BARTON & BARTON

[2018] FamCA 175

FAMILY COURT OF AUSTRALIA

BARTON & BARTON [2018] FamCA 175

FAMILY LAW – CHILDREN – Where there is one child aged 13 years – Where the father lives in the United Kingdom – Where the father seeks orders for the child to spend five periods of time in the United Kingdom totalling six weeks in every two years – Where the mother seeks orders for the child to spend three periods of time in the United Kingdom in every two years – Where consecutive holidays may be difficult for the child – Where the child needs school holiday time in Australia to spend time with her friends and maternal family – Where an order is made for the child to spend two periods of time each year with her father in the United Kingdom.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the father seeks equal shared parental responsibility and the mother seeks sole parental responsibility – Where no family violence is established – Where there is severe parental conflict – Where the presumption of equal shared parental responsibility is rebutted as it is not in the child’s best interests – Where an order is made for the mother to have sole parental responsibility.

FAMILY LAW – COSTS – Where the mother seeks that the father pay part of her costs of these proceedings – Where the father did not inform the mother that he would be relocating to the United Kingdom – Where the mother prepared her case on the premise that the father would be remaining in Australia – Where the father submits that he expected to remain in Australia at the time – Where the father submits that some of the costs paid were applied towards the final hearing – Where there is a high level of acrimony between the parties and limited communication – Where it may be unfair to isolate one aspect of proceedings for treatment under s 117 of the Family Law Act 1975 (Cth) – Where a costs order is not granted.

Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC, 117

McCall & Clark (2009) FLC 93-405
Champness & Hanson (2009) FLC 93-407

APPLICANT: Mr Barton

RESPONDENT: Ms Barton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3379 of 2007

DATE DELIVERED: 22 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 4, 5, 6, 7 and 8 December 2017

REPRESENTATION

APPLICANT FATHER: Self-represented

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan Family Lawyers

REPRESENTATIVE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Save for the orders made on 8 December 2017, all previous orders with respect to B, born … 2004, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child and in the exercise of that responsibility she shall:

   (a)notify the father in writing by email prior to making non-emergency decisions about major long term issues in relation to the child, including issues of education and health;

   (b)notify the father of the full name and contact details of any doctor or health professional whom she proposes to consult, assess, examine or treat the child;

   (c)invite the father to express his views in writing;

   (d)take the father’s views into account when making such decisions, provided such views are expressed by him in a timely manner;

   (e)notify the father in writing of her final decision as soon as practicable after the decision has been made; and

   (f)provide a written Authority to all doctors and health professionals consulting, assessing, examining or providing treatment to the child, authorising such doctors and health professionals to have discussions with the father and to provide the father with information (if requested by him) in relation to the child’s well-being, including a copy of all written reports in relation to the child.

3. By consent the child live with the mother.

4. The child spend time with the father at such times as are agreed between the parties and if not otherwise agreed:

   (a)in the United Kingdom:

   (i) in the 2018/2019 Christmas school holidays and in each alternate year thereafter, commencing on 27 December 2018, for four weeks, provided that in any event the child will be returned to Australia not later than 72 hours prior to the commencement of the first school term of the following year;

   (ii) in the 2019/2020 Christmas school holidays and in each alternate year thereafter, commencing on the first day after the conclusion of the last school term for four weeks; and

   (iii)during the July school holidays in 2019 and in each year thereafter, commencing on the first day after the conclusion of the second school term and concluding with the child’s return to Australia not later than 72 hours prior to the commencement of the next school term.

   (b)in Australia during school term for not less than one period of three weeks duration on dates to be notified by the father to the mother in writing or email in the form of a confirmed flight itinerary no less than 28 days prior to the commencement of that period and unless the parties otherwise agree, the following arrangements will apply to those visits:

   (i)on the day of the father’s arrival in Sydney the father or his nominee shall collect the child on that day from the mother or her nominee at McDonald’s Suburb M at 7.00 pm;

   (ii)on the day of the father’s departure, the father or his nominee shall return the child to the mother or her nominee at McDonalds Suburb M at 7.00 pm;

   (iii)except in the event of illness or with the prior agreement of the mother, the father shall ensure that the child attends school and where practicable, extracurricular appointments, during her period of residence with him save that, provided he has the permission of the school principal, she may be absent for up to two days of school in each year, during those periods;

   (iv)to facilitate the child attending school during these periods of residence, the mother shall provide to the father all of the child’s school uniform requirements;

   (v)the mother shall provide sufficient clothing for the child for each period of residence with the father and the father return such clothing to the mother at the conclusion of the periods of residence;

   (vi)in the event the father has the care of the child in Australia on Mother’s Day, then the father shall return the child to the mother from 5.00 pm on the day prior to Mother’s Day and the child shall remain in the mother’s care until the commencement of school the following Monday with the father to deliver the child to the mother at McDonalds Suburb M at the commencement of such time and the mother to deliver the child to school at the conclusion of such time.

5. Except as otherwise specified in these orders, for the purposes of changeover at the commencement of the child’s time with the father:

   (a)if the child is travelling overseas on the day that her time with the father is scheduled to commence, then the mother or her nominee will deliver the child to the father or his nominee at Sydney International Airport three hours prior to the time of departure of the child’s flight;

   (b)if the child is returning from overseas on the day that her time with the father is scheduled to conclude, then the mother or her nominee will collect the child from the father or his nominee at Sydney International Airport at the time of arrival of the child’s flight.

6. In the event that the father proposes to travel overseas outside of the United Kingdom during any period of time the child is in the father’s care pursuant to Order 4(a) herein, then the father shall notify the mother in writing not less than 28 days prior to the time commencing of the destination, contact details, and travel details (including flight details), the name and address of any accommodation or new contact number where the child can be contacted during such travel and including notifying the mother of any change to such arrangements not less than 24 hours prior to such change occurring.

7. The mother and father each do all acts and things necessary to facilitate Skype/Facetime or other form of instant video communication between the child and the father:

   (a)on the first and third Sunday of each calendar month; and

   (b)on the child’s birthday, the father’s birthday, Christmas Day and the child’s sister P’s birthday.

8. In the event that the mother proposes that the child travel overseas during a period of time she is in her care, she shall notify the father in writing not less than 28 days prior to the time commencing of the destination, contact details, and travel details (including flight details), the name and address of any accommodation or new contact number where the child can be contacted during such travel and including notifying the father of any change to such arrangements not less than 24 hours prior to such change occurring.

9. By consent the parents shall do all things and sign all documents necessary to cause the child to have Australian and United Kingdom passports at all times and shall do all such acts and things and sign all documents necessary to renew those passports not less than six months prior to the expiration of her current respective passports.

10. By consent, during periods when the child is living with one parent, the other parent is at liberty to communicate with the child by telephone on her mobile phone or via SMS text message at all reasonable times.

11. By consent each of the parents shall do all things necessary to ensure that the child’s mobile telephone is operating, fully charged, turned on and available to the child at all reasonable times.

12. By consent each of the parents shall do all acts and things necessary to encourage and facilitate the child’s communication and time with other parent as provided for in these orders.

13. By consent each of the parents shall notify the other as soon as practicable and in any event within four hours of any serious illness or injury suffered by the child while in their respective care.

14. Except in the case of an emergency, if the child requires medical treatment while in the father’s care in Sydney, he is to take the child to her GP, Dr L, and shall notify the mother prior to and of the outcome of any such consultation, within four hours of the consultation.

15. Each of the parents shall advise the other via email within four hours of the child being presented to any medical or health care practitioner for any reason, including in that advice, the name and address of the medical or health care practitioner.

16. By consent the mother will notify the father of any appointment with a medical or health care practitioner during his time with the child in Australia and the father will take the child to that appointment.

17. By consent, orders are made in terms of paragraphs 23, 24, 25 and 26 of the Minute of Order dated 8 December 2017 (exhibit 17) as follows:

    23.The mother shall authorise the Principal of the child’s school to provide the father with duplicate copies of school reports, notices of parent/teacher meetings, school assemblies, sport and swimming carnivals and any other school activity to which parents are invited to attend and any other correspondence or notification relating to the child, and both parties are at liberty to obtain such information directly from the child’s school and to communicate directly with the child’s school.

    24.Each party shall advise the other party by email of their current, and if there is any change, not less than seven days prior to the change of the following:-

    24.1    residential address;

    24.2     landline telephone number available;

    24.3     mobile telephone number;

    24.4     child’s mobile telephone number;

    24.5email address at which they may be contacted for the purpose of these Orders or communication with respect to the child.

    25.Each party is hereby restrained from denigrating the other parent to or in the presence or hearing of the child and shall use his or her best endeavours to ensure that no third party shall denigrate the other parent to or within the presence or hearing of the child.  

    26.Each party is restrained from discussing with the child any allegation raised in these proceedings, other than is authorised by the Court and is restrained from showing the child any document relating to the Court proceedings.  

18. The mother shall retain the possession of the child’s current Australian and United Kingdom passports except during periods when the child is travelling overseas with or for the purposes of spending time with the father.

19. By consent, orders are made in terms of paragraphs 30 and 31 of the Minute of Order dated 8 December 2017 (exhibit 17) as follows:

    30.The mother shall provide the child’s Passports to the child on the day of travel and ensure the child has such Passports in her possession at any time she is due to travel overseas with the father pursuant to these Orders.

