for the purposes of facilitating changeovers that do not occur at school, the parties shall meet at the Mother’s residence at the commencement and conclusion of time or such other place as agreed between the parties.
12.That the parent with whom the child is not living shall be at liberty to communicate with the child by phone or other electronic means at 8.00am on alternate days as agreed between the parties.
13.That the Father’s time shall be suspended on Mother’s Day from 9am Sunday to the commencement of school (or 9am) Monday.
14.Each parent is to notify the other in writing at least 2 months in advance of any intention to change the child’s residence, providing the address, and if an address is not known, the suburb where they intend to relocate.
15.Both parties are to do all acts and things necessary to ensure that the child’s passport is renewed before it expires and each party shall pay half of the costs of renewal.
But a number of the parenting orders sought remained in contention.
To the parties’ further credit, by the time of final submissions they had resolved their differences about education and schooling (largely), counselling with Dr B and the child’s Country HH language classes. I shall make such orders by consent (except schooling).
What remained for determination were the issues of the amount of alternate weekend time to be spent between the child and the father, which parent would have sole parental responsibility for matters relating to the child’s health and medical treatment, and there was also a slight difference between the parties concerning an aspect of the child’s sport training.
The mother seeks an order that the parties have equal shared parental responsibility in relation to all major long term issues relating to the care, welfare and development of the child but subject to the following:
·the mother have the sole parental responsibility for all decisions in relation to the child’s health subject to certain notification to the father as specified and consideration of any views expressed by him; and
·the mother and father ensure that other than in an emergency the child attends at first instance upon a general medical practitioner from the II Health Centre and that if it is not open or it is not practicable to do so, the child shall attend the Suburb JJ Medical Health Centre unless referred by a general medical practitioner from the Centre.
The mother also seeks that the child spend time with the father as follows:
·each second weekend during school terms from after school Thursday until the commencement of school Monday;
·during school holidays as specified.
The mother also seeks other orders as follows:
·that the child attends his compulsory sport training events and other sport commitments that fall during weekends when he is in the care of either parent; and
·both parents be permitted to attend the child’s school and extra school curricular activities whether or not he is in their care that weekend.
The father seeks orders that he have sole parental responsibility for medical issues concerning the child on the basis that if the parents are unable to agree about a decision the father shall make the decision provided that:
·the father notifies the mother in writing of the issue requiring a decision and sets out the possible options, as well as the father’s preferred option;
·the father seeks the mother’s written response thereto;
·provided that the mother has provided a written reply within seven days the father considers by reference to the best interests of the child the mother’s response prior to making the decision; and
·the father advise the mother in writing as soon as reasonably practicable of his ultimate decision and not later than 48 hours after having made the decision.
The father seeks an order that Dr NN at the Suburb JJ Medical and Dental Centre (or other available doctor at the same practice) is to be the child’s general practitioner, that practice being the only place where practitioners provide general medical services in respect of the child other than in the event of an emergency or in the event that this centre is not open.
The father seeks an order that the child live with him on the following basis:
·each alternate week from Thursday after school until the following Tuesday before school;
·orders for special days as specified and orders for school holiday time as specified;
·at any other time when the mother is in hospital for medical reasons; and
·upon any occasion when the mother travels for any reason without the child.
The Independent Children’s Lawyer (“ICL”) sought similar orders in relation to parental responsibility as the mother. The ICL also sought that the child spend time with the father during school terms each alternate weekend from after school Thursday to before school Monday.
Annexed at Annexure “A” to these Reasons are the detailed orders sought by each of the parties.

Background

The father was born in August 1962.
The mother was born on in 1972 in Country HH.
In 2002 the mother moved to Australia permanently. She has resided in Australia ever since.
In 2004 the mother was employed at the Z University. She is still currently employed in this role.
The parties commenced their relationship in 2008.
The parties commenced cohabitation on 21 April 2009.
In 2010, the child was born.
By early 2011 the parties were experiencing difficulty with the child’s sleeping. On 1 February 2011 the mother and child commenced a program at KK Centre. They were discharged from the program on 4 May 2011. The KK Centre notes record that there was a “Big Improvement”.
In 2011, the mother had her thyroid removed due to a multi-nodular goiter.
The parties separated on a final basis on 16 November 2011.
In December 2011, the father filed a parenting application seeking for the child to live with him and spend time with the mother.
In early 2012 the child commenced at day care. The staff there became concerned about his behaviour. His expressive and receptive language skills were poor and he was frustrated, unhappy and biting a lot.
On 1 May 2012 the child had his first episode of croup. The mother took him to OO Hospital Emergency Department when she heard the child wheezing, crying and experiencing difficulties breathing. The child was prescribed steroids for two days.
On 26 May 2012 the mother took the child to OO Hospital Emergency Department as he was having difficulty breathing. The child was given steroids and oxygen.
Between 2013 and 2015, the child suffered from further episodes of croup on 12 March 2013, 5 May 2014, 23 May 2014 and 12 March 2015.
In 2013 the maternal grandfather, Mr Bakker (“Mr Bakker”), migrated from Country HH to Australia. He has lived with the mother since this time.

