Beta & Avron
[2023] FedCFamC2F 1453
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beta & Avron [2023] FedCFamC2F 1453
File number(s): PAC 844 of 2020 Judgment of: JUDGE MYERS Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – parenting proceedings - with whom a child lives - best interests of child - substantial and significant time - name of child - parental responsibility – presumption of equal shared parental responsibility. Legislation: Australian Passport Act 2005 (Cth) s 11(1)(a)
Family Law Act 1975 (Cth) ss 4AB, 65DAA, 65DAA(3)(a)-(c), 65Y, 90SF(3)(c), 106A, 117(4)(a)-(b), pt VII
Cases cited: Re K (1994) 17 Fam LR 537
T & N [2001] FMCAfam 222
Division: Division 2 Family Law Number of paragraphs: 84 Date of last submission/s: 7 September 2023 Date of hearing: 30 May 2023 - 1 June 2023, 22 June 2023 Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Lewarne & Goldsmith Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Michael Jokovic & Associates ORDERS
PAC 844 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BETA
Applicant
AND: MS AVRON
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.That all previous parenting Orders herein be and are hereby discharged.
2.The child X (female) born in 2015 shall be henceforth known as X Avron-Beta.
3.The child Y (female) born in 2016 shall be henceforth known as Y Avron-Beta.
4.The Applicant mother, Ms Beta (the “Applicant”), is authorised to apply to the Registrar of Births Deaths and Marriages that the children registered as X (female) born in 2015 and Y (female) born in 2016 be now registered as X Avron-Beta and Y Avron-Beta.
5.Pursuant s28(5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the children’s name in the form specified in Order 4 herein.
6.The Court directs that the Applicant forthwith serve a sealed copy of this Order upon the Registrar of Births Deaths and Marriages.
7.The children X Avron-Beta (formerly known as X Avron) born in 2015 and Y Avron-Beta (formerly known as Y Avron) born in 2016 (the “children”) shall live with the Applicant.
8.The Applicant shall have sole parental responsibility for the children provided that she:
(a)notifies the Respondent, Ms Avron (the “Respondent”), of any proposed decision relating to the long-term care and welfare of the children including but not limited to:
(i)Proposed decisions about which schools the children shall attend;
(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children;
(iii)She shall ensure that such notification is given to the Respondent in writing and is given not less than 28 days before the final decision is made, except in the case of an emergency; and
(iv)She takes into consideration any views expressed by the Respondent in respect to such proposed decisions.
9.The children shall spend time with the Respondent as follows:
(a)During the school term, commencing in the second week of each term from the conclusion of school on Tuesday until the conclusion of school on Monday, and thereafter in alternate weeks;
(b)For the first week in each of the Terms 1, 2 and 3 school holidays in 2023 and each odd numbered year thereafter and in alternate even years for the second week of each of the Terms 1, 2 and 3 school holidays;
(c)During the end of Term 4 Christmas school holiday periods of alternate blocks of seven (7) nights commencing at 10:00am on the first Saturday following the last day the children attend school in evens years, and 10:00am on the second Saturday in odd years.
10.The parties be and are hereby restrained from:
(a)Discussing these proceedings with or in the presence or hearing of the children;
(b)Showing the children any documents pertaining to these proceedings.
11.The children are otherwise to spend time with the Applicant for the remainder of the school holiday period that the children are not spending time with the Respondent.
12.Despite the provision of any other Order, the children spend time with the parties on special occasions as follows:
(a)In the event that the children are with the Respondent on their brother's birthday, the Respondents time shall be suspended on J’s birthday.
(b)In the event that Mother's Day falls on the Respondent's weekend, the Respondent’s time shall be suspended from 12 noon until the commencement of school (or 9am in the event of a non-school day) so that the Applicant can then spend time with the children on Mother’s Day from 12 noon until return to school on the Monday.
(c)In the event that Mother's Day falls on the Applicant's weekend, the Applicant’s time shall be suspended from 12 noon until the commencement of school on Monday (or 9am in the event of a non-school day) so that the Respondent can then spend time with the children on Mother’s Day from 12 noon until return to school on the Monday.
(d)The children shall spend time with parent they are not otherwise spending time with or living with on their birthday and that party’s birthday, as agreed between the parties but failing agreement, from 3:00pm-7:00pm.
13.Where not otherwise specified the Respondent’s time shall commence at 9:00am and conclude at 5:00pm on non-school days.
14.Changeovers are to take place at school at the beginning or end of a school day when time commences or concludes on a school day.
15.Changeovers shall occur at Woolworths, Suburb H on a non-school day or at such other place as agreed between the parties in writing. In the event the Applicant or Respondent move from the Suburb H area, then changeover shall be the midpoint between the residences of the Applicant and Respondent.
16.The children shall communicate with either parent by way of video or telephone call as agreed between the parents in writing but failing agreement, on one occasion each period of seven (7) or more nights when the children are in the other parent's care.
17.In the event of a telephone call, the parents will contact the children by calling the other parent's personal mobile phone and providing the phone to the child.
18.The children be at liberty to communicate with both parents at times reasonably requested by the child(ren) and the parent with care of the child(ren) at that time will make reasonable efforts to facilitate such communication with the other parent by contacting them on their mobile phone.
19.For the purposes of facilitating these Orders, and unless otherwise agreed in writing between the parents, the parents are to communicate with each other via email or telephone message, except in the event of an emergency, in which case the parents are to communicate by telephone call, and the parents will limit their communications to discussing parenting matters for the children.
20.The parents are to keep each other informed of their current mobile telephone numbers, email address and residential address and will notify the other parent of any change to those details within 48 hours of such change occurring.
21.Each party will immediately notify the other in the event of an emergency involving either of the children including, but not limited to, either of the children suffering a serious illness or injury or being hospitalised while in their care.
22.Each party will inform the other as soon as is reasonably practicable of any significant medical problems, illness or injury suffered by either of the children while in their care.
23.Each party will provide the details of the prescribing doctor and any medication that has been prescribed for either of the children that needs to be administered during any periods that the children spend with the other parent.
24.The Applicant and Respondent will provide the full particulars of any doctor, medical practitioner, therapeutic or allied health service provider attended upon by the children.
25.Where the children attend upon any specialist medical appointment, either of the parents may attend and obtain all information regarding the health of the child or children from that specialist medical practitioner.
26.The parties are to notify the other immediately where the children attend or are admitted to hospital.
27.The parties are to keep the other informed about any dental treatments undertaken or required by either of the children.
28.The parents shall be at liberty to liaise directly with the children's school principals or teachers to obtain any information about the children's progress at school or information about school events including all school and extra-curricular activities involving the children, including but not limited to, the children’s first day of school, parent teacher meetings, parenting information sessions, school sports carnivals, school assemblies, concerts, fairs, performances and school sporting events or special events, and to arrange for the sending out of newsletters, school photos and academic report cards, and any other documents provided by the school, regardless of which parent's care the children are in at that time.
29.Each parent may contact the children's respective schools, extracurricular organisations and/or treating health professionals attended upon by the child to obtain information ordinarily available to parents and these Orders will be sufficient authority to authorise the release of such information to the requesting parent (at that parent's request).