    31.The father, or his nominee, in the event the child is travelling with the father’s nominee, shall return the child’s Passports to the mother at the changeover at the conclusion of each period of overseas travel.  

20. By consent, orders are made in terms of paragraphs 32 and 33 (excluding 33.5) of the Minute of Order dated 8 December 2017 (exhibit 17) as follows:

    32.That within 14 days the mother shall obtain a referral from her GP to a clinical psychologist recommended by Dr A via the Independent Children’s Lawyer (“the psychologist”) for the purposes of providing the child with confidential psychological therapy in relation to issues identified in Dr A’s report dated 23 May 2017, particularly at paras 100, 115, 116 and 140.

    33.      For the purposes of Order 32:

    33.1The mother shall notify the father and Independent Children’s Lawyer in writing of the name and contact details of the psychologist and the date of the first appointment within 24 hours of the appointment being made.

    33.2The mother shall ensure that the child attends the appointment and any subsequent appointments requested by the psychologist.

    33.3The mother and father shall comply with all reasonable recommendations made by the psychologist.

    33.4The mother shall provide a written Authority to the psychologist authorising and directing him/her to provide the father with a copy of any written report in relation to the child.

    33.5    [deleted]

    33.6The Independent Children’s Lawyer has leave to provide the psychologist with:

    33.6.1A sealed copy of the final orders made by Justice Loughnan, and

    33.6.2Copies of Dr A’s reports dated October 2014 and 23 May 2017.

21. The mother is restrained from using any surname for the child other than “Barton”.

22. The mother is restrained from referring to the father as “Dick” at any time to the child or in her presence or hearing and the mother shall at all times actively encourage the child to refer to the father as “Dad”, “Daddy” or “Father”.

23. The mother shall use her best endeavours to ensure that no third party shall refer to the father by his first name or a nickname to the child or within the child’s hearing or presence.

24. The mother is restrained from referring to the father’s wife Ms Barton as by a nickname at any time to the child or in her presence or hearing and the mother shall at all times actively encourage the child to refer to Ms Barton by her first name.

25. The mother shall use her best endeavours to ensure that no third party shall refer to Ms Barton by a nickname to the child and within the child’s hearing or presence.

26. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

27. Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3379 of 2007

Mr Barton

Applicant

And

Ms Barton

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in respect of B (“the child”) who is 13 years of age.

2. Mr Barton is the child’s father. He seeks a change to the current orders whereby he and the mother would have equal shared parental responsibility for the child and she would spend time with him including five visits in the United Kingdom (“UK”) totalling about twelve weeks in every two years.

3. The child’s mother is Ms Barton. She opposes those orders and seeks that she have sole parental responsibility for the child. She seeks that the child’s time with the father include no more than three trips to the UK in every two years.

4. There are also issues between the parents as to the duration of visits, notice to be given, handover arrangements and a raft of ancillary disputes.

Applications

1. The father’s case outline included orders providing for the child to live with him in the UK. By the time of final submissions, the father did not seek that outcome. The father made some concessions during submissions, including those embodied in the orders made on 8 December 2017, which were substantially made by agreement, but much of the orders set out in his case outline on and from paragraph 24, were still pressed.

2. During the hearing the father said that he did not press for all of the orders set out at paragraph 36 of his proposal. I understood him to say that at least as to paragraph 36(b), his proposal was no longer pressed.

3. On the morning of 4 December 2017 the father also proposed certain orders in relation to travel proposed for the child in the 2017/2018 Christmas school holidays. Ultimately the parties were able to reach agreement about the substance of the child’s arrangements for the 2017/2018 Christmas school holidays, as well as for the April and July 2018 school holidays and those orders, together with orders to facilitate a second opinion in respect of the treatment of the child for Attention Deficit Hyperactivity Disorder (“ADHD”) were made on 8 December 2017. Some of the father’s proposals at paragraph 26 were overtaken by the agreement reflected in the orders of 8 December 2017.

4. The last written minute setting out the orders sought by the mother was submitted on 6 December 2017 and was marked exhibit 10. During the course of the trial and final submissions, various compromises were made by and on behalf of the mother. Ultimately, a compromise between the mother and the Independent Children’s Lawyer (“ICL”) was largely reflected in a minute of order marked exhibit 17.

5. In relation to the father’s interim application, the mother agreed that the child will spend Christmas 2017 with the father in the UK. She did not oppose the child leaving Australia with the father on 12 December 2017, following the trial in these proceedings. She initially opposed the stay being for more than three weeks and she opposed the child having a stopover in Asia on the way back, citing travel advisory concerns. Ultimately, however, those issues were resolved by agreement in the terms of orders made on 8 December 2017.

1. The mother sought leave to amend her Initiating Application to include a prayer for child support departure. That leave was opposed and was not granted.

2. The ICL’s proposals were set out in two documents submitted during final submissions on 8 December 2017 (exhibit 17 and exhibit 18).

Written evidence

1. The father relied on the following documents:

   (a)further Amended Initiating Application filed 23 December 2016;

   (b)the father’s affidavit filed 28 November 2017; and

   (c)the affidavit of Ms Barton filed 1 December 2017.

2. The trial directions included an order that the evidence of lay witnesses be contained in one affidavit from each deponent. The father sought to exceed that requirement by listing in his case outline most, if not all, of the affidavits sworn by him in the proceedings. It transpired that he only sought leave to rely on the paragraphs of the earlier affidavits specified in his most recent affidavit. That leave was granted notwithstanding that it was opposed on behalf of the mother.

3. The mother relied on the following documents:

   (a)Response filed 31 May 2013;

   (b)the mother’s affidavit sworn 8 November 2017;

   (c)the mother’s Financial Statement sworn 8 November 2017; and

   (d)affidavit of Mr O sworn 8 November 2017.

Expert evidence

1. The following expert evidence was relied on:

   (a)Family Report prepared by Dr A dated 27 October 2014; and

   (b)Updated Family Report prepared by Dr A dated 23 May 2017.

The hearing

1. There have been several earlier hearings. Justice Stevenson heard final parenting, child support and property settlement proceedings over three days commencing 16 June 2008 and delivered judgment on 29 July 2008. I heard interim parenting proceedings on 5 December 2014, 21 August 2015, 11 January 2017 and 30 October 2017.

2. The hearing commenced on 4 December 2017. On 8 December 2017 orders were made in respect of the Christmas 2017/2018 arrangements as well as those for April and July 2018. Those orders were overwhelmingly by consent with only a few issues being left to the Court’s determination. Otherwise judgment was reserved.

3. The father conducted the trial without legal representation. I was grateful to Ms Kennedy and Ms Shea for the accommodation they made for him, as a litigant in person. The parents’ proposals changed significantly from the position originally claimed by them and as a result the task of identifying the joinder of issue between the parties was difficult. Ultimately, the nature of the detailed dispute was only identified on the final day of the trial and in the course of oral submissions about the content of the written proposals contained in exhibits 17 and 18.

Short History

1. The father was born in 1972. At the time of the hearing he was 45 years of age. The mother was born in 1969. At the time of the hearing she was 48 years of age. The parents commenced living together on about 1 October 2000, were married in 2003, separated on a final basis on 21 December 2006 and were divorced with effect from 18 July 2008. There is one child of the marriage, the child B, born in 2004 and aged 13 years five months at the time of the hearing.

Credibility

1. The credit of the lay witnesses is not a relevant factor in the proceedings. Most of the decisions required in this case do not turn on findings of fact which rely mainly on the credit of a lay witness. The central issues in the case relate to the ability of the parents to share the exercise of parental responsibility for important long-term issues about the child and the balance between the child’s need to maintain a meaningful connection with the father and the paternal side of her family and the emotional, psychological and developmental cost of maintaining that connection.

2. The overwhelming focus of the parents’ evidence and cross-examination was apparently aimed at demonstrating that one parent was reasonable, responsible, conciliatory and child focussed and that the other parent displayed the opposite qualities. That reflects the parents’ attitudes to each other and that in turn is the major issue for the child and one that is entirely beyond the power of this Court to address.

3. There was no focus on credit in final submissions.

Background facts

1. In January 1998 the parties met while they were both residing in the United Kingdom (“UK”).

2. On about 1 October 2000 the parties commenced living together.

3. In 2003 the parties were married in Sydney.

4. In May 2003 the parties returned to reside in the UK.

5. In 2004 the child was born in Sydney.

6. On 21 December 2006 the parties separated on a final basis. Following separation the mother and the child commenced living with the maternal grandparents in Sydney.

7. On 10 May 2007 the mother filed an application for final orders seeking parenting and property orders.

8. On 18 July 2008 the parties were divorced.

9. On 29 July 2008 orders were made by Justice Stevenson that the child live with the mother and spend time with the father for increasing periods of time as she grew older. Orders were also made that the child could travel between Australia and the UK and that she do so unaccompanied from the age of 12 years. No order was made in relation to parental responsibility.

