Bradbury & Lander

[2019] FamCA 21

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER AND ORS

[2019] FamCA 21

FAMILY LAW – CHILDREN – interim orders – sole parental responsibility – child to live with the father – child to spend time with the mother – handovers – child’s schooling

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC and 65DAA

SS v AH [2010] FamCAFC 13

APPLICANT: Mr Bradbury

RESPONDENT:	Ms Lander
SECOND RESPONDENTS:	Ms B Lander and Mr Lander

INDEPENDENT CHILDREN’S LAWYER: Yeend & Associates

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 24 January 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE SECOND RESPONDENTS LAWYER: Mrs Lander self-representing, no appearance by or on behalf of Mr Lander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Burgess

Orders

UNTIL FURTHER ORDER:

Parental Responsibility

1. The Father shall have sole parental responsibility for Y (the child), born … 2013.

2. The Father shall be at liberty to enrol the child in the school of his choosing.

3. The Father shall notify, and keep the Mother notified, as to the child’s school and before/after school care arrangements.

4. The Father shall provide a copy of the orders to any school or before/after school care providers.

5. The Father shall provide the Mother with the names and contact details of all medical, psychological, counselling, or similar professional providing treatment to the child.

6. The Mother is authorised by these orders to receive information from any school, after school program, treating medical professional; psychologist or counsellor on whom the child attends.

7. Except for in a medical emergency the Mother is restrained from taking the child to any GP, psychologist, psychiatrist, counsellor, or mental health service without the express written consent of the Father.

8. Neither parent shall speak negatively about the other parent to, or in front of, the child.

9. In the event that a third party speaks negatively about a parent in the presence of the child, then the parent who the child is with shall immediately take all reasonable steps to remove the child from exposure to those comments.

Living Arrangements

1. The child shall live with her Father.

2. The child shall spend time with her Mother during term time from 3pm Saturday until 3pm Sunday. 

3. The child shall spend time with her Mother during the school holidays in 2019 and 2020 as follows:

   (a)From 3pm Saturday following the last day of term until 4pm the following Wednesday during terms 1, 2 and 3. 

   (b)During the Christmas school holiday period the child shall spend half of such period with her Mother and her Father as agreed in writing, or failing agreement as follows:

   (i)With the Mother from 3pm 23 December 2019 until 3pm 25 December 2019;

   (ii)With the Father from 3pm 25 December 2019 until 3pm 27 December 2019;

   (iii)With the Mother from 3pm 27 December 2019 until 3pm on 29 December 2019;

   (iv)With the Father from 3pm 29 December 2019 until 3pm 31 December 2019;

   (v)With the Mother from 3pm 31 December 2019 to 3pm 2 January 2020;

   (vi)With the Father from 3pm 2 January 2020 to 3pm 4 January 2020;

   (vii)With the Mother from 3pm 4 January 2020 to 3pm 6 January 2020;

   (viii)With the Father from 3pm 6 January 2020 to 3pm 8 January 2020;

   (ix)With the Mother from 3pm 8 January 2020 to 3pm 10 January 2020;

   (x)With the Father from 3pm 10 January 2020 to 3pm 12 January 2020;

   (xi)With the Mother from 3pm 12 January 2020 to 3pm 14 January 2020.

4. The parties may vary the arrangements provided for in these Orders by agreement in writing (including by text message).

Handover

1. Handovers are to occur in the following manner:

   (a)Where a party nominates to the other parent in writing (including text message) a third party to undertake that handover, then the third party may deliver the child to the other parent’s home.

   (b)In the absence of a nominated third party, handover shall occur within the Suburb D Police Station.

   (c)The parties are at liberty to change the handover arrangements by agreement in writing.