30.In the event that either parent intends to travel interstate with the children during any period that the children are living with or spending time with that parent, then the travelling parent is to inform the other parent of the intended interstate travel prior to it commencing.
31.In relation to passports for the children:
(a)Pursuant to Section l1(1)(a) of the Australian Passport Act 2005 (Cth), the parents' consent to the children having or being issued with an Australian travel document;
(b)That within sixty days (60) days of the date of these Orders, the parents shall do all things necessary in obtaining a passport for the children, including but not limited to, the completing and signing of such application forms and providing certified copies of identification as required.
32.If either party fails to comply with Order 31 herein, except as may be agreed in writing, this Order shall operate as authority to the other party to make any necessary application to obtain the passports for the children without the written consent of the party previously failing to comply with Order 31.
33.The parties shall be equally liable for the costs of applying and renewing the children's passports.
34.The children's Australian passports are to be kept by the Applicant for safe-keeping at all times except when the children's passports are required by the Respondent for the purpose of travelling overseas with the children in accordance with these Orders, in which case the Applicant is to provide the children's passports to the Respondent not less than thirty (30) days prior to the intended departure date and the Respondent will return the children's passports to the Applicant not less than fourteen (14) days following the children's return to the Commonwealth of Australia.
35.Pursuant to section 65Y of the Family Law Act 1975 (Cth) each parent is permitted to travel outside the Commonwealth of Australia with the children during the period the children are in that parties care pursuant to these Orders or otherwise as agreed between the parties in writing.
36.Prior to departure overseas the travelling parent is to provide the other with:
(a)The proposed period of travel and itinerary for the trip;
(b)The addresses and telephone numbers of any accommodation where it is proposed the children will stay; and
(c)Copies of return airline tickets and details of flights.
37.The travelling parent will activate global roaming on their personal mobile for the duration of the overseas trip or will purchase a local SIM card and provide the non-travelling parent with their local mobile number, so as to provide a communication channel for the non-travelling parent with the children via telephone, text or instant messaging.
38.The travelling parent will do all things necessary to facilitate the non-travelling parent being able to communicate with the children as often as the children wish to communicate with the non-travelling parent, or at least once a week whilst the children are overseas.
39.Each parent be restrained from making any negative, critical, belittling or derogatory comments about the other parent or members of the other parents' family or household in the presence of, or within the hearing range of the children, or via written correspondence or on social media which may be viewed or accessed by the children, and each parent will do all things reasonably necessary to ensure that no other person does so.
40.In the event of any dispute as to the interpretation or implementation of these Orders, the parties shall first attend family dispute resolution with a family dispute resolution practitioner jointly appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to the appointment of the family dispute resolution practitioner, the party raising the dispute shall nominate three (3) family dispute resolution practitioners, one of whom shall be chosen by the other party within fourteen (14) days with the cost’s incidental to the appointment of the family dispute practitioner to be shared equally between the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MYERS:
This is the parenting decision delivered as the first part of a final property and parenting application in the matter of Beta & Avron. The Court will in the coming weeks deliver the second part of the decision that relates to property.
Final written submissions were provided to the Court by the Applicant, Ms Beta, on 7 September 2023.
The parties are the parents of the children, X born in 2015, now age 8 years, and Y born in 2016, now age 7 years.
The Applicant, Ms Beta, suggests that she was in a de facto relationship with Ms Avron commencing cohabitation in late 2010 and finally separated in April/June 2018, while the Respondent, Ms Avron, suggests that the parties were in a de facto relationship from late 2010 until June 2018.
Ms Beta is aged 40 years and Ms Avron is aged 53 years.
Ms Beta had worked as a public servant until she was medically discharged in late 2021 as a result of suffering Post Traumatic Stress Disorder whilst in the course of her duties.
It was submitted on behalf of Ms Beta that she:
…remains on workers compensation payments whilst recovering and her treating psychologist [Mr E] gave evidence she cannot return to her former employment and should be able to engage in some form of alternate employment in 2024 with her prognosis for recovery being quite good.
Ms Avron works as a public servant under a flexible work arrangement.
During the parties’ relationship, Ms Beta and Ms Avron decided to have children together. Ms Avron underwent an IVF procedure. The IVF procedure saw Ms Avron fall pregnant. Sadly, Ms Avron miscarried. Ms Avron gave evidence of being advised by her doctor that because Ms Avron had a medical condition she should not go through the IVF procedure again. Ultimately the parties agreed that Ms Beta would undergo IVF so that the parties could have children. Ms Beta underwent IVF procedures that resulted her giving birth of the parties’ children, X and Y.
The Court accepts that both parents were able to take time off work following the birth of their children.
Following separation, the parties agreed (Ms Beta suggests begrudgingly and under pressure) that they would share the care of the children in a fortnightly routine where they would each have the children four nights in one week and three nights in the following week. This arrangement continued until late 2020, by which time X was then aged 5 years and Y 4 years. Interim Orders were made by the Court in November 2020 and February 2021 that saw the equal time arrangements dramatically change. In essence, the Orders provided that the children live with Ms Beta, and spend time with Ms Avron four nights per fortnight, and one half of all school holidays.
For reasons set out further in this decision below, the Court finds that the parties lack even a modicum of respect for one another, particularly around the importance of the other in the children’s lives, and that their communication with one another is pitiful.
The parties come before the Court seeking final property orders, and parenting orders for their children.
The Court initially deals with the parenting aspect of the parties’ applications in this decision noting the impact of the parenting orders on some of the factors the Court is required to take into account when dividing the parties’ property, most notably section 90SF(3)(c) of the Family Law Act 1975 (Cth) (‘the Act’). As set out above the Court will deliver the second part of the decision in respect of property in due course.
PROPOSED ORDERS
The Independent Children’s Lawyer (‘ICL’) sought final parenting orders in accordance with Exhibit “A”. Unusually, the legal representative for the ICL, Ms Karagiannis, made an oral application at the commencement of the final hearing that the minutes of order sought by the ICL be considered, but that the ICL be discharged in the proceedings. In support of this application, Ms Karagiannis submitted the following:
Ms Karagiannis: The minute speaks for itself, your Honour. It’s a matter where your Honour has before you two very competent parents. There were no abuse issues, there were no Child Protection issues. The ICL has met with the children. The children’s views are adequately expressed in the family report. The family report has clear recommendations. The child – the ICL, rather, has issued and read the subpoenas and prepared a complete tender bundle. ..... the preliminary view and have done the best to resolve the matter and it’s not a matter where there has been any allegation of abuse or any maltreatment, which is refreshing, but it means that I don’t think we can be of much assistance to your Honour. (Transcript, 30 May 2023, page 11, lines 31-39).
The Court granted the ICL’s oral application and dismissed the ICL from participating in the proceedings beyond considering the ICL’s final minute of order where:
a)There was no objection by either party to the ICL’s application, and where the Court was satisfied that the best interests of the children could be met without the need for independent representation in the proceedings;
b)The Court was of the view that the criteria for the appointment of an ICL as outlined in Re:K (1994) 17 Fam LR 537 were no longer relevant in the proceedings;
c)This matter did not contain allegations of sexual, physical or psychological abuse, allegations of anti-social conduct by one or both parents of a kind that seriously impinges on the child or young person's welfare (e.g. family violence);
d)There was no relocation proposal that would restrict or, in practice, exclude the other parent from having contact with the children;
e)The Court was satisfied the ICL had facilitated the participation of the children in the proceedings (family report interviews), had undertaken evidence gathering and litigation management - playing an ‘honest broker’ role in case management and settlement negotiation.
