Birch and Kopp

[2013] FamCA 454

FAMILY COURT OF AUSTRALIA

BIRCH & KOPP [2013] FamCA 454

FAMILY LAW – CHILDREN – What time the father should spend and communicate with the child – Whether the child’s passport should be held by a parent or the Court – The mother’s application for the child’s surname to be changed – Whether restraints should be placed upon either or both of the parties in respect of removing the child early from school – Whether the mother should retain sole parental responsibility, or whether the parties should have equal shared parental responsibility – Whether the mother should notify the father of decisions regarding the child in the event she retains sole parental responsibility – Extracurricular activities of the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Birch

RESPONDENT: Mr Kopp

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

FILE NUMBER: PAC 3715 of 2007

DATE DELIVERED: 4 April 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 4 April 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan

Legal Aid NSW

Parramatta Family Law

Orders

1. That all previous parenting Orders in respect of the child N born … October 2003 be and are hereby discharged.

2. That the child live with the mother.

3. That the mother have sole parental responsibility for the child.

4. That the mother shall notify the father forthwith upon her making any decisions that effect the long term welfare of the child, including, but not limited to, medical issues, issues of education or schooling and issues of religious upbringing.

5. That the child spend time with the father as follows:-

   (a)During school terms each alternate weekend from after school Friday to before school Monday. Those weekends are to fall upon the weekends when the mother’s stepchild B is not in the mother’s household.

   (i)In the event of there being any difficulty as to the meaning or effect of this order, the matter may be relisted before a Judge of this Court, including myself if I am available, for further interpretation.

   (b)During school terms from after school until 7.00 pm each Thursday commencing next Thursday 11 April 2013. The father shall collect the child from school and return the child to the mother at the child’s Sport C lessons on those day.

   (c)During short school term holidays, from after school on last day of the school term until 5.00 pm on the middle day of the school holiday.

   (d)Unless otherwise agreed between the parties in writing, during Term 4 school holidays, that is the long school holidays, in years ending in an odd number, from after school on the last day of term until 2.00 pm on 10 January.

   (e)Unless otherwise agreed between the parties in writing, during Term 4 school holidays in years ending in an even number, from 2.00 pm on 10 January until 2.00 pm on the day prior to the school term recommencing. The date for recommencement will include any pupil free day that the school may proclaim.

   (f)On the child’s birthday each year:-

   (i)From after school until 6.00 pm on a school day; or

   (ii)From 2.00 pm until 7.00 pm on a non-school day.

   (g)In the event that the child is not spending time with him pursuant to the  foregoing Orders, on Christmas Eve each year from 9.00 am until 8.00 pm.

   (h)On Father’s Day each year from 12.00 noon until before school on the following Monday.

   (i)Such other times as may be agreed between parties in writing.

6. That the father shall ensure that at all times when the child is in his care that he is present and is not working so as to devote his full time care and attention to the child.

7. That notwithstanding any foregoing Orders, the child shall spend time with the mother as follows:-

   (a)Each year from 8.00 pm on Christmas Eve until 10.00 am on Boxing Day.

   (b)On Mother’s Day in each year from 12.00 noon until before school the following day.

   (c)On the child’s birthday (if falling on a day when the child is spending time with the father) on a non-school day, from 2.00 pm until 7.00 pm.

8. That for purpose of changeovers in respect of the father’s time with the child, the father shall, where appropriate, collect the child from school if time commences at the conclusion of the school day, or otherwise from Suburb D McDonalds, and shall return the child to school if his time concludes at the commencement of the school day, or to Suburb D McDonalds at the conclusion of his time.

9. That each parent shall be at liberty to contact the child on her mobile telephone at any reasonable time and each parent shall ensure that the child has access to her mobile telephone at all times that the child is in their care.

10. That the child’s mobile telephone shall travel with the child, and the mobile telephone is to be charged and switched on at all times to enable calls to be made to that telephone.