Further order

1. The matter is listed in the Registrar’s list pending a notification of listing for final hearing, or upon application to the Court.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 239 of 2017

Mr Bradbury 

Applicant

And

Ms Lander 

Respondent

And

Ms B Lander and Mr Lander
Second Respondents

REASONS FOR JUDGMENT

1. This matter was listed for interim determination of parenting matters concerning the Applicant’s and Respondent’s daughter, Y, born in 2013 (“the child”).  While a number of matters are at issue, the dispute was primarily regarding parental responsibility and decisions regarding school and health, and the time the child will spend with her parents.  The listing followed the filing of an Application in a Case by the father on 18 October 2018.  A response was filed by the Mother on 6 December 2018 and by the maternal grandparents on 12 November 2018, although the maternal grandfather was not present at the hearing and so the matter was only argued on behalf of the maternal grandmother.  The matter was listed following it not being reached on a previous occasion where it was listed behind contravention proceedings taken by the Father against the Mother.  Those proceedings were awaiting judgment, which is being delivered at the same time as this judgment.

Procedural matters for the conduct of the hearing

1. On setting the matter for listing a time of two hours was allocated as is consistent with Rule 5.10 of the Family Law Rules. At that time, on a question being raised as to the allocation of time, it was indicated to the parties that given the overlap between the Mother’s and the maternal grandparents’ case the time would not be divided equally between all.

2. On the day of the hearing, the Father and Independent Children's Lawyer (‘the ICL’) were in Court ready to commence at or shortly after the 2pm listing time.  The Mother and paternal grandparents were not.  Subsequently they advised the Court through the Father that they had been delayed by illness on the part of the paternal grandfather.  The maternal grandmother arrived at approximately 2:17pm, the Mother at approximately 2:20pm.  This, if the listing had not been adjusted, would have resulted in a significant decrease in the time available.  Rather than simply deducting this from the time available to the Mother and paternal grandmother, the time for the hearing was extended, without objection from the other parties, in order to assist these unrepresented litigants to present their case.  In addition to lengthening the sitting time to accommodate the two hours that were proposed in the orders, further time was allocated for the hearing.  Ultimately, the Court sat until almost 5pm, well in excess of the indicated time.

3. As it turned out, the Father used a little over half an hour of the hearing time, the ICL less than 15 minutes.  The Mother was given 40 minutes to present her case and then an approximately additional 10 minutes was allocated to her at the end of the case.  Although the maternal grandmother was allocated 10 minutes, she was ultimately given approximately 25 minutes for her submissions.  The balance of the time was required for rulings. 

4. The Mother and maternal grandmother were given additional time, such that they were able to address the Court for significantly longer than the Father and ICL combined.

Restriction on material for the interim hearing

1. At the commencement of the proceedings directions were given as to the scope of the submissions that the parties were at liberty to make.  Reasons were given for that ruling on an ex tempore basis during the hearing and so will not be repeated here.  However, it is important to briefly recite the circumstances in which that ruling was given. 

2. The Father relied upon affidavits filed on 18 October 2018 and 13 December 2018, with a financial statement from 11 April 2018.  He also relied upon a case outline and a single expert report of Ms F filed 19 June 2018.  The Mother relied upon her Affidavit of 6 December 2018 (a document of approximately 120 pages without annexures and replete with generalities, commentary and submissions) along with the Affidavit of her brother of 21 May 2018.  The maternal grandmother relied upon her Affidavit of 11 November 2018.  The ICL relied upon Ms F’s report and a case outline.  At the close of argument the Mother also presented a partially complete case outline document of 29 pages.  The parties also tendered various items.

3. The ruling given to the parties as to the scope of their submissions disallowed the canvassing of circumstances prior to the first interim orders made in the Federal Circuit Court in March 2017, noting the history of six occasions on which the parties had sought resolution, either by consent or by contest, in relation to the interim arrangements for the child. 