Before discharging the ICL the Court considered and determined the ICL’s application for costs made against the parties, that they each pay to the New South Wales Legal Aid Commission, the sum of $7,312.90, and in doing so took into account the legislative provisions of section 117(4) of the Act that provides:
(4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the Court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Given the financial circumstances of the parties, the Court made a finding that it considered that the parties to these proceedings would suffer financial hardship if either party had to bear a proportion of the costs of the ICL, and in doing so refused the ICL’s application for costs.
ICL Proposed Orders
The ICL’s proposed orders are as follows:
1.That all previous parenting orders herein be and are hereby discharged.
2.Order that the children [X] and [Y] shall live with the Applicant (the children).
3.Order that the Applicant shall have sole parental responsibility for the children provided that she:
a.Notifies the Respondent of any proposed decision relating to the long term care and welfare of the children including but not limited to:
i.Proposed decisions about which schools the children shall attend;
ii.Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children; and
iii.She shall ensure that such notification is given to the Respondent in writing and is given not less than 28 days before final decision is made, except in the case of an emergency; and
b.She takes into consideration any views expressed by the Respondent in respect to such proposed decisions.
4.That the children spend time with the Respondent as follows:
During school term
a.Commencing in the second week of each term from the conclusion of school on Tuesday until the conclusion of school on Monday, and thereafter in alternate weeks;
During school holidays
b.For the first week in each of the mid term school holidays in 2023, and thereafter in alternate years;
c.In other years, for the second week of each of the mid term school holidays;
December – January school holidays
d.In a week about arrangement commencing on the first day of the holidays in 2023 and thereafter in alternate weeks;
e.In other years, in a week about arrangement commencing on the second week of the December-January school holiday period.
Special Occasions – to be discussed
5.That the parties be and are hereby restrained from:
a.Discussing these proceedings with or in the presence or hearing of the children;
b.Showing the children any documents pertaining to these proceedings.
6.That within 28 days of the date of these Orders, or on or before another date as agreed with Legal Aid NSW, the Applicant and Respondent each pay to Legal Aid NSW the sum of $7,312.90, being half share of the costs of the Independent Children’s Lawyer in the proceedings between the parties.
NOTATIONS
A. It is noted that the Applicant and Respondent have not returned any application to waive the ICL fee.
B. Should the Applicant or Respondent subsequently lodge an application for fee waiver with the Legal Aid Commission, the Commission will consider same prior to pressing for enforcement of the above Order.
C. The Applicant and Respondent are not in receipt of a grant of legal aid funding.
Applicant’s Proposed Orders
The Applicant, Ms Beta, sought the following Amended final Orders as contained in her Submissions in Reply filed on 7 September 2023:
Parental Responsibility
1.The Applicant Mother to have sole parental responsibility for the children, [X] born [in] 2015 and [Y] born [in] 2016 (Collectively referred to as "the children")
2.That for the purpose of Order 1 and except in the event of an emergency, before making any major long term decisions in relation to health or education of the children, the Applicant Mother will consult the Respondent Mother as follows:-
i. In writing of the decision that needs to be made and request her views about this decision;
ii. That within fourteen (14) days of the correspondence being sent, the Respondent Mother will advise the Applicant Mother in writing of any views she has about the decision;
iii. The Applicant Mother will consider the Respondent Mother’s views prior to making the decision; and
iv. Upon making the decision, the Applicant Mother will advise the Respondent Mother in writing of the decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
Children’s Surname
3.The children's surname will be legally changed to include the Applicant Mother's surname, such that the names of the children will be; [X Beta-Avron] and [Y Beta-Avron] and for the purposes of this order:
i. The Applicant Mother and Respondent Mother will sign all documents required for the application of new birth certificates to reflect this change within two (2) weeks of the date of the Final Order.
ii.That if either party fails to comply with Order 3 (i) except as may be agreed in writing, this order shall operate as authority to the other party to make any necessary application to obtain the birth certificates for the children without the written consent of the party previously failing to comply with order 3 (i).
iii.The Applicant Mother will solely fund the application of the new birth certificates and provide the Respondent Mother with a copy of the birth certificates once received.
iv.Upon receipt of the new birth certificates, the Applicant Mother and Respondent Mother will do all things and sign all documents to ensure the children’s legal documents reflect their surname, “[Beta-Avron]”.
Live with/ Spend time with Arrangements
4.The children live with the Applicant Mother.
5.The children spend time with the Respondent Mother during the NSW school terms as agreed between the parents in writing but failing agreement as follows:
i. Each alternate weekend from Friday at the conclusion of school (or 3pm in the event of a non-school day) until Monday at the commencement of school (or 9am on a non-school day);
ii.In the alternate week from Thursday at the conclusion of school (or 3pm on a non-school day) until Friday at the commencement of school (or 9am on a non-school day).
School Holidays
6.The children to spend time with the Respondent mother during the Term 1, 2 and 3 school holidays in even years, for a period of seven nights from the first Saturday following the conclusion of school on the last day that the children attend school until 10am the following Saturday.
7.During the Term 1, 2 and 3 school holidays in odd years, for a period of seven nights from 10am on the second Saturday following the last day the children attend school until 10am on the Saturday immediately prior to the first day the children’s attendance is required at school.
8.During the longer Christmas school holiday period the Children to spend time with the Respondent mother in blocks of 7 nights commencing at 10am on the first Saturday following the last day the children attend school in even years, and 10am on the second Saturday in odd years. Upon [Y]’s commencement of High School in 2029, the children will spend time with the Respondent mother in blocks of fourteen (14) nights commencing at 10am on the last Saturday in December until 10am Saturday fortnight in odd years, and commencing 10am on the third Saturday in even years.
9.The children are otherwise to spend time with the Applicant mother for the remainder of the school holiday period that the children are not spending time with the Respondent.
Special Occasions
10.That the children spend time with the Applicant mother from 10am Christmas Eve, until 4pm Boxing Day in 2023 and each odd year thereafter.
11.The children to spend time with the Respondent mother from 10am Christmas Eve until 4pm Boxing Day in 2023 and each even year thereafter.
12.In the event that the children are with the Respondent on their brother's birthday the Respondents time shall be suspended on [J]’s birthday;
i. From 9am until 5pm on a non-school day and 3-5pm on a school day; with changeover to occur at Woolworths [Suburb H]. In the event the Applicant or Respondent move from the [Suburb H] area then changeover shall be the midpoint between the residences of the Applicant and Respondent.
ii. That in the event of any subsequent siblings, time be suspended as per the arrangement in 12(i).
13.In the event that Mother’s Day falls on the Respondent’s weekend the Respondents time shall be suspended from 12 noon until the commencement of school on Monday (or 9am in the event of a non-school day) so that the Applicant mother can spend time with the children on mother’s day.
14.In the event that Mother’s Day falls on the Applicant’s weekend the Applicants time shall be suspended from 12 noon until the commencement of school on Monday (or 9am in the event of a non-school day) so that the Respondent mother can spend time with the children on mother’s day.