11. That each parent shall ensure that the child has her own bed and shall ensure that the child does not share a bedroom with any other person whilst the child is in their home.

12. That I note that the father has indicated that for this coming weekend, he will allow the child to sleep in his room and he will sleep elsewhere. Thereafter, he is to make available to the child a separate bedroom from which he has removed all manner of materials and tools presently stored therein.

13. That both parties do all things and execute all documents, including applications, to enable the mother to apply for a passport for the child in her birth name.

14. That the father shall sign the passport application within seven (7) days of the form being made available to him, and having signed it, shall return it forthwith to the mother.

15. That the mother shall then be entitled to take all steps as are necessary to obtain the passport into her possession.

16. That upon a passport being issued for the child bearing her birth name, the mother shall deposit that passport with the Registry Manager of the Family Court of Australia at Parramatta Registry.

17. That passport shall remain at the Parramatta Registry at all times that the child is not travelling outside the Commonwealth of Australia by means of that passport.

18. That passport may be released to a parent (a) with the consent in writing of the other parent or (b) by order of this Court.

19. That either party shall be at liberty to travel overseas with the child provided they provide the other parent with the following:-

    (a)Not less than four (4) weeks written notice of their intention to travel overseas with the child. That notice to give proposed dates of travel, approximate location of travel and in the event the travel to take place at a time when the child would normally be with the other parent, a proposal for time to be made up between the other parent and the child.

    (b)Thereafter and not less than two (2) weeks prior to the proposed travel, the parent travelling with the child shall provide to the other parent a copy of the return ticketing for the child and a settled itinerary for the period of overseas travel which shall specify a location at which the child will be staying for the duration of or during the period of overseas travel. That information shall contain a contact number for the child whilst overseas.

20. That within forty-eight (48) hours of the child being returned to the Commonwealth of Australia, the child’s passport shall be returned to the Parramatta Registry of the Family Court of Australia to be held subject to the foregoing conditions.

21. That both parties shall be restrained from denigrating the other parent in the hearing or presence of the child, and neither parent shall permit, allow or encourage any other person to do so.

22. That each parent shall keep the other informed of their contact telephone number and shall notify the other within forty-eight (48) hours of any change in that number for any reason whatsoever.

23. That each parent shall be entitled to obtain information directly from the child’s school in relation to her educational progress, and such material shall not be limited to school reports and school photographs.

24. That each party shall be at liberty to attend any school event involving the child to which parents would ordinarily be invited to by the school authorities.

25. That each parent shall be restrained from removing the child from school prior to the end of the school day, save and except in the case of the child being ill, injured or required to attend any prearranged appointment with a health professional, unless they have the consent of the other party to do so. Such an order would require the mother particularly to notify the father of any prearranged appointment prior to the date upon which it is intended that the child be removed from school.

26. That both parties shall be at liberty to obtain from any treating health professional or specialist information concerning the child’s health and wellbeing.

27. That in the event that the child does suffer from a serious illness or injury or is hospitalised for any reason whatsoever, the parent caring for the child at the time of that event shall notify the other parent forthwith upon such event occurring.

28. That each party shall be entitled to attend the child’s extracurricular activities on occasions that parents are normally invited to attend, and each party shall ensure that the child attends extracurricular activities whilst in that parent’s care.

29. That each party shall be restrained from enrolling the child in any further extracurricular activities that occurs in the other parent’s time with the child, save and except with the written consent firstly obtained from the other parent.

30. That I stand over the issue of a change in the child’s surname for a one (1) day hearing to be allocated at the earliest opportunity.

31. That I discharge the Independent Children’s Lawyer with the thanks of the Court from any further attendance in this matter.

