Bardsley and Sefton
[2016] FCCA 1770
•15 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARDSLEY & SEFTON | [2016] FCCA 1770 |
| Catchwords: FAMILY LAW – Parenting – whether shared care suitable for young child – households of each parent markedly differ – effect of the mother’s religious practices on the child’s psychological wellbeing and the impact of this on the child’s relationship with the mother – whether the father has negatively influenced the child – interstate travel – choice of school – whether equal shared responsibility is appropriate. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Beard & McCarthy [2009] FamCA 737 Marsden & Winch [2009] FamCAFC 152 |
| Applicant: | MR BARDSLEY |
| Respondent: | MS SEFTON |
| File Number: | MLC 9483 of 2012 |
| Judgment of: | Judge Williams |
| Hearing dates: | 12 – 13 & 30 – 31 May 2016 & 1 June 2016 |
| Date of Last Submission: | 1 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms McCreadie |
| Solicitors for the Applicant: | McGowan Family Law |
| Counsel for the Respondent: | Mr Hale |
| Solicitors for the Respondent: | Peter Lynch |
ORDERS
All previous Parenting Orders regarding the Child X born on (omitted) 2012 be discharged.
The parents have equal shared parental responsibility for the Child X born (omitted) 2012 (“X”).
X live with the Father as follows:
During school terms
(a)In a two week cycle:
In Week 1:
(i)From the conclusion of school/kindergarten or 3.30pm (whichever is the earliest) Wednesday to the commencement of school/kindergarten Monday, or Tuesday in the event the Monday is a public holiday or non student day ; and
In week 2:
(ii)From the conclusion of school/kindergarten or 3.30pm (whichever is the earliest) Wednesday to the commencement of school/kindergarten or 9.00am Friday (whichever is the earliest).
(b)As otherwise agreed between the parents in writing.
During School Holidays
(c)X live with the Father for one half of all gazetted school holiday periods (term and long summer holidays) at times as agreed in writing and failing agreement as follows:
(i)For the first half of all school term holidays from the conclusion of school on the last day of the term until 7.00pm on the second Saturday of the holiday period;
(ii)For 2016/2017 summer school holidays, on a week about basis, subject to paragraph 4 hereof;
(iii)For 2017/2018 summer school holidays and each alternate odd year thereafter for the first half of the summer school holidays subject to paragraph 4 hereof;
(iv)For the 2018/2019 summer school holidays and each even alternate year thereafter for the second half of the summer school holidays, subject to paragraph 4 hereof.
Christmas / Easter
X live with the Father:
(a)from 12.00 noon Christmas Eve until 12.00 noon Christmas Day in 2016 and each alternate year thereafter;
(b)From 12.00 noon Christmas Day until 12.00 noon Boxing Day in 2017 and each alternate year thereafter.
X live with the Father from 10.00 am Good Friday until 10.00 am Easter Sunday each year.
Special Days
X live with the Father for Father's Day from 5.00 pm the Saturday evening immediately prior to Father's Day until the commencement of school/kindergarten Monday and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
Interstate Travel
Either parent shall be entitled to travel interstate with the child providing same does not impact upon the time the child is living with the other parent and providing that the parent wishing to travel with the child provides 14 days prior notice, contact and itinerary details to the other parent.
X spend time with the Father on his birthday as follows and that any provision of time under this Order that is inconsistent with this paragraph be suspended as follows;
(a)from 3.30 pm to 5.30 pm if a kindergarten/school day; or
(b)(b) if the child's birthday falls on a non kindergarten/school day when the Child would not otherwise be spending time with the Father from 3.30pm the day preceding his birthday to 7.00pm on his birthday
X spend time with the Father on the Father's Birthday
(a)from 3.30 pm to 7.30 pm if a kindergarten/school day or
(b)if the Father's birthday falls on a non-school day from 3.30pm the preceding day to 7.00 pm if the Child would not otherwise be spending time with the Father.
X live with the Mother at all other times.
Suspension of Time
If X is living with the father during the following times, such time shall be suspended as follows:
(i)Mother’s Day;
(ii)X's Birthdays;
(iii)Mother’s Birthday.
Changeover
Where changeover does not occur at X’s kindergarten or school:
(a)the Father shall collect X from the Mother's residence or such other location as is agreed in writing at the commencement of the time the child is to live with him; and
(b)The Mother shall collect the child from the Father's residence or such other location as is agreed in writing at the commencement of the time the child is live with her.
THAT in the event that X should be required to be collected from Childcare Centre/Kindergarten/School earlier than the usual designated finish time then the parent who is to spend time with the child that night is to collect X from Childcare Centre/Kindergarten/School.
Injunctions
The Mother be and is hereby restrained by injunction from taking X to any (religion omitted) gatherings, meetings, (church omitted), (omitted), prayer services and/or from allowing the Child to study the religion, or permitting any other person to do so or facilitate same.
Telephone And Other Communication
Either parent may contact the Child via telephone/internet/video at any reasonable time, and no more than one occasion in each three day period. ·
The parents shall utilise a Communication Book in order to exchange information about X’s welfare, care and development. The Communication Book is to be exchanged between the parties at the commencement of X's time with each parent.
Injury Or Illness
The parties keep each other informed as soon as practicable in respect of:
(a)(a) Any illness or significant injury suffered by X whilst in their care.
(b)(b) Any medical treatment obtained for X whilst in their care and the outcome thereof; and
(c)(c) In the event of the hospitalisation of X the parent who has the care of X shall notify the other of the hospitalisation as soon as practicable and both parents shall be entitled to attend the hospital.
Non-Denigration
The Father, his servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting belittling, rebuking or otherwise denigrating the Mother or the Mother's Family and/or
(b)Discussing these proceedings;
(c)in the presence or hearing of X and from permitting any other person to do so.
The Mother, her servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting belittling, rebuking or otherwise denigrating the Father or the Father's Family; and/or
(b)Discussing these proceedings;
(c)in the presence or hearing of the Child and from permitting any other person to do so.
Specific Issues
Each party shall be responsible for providing all essential items for X whilst he is in his/her care and each party will ensure that any item belonging to X or provided by the other party is returned with X at the conclusion of their time.
Each party is hereby authorised to obtain from X's Childcare Centre/Kindergarten/School all notices, letters, school reports, photographs and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
Both parents may attend X's enrolment day, orientation day and first day of School and any other school function to which parents are ordinarily invited.
Each party is hereby authorised to obtain from X's treating medical, dental and/or allied health practitioner/s any information regarding X reasonably requested.
Each party provide to the other party a contact number, email address and address for X when he is in that party's care and notify the other party of any change to the contact details within twenty-four (24) hours of the change occurring.
The father forthwith enrol in and complete a post separation parenting plan course and provide a certificate of completion to the mother forthwith after completion of the course.
The parents forthwith do all acts and things to enrol X in (omitted) Primary School and ensure his attendance at that school.
IT IS NOTED that publication of this judgment under the pseudonym Bardsley & Sefton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9483 of 2012
| MR BARDSLEY |
Applicant
And
| MS SEFTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the father and the respondent is the mother of the child X born (omitted) 2012, aged 4 years.
Background
The mother was born on (omitted) 1991 and is currently aged 25. The father was born on (omitted) 1978 and currently aged 38. They commenced cohabitation in (omitted) 2011 and separated on 11 October 2012, when X was aged six months.
The mother and the father met in (omitted) 2011, when the mother and her former partner, Mr B attended the father’s (omitted) shop to buy a (omitted). The relationship between the mother and her former partner ended in early April 2011 and thereafter the mother and the father commenced a relationship.
At that time the father’s parents offered to accommodate the mother in a spare room at their home where the father resided. From May 2011 the mother worked at the father’s shop and in lieu of wages, the father paid her expenses.
On 19 July 2011 the mother suffered a severe psychotic episode and was an inpatient at (omitted) Health. The mother produced a letter from (omitted) Health, which states that she was an inpatient at that facility from 22 July 2011 until 9 August 2011[1]. The father’s recollection was that she was an inpatient for approximately 6 weeks, commencing from end of June 2011.
[1] annexure d to the affidavit of the mother sworn 15 January 2016
Both parties seem to agree that upon the mother’s discharge from (omitted) Health, the father and or his parents were able to provide appropriate accommodation and care for her.
Upon her discharge, the mother resumed living with the father at his parent’s home. She discovered she was pregnant and underwent an ultrasound on 3 October 2011.[2]
[2] ultrasound report dated 3 October 2011, which is exhibit W3
The mother and the father continued to live with the father’s parents for some time whilst the mother was pregnant to provide additional support for the couple. There were, however, some periods of separation. They then moved into their own rented accommodation at (omitted). X was born on (omitted) 2012.
At the commencement of the relationship neither the mother nor the father was particularly religious, although the mother says that she was interested in Bible study from 2006, when she was aged 15.[3] The father maintains that during the relationship, neither the mother nor the father ever intended to raise X in any religion or faith.[4] The mother agreed with the father that there had been no previous discussion about religion or raising X in any particular faith.[5]
[3] paragraph 11 and 13(iii) of the mother’s affidavit sworn 15 January 2016
[4] paragraph 43 of the family report of Dr K, dated 25 November 2015
[5] paragraph 58 of the family report of Dr K, dated 25 November 2015
During her pregnancy, the mother became involved with members of the (religion omitted) faith, who the father alleges, were regular visitors to their home. He also asserts that at that time, the mother was less than candid about her involvement with members of the (religion omitted) faith.
The relationship ended when the father returned home from work on 11 October 2012, to find that the mother and X had left the home without any notice to him. He said he was devastated by the mother’s departure.
He asserts that the mother was only prepared to allow very limited time between X and himself, in the period immediately following separation. The mother disagrees with that and says that she immediately facilitated regular time between X and his father.
