BRANDON & EVANS
[2015] FCCA 20
•13 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRANDON & EVANS | [2015] FCCA 20 |
| Catchwords: FAMILY LAW – Parenting – presumption of equal shared parental responsibility – whether rebutted notwithstanding some agreement and consideration of ss.65DAA and 60CC – lack of trust and respect of mother’s role by father – limited communication between parents – presumption rebutted – best interests of child. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 |
| Applicant: | MR BRANDON |
| Respondent: | MS EVANS |
| File Number: | TVC 167 of 2011 |
| Judgment of: | Judge Coker |
| Hearing date: | 13 November 2014 |
| Date of Last Submission: | 13 November 2014 |
| Delivered at: | Townsville |
| Delivered on: | 13 January 2015 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS BY CONSENT OR AS OTHERWISE DETERMINED BY THE COURT
That the interim orders dated 20 May 2013 be discharged.
Parental Responsibility
That the Mother and Father have equal shared parental responsibility for the major long term issues of the child, X (“the child”) born (omitted) 2006, including but not limited to:
(a)The child’s religious and cultural upbringing;
(b)The child’s name; and
(c)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That the Mother have sole parental responsibility for the long term health and education issues of the child, X born (omitted) 2006, provided that when a decision is to be made:
(a)The Mother informs the Father of the decision to be made;
(b)The Father has the opportunity to give his views; and
(c)The Mother takes the Father’s views into account when making her final decision.
That notwithstanding Order 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child while he is living with or spending time with her; and
(b)The Father shall be responsible for the day-do-day care, welfare and development of the child whilst he is living with or spending time with him.
Living arrangements for the child
That the child live with the Mother.
That on the basis the Father works a week on, week off roster, the child spend time with the Father as follows:
(a)During school teaching periods:
(i)On the week that the Father is on his ‘week home’ period from 9.00am Wednesday until 9.00am the following Tuesday, and if the Tuesday is a non-school day then the handover to occur on the following teaching day.
(b)During Queensland Gazetted school holidays:
(i)For the entire duration of the Term 2 school holidays in even numbered years;
(ii)For the entire duration of the Term 1 & Term 3 school holidays in odd numbered years;
(iii)For the first half of the Term 4 (Christmas holidays) commencing in even numbered years;
(iv)For the second half of the Term 4 (Christmas holidays) commencing in odd numbered years.
That for the purpose of the child spending time with the Father pursuant to Order 7(a)(i) herein, the Father provide to the Mother 6 weeks’ notice of any change to his roster, which would change the time the child spends with him but that if there is less than 6 weeks’ notice the current arrangements would continue up until 6 weeks to allow the Mother time to accommodate the Father’s roster.
That for the purpose of defining the gazetted school holiday period the following apply:
(a)The whole of the gazetted Term 1, 2, 3 period shall be from 3.00pm on the last day of school until 9.00am on the first teaching day of the next school term;
(b)The first half of the gazetted Term 4 (Christmas) school holiday period commences from 3.00pm on the last day of school and concludes 5.00pm on the Sunday falling approximately 23 days later.
That providing the parents and the child are in the same locality:
(a)That the parent not having the child in their care, spend time and communicate with the child as follows:
(i)From 3.00pm Christmas Day until 12.00pm Boxing Day; and
(ii)On the child’s birthday from 2.00pm to 6.00pm if a non-school day and if a school day by telephone.
That the child spend time with the Mother on Mother’s Day and the Father on Father’s Day from 9.00am until the commencement of school the following day.
That all changeovers take place at the child’s school if a school day, or at the residence of the child’s maternal grandmother if a non-school day.
Telephone Contact and Communication
That each parent have telephone communication with the child when he is not in their care as follows:
(a)Each Sunday between 7.300pm and 8.00pm;
(b)Between 7.30pm and 8.00pm on the following special occasions:
(i)Christmas Eve;
(ii)Christmas Day;
(iii)Easter Sunday;
(iv)The child’s birthday;
(v)The non-resident parent’s birthday;
(c)At all times the child wishes to do so.
That for the purposes of telephone communication pursuant to Order 13 herein, the parent having the child in their care to be responsible for making the call to the other parent and ensure that the child is available to make the call in a quiet and private environment.
That each parent provide the other with their respective mobile and landline contact numbers, and advise the other parent within 48 hours of any changes to the same.
The parents will communicate via email on a weekly basis to inform each other of the issues or important information relating to the child, with such communication only to be used for matters relating to the care of the child.
Notwithstanding Order 16 of these Orders, the parents are permitted to use alternate methods of communication to appropriately communicate matters of urgency.
Health and wellbeing
That excepting emergency, or written agreement, each parent be restrained form changing the child’s current health care arrangements including appointing a new or additional
(a)Counsellor;
(b)Physiologist;
(c)Medical doctor; or
(d)Dentist.
Those on occasions where alternate health care is required due to emergency, the responsible parent shall inform the other of the outcome of any health assessment, and management plan for any health issues that arise including and not limited to medication.
That both parents be at liberty to be present at any medical appointments in relation to the child regardless of when that appointment is and the parents shall give the other reasonable notice of any such appointments where practicable.
That the child recommences counselling with psychologist Dr T, and a treatment plan developed in consultation with both parents.
That both parents share equal responsibility for the facilitation of the child’s counselling appointments, including sharing the cost of out of pocket expenses incurred.
That significant out of pocket expenses incurred for any medical, or psychological treatment of the child by a health practitioner, other than the GP, be shared equally between both parties, including but not limited to any costs associated with counselling, optometry, podiatry and dentistry. That these Orders shall act as authority to the child’s treating medical practitioner/s to provide both parents (at their expense) and medical information and documents provided to parents.