10. In January 2010 the child commenced kindergarten at her current school, the N School (“GS”).

11. In or about February 2011 the mother moved out of the home of the maternal grandparents.

12. In 2012 the mother commenced her relationship with Mr O (“Mr O”).

13. On 21 December 2012 the father commenced further parenting proceedings.

14. At the end of March 2013 the father secured a two year contract in Sydney.

15. In 2013, the father married Ms G (now “Ms Barton”) in the UK.

16. On 20 November 2013 interim parenting orders were made by Senior Registrar Campbell whereby the child would live with the mother and spend three nights per fortnight with the father during the school week. The father’s time was to increase over time.

17. On 5 August 2014 interim parenting orders were made by consent for the child to travel with the father to New Zealand. Dr A was appointed as the single expert clinical psychologist.

18. In 2014, P (“P”) was born. She is the daughter of the father and Ms Barton.

19. On 24 August 2015 interim orders were made that the child would live with the mother and spend time with the father in the UK. The child was also to spend time with her father when he was in Sydney. Orders were additionally made in expectation that the father would return to live in Sydney with the child to spend time with him six nights per fortnight during school terms and half the school holidays.

20. At the end of August 2015 the father was obliged to depart Sydney with Ms Barton and P, due to the expiry of his visa.

21. On 30 April 2016 the father started Q Ltd in the UK.

22. From 10 April 2016 to 24 April 2016 the child resided with the father in the UK. The child has not travelled to the UK since this time.

23. In June 2016 the mother took the child to see a speech pathologist, Ms W, for a learning profile assessment. Ms W diagnosed the child with a specific language disorder (“SLD”) with difficulties with working memory. She produced a report on 10 June 2016.

24. On 30 December 2016 the mother took the child to see Dr S (“Dr S”) who conducted an assessment on the child and provisionally diagnosed her with Attention Deficit Disorder (“ADD”).

25. On 11 January 2017 interim orders were made which left the orders of 24 August 2015 unchanged save that restrictions were placed on the parties taking the child to medical professionals without notifying the other parent in advance except in the case of a medical emergency.

26. On 12 January 2017 Dr S prepared an initial report about the child’s development.

27. On 17 March 2017 an updated report was prepared by Dr S confirming that the child has ADHD.

28. Until just before the trial, the father had not seen or spoken to the child since April 2017 when he was in Australia for interviews with Dr A.

29. As at 7 April 2017 the father was in arrears of child support by $9,715.19. The father has made an objection to the Child Support Agency, in relation to the assessments that created those arrears.

30. On 10 May 2017 the mother took the child to the T Centre where she attended an appointment with Ms U, an educational psychologist. A report was provided three to four weeks later. The child was assessed as having specific learning difficulties particularly with visual and auditory processing.

31. On 18 August 2017, the child attended a follow up appointment with Dr S. On 23 August 2017 Dr S wrote[1] to the mother and to the child’s GP, Dr L. Among other things Dr S reported that the child presented with “question of ADHD”. He said that the Teacher’s and Parent’s Conners 3 assessment by the mother and the child’s teacher suggested the diagnosis of inattentive ADHD. Dr S reported that the psychometric profiles performed by Ms U, Educational Psychologist, showed variable ability. For example, the child demonstrated phonological segmentation and blending at 18 years equivalent while her form constancy was at four years and nine months equivalent. Dr S considered that those results were very typical of ADHD. Dr S noted that the mother was keen to start the child on medication. However, he said that in order to warrant such action, the ADHD must result in functional impairment. He noted that the child’s school reports recorded that she was achieving at Grade C in grammar, punctuation and vocabulary, writing and representing, speaking and listening and mathematics and at Grades A and B for all other subjects. He recorded that the mother attributed those results to the fact that the mother spent significant time and effort helping the child with all her subjects. Dr S reported that the mother is concerned that once the child “enters HSC” she will struggle. Dr S discussed the resultant dilemma and canvassed the possibility of the mother withdrawing her help. He thought that was not a good idea as it could harm the child’s self-esteem and cause her to lose self‑motivation. His report concludes that the only way to delineate the issue without damaging the child’s self-esteem and to prove the mother’s point would be to trial the child on psychostimulant medication and to test her both on and not on that medication.

    [1] Exhibit 9

32. On the last day of the hearing, 8 December 2017, the following orders were made:

    1.Orders are made in the terms of paragraphs 4, 5 (as amended), 6.1 (as amended), 6.2 (as amended), 8 (as amended) 15 of the document titled “Minute Of Order” (Exhibit 17 dated 8 December 2017, and as set out hereunder:

    4.That within 14 days the mother shall obtain a referral from her GP to a developmental paediatrician recommended by [Dr A] via the Independent Children’s Lawyer (“the paediatrician”) for the purposes of providing a second opinion as to whether the child should commence a medication trial for her ADHD.

    5.For the purposes of Order 4:

    5.1    The mother shall notify the father in writing of the name and contact details of the paediatrician and the date of the appointment within 24 hours of the appointment being made.

    5.2    The mother shall within 24 hours of the appointment being made, provide a written Authority to the paediatrician authorising and directing him/her have discussions with the father and to provide the father with information (if requested by him), including a copy of all written reports in relation to the child.

    5.3    deleted

    5.4    The mother shall provide to the paediatrician a copy of the Connor’s Assessments in relation to the child, [Ms U’s] report of May 2017 and [Ms W’s] report of June 2016.

    5.5    It is NOTED that the paediatrician may prepared his/her assessment and report without interviewing the child if the paediatrician considers it appropriate to do so.

    6.That the child spend the following time with the father:-

    6.1    From 12 December 2017 until 8 January 2018;

    6.1.1To facilitate such Order the mother shall deliver the child to the father to Sydney International Airport by 1.55pm  on 12 December 2017 and shall collect the child from the father’s nominee, [Ms E], at Sydney International Airport at 7.30am on 8 January 2018;

    6.1.2The mother shall cause the child’s Australian Passport to be delivered to the father when she delivers the child to the Airport on 12 December 2017 and the father shall cause his nominee, [Ms E], to return the child’s Australian Passport to the mother upon returning the child to her care on 8 January 2018;

    6.1.3The father will cause the child to telephone the mother as soon as practicable upon the child’s arrival in [City V];

    6.1.4The mother is at liberty to communicate with the child by telephone during the travel at all reasonable times;

    6.1.5If the child wishes to communicate with the mother at any other times when she is in the father’s care during the travel the father shall facilitate the child’s communication with the mother at all reasonable times;

    6.1.6That upon the child’s arrival in [City V] and until her departure from [Asia] the father shall ensure the child’s mobile phone is charged and operating to facilitate the telephone communication referred to herein.

    6.2    For the July 2018 New South Wales School holiday period commencing on the first day after the conclusion of the school term however in the event the child’s birthday falls within the July school holidays then the time shall commence on the day following the child’s birthday and the time shall conclude 72 hours prior to the commencement of the following school term;

    15.That the mother have leave to travel to take the child B, born … 2004 out of the Commonwealth of Australia for the period 16 April 2018 to 26 April 2018 on a …cruise to [the South Pacific].

    2.The Court notes that it is the expectation of the parties that the time spent between the child and the father pursuant to Order 6 will be substantially in the United Kingdom.

    3.An order is made in the terms of paragraph 8 (as amended) of Exhibit 17, and as set out hereunder:

    8.In the event that the father proposes to travel overseas outside of the United Kingdom during any period of time the child is in the father’s care pursuant to Order 6 herein, then the father shall notify the mother in writing not less than 28 days prior to the time commencing of the destination, contact details, and travel details flight details, the name and address of any accommodation or new contact number where the child can be contacted during such travel and including notifying the mother of any change to such arrangements not less than 24 hours prior to such change occurring.

33. Some matters were arbitrated by me but those orders were substantially made by consent.

The Expert Evidence

1. The single expert was Dr A who is a child, family and adult specialist clinical psychologist in private practice in Sydney. Her qualifications relevantly include the following degrees:

   ·Bachelor of Psychology (Hons) 2000;

   ·Master of Clinical Psychology (Hons); and

   ·Doctor of Clinical Psychology 2013.

2. Dr A’s work experience relevantly includes a position as clinical psychologist from 2003 to 2005; Director of Child and Adolescent Development from 2005 to January 2008; clinical psychologist in private practice from July 2009 to date; and a family consultant pursuant to Regulation 7 of the Family Law Regulations 1984 from December 2009 to date.

3. Dr A prepared reports in this matter dated 27 October 2014 and 23 May 2017.

The Legislation

1. The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. For the purposes of the determination of these proceedings, I will adopt the following approach:

   (a)set out the current arrangements;

   (b)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;

   (c)where possible and relevant, consider and make findings about matters set out in s 60CC of the Act;

   (d)consider and make findings about parental responsibility, including considering the presumption in s 61DA of the Act;

   (e)apply s 65DAA of the Act if relevant and assess the proposals in light of that provision;

   (f)if 65DAA is not relevant, assess the proposals against the best interests criterion;

   (g)consider and make findings about living arrangements; and

   (h)make orders.

The Current Arrangements

1. The child lives with her mother in Suburb K in Sydney. They live in an apartment that the mother rents from her partner, Mr O. She did not see her father from April 2017 until just before this trial. She has not seen or spoken to her father’s wife, Ms Barton or her half-sister, P since April 2017. The father, Ms Barton and P live in Y Town, which is in County X, the UK.