4. That history, in general terms, involved the following attendances and dispositions. 

   a)On 3 March 2017, by consent, orders were made that the child would live with the Father and spend supervised time with the Mother.  The Father was given a sole occupancy order and there was an invitation for the ACT Office of Children, Youth and Family Support (“CYPS”) to intervene.  The Mother now disputes that the order was made by consent. 

   b)On 24 April 2017, by consent, orders were made that the child would live with the Father and spend time with the Mother on an unsupervised basis on Mondays and Thursdays from 4pm to 7pm and Sundays from 1pm until 6pm. 

   c)On 28 September 2017 contested proceedings resulted in orders that the child would live with the Father and spend time with the Mother on Wednesdays between 9am and 1pm, on Fridays from 4pm and 8pm, and Saturdays from 10am until 3pm.  The proceedings were adjourned to 2 November 2017 for consideration as to whether the Mother’s time should transition to overnight time. 

   d)Orders were then made by consent, such that the Christmas period was provided for, and from 12 January 2018, the Mother spent alternate Fridays from 3pm until 12pm Saturday, with the Friday on the off week from 2pm to 5pm and the following Saturday from 10am until 3pm with the child.  On 19 February 2018 leave was granted for the maternal grandparents to join the proceedings. 

   e)On 19 March 2018, the proceedings were transferred to the Family Court of Australia and the final hearing dates in the Federal Circuit Court of 30 April and 1 May 2018 vacated.  On 31 May 2018 the parties’ interim applications and responses before this Court were dismissed. 

   f)On 21 August 2018, by consent, orders were made discharging the previous orders for the Mother’s time with the child.  Instead she was to spend each Friday from 5pm until 1pm on Saturday and each Wednesday from 1.30pm to 5pm with changeovers to occur at C Group (a supervision agency).

Scope of the interim dispute

1. It is necessary to set out in general terms the orders sought by the parties, although these can be precisely discerned from their various applications and responses.

2. The Father sought that the child live with him and that he have sole parental responsibility for her.  He sought a change in the hours that the Mother would spend with the child (noting that the child is about to commence school) to remove the mid-week time.  He sought that changeover occur at school, childcare or C Group, with orders that provide for what would happen if the Mother was in default in attendance at C Group.  He further sought orders regarding the time that the child would spend with each of her parents over Christmas, regarding the child's enrolment at school, regarding restraints upon the Mother from discussing the proceedings, and from subjecting the child to a psychiatrist, psychologist or counsellor.  He sought costs.

3. The Mother sought orders that the child would live with her, that she would have time with her Father each Saturday from 4pm until 9am on Tuesday (that is an 8:6 split) and that handover would happen at school/after school care/McDonald's/a local club/the local police station.  She sought orders regarding the operation of Family Violence Orders, restraint from moving the child from Australia (no basis was identified for this order and it will not be made) and an order for parental responsibility such that the Mother would have sole parental responsibility.  The Mother sought orders that the parents be authorised to contact schools and medical practitioners, and orders requiring the parents to advise third parties of certain matters regarding parental responsibility. 

4. The Mother further sought orders to restrain the Father from restraining the Mother from causing the child to attend upon healthcare, and requiring him to make the child available for particular health care matters.  She sought orders requiring the enrolment of the child in particular schools, orders for Christmas and school holidays, restraints upon the Father from discussing certain matters concerning the Mother with particular persons, to restrain the Father from restraining the Mother, the child or X (the child of the Mother, but not the Father, but also a subject of these proceedings) from the discussion of various matters including family violence or from obtaining a Family Violence Order against him.  The Mother sought a restraint upon the Father in relation to cutting the child's hair without her permission. 

5. The Mother sought an order for a further expert report to be prepared, from a forensic psychologist.  I noted that it was premature for such an application to be made.  A single expert's report has only just been prepared and any further report should be identified more proximate to the hearing dates, once they become available.  I indicated that this was not an order I would make this stage.  The Mother sought orders about mediation and about costs. 