Changeover
15.That for the purposes of these Orders, unless otherwise agreed in writing, changeover will occur as follows;
i. The Respondent Mother will collect the children from school at the commencement of her time and return the children to school at the conclusion of her time on all days on which the children are to be attending school (with the Applicant Mother to notify the Respondent Mother in writing in the event that either of the children are not in attendance at school on those days where the Respondent Mother is otherwise due to collect the children);
ii. On school days where one of the children are not otherwise attending school and the other child is in attendance, changeover shall occur at the school at which the children usually attend at 3pm.
iii. On non-school days and school days where both children are not otherwise attending school, changeover shall occur at Woolworths [Suburb H].
iv. In the event that either the Applicant or Respondent move from [Suburb H] then the changeover venue will be the midpoint between the residences of the Applicant and Respondent.
Communication
16.That the children shall communicate with either parent by way of video or telephone call as agreed between the parents in writing but failing agreement, on one occasion each period of seven (7) or more nights when the children are in the other parent’s care.
17.In the event of a telephone call, the parents will contact the children by calling the other parent's personal mobile phone and providing the phone to the child.
18.That the children be at liberty to communicate with both parents at times reasonably requested by the child(ren) and the parent with the care of the child(ren) at that time will make reasonable efforts to facilitate such communication with the other parent by contacting them on their mobile phone.
19.That telephone or video call occur on the following special occasions upon request;
i. The children’s Birthdays
ii. The Applicant and Respondents birthdays
iii. Easter Sunday
iv. Christmas Eve and Christmas Day
v. New Year’s Eve.
20.That for the purposes of facilitating these Orders and unless otherwise agreed in writing between the parents, the parents are to communicate with each other via email or telephone message, except in the event of an emergency, in which case the parents are to communicate by telephone call, and the parents will limit their communications to discussing parenting matters for the children.
21.That the parents are to keep each other informed of their current mobile telephone numbers, email address and residential address and will notify the other parent of any change to those details within 48 hours of such change occurring.
Medical and Education
22.That each parent will immediately notify the other in the event of an emergency involving either of the children including, but not limited to, either of the children suffering a serious illness or injury or being hospitalised while in their care.
23.That each parent will inform the other as soon as is reasonably practicable of any significant medical problems, illness or injury suffered by either of the children while in their care.
24.That each parent will provide the details of the prescribing doctor and any medication that has been prescribed for either of the children that needs to be administered during any periods that the children spend with the other parent.
25.That the Applicant Mother and Respondent Mother will provide the full particulars of any doctor, medical practitioner, therapeutic or allied health service provider attended upon by the children.
26.Any specialist medical appointment that either of the children attends and the full particulars of that specialist medical practitioner.
27.Any occasion that either of the children is scheduled to be hospitalised; and
28.Any major dental treatment required by either of the children.
29.The parents shall be at liberty to liaise directly with the children's school principals or teachers to obtain any information about the children's progress at school or information about school events including all school and extra-curricular activities involving the children including but not limited to the first day of school, parent teacher meetings, parenting information sessions, school [sports] carnivals, school assemblies, concerts, fairs, performances and school sporting events or special events, and to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided by the school, regardless of which parent's care the children are in at that time.
30.That notwithstanding Order 29, each parent may contact the children's respective schools, extracurricular organisations and/or treating health professionals attended upon by the child to obtain information ordinarily available to parents and these Orders will be sufficient authority to authorise the release of such information to the requesting parent (at that parent's request).
Travel & Passports
31.That in the event that either parent intends to travel interstate with the children during those periods that the children is living with or spending time with them, the travelling parent is to inform the other parent of the intended interstate travel (including details about the intended destination, the proposed duration of the travel and the contact telephone numbers and address details for where the children will be staying) as soon as reasonably practicable and no later than fourteen (14) days before the intended departure date.
32.That in relation to passports for the children:
i. That pursuant to Section 11(l)(a) of the Australian Passport Act 2005, the parents' consent to the children having or being issued with an Australian travel document;
ii. That within sixty days (60) days of the date of these Orders the parents shall do all things necessary in obtaining a passport for the children including, but not limited to, the completing and signing of such application form and providing certified copies of identification as required.
iii. That if either party fails to comply with Order 32(ii), except as may be agreed in writing, this order shall operate as authority to the other party to make any necessary application to obtain the passports for the children without the written consent of the party previously failing to comply with order 32 (ii).
iv. The Applicant Mother shall be solely responsible for the costs of applying and renewing the children's passports, except in circumstances whereby either child's passport has been misplaced, lost or destroyed whilst in the Respondent Mother's possession, in which the Respondent Mother shall be solely responsible for the costs for the replacement of the child(ren)'s passport.
v. That the children's Australian passport is to be kept by the Applicant Mother for safe-keeping at all times except when the children's passports are required by the Respondent Mother for the purpose of travelling overseas with the children in accordance with these Orders in which case the Applicant Mother is to provide the children's passports to the Respondent Mother not less than thirty (30) days prior to the intended departure date and the Respondent Mother will return the children's passports to the Applicant Mother not less than fourteen (14) days following the children's return to the Commonwealth of Australia.
vi. That the Applicant Mother provides the Respondent Mother with a certified copy of the children's Australian passports within fourteen (14) days of the children being issued or re-issued with an Australian passport.
33.That pursuant to section 65Y of the Family Law Act 1975 each parent is permitted to travel outside the Commonwealth of Australia with the children as follows;
i. For periods up to fourteen (14) days whilst the children are primary school age; and;
ii. For periods up to twenty one (21) days whilst the children are high school age.
34.That for the purpose of Order 33 and unless otherwise agreed between the parents in writing, the parent proposing such holiday is to notify the non-travelling parent in writing not less than ninety (90) days prior to the departure of such proposed trip, and provide to the non-travelling parent the following particulars:-
i.The proposed period of travel and itinerary for the trip;
ii.The addresses and telephone numbers of any accommodation where it is proposed the children will stay; and
iii.That at least twenty eight (28) days before departure on a holiday pursuant to Order 14, the travelling parent must provide to the non-travelling parent:-
iv.A final itinerary including contact telephone numbers and full street addresses of where the child will be staying; and
v.Copies of return airline tickets and details of flights.
vi.The travelling parent will provide the non-travelling parent with a landline telephone number at which the travelling parent and/or the children can be contacted in each country, or;
vii.Will activate global roaming on their personal mobile for the duration of the trip, or;
viii.Will purchase a local SIM card and provide the non-travelling parent with their local mobile number, so as to provide a communication channel for the non-travelling parent with the children via telephone, text or instant messaging.
ix.The travelling parent will do all things necessary to facilitate the non travelling parent being able to communicate with the children as often as the children wish to communicate with the non-travelling parent, or at least once a week whilst the children are overseas.
Implementation
35.That each parent be restrained from making any negative, critical, belittling or derogatory comments about the other parent or members of the other parents' family or household in the presence or within the hearing range of the children, or via written correspondence or on social media which may be viewed or accessed by the children, and each parent will do all things reasonably necessary to ensure that no other person does so.