32. That each of the parties and the Independent Children’s Lawyer be granted leave to relist the matter, provided such leave is available, within seven (7) days after receipt of the Orders in the event of any perceived error or omission contained in the Orders made today.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3715 of 2007

Ms Birch

Applicant Mother

And

Mr Kopp

Respondent Father

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. The matter before me today concerns the future living arrangements to be made in respect of the parties' only child, N, who was born in October 2003.  The matter has a significant history in the Family Law system.  There were a series of matters before a number of Federal Magistrates.  On 11 June 2008, following a two day hearing, Donald FM made Final Orders.  The effect of those Orders was that the parties were to have equal shared parental responsibility, and for the child to live with the mother.  The father was to have time with the child.

2. On 28 July 2010, the mother commenced further proceedings.  On 15 November 2010, Harman FM made interim Orders.  On 3 March 2011, Harman FM made further Orders, which included suspending the Final Orders made on 11 June 2008 in their entirety.

3. On 6 July 2011, Harman FM made trial directions and further interim Orders for the father to spend time with the child during the Christmas/New Year holidays of 2011/2012.  On 24 October 2011, Harman FM varied trial directions.  On 1 March 2012, the father filed an Amended Response to the mother's application.  On 2 March 2012, the father filed an Application in a Case seeking the disqualification of Harman FM.  On 9 March 2012, the matter was subsequently transferred to Halligan FM following Harman FM disqualifying himself.

4. On 23 May 2012, Halligan FM made directions and transferred the matter to this Court.  On 18 December 2012, Registrar Tran made interim Orders by consent in relation to the father's time to be spent with the child over the 2012/2013 Christmas school holiday period.  On 30 January 2013, the matter came before me.  It was stood over for the parties to have discussions in an attempt to narrow the issues, and the current interim parenting arrangements were ordered to continue in the interim.

5. The matter was back before me on 22 February 2013.  On that occasion, I set the matter down to be heard today.  As part of the trial directions, I ordered that the following issues were to be the subject of the hearing today.  Those were, in the order I set them down, as follows:-

   ·How the long Christmas school holidays are to be divided. The father is seeking half of the holidays and the mother is seeking a two week period.

   ·The Thursday night overnight time between father and child.

   ·Whether parental responsibility be joint or granted solely to the mother.

   ·Where the child’s passport, after its issue, is to be held.

   ·The sleeping arrangements for the child when she spends time with the father.

   ·The father’s telephone contact with the child.

   ·The issue of either party removing the child from school or interfering with the other’s time with the child from school.

The parties’ material

1. I have read the material that the parties seem to have filed and seek to rely upon this day.

2. In the mother's case, that is her Amended Initiating Application filed 21 June 2012, her affidavit affirmed 21 June 2012 and, in addition, a statement prepared in accordance with my directions made on the last occasion (to the effect that the parties each prepare a statement as to what they would say should occur and why and serve that document on the other party.)

3. The father's material is his Amended Response of 1 March 2012 and his affidavit sworn 1 March 2012, together with his statement prepared in accordance with my direction.

4. I have been very greatly assisted by the Independent Children's Lawyer in these proceedings.  Her cross-examination of each of the parties has been helpful and illustrative.  Further, she has prepared a minute of the orders that she would seek. 

Matters agreed between the parties

1. These orders sought by the Independent Children’s Lawyer have been largely agreed to by the parties.  The parties accept that the child is to live with the mother.  There are orders that I will need make at the conclusion of these reasons regarding time the father spends with the child during school term and during school holidays.  There are a number of other orders concerning specific days that can be made by consent.  The changeover of the child for time with the father and return to the mother appears to be of no difficulty.  There are orders that appear to be agreed upon by each of the parties as to telephone time with the child when the child is with the other parent.

2. The father has agreed that for this coming weekend, which is to be his weekend under the present regime, that he will allow the child to have his bed in his room and he will sleep elsewhere.  That is to facilitate the coming into effect of an order that each parent should ensure that the child has her own bed and shall not share a room with any other person whilst at their home. 

3. As to the issue of a passport, it appeared to me that that might be an issue stood over.  The reason I say that is that the mother at the very end of her statement that she filed in Court today raised the issue of a change of surname for the child.  I made it clear at the commencement of these proceedings that I was not able to deal with that issue today and it would require a further hearing at a later date before another Judge.