6. The maternal grandmother was supportive of the Mother's application regarding her time with the child.  She sought orders to compel the Father to correct third parties who came to a view that the parties did not share equally parental responsibility.  She sought sole parental responsibility for the Mother regarding schools, orders about handovers between the Mother and Father, and orders about Christmas (this was a matter that most significantly involved the maternal grandmother and was the subject of orders made shortly after the interim hearing given its proximity to Christmas). 

7. The maternal grandmother also sought a summary order that X be removed as a subject matter of the case.  There are live issues concerning X and pending the final trial of the matter it is not appropriate to dismiss proceedings in relation to X.

Legal principles and discussion

1. Whether the proceedings are interim or final, the paramount consideration, in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.

2. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  It is necessary[1] to:

   keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made.

   [1]SS v AH [2010] FamCAFC 13 at [81]

3. Despite this limitation[2]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2]SS v AH [2010] FamCAFC 13 at [100]

4. There is a presumption in favour of equally shared parental responsibility pursuant to s 65 DA of the Family Law Act 1975.  This presumption may be displaced, rendered inapplicable or found not to be appropriate in interim proceedings.  In these interim proceedings an issue of family violence is raised.  In any event, it is inappropriate in these interim proceedings to apply the presumption.  The scope of the factual dispute between the parties, the reasons for that dispute, the nature of the conflict and the basis of the conflict are inapt for resolution in these interim proceedings and, along with an inability to resolve the family violence allegations, mean that it is not appropriate to apply the presumption. 

5. In any event, for reasons I will shortly deal with, it is not in the child’s interest to have an order for equally shared parental responsibility and so even if the presumption were applied, it would be rebutted.  This will mean that the statutory pathway that applies where there is an order for equal shared parental responsibility is not applicable.

6. It is apparent that there is deep conflict between the parties. By their applications, they have proven unable to resolve the long-term issue of the child's education by means of agreement. By their applications, they anticipate inability to do so regarding particular health issues. They are patently incapable of discharging the obligations that would be imposed by s 65 DAC of the Act upon parents who are subject to an order for equally shared parental responsibility. Those obligations require parents to consult and make an effort, genuinely, to come to a resolution in relation to long-term issues. Despite the Mother pointing to her recording of the Father in documents seeking to enrol the child in schools, there is no sufficient reason that I should expect that the parties have the capacity to cooperate in relation to long-term decision-making. The very nature of the conflict between them, and subject matter of that conflict, indicates that it is not so.

7. One major consideration that will then impact upon the allocation of parental responsibility, in terms of what is in the child's best interests, will relate to the structure of her living arrangements.  Those living arrangements are to be considered without reference to the pathway set out in the legislation, it having been determined already that equally shared parental responsibility is not in the child's best interests.

8. For the Mother’s case the key s 60CC considerations, insofar as they related to matters arising after the first interim determination and as far as they could be discerned, related to a superior parenting capacity on her part (s 60CC(3)(b) and (f)), the characteristics of the child (s 60CC(3)(g)) and the practical difficulties relating to time with the child occasioned by the Mother’s employment (s 60CC(3)(e)).  The nature of the Mother’s material meant that it was difficult to drill down to the foundations of her case, but these matters appeared to best reflect those that were emphasised by the Mother.

1. The Maternal Grandmother’s case closely echoed the Mother’s.

2. To the extent that the question of risk was raised by the Mother, the strength of any such argument was removed given the position taken by the Mother in relation to the sharing of time. The Mother’s primary position that there be an 8:6 split between her and the Father with the child was inconsistent with the idea that the Father presents a significant risk to the child.

3. For the Father’s case, the key s 60CC considerations involved the conflict between the parties and the hostility he says is displayed by the Mother toward him (s 60CC(3)(i) and (o)), the practical arrangements that become necessary because the child is starting school (s 60CC(3)(o)), and the capacity of the Orders to support meaningful relationship with the Mother (s 60CC(2)(a)).