On 16 October 2012 the father issued an application in this court seeking orders, inter-alia, that the child live with him on a week about basis or alternatively with each party for a period of three consecutive days and that the mother be restrained from relocating the child’s residence beyond 30 km from the Melbourne CBD.
On 29 October 2012 the mother filed a Response in this Court, seeking orders, inter-alia, that the child live with her, spend supervised time with the father and that she be permitted to relocate with the child to (omitted) in Queensland.
On 22 August 2013 final orders were made by the court, by consent, which provide for the existing arrangements for the child. Those orders provide for X to live with his mother and spend time with his father, with a graduated increase of time with the father. X, was then aged 10 months. Both parties were represented when the Orders were made.
Paragraph 6 (e) of the orders provides for X to spend time with his father, upon him turning four as follows:
(i) from 3:30 PM Friday until 3:30 PM Monday each alternate weekend
(ii) from 3:30 PM Wednesday until 3:30 PM Thursday each week
These are the current arrangements for X.
Paragraph 9 of the orders provides for X to spend half of all school holidays with his father, upon him, commencing school, which will be at the commencement of term one in 2017.
There has clearly been considerable conflict and ongoing problems between the parents, despite the comprehensive orders which were made on 22 August 2013.
The father asserts that post separation the mother has become more fervent and devout in her religious activities and that she has involved X in religious activities, including being taken (omitted) and being exposed to religious beliefs which are beyond his comprehension.[6] He alleges that the mother’s inclusion of X in her religious practices has had a detrimental effect on X to the extent that his living arrangements should be altered, so that X spends equal time with each parent.
[6] paragraphs 45 and 46 of the family report of Dr K, dated 25 November 2015
The mother, on the other hand, maintains that X likes attending religious meetings, has social interaction with other children during meetings and is excited about being involved in her religion. She asserts that any alleged negativity of X towards her is a result of the father’s influence and the derogatory comments which the father makes to X about her parenting and in particular, her religion.
The mother is critical of the father’s parental capacity. She alleges that he generally undermines her parenting and that there have been problems at change overs.
The parties are also unable to agree about the terms on which X should be permitted to travel interstate with either parent and in particular with the mother, to visit her family in Queensland. This has been a continual and highly conflictual issue between the parents since separation. This has resulted in a number of applications being made to the court about the issue of the child’s interstate travel.
As X is four years of age, he will be commencing primary school in term one of 2017 and to date, the parties have been unable to agree which school he will attend. They do however, agree that he will attend a local primary school. The father proposes X attend (omitted) primary school and the mother proposes that X attend (omitted) primary school.
The father’s proposal
The orders which the father seeks from the court are as follows:
DISCHARGE OF PREVIOUS ORDERS
1. THAT all previous Parenting Orders regarding the Child X born on (omitted) 2012 be discharged.
PARENTAL RESPONSIBILITY
2. THAT the parents have joint parental responsibility for the Child X born (omitted) 2012 ("the Child") save for in the event of disagreement between the parties in relation to education, medical or religious issues in which case the Father have sole parental responsibility for decisions regarding education, medical treatment and religion.
LIVING ARRANGEMENT
3. THAT the Child live with the Father as follows:
3.1. Subject to paragraph hereof;
(a) In Week 1:
(i) From the conclusion of school or 3.30pm (whichever is the earliest) Wednesday to the commencement of school Monday or Tuesday in the event the Monday is a public holiday or non-student day ; and
(b) In week 2:
(i) From the conclusion of school or 3.30pm (whichever is the earliest) Wednesday to the commencement of school or 9.00am Friday (whichever is the earliest).
With such time to be suspended during all school holiday periods and same shall recommence as Week 1 on the first Wednesday of each school term
3.2. As otherwise agreed between the parents in writing.
SCHOOL HOLIDAYS
4. THAT the child live with the Father for one half of all gazetted school holiday periods (term and long summer holidays) at times as agreed in writing and failing agreement during the first half commencing:
(a) For the term school holidays from the conclusion of school on the last day of the term until 7.00pm on the second Saturday of the holiday period;
(b) For the long summer school holidays from the conclusion of school to 7.00pm on the middle day of the holiday period and in the event the division of the day's does not produce two equal halves then the Father shall have the additional day in even numbered years and the Mother shall have the additional day in odd numbered years; and that any provision for time in this Order that is inconsistent with school holiday time be suspended during gazetted school holiday periods.
5. THAT either parent shall be entitled to travel interstate with the child providing same does not impact upon the time the child is living with the other parent and providing that the parent wishing to travel with the child provides notice and itinerary details to the other parent as required in paragraph (sic) hereof .
CHRISTMAS/EASTER
6. THAT the Child spend time with the Father from 10.00 am Christmas Eve until 10.00 am Boxing Day each year and all usual weekly or holiday arrangements be suspended during this period.
7. THAT the Child spend time with the Father from 10.00 am Good Friday until 10.00 am Easter Monday each year · and all usual weekly or holiday arrangements be suspended during this period and when possible this should coincide with the time the child is living with the Father in accordance with paragraph 4 herein.
SPECIAL DAYS
8. THAT the Child spend time with the Father for Father's Day from 5.00 pm the Saturday evening immediately prior to Father's Day until the commencement of school/kindergarten Monday and that any provision for time under this Order that is inconsistent with this paragraph be .suspended so as to facilitate time under this paragraph.
9. THAT the Child spend time with the Father on the Child's birthday as follows, and that any provision of time under this Order that is inconsistent with this paragraph be suspended as follows;
(a) from 3.30 pm to 5.30 pm if a kindergarten/school day; or
(b) if the child's birthday falls on a non kindergarten/school day when the Child would not otherwise be spending time with the Father from 3.30pm the day preceding his birthday to 7.00pm on his birthday
10. THAT the Child spend time with the Father on the Father's Birthday
(a) from 3.30 pm to 7.30 pm if a kindergarten/school day or
(b) if the Father's birthday falls on a non-school day from 3.30pm the preceding day to 7.00 pm if the Child would not otherwise be spending time with the Father.
11. That the child live with the Mother at all other times.
CHANGEOVER
12. THAT where changeover does not occur at the Child's kindergarten or school:
(a) the Father shall collect the Child from the Mother's residence or such other location as is agreed in writing at the commencement of the time the child is to live with him; and
(b) The Mother shall collect the child from the Father's residence or such other location as is agreed in writing at the commencement of the time the child is live with her.
13. THAT in the event that the Child should be required to be collected from Childcare centre/Kindergarten/School earlier than the usual designated finish .time then the parent who is to spend time with the Child that night is to collect the Child from Childcare centre/Kindergarten/School.
INJUNCTIONS
14. THAT the Mother be and is hereby restrained by injunction from involving the Child in the (religion omitted) faith and from taking the Child to any (religion omitted) gatherings, meetings, (church omitted), (omitted), prayer services and/or from allowing the Child to study the religion.
15. THAT in. the event the Mother chooses to participate in any religious activities during time the Child is spending with her, the Child's time with the Mother ·shall be suspended and the Father must be given the first option to care for the Child during such times.
TELEPHONE AND OTHER COMMUNICATION
16. THAT either parent may contact the Child via telephone/internet/video at any reasonable time. ·
17. THAT the parents shall utilise a Communication Book as a communication tool between the parties in Order to exchange information about the Child's welfare, care and development. The Communication Book is to be exchanged between the parties at the commencement of the Child's time with each parent.
RELOCATION
18. THAT the parents be and are hereby restrained from relocating the Child's residence beyond 30 kilometres from the Melbourne GPO without the written consent of the other parent or Court Order.
TRAVEL OUTSIDE VICTORIA
19. THAT both parties be and are hereby restrained by injunction by removing the Child from the State of Victoria without the prior written consent of the other parent or Court Order.
20. THAT in the event that the Child travels outside the State of Victoria with one. parent, the travelling parent shall provide to the other parent a copy of the Child's complete travel itinerary including copies of departure and return travel tickets and an address and contact telephone number for the Child whilst travelling no less than fourteen (14) days prior to the Child's departure.
CANCELLATION OF TIME/CHANGES TO USUAL ARRANGEMENTS
21. THAT in the event that either parent is unable to care for the Child during their respective periods pursuant to these Orders, then the other parent is to be given the first option to care for the Child.
22. THAT in the event that the Child does not spend time with the Father or Mother as provided for pursuant to these Orders due to illness, the parent caring for the Child must provide to the other parent a Medical Certificate certifying that the Child was unable to spend time with the other parent within twenty-four (24) hours of the cancelled time and makeup time shall be provided within fourteen (14) days of the cancelled time.
23. THAT in the event that the Child attends a celebration or function with one party during the other party's time with the Child pursuant to these Orders, makeup time shall be provided to the party with whom the Child would otherwise have been spending time within fourteen (14) days of the cancelled time, provided always that the party seeking to take the Child to a celebration or function during the other parent's time obtains the consent of the other parent in writing no less than seven (7) days prior to the said celebration or function.
INJURY OR ILLNESS
24. THAT the parties keep each other informed as soon as practicable in respect of:
(a) Any illness or significant injury suffered by the Child whilst in their care.
(b) Any medical treatment obtained for the Child whilst in their care and the outcome thereof; and
(c) In the event of the hospitalisation of the Child the parent who has the care of the Child shall notify the other of the hospitalisation as soon as practicable and both parents shall be entitled to attend the hospital.
NON-DENIGRATION
25. .THAT the Father, his servants and agents be and are hereby restrained by injunction from:
(a) Abusing, insulting belittling, rebuking or otherwise denigrating the Mother or the Mother's Family and/or
(b) Discussing these proceedings, to, with or in the presence or hearing of the Child, and from permitting any other person to do so.
26. THAT the Mother, her servants and agents be and are hereby restrained by injunction from:
(a) Abusing, insulting belittling, rebuking or otherwise denigrating the Father or the Father's Family and/or
(b) Discussing these proceedings, to, with or in the presence or hearing of the Child, and from permitting any other person to do so.