On 17 October 2013 final orders were made by Justice Fowler to the effect that the parents have equal shared parental responsibility and that the child live with the mother and spend time with the father. The child’s time with his father was to gradually increase until he would be spending five nights per fortnight with the father.
On 14 November 2013 the mother filed a Notice of Appeal against the final orders made on 17 October 2013. She sought that the orders allowing the child to spend more than three nights per fortnight with the father be discharged.
On 10 February 2014 the matter was listed for hearing and orders were made by consent by Justice Ainslie-Wallace in relation to both parenting and financial matters. Orders were made for the parents to have equal shared parental responsibility and for the child to live with the mother and spend time with the father. The child’s time with the father was to gradually increase until he would be spending three nights per fortnight with the father from Friday afternoon to Monday morning each alternate week.
On 5 May 2014 the mother called an ambulance in the middle of the night as the child was suffering from severe croup.
On 23 May 2014 the child had his adenoids removed.
On 5 November 2014 the mother filed an Initiating Application seeking to vary the parenting orders made by consent on 10 February 2014. Her application sought to delay the progression of time with the father as set out in the previous orders.
On 7 December 2014 the child had his tonsils removed.
On 2 February 2015 orders were made by Judge Scarlett for the appointment of an ICL and for the matter to be transferred to the Family Court of Australia.
On 4 May 2015 orders were made by consent by Registrar Ryan for the appointment of Dr M as a single expert witness.
From 13 July 2015 to 24 July 2015, the mother, the child and Mr Bakker travelled to OO Town for a holiday.
In September 2015 the mother asserts that the child began spending three nights per fortnight with the father. The father argues that he began spending three nights per fortnight with the child regularly from Friday afternoon to Monday morning when the child commenced school in February 2016.
In September 2015 the mother filed an Application in a Case regarding where the child would commence school in 2016 as the parents were unable to reach an agreement.
On 23 October 2015 orders were made by Justice Watts providing that the child attend MB School.
On 13 November 2015 the father filed a contravention application in response to the mother not providing the child at 6.00 pm on 9 October 2015 and only allowing the father to spend time with the child from 11.00 am on 10 October 2015.
In 2015 the mother was diagnosed with severe gastro-oesophageal reflux. On 8 December 2015 the mother underwent major stomach surgery at Sydney Adventist Hospital to correct the gastro-oesophageal reflux.
On 19 January 2016 an interim order was made by Senior Registrar Campbell restraining the mother from changing the child’s residence outside an area greater than 15 kilometres by road from MB School without the father’s consent.
In February 2016, the child commenced Kindergarten at MB School.
In late March 2016 the mother commenced a relationship with Dr PP (“Dr PP”). Dr PP has two adult children of his own, QQ and RR. He had been the family dentist for some years.
From 29 June 2016 to 22 July 2016, the mother, the child and Mr Bakker travelled to Country HH.
In January 2017 the mother, Dr PP, Dr PP’s son QQ and Mr Bakker travelled to Asia.
From 23 January 2017 to 27 January 2017 the father and the child travelled to OO Town.
In late April 2017 Dr PP commenced living with the mother at her home.
From 29 June 2017 to 16 July 2017, the mother, the child, Dr PP and Mr Bakker travelled to Country HH.
In mid-2017 the mother discovered that she was pregnant. She had previously had two miscarriages in the first trimester.
In August 2017, Dr PP purchased a half share of the mother’s property situate and known as SS Street, Suburb MB. It is now owned by the mother and Dr PP in joint names. It is a seven bedroom house and it accommodates the mother, her father Mr Bakker, Dr PP and the child. The child spends time with Mr Bakker daily while in the mother’s care. They live a two minute drive from the child’s school.
The father currently rents a two-bedroom apartment in Suburb TT where the child has his own room. He works as a Chief Operating Officer for a company based in NSW.

Credit

The Mother

The mother was forthcoming and responsive in her answers to questions during cross-examination. She appeared to me to be taking considerable care with her answers.
She made concessions in respect of numerous matters.

Dr Pp

Dr PP is the mother’s partner and they commenced cohabitation in April 2017.
Dr PP swore an affidavit which has come into the evidence unchallenged.

Mr Bakker

Mr Bakker is the mother’s father. Mr Bakker swore an affidavit which has come into the evidence unchallenged.

Dr V

Dr V has been the mother’s general medical practitioner since 2003. He had previously been the doctor also for the father but their relationship ceased in 2011. Dr V has also been the treating doctor for the child. Dr V said that the conflict between the parties caused him great difficulty in providing treatment to the child and as a result he is no longer the child’s doctor.
Dr V was responsive to questions. He impressed me as being thoughtful with his responses and was cooperative with the process.
I have no hesitation in accepting Dr V as a witness of the truth.

Dr UU

Dr UU is a consultant psychiatrist. Dr UU was engaged by the mother for the purposes of an assessment and, if appropriate, for recommendations and/or treatment.
Dr UU has extensive experience as an expert. He has prepared many expert reports on families who have been involved in proceedings in this Court.
I have no hesitation in regarding him as a witness of the truth.

The Father

The father appeared to have quite some difficulty with the process of cross‑examination. On numerous occasions he was unable to provide a responsive answer to questions during cross-examination. Time and again instead of providing a simple and obvious answer to a question he gave an answer which it appeared to me he probably perceived as being favourable to his case. Many times senior counsel asked him not to do this and to provide a responsive answer. Yet he remained unable to do so.
It was not always the case that he was able to make concessions. In all these circumstances, I have reservations about the reliability of the father’s evidence.

Dr M

Dr M is the child, family and adult psychiatrist appointed as a Chapter 15 expert in these proceedings. Dr M has high qualifications and extensive experience with families involved in litigation. I have no hesitation in accepting him as a reliable witness.

Sport training

It is clear that the child is a talented at sport. He has been playing sport for some years and it is common ground that he is passionate about his sport.
Much of his week is devoted to training for the sport and playing games. But there is an issue concerning his sport training. Compulsory training for his competition is conducted on a cycle of week nights. There is no dispute that the child should continue to attend such training. There is additional training which he has been undertaking on Saturdays. This is also the day when he plays in the sport competition.
The mother is most desirous for the child to do this training on Saturdays and says that it is in his interests that he do this every Saturday when it is available, including during times when he is spending time with the father. The father is generally very supportive of the child’s commitment to his sport. He said that he has been a sportsperson himself. But his view is that the midweek afternoon training is sufficient. He does not support the child attending the Saturday sport training because it impinges on his time with the child and says it is in the child’s interests to enjoy activities with him on Saturdays which do not involve sport.
I accept the father’s opinion about this matter and do not propose to order the father to commit the child to the additional training on Saturdays. I accept that it is important for the child to participate in activities other than sport on Saturdays and accept that the parents otherwise have provided admirable opportunity for the child to indulge his developing passion and skill in sport.