4. The ICL gave some emphasis to the Mother’s lack of insight in relation to pursuit of psychological testing for the child (s 60CC(3)(f)).

Who should the child live with?

1. The context of the consideration as to where the child should live is that there have been repeated consent and contested interim determinations as to what is in the child's best interests.  Each have determined that she would primarily live with her Father.  The question that arises is whether the circumstances that have arisen since the commencement of interim proceedings, and through that process of those hearings, now indicate that such an arrangement is no longer in the child's best interests.

2. Attempting to understand the Mother's case was rendered difficult by her material, which was replete with submissions, assertions, generalisations and which concentrated on matters predating the initial interim orders.  This made it practically difficult to discern what has occurred, on her account, since the commencement of interim proceedings, such as to indicate that there should be a change so that the child would live primarily with her.  The Mother’s submissions focussed on the question of the allocation of parental responsibility, specifically regarding education and health. 

3. As noted, the Mother provided a partial Case Outline document (29 pages in length).  This concentrated on one of the areas of contest that has arisen during the proceedings, which is the Mother's capacity both in terms of her mental health and physical abilities to care for the child.  The Mother tendered and emphasised a number of documents pertaining to her health and mental health, and to assertions that the Father had misrepresented her condition. 

4. These included a document from her general practitioner, Dr G, from 9 September 2017 which indicated no concerns as to the Mother's capacity to care for the children, and a prior report of domestic violence (including bruising) made by the Mother. 

5. They also included a document provided by Dr H, a rheumatologist, of 5 October 2017 that indicated that the Mother would be able to care for her children despite her health issues. 

6. Her documents included a letter from Ms J, a therapist/counsellor of 30 October 2018 that indicated prior reports on the Mother's part of family violence.  She apparently saw the Mother with the children and asserted that the Mother managed her emotional response well.

7. The documents included one by a consultant psychiatrist, Dr K, of 25 October 2017, which noted improved mental health on the part of the Mother following separation.  It noted that the Mother was medicated and that from 2014 the Mother had made complaints about family violence.  It also noted the Mother's difficulty in engaging with Dr K, other than for pharmacotherapy and crisis management.  Her records in 2015 contain an allegation of financial abuse by the Father and noted a diagnosis of borderline personality disorder/complex post-traumatic stress disorder in the Mother, along with episodes of major depression/anxiety, controlled by medication, and Asperger’s (high functioning autism). 

8. Dr K noted that the Mother was able to provide for children's needs, but would require support.  She noted that her assessment was limited to the Mother's description and that she had not seen her interact with the children for some time.  Dr K further noted that she had not seen particularly concerning behaviours “but found it quite very hard” to assess the Mother's parenting.  She recommended that a parenting assessment be undertaken both for the Mother and for the Father.  She further agreed that the report provided by Ms L (an earlier single expert) was correct in its assessment of Dr K’ notes.  Dr K noted that the reference in Ms L's report to a hospital admission following an attempt at suicide in 2016 by the Mother was not a matter that she was aware of and that it was significant, if true, and if untrue, was also significant.  I note that this admission is a matter disputed by the Mother.

9. The Mother’s exhibited items contained correspondence sent by the Father to his solicitor and to Ms M from CYPS.  It was alleged that the Father had lied in this correspondence to Ms M about what had been said by Dr K.  After carefully reading Dr K’s report and the correspondence to Ms M, it is unclear what lies are said to be in relation to the Father's response to Dr K.  The Father had asserted a lack of material being provided to Dr K and I am unable to assess the veracity of this allegation, at this stage in the proceedings. 

10. The most recent Single Expert, Ms F, made adverse comment regarding the Mother’s capacity as a parent.  The assessment by Ms F is seriously contested in the proceedings.  I note the material provided by the Mother would conflict with Ms F’ queries as to the Mother's capacity.  The question of incapacity on the part of the Mother is not something able to be resolved in an interim hearing.