4. It seemed to me that there might be some sense and utility in not applying for a passport until the issue of surname was resolved.  However, both parties seem to agree that the passport should issue in the child's birth surname, and I am certainly prepared to do that. 

5. The parties seem to agree that they shall each be at liberty to obtain information relating to the child's health.  I am satisfied that it is appropriate that I should make an order that if the child suffers from any serious illness or injury, and that includes an injury to her mouth or teeth, then notification must be made to the other party.

6. I note that there is agreement that each party shall be entitled to attend the child’s extracurricular activities on occasions when parents are ordinarily invited and welcome at such events. 

7. I further understand that there is agreement that each parent be restrained from enrolling the child in any extracurricular activity that occurs in the other parent’s time with the child.

Matters requiring determination

1. There is an issue as to where the passport should be held once it has been issued, and whilst it is not in use to enable the child to travel overseas with either of her parents.  There is some argument as to how much notice each party should give the other of an intention to travel overseas, and that is something I will determine in the course of these Reasons for Judgment. 

2. A further order sought by the Independent Children’s Lawyer is that each party be restrained from removing the child from school.  That is something I will also return to in these Reasons for Judgment.

The hearing before me

1. I have heard a considerable body of evidence from each of the parties.  There is very little agreement between them as to the facts surrounding this matter.  Each of them makes accusations against the other.  I am told by the father that he complains the mother has acted, as it were, unilaterally against him.  The mother told me in respect of the Christmas holidays that that which the father seeks is unsuitable.  She said the child becomes argumentative and she, the mother, believes the child should express her views to the father.

2. I pause here to observe that, to my mind, that would make a bad situation even worse.  This child is in the middle of what she clearly knows to be a conflict and dispute between the two people who should be doing their very best to shelter her from such a situation.  I am of the view that it would be by no means unusual if this child were to say one thing to one parent and something different to the other simply as a matter of survival.  The mother does not think that is the case.  However, I cannot resile from my thoughts that this child is doing what she needs to do to exist in the household of both parents.

3. As to Thursday nights, which now seem to be something of a non‑event, there was some suggestion that the father had abandoned the Thursday nights in the off week.  I understand that now not to be the case, that he did not abandon them altogether, but said he would not take the child overnight and that he would have the child as on the other Thursday night, if I can refer to it in that fashion, between the hours of after school to 7.00 pm.

4. The mother accuses the father, in respect of equal shared parental responsibility, of being argumentative.  She made a reference to difficulties in obtaining treatment for the child’s teeth, having been referred to an orthodontist.  She made a statement that the father said he would pay half of the orthodontist bill, and he later telephoned to tell her that it should be paid for by the taxpayer and that he intended to take the child to a dentist near him.

5. So far as the passport is concerned, the mother said she wanted to hold the passport because it would be an inconvenience if it were a matter of having to come to Court to have it released. 

6. As to the sleeping arrangements, the mother said she wanted the child to be secure; the child needed to have a lockable door on her room at the father’s home for both privacy and because of her cousin. 

1. As to telephone contact, the mother said that the father can call the child any time.  She agreed that the father had provided a telephone for their daughter, which she says she used with the father’s permission.

2. So far as removing the child from school, the mother said that she had done this at the express request of a Ms A, the school principal.  I deprecate any such suggestion by Ms A.  Whilst I have the greatest sympathy for school administrators dealing with children of separated parents, I am very much of the view that for a school principal to take upon herself to suggest to any person that they breach Court Orders, notwithstanding that that person says, “Look, I have asked to vary those Orders,” is something that should not occur and, in my view, may well have placed Ms A in a position where one might find her having done more than is appropriate in relation to these matters.

3. When cross-examined by the Independent Children’s Lawyer, the mother, in my view, particularly spoke about parental responsibility.  She said, “(i) t was easier if I don’t have to fight with him.”  She does not think the father should be involved in a choice of high school.  She says that the father says one thing and then does another.