Extra-curricular and school activities

The mother sought that both parents be permitted to attend the child’s school and extra-curricular activities whether or not he is in that parent’s care or not. The father opposed this initially. But he indicated during his final submissions that he agreed to the order proposed by the ICL about this. I shall make such order.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
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 (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Subsection 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must 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.
Subsection 61DA(2) of the Act provides in effect that 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 abuse of the child or another child member of the parent’s family or family violence.
Subsection 61DA(4) provides to the effect that 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 for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461 and Bondelmonte v Bondelmonte (2016) 259 CLR 662.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him.
As indicated above, in this case, the parents have agreed that they will have equal shared parental responsibility for the child except in relation to health and medical decisions. Each of them seeks the sole responsibility for making such decisions. Moreover, the parties agree that they could not share this responsibility and in the child’s interests the Court must determine which of them is to be allocated this responsibility.

Time between the child and the father

Although the parents have agreed that they will have equal shared parental responsibility this is not without qualification. In these circumstances, in my view, the requirement for the Court to first consider an order for the child to spend equal time with each parent if in his best interests and reasonably practicable does not apply as a matter of law. In any event, neither of the parents seeks that the child spend equal time with them. To his credit, the father has acknowledged that the child has been thriving under the current arrangements in which he lives primarily with his mother and has been spending alternate weekends from after school Friday to before school Monday with his father. In my view, this alternate weekend arrangement is one in which the child is spending “substantial and significant time” with each of his parents.
As indicated above, the mother seeks an order that this be extended to commence from after school Thursday and conclude before school the following Monday each alternate weekend. Where the parents differ is that the father seeks to have his time with the child extended so that instead of this concluding before school on Mondays it would be extended to before school on Tuesdays. The mother opposes the father’s application to extend time in this manner.
The governing principle is that because the Court is being asked to make a particular parenting order in relation to the child the best interests principle applies as the paramount consideration (s 60CA).

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 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

Dr M said that the child expressed his views in a manner consistent with his observed behaviour. He said that he loved his mother and maternal grandfather and felt well cared for by them. Dr M said accordingly the child wanted to live with them.
Dr M said that the child also delighted in his contact with his father, that they enjoy a loving and close relationship. He said that the child wanted to have more overnight contact with his father but this was in the context now quite some time ago when the child was having very limited overnight time with his father which is no longer the case.

Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

There is no question that the child has a close, loving relationship with each of his parents. Dr M said that he observed “a loving and connected relationship between the child and each of his parents”.
The child also has a close relationship with his maternal grandfather and with his step-father.

Subsection 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

Each of the parents has been involved in making decisions about major long‑term matters in relation to the child. As indicated above, there have been difficulties. Each of the parents has asked the Court to give them sole parental responsibility for making decisions about health and medical matters. They each want to have this responsibility to the exclusion of the other. Each of them appears to have great enthusiasm for this.
The mother has tended to make the important decisions about taking the child to doctors. For example, the mother made the decision for the child to have an adenoidectomy, which she did not inform the father about until after the operation had been completed. This has been a great source of frustration to the father, quite reasonably in my view.
Each of them would like to spend as much time as possible in parenting the child and this has been a source of disputation. The father has been frustrated that he has not been permitted as much time with the child as he would like. On the other hand, the mother has held the view that it has taken the child quite some time to be ready to spend extended periods, particularly during school holidays, with the father.
It is the case that there were some difficulties in October 2015 in that the mother limited the child’s time with the father. But as indicated above, from November 2015 there have been no difficulties with the child spending from after school Friday to before school Monday each alternate weekend. And from approximately 2015 the mother made additional time available for the child to spend with the father during school holidays on a progressive basis.

Subsection 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

There is no issue about this.

Subsection 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 the child has been living

I am not of the view that separating the child from his mother by one additional night per fortnight would have detrimental effect upon him. But I shall refer to this matter again below.

Subsection 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

At an earlier time in the history of this family this might have been an issue. The mother had considered relocating to the WW Region. But this is no longer the case. The parents live reasonably close to one another.

Subsection 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

Dr M described both parents as having a high-level capacity to provide for the child’s needs, including his emotional and intellectual needs. Dr M referred to an earlier complaint by the mother to the child’s school expressing concerns that the father lacked the capacity to attend to the child’s reading. Dr M said that there was no evidence to support that and considered the mother’s complaint in this regard to be inappropriate. He had spoken with the school principal who was also perplexed by the mother’s need to inform the school of what he described as “the background parental conflict”.
Dr M described the mother as having an excessive focus on the child’s developmental and health vulnerabilities and said that her parenting capability was impaired by her fixation on her own plans. I shall refer to this again below.
Dr M described the father as thoughtful and competent. But he also said that the father had been deliberately undermining of the mother’s path of care. I shall also refer to this again below.

Subsection 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

As indicated above, the mother and her father were born in Country HH. The mother has made visits with the child to Country HH on several occasions. They attend the Country HH Church in Sydney. The mother has enrolled the child in Country HH language classes. The father indicated during cross-examination that he is happy for the child to attend Country HH language classes although he did not want this to occur during the child’s time with him.
In my view, all these experiences should assist the child in an understanding of the Country HH side of his heritage.

Subsection 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

This is not relevant.

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

Each of the parents has a great love and commitment to the child. They are both very involved in his care. But their ongoing conflict is not in the interests of the child. To their credit, they have sought assistance from Dr B and have agreed to return to her for therapy.

Subsection 60CC(3)(j) – any family violence involving the child or a member of the child's family

This is not relevant.