36.That in the event of any dispute as to the interpretation or implementation of these Order, the parties shall first attend family dispute resolution with a family dispute resolution practitioner jointly appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to the appointment of the family dispute resolution practitioner, the party raising the dispute shall nominate three (3) family dispute resolution practitioners, one of whom shall be chosen by the other party within fourteen (14) days with the cost’s incidental to the appointment of the family dispute practitioner be shared equally between the parties.
PROPERTY ORDERS
37.That the Applicant and Respondent to forthwith list for sale and sell the property situate and known as [N Street, Suburb O] in the State of New South Wales. The proceeds of sale of the property are to be disbursed as follows:
i. In payment of the outstanding Council rates and Water rates;
ii. In payment of the agent’s commission and legal fees of the sale;
iii. To discharge the mortgage secured with [P Bank];
iv. The balance of proceeds to be disbursed as follows:
a. $15,000 [Ms & Mr Q]
b. As to the balance to the Applicant mother – 70%
c. As to the balance to the Respondent mother – 30%
38.Except as otherwise provided for in these orders the Applicant and Respondent to otherwise retain what other assets are in the name, possession and control and each party shall be responsible for any liability in their own respective names.
39.In the event that either party refuses or neglects to sign any document required to give effect to these orders then the Registrar shall be permitted to sign any document to give effect to these orders pursuant to section 106A of the Family Law Act.
Respondent’s Proposed Orders
The Respondent, Ms Avron, sought the following final orders as contained in her written submissions filed on 11 August 2023:
1. The parties have equal shared parental responsibility for the children [X] born [in] 2015 and [Y] born [in] 2016.
2. The Applicant and the Respondent shall have equal shared care of the children as follows:-
i. Each of the parties will have one week each fortnight during school terms with changeovers to occur each Monday after school.
School Holidays
ii. The week about Orders shall continue during the first, second and third term school holidays.
iii. During the Christmas school vacation in years ending in an even number from after school on the last day of the school year and for seven consecutive nights until 10:00am on the eighth day in each alternate seven day period thereafter until the new school term commences and from 10:00am on the eighth day after the last day of the school year and for seven consecutive nights thereafter.
Special Days
iv. In years ending in an even number the children shall live with the Applicant from 5:00pm on the Saturday before Mother's Day until 2:00pm Mother's Day and the Respondent shall have such time in odd numbered years and the children shall live with the Applicant in years ending in an even number from 2:00pm Mother's Day until before school on the Monday and the Respondent shall have such time in odd numbered years.
v. When such party has the care of the children for the second half of the Christmas school vacation then such party shall have the care of the children from 3:00pm Christmas Day until 6:00pm Boxing Day.
3. The parties shall forthwith do all acts and things necessary to sell the property situate at and known as [N Street, Suburb O] and in respect of such sale the following shall apply:-
i. The parties shall place the property in the hands of a licensed auctioneer to sell the property by way of public auction in such time period as advised by the auctioneer at a reserve price agreed between the parties.
ii. In the event the parties cannot agree to the reserve price then the parties or either of them shall appoint the president for the time being of the Real Estate Institute [New South Wales Division] or his or her nominee to assess the reserve price at auction and each party sha11 be bound by such assessment and equally bear the cost.
iii. Upon sale the proceeds shall be paid as follows:-
a. In payment of agents commission and costs and legal fees occasioned by the sale.
b. In discharge of the mortgage secured upon the property.
c. In payment to the Applicant of 43.2 percent of the proceed.
d. In payment to the Respondent of 56.8 percent of the proceeds.
PARENTING DETERMINATION
The Court considers the legislative pathway found at part VII of the Act in the paragraphs below.
It is no overestimation in this case to suggest that the parties struggle to accept that there is any benefit in the children having a meaningful relationship with the other parent, where neither appears to appreciate the role, the other parent has in the children’s lives. The text Ms Beta forwarded to Ms Avron in mid-2021 speaks to such issue where it provides:
Thanks for your concern, albeit provocative. But seeing as though you enquired, unlike you, [Ms K] is more than capable of caring for our son without instruction, which has been such a pleasant change. As you would be aware, it is school term and there are Court Orders in place, irrespective of Covid. Need I remind you, the girls live with me and visit you. I arrange my life and my commitments according to my family and their needs, of which you are not part nor are you of any consideration.
On the topic of such a benefit, the Court noted Ms Avron was essentially forced to concede in cross-examination that she had given no evidence that was positive of Ms Beta in her 71-page trial affidavit. (Transcript 22 June 2023 pages 293-294). Further Ms Avron conceded that she had failed to respond to SMS messages from Ms Beta enquiring about the children’s safety and whereabouts during a storm in 2021 when an evacuation order was given in respect of Suburb O (an area where the children were located) during a time when the children were in Ms Avron’s care. (Transcript 1 June 2023, pages 268-272). The Court accepts the proposition put to Ms Avron in cross-examination that her failure to respond to Ms Beta could be seen as being cruel. (Transcript 1 June 2023, page 270, lines 1-11). In the view of the Court, Ms Avron’s failure goes beyond simply being cruel and demonstrated a lack of regard by Ms Avron for the meaningful relationship Ms Beta enjoys with the children arising from her role as a parent.
It was apparent to the Court that both parents held a dim view of the other. But what was also apparent, having regard to the interviews and observations of the children with the parents, by Dr L, (contained at pages 6-8 of the report prepared by Dr L dated 20 June 2022) was that the children had not been affected by the parents’ dim view of one another, and that the children love both parents very much and have a good relationship with them. As such the Court easily finds that there is a significant benefit in the children having a meaningful relationship with both parents.
While both parents were disparaging of one another, the Court accepts the view of the ICL as being correct where the legal representative for the ICL put that:
…It’s a matter where your Honour has before you two very competent parents. There were no abuse issues, there were no Child Protection issues. The ICL has met with the children. The children’s views are adequately expressed in the family report. The family report has clear recommendations. The child – the ICL, rather, has issued and read the subpoenas and prepared a complete tender bundle. ..... it’s not a matter where there has been any allegation of abuse or any maltreatment, which is refreshing. (Transcript, 30 May 2023, page 11, lines 31-38).
While Dr L set out at lines 916-921 of his report that:
I have not concluded that the children are at risk of maltreatment or family violence in the care of either parent. As will be explored below, primary concern for the welfare of the children relates to the highly acrimonious relationship between the parents, and the concomitant inability to communicate effectively, even briefly, at times of handover, for example. That the children continue to be exposed to the same, in my opinion, presents the most significant risk at the current time.
The Court finds that neither parent poses a risk of harm to the children.
To be clear, save and except for the Court making an order that neither party denigrate the other, this is not a matter where there is the need to make orders so as to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence by either parent.
However, taking up Dr L’s opinion, what would be in the children’s best interests is that the parents would genuinely try to be civil and even a little friendly towards one another in the presence of their children. What took place in early 2023 at the Hospital, where X had surgery was nothing short of appalling, where both parents ended up in conflict at the hospital. While Ms Beta suggests the conflict was largely as a result of Ms Avron’s actions, it matters little where to be frank both parties could have and should have done better. The melee at the hospital and bitterness that exists between the parties left the Court underwhelmed by the parties’ genuineness in making efforts to limit the children’s exposure to conflict in the future. This is particularly so, given that Ms Beta and Ms Avron are high functioning individuals who possess significant capacity to do so much better.