4. The father then gave evidence.  He complained that the child did not answer her mobile telephone.  He said that he wants one-half of Christmas, and he assures me that he will not work under any circumstances, not only during the Christmas period, but during any time, when the child is with him.  He spoke of giving the child an iPad.  This was in answer to a question from the Independent Children’s Lawyer.  I was confused by this evidence.  At first, he said he had given the child the iPad for Christmas, then he said he had given it to her before her birthday.  One of the reasons this was of relevance was it was in answer to a question endeavouring to ascertain what was being done in relation to the father seeing the child for the latter part of Term 4 of the last year’s school term.

What do I make of the parties?

1. So far as the mother was concerned, I formed the opinion that she is very determined to have her own way.  I am satisfied that she feels frustrated in having to deal with the father, but I am satisfied that she has taken the matter some steps beyond that.  I am satisfied that she is convinced that this is a matter where her will and her view should prevail in all things.

2. The father caused me concern with some of the answers he gave.  It appeared, at times, he did not understand the questions asked of him, and I was concerned that he appeared not to listen to the questions asked, but rather, commenced to talk before questions had been finished.  To my mind, this may well be part of the reason why he and the mother find verbal communication very, very difficult.

3. I was also concerned with his answer on several occasions when being asked about the concept of equal shared parental responsibility.  His answer was not “I want to be involved”, but rather, “I want to be informed”.  It seems to me that what he is complaining about, in reality, is not that he is not being given an opportunity to actively participate, but that he is instead being told nothing of what is happening in respect of the child.

4. I say again that it is unfortunate that both these parents, because of their own difficulties, have placed their daughter in the midst of a highly-conflicted situation.  I am satisfied that the mother has not, in any way, collaboratively tried to involve the father in seeking assistance for their daughter.  She speaks of counselling, she speaks of an appointment for a mental health plan; neither of which she has notified the father of, let alone discussed with him.

5. I turn then to the law to be applied.

The law to be applied & Discussion

1. The orders that are sought before me are parenting orders.  Accordingly, I am required to have regard to the various sections of the Family Law Act 1975 (Cth) (“the Act”), and firstly, section 60CC(2), which tells me that the primary considerations in the application of this part are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.  So far as I am aware, no allegation is made that the father is in any way a risk, threat or risk of harm to the child. 

2. I turn then to the additional considerations set out in section 60CC(3) of the Act.  I am told, firstly, that I must consider any views expressed by the child (subparagraph (a)).  As I have already said, I have come to the conclusion that this child is most probably being less than truthful with each parent.  I am satisfied that she has come to the conclusion that it is necessary to please each parent when she is with that parent, and to that extent, she has told the parents at different times completely conflicting things about, for example, whether she wants to spend time with the father.  As the father asserts, the child says she wants to spend more time with him.  Whereas, the mother asserts the child says to her that she wants to spend less time with her father.

3. I turn then to the nature of the relationship of the child with parents and other persons (subparagraph (b)).  In the mother’s household, the child has the mother, her partner, their child together and her partner’s child.  I am satisfied that the subject child enjoys a close and loving relationship with her mother, and I am satisfied that her relationship with her mother has been the most significant relationship in her young life.

4. I am satisfied that she has a proper relationship with her stepfather and a relationship of love and affection with her half-sibling.  I am satisfied, on what I have been told, that she has a proper relationship with her step-brother.

5. In the father’s household, there is the father, his mother, his brother and his niece.  I am satisfied that the child’s relationship with the father, having regard to the amount of time he has spent with her, particularly since separation, is, in all the circumstances, a proper one and one from which the child obtains both satisfaction and comfort.  I am satisfied the child, on the evidence before me, has an appropriate relationship with other members of the father’s household.