The Parties’ Proposals

1. The range of dispute on the key areas seems to be:

   (a)whether parental responsibility should be equally shared or exercised solely by the mother;

   (b)how frequently the child should travel to the UK to spend time with the father and members of the paternal family; and

   (c)what time and under what conditions the child should spend time with the father in Australia.

Section 60CC Considerations

1. The section specifies various considerations. Not all of those consideration bear on the issues before the Court. As to the relevant considerations:

Primary considerations:

Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents

1. A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2] That enquiry is “prospective” which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

   [2] McCall & Clark (2009) FLC 93-405.

2. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]

   [3] Champness & Hanson (2009) FLC 93-407.

3. It is common ground that both parents have a loving relationship with the child and that she loves both of them. Both parents seek orders that include provision for significant and unsupervised time between the other parent and the child.

4. The relationships between each parent and the child are meaningful and subject to other considerations going to the child’s best interests. Any orders made should promote those relationships.

(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.

1. As the case was argued, there are no relevant allegations of abuse or family violence.

2. ‘Abuse’ and ‘family violence’ are defined terms within the Act.

3. Section 4 of the Act provides:

   abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

1. Section 4AB of the Act provides:

   (1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.

   (2)Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)      an assault; or

   (b)      a sexual assault or other sexually abusive behaviour; or

   (c)      stalking; or

   (d)      repeated derogatory taunts; or

   (e)      intentionally damaging or destroying property; or

   (f)       intentionally causing death or injury to an animal; or

   (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.

   (3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a)overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or

   (b)seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or

   (c)comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or

   (d)cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or

   (e)being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.

2. The father is aggrieved about the nature of many of the allegations made against him by the mother. Indeed, there is a heading in the mother’s affidavit: “[Mr Barton’s] ongoing False Accusations that I have accused him of Sexual Abuse”. Despite the denial apparent in that heading, the mother has made allegations in the nature of allegations of abuse against the father. That is revealed in the passages set out in that affidavit under that heading:

   ·at paragraph 499(y) of her affidavit the mother deposes:

   On 14 March 2010, While sitting with me on the lounge at my parents place, the child spontaneously told me the while she was with [Mr Barton] he had, “tickled my gina (sic) (vagina).”

   [errors in the original]

   ·the mother says that the child made a report to her psychologist of allegations that the child had been hit and kicked by the father, the mother reported repeated incidents of vaginal thrush and the child’s complaints about being made to sleep in the same bed as the father and shower with him. The mother reported the child’s disclosures to the Department of Community Services and she understands that as a result of those complaints the matter was referred to the Joint Investigative Response Team.

   ·the mother says that in 2014 the child told her that she was very uncomfortable that the father was forcing her to shower with him, making her get undressed in front of him and not giving her privacy in the bathroom. The mother says that the child said to her words to the effect: “He says there is not enough hot water for us to shower separately” and “I want to keep my swimmers on in the shower, but he makes me take them off. He makes me do it, he says I have to take my swimmers off straight away so he can wash them, and if I don’t do it he throws cold water on me and he has done it before.”

3. One or more of those accusations may be the ones to which the father was referring.  At paragraph 514 of her affidavit the mother refers to a comment from the father’s solicitor in a letter of 26 May 2014 to the effect that the mother was inferring that the father was only in a bathroom with the child merely to look at her. At paragraph 515 of her affidavit the mother deposes: “I deny that I was making such an inference or that I was in any way accusing [Mr Barton] of sexually abusing the child.”

4. The mother confirmed during her cross-examination that at times in the past she was concerned about the father’s conduct with the child. However, she said that she now accepts that he has never deliberately abused the child. Despite that concession, in my view it was entirely reasonable for the father to apprehend that until relatively recently, the mother alleged that he was responsible for abusive behaviour. In summary for the purposes of this criterion, there was no abuse or family violence. The father denies any abusive or violent behaviour and the mother no longer alleges that there was deliberate behaviour of that nature by him.

5. Sadly, it appears that the parents have caused serious psychological harm to the child. Their behaviour probably falls short of the definitions of family violence or abuse but the result has been the sort of harm that can result from those behaviours. In her evidence, Dr A stated:

   I can’t stress to the parents and to the Court how difficult I have found this case, how difficult I found that second interview with the child. She was one of the most, I want to use the word traumatised but I won’t, the most distressed children I have ever seen. She was in hysterics about this issue [of how many times per year she could travel to the UK]…she was twisting herself… I had to reassure her it was alright, it didn’t matter. It disturbs me enormously that this poor child feels burdened by both of her parents to give the answer that they want…it’s become her responsibility…and I think it really is an example of the terrible job both these parents have done in failing to shield this child from the most basic requirement of childhood, that they’re free from this sort of conflict.

6. Therefore s 60CC (2A) of the Act does not have any direct work to do. That said, such is the ongoing plight of the child that in this case, the primary consideration of maintaining a meaningful relationship between the child and both parents, must give way to her need to be psychologically safe.

7. While any orders made should promote the relationships between each of the parents and the child, the question is, how can that be done at a psychological and developmental cost that is manageable for the child.

Additional considerations

(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;

1. The child is 13 and a half years of age. She presented to Dr A as a child who continues to be significantly burdened about expressing her views as to her future living arrangements. The child understood her parents’ applications, she is loyal to both her parents and does not want to disappoint either of them. In the course of interviews for Dr A’s latest report the child repeated an earlier expressed view that if she said she enjoyed time with her father then that would make her mother upset or sad. The child has been told that is not so by her mother but she continues with the strong perception that her mother would be deeply wounded by such a statement.

2. Otherwise, Dr A detected that the child’s preference is not to live in the UK because that would disrupt her from her family, friends and school. On the other hand she finds the travel to the UK burdensome as to the flight itself, jetlag and the fact that she would miss out on holiday experiences in Australia.

3. Dr A opined that the Court should place significant weight on the child’s views about travel arrangements and her feelings of stability and security in Australia.

4. That said, such is the appalling situation in which the child finds herself, it is important that she understands that this is not a decision that turns on her wishes, or even that it is one that substantially turns on her wishes. The child has been harmed by the conflict to date and there are serious psychological dangers in prospect for her on either parent’s proposals. It is not for a 13 year old girl to weigh and choose between those dangers. Certainly not for a 13 year old girl who has been diagnosed with ADHD and SLD and who has been unprotected in the middle of a dreadful relationship between her parents since she was two years of age.

   (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);

1. There is a loving relationship between the child and each of her parents.

2. Dr A considers that the mother daughter relationship has served the child well in terms of optimising her development. The mother has continued to focus on the child’s development in positive ways and has made particular steps to ensure that her academic and extracurricular activities are appropriate and optimise her development. In those areas, Dr A considers that the mother and daughter have a healthy and normally developing relationship. However, Dr A records in both reports an opinion that their relationship is enmeshed in that the child continues to express concerns about having views that are contrary to those of her mother. In effect, the child believes that she is not permitted to discuss her father or his family, in front of her mother. The one exception relates to mention of P.

3. Across both reports Dr A considered that the child and her father are very similar in their natures, personalities and styles of interacting. Her experiences of interacting with her father have positive psychological and developmental benefits for her. However unfair as it may be on the father, the child may resent and feel abandoned as a result of the father coming to Australia to live and then moving back to the UK. Dr A was concerned that there is likely to be no one in Australia who will ameliorate that view or assist her to know and understand that this is not the case. Dr A opined that children who feel abandoned or who interpret a parent’s absence as something they have caused tend to be at much greater risk of psychological disorder, including serious levels of depression and other internalised mood disorders.

4. On the positive side, Dr A noted that when she visits the UK, the child apparently feels embraced and completely accepted by the paternal family members. The child spoke to Dr A in glowing terms about the paternal grandparents and particularly about her cousins. The father and Ms Barton have set up a permanent room in their home for the child.

5. Most fortunate of all, Dr A records, is the connection between the child and her sister, P. Despite their long absences from each other, they were observed to be able to connect in a delightful and playful manner. Notwithstanding the difference in their ages and the length of time between their visits, P and the child have a delightful and rather strong connection, reported Dr A. This has enormous benefits to the child. Firstly, the topic of P is one of the few areas of the child’s life where she feels unburdened and able to express her experiences in the households of each of her parents. Secondly, Dr A considers that in her interactions with P, the child is able to play and interact as a child should. The sessions between P and the child observed by Dr A included some of the few times where she saw the child laughing, giggling and playful. That contrasted with other observations where the child was observed to be anxious, awkward, fidgety and distressed. As a result Dr A thinks that her interactions with P give the child the opportunity to be a child and to interact in a natural way with a sibling. Dr E reported that the experience of being an older sister is an important and positive one for the child’s sense of her psychological wellbeing. It gives her an identity and a break from the family dynamics which have been very difficult for her. It will also give her a practical way to integrate into her father’s care if she is to spend longer periods of time away from him. The child and P and their style of play forms a great distraction and may break up the awkwardness that the child may initially feel.

6. Dr A opined that the relationship between the child and P is and will continue to be a significant link for the child and her paternal family and it should be significantly valued by all the adults.