Subsection 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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter

This is not relevant.

Subsection 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

These parties have been in dispute about the parenting arrangements for the child over many years. It is difficult to know what order might be least likely to lead to further litigation.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

Nothing further has been raised that requires consideration under this subsection.

Primary Considerations and time spent

As indicated above, the first of the primary considerations is the benefit to the child of having a meaningful relationship with both of his parents. Dr M made it very clear that it is most important for the child to be able to continue to develop the close, meaningful relationship he has with his father. He said that the five nights per fortnight proposed by the father would certainly amount to significant and substantive time and would facilitate such meaningful relationship although Dr M added that he did not have a strong view about whether this time should be four or five nights per fortnight.
It was submitted on behalf of the mother that any increase in time such as that proposed by the father would push the fortnightly time spent by the child with his father closer towards an equal shared arrangement. It was suggested that given the poor level of communication between these parents and their demonstrated poor record of not being able to co-parent the child, to add two additional nights to what he has been experiencing would not be in his interests. It was also submitted that what the father proposes would involve another evening for the child during the school week with all the logistics, including the need for the father to attend to more homework for the child and be involved in all the physical aspects, including taking books and school uniforms and other such practical matters and that this could be disruptive of the child’s settlement during the school week.
Dr M did say that if the extra time was a school day and night, this would have the advantage for the child of his father having an opportunity to be more engaged in the child’s experience at school. He added a cautionary note that if this opportunity was to become a source of disputation or misunderstanding between the parents, such as perhaps some difficulty with homework, this would not be in the child’s best interests. He said that the more time intrudes into the school week the more the risk of conflict between parents.
Dr M reported that during interview, the mother understood that it was not good for the child not to see his father for 10 days at a time. This would be the position if their fortnightly time was four nights.
The ICL supported the mother’s proposed four nights per fortnight. The father proposed that time would be four nights per fortnight for a period then change to five nights per fortnight. The ICL submitted that history has shown that for these parents change opens opportunity for conflict and such would not be in the child’s interests and such would not be in the child’s interests.
In my view, it would be in the child’s interests to have the time with his father as proposed by the father. It is clear that they have a close relationship, that the child enjoys his time with his father and that the father has a lot to offer the child in terms of his parenting, including involvement in the child’s education. I am not persuaded that the practical matters would be unduly burdensome. I also note that changeovers have been proceeding well which provides some confidence that extending the time will not cause conflict.