The children have a limited level of maturity and understanding of the circumstances they find themselves in. They would, in the view of the Court, struggle to make sense of the fact that the people they love most in their lives, in other words their parents, treat one another so poorly. The views expressed by the children that the Court is able to accept and give weight to are these – the children see both parties as their parents and the children love both parents very much.
This position was clearly demonstrated in the observation session conducted by Dr L and recorded at lines 34 -37 of his report that provides:
Almost immediately [Y] made reference to having “two mums, a step-mum, a donor, and a brother”. I remarked that she has a very big family and she seemed pleased to give me help with everyone’s name.
These views exist despite Ms Beta attempts, in the view of the Court, to elevate her position as being superior to that of Ms Avron, where Ms Beta labelled the children’s school belongings “BIRTH MOTHER [MS BETA]”.
The Court further notes at line 928-929 of Dr L's report, dated 20 June 2022, that provides:
The children appear to have a close bond with both parents, and there was nothing to indicate the children have anything but secure attachments to the parents.
The Court finds the nature of the relationship the children share with both parents is a loving and normal one. The Court also accepts the children have a loving and normal relationship with their parent’s partners and their brother (half sibling). The Court also finds that by virtue of the greater time the children have spent with Ms Beta, as a result of Interim Orders made by the Court, the children would be more likely to be primarily attached to her.
The Court finds that neither parent has failed to participate in the making of decisions about major long-term issues in respect of the children or failed to communicate or spend time with the children. In fact, both parents very much wish to be involved in making long term decisions for the children but in circumstances where it is done without regard to, or contemplation of, the other parent. Issues around Ms Beta enrolment of Y in B School and the relegation of Ms Avron to a position where she is not listed as an emergency contact in the NSW Government Education – Application to enrol in a NSW Government School (exhibit “C”) goes towards this issue.
There was, in the view of the Court, no accident in the way in which Ms Avron’s role was diminished in the school enrolment process by Ms Beta where Ms Beta completed the said application and listed herself and her partner Ms K as the “First” and “Second” contacts, and under the heading “Additional emergency contacts” in the application, listed “[Ms Q]…Grandmother” and “[Ms M]….Grandmother”.
The parents have fulfilled their obligations to maintain the children.
The Court considers the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, their brother, and the parent’s partners with whom they have been living.
Ms Beta seeks to essentially leave the time the children currently spend with Ms Avron unchanged where they will live with Ms Beta and spend four nights a fortnight and half of the school holidays with Ms Avron. Ms Beta’s application is such that the Court need not consider the effect of any change in the children’s circumstances beyond Ms Beta seeking a change of the children’s surname.
Ms Avron seeks a significant increase in the time the children spend with her, changing from four nights to seven nights per fortnight, during school term, in an equal time arrangement. This arrangement could, in the view of the Court, negatively affect the children where they are separated from Ms Beta, her partner, and their brother an additional three nights per fortnight than they already are.
The ICL proposed an arrangement of eight nights with Ms Beta and six nights with Ms Avron during the school term and half of the school holidays.
Dr L provided his opinion about the most suitable arrangements at lines 1070-1080 in his report as follows:
I recommend the children spend the fortnightly schedule living with [Ms Beta] and spend increased time with [Ms Avron] compared to the current arrangements. Respectfully, the Court may wish to consider the children spending time with [Ms Avron] from Tuesday after school until the following Monday before school, every second week, in a fortnightly cycle. Alternatively, the Court may consider the children spending time with [Ms Avron] from Wednesday after school until before school the following Monday in week 1, and from after-school Thursday to before school Friday in week 2. I also respectfully recommend 50:50 care arrangements over the short school holidays at the end of terms 1, 2 and 3. At this point, I believe the children are too young to spend three weeks of the six-week summer holidays in block time with the respective parent. Furthermore, a three-week block in the care of [Ms Avron] would mean that the children would not spend that time with their younger brother.
The Court finds that the change in the children’s circumstances where they spend increased time as suggested by both Dr L and the ICL is unlikely to detrimentally affect the children where their separation from Ms Beta, her partner and the children’s brother is not as significant as compared to an equal time arrangement suggested by Ms Avron. The children would have the benefit of an additional two nights a fortnight with Ms Avron in her home and in the view of the Court such an arrangement strikes a good balance between the children maintaining and enjoying a meaningful relationship with Ms Avron while limiting the effects of the change in their circumstances and separation from Ms Beta and their brother.
Noting Ms Avron’s change of place of residence, where she now lives within walking distance to Ms Beta residence, the Court finds that there is no practical difficulty and expense of the children spending time with and communicating with the parents.
Disappointingly, the historic correspondence from Ms Beta to Ms Avron (shortly after Ms Avron’s mother passed away) demonstrates a high level of distain towards Ms Avron’s capacity as a parent where Ms Beta sent a text to Ms Avron in late 2019 that provided:
You have no idea how to parent. You never have. You are the reason they are always sick, you cannot care for them how they should be cared for. Christ! You can’t even look after yourself. The fact that you have given no consideration to their needs is typical of you and disgusting! Just like taking them to a hospital of a dying/dead woman! You’re pathetic!
Despite the nastiness of the above text, the capacity of the parents to provide for the needs of the children, including emotional and intellectual needs was not pressed as an issue in these proceedings. No submissions were made on behalf of Ms Beta to the effect that Ms Avron lacked such capacity, and the following was put on behalf of Ms Avron in the written submissions, prepared by her Counsel, that set out:
Each of the parents clearly have established that they have the capacity to provide for the needs of the children.
On the topic of capacity Dr L opined in his report at lines 1011-1012 that:
Both parents appeared to have reasonable capacity to meet the children's needs including emotional and intellectual.
The Court finds that the parties have the capacity to provide for the needs of the children including their intellectual and emotional needs.
There is nothing in the maturity, sex, lifestyle, and background (including culture and traditions) of the children, or of either of the parents, or any other characteristics of the children that that the Court thinks are relevant to the determination of what is in the best interest of the children.
The Court is not aware that either of the children are Aboriginal or Torres Strait Islander children.
This is, in the view of the Court, a matter where the parents have a dysfunctional co-parenting relationship. Some of the correspondence between the parties is toxic, and behaviours of the parties such as Ms Avron turning up to collect the children in the company of other community workers was at the time provocative and intimidating. However, while the Court easily finds the parties’ relationship is highly conflictual and acrimonious, based upon the evidence available to the Court, the Court does not find that there is family violence within the definition set out at section 4AB of the Act.
Gratefully, there are currently no ADVOs between the parties.
It is preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to the children in this matter. That order is one that would see Ms Beta hold sole parental responsibility. While such a result is disappointing to the Court, because the parties could do much better, the simple fact in these proceedings is this – the parties are unlikely to agree on decisions that involve their children and instead they are most likely to disagree because they cannot or do not want to get along or compromise.