SPECIFIC ISSUES
27. THAT each party shall be responsible for providing all essential items for the Child whilst the Child is in his/her care and each party will ensure that any item belonging to the Child or provided by the other party is returned with the Child at the conclusion of their time.
28. THAT each party is hereby authorised to obtain from the Child's Childcare centre/Kindergarten/School all notices, letters, school reports, photographs and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
29. THAT nothing in these Orders restrains the Mother or Father from attending the Child's enrolment day, orientation day and first day of School.
30. THAT each party is hereby authorised to obtain from the Child's treating medical, dental and/or allied health practitioner/s any information regarding the Child reasonably requested.
31. THAT the parties encourage and not undermine the Child's relationship with 11 the other party.
32. THAT each party provide to the other party a contact number, email address and address for the Child when the Child is in that party's care and notify the other party of any change to the contact details within twenty-four (24) hours of the change occurring.
The documents relied upon by the father are as follows:
(a)Amended Application in a case filed 24 March 2016;
(b)Affidavits of father filed 24 December 2014 ,13 May 2015, 6 January 2016, 24 March 2016 and 31 May 2016;
(c)Affidavit of Ms J filed 24 March 2016;
(d)Affidavit of Ms M filed 24 March 2016;
(e)Application in a Case filed 6 January 2016;
(f)Amended Application in a case filed 13 May 2015;
(g)Application in a Case filed 24 December 2014;
(h)Outline of Case document filed 7 April 2016.
The father gave evidence and was cross-examined and the paternal grandmother, Ms J gave evidence and was cross-examined.
The father was often argumentative when being cross-examined by counsel for the mother and at times, his evidence under cross-examination was inconsistent with his evidence in his affidavits. On many occasions he sought to justify his past actions. However it was my impression that this arose from his overwhelming sense of frustration at the limited time that he was able to spend with X and the circumstances surrounding the mother’s adoption of her faith and the impact of this on the child.
There was no doubt that he presented as a loving, committed and caring parent, although at times he lacked insight into the consequences of his behaviour on X.
I was invited by counsel for the mother to make preliminary adverse findings about the husband’s truthfulness. This is further referred to at paragraphs 76 to 79 hereof
There were no submissions made about the veracity or otherwise of the evidence of the husband’s mother, Ms J. She impressed me as a devoted grandmother, who was truthful and forthright.
The mother’s proposal
The orders which the mother seeks from the court are as follows: (as set out in her Amended Response)
(1)That the father’s application be dismissed.
(2)That subject to orders three and four (below). The final parenting orders of 22 August 2013 regarding the child X born (omitted) 2012 remain in full force and effect.
(3)That order 23 of the 22 August 2013 orders be discharged.
(4)That order 6 (e) of the 22 August 2013 orders be varied so that the child spend time with the father:-
(i)from 3:30 PM (or if the child is at school, from after school) Friday to 9 AM (or if the child is at school before school) Monday every second weekend
(ii)from 3:30 PM (or if the child is, it school from after school) Thursday to 9 AM (or if the child is at school before school) Friday every alternative week
(5)that the mother be at liberty to attend all (religion omitted) meetings and other activities (of whatsoever nature and kind), with the child X
(6)that the child X attend (omitted) primary school in 2017
The documents relied upon by the mother are as follows:
a)Amended Response filed 15 January 2016
b)Trial Affidavits of mother filed 15 January 2016 and 30 May 2016
c)Affidavits of Mr G filed 15 January 2016 and 30 May 2016
d)Affidavit of Mr C filed 15 January 2016
e)Affidavit of Mr R filed 15 January 2016
f)Affidavit of Ms P filed 15 January 2016
g)Affidavit of Mr M filed 18 January 2016
h)Affidavit of Mr D filed 18 January 2016
i)Affidavit of Ms T filed 18 January 2016
j)Affidavit of Ms R filed 18 January 2016
k)Amended Outline of Case Document filed 3 May 2016
The mother, her husband Mr G and her friend, Ms R all gave evidence and were cross-examined.
The maternal grandfather was not made available for cross examination, either in person or by telephone. Counsel for the father submitted that the mother should not be permitted to rely on his affidavit. I determined that the mother was permitted to rely on the affidavit, however it was a question of what weight would be accorded to his evidence, given that he was not made available for cross examination. I do not place significant weight on his evidence, which was essentially about the issue of interstate travel.
I was invited by counsel for the father to find that the mother’s evidence was evasive, nonsensical, lacking in insight and that she had to be directed on many occasions to answer the question posed to her.
On the other hand, counsel for the mother invited me to find that the evidence of the mother was calm and thoughtful and that she presented as forthright and honest.
In relation to the mother I find that, she tried to answer questions in a manner most beneficial to her case. She was, at times evasive and gave answers which were not in response to the question asked. However, despite this it was quite clear that she was a also a loving, committed and caring parent who like the father also lacked insight into the consequences of her behaviour on X.
Mr G, the mother’s husband, impressed me as measured and considered in his responses and endeavouring to tell the truth. Ms R impressed me as honest and responsive to questions asked.
Issues in dispute
The following issues are in dispute between the parties:
(a)whether X should live in a shared care arrangement as proposed by the father;
(b)whether X should live primarily with his mother and the father’s time with him should be reduced as proposed by the mother;
(c)whether the mother should be entitled to or restrained from involving X in her religious practices;
(d)the father’s parenting capacity;
(e)drug use by both parties;
(f)allegations of family violence by the mother;
(g)whether either party should be restrained, or require the consent of the other parent to enable X to travel interstate;
(h)which school X will attend.
Preliminary Matters
Rice v Asplund argument
The current proceedings before the court were commenced on 24 December 2014 when the father filed an Application in a Case seeking the return of X from Queensland and to prevent X travelling to Queensland.
That application was first listed on 4 February 2015, when the mother and the father both appeared in person and was thereafter adjourned to 19 May 2015. On 13 May 2015 the mother filed a Response to the father's Application in a Case. The Response sought orders in relation to the child travelling to Queensland with the mother. The issue of Rice v Asplund[7] was not raised in that Response. The father subsequently filed an amended Application in a Case on 13 May 2015, a further Application in a Case on 6 January 2016, an Amended Initiating Application on 15 January 2016 and an Amended Application on 24 March 2016. The mother filed an Amended Response on 3 May 2016.
[7] In the Marriage of Rice & Asplund (1978) 6 Fam LR 570
On 19 May 2015 orders were made by consent, which provided for the parties to attend upon a family consultant for the preparation of a family report. Orders of the court were also made which varied the conclusion of the father's time with X on a Wednesday and the commencement of the father's time with X on a Saturday. The matter was otherwise adjourned for a final hearing on 1 February 2016 and procedural orders for trial were made.
On 15 October 2015 the mother, father and child attended upon Dr K for the purposes of the family report which was completed on 25 November 2015. The father and X attended a further interview session on 17 October 2015.
On 1 February 2016 further orders were made adjourning the matter for final hearing on 12 May 2016 and further procedural orders for trial were made. I note that on this day the mother was represented by Mr Hale, who subsequently appeared on her behalf on 12 May 2016, when the matter was first listed before me for trial.
The Amended Outline of Case document filed by the mother[8], at “paragraph C.Outline of Contentious Issues”states as follows:
“1. Whether the father has satisfied the rule in Rice v Asplund, given the 2013 final orders provided for the father to have specific time with the child up to and including school age time.”
[8] filed 3 May 2016
The Amended Response of the mother[9] under the heading final orders, at paragraph 2, seeks orders as follows:
“That subject to orders 3 and 4 (below). The final parenting orders of 22 August 2013 10 (the August 2013 orders) regarding the child X born (omitted) 2012 remain in full force and effect”
[9] filed 3 May 2016
Paragraphs 3 and 4 of the final orders sought in the Amended Response as follows:
3. That order 23 of the August 2013 orders be discharged
4. That order 6 (e) of the August 2013 orders the varied so that the child spend time with the father:-
(i) from 3:30 PM (or if the child is at school, from after school) Friday to 9am (or of the child is at school before school) Monday every 2nd weekend
(ii) from 3:30 PM (or if the child is, it school from after school) Thursday to 9am (or of the child is, it school before school) Friday every alternative weekend)
Order 23 of the orders of August 2013 restrains both parties from removing the child from the State of Victoria, without the prior written consent of the other parent.
Paragraphs 5 and 6 of the mother’s Amended Response, in summary, seek orders that the mother be permitted to attend all (religion omitted) meetings and events with the child and that the child attend (omitted) Primary School in 2017.
Clearly, the mother’s Amended Response seeks a variation of the parenting orders of 22 August 2013.
At the commencement of the trial I asked counsel and in particular the mother’s counsel, whether he wished to make submissions about and pursue the threshold issue of Rice v Asplund, noting that the mother herself sought a variation of the orders of August 2013 in her Amended Response. I also pointed out to both counsel that there was a notation to the orders of August 2013 as follows:
B. That the parties intend to attend a mediation to review parenting arrangements for the child upon the child attaining the age of five years.
This notation is on the original minute of proposed orders, which was signed by both parties and marked exhibit A and placed on the court file. However, it does not appear on the orders as engrossed. I therefore arranged for a copy of the original minute, which was a combination of typewritten and hand written orders, to be provided to both counsel.
I invited counsel for the mother to make submissions about Rice v Asplund as a preliminary threshold issue. He declined to do so and sought to proceed with the trial, with the issue of Rice v Asplund to be addressed by way of final submissions. This is a most unusual approach.
The rule in Rice v Asplund is generally determined as a threshold issue, prior to embarking on a trial.
The law pertaining to the application of the rule in Rice v Asplund is well settled.
Collier J in King & Finneran[10] considered the rationale of the principal as follows:
[41] “The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation stop to require a court to make a detailed determination of the matters set out in section 68 F (now s.60 CC) would defeat the purpose of that protection…”
[44] “To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not. The matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation to allow further proceedings…”
[49] “... To be either significant or substantial is to indicate that the matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size, et cetera. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time, or in the usual course of human activity.”