6. I turn then to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship with the child (subparagraph (c)).  Here the mother fares badly.  I am satisfied that the mother has, when the opportunity has presented, taken the opportunity to interfere with the father’s time with the child.  I make particular reference to her removal of the child from school.  I have said that which I wish to say about the activities and intervention of the school principal.  To my mind, it does not avail the mother to say, “I was doing it in the child’s best interests.”  There were Orders in force and those Orders should have been followed.  The mother deliberately, in my view, sought to affect the father’s time with the child.  At this present time, I can make no similar finding with respect to the father. 

7. As to the likely effect of any change (subparagraph (d)), it seems to me that, whatever I do in practical terms, there is not likely to be any real change in the child’s life.  The child, by agreement, is to live with the mother.  The father’s time with the child will be subject to minor variations.  For example, whether the child spends two weeks or two weeks and some days, which would represent half of the school holidays with the child, to my mind, is not of particular significance. 

8. So far as the practical difficulty and expense of the child communicating with each parent is concerned (subparagraph (e)), I would hope that the orders I make will improve the situation with the child having an easier time in enjoying contact with her father by telephone, and also, with adjustments to the times that are spent with him, the child will, in fact, enjoy her time with the father.  This might possibly remove some of the angst from both of these parents, and in some way alleviate the battle that they see determined to carry on between themselves.

9. The difficulty of the child spending time with each parent, to my mind, is not of particular importance.  Arrangements can be put in place, as they have been in the past, for collection and return of the child, and this situation seems to present no major difficulty. 

10. As to the capacity of each of the child’s parents to care for the child (subparagraph (f)), the mother has clearly cared for this child at an exemplary level so far as her housing of the child, clothing, feeding and ensuring the child attends school.  The father, I am satisfied, when the child has been with him, has been able to care to for the day-to-day needs of the child with no difficulty.

11. However, I am concerned that both parents fall short when it comes to providing for the child’s emotional and intellectual needs.  These parents have put the child squarely in the middle of their dispute.  It seems to me that neither of them is prepared to accept this, and it seems to me that because they are oblivious to the effect they are having on the child, they are not properly caring for and providing for the child’s emotional needs.

12. The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents (subparagraph (i)) indicates to me that the parents are both more concerned with the forensic struggle.  Each parent seeks to prove that they are right and the other parent wrong, rather than focussing fairly and squarely on the needs of the child. 

13. I am not told of any family violence at this stage involving the child or the members of the family (subparagraph (j)).

14. So far as I am concerned, section 60CC(4), that is, the extent to which each parent has fulfilled or fail to fulfil the responsibilities of parenthood, indicates to me that the mother, particularly, has chosen, when it has suited her, to go her own way because she says that which she does is what is in the best interests of the child.  This is a situation with which I do not and cannot agree. 

15. Having examined those matters, I am required to next look at whether the exercise of parental responsibility should be joint, or solely to the mother.  The father, I record, does not at any stage seek to have the care of the child vested solely in him. 

16. Section 61DA(1) says that there is a presumption when making a parenting order that it is in the best interests of the child for the child’s parents to have equal shared parent responsibility.  That presumption does not apply where family violence is involved (subsection (2)), or the presumption may be rebutted upon the evidence if the Court is satisfied that it would not be in the best interests of the child for their parents to have equal shared parental responsibility (subsection (4)).

17. The father seeks equal shared parental responsibility.  However, his own evidence is that the parties’ attempts at communication in the past have failed abysmally.  He does tell me that this will get better in the future.  I do not share his optimism.  It seems to me that, in considering whether or not there should be equal shared parental responsibility, I would be concerned about the ability of the parties to communicate meaningfully in respect of the child.

18. A further requirement would be an element of trust by each in the other that the other parent can do the right thing.  In this particularly case, communication has failed almost completely.  To the parties’ credit, the one thing they seem to have been able to have done, with any efficiency, is to have the Orders for the father to spend time with the child to run in conjunction with Orders for other children.  That is to say the father’s niece and the mother’s step-son spend time with non-residential parents so that, where possible, when the child is with the mother, her step-son is present, and when the child is with the father, her cousin is present.