Dr L suggested at lines 1137-1144 of his report:
I think it is in the interest of both children for the parents to retain shared parental responsibility. I recommend the parents attend upon a practitioner experienced in working with high-conflict separated parents to engage in co-parenting focused family therapy. This would probably be best conducted via telehealth, and need not be more than monthly, over the course of approximately six to 12 months, subject to review. It might prove helpful for the family therapist to receive a copy of this report in anticipation of commencing therapy with the parents.
Dr L is, in the view of the Court, partly correct. It is in the interests of the children in an objective sense that their parents retain shared parental responsibility as both parents should have input into long term decision making for the children. However, subjectively the Court does not accept that these parents engaging in co-parenting focused family therapy will work. This is because the Court does not accept that these parties want to fix or reduce the conflict in their relationship. Rather the Court expects that the lack of regard the parties have towards one another will continue and the Court holds little hope that these parents would willingly work together. The Court heard the parties’ cross-examination over days that did little other than offer excuse or seek to shift blame for the conflict onto the other. The Court heard the parties take some, but ultimately very little, responsibility for their actions in promoting the continuation of a relationship of great acrimony.
It is the view of the Court that the ICL has sought Ms Beta hold parental responsibility in order to limit conflict and avoid future Court proceedings. The Court shares the ICL’s position and goes as far as finding that an order for equal shared parental responsibility is most likely to lead to the institution of further proceedings. Awarding Ms Beta sole parental responsibility, where the children will live predominately with her, will be an order least likely to lead to the institution of further proceedings and is therefore in the best interest of the children.
Ms Beta suggested that upon Y's commencement of High School in 2029, the children will spend time with Ms Avron, and in turn herself, in blocks of fourteen (14) nights during the Christmas school holidays. The order is problematic as there are generally only a six week holiday period at the end of the Term 4 Christmas school holidays. Noting the parties’ lack of communication and inability or willingness to compromise, an order that simply provides for seven-night alternating blocks of time with the parents during the end of the Term 4 holidays is least likely to lead to the institution of further proceedings. Similarly, the orders Ms Beta proposed that would allow 14 days and then 21 days of overseas travel is problematic given the amount of time the parties are actually allocated pursuant to the orders that the parties and the ICL seek. Making an order that allows the parties to travel overseas during periods as agreed or otherwise when the children are living with or spending time with the parents, pursuant to the orders, is least likely to lead to the institution of further proceedings.
There are some other issues in the orders proposed by Ms Beta, Ms Avron and the ICL that in the view of the Court provide an arrangement least likely to lead to the institution of further proceedings namely:
·The ICL’s proposal that Ms Beta consults with Ms Avron when she intends to exercise sole parental responsibility.
·Arrangements for week about time during the term 4 Christmas school holidays.
·Orders for Mother’s Day, J’s birthday and the children’s and parent’s birthdays.
·Handovers to be conducted at Suburb H Woolworths where handovers are not facilitated at the start or conclusion of school.
·Specific travel and passport orders.
·Orders requiring the passing on of information regarding educational and medical issues.
·Non-Denigration order.
Children’s Surname
The Court considers further facts and circumstances that the Court thinks is relevant to the question around the children’s surname.
Dr L recorded the following discussions with the parties during his interviews at paragraphs 719-743 relating to the use of the children’s surname:
I asked [Ms Avron] to comment on allegations by [Ms Beta] that she removes labels from the children’s clothes which indicate their name is [Beta-Avron], as opposed to just [Avron]. She explained she asked [Ms Beta] not to write ‘[Beta-Avron]’ on the children's clothing labels as their names had not changed. [Ms Beta] continued to write the double barrelled surname therefore she removed the labels. She added that she believes [Ms Beta] is doing, “everything she can to replace me” in the children's lives. She added that the children's lunch boxes have contact details stating ‘[Ms Beta]’ and ‘birth mother’ with [Ms Beta]’s phone number. I subsequently asked [Ms Beta] to explain why she had specifically written her name, and “birth mother”, and contact number on the children's lunchboxes. [Ms Beta] explained that she is mindful the children have three maternal figures, herself, her partner [Ms K], and [Ms Avron] and she wanted to clarify her role as she is the only birth mother. I explained to [Ms Beta] that I was aware the labels had her name only, and only her contact number therefore I was unclear as to why she had written ‘birth mother’ on the labels, as there would be no need to differentiate between roles given there was only one contact person provided. At this point [Ms Beta] could not advise why she had specifically written “birth mother”.
When asked subsequently why she had added ‘[Beta]’ to the children's surname on school clothing, [Ms Beta] indicated that she had “trouble” with the school because they had not read any of the Court orders and she wanted to ensure the school contacted her, and not just [Ms Avron], given the name that was on the label when they started school. [Ms Beta] added that there are ongoing issues with the children's clothes being lost and [Ms Avron] not returning them to her. I understood from [Ms Beta] that when clothing items are lost at school they are placed at a box in the school office, and she spoke to the school about how she might make it easier for the school staff to identify which to parent contact regarding any missing clothing items – i.e. to add both parents’ surnames to the clothes.
Ms Beta completed Y’s school enrolment form (exhibit “C”). In response to question “F. Special circumstances” in the enrolment form, it was recorded:
[Ms Beta] is the birth mother of [Y] and her sister [X] (current student). Family Law Court Orders are in place where [Y] and [X] reside with [Ms Beta] & [Ms K] and visit [Ms Avron] every second weekend and each alternate Thursday overnight. (Schedule previously provided to [B School]). [Ms Beta] has parental responsibility for education, please ensure if there is any emergency or.
The response provided to question “F. Special Circumstances” in the enrolment form ends mid-sentence.
Dr L provided a view about a change to the children’s surname during cross-examination, by Counsel for Ms Beta, as follows (Transcript 1 June 2023, page 232, lines 30-36):
Mr Rosic: Doctor, in respect of a hyphenated name, there’s an application that’s before the Court in which [Ms Beta] seeks that the children be known by a hyphenated name, the surname of both parents?
[Dr L]: ---Yes.
Mr Rosic: Do you see that as being a benefit to the children so that they can associate, relate with both of their parents?
[Dr L]: ---I could see some benefit to that here, yes, given both parents – having both parents’ surnames, yes, I could see some benefit.
It is the view of the Court that Ms Beta struggles with an identity issue regarding her publicly perceived role in the children’s lives. While Ms Avron does not want a distinction drawn in respect of who did, and who did not birth the children, Ms Beta clearly does. It is unhelpful to the parties’ already strained relationship that Ms Beta should be resentful about the children’s surname. Adding, by way of hyphenation, ‘Beta’ to the children’s surname will, in the view of the Court, alleviate the issue of Ms Beta insecurity of identity with the children where they will share her surname and also that of Ms Avron. While Ms Avron was initially uncompromising in her desire to leave the children’s surnames as solely ‘Avron’, Ms Avron considered her position on the topic during cross-examination as set out below:
[Ms Avron]: Your Honour, certainly, my initial and, I guess, primary view is that [Ms Beta] and I made the decision in relation to naming our children together and that that’s how they always identified. However, listening to the child expert and his views and – and I understand [Ms Beta] wants to have representation of her name with our daughter. Yes. I can appreciate that. I do very strongly feel, though, the sequence of name should stay the same. The girls, as Mr Rosic mentioned previously – they’re accustomed to being – they’re accustomed to their name. They identify with it. It’s used every day in school and extracurricular activities. To add [Beta] would certainly give [Ms Beta] what she’s asking for. It would provide the girls with the opportunity to recognise both – parentage of both her mother – their mothers. It’s – you mentioned the syllables, your Honour. That would be consistent with their brother, [J], who’s [K]-[Beta], and I note syllable name, followed by [Beta] – one. (transcript 22 June 2023, page 300, lines 13-25).