7. Dr A found it more difficult to assess the child’s relationship with Ms Barton. In her earlier report Dr A considered that Ms Barton was kind, warm and empathic to the child and that the child had developed a lovely and close emotional relationship with her. At the time of the later assessment the child had not had contact with Ms Barton for nearly 12 months. Dr A opined that due to the difficulties with communication between the child and the father, Ms Barton had not been communicating with the child. Consequently, Dr A observed the child to display some distance from Ms Barton because they had not been involved with one another for a year. However, as the session continued Dr A observed the child to interact and emotionally connect with Ms Barton. As was the case in the earlier report, Dr A found Ms  Barton to be kind, sensitive and empathic to the child’s predicament. Dr A was impressed with the degree to which Ms Barton understood and had empathy for the child’s experience. Of the adults, Dr A considered that Ms Barton spoke with the greatest consideration and distress for the child’s predicament. It was Ms Barton above the other adults who tended to believe that the adults needed to improve their behaviour with respect to their interactions regarding the child. Overall, Dr A assessed the relationship between the child and Ms Barton to be significantly more distant than had been observed for the 2014 report.

8. As to the child’s relationship with Mr O, Dr A’s views remained unchanged between her two reports. Mr O appeared to have a good knowledge of the child’s needs and a kind and supportive way of interacting with her. The child was observed to be relaxed and comfortable in his care and his involvements in aspects of her life such as homework and holiday routines have helped to develop their bond. Dr A considered that if Mr O and/or his children commence to live with the mother, the relationship between him and the child might experience some difficulties and differences during the child’s adolescence. In addition, Dr A was concerned about the degree to which Mr O makes parental decisions in respect of the child. The child has accepted that to date but Dr A considered that in the future she might question and challenge those decisions and Mr O’s authority to make them.

   (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;

1. In my view the mother has fully taken her opportunities to spend time with and communicate with the child.

2. The mother contends that the father has not taken all of his opportunities to spend time with the child. She says that from 2008 – 2013 the father rarely called to speak to the child and there were periods of six months at a time when he did not call her. On the other hand, the mother says that the child often refused to speak to the father when he called. The father did not take all of the available opportunities to communicate with the child after April 2016. I will refer to his approach to gift giving over that time later in these reasons. Otherwise, given the restrictions of distance and the highly conflictive relationship between the parties, in my view, the father has also taken what was reasonably available to him of those opportunities. Indeed, a less determined person than the father would have walked away from a relationship with the child long ago.

(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;

1. This is a contested issue in the proceedings. There are child support arrears in respect of the father’s child support assessment. The father has objected to the latest assessment and that issue has yet to be resolved.

2. The father has assiduously refused to pay for expenses in respect of which he was not given prior notice and about which he does not approve. He agreed that his financial obligation to provide the mother with financial support for the child was not limited to the terms of the periodic child support assessment. However, that has been the result. On the other hand, the impression given by the father is that he will meet any expenses incurred for the child while she is in his care. For example, he had planned for her to attend a fee-paying school if she was to live with him in the UK. As I understand it, he makes no contributions to the child’s school, extracurricular, medical or related expenses in Australia.

   (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;

1. The mother does not propose any significant change to the child’s living arrangements save that she proposes that the child spend some time with the father in the UK, involving three trips every two years. I note however, that the mother has had some difficulty in agreeing to and in facilitating trips to the UK in the past.

2. The father originally proposed a very significant change in the child’s life. His primary application was that the child reside in the UK rather than Australia. On that basis he proposed that there be contact between the child and her mother, initially in the UK but thereafter on an alternate holiday basis, with Christmases being alternated. In his affidavit the father does not address the prospect that the child would have difficulty adapting to the changes he proposed. However, in the orders he seeks he makes it plain that he would like the new arrangements to be communicated to the child by a suitable person or therapist and then would want a process, perhaps for two months of the child being supported in adapting to the changes. The father made it clear in submissions that he would agree to whatever it would take to assist the child through the transition.

3. Ultimately, the father did not press his relocation application. He prevaricated somewhat about that concession but ultimately that was his position. The main changes inherent in his ultimate proposal involves travel to the UK at least twice a year, a relaxation of the mother’s conditions for the child’s overseas travel with him and a change of handover venue to the child’s school.

(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;

1. The child’s parents live on different sides of the world. Therefore to the extent that the parents propose that she spend time with the other parent at the home of the other parent, there is the cost and the necessary inconvenience and discomfort of travel between Australia and the UK.

   (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;

1. There is much to admire about each of the child’s parents. They are intelligent, loving and committed parents who are capable of addressing the child’s physical and intellectual needs.

2. The mother has maintained a focus on the child despite having a serious medical condition which in addition to its physical impact day to day has resulted in her leaving the workforce and managing on a disability support pension. The father was in effect, the left behind parent on the breakdown of the parties’ marriage. He attempted to migrate to Australia to make the best of his relationship with the child. I am satisfied that he was frustrated in that aim and has borne substantial cost and interference in trying to maximise his time and communication with the child.

3. Unfortunately, such is the parents’ dislike for and distrust of each other that they are unable to cooperate in the child’s parenting. A decade of their lives has been characterised by disputation and conflict. That is a longer period than the duration of their cohabitation. They see little wrong with their own conduct and have demonstrated little or no motivation to change their own behaviour.

4. Dr A considers that the child has been harmed by the conflict between her parents and is concerned that the conflict is longstanding and seemingly unabated. She is of the view that the child is caught in the middle of the highly acrimonious, 10 year dispute between her parents. Dr A considers that the child is continually exposed to psychological harm because of the degree to which she has become and remains involved in the proceedings. The child spoke to Dr A in bleak terms about hating her family situation, wishing she could be like a normal child, feeling that she is not free to have a normal and open relationship with her father, in particular, and being aware of the many aspects of the litigation. In cross-examination Dr A spoke about the child being “split” in dealing with the entirely irreconcilable relationship between her parents.

5. Dr A spoke about the child as being in a very serious position. She said it was akin to trauma. As she noted in her second report, Dr A was obliged to interrupt her forensic task during her interview with the child in order to comfort her as she exhibited severe distress. 

6. During her oral evidence Dr A was asked about the father’s evidence about the child writing him a note about one week after her interviews with Dr A for the second report, to the effect that she only wants to go to the UK once per year. Dr A said that everything about that note caused her concern and that everything about this child caused her concern. Dr A said that in her second interview with the child, she found her to be one of the most distressed children she had ever seen. Dr A said that the child feels burdened by both her parents to give the answers they want – it has become her responsibility. Dr A said that she was shocked to read in the mother’s affidavit that she had started questioning the child about the trip to the UK. It is the mother’s evidence that she said to the child:

   I know you told Dr A that you would like to go to the UK once or maybe twice a year. Do you understand that if you went twice a year, you would have to go at least every 6 months. So for example, you would have to go every Christmas holidays and every July holidays. Is that what you want? …

   Dr A saw that as an example of the mother trying to change the child’s views. Dr A said that it alarmed her as a mental health professional. Dr A noted that the parents have been litigating for the entirety of the child’s life and yet do not understand that these things have a severe impact on her.

7. Sadly, it appears that the parents have caused serious psychological harm to the child. As I have noted above, their behaviour probably falls short of the definitions of family violence or abuse in the legislation but the result has been the sort of harm that can result from those behaviours.

8. At an early stage of the hearing I canvassed with the parties the prospect of shutting one parent out of the child’s life. That was not and is not proposed by either of the parents and indeed, when the father and his wife were asked about such a possibility during their oral evidence, they said that it would not be in the child’s best interests. Nevertheless, such an arrangement would spare the child the potential of four and a half more years of disputation, the stress of long distance travel and would allow her to settle into a stable, non-conflictive life. The concept of excluding one parent from the child was put to Dr A in the course of her oral evidence and while ultimately not recommending it, she responded to the effect that it was worthy of consideration. 

9. There was nothing said by either party during the trial that suggested that the relationship of the parents would improve in the future or that they would be able to start insulating the child from their feelings for each other. Although each of the parents agreed during the trial that some of the blame for the child being exposed to their poor relationship belonged to him or her, as the case may be, those concessions were usually followed by a justification relating to the behaviour of the other parent. Luckily, the child was not in Court to see her mother cross‑examined by her father. They were both formally polite and respectful but there was no sign of either of them taking shared, let alone personal responsibility for the current predicament. There was no indication that either of the parents will make or be receptive to a suggestion of a better way forward.

10. During her cross-examination, Dr A was asked about future psychological support for the family. She agreed that there would be benefit for the child to see a therapist. Dr A was asked whether there would be benefit in each of the parents seeing therapists. Dr A rejected that suggestion out of hand. I understood her to mean that neither of the parents would be receptive to therapy and therefore there would be no utility in ordering it.

(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;

1. The mother adheres to the rites her Christian denomination. The child is in Year 7 at the N School which is of this denomination.  She has attended since she was four and a half years of age.

2. The mother, her parents and members of their extended family are also Christians of this denomination. The mother completed her education at Christian schools and college and she worked at a faith based Sydney hospital. The parents were married in a ceremony within this faith. The child has been raised in this faith. The parents were involved in her initiation ceremony at 12 months of age and the child has attended church on Saturdays since she was about two years of age. The mother adheres to the Church’s teachings about on all lifestyle elements.