[10] King & Finneran [2001] FamCA 344
The application of the rule involves a two-step process. The full court in Marsden & Winch[11] described a two-step process to be followed, at paragraph 58:
[11] Marsden & Winch [2009] FamCAFC 152
“..there is a requirement:
(1) for a prima facie case of a change of circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on hearing.”
The dual considerations of the rule were further developed by the Full Court in DL & W[12] where, Federal Magistrate Hughes, as she then was, at first instance, found significant changes in circumstances but dismissed the application after considering the potential costs and benefits to the child from a new trial.
[12] DL & W [2012] FamCAFC 5
The full court agreed with the first instance decision and dismissed the appeal and said as follows:
[76] “…Thus, her ultimate decision to dismiss the father’s application can be seen as squarely resting on her consideration of the second step, which her honour described as involving “assessment of the potential costs and benefits to[the child] from a new trial about her parenting arrangements”.
[77] “The Federal Magistrate was right to embark on that assessment, since it was not only permitted but required by authority binding upon her. We therefore do not accept the submissions advanced on behalf of the father that “once a change in circumstances is established, applications are to be determined in accordance with the legislative pathway set out in Goode and Goode”. Nor do we accept the associated submission that the Federal Magistrate was obliged to undertake an assessment of all of the s.60CC factors before arriving at a decision. We respectfully adopt the view expressed by Collier J in King and Finneran … that to require a court to undertake such an assessment would defeat the entire purpose of the “rule” in Rice and Asplund.”
It is quite apparent from the material filed by both parties that there are significant issues, which have arisen since the August 2013 orders which require determination and it is in the child’s best interests to make such a determination.
Those issues include firstly, the impact of the mother’s religious practices on X and the consequent applications by each of the parties in relation to this issue, namely the father seeks a restraint on the child being involved in the mother’s religious practices and the mother seeks that she be permitted to involve the child. At the time the orders were made in August 2013, when X was 10 months old, this issue could not possibly have been ventilated nor the impact of her religious practices on the child been determined by the court at the time of the original orders.
The father’s case is that the mother’s religious practices have impacted on her relationship with the child to such an extent that a change in the child’s living arrangements is warranted. This is quite clearly an issue which requires determination.
Secondly, the mother seeks a reduction of the father’s time, as provided in the orders of August 2013, from five nights per fortnight to 4 nights per fortnight, so that the time X is currently spending with his father overnight each Thursday is to occur overnight each alternate Thursday.
Thirdly, the mother seeks a variation of the previous travel orders which she alleges are unworkable. Again, at the time the original orders were made, the degree of conflict arising from these orders would not have been foreseeable. There have been a number of applications made to the court arising from the issue of interstate travel and it is obviously in X’s best interests to determine this issue so as to minimise his involvement in any further court proceedings arising from the travel.
Fourthly, the issue of which primary school the child should attend is in dispute. This obviously requires a determination prior to X commencing school in term one of 2017.
It is quite clear that the mother has sought to proceed with a trial and consequential assessment of the issues each party puts before the court and in doing so, in the words of Collier J, has defeated the purpose of the rule in Rice v Asplund.
The mother’s counsel did not seek, in his final submissions to address the issue of Rice v Asplund, except that he referred me to an authority in his written submissions In the Marriage of T V and I J Freeman[13]. There was no attempt to make any submissions about the relevance of this case and it is apparent that there have been many decisions of the Full Court of the Family Court about this issue since Freeman was decided.
[13]In the Marriage of T V and I J Freeman (1986) 11 Fam LR 293
I do not accept the submissions of the wife’s counsel that the rule in Rice v Asplund would preclude a determination of the matters before the court and I note that the mother herself sought a variation of the orders of August 2013 and other ancillary orders.
Application by the mother to adduce further evidence
On the second morning of the trial, counsel for the mother sought leave to adduce further evidence on behalf of the mother. He submitted that the further evidence related to issues which had previously been raised in the material before the court and that the mother sought to clarify her previous material. The issues were as follows:
a)the attendance on Dr K for the family report;
b)the mother’s religious practices, including details of what occurs at meetings;
c)the circumstances in which the father provided a photograph of himself to the child;
d)the changeover incident of 9 and 10 May 2016;
e)comments of the child, including “mummy monster”;
f)evidence about the dispute surrounding the suspension of the father’s time to enable the child to attend the mother’s wedding;
g)dates of the mother’s and child’s trips to Queensland post separation.
The mother’s counsel advised that a proof of evidence of these matters had been provided to the father’s solicitors on 21 May 2016 and he accordingly submitted that there was no prejudice to the father if the mother were granted leave to adduce this evidence.
After hearing submissions from both counsel, I determined to grant leave to the mother to file two affidavits, one from the mother and one from her husband, Mr G, deposing to the issues referred to in this paragraph. I also determined that the father should have a right of reply by way of affidavit. In response to questions raised by me about cross examination of the father of any affidavit in reply, the mother’s counsel advised me that he did not seek to cross-examine the father in relation to any further affidavit he may file. This was confirmed by him on a number of occasions in response to my questioning.
In order to enable the father to file an affidavit in reply, the trial was adjourned at approximately 12:30 PM on the second day and adjourned to the next morning. Counsel for the father foreshadowed that she would seek to make an application for costs arising from the adjournment required by the mother’s failure to file affidavit material in accordance with the trial directions which had previously been made by His Honour Judge McGuire on 1 February 2016.
The father’s counsel in her final submissions did not seek to pursue the issue of a costs application.
I note that whilst giving evidence, Dr K was provided with a copy of the further affidavit of the mother and the further affidavit of her husband both sworn on the 30 May 2015 and the father’s affidavit in response sworn 31 May 2015. She was provided with the affidavits and prior to recommencing her evidence she was asked by the mother’s counsel whether she required any time to consider the contents of the documents she had just read. She responded that she did not need any further time to consider the additional material prior to completing her evidence.
Application to make preliminary findings against the father
On the second morning of the trial, counsel for the mother handed me a minute of further orders sought by the mother which he submitted were appropriate having regard to the evidence of the father whilst being cross-examined.
The additional orders included:
(1)That the father attend a post separation parenting course and a parenting enhancement program and upon completion of both courses, provide evidence of same to the Court and to the mother.
(2)That the father be restrained from issuing further proceedings without leave of the court and if practicable, any such leave applications be listed before the trial judge.
Most unusually, he also provided a minute of a finding which he invited me to make on a preliminary basis, which was clearly adverse to the father. It was submitted that I should make such a preliminary finding on the basis of the evidence of the father whilst being cross-examined. That proposed finding was as follows :
“The father’s applications of 24/12/14 (snakebite) and 06/01/16 (return from Qld) were vexatious, and included a purpose of intending to control and intimidate the mother”
After hearing submissions from both counsel, I declined to make any such finding on an interim basis and do not know how I could possibly do so, without hearing the balance of evidence and submissions from both counsel.
The Applicable Law
Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are: okay
(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.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Fortunately, both of the parents agree that the child has a meaningful relationship with each of them. Dr K, in the family report observed:
“that in the presence of his mother, X appeared to have a secure bond with her exploring and playing independently in the environment.”[14]
[14] paragraph 69 of the family report of Dr K, dated 25 November 2015
She also observed :
“in the presence of Mr Bardsley he again displayed a secure bond, but also a more physical and reciprocal relationship”[15]
[15] paragraph 70 of the family report of Dr K, dated 25 November 2015
The proposals of both parents provide for X to continue to have a meaningful relationship with both parents.
At paragraph 89 of the family report, Dr K addresses the benefit of X having a meaningful relationship with both of his parents.
Neither counsel sought to cross-examine Dr K about this issue and I accept her opinion in this regard.
Section 60CC(2)(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 father asserts that X’s immersion in the religious practices of the mother’s home is having an adverse impact upon his relationship with his mother and his psychological well-being.
The mother asserts that the father is controlling and has engaged in the past in controlling and coercive behaviour. She refers to the circumstances in which he obtained an intervention order against the father at separation[16] This issue is further discussed at paragraphs 229 to 235 hereof. She also asserts that the father lacks parenting skills and may be neglectful in his care of the child.
[16] paragraph 17 of the mother's affidavit sworn 15 January 2016
Counsel for the mother cross-examined the father at length about an incident which she says exemplifies the father’s less than satisfactory parenting capacity. This incident was when X was bitten by a pet snake, “(omitted)”, when being directly supervised by the father. This occurred in December 2014, immediately prior to Christmas.
The mother also has significant concerns about the father’s management of the child’s allergies and the management of his health in general. These concerns are particularised in her affidavit sworn 15 January 2016, under the heading “The Father’s Poor Parenting of X”[17] and under the heading “Further Concerns About the Fathers Parenting”.[18]
[17] paragraph 14 of the mother's affidavit sworn 15 January 2016
[18] paragraph 15, 16 and 17 of the mother's affidavit sworn 15 January 2016.
These concerns of the mother are discussed at paragraphs 190 to 205 hereof.
However, despite the allegations made by each parent against the other, both parents in their respective Application and Response propose that X continue to spend substantial and significant time with the other parent.
In the case of the father, this is however, subject to a restraint being imposed on the mother to prevent her involving X in her religious practices.
The mother does not seek to impose any restraint on the father arising from her allegations, although at the time of the snakebite she sought assurances from the father that X would not handle snakes which were out of their cages.
I am therefore able to conclude, despite these allegations, that each parent considers it appropriate that X spend significant time with the other parent and subject to the restraints sought that neither parent poses a significant risk to the child.