Medical and health decisions

As indicated above, each of the parents desires to have sole parental responsibility for making decisions about the child’s health and medical treatment. Each is critical of the other in relation to the management of aspects of the child’s health in the past. At an early stage of the hearing I informed the parties that I proposed to focus on relevant matters which occurred after the substantive parenting orders were made, namely 10 February 2014.
Having said this, for completeness, and to provide context I shall refer to some historical matters prior to this date. But I shall not refer to any criticism one way or the other about such events.
The father said that the mother said that a chiropractor, Dr WN, informed her that one of the child’s legs was 3cm longer than the other. The father said that in numerous emails and affidavits the mother had exaggerated the amount of difference between the length of the child’s legs. The father said that in a report by Dr WN he made no mention of any such characteristic of the child. The mother said that the child was not receiving any treatment for any difference in his leg lengths.
In my view, it is clear that the child had behavioural difficulties and delayed speech and language in mid-2012 at age 28 months.
From July 2012 the child attended upon Ms P for speech therapy for some years.
Between 2012 and 2013 the child attended a paediatric occupational therapist, Ms G. In September 2012 Ms G diagnosed the child as having a Sensory Processing Disorder.
In December 2012 Dr V, the child’s general medical practitioner, referred the child to Dr S, developmental paediatrician, for management of his Sensory Processing Disorder. Dr S reported that the child did not have an Autism Spectrum Disorder but considered that he fulfilled the criteria for a Pervasive Development Disorder – Not Otherwise Specified. This qualified him for funding for therapy. Dr S said that the child needed to continue speech therapy and occupational therapy.
In early 2013 the child commenced speech therapy and further occupational therapy.
In June 2013 Dr S recommended that the child continue speech therapy and have a normal diet. Dr S confirmed that he did not have an Autism Spectrum Disorder or a Pervasive Developmental Disorder.
In 2013 the child was biting children in his childcare group. The Director of the childcare centre arranged for Ms LK, occupational therapist, to undertake an assessment of the child.
Dr V said that in 2013 and 2014 the child experienced frequent illnesses, more so than he would consider normal for a child his age. He said that this was due to the high frequency and severity of the child’s infections.
In February 2014 Dr V diagnosed the child as suffering from chronic tonsillitis, recurrent respiratory tract infections, sinusitis and enlarged adenoids. During 2013 and 2014 the child also suffered a number of episodes of croup, which apparently can be life-threatening.
Four episodes of the child’s croup have required medical treatment at XX Hospital. An episode in May 2014 involved the child being taken by ambulance to hospital and was very severe and life‑threatening.
Dr V advised both parents to have the child sleep close to them so that they could be vigilant about his croup, particularly during croup season (February to August) and store in the refrigerator the prescribed croup steroid medicine.
The mother wanted the child to see an ear, nose and throat specialist. The father did not.
In May 2014 Dr YY, ear nose and throat surgeon, recommended an adenoidectomy. This operation was performed on 23 May 2014. As indicated above, the mother did not consult the father about this and the father was not aware of the operation until after its completion.
In mid-2014 the father suggested that the mother had been dilatory in arranging for the child to have his vaccinations. The mother said that Dr NN had recommended postponement of the vaccinations until the child had recovered from his respiratory illnesses. In my view, the mother acted appropriately.
In December 2014 Dr YY removed the child’s tonsils. This time both parents consented to the operation. Prior to the appointment the father wrote to the mother informing her about concerns that he had about the possibility of the child picking up an infection from the hospital. He wanted to be able to use what he described as a hydroxyl machine to clean the relevant hospital room and asked the mother to raise this with officials of the hospital. The father complained that the mother did not respond to this request to clean the room. The mother explained that she did not feel that she could comment on this because it was a matter for the hospital to decide issues of cleanliness of their rooms and not something that she felt that she could become involved in.
In late January 2015 Dr V referred the child to Dr ZZ for allergy testing. Upon the mother informing the father about the appointment the father indicated he did not agree to this procedure. The mother proceeded with the allergy test. In February 2015 the child tested positive for dust mite allergy. He was prescribed a sublingual vaccine by Dr ZZ.
During 2015 the child continued to suffer from infections and breathing difficulty. Dr V recommended continuation of a maintenance supplement regime for the child. There was disagreement between the parents about the child taking various nutritional supplements recommended by Dr V.
In 2016 the mother arranged for the child to have a baby tooth extracted. The father complained that he was not consulted about this. In my view, this was a minor procedure and the mother ought not be criticised.
By 16 November 2016 Dr V considered the child to be out of the “danger zone” of croup. He had not experienced an episode of croup since March 2015.
On 16 December 2016 the father informed the mother that the child had a sore leg and informed her that he proposed to take him to the doctor. The mother said that she would like him to see his usual doctor, Dr V, she said because Dr V was also a trained chiropractor. Apparently Dr V recommended exercises for the child which the mother said he did with his maternal grandfather each day. The father suggested that they take the child to a physiotherapist but the mother said she thought they should see whether the exercises improved the child’s condition first.
In April 2017 Dr V informed the mother that he was no longer prepared to act as the child’s doctor. In his affidavit he said he had made this decision because of the high level of conflict between the parents. He also said that he has had ongoing difficulty communicating with the father and that the father has resisted acting on Dr V’s recommendations. He said that he considered it impossible to continue to treat the child without the father’s support.
It is clear that there have been difficulties between the father and Dr V. But I accept that some of the communications (certainly some emails) from the father to Dr V have been respectful and collaborative.
In his report, Dr M supported the father being provided with sole parental responsibility. Dr M supported the father’s view that the mother’s focus on the child’s physical care was at times excessive. He also noted that the mother had not informed the father of the child’s (adenoidectomy) surgery immediately prior to a contact visit and therefore the child’s physical care could have been compromised due to the father’s lack of awareness of potential post-operative complications.
Dr M also said that it was probable that there was a psychomatic contribution to the mother’s multiple medical problems.
At paragraph 64 of his report Dr M said as follows:
Her personality was seen to be the primary driving force behind the unusual approach to the child’s developmental experience. This involved an excessive focus on developmental and health vulnerabilities, to the point of seeking current intervention when there were no evident problems. This raised questions about the veracity of her previous assertions of the child’s developmental vulnerabilities. It was noted that the child had had extensive intervention for a Sensory Processing Disorder and that she had sought a diagnosis of an Autistic Spectrum Disorder to assist in funding for this intervention, despite acknowledging that there was no evidence of an Autistic Spectrum Disorder. Her statements regarding the child’s mental health and behavioural difficulties had been inconsistent. This was suggestive of elaboration and the possibility of factitious presentation of symptoms. The recent communication with the school concerning the child’s reported experience of anxiety and immediate retraction and denial of such statements was viewed as the exemplar of this. Similarly, her repeated proposal to relocate the child’s school, despite the father’s objection and lack of support of the Court, highlighted her difficulty in accepting an alternative viewpoint. The father was seen to be justified in his view that she was unwilling to accept any communication or recommendations from him with regard to the child’s care, even when this had the support of Dr B. Thus, the mother’s parenting capability was seen to be impaired by her fixation on her own plans, regardless of the feedback of others …
In my view, the evidence demonstrates that the father has a somewhat more “laissez-faire” approach to the medical management of the child than does the mother. The father regards the mother as having exaggerated the child’s medical needs. He has developed an opinion that there has been a somewhat unhealthy or pathological aspect to the mother’s decisions concerning the child’s medical treatment. As indicated above, so sensitive has he become about these matters that he suggested that the child’s longstanding general medical practitioner, Dr V had joined the mother in “obsessive alienating behaviours” towards the child. I do not accept this.
Dr M described the father as having “an obsessional focus on his dealings with the mother”. At times the father certainly appears to have found it difficult to permit the mother some latitude in making decisions about medical treatment of the child. And his opposition to some of the recommendations of Dr V has resulted in the loss of the child’s longstanding doctor.
On the other hand, the mother, in my view, has had a great deal to contend with in terms of endeavouring to properly manage the quite numerous and somewhat pervasive medical conditions experienced by the child. She has done this with the assistance of Dr V, Dr NN and the others referred to above.
Dr V was of the opinion that the mother had responded promptly and appropriately to the child’s medical and health needs and been proficient at dealing with his extensive illnesses. At no time had he had the view that the mother had caused the child to seek medical intervention unnecessarily.
On the other hand, Dr V said that the father has wished to avoid any unnecessary tests or treatment. He said that his position has been to do the bare minimum of tests for the child. Accordingly, Dr V said that he has had to “tread a fine line between not doing many tests but doing enough to ensure that we pick up any health concerns for the child”.
As indicated above, Dr UU, psychiatrist, was engaged by the mother to prepare an assessment of her and he has affirmed an affidavit in her case. Dr UU said that when he examined the mother she did not appear to be unusually preoccupied with health and illness, neither her own or that of the child. Dr UU said that Dr M’s view seemed to be that the mother has a fixation on the child’s health at least to the degree of over-protectiveness and hypochondriasis and possibly to the degree of a factitious illness. He said that typically people with a morbid hypochondriacal pattern of behaviour have been like that for much of their life, and often, but not inevitably, it is associated with significant impairment in one’s capacity to maintain vocational continuity. He said that this does not seem to have occurred in the mother’s case. But he said, however, it is probable that she experienced some adjustment problems in the period immediately after her mother’s death, but said that it was possible that they had never become higher than that since then.