3. The child and the mother regularly attend church on the weekend. A children’s service commences at 9.30 am and the adult service often attended by the mother and the child runs from 11.00 am to 12.30 pm.

4. The mother deposes that she wants the child to grow up knowing the importance of honesty, integrity, generosity, to have good work ethic, good morals, to be considerate, to have empathy, to be involved in charity work and to follow the teachings of the Church. She also wants the child to be spiritually, mentally, emotionally and physically healthy. About every third Saturday, the child attends a Church organisation that is similar to girl guides through the Suburb N Church. At the start of 2017 the child signed a pledge committing herself to attend a minimum number of 75 per cent the organisations meetings and activities.

5. It is the mother’s case that the father deliberately undermines the child’s religious beliefs. She notes that he has given evidence of breaking religious restrictions. She says that the child has said that the father told her not to listen to the mother’s family about God. The mother asserts that the father did not support the child’s attendance at the children’s organisation while he was in Australia from 2013 to 2015. The father disputes that assertion.

6. The father noted that as a baby, the child was initiated in another Christian church and that at some point she may choose to practice in that church. He agreed, however, that there is no evidence before the Court in respect of his adherence to the rites of this church or what he proposes for the child in that regard.

7. As the father noted during final submissions, the child has half his background and that is an important aspect of her heritage.

8. The mother says that from June 2015 she noticed that the child was having difficulty with comprehension, following instructions and being able to focus and follow through with tasks. She raised that with the school. Ultimately, in about June 2016, the school principal recommended that the child be assessed by a speech pathologist. The mother took the child to Ms W for an assessment and Ms W observed a specific language disorder, struggles in the use of language and difficulties in planning and organising a written response. She also expressed a concern that the child may have an “attentional disorder”.

9. The mother understood that the school notified the father about the referral. The mother did not consult with or advise the father about the child attending on the speech pathologist because of “the high level of conflict between” them and because she was already aware from the school that he had been notified.

10. The mother has been taking the child to Ms W every week since June 2016. The appointments are for 30 minutes and the child has five to 10 minutes of speech pathology homework each day.

11. Ms W recommended that the child see a psychologist and in September 2016 the mother sent an email to the father asking for his agreement to that course and that he pay all out of pocket expenses for the speech pathologist and psychologist. The mother contends that the father did not respond to that email and a reminder was sent by her five weeks later. The father responded two days later but did not indicate whether he agreed about the psychologist. The mother then booked an appointment with a Paediatrician, Dr S. Dr S saw the child in December 2016 and made a provisional diagnosis of ADD.

12. Included in the orders made on 8 December 2017 are the mechanics of the parties’ agreement to seek out a second opinion in respect of the best treatment for the child’s ADHD and SLD. They agreed to an order whereby they will ask Dr L for a referral to a paediatrician nominated by Dr A.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. There was a recent period during which the father did not write to the child or send her birthday or other presents. The father and Ms Barton were asked about that and their response was to the effect that they preferred to give experiences as gifts. It would have been easy for the father to give the child experiences that she and perhaps her friends could have enjoyed in Australia. That leaves the suggestion that the father was not acknowledging the child’s birthdays over that period as a way of reacting to the fact that his relationship with her was being frustrated. If that is the case, it was not child focussed behaviour by him.

2. Otherwise, this criterion has been addressed under other headings.  

(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;

1. In my view the order least likely to lead to further proceedings would be an order that provided that the child live with one of the parents and have nothing to do with the other. In that way there would be no obligations to comply with and, subject to the possibility of an initial appeal, little risk of further parenting or enforcement proceedings. Neither of the parents has sought such an order. I flagged that possibility during the hearing and again, neither parent supported that approach. Dr A thought it worthy of consideration but ultimately did not recommend it. Therefore, in my view such an approach is not available to me. I take the parents’ attitude to mean that they consider that the benefits to the child of maintaining a relationship with both of them, outweigh the damage and risks of future damage from the conflict between them.

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. If no order is made in respect of parental responsibility then the position as to the parents of a child is as per s 61C of the Act as follows:

   (1)Each of the parents of a child who is not 18 has parental responsibility for the child.

   Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

   Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

   Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

   (2)Subsection (1) has effect despite any changes in the nature of the relationships of the child‘s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

   (3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

   Note: Section 111CS may affect the attribution of parental responsibility for a child.

3. That is the current situation in respect of the child. An order for shared parental responsibility has the following effect as per s 65DAC of the Act:

   (1)This section applies if, under a parenting order:

   (a)2 or more persons are to share parental responsibility for a child; and

   (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   (2)The order is taken to require the decision to be made jointly by those persons.

   Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   (3)The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b)to make a genuine effort to come to a joint decision about that issue.

   (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

4. Presumably that must also apply to equal shared parental responsibility.

5. Section 61DA of the Act provides:

   (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 equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (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.

1. The father proposes that the parents have equal shared parental responsibility. The mother seeks sole parental responsibility for the child.

Discussion

1. The presumption created by s 61DA of the Act does apply because there are not reasonable grounds to believe that either parent or Ms Barton has engaged in abuse of a child or family violence.

2. That said, the presumption is rebutted. I am satisfied that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her. The parents are incapable of the type of communication that is required to efficiently address the issues that have and could arise for the child. When they have communicated, it is not always responsive and is at times, tangential, abrupt, suspicious and demeaning. The geographical separation of the parents means that the problems are highlighted. Third party mechanisms used to ameliorate conflict and poor communication, such as joint meetings with medical and education practitioners and sessions with mediators are made very difficult because of the distance between the parents. Sadly, but understandably, the parents’ partners have been drawn into the conflict and neither of them is in a position to undertake the role of intermediary.

3. Not only is there no effective communication but over the 10 years of disputation the communication that has occurred has become an instrument of aggravation. That may not be such a problem if there were no serious issues to address but decisions are required in relation to the child’s health; in relation to the extent to which the rules of one household are required to be respected in the other; not to mention the need to insulate the child from her parents’ appalling and destructive relationship.

4. Another possibility is that the exercise of parental responsibility could be disaggregated. The parties could have joint responsibility for decisions about education and religious adherence and a different arrangement could apply in respect of medical treatment, for example. That thought was prompted by the fact that while the parties are deadlocked about a trial of medication for the child’s ADHD, there is no active disputation about the school she attends or her religious adherence. The problem with that proposition is that the lack of difficulty with religion and education is not the product of a meeting of minds between the parents.  The father has simply deferred to the mother’s decision about those matters. In each case, as I understand his case, he did not and does not agree with her decision and left to his own devices, he would not emulate it if the child was mainly in his care.

5. It is possible that the child has been disadvantaged by the deadlock between the parents about medication. Of course, the decision about a medical trial for ADHD can be difficult and contestable for the parents of any child. Here, however, the parties were unable to make a decision. In my view the parents cannot discharge the obligations identified in s 65DAC of the Act and it is necessary for one of them to have sole parental responsibility. Obviously, that will be the mother, with whom the child will mainly live. Experience has shown that orders will be required about advance notice and an opportunity for the father to have input to decision making. By the agreed orders made on 8 December 2017 the parties belatedly commissioned a second medical opinion about the possibility of a trial of medication for the child. Hopefully that will allow the parties to agree about that issue. If not, after taking account of the father’s views, the mother will make the final decision.

Conclusion

1. The proper order is one that places parental responsibility with the mother. I will make an order in the terms proposed on her behalf and by the ICL at paragraph 2 of the minute of order which is exhibit 17.

Living Arrangements

1. The minute of order (exhibit 17) was the framework for much of the oral submissions made on 8 December 2017. The document was drawn by the ICL and was intended to identify issues about which the mother and the ICL agreed and did not agree. The mother’s position on some issues changed during oral submissions and that resulted in her no longer pressing for some of the prescriptions set out in the document. The father’s case was something of a moving feast and he too announced concessions or other changes to his position during oral submissions. In the following paragraphs I will set out what I understand to be the positions ultimately taken by the parents, I will set out a decision in respect of the remaining disputes and, where necessary, give reasons for doing so.

2. Paragraphs 4, 5, 6.1, 6.2, 8 and 15 were addressed in identifying the orders made on 8 December 2017 and those orders make provision for the father’s time with the child in the Christmas school holidays commencing in December 2017 and the holidays in July 2018. They also make provision for the child to accompany her mother on a cruise in April 2018. As to the remaining paragraphs:

3. Paragraphs 1 and 3 are agreed by all parties and I will make those orders.

4. Paragraph 6.2, 6.3 and 6.4 incorporate the mother’s proposals for the child to spend time with the father in the UK. In general terms the mother proposes that the child will travel to the UK once a year for three weeks in the Christmas school holiday period. The time would commence in 2018 and every second year thereafter on 27 December and in the intervening years on the second day after the conclusion of the last school term of the year. She also proposes that the child travel to the UK in alternate July school holidays commencing on the second day after the conclusion of the school term or the day after the child’s birthday if her birthday falls within this holiday period. This would begin in July 2018.