The additional considerations are set out in s.60CC (3) of the act. I will now consider the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Although X has just turned four, Dr K, in the Family Report dated 25 November 2015 (“the family report”), comprehensively addresses this issue.[19]
[19] paragraphs 100 to 102 of the family report
It was common ground that Dr K interviewed and observed the mother, father and X on 15 October 2015 and that she interviewed X again for approximately one hour on 17 October 2015 when X had been in the care of his father. She refers to the periods of time of the interviews and observations on both dates in the family report under the heading “Information for this report has been obtained from the following”.[20]
[20] Page 3 of the family report
What is in dispute, however, is of the circumstances giving rise to the second interview of X on 17 October 2015.
Counsel for the mother cross-examined both the father and Dr K about the circumstances giving rise to Dr K’s second interview of X.
The father was cross examined about his prior knowledge of what would occur at the family report interview and his attendance at Dr K’s rooms on 15 October 2015. His evidence was that the only information he had received about what would occur at the family report was an explanation by the judge at one of the previous hearings. This was of course in the presence of the mother. The father stated that he arrived at Dr K’s rooms and that he was led into a reception room by Dr K’s receptionist and at the time he arrived the mother was present. X was in the play room with the mother’s now husband, Mr G. He estimated that he spent time with Dr K for between 45 minutes and an hour, however, he could not recall the precise time.
When asked whether he got on well with Dr K, the father’s response was that he answered the questions she asked. He agreed that at the conclusion of his observation session with X, the mother and X left her rooms and he was left with Dr K. It was put to the father that he suggested to Dr K that she convene a second appointment with X and that was to take place on Saturday, 17 October 2016. The father’s evidence was that it was Dr K, who suggested a further appointment.
He was then cross-examined about the arrangements to take X to see Dr K on the Saturday. He agreed that on that day, X had been returned to him by the mother at approximately 9 AM and that he had failed to mention to the mother that X was due to see Dr K for a second appointment later that morning. His response was that he was doing what was suggested by Dr K and that advising the mother should be the responsibility of Dr K. It was also put to him that prior to the second appointment, he discussed with X what was going to occur at the meeting. He denied any discussion with X, other than telling him that he would have to tell the truth.
Dr K was likewise cross-examined by counsel for the mother about the arrangements for the second interview, which occurred on Saturday, 17 October 2015.
Her evidence was that at the conclusion of the observation session between the father and X, which took place on 15 October 2016, she arranged with the father to conduct a further interview with X. She conceded that she did not advise the mother of this further interview.
Dr K, in the family report discusses in considerable detail her observations of the behaviour and opinions of X at the second appointment.[21].
[21] paragraphs 73 to 80 inclusive of the family report
Dr K addresses why in her opinion it was appropriate to interview X on the second occasion. She states:
It was initially not the intention of the writer to interview X, however, after consideration his advanced cognitive skills and the report of both parents suggested that interview may provide some useful information to assist the Court[22]
[22] paragraph 72 of the family report
During cross examination by counsel for the mother, Dr K elaborated on her reasons for interviewing X on the second occasion. She stated as follows:
Well, during that interview but – but routinely I wouldn’t – and I – I have said this in the report. I wouldn’t routinely interview a three year old. There’s a lot of variability in terms of developmental capacity, particularly capacity for language and particularly with boys. Their language is often more delayed than, you know, a three year old girl. So I generally would not anticipate interviewing a three year old and that was the way that I had started out that day. I had noted during the observations that his language was extremely well developed and – as well as other developmental aspects. And Ms Sefton had said exactly the same thing to me during the interview about how developed his language and his general functioning was. And then during the interview with dad he said exactly the same thing. So I made a decision at that point that there may well be – particularly given the issues – some value in – in attempting to interview him.[23]
[23] Transcript page 8, line 31 – 44 inclusive
In the family report, Dr K makes the following comments about X’s maturity:
“He was observed to be a cognitively and physically advanced child. He demonstrated complexity of language use and understanding beyond his chronological age. He appeared to be well cared for and robust .[24]
[24] paragraph 68 of the family report
It is apparent from the relevant paragraphs of the family report[25] that the focus of the second interview between X and Dr K was the mother’s household and its focus on religion. Dr K states as follows:
[25] paragraphs 73 to 80 inclusive of the family report
When the writer asked X what he wanted to talk about. He said, “(religion omitted)” he then said, “I hate (religion omitted)” the writer asked X to explain what (religion omitted) was and he said, “is up in the sky, daddy has been tricked by Satan as he doesn’t believe in (religion omitted), his bones will turn to dust”. He said, “(religion omitted) is bringing paradise”. X went on to tell the writer “mummy only ever talks about (religion omitted), I don’t want to talk about (religion omitted) any more”. He said that he was worried about daddy turning to dust and said, “I love daddy so much, so he won’t turn to dust”. He later told the writer that he “believed daddy” saying “parents don’t turn into dust, daddy believes in science” .[26]
The writer asked X how I could help with (religion omitted) and he said, “kill (religion omitted)” and then said “so I don’t have to go to meetings anymore.”. He was asked about the meetings and he said that he has to sit “like this [placing his hands on his lap and sitting very still.] and shush [placing his finger over this (sic) mouth saying shush]”. He said that he does not like the meetings and that he gets very tired, saying, “I want to throw the meetings away”. Ms Sefton had previously told the writer that X did attend meetings but he got to play with other children. The writer said to X “I heard you go to play with lots of other kids at the meetings, I bet that is fun” to which he said, “I am not allowed to play at meetings, it is frustrating, I have to sit like still”.[27]
X also reported that he has to go (church omitted). When asked by the writer what happens at (church omitted) he said, “we go to all the (church omitted)”. Upon further enquiry he reported that they “talk to the people (church omitted)”. He further said, “this lady, she yelled (omitted)”. X said. “That was scary for me”.[28]
It was suggested by the writer that we make a list together, the writer would do the writing of what X wanted to happen and he readily agreed. The list consisted of the following:
[26] paragraphs 74 of the family report
[27] paragraphs 76 of the family report
[28] paragraph 79 the family report
(a) no (religion omitted) to get in my way, stop (religion omitted), pull his bones out, so he will fall down dead
(b) throw away meetings
(c) throw away (church omitted)
(d) stay all the time with dad.
(e) Stop mum talking about (religion omitted)[29]
[29] paragraph 80 of the family report
Dr K concludes under the heading “Evaluation”[30] as follows:
“I reiterate that while clearly X is aware of both parents respective positions, and has been exposed to cultural vies(sic) of both parents and this needs to be taken into consideration, he expressed clear, well formed and age appropriately expressed views and rationale for his stated preferences. I am therefore inclined to suggest that some weight should be placed on X’s identified relationship preferences”.
[30] at paragraph 102 of the family report
Counsel for the mother cross-examined. Dr K about X’s views, as recorded by her in the family report. Specifically, it was put to her that X was prepared for the second interview by his father and indeed may well have been coached by him. In response to that proposition, Dr K stated as follows[31]
And I think that one of the things that’s important for me in terms of the assessment is that there’s a difference between being prepared and coached. He was clearly prepared when he came to see me. He knew why he was there and what we were going to talk about broadly. But the manner in which he described meetings, the manner that – the kind of fantasy stories that he told me about, you know, being a super hero and shooting down (religion omitted) and pulling out his bones and all that kind of stuff is not necessarily the kind of discussion that you get from kids that have been coached. It’s about self-generated stuff. Now, that may well come from knowing that there’s disagreement between the parents about (religion omitted) and whatever – very possibly. But the fact remains that I came to the conclusion at the end of assessment with him that he hadn’t been coached to say that he hated (religion omitted). It was about his interpretation of what was happening in his life.
The difference between being prepared and coached is a very fine line, isn’t it?‑‑‑It probably is a fine line, yes, but it’s an important one.
[31] Transcript page 28, line 43 – page 29, line 9
I accept the evidence of Dr K that X is a remarkably mature and advanced four-year-old and that although he had been prepared for the interview by his father, he had not been coached. I also accept that X’s views are a perception and interpretation of his experience in the two vastly different households of his parents. This is a significant matter, accordingly I do place some weight on X’s views, although not significant.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Both parents have a good relationship with their son. However, the evidence of Dr K is that the nature of the relationship is different with each of his parents.
She observed, in the presence of his mother, that he appeared to have a secure bond with her. He was able to explore and play independently of his mother, however, he:
“…was somewhat subdued in his play and he engaged primarily in solitary activity, on occasion, involving Ms Sefton. His play appeared reserved and inhibited”. [32]
[32] paragraph 69 of the family report
When observed in the presence of his father, X displayed a secure bond:
“…but also a more physical and reciprocal relationship. At the commencement of observations, when X saw Mr Bardsley he was so excited he could not contain himself and was stomping on the spot with excitement, screaming “daddy” . He immediately threw himself at Mr Bardsley kissing him and saying, “I haven’t seen you for ages’ with Mr Bardsley, reminding him it was only yesterday they saw each other.”[33]
[33] paragraph 70 of the family report
Dr K concludes that X has an exceptionally close relationship with his father and that he similarly had a close and loving bond with his mother.[34] However, she opines that the relationship between X and his mother has been weakened by the change in his mother’s life style and her intense focus on her religious commitments.
[34] paragraph 92 of the family report
Most importantly, Dr K concludes :
“I reiterate this is not to say this is specific to the particular religion, but rather the extent of involvement in religious practices that become all consuming and override a three year olds natural desire to spend time with his parent, being a child and having fun.”[35]
[35] paragraph 92 of the family report
The mother’s evidence under cross-examination was that she considered that the father had “trained” X to respond in an excited fashion when meeting the father at the family report interview. When questioned, Dr K did not accept this proposition. Her evidence was:
“I think that his response when his dad entered the room was something that you couldn’t train a three and a half year old to do. It was just that kind of sheer elation that dad had come into the room to the point that he was so excited he couldn’t contain – contain himself and was stomping his feet. And – and then I recall him making comments about he hadn’t seen dad for ages and – and dad said “well, it was only yesterday”. So it’s kind of – it’s – it was spontaneous and – and as you would – you would expect a young child who was really elated to see his dad.”[36]
[36] Transcript page 36, lines 25- 34
I accept the evidence of Dr K in this regard.