Dr UU also said that in more recent times the child has required less developmental support. He said that at least on the face of it the mother seemed to be quite pleased about this. Dr UU said that if this is genuine this would generally be contrary to the notion of a factitious illness and it would also qualify to some extent any degree of protectiveness or over-protectiveness which may be present. Dr UU suggested the possibility that the problem between the parties in terms of what the child has required in terms of medical treatment might lie in a significant difference in perception of ill health and impairment between the mother and the father rather than the mother being prone to gratuitously exaggerating the child’s symptoms and needs. Dr UU also said that it is not unusual in high conflict litigation over a single child of middle age parents who have separated when the child was very young for the child not just to be the focus of a dispute but also for there to be significant disputation concerning each parent’s perception of the other parent’s parenting. He said that subtle developmental issues are often the focus of these disputes, typically with the mothers regarding the child as being in greater need of therapy than the fathers, who typically are relatively untroubled by their child’s ambiguous progress. He said that this might be a significant factor in this case because the child is the mother’s only child, which she had at a relatively late age, and for that reason he was perceived as being particularly precious. Dr UU said that protectiveness is common place among such mothers without it being sinister to the degree which Dr M infers.
During his cross-examination Dr M made it clear that he was now less concerned than he had been previously that the father should have sole parental authority. He said that this was because the child was growing up, he was becoming more robust and his previous health issues had mostly been resolved so that various developmental issues which had been identified by the mother and rejected by the father were no longer relevant. Dr M pointed to objective evidence that the child was doing well. For example, he was doing well at school and attending most of the time. He was thriving at his sport and attending the Country HH School. So the child was doing well and Dr M thought that these matters reassure the mother.
Notwithstanding these encouraging matters, Dr M said that he still held concerns about equal shared parental responsibility (for matters of the child’s health). He said that while the child is in the care of a particular parent, that parent ought to be able to attend to the child’s health and medical needs on the proviso that there was a single general medical practitioner and the other parent was informed of such consultations and management. He considered that it would be problematic if every single consultation was attended by both parents. He thought that it would be best for the parents to agree to be guided by a single medical practice.
When pressed by counsel for the ICL about whether one of the parents ought to have the sole parental authority for making decisions about the child’s health, Dr M’s view remained that this responsibility should be exercised by the father. This was consistent with his opinion in his report. But during subsequent cross-examination by senior counsel for the wife, Dr M accepted that it would be a more practical arrangement for the mother to have sole parental responsibility provided that it is accepted that she has been making appropriate decisions about the child’s health. He said that he still had concerns based on the aspects of the mother’s behaviour referred to above.
Dr M agreed that the practical reasons which would favour the mother having sole parental authority for health and medical decisions included the fact that the mother was the child’s primary parent with whom he would be residing for either nine or 10 nights per fortnight, depending on the Court’s determination of the amount of time the child ought to spend in his father’s care. As such she would be the person best placed to be able to describe the child’s relevant behaviour and symptoms on a day to day basis. Dr M agreed that such matters would be important to the making of a proper diagnosis and recommending appropriate medical treatment for the child.

Conclusion

I am not persuaded to the view that the mother has exaggerated the child’s illnesses or developed some factitious ailments or conditions. As I have said above, I do not accept the father’s criticism of Dr V whom, in my view, appears to have conducted himself in an appropriate and professional manner in terms of his management of the child’s somewhat complex medical condition.
There was no criticism of Dr V’s management of the child’s medical conditions from Dr M. Upon Dr M reading the very detailed account of Dr V’s management of the child’s health and that of the mother, to the extent that Dr M had been critical of the mother, he appeared to soften his concerns. And it is clear that amongst Dr M’s concerns about the mother at the time he wrote his report were the difficulty his practice had in renegotiating a time for the mother’s interview, which now appears not to have been of her own making and the fact that at the time the mother wanted to relocate the child’s residence to the Illawarra region which Dr M felt strongly would not be in the child’s interests because it would be likely to have an adverse effect on the child’s relationship with his father.
As I have said there are some matters about which the mother can be properly criticised. She ought to have consulted the father about the recommendation for the child to have his adenoids removed. And it is the case that the mother took the child to be examined by the relevant surgeon, Dr YY without informing the father. The mother was also dilatory in informing the father about the hospitalisation of the child in May 2014 when he had his life‑threatening episode of croup. The mother can also be criticised for her criticism of the father to the principal of the child’s school and for some of her correspondence with the school.
Having said this, the objective facts include that the child is growing up well. He appears to have outgrown his croup and major respiratory ailments. He appears to be settled at school and has been doing well there. He is a talented player and is thriving in his sport.
For a child who at an early age had some complex health and developmental problems, the child on any objective view is now doing very well. In my view, overall this reflects well on the mother’s management of his health and medical situation. And it reflects well on Dr V’s professional care of the child.
I have the view, therefore, that the mother has acted reasonably and responsibly in relation to decisions about medical treatment of the child. This is not to excuse her failure to consult the father about the proposed adenoidectomy of the child and the other matters referred to above. This was a serious lapse in parental responsibility by her but I accept that the mother has been contrite about this and she acknowledged the error of her ways in this regard.
As I have said, only one parent will have responsibility for making decisions about medical treatment of the child. As indicated above, in my view, there are sound practical reasons for this responsibility to be allocated to the mother as the child’s primary parent and the parent with whom he will be residing for the majority of his time.
In my view, it will be consistent with the child’s best interests for the mother to be given sole parental responsibility for making decisions about his health and medical treatment.