5. Thus the mother’s proposal involves three trips to the UK of about three weeks duration, every two years. The ICL supports that proposal for the Christmas holidays but advocates the duration of those visits being four weeks rather than three. The ICL also supports the mother’s proposal for the child to spend alternate July school holidays in the UK but states it should commence the day immediately after the last day of the school term. The ICL also proposes that in the years that the child does not spend the July school holidays in the UK the father can spend time with her in Australia during that holiday period.

6. The father set out his proposals in paragraph 26 of the alternate orders in his case outline. Albeit that some mischief has been done to the plan by the parents’ agreement to the orders of 8 December 2017, as I understand his proposal, the father had sought that the child spend time with him in the UK in the following pattern:

   ·all of the April 2018 school holidays

   ·all of the October 2018 school holidays

   ·the last half of the 2018/2019 Christmas school holidays

   ·all of the July 2019 school holidays

   ·the first half of the 2019/2020 Christmas school holidays

   ·all of the April 2020 school holidays

   ·all of the October 2020 school holidays

   ·the last half of the 2020/2021 Christmas school holidays

   ·all of the July 2021 school holidays

7. Thus, apart from the compromises made for the orders of 8 December 2017, the father’s proposal amounts to five trips totalling about 12 weeks in every two years.

8. Dr A was asked about the parents’ proposals for the child’s travel to the UK. She said that she did not have a very strong view about the issue. She said: “I think in the whole risk of things facing [the child] this is actually a very insignificant issue.” Dr A said something to the effect that: three times a year is a lot, two times is a lot but manageable, I think one time is manageable. In responding to a similar question from the father, Dr A said:

   I think that three times a year is probably too much given her expressed desire to do some things in Australia which are normal and developmentally normal for high school children to want to spend time with their friends but I think that twice a year is manageable for her and once a year is certainly manageable for her.

9. In that same passage of evidence the father noted that the difference between the child travelling to the UK as opposed to the father travelling to Australia to see her was that in the latter case the child is likely to miss out on contact with the rest of the paternal family, including importantly, P. Dr A responded that time with P is important, that it was something that gives her respite. Dr A opined that the child relishes being an older sister and that she and P have a surprisingly strong connection given the limited time they have spent together. I understood Dr A to say that if the choice between the proposals meant that the child would see P once or twice per year then two trips should be preferred.

10. As to the issue of the child spending three weeks or four in the UK at Christmas time, Dr A said that she did not have a strong view about the issue. In her opinion the child would be perfectly able to manage four weeks. She noted the festive time of year and did not think the child was at an age where separation anxiety would arise. She noted that when the child has been in the UK, she has a fine time.

11. On balance the orders should provide for two trips by the child to the UK each year. Subject to any contrary agreement by the parents, I will provide for the mother’s proposals for Christmas but for a period of four weeks and for the whole of the July school holidays each year. That will avoid the child needing to undertake the arduous travel between Australia and the UK in consecutive holidays but will ensure that she can be part of the home life of the paternal side of her family at least every six months.

12. As to the commencement and conclusion of the periods, I will provide for the child to travel on the first day after the conclusion of the school term and for the child to return no later than 72 hours prior to commencement of the new school term.

13. As was submitted on behalf of the ICL, as the child gets older her need for time with her friends will increase. That argues for the father’s additional (Australian) time to be during school term rather than in holidays. Time with her friends will provide her with respite from her parents.

14. Paragraph 7 of exhibit 17 is agreed save that the father proposes that the communication be each week rather than on a monthly basis. I will provide for the communication to be twice a month.

15. Paragraph 8 of exhibit 17 deals with any proposals by the father for the child to travel beyond the UK during her UK visits with him. I will make a similar order to the one that qualified the related orders made on 8 December 2017.

16. Paragraph 9 of exhibit 17 deals with the mother’s proposal to limit the child’s travel with either of the parents to countries with a particular endorsement on the Australian Government Smarttraveller website.  The ICL did not support that restraint, citing the likelihood that the UK could be affected by a warning above the minimum required by the mother. There is no evidence that the father is irresponsible or that he would ignore official warnings about destinations. Courts should not grant injunctions without cause. I will not grant the injunction sought by the mother.

17. Paragraph 10.1 of exhibit 17 provides for the father to meet the costs associated with the child’s travel associated with the time he spends with her. There is no dispute about that issue. As was said during the course of submissions, either the father will make those arrangements or the travel will not occur. Paragraph 10.2 calls for the child to be accompanied by him or a female adult known to the child on all flights and “other modes of transportation”. The requirement proposed in that last phrase was sensibly withdrawn by the mother’s counsel. The issue of the child being accompanied on flights was addressed by the father’s proposals in respect of the December 2017 – January 2018 Christmas holidays because she would accompany the father back to the UK following the hearing and would travel with him to Asia and then with Ms E back to Sydney. That leaves the issue of the child being accompanied for subsequent trips. As to that matter, I will leave the decision about the child being accompanied to the parent at whose instance the travel occurs. The child is of an age where she will increasingly be capable of managing overseas travel without being accompanied by a familiar figure. Of course she will be able to express her wishes on this topic, to her father, for example.

18. Paragraph 11 of exhibit 17 makes provision for the father’s time with the child in Sydney during school terms. The proposal of the mother, supported by the ICL is to the following effect:

    11.In the event the father travels to Sydney then the child shall spend time with the father during school terms as agreed but failing agreement the child shall spend time with the father during school term as agreed but failing agreement:

    11.1for a total period of not more than six weeks per calendar year, with each period of time not exceeding 14 days;

    11.2the father shall give the mother not less than 42 days written notice of his intention to visit Sydney, with such notice to include the dates and time of the father’s arrival in Sydney and departure from Sydney, and the father’s address, landline and mobile telephone numbers while in Sydney;

    11.3the father shall cause [the child] to attend school every school day and shall take the child to all of her extra-curricular activities, tutoring, speech pathology and all appointments or events as notified by the mother;

    11.4in the event that the father has the care of the child in Australia on Mother’s Day then the father shall return the child to the mother from 5.00pm on the day prior to Mother’s Day and the child shall remain in the mother’s care until the commencement of school on the following Monday with the father to deliver the child to the mother at McDonald’s [Suburb M] at the commencement of such time and the mother to deliver the child to school at the conclusion of such time.

19. The orders sought by the father address this issue at paragraph 28. There he sought the opportunity to spend at least one period of three weeks in Australia with the child. However, as I understood from the interplay during final submissions, the mother’s proposal is not generally opposed by the father. However he seeks that the period of notice at paragraph 11.2 should be reduced to 28 days. As I did for a similar provision for the 8 December 2017 orders I will provide for the period of notice to be 28 days. The longer the required period of notice, the less flexibility will be available to the father and the child for these important visits.

20. As to the provisions of paragraph 11.3 the father submitted that the child’s attendance at school during the relevant periods should be a matter for his discretion. In a vain attempt at brokering a common ground position, during submissions I suggested that the orders could impose a requirement on the father that aside from illness suffered by the child, he be permitted to make arrangements with the school for the child to miss not more than two school days during his visits each year. That suggestion did not find favour. Like many disputed issues between the parents this is one entirely constructed out of their antipathy for one another. The father would like the opportunity to have long weekends with the child and the mother does not want the child’s routines upset. They are both worthy aims but there is no matter of principle that would assist in determining the dispute. At paragraph 35 of his proposed orders the father sought an order restraining the mother from making arrangements for the child during his time with her. There will be no problem with the child’s time in the UK, presumably there will be no opportunity for the mother to make extracurricular arrangements for the child in the UK. The practical problem for such an order insofar as it could affect her time with her father in Australia, is that the father’s trips will often be arranged on relatively short notice.

21. Routine is important for any child and it seems that there is particular benefit for the child in having a predictable weekly program. That said, there is no evidence to suggest that if she was to miss a number of days of school in order to spend quality time with one of her parents she would thereby be at risk as to her psychological or educational development. Knowing that medical and health related appointments can sometimes be rescheduled and that on occasion, school and extracurricular activities invariably give way to other priorities but for the parents’ inability to cooperate, a court would normally have no business intervening at that level of detail. All of paragraph 11 of exhibit 17 is expressed to be unless the parents otherwise agree. At the risk of succumbing to the detail of the parents’ dispute but in an attempt to give some realistic latitude to the father’s time with the child in Sydney, I will introduce into the orders, the device I offered to the parties. As to extracurricular events during the father’s time in Australia. I will provide for him to take the child to those events where practicable.

22. The father agreed with the mother’s proposal about Mother’s Days save for the venue for changeover. I gather that the father proposes that if the changeover is to be at a McDonald’s establishment, the Suburb Z site would be more convenient to him. I will express the order in terms of the mother’s proposal.

23. Paragraphs 12 and 13 take up the general issue of changeover arrangements. The mother’s proposal is that unless otherwise provided by the orders or agreed between the parents, the changeover at the commencement of the father’s time be:

    ·if the child is travelling overseas on that day, the mother or her nominee deliver the child to the father or his nominee at Sydney International Airport three hours prior to the time of departure of the child’s flight; and

    ·if the child is not travelling overseas on that day, the mother or her nominee deliver the child to the father or his nominee at 7.00 pm at McDonald’s at Suburb M.