Apart from the issue of interstate travel to enable the mother to visit her family in Queensland, there were no issues raised by either party about the nature of the child’s relationship with any other person, including family members.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The orders of the 22 August 2013 include an order that the parents have equal shared parental responsibility for X.[37]
[37] the paragraph 2 of the orders made 22 August 2013
The Act defines the major long-term issues as follows:
major long-term issues, the in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health: and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent[38]
[38] S(4)(1) of the act
It is the mother’s evidence that she was involved in Bible study from approximately 2006.[39] However, in her affidavits she did not particularise her involvement, if any, with the (religion omitted) religion between 2006 and the middle of 2011 when the father alleges she began to cultivate an interest in that faith. The oral evidence was that she had been involved with a boyfriend in 2006 who was a (religion omitted) for a period of approximately 12 months and thereafter was not involved in the religion until after giving birth to X in 2012.
[39]Paragraph ___of the mother's affidavit sworn____
The father told the family report writer that the mother was not religious when they met and that there was no intention when the parties were in a relationship to raise X in any religion or faith[40]. The mother disputes this and maintains that she was a practising (religion omitted) prior to meeting the father.[41]
[40] paragraph 43 of the family report
[41] paragraph 13 (xiii) of the mother's affidavit sworn 15 January 2016
In her affidavit material she does not specifically address the father’s contention that there was never any intention to raise X in any particular religion. She did concede, when cross-examined, there had not been any discussion between herself and the father about X being raised as a (religion omitted) or in any particular religion.
There is no evidence that the parties ever had any agreement to raise the child in any religion. The involvement of X in the mother’s religious practices has been without consultation with or approval of the father. Despite the order for equal shared parental responsibility, the mother has not consulted the father and has failed to engage with the father in any meaningful discussion about the X’s proposed religion, if any.
Another contentious issue between the parents was X’s commencement of kindergarten. The father was critical of the mother as he alleged, she had failed to consult him about X’s enrolment in his current kindergarten. The text messages between the parties demonstrate that the mother raised the issue of kindergarten enrolment for X, however, the father did not respond in a timely manner. The mother ultimately arranged for X to attend kindergarten. I am not critical of the mother for doing so.
The mother was critical of the father’s care of X and in particular she alleged that the father was somehow responsible for X sustaining a number of infections to his penis and feeding X eggs and fruit to which he has an allergy. The father’s evidence of both parties had taken X to see Dr F, an allergy specialist.
The mother did not adduce any medical evidence about X’s penis infections which had been occurring since 2014.
I am unable to make a finding that either party has been remiss in obtaining appropriate medical treatment for the child.
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 has been the primary carer of the child since separation and has fulfilled her obligations to support him.
The mother’s counsel cross-examined the father about his child support commitments. The evidence of the father was that save for the last three payments of child support, he had been up to date with child support in accordance with his assessment since the date of separation. He attributed the outstanding child-support to the current cash flow problems of his (omitted) business which he said was not providing much income during the winter. In addition he referred to the legal costs he had incurred as a result of the current proceedings.
The current assessment of child support requires the father to pay child support of $254 per month. That assessment commenced on 6 May 2015 and prior to that the father was assessed to pay child support of $110.17 per month. Accordingly, the father is in arrears of child support payments of approximately $762.
Despite the arrears of child support, I find that each parent has fulfilled their parental obligations to maintain the child since separation.
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:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The existing orders provide for X to live with his mother and spend five nights each fortnight with his father. This has been the case since April 2016 when X turned four. Neither parent gave evidence that X has been unable to cope with the three consecutive nights with his father or that five consecutive nights would cause X problems.
X has coped with and managed the transition between the two households. Indeed, as the parents separated when X was six months old, this effectively has been his life experience.
There is no evidence of any adverse impact of these arrangements on the relationship between X and his father, with the evidence being quite to the contrary.
The mother seeks to reduce X’s time with his father by one night per fortnight. Counsel for the father cross-examined the mother’s husband, Mr G, as to whether he supported a reduction in the X’s time with his father. His response was that he supported a reduction and that it was “in X’s best interest to reduce time”. He did not elaborate or provide any examples as to why that would be the case. However, his evidence in re-examination was effectively that a, reconfiguration of the existing of time would be more stable and less messy.
Dr K’s evidence, when cross-examined by counsel for the mother was as follows:
The mother’s proposal is for X’s time to be reduced with the father?‑‑‑Yes.
What long term implications do you say there is for X if her Honour was to accede to that proposal?‑‑‑I actually find it difficult to find the rational for that.[42]
[42] transcript of Dr K's evidence page 3, lines 5-7 inclusive
In terms of the relationship between X and his mother, Dr K is of the opinion that reduced time between the mother and X would be beneficial to that relationship.
I am confident that X will easily manage the transition between the two households, as envisaged by the orders I intend to make and that there will be no adverse effect on his relationship with either parent. According to Dr K, an increase in time between X and his father will assist X in managing the two different households and parenting styles of his parents.
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
Both parents live relatively near to each other in the northern suburbs of Melbourne. The father lives in (omitted) and the mother lives in (omitted). There are no practical difficulties for either parent to spend time with or communicate with X.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
X has lived primarily in his mother’s household since separation, in October 2012, when he was approximately 6 months old and has spent increasing time in his father’s household as he has grown older.
Both parents and Dr K acknowledge that X is highly intelligent, has very advanced language skills and is generally an advanced child for his age. Both parents deserve credit for this.
I have no concerns about the capacity for each parent to provide for the X’s physical care despite the matters raised by the mother which are referred to at paragraph 171 – 182 hereof.
The mother’s proposal that X continue to spend four nights per fortnight in the father’s household is entirely inconsistent with the mother having any legitimate concerns about the father’s capacity to care for X’s physical needs. I note that she does not seek to impose any restraint or restrictions on the father whilst X is in his care.
In terms of X’s emotional and intellectual needs, the mother asserts that the father has enmeshed X in his own emotional needs and is attempting to negatively influence him against his mother and her household.
The father asserts that the mother has no insight about the impact of her religious practices on X and X’s views about attending religious meetings and (church omitted).
The observations of the family report writer of the relationship between X and his father are positive and quite delightful. In particular, X’s enthusiasm about seeing his father at the commencement of the first observation session for the family report.
The nature of the relationship between X and each of his parents is referred to at paragraphs 117 to123 hereof.
Having observed the father in the witness box, I agree that at times he appeared overly emotional. I do not however, agree with the submission of the mother’s counsel in the final submissions[43] both in regards to his behaviour in court and the extrapolation that his parenting style is self-centred, lacking in empathy and insight.
[43] Mother’s Written Submissions at page 4 and 5, under the headings "Presentation of the father in the witness box” and “Father’s personal and parenting style – Manipulation and control” (sic)
The father was not always an accurate historian in terms of dates and times and in particular, his recollection of the duration of time the mother was an inpatient in a psychiatric facility. However, he impressed me as being entirely devoted to his child and experiencing an overwhelming sense of frustration about the paths each parent had chosen post separation.
The description of the father’s personality and parenting style, from the mother’s perspective, is entirely inconsistent with the observation of Dr K of the relationship between X and his father.
I do not have any concerns about the capacity of the father to provide for X’s intellectual needs.
As submitted by the mother’s counsel, she has been X’s primary carer since birth and she should be accorded credit for X’s intellectual development whilst a member of her household. I agree with this submission, except that the mother does not appear to have any insight about the current impact of her religious pursuits on X and the impact on the future relationship between them.
When cross-examined by counsel for the father about the benefits to X of “(religion omitted)” she was only able to say that “the lady had given him paints”. She was not able to point to any long-term benefit to X. When put to her that some of the concepts discussed at the meetings were adult and could possibly scare X, she was unable to agree with this proposition. Her husband, Mr G, gave evidence that at meetings there was no age-appropriate filtering of discussion and the children were exposed to adult concepts. To his credit, Mr G made some concession about why the father may be concerned about X’s attendance at meetings and that X had certainly raised with his mother, concepts discussed at meetings. During the second meeting with Dr K, X spoke about his concern about his father “turning to dust”.
The issue of paramount importance is the effect on X of exposure to the mother’s religious beliefs, as identified by Dr K.
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
At first instance, this may be seen as a dispute about religion. The mother is a devout (religion omitted) and the father does not follow any religion
The starting point for religious disputes in this court, must be the comments of the Full Court in Paisio v Paisio[44]which stated:
“An Australian court, cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a religious upbringing is to be preferred to a nonreligious one”
[44] Paisio v Paisio (1978) 26 ALR 132 at 134
Lindenmayer J in Hodak & Hodak v Newman[45] ( to which I was referred by the mother’s Counsel), at paragraph 40, stated:
“However, whilst the adherence per se of a party to a particular religious sect is not of concern, the court must have regard to the influence, if any, of those religious beliefs and practices on the welfare of the child (Grimshaw (1981) 8 Fam LR 346). As the Full Court stated in Paisio (supra at Fam LR 282-3 ; FLC 78,513):
“... the court must still commence with and never lose sight of the principle that the welfare of the children is the paramount consideration.”[46]
[45] Hodak & Hodak v Newman [1993]FAM CA 83 [(1993)17 Fam LR 1]
[46] supra [(1993)17 Fam LR 1 at 11]
In Hodak & Hodak v Newman[47], Lindenmayer J declined to impose any restraint on the mothers religious beliefs and practices, as the main issue in that case was as follows:
The primary area of concern raised by the father and the aunt in relation to the effect of the mother's religious belief system on the child's welfare related to the issue of blood transfusions. In my view, the likelihood of the need arising for a blood transfusion during M's childhood is fairly remote.
[47] supra
Quite clearly in this case, the issue of a blood transfusion was not a significant issue.
Counsel for the mother, in his final written submissions referred me to a number of other authorities in relation to religion.