the child’s general medical practitioner

The parents agreed that it would be in the child’s best interests for him to have general medical practitioner services provided by a single medical practice. This was consistent with the very clear view articulated by Dr M about this matter. There are obvious sound practical reasons for this, including continuity of medical records and ready access to such, as well as the more likely continuity of the provider rather than the child being taken to different medical practices.
Where the parents disagreed was the mother wanted the II Health Centre to be appointed. The father seeks an order that the Suburb JJ Medical and Dental Centre provide this service, or if not available, then the II Health Centre. The father said the II Health Centre is not open on weekends. This was not clear to me.
In my view, the required services should be provided to the child by the II Health Centre. This medical centre has been one of the major providers for the child. And it is very close to the mother’s workplace at the said University, she being the parent who will be ordered to have sole responsibility for decisions about the child’s health and medical treatment. If it is not open, the child can be taken to the Suburb JJ Medical Health Centre.

the child’s school

The mother sought the following order:
That the child shall continue to attend at [MB School], until such time as the child is offered a position at:
- [KK School]; or
- [LL School]; or
-in the event that the child is unsuccessful in being offered a position at either two schools and the parties cannot reach agreement as to an alternative high school, the child shall attend [MM School], for his secondary schooling, noting that is the local high school;
provided that in the event that the child attends either of [KK School] or [LL School] then, and unless (otherwise) agreed, the mother is to be solely responsible for meeting the costs of his attendance at such schools.
The father sought the following order:
That within 2 months, the parties do all acts and things and sign any document necessary to place the child on the waiting list of the following schools:
-[KK School];
-[LL School]; and
-any other school as agreed between the parties.
In the event that the parties fail to reach agreement regarding the school to which the child shall attend then:
-the child shall continue to attend at [MB School]; and when old enough to attend High School;
-the child shall attend [MM School].
In the course of discussing this issue with the father during his final submissions it appeared to me that in substance there was no real difference between the orders about schooling sought by the parents.
For abundant caution, however, I shall not make an order by consent but propose to make an order similar to that sought by each parent. The reasons for this are that I regard such an order to be in the child’s best interests, it will provide certainty for his schooling and, in my view, there was no real disagreement about the order.

I certify that the preceding one hundred and seventy eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 21 February 2019.

Associate:

Date: 21 February 2019

ANNEXURE “A”

The Mother

Parental Responsibility

That subject to these Orders, the parties have equal shared parental responsibility in relation to all major long term issues relating to the care, welfare and development of the T (“the child”) born ... 2010.

Decisions as to health issues

That subject to Orders 3 and 4 below, the mother shall have sole parental responsibility for all aspects of and decisions in relation to the child’s health provided that within 48 hours of any attendance on any health professional or institution, the mother shall notify the father in writing of such attendance, the reason for the same, any diagnosis made and recommendation and/or treatment provided.
That in the event a decision is required as to a long term medical and/or health related issue concerning the child, the mother shall have the ability to make the decision provided that:-
3.1within 48 hours following any medical appointment concerning such issue, the mother shall notify the father in writing of:
3.1.1the medical/health issue which requires a decision;
3.1.2all options and recommendations advised by the medical practitioner(s) and provide copies of any reports which have been provided to the mother; and,
3.1.3the decision that the mother is proposing to make;
and seeks the father’s written response in relation thereto within 7 days;
3.2the mother shall consider, by reference to the best interests of the child, any such response from the Father prior to making any such decision; and,
3.3the mother shall advise the father in writing of the mother’s ultimate decision not later than 48 hours after the decision has been made.
That in relation to medical/health related matters generally:
4.1the parties shall ensure that the child attends at first instance upon a General Practitioner from the II Health Centre (known as “the II health centre”) save as for the following:
4.1.1in the event the II health centre is not open or it is not practicable to do so, in which case the parties shall take the child to the Suburb JJ Medical Health Centre; or
4.1.2in the case of an emergency.

Education

That the child shall continue to attend at MB School, until such time as the child is offered a position at:
5.1KK School; or
5.2LL School; or
5.3in the event that the child is unsuccessful in being offered a position at either two schools and the parties cannot reach agreement as to an alternative high school, the child shall attend MM School, for his secondary schooling, noting that is the local high school;
provided that in the event that the child attends either of KK School or LL School then, and unless otherwise agreed, the mother is to be solely responsible for meeting the costs of his attendance at such schools.

Time with father

That the child spend time with the father during school term periods each alternate week from the conclusion of school on Thursday until the commencement of school on Monday, with the first such weekend to occur on the second weekend following the entry of these Orders.

School and extra-curricular activities

That each parent shall ensure that the child attends his scheduled sport training, competition games and fixtures and presentation days that fall during that parent’s time.
That both parents are permitted to attend the child’s school and extra-curricular activities at which parental attendance is permitted, whether or not the child is in their care that weekend.
That by no later than 31 January each year, the mother shall provide the father with a list of the dates of all regular monthly Country HH language classes at the Country HH Church in Sydney and within 28 days thereafter the father shall advise the mother as to whether he will ensure that the child will attend each class that falls during his time during the year. In the event that the father does not respond and/or indicates that he is not willing to take the child and any such classes fall on the father’s weekend:
9.1then the mother shall within 14 days thereafter nominate an alternative weekend either one week before or one week after; and,
9.1time shall then not occur on the weekend upon which the Country HH language class is scheduled but shall occur in lieu on the weekend nominated by the mother in accordance with this Order.

Counselling

That the parties each continue to consult with Dr B, psychologist not less than four times each year (until otherwise recommended by Dr B) to assist with co-parenting the child and such counselling shall continue to be confidential and non-reportable.

Costs

That the mother pay the sum of $5,716.50 to the NSW Legal Aid in payment of her contribution to the costs of the Independent Children’s Lawyer within 28 days of the date of this Order.
That the father pays the mother’s costs and incidentals to these proceedings.