24. The mother’s proposal is that unless otherwise provided by the orders or agreed between the parents, the changeover at the conclusion of the father’s time be:

    ·if the child is returning from overseas on that day, the mother or her nominee collect the child from the father or his nominee at Sydney International Airport at the time of arrival of the child’s flight; and

    ·if the child is not returning from overseas on that day, the mother or her nominee will collect the child from the father or his nominee at 7.00 pm at McDonald’s at Suburb M.

25. The mother’s proposals are supported by the ICL. As I understand the father’s position, he does not support changeovers at McDonalds at Suburb M and where practicable, would like to collect the child at school or as early as is practicable on a commencement day. Again the proposals are couched in terms that would allow for a compromise. Otherwise, the mother’s proposals are practicable, if not mutually convenient for the parents. I will generally make orders in terms of her proposals.

26. Paragraph 14 of exhibit 17 deals with the requirements to be imposed on the mother in respect of overseas travel for the child. I will impose the same requirements as are imposed on the father above.

27. Paragraph 16 of exhibit 17 deals with the child’s Australian passport and the mother’s proposal was supported by the ICL. The father agrees, provided that a similar provision is made in respect of the child’s UK passport. That order will be made by agreement.

28. Paragraph 17 of exhibit 17 deals with communication between the child and the other parent and is agreed as amended during final submissions. The absent parent will be at liberty to communicate with the child by telephone on her mobile phone or via SMS text message at all reasonable times.

29. Paragraph 18 of exhibit 17 is agreed and will be imposed in a form that reflects the agreed change to paragraph 17.

30. Paragraph 19 of exhibit 17 is sought by the mother and agreed to by the ICL. I do not have a record of the father agreeing. As the paragraph is drawn, the proposed order is unworkable. For example, it would prevent a parent minding the phone while the child was swimming or the phone being provided to a repairer. The terms of paragraph 18 make the parents’ intentions clear and I will make no further order.

31. Paragraphs 20 and 21 of exhibit 17 are agreed and I will make those orders.

32. Paragraph 22 of exhibit 17 addresses the child’s attendance on her GP when in the father’s care in Australia. The father agreed, provided that the child was in Sydney at the relevant time. I will make the proposed order with that amendment.

33. Paragraphs 23, 24, 25 and 26 of exhibit 17 are agreed and will be imposed by consent.

34. Paragraph 27 of exhibit 17 is proposed by the mother. The father would seek a longer period of notice – 24 hours. There is no logic in the father being required to report attendances on the child’s GP prior to and within four hours after the consultation and a lesser requirement for other attendances. I will make the order as proposed but will express it in mutual terms, binding the mother as well as the father. The mother seeks that the advice also include the date of the consultation. Given that she requires that the advice be given within four hours, the date will be apparent.

35. Paragraph 28 of exhibit 17 is agreed and will be imposed by consent.

36. The mother proposes at paragraph 29 of exhibit 17 that she retain the child’s passports. The father submitted that she should retain the Australian passport and he the UK passport. I was told by learned counsel for the mother (without complaint by the father) that the child uses both passports on one trip. I will make the order proposed by the mother.

37. Paragraphs 30 and 31 of exhibit 17 are agreed and will be imposed by consent.

38. Paragraphs 32 and 33 of exhibit 17 are agreed save for 33.5 and the agreed orders will be made.

39. At paragraph 34 of exhibit 17 the ICL proposes that the mother be restrained from using any surname for the child other than “Barton”. The father seeks a similar order. The mother does not agree to such a restraint. Indeed, in the orders formally sought by her in her case outline she sought an order:

    That the parties do all acts and things and sign all documents necessary, including the father signing such documents and returning them to the mother within 48 hours of the mother providing them to him, to authorise the change of the child’s surname to “[Barton-Barton]”.

40. There have been incidents whereby the child has been referred to by the mother’s surname. I understand that the mother’s opposition to an injunction is based on a concern that there might be an inadvertent reference made to another surname. I indicated to the parties during submissions that I was inclined to impose the restraint. The child is 13 years of age. She will be able to take up the issue of her name when she is an adult. In the meantime there should be no change to her name without the agreement of her parents.

41. At paragraph 36 of the minute in exhibit 17, an order is sought pursuant to s 106A of the Act whereby the registrar would be authorised to sign documents in the stead of a defaulting party. It is not clear to me that there is a category of document that is likely to be amenable to such an order. During submissions I canvassed the idea of authorising each of the parents, rather than the registrar but that did not seem to attract any positive interest. As I do not know that it can have any effective operation, I will not make the proposed order.

1. At paragraphs 49 – 52 of the orders he seeks, the father presses for certain injunctions as to the way in which he and Ms Barton are described to the child or in her hearing or presence. The mother was asked about references made in her household to Ms Barton by a derogatory nickname and the effect of her evidence was that those references had been made but only at a time when the mother understood that there was no ongoing relationship between the father and Ms G (as she then was). Ms Barton sought to take up the issue of the nicknames used for her and the father in the mother’s household in correspondence with Mr O – exhibit 16. There was no satisfactory outcome of that correspondence. One would think that the mother could have given an unqualified assurance that the derogatory references would never be repeated. In my view it will be in the child’s best interests if injunctions of the type proposed by the father are granted. In each instance the father seeks an order that the mother ensure that the child does not behave in a certain way. The mother cannot be responsible for what happens when she is not with the child and I will amend the proposed orders to exclude that reference.

Conclusion

1. Despite having commenced with a very wide ambit, the ultimate dispute about parenting orders for the child was relatively narrow.

2. The parties all but settled the immediately pressing issues about the child’s holiday arrangements until the middle of 2018. As to the major disputes:

   ·it is in the child’s best interests for the mother to have sole parental responsibility for her;

   ·the child will travel to the UK twice a year but not in consecutive holidays;

   ·those visits will be for four weeks duration; and

   ·the father will be able to nominate a period of at least three weeks each year to spend time with the child in Australia during school term.

3. Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

Costs

1. Finally, the mother seeks that the father pay her costs of the proceedings incurred between 1 February 2015 and 21 August 2015, on an indemnity basis. That application arises out of the mother’s complaint that the father knew by 1 February 2015 that he did not have the right to remain living in Australia and did not inform her of that fact until 21 August 2015. Thereby, it is argued, the mother was put to preparing her case on an entirely false premise and her legal fees incurred in that period were thrown away. Those fees include the preparation of a trial affidavit and preparation for the aborted trial in August 2015.  

2. As to the quantum of the claim, the costs were incurred by the mother’s former solicitors and are unquantified. Therefore the claim is made “as agreed or as assessed”.

3. For the purposes of the application in these proceedings, costs applications are decided by reference to s 117 of the Act, which relevantly provides:

   (1)  Subject to subsection (2) … each party to proceedings under this Act shall bear his or her own costs.

   (2)  If …the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant.

Section 117(2A) Considerations

1. Section 117(2A) of the Act requires that the Court shall have regard to certain factors when considering what order, if any, should be made pursuant to s 117(2).

2. There is evidence about the financial circumstances of the parties if not complete. As to his financial circumstances the father said that he is about £140,000 in debt in Australia on credit cards for child support, legal fees and other expenses. He is starting up a company in the UK and his child support assessment is based on an income that is about four times more than his earnings. The mother is in receipt of a Centrelink benefit. She rents the accommodation occupied by her and the child from her partner. Ultimately, no detailed findings are possible about the overall financial circumstances of the parents.

3. The father did not have legal representation for the proceedings. I gather that the mother’s representation did not involve a grant of legal aid.

4. The proceedings were not necessitated by the failure of either party to comply with Court orders.

5. Neither party was wholly unsuccessful in the proceedings. I was provided with no evidence of settlement discussions in writing.

6. The mother’s application rests on her complaint about the father’s failure to disclose the status of his attempts to secure the right to reside in Australia. That may be said to arise under s 117(2A) (c) or (g).

7. By way of response, the father submitted that at the relevant time he expected to be able to remain in Australia. He had received numerous job offers and was under the impression that he was going to stay in the country. He said that rather than have his previous employer transport them to the UK, his personal possessions were in storage in Australia as he was under the impression that he would be staying. He submitted that he did not set out to mislead the mother, that he intended to stay in Australia and that in any event the costs paid by the parties were not lost but would have been applied towards the final hearing.

8. In one sense it is not possible to gainsay the father’s evidence about his circumstances. The effect of his case is that he was optimistic until not long before the dates allocated for the 2015 hearing, that he would be able to remain in Australia. There is no objective evidence that is inconsistent with that being the situation. In a perfect world the father would have thought through the implications for the mother of the uncertainty of his capacity to remain in Australia and would have shared that with her at an earlier time. However, the parents were and are estranged and this was not the only area in respect of which their communication was inadequate. Indeed, given the relatively narrow compass of the dispute leading up to the August 2015 hearing, the parents were making very heavy going of their parenting issues. It could well be unfair to isolate this one aspect of the proceedings for treatment under s 117.

9. The mother’s application is for costs on an indemnity basis. Before considering the basis for the quantification of costs, it is necessary to decide that any costs award is appropriate. I am not so satisfied.

10. The costs order sought on behalf of the mother will not be granted.

I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 March 2018.

Associate

Date:  22 March 2018