19. Other than that, there does not seem to me to be any situation where the parties can agree.  This, of course, does not mean there must be agreement in every case, but there is no solution advanced as to how the parties would, if they were granted equal shared parental responsibility, deal with a situation which resulted in an impasse.  Of what I have heard and seen of these parties, they would be unable to deal with such a situation.

20. Neither of the parties have given any thought, and particularly this relates to the father, to how, if they were to exercise equal shared parental responsibility, in the event they were to reach an impasse or deadlock, the manner in which that would be overcome or broken.  Further, I am satisfied that what the father seeks is not necessarily to be involved in decision-making, but to be promptly and properly told of decisions made by the mother in respect of the child.

21. That is something that I am satisfied the mother has not done up to this point in time.  The very lack of her doing that is undoubtedly one of the reasons the father now seeks to have equal shared parental responsibility, which, as I say, the presumption entitles him to unless rebutted.  However, in the circumstances of this case, because communication is so poor and because trust between the parties is absent, I have come to the conclusion, not without some misgivings, that the mother should have sole parental responsibility for the child.

22. However, I do propose that the mother be ordered to notify the father immediately upon any decision being made in respect of education or medical treatment.

23. I turn then to the manner in which the father is to spend time with the child.  There is no doubt his time is to be from Friday to Monday in one week and each Thursday afternoon from after school to 7.00 pm.  The child appears to be engaged in Sport C on that night starting at 7.00 pm.  This would mean the father could spend meaningful time with the child before delivering her to Sport C.  Of course, the orders that have been consented to will mean that he can stay and watch the child and, as far as possible, be engaged in her Sport C lessons.

24. I believe that what I must do is order that school term weekends shall be organised so that the father’s weekends with the child are to be exercised when the mother’s step-son, B, is not in the mother’s household, and I will endeavour to order accordingly.  I will make orders in respect of special days and the child’s birthday, and I will provide for the father to spend time with the child on her birthday.

25. The changeovers, as I have said, appear to be agreed.

26. I do propose to order that the parties shall both do all things and execute all documents necessary to arrange for the issue of a passport.  The mother is to be the person to make the primary application, and upon the passport being issued, the mother shall deposit the passport with this Registry.  I hear what the mother says about it being difficult if the document is held in the Registry.  Her assertion is that it would be easier and more convenient if it were in her possession.  I do not believe the mother had given any thought to the requirement of telling the father anything about travel overseas, and the impression I obtained, which I concede may be mistaken, is that she merely thought that with the passport in her hands, she could do as she pleased, when she pleased.  That is not to be so.

27. I propose to make the usual orders for non-denigration.

28. I propose to order that each party be restrained from removing the child from school.  Both parties make accusations against the other in this regard.  The father’s evidence, which I tend, on balance, to accept, is that he did not remove the child from class, but rather took her out of lines before the formal dismissal of the children.  I have already made comment about the situation involving the mother in this regard.  I do not propose to repeat what I have said, except to say this:- it is not for a party, with or without the assistance of a school principal, to decide that their views as to what is right, wrong or in the best interests of a child override Court Orders which are in existence at the time.  The fact of an application being lodged to vary those Orders is, in my view, a complete non-sequitur when it comes to whether or not the party is entitled to disregard those Orders.

29. I note that the issue raised by the mother of a change of the child’s surname remains.  I can only set that matter down for hearing for a further day before the first Judge available to hear the matter.  Having said this, I would hope and anticipate that this is a matter that the parties can resolve as between themselves.  In the meantime, as I have already said, the child’s passport will issue with her birth surname.

30. I propose to then make orders to discharge the Independent Children’s Lawyer as of this date.

31. The orders that I make are therefore as set out at the forefront of these reasons for Judgment.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 4 April 2013.

Legal Associate:      

Date:    14 June 2013