The Father

That the parties have equal shared parental responsibility for the child T born … 2010 save as to long term medical/health issues as outlined in Order 3.
That in relation to medical/health related matters generally:
2.1the parties shall ensure that the child attends at first instance upon a General Practitioner from the Suburb JJ Medical and Dental Centre save as for the following:
2.2in the event the Suburb JJ Medical and Dental Centre is not open or it is not practicable to do so, in which case the parties shall take the child to the II Health Centre; or
2.3in the case of an emergency.
3.1 That in the event a decision is required as to a long term medical and/or health related issue and the parties are unable to come to an agreement as to the decision, then the Father shall have the ability to make the decision, provided that:-
3.2within 48 hours following the medical appointment, the Father notifies the Mother in writing of the medical/health issue which requires a decision and notifies the father of the possible options, as well as the decision that the Father is proposing to make;
3.3the Father seeks the Mother’s written response in relation thereto;
3.4the Mother provides a reply within a further 7 days;
3.5the Father shall consider, by reference to the best interests of the child, any such response from the Mother prior to making any such decision; and
3.6the Father advises the Mother in writing of the Father’s ultimate decision not later than 48 hours after the decision has been made.
That within 2 months, the parties do all acts and things and sign any document necessary to place the child on the waiting list of the following schools:
4.1      KK School;
4.2      LL School; and
4.3      any other school as agreed between the parties.
In the event that the parties fail to reach an agreement regarding the school to which the child shall attend then:
5.1      the child shall continue to attend at MB school; and when old enough to attend High School;
5.2      the child shall attend [MM School].
5.3      deleted
6.1 That the child spend time with the Father during school terms every second weekend from after school Thursday until the commencement of school on Monday until 30 June 2018.
6.2That with effect from 1 July, 2018 the child spend time with the Father during school terms every second weekend from after school Thursday until the commencement of school on Tuesday.
That both parents are permitted to attend the child’s school and extracurricular activities at which parental attendance is permitted, whether or not the child is in their care that weekend.
That the parties each continue to consult with Dr B, psychologist not less than four (4) times each year (unless otherwise recommended by Dr B) to assist with co-parenting the child and such counselling shall continue to be confidential and non-reportable.
That each party pay the sum of $5716.50 to NSW Legal Aid in payment of their contribution to the costs of the Independent Children’s Lawyer within 28 days of the date of this order.
10.1 That each parent shall ensure that the child attends his scheduled sport competition games, fixtures and presentation days that fall during the parent’s time.
10.2That should each parent agree that the child enrols in any other sports, that he attends those sports events that fall during the parent’s time.
That both parents are permitted to attend the child school and extra-curricular activities at which parental attendance is permitted, whether the child is in their care that weekend or not.
That by no later than 31 January each year, the mother shall provide the father with a list of the dates of all regular monthly Country HH language classes at the Country HH Church in Sydney and within 28 days thereafter the father shall advise the mother as to whether he will ensure that the child will attend each class that falls during his time during the year. In the event that the father does not respond and/or indicates that he is not willing to take the child and any such classes fall on the father’s weekend:
12.1then the mother shall within 14 days thereafter nominate an alternative weekend either one week before or one week after; and,
12.2time shall [then] not occur on the weekend upon which the Country HH language class is scheduled but shall occur in lieu on the weekend nominated by the mother in accordance with this Order.

That each party pay their own costs and incidentals to these proceedings.

The Independent Children’s Lawyer

Parental Responsibility

That the parties have equal shared parental responsibility for the T born … 2010 save as to long term medical/health issues as outlined in Order 3.

Matters relating to Health

That in relation to medical/health related matters generally:
2.1the parties shall ensure that the child attends at first instance upon a General Practitioner from the II Health Centre (known as “the II health centre”) save as for the following:
2.1.1In the event the II health centre is not open or it is not practicable to do so, in which case the parties shall take the child to the Suburb JJ Medical Health Centre; or
2.1.2in the case of an emergency.
That in the event a decision is required as to a long term medical and/or health related issue and the parties are unable to come to an agreement as to the decision, then the Mother shall have the ability to make the decision, provided that:-
3.1within 48 hours following the medical appointment, the mother notifies the Father in writing of:
3.1.1the medical/health issue which requires a decision
3.1.2[all the] options and recommendations advised by the medical practitioner(s) including provide copies of any reports which have been provided to the mother
3.1.3the decision that the Mother is proposing to make;
3.1.4seeks the Father’s written response in relation thereto;
3.2the Father provides a response within a further 7 days;
3.3the Mother shall consider, by reference to the best interests of the child, any such response from the Father prior to making any such decision; and
3.4the Mother advises the Father in writing of the Mother’s ultimate decision not later than 48 hours after the decision has been made.

Education

That within 1 month, the parties do all acts and things and sign any document necessary to place the child on the waiting list of the following schools:
4.1      4.1.1    KK School;
4.1.2   LL School; and
4.1.3   any other school as agreed between the parties.
4.2In the event that the parties fail to reach an agreement regarding the school to which the child shall attend then:
4.2.1   the child shall continue to attend at MB school; and
4.2.2the child shall attend the Public High School in the catchment area for the Mother’s residence.

Time with Father during school term

That the child spend time with the Father during school terms every second weekend from after school Thursday until the commencement of school on Monday.

Extracurricular activities

That both parents are permitted to attend the child’s school and extracurricular activities at which parental attendance is permitted, whether or not the child is in their care that weekend.

Family Therapy

That the parties each continue to consult with Dr B, psychologist not less than four (4) times each year (unless otherwise recommended by Dr B) to assist with co-parenting the child and such counselling shall continue to be confidential and non-reportable.

Independent Children’s Lawyer’s cost

That each party pay to the Legal Aid Commission NSW the sum of $5,716.50 in payment of their contribution to the cost of the Independent Children’s Lawyer within 28 days of the date of this Order.