He referred me to a decision of His Honour Justice Cronin, Beard & McCarthy[48] . The facts of that case are entirely different from this matter. The children were both significantly older and had been involved prior to separation, in the (religion omitted) faith, with the consent of both parents and that the faith was very much a part of both children. However, His Honour did note as follows:
[95]“Regardless of his own faith, the husband must accept that he cannot expose J to concepts which disturb him.”[49]
[48]Beard & McCarthy [2009] FamCA 737
[49]supra at paragraph 95
I was also referred to a decision of His Honour Judge McGuire, Ridley & Whittle[50] Again, the facts are that case are entirely different from this matter. The child, aged seven had lived with the maternal grandparents, since she was one year and 10 months of age and had been raised in the faith of the maternal grandparents. It is not a situation where a child has been raised by both parents, and one parent post separation has embraced a particular religious faith.
[50] Ridley & Whittle [2011] FMCAfam 985
There are a number of authorities pertaining to religious disputes between parents, and indeed grandparents, however it seems to me that the relevant authorities are factually specific, and that the overriding and paramount factor is the welfare of the child/children.
However, during the trial it became quite apparent that the fundamental issue of dispute between the parents is not one of religion, but a dispute about different parenting styles in each household and the consequential impact on X and his relationship with each parent. It is apparent that X is acutely aware that each parent disapproves of the other parent.
The issue of the parenting styles of each parent and X’s perception of this is abundantly clear from Dr K’s oral evidence, whilst being cross-examined by counsel for the mother.
Counsel for the mother put to Dr K that information X had related to her about the activities in the mother’s household and his attendances at (religion omitted) meetings was incorrect and did not accord with the mother’s evidence and that of her witnesses.
When cross-examined about this discrepancy Dr K’s evidence was:
“‑‑‑In terms of what he’s saying and – and what mum is saying about – I mean, I think as I said before, yes, obviously there’s some discrepancies between what X is saying about meetings, for example, and what mum is saying about meetings. But as I was saying before, he – he was at the time that I saw him three and a half. And it’s about his perception. So it may well be that he does get to play at meetings beforehand. I don’t know. They’re not the things that are salient to him. The things that he was saying he doesn’t like about meetings are having to sit and shush and have his hands down and the amount of time he was there. So I don’t think it’s actually quite as black and white as it has been portrayed.”[51]
“‑ as I said before he may – it’s – it’s not just about – because he says he doesn’t like meetings and he doesn’t get to play it doesn’t necessarily categorically mean that he doesn’t get to play. It means that the things that he doesn’t like about meetings that are most important for him are having to sit for extended periods of time and do the shush thing that he told me about with his hands on his knees. That’s the overriding concern for him. So I don’t think this is as black and white as saying because he didn’t say that he, you know, gets to play that it means it doesn’t happen.[52]
[51] Transcript page 28, line 5 -14
[52] Transcript page 28 line 16 -24
In response to the proposition that the father had manipulated and significantly influenced X’s view of his mother’s religious practices, Dr K did not agree. Her evidence about this issue was clearly stated in the family report, and was as follows:
“Ms Sefton would assert that rejection of the religion is due to influence of Mr Bardsley, however, following interview of X I am of the opinion this is not the case. X is unexpectedly developed with regard to language and expression. X’s explanation of his concerns was framed in a manner, using language, play and fantasy that clearly suggested they originated from X.”[53]
Dr K’s evidence, whilst subject to cross-examination, was consistent with that statement in the family report.
[53] family report page 24, paragraph 91
Dr K’s oral evidence emphasised, time and again, X’s perception of the differences and contrast between the households of his two parents. She stated as follows:
“– I think it’s the contrast of. I think that if he were in an environment that was say mum’s environment without the contrast of the kind of environment with dad, so both parents were – maintained the environment and what he has access to in the same way as many kids are that in the absence of having something to contrast it to he’s more likely to accept that this is the way that it is and it would be, you know, his life. I think the difficulty in this case is the stark contrast between the two environments just highlights to him “[54]‑ ‑ ‑
“But I mean I think obviously the – what it reflected was as I said before that really dichotomous view that he has of both families. And I mean ultimately if – whether he gets to play at meetings or not for me, you know, in – in some respects is a bit irrelevant. But the reality is that there’s things that he’s doing in mum’s home that he doesn’t particularly enjoy. And you contrast that with a three and – a three – for a three and a half year old with things that he does in dad’s home which is much – from his perspective much more free and enjoyable and he gets to do all these things that he doesn’t get to do and it’s less restrictive. What kid wouldn’t then say “I, you know, want to spend more time at Dad’s”?[55]
“. I mean, my concern – and I think I tried to reflect that in the report – is that because in this particular case the differences between the two homes[56]
“But I do think that one of the problems that exist and will very likely be exacerbated in the future is this contrast between the two households.[57]
[54] Transcript page 11 lines 26 - 34
[55] transcript page 29, line 46,47, & page 30, line 1 - 7
[56] Transcript page 30 line 17 - 19
[57] Transcript page 32 line 13-15
It is apparent that the circumstances of separation were tumultuous and volatile. The father’s evidence under cross-examination was that following an argument, he and the mother had effectively “kissed and made up” prior to the father returning to work for the duration of that day. Upon returning home from work later that evening, he discovered that the mother and X were no longer at their home and he was frantic with worry.
I am unable to make any adverse findings against the father arising from the circumstances surrounding the intervention order.
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
Both the parents and X require certainty and stability. This is the second occasion on which the parents have required a determination, or at least legal assistance to resolve the parenting arrangements for X. Clearly it is in nobody’s interests, least of all X’s for further litigation between the parents.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Changeovers
Changeovers were an issue in the proceedings. The mother alleges that the father has been aggressive at change overs and prolongs changeovers and is generally reluctant to separate from X. She alleges this causes X to be distressed and creates an opportunity for conflict between the parents.
The father was cross-examined about an incident at change over, which occurred on 13 July 2014, when the father allegedly struck the mother’s hand and took her mobile phone from her when she was attempting to film the father’s behaviour at change over. The father admitted to grabbing the phone from the mother and was remorseful and apologetic about his behaviour.
I propose to make orders whereby as many changeovers as possible will take place at a kindergarten and when X commences school in 2017, at school. This will minimise the occasions on which the parents will come into contact with each other at change overs.
Drug Use
Both parents admitted to drug use whilst they were living together prior to X’s birth. Counsel for the mother cross-examined the father about this issue.
The father conceded that the parties smoked marijuana together and his evidence was that the mother was a very heavy smoker and that he was very surprised at how much she smoked at that time. Apart from the issue of whether or not the parties smoked inside or outside their home, the issue was not further pursued.
The evidence suggests that this is a historical issue. I note that the orders of 22 August 2013 do not include a restraint on a drug use by either party and the mother in this proceeding does not seek any such restraint.[72]
[72] Amended Response of the mother filed 3 May 2016
Education
X is due to commence primary school in 2017. Unfortunately, the parents have been unable to agree which school he will attend. They do however agree that he will attend a local primary school in the catchment area of both homes.
The mother proposes that X attend (omitted) primary school, which is the school the father attended as a child and the father proposes that X attend (omitted) primary school.
There was very little evidence about the merits of each proposal. Neither of the affidavits of the mother, namely 15 January 2016 and 28 March 2016, nor the Amended Outline of Case Document of the mother, filed 3 May 2016 refer to this issue. The affidavit of the mother filed 30 May 2016 provides her only evidence on this issue.[73]
[73] affidavit of the mother filed a 30 May 2016 at paragraphs 83 - 86
The mother prefers (omitted) primary school because she asserts that many of X’s kindergarten friends will be attending the school and that X knows other children who attend school. She also asserts the school offers a good scholastic sporting and pastoral program. If X were to attend (omitted) primary school, the mother would have to drive him to school each day, or catch public transport, whereas her choice of school is within walking distance of home.
The father’s evidence about this issue is contained in his affidavit of 24 March 2016[74] and in his affidavit of 31 May 2016.[75]
[74] affidavit of the father 24 March 2016 at paragraphs34 and 35
[75] affidavit of the father 31 May 2016 at paragraphs 84 – 87
The father prefers (omitted) primary school because the school has an art and music program and has a focus on these types of activities as opposed to sporting activities. He asserts that (omitted) School has more of an emphasis on sport related activities. His evidence is also that X is not particularly interested in sport and does not seem to have sporting ability. The school is close to his home and work and he would be likewise required to drive or catch public transport to (omitted) primary school.
The father was cross-examined about the differences in the schools and gave evidence consistent with his affidavits. He emphasised that X was not a sporty child and was rather more creative and that was the reason why he preferred (omitted) primary school. His evidence was that many of X’s kindergarten friends would also be attending (omitted) primary school, as his current kindergarten is a “feeder” for both primary schools.
(omitted) and (omitted) would be appropriate schools for X to attend, and this issue is finely balanced, however, in the absence of agreement, I determine that X should attend (omitted) Primary School.
Equal shared parental responsibility
Section 61DA provides, 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) 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 equ
child.
(2) 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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … 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:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
The mother in her Amended Response at paragraph 2, seeks that the final orders of 22 August 2013 remain in full force and effect subject to some variations.
Paragraph 2 of the 22 August 2013 orders provides for the parties to have equal shared parental responsibility for X. Paragraph 3 of the orders provide for the parties to consult with one another prior to implementing any long-term issues or arrangements for the child.
As the mother does not seek any alteration or amendment to these orders from her perspective, she considers those orders to be appropriate.
The father, however, seeks to discharge all previous parenting orders which include the previous orders pertaining to parental responsibility.
Whilst he does not seek an order that he have sole parental responsibility for X, he seeks an order for joint parental responsibility subject to his right to have sole parental responsibility for decisions regarding education, medical treatment and religion in the event the parties disagree about any of these issues.