11. The Mother in her submissions and affidavit alleged that the Father has mental health problems.  It was unclear what, if any, outworking there has been of these alleged mental health problems in respect of the child, particularly during the duration of the interim orders.  To the extent that there is an assertion of deficit, it has only been stated in the most generalised of terms, without identification of incidents or examples by which such an assertion could be assessed. 

12. In any event it weight should not be given to such matter, given that the Mother's response as to division of time provides for the Father to spend three nights per week with the child.  This does not appear to speak to a cogent risk on the part of the Father.

13. What is apparent is a deep hostility on the part of the Mother towards the Father.  There is an inability for the two to work together.  This leads to a conclusion that there is a high risk that any need to co-operate between these parents will result in conflict.  Such conflict becomes part of a dangerous cocktail when mixed with the mutual Family Violence Orders in place.  Because of the structure of the Family Violence Orders they will not be inconsistent with Family Court orders as each contains conditions that make them subject to family law orders. However, requiring cooperation sets the stage for conflict between the parties.  Where this conflict occurs in the context of mutual domestic violence orders it forms a recipe for poor consequences, such as the involvement of police and the prospect of future criminal proceedings against the parents. 

14. It is difficult to escape the notion that the more substantially care is shared between the parties, the greater the need for cooperation in order for such arrangements to function in the child's best interests.  At the same time, the incapacity to cooperate is likely to result in conflict which is not in the child's best interests. 

15. The current orders provide for two overnights and two evenings per fortnight for the child with the Mother.  The Father's proposal provides for the child to spend time with her Mother from 3pm Friday to 3pm Saturday each week.  The context for this change is that the child is about to start school, which will mean that Wednesdays from 1:30pm to 5pm will no longer work.  That is, it is required that there be a change.  At the same time, some changes are called for as the Mother alleges that handover on schooldays prejudices her employment and risks her employment being terminated.  That is, if the Mother is to collect the child after school, or deliver her before school (such as would avoid face-to-face contact between the parties), she will have to leave her work or arrive at her work at hours which will result in loss of her employment.

16. While I asked the Mother about the option of having a full weekend from Friday after school to Monday before school, the mother resisted on the basis that this would result in the loss of her employment.  I note that the orders sought by the Mother avoid weekday pickup or drop-off on her part. 

17. What the circumstances mean is that there is some change called for, as the child is about to attend school and the current orders provide difficult work circumstances for the mother.

18. I note that both parties primarily seek orders that result in neither having a full weekend.  This is generally an undesirable effect but perhaps the best way to facilitate the best relationships possible under the circumstances of this case.

19. In the context of the previous determinations, and the issues raised by the parties I am unable to identify a sufficient basis to show that a change in primary residence is in the child's best interests.  I am able to be satisfied that there is material that indicates that it is against the child’s best interests that there be a greater sharing or cooperation involving the child.

20. Accordingly, I will make orders for the Mother to have time with the child each weekend.  However this will be structured to accommodate her work/transport issues.  Unfortunately, this involves Saturday and Sunday changeovers each week rather than the more ideal arrangement of handover happening at school.  While this interaction between the parties is undesirable, it is supportive of the child spending good time with her Mother and enjoying the benefits of that relationship. 

21. How handover is to be achieved is a vexed matter.  The Father seeks that happen through the supervised regime of C Group which will involve the parties in significant travel.  The ICL seeks the use of a third party.  The Mother seeks that the handovers happen at a local club, a local McDonald's, or the local police station.  Orders will be made that will permit the parties to use a third party to effect change over if that third party is nominated in writing.  In the absence of the nomination of a third party then, as undesirable as it may be, changeovers will happen at the local police station.  This is superior to the complexities that may be involved with changeovers at C Group. 

Parental responsibility for schooling

1. Moving to the question of parental responsibility, it is apparent that there is an inability to cooperate regarding schooling. 

2. Both parties addressed the issue of the child’s schooling in their material, and exhibits were tendered in support of their applications.