It should be noted that the Court does not possess any views given by the children regarding their surname that it would give weight noting the age of the children where such a topic would go well beyond their ability to maturely understand the issue.
Ms Avron was not challenged regarding her understanding of J’s surname, and the Court notes the styling of J’s surname within Ms Beta proposed orders. The children and J sharing a surname that see them each have Beta as the second name in the same hyphenated sequence is attractive to the Court. The Court finds that it is in the best interest of the children that their names be hyphenated and changed to that of Avron-Beta.
Parental Responsibility and Spend Time with Arrangements
The Court does not rebut the presumption in favour of equal shared parental responsibility by reasons of abuse or family violence. The Court does rebut the presumption based on the view of the Court that it is not in the best interest of the children that the parents equally share parental responsibility by reasons that there is a significant likelihood that the sharing of parental responsibility will lead to the institution of further proceedings.
While the Court is not mandatorily required to consider the provisions of section 65DAA of the Act it does so for the purposes of examining the orders sought by the parties and the ICL in light of the considerations found at that section.
The Court firstly considers the equal time arrangement sought by Ms Avron. Such an arrangement would not be in the best interests of the children where a change in the time from the current arrangement of four nights to seven nights per fortnight during the school term could in the view of the Court negatively affect the children where they are separated from Ms Beta, her partner, and their brother an additional three nights per fortnight. When considering whether equal time is reasonably practicable, the Court has had regard to and notes that the parties’ houses are extremely close. The parties do not live too far apart to make such an arrangement impracticable.
The parents' have the current and future capacity to implement an equal time arrangement. This includes their availability to collect and care for the children where, at the current time, Ms Beta is not working, and Ms Avron has a flexible work arrangement. The Court also accepts that the parties have the future capacity to implement such an arrangement where, if for any reason there was a change in the parties’ work, they are able to make alternate arrangements. In other words, these parties are capable adult parents who would use their financial means and existing relationships with partners, family, and friends to make things work.
Unfortunately, the Court finds that the parties’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind is so wanting that it means an equal time arrangement is not reasonably practicable.
To be clear, the court sat through days of cross examination and heard, in excruciating detail, the failing of both parties to communicate, cooperate and compromise. This included the above mentioned incident at the hospital; failure to work together around the children visiting the same GP; promoting continuity of care; issues about dental care for the children; failure to consult and work together in respect of extracurricular activities such as sports; arguments around the retention of baby photos, passports and birth certificates; the filming of handovers; attending handovers in the company of uniformed community workers; the failure to handover and then deliver a child’s toy; fights over schooling; the unilateral school enrolment and exclusion of Ms Avron’s name as an emergency contact; arguments over the names of the children; the writing of ‘Birth Mother’ by Ms Beta on the children’s lunch boxes and school bags etc, and then the scribbling out of the same by Ms Avron and Ms Avron’s failure to keep Ms Beta informed of the children’s whereabouts and safety during the abovementioned storm emergency. For the purposes of determining whether equal time is reasonably practicable based on this issue, it is not a matter for the Court to look at apportioning blame as a means of mitigating the issue where section 65DAA of the Act does not require the Court to consider blame. If equal time is to be reasonably practicable, in an arrangement where the children live their lives evenly divided between two households, it is important that both parents be ‘on the same page’ when it comes to doctors, schools, extracurricular activities and the passing over between households of such things that include toys, books and the like.
In the decision in T & N [2001] FMCAfam 222 (30 November 2001) the Honourable Judy Ryan, as she was then a Federal Magistrate, meticulously when through the decisions of Australian and foreign jurisdictions in relation to circumstances in which an equal time arrangement would work. At paragraph 93 of her decision, Ryan FM raised issues and suggested questions relevant to the Court’s consideration of the reasonable practicability of equal time that included inter alia:
[93] …Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern. Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise. Do they share similar ambitions for the child? For example…extra curricular activities…Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
The answer to the questions, as posed in T & N, in this decision is of course no. The legal representative for the ICL correctly stated:
It’s a matter where your Honour has before you two very competent parents.
Unfortunately for these children they have two competent parents whose current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time is so compromised it makes that arrangement impracticable.
The impact that an arrangement of that kind would have on the children given their separation from Ms Beta, and particularly their brother, would be detrimental.
There are no other matters the Court considers relevant when evaluating the proposal for equal time.
The ICL proposed an arrangement of eight nights with Ms Beta and six nights with Ms Avron during the school term and half of the school holidays. Ms Beta suggested an arrangement of four nights a fortnight and half of the school holidays. Both the ICL’s and Ms Beta proposals fall within the definition of an arrangement of substantial and significant time as found at section 65DAA(3) of the Act where:
(3)(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The Court finds that the change in the children’s circumstances where they spend increased time as suggested by both Dr L and the ICL is unlikely to detrimentally affect the children where their separation from Ms Beta, her partner, and the children’s brother is not as significant as compared to an equal time arrangement suggested by Ms Avron. The ICL’s suggestion, in the view of the Court is more likely to strengthen the children’s relationship with Ms Avron through the additional two nights as it provides more opportunity than the arrangement suggested by Ms Beta for the children have Ms Avron involved in their daily routine. This is particularly important where, in the view of the Court, Ms Beta is by virtue of the content of her text communication unsupportive of the relationship between the children and Ms Avron, to the same extent she is supportive of their relationship with her current partner.
The children will, pursuant to the ICL’s proposal (as compared to that of Ms Beta), have the benefit of an additional two nights a fortnight with Ms Beta, in her home, and in the view of the Court such an arrangement strikes a good balance between the children maintaining and enjoying a meaningful relationship with Ms Avron while limiting the effects of the change in their circumstances and separation from Ms Beta and their brother. The arrangement suggested by the ICL is in the view of the Court in the best interest of the children.
The Court considers whether the ICL’s proposed arrangement for substantial and significant time is reasonably practicable and finds:
(a)As set out above the parties’ houses are extremely close. They do not live too far apart to make such an arrangement impracticable.
(b)For the same reasons set out above, the parents' have the current and future capacity to implement such an arrangement.
(c)The parties’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement, while well less than good enough for equal time, is good enough for the proposal suggested by the ICL to be reasonably practical. In this regard the Court notes the support and suggestion of such an arrangement by Dr L. While parallel parenting is not ideal, it will in this case suffice and make the arrangement reasonably practicable.
(d)The impact that an arrangement of the kind suggested by the ICL would have on the children, given their limited separation from Ms Beta, her partner and their brother would not be detrimental.
(e)There are no other matters as the Court considers relevant when evaluating the ICL’s proposal.
The Court finds that a 6/8 arrangement during school term and equal time arrangement during school holidays, where the children live with Ms Beta and spend time with Ms Avron, is in the children’s best interest and reasonably practicable.
For the reasons set out above the Court makes the following Orders:
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 18 December 2023
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