His application, in my view, is tantamount to an application for sole parental responsibility, particularly when viewed in the context of the disputes before the court in relation to religion and education.
Whilst it is apparent that the parties have divergent views about education, some medical treatment and religion, I have grave concerns about depriving a competent parent of the opportunity to participate in long-term decision-making for their child.
It is a very serious matter to exclude the rights and responsibilities of parental responsibility from a parent. His Honour Murphy J stated in Lennon & Lennon [2011]FamCA 571:
The exercise of discretion in favour of excluding one parent from consultation and decision-making in respect of major long-term issues through child is, it seems to me, a very significant step being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration, nor that the legitimate fundamental rights of a parent are irrelevant.
I am of the view that the statutory presumption of equal shared parental responsibility should apply in this case. I am not satisfied that there is evidence to rebut the presumption. An order for equal shared parental responsibility requires the parents to cooperate in making long-term decisions about current and future education, major health issues, religion and cultural upbringing, the child’s name and any change in the child’s living arrangements which will make it significantly more difficult for the child to have a relationship with the other parent.
The specific orders which I intend to make in relation to religion and education will go a long way towards minimising potential future disputes and conflict about religion and education.
The father has consistently sought to pursue a full and beneficial relationship with X. He has been actively involved in his life and is a committed and devoted parent
There was no dispute that the mother has been the primary carer for X, subsequent to separation and that she has been a caring and committed parent.
Whilst there have been obvious problems with communication, I am of the view that two intelligent devoted and committed parents, such as these parents would be able to learn to communicate in the future, for the benefit of X. The father expressed a willingness to undertake a post separation parenting course and indeed was justifiably criticised by counsel for the mother or his past failure to do so. A post separation parenting course should assist the father with his communication skills in the future.
In the past the parents have been able to communicate via text messages, albeit sometimes in a less than optimum fashion. The issue of inability to communicate was put to Dr K by counsel for the mother, and her evidence was:
“well, I would respectfully suggested been that that’s (sic) to the parties to actually deal with the issues and learn to communicate effectively in X’s best interests
It is not uncommon for parents who are embroiled in litigation to be unable to communicate and to fail to reach agreement. This is no reason to exclude a competent parent from the decision-making process about their child’s life. It is incumbent on these parents to improve their communication and cooperation skills and to reach agreement about these issues in the future.
Accordingly, I intend to make an order for equal shared parental responsibility.
Statutory Pathway
Having determined that it is in the best interests of the child that there be an order for equal shared parental responsibility, I am now required to address the statutory pathway as set out in s.65DAA(1)-(5).
Firstly, I will address X living equal time with both parents.
The father in his application seeks orders that X live equal time with both parents. The configuration of equal time proposed by the father is that X live with his father in a two week cycle as follows:
(1)week one : from 3:30 PM or the conclusion of school on Wednesday until 9 AM or the commencement of school on Monday, to be extended to Tuesday, if Monday is a public holiday;
(2)week two: from 3:30 PM or the conclusion of school on Wednesday until 9 AM or the commencement of school on Friday
The mother opposes an equal time regime and seeks orders that X live with her and spend time with the father in a two week cycle as follows:
(1)week one: from 3:30 PM or conclusion of school on Friday until 9 AM or commencement of school on Monday
(2)week two from 3:30 PM or the conclusion of school on Thursday until 9 AM or commencement of school on Friday
Dr K recommends that X live with each parent in an equal time arrangement with the configuration as follows:
(1)week one from 8:30 AM Thursday to 8:30 AM Monday, or commencement of school
(2)week two: from 3:30 PM Tuesday to 8:30 AM Friday [or the conclusion and commencement of school].
The basis of mother’s opposition to an equal time arrangement may be summarised as follows:
(1)X has lived with her for all his life and has thrived in her care
(2)The current consideration of time is disruptive for X and such time should be reduced
(3)The father’s behaviour is controlling and manipulative and X should be protected from such behaviour
(4)The father continually seeks to undermine the mother’s relationship with X, in particular by exposing X to his views about the mother’s religious beliefs.
(5)The father is deficient in his capacity to parent X and has little concept of appropriate boundaries between himself and the child
(6)The ability of the parents to communicate is limited
(7)X does not have the maturity, independence and cognitive ability to express any views about his living arrangements
(8)Any views expressed by X have been severely influenced and compromised by the father
(9)An equal care arrangement was not age or developmentally appropriate for a four-year-old child
As previously referred to in this judgement, at paragraph 153, Counsel for the mother vigorously cross-examined. Dr K and put to her the mother’s perceived impediments to equal care, as detailed in paragraph 175 hereof. I have also referred to these issues in this judgment.
As referred to at paragraph 177 hereof, Dr K repeatedly emphasised the dichotomy between the two households and the different parenting styles of both parents.
Paragraph 177 to 178 hereof, refers to two critical issues, firstly, the mother’s religious practices having a negative psychological impact on X and secondly, the adverse effect on the relationship between X and the mother.
Paragraph 179 hereof, refers to Dr K’s evidence about the mothers lack of insight.
Dr K stated in relation to X’s living arrangements as follows:
“I mean, my concern – and I think I tried to reflect that in the report – is that because in this particular case the differences between the two homes – I think that it is in X’s best interest to have an – an – an equal shared time in both of those environments and in part because, you know, there’s a fundamental difference in terms of the – the beliefs and X has, you know, the right to be exposed to both of kind of those environments. And that’s not being critical of either.”[76]
[76] transcript of evidence of Dr K page 30, line 17 -24
In response to the proposition that an equal shared care arrangement would be highly unusual for a child of X’s age and for parents with such poor communication, Dr K’s evidence was:
“I mean, I – well, I will – ultimately very possibly but I’m talking about a child of his age. It is in some respects premature to look at a shared care arrangement. I think the issues in this case – and – and I keep going back to that difference between the households and that is the underlying thing that X perceives, you know – as I said before, you know, if he were raised in a household where there were no religion – or – or two households where there were no kind of religious boundaries or two households where there were very similar, you know – two (religion omitted) households where he didn’t get that constant contrast you wouldn’t have the difficulties that you have with him now. It’s not about either parent’s parenting ability. It’s about the – for him I strongly believe – about the difference and the contrast between the two households. Now, you could argue that, you know, the structure and the discipline is in his best interests in the future. You could argue that free play and being a free spirit at dad’s home is in his best interests in the future. The reality is you’ve got a three and a half or four year old now stuck between two completely disparate households and he sees that difference. And so I think it’s important for him to spend time in both of those households to balance out some of those differences.”[77]
“But I do think that one of the problems that exist and will very likely be exacerbated in the future is the contrast between the two households. And I think that – as I’ve said in the recommendations. I thought they were relatively clear they do think moving towards a – a shared care arrangement is important for him.”-[78]
[77] transcript of evidence of Dr K page31 , line 25 to 41
[78] transcript of evidence of Dr K page 32, line 13 – 18
In response to questioning about the fundamental issue and the manner in which to address that, Dr K’s evidence was as follows:
“Is your perception really the dispute between these two people is a completely different parenting styles and---Yes.
--- The different experiences that X has in each household, whether it’s religious or whether it’s some other issue--- Absolutely.
The fact that the parents have – the father has one parenting style, mother has the other. The child is caught in the middle knowing that neither parent approves of the other parent?‑‑‑Absolutely.
So is your evidence the best way to address that issue is for equal time in each household?‑‑‑I – I think equal time in – in each household and I think also, you know, obviously there’s some real necessity for improvement in communication,”[79]
[79] transcript of evidence of Dr K page 36 , lines 35- 47
Having regard to the matters mentioned herein and hearing the evidence of the parties and Dr K, I am of the view that equal time with each parent is in X’s best interests.
Having made that determination, I am now required to consider whether or not X spending equal time with each of the parents is reasonably practicable.
Section 65DAA (5) sets out matters which the court must have regard to when considering an order for equal time s.65DAA(5) is set out a paragraph 253 hereof.
Both parents live within close proximity to each other. The mother lives in (omitted) and the father lives in (omitted).
Since separation X has lived with his mother and has spent substantial and significant time with his father. The current arrangements are that X spends five nights a fortnight with his father, with a three night block and one further overnight in week one and one overnight in week two. Additionally, the orders of 22 August 2013, provide that upon commencement of school which will take place in January 2017, X is to commence spending one half of all school holidays with his father, including term and long summer holidays.
There was no suggestion by either parent that X would be unable to cope with an absence from either parent, for a five night block, in one week and for two overnights in the other week or that there is any practical impediment to that arrangement. That is the configuration proposed by the father. Dr K’s evidence under cross-examination by counsel for the father was that such an arrangement would be appropriate for X. Counsel for the mother did not cross examine Dr K about the configuration of equal time, or whether X would cope with an absence from either parent.
I therefore conclude that he would be able to cope with such a configuration of equal time. I also determine that the parents currently have and in the future would have the capacity to implement an equal time arrangement in accordance with this configuration.
As referred to in this judgment, communication has been problematic in the past. However, I have confidence that each party as a committed and intelligent parent would be able to focus on the child and improve communication in the future for his ultimate benefit. I intend to make an order that the father undertake and complete a post separation parenting course in order to improve his communication skills.
I am also of the view that minimising the opportunity for the parents to come into contact with each other at change over will go a long way towards resolving their current differences. Orders providing for each parent to be able to travel interstate during their respective time with X, without requiring the prior permission of the other parent will improve the relationship and communication skills of the parents.
I have previously referred to the impact of an equal time arrangement for X and have also referred to the evidence of Dr K in that regard.
I am confident such an arrangement will enable X to enjoy a meaningful and harmonious relationship with each parent, whilst having to cope with two very different households.
Conclusion
I accordingly conclude that an order for X to spend equal with each parent is in his best interests and that such an arrangement is reasonably practicable.
For these reasons, I make the orders set out at the commencement of this judgment.
I certify that the preceding two hundred and ninety five (295) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 15 July 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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