3. At several points between paragraph 197 and 224 of her Affidavit of 6 December, the Mother very strongly expressed the view that N School is both inappropriate for the child and prohibitively difficult for her to travel to for the purposes of school drop-off and pickup.  The Mother tendered an exhibit (W1) which contains a series of assertions about the approximate travel time from her home to her work via each of the seven different schools she says the child could attend. These assertions are supported by screenshots of directions from Google maps which provide estimated travel times although the Mother asserts that these are under estimations of travel time that do not take into account traffic or various “choke points” if she were to drive to work via N School.

4. The Google map estimated travel times in Exhibit W1 indicate that N School is the school with the least travel time for the Father by a small margin, whereas it would attract the longest travel time for the Mother if she were dropping the child off on her way to work.

5. The Father responds to the Mother’s claims in his Affidavit of 18 October 2018 by asserting that N School is the most appropriate for the child, and is his area’s closest catchment school.  His assertion that N School is the closest and most convenient school for the child to attend in relation to his home is supported by Exhibit W1. The Father goes on to identify that the child is in his primary care and he works full-time, so school pickup and drop-off are not relevant considerations for the Mother.

6. Parental responsibility in relation to this aspect should rest with the Father as the person primarily responsible for the practical care arrangements for the child.  This will mean that he will be able to resolve the question of the school on the basis of the daily care arrangements he will need to put in a place for the child.  This order will also mean that the subsidiary orders that the parties identified in relation to making orders in respect of a particular school will not be necessary, as it will be within the authority of the Father to enrol the child at school. 

7. The Mother made objection to the Father's preferred school, partly on the basis that she saw the school as inferior, but primarily directed to the geographical and travel implications and the interplay of such with her work and travel to and from work.  Providing that the handovers to occur on the weekend avoids this difficulty and as such the Father should not be restricted, in the exercise of his parental responsibility, from choosing the particular school that the Mother resisted.

Parental Responsibility for Health Issues 

1. In relation to parental responsibility for health issues, the Mother's case was argued, in large part, based upon her expertise as a health professional.  She was critical of the Father regarding his lack of provision for the child in relation to asthma.  That is not a criticism that I am able to resolve this stage of the interim proceedings.  She was critical of the Father only having a background as a technician, which meant that he was less knowledgeable than her in relation to health issues. 

2. The focus of the Mother's concerns rested upon the need to assess (rather than treat) the child in relation to autism.  The Father's position opposes the Mother either being able to take the child to a psychiatrist, psychologist or counsellor or having parental responsibility regarding medical matters, in the context of her hostility toward him. It was also in the context of the Mother’s prior approach to exposing the child to health professionals, and the Mother’s representations as to such.

3. On this issue the Father relied upon a number of documents containing correspondence with the Mother at exhibits H4, H7 and H8. 

4. Exhibit H4 was correspondence between the Mother and the ICL in October 2018 regarding the Mother taking the child to see a psychiatrist.  As noted by the Mother, the ICL wrongly advised her that she needed the Father's consent to do so.  The orders then operative did not carry that obligation.  The Mother's correspondence about this matter was lengthy but I am not able to construe it as being unreasonable or revealing a poor attitude.  It was lengthy, careful and reasoned.  The Mother in expressed in that correspondence that the Father “needs intense psychiatric treatment” and that he has “serious parenting deficiencies” and “severe mental health problems”.  While this potentially displays hostility towards the Father by the Mother it does not form a basis to assist to resolve parental responsibility in any particular manner.  Exhibit H7, again correspondence from October 2018, is perhaps voiced with greater aggression and again lengthy, but does not resolve the issue of parental responsibility. 

5. The nature and tone of the correspondence is reflective of the likelihood that it will be a subject of conflict.  It is a conflict for which the child is squarely in the middle.  This reinforces the notion that the sharing of parental responsibility is not in the child’s interest. 

6. The Father pointed to one further matter of importance regarding responsibility for the child’s health.  He says that the Mother misrepresented health issues concerning the child in relation to autism.  This criticism is made good.  In the context of the Mother taking the child to her psychiatrist so that the psychiatrist could comment on her parenting (in itself at troublesome approach by involving the child with her psychiatrist), the Mother wrote to the ICL by exhibit H4.  This correspondence was sent on 11 October 2018 at 2am.  At page 14 she stated she had taken the child to a psychiatrist and said “the psychiatrist is a developmental disorder specialist and has diagnosed the child very definitely as having autism spectrum condition.  He has not as yet written a formal report…"

7. In contrast, the Mother's affidavit paragraphs 211 and 212 indicated that there was no formal diagnosis and that what the psychiatrist had said was merely, “my aspie senses are tingling."  He recommended formal assessment and indicated that he was unable to provide a full formal diagnosis, but rather what had been provided was an informal “gut feeling”.  The Mother protested that these differing statements were not inconsistent, as the diagnosis was an informal one as opposed to a formal one.  However, at the very least, the letter to the ICL was highly misleading on a matter of grave importance to the Mother regarding the assessment of the child as having autism.

8. The manipulation of information given to the ICL regarding the child’s health means that, notwithstanding the Mother’s health qualifications, the Father is better placed to make decisions regarding the child’s health.  An Order will be made that allocates parental responsibility to the Father in relation to this matter.

9. It also means there should be restraint on the Mother taking the child, without the consent of the Father, to a psychiatrist, psychologist or counsellor. 

Parental responsibility generally

1. Having determined that it is not in the child’s interests to have her parents share parental responsibility, and that it is appropriate that the Father have responsibility regarding health and education, it is appropriate that the father have sole parental responsibility.

proposed restraints

1. As for the restraints regarding discussing the proceedings, I note that there is currently a non-denigration order that is generally expressed and operative.  The Father now seeks the Mother not to discuss the proceedings with any person other than for the purposes of professional therapy.  The Mother seeks the Father not discuss her mental health, information from mental records, family report, her criminal record or anything about proceedings with his family, friends, or an employee of their joint employer.  The Mother seeks a restraint on the Father of the Father restraining discussions of abuse by the Father with the Mother, X and the child. 

2. In order to make a restraint it must be justified as being in the child's well-being.  I note that subpoenaed material cannot be used outside of proceedings without the leave of the Court and that it constitutes a potential contempt of court, if it is.  This means there is no utility in the orders relating to the subpoenaed material. 

3. Aside from this the need for a further restraint on communication of the proceedings does not appear to be necessary.

4. While raising matters with third parties may harm the reputation of the parties, restraint also deprives the parties from being able to properly use support from third parties.  If they cannot discuss what is going on with third parties it is difficult to envisage how they will obtain support.  The two-edged nature of such an injunction tells against its appropriateness. 

5. It is different however in relation to what might be said to or in the presence of the children.  It is not in the child's or X's interests to discuss proceedings with either of them, or to say negative things about the other parent in their presence or to suffer or allow third parties to do so.  A restraint will be imposed in relation to this.

1. The application by the Mother for Orders to restrain the Father from restraining herself, the child and X in various ways is answered by the terms of the restraints given in the Orders.

2. No restraint will be made regarding haircuts for the child.  Haircuts, in this case, are an aspect of the day to day care for the child and a sufficient reason for injunctive relief is not made out.

3. The Mother seeks orders for mediation.  I can at present see no utility in mediation given the parties’ relationship. 

Costs

1. Each party sought costs.  I note that no party was wholly unsuccessful and further that the proceedings were necessary because there has been a change in circumstances caused by the child's commencing school next year.  I am unable to observe another basis to depart from the default position set out in s 117 that each party bear his or her own costs, and decline to make an order as to costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 January 2019

Associate:

Date:  24 January 2019