Education
That the child shall remain at (omitted) State School, unless otherwise determined by the Mother in accordance with Order 4.
These orders shall constitute an authority to the child’s school to provide to both parents:
(a)Copies of all school reports, newsletters, photographs (at their expense) and any other document associated with the child’s schooling or extra-curricular activities;
(b)All information that either parent may from time to time seek in relation to the child’s schooling or extra-curricular activities.
That each parent is to be responsible for ensuring they supply adequate uniforms, school equipment or other items that may be required for the child whilst in their care.
The purchase of school equipment on the book resource list at the start of each year will be the responsibility of the parent assuming care of the child on the first day of school.
That the cost of school fees, and any school based extra-curricular activities be divided equally between both parents. In the event that attendance to private high school is decided, the cost of this education, uniforms and all additional expenses are to be shared equally between both parents.
Extra-curricular activities
That in relation to the child’s enrolment and participating in any extra-curricular activities:
(a)The parents will consult and make all reasonable efforts to reach an agreement including proper consideration of any express wish of the child;
(b)If unable to reach agreement, the Mother be responsible for the final decision of enrolment into these activities.
That the parents share equally the costs associated with the child’s involvement in all extra-curricular activities.
General provisions
That each party be restrained from denigrating the other parent or the other parent’s friends or family in the presence of the child or from allowing the child to remain in the presence of any other person acting in such a way.
That each party be restrained from discussing family law issues with the child, or allowing the child to remain in the presence or hearing of any other person discussing the parties’ family law issues.
That neither parent shall ask the child to pass messages on to the other parent. Each parent is to behave respectfully towards, and communicate respectfully with the other parent.
The parents may travel within Australia, during such time that the child lives with that parent, pursuant to these orders, provided that where such trip exceeds forty-eight hours, that the parents provide to the other parent an itinerary prior to departure. The itinerary must include:
(a)The date the child will be leaving;
(b)The date the child will be returning;
(c)Where the child will be travelling to;
(d)The mode of transport;
(e)Details of the contact number where the child can be reached; and
(f)An alternate emergency contact.
The parents may travel outside Australia, during such time that the child lives with that parent pursuant to these orders, provided there is not a Department of Foreign Affairs and Trade travel advisory notice recommending against travel to any such country and the country to be visited is a signatory to The Hague Convention, that 2 months’ notice is given to the other parent, and the parent intending to travel provides to the other parent an itinerary prior to the departure. The itinerary must include:
(a)The date the child will be leaving;
(b)The date the child will be returning;
(c)Where the child will be travelling to;
(d)The mode of transport;
(e)Details of contact number where the child can be reached; and
(f)An alternate emergency contact.
That these orders shall act as an authority for either parent to obtain a passport for the child.
IT IS NOTED that publication of this judgment under the pseudonym Brandon & Evans is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT TOWNSVILLE |
TVC 167 of 2011
| MR BRANDON |
Applicant
And
| MS EVANS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 27 March 2013, Mr Brandon, whom I shall refer to as the father, filed an application in this Court seeking detailed orders with regard to the parenting of the child, X. X was born on (omitted) 2006 and is, therefore, eight years of age.
The respondent to the application is Ms Evans, whom I shall refer to as the mother.
THE APPLICATIONS
The father’s application sought orders with regard to equal shared parental responsibility, week-about living arrangements, specific conditions in relation to holidays, including, particularly, the lengthy Christmas school holiday period and also sought to address issues with regard to Easter, particularly if it did not accord with the end of term 1 school holiday period. Additionally, it detailed proposals with regard to special days, changeovers, travel, telephone communication and schooling and extracurricular activities. Medical issues were also sought to be addressed. I make reference to those two particular issues of schooling and extracurricular activities and medical issues because they loomed large in relation to the final determination of this matter.
The mother filed her response in relation to the proceedings on 29 April 2013. However, she subsequently filed an amended response on 21 October 2014, just prior to hearing and, even closer to the time for hearing, filed a further amended response in which she slightly altered the position that she proposed to be taken with regard to the parenting of X. The mother’s final position in relation to the matter was detailed in her case outline, which was filed on 11 November 2014. There the mother detailed what she understood from exchanges between her and the father were agreed arrangements in relation to parenting and what issues remained outstanding.
At the commencement of the hearing, I confirmed with the parties what was agreed in relation to arrangements with regard to parenting and noted that they included:
·The discharge of the orders previously made in May 2013;
·Some issues in relation to equal shared parental responsibility, though not all;
·Each parent having sole parental responsibility for day to day care when X was in their care;
·That the child live with the mother and spend time with the father during the gazetted school terms for a period of six nights which coincided with the father’s rostered work arrangements, he being involved in work in the mining industry;
·Additionally, there was agreement in relation to the gazetted school holiday periods, which had been the subject of dispute for some considerable time but which was resolved sensibly between the parties in the day or so leading up to hearing;
·Definitions of gazetted school holiday periods and communication between each parent and the child when the child was not in their care;
·The parents were to be responsible for the payment of extracurricular activity expenses that might be associated with the attendance of the child and any specifically agreed extracurricular activity; and
·Various injunctions and authorisations regarding non-denigration and discussion of family law issues with or in the presence of the child or using the child for the purposes of passing messages between the parents, as well as agreement for travel within Australia.
THE DISPUTE
What remained in dispute, therefore and what constituted the entirety of the hearing before me, related to the contested issues in relation to parental responsibility. In relation to parental responsibility, as I indicated, the mother and the father agreed for equal shared parental responsibility in relation to aspects of the child’s upbringing, including decisions with regard to religious and cultural matters, the child’s name and changes to the child’s living arrangements that might, in some way, affect the child’s opportunity to spend time with each parent.
What was not agreed, however, were issues in relation to matters relating to health and education, as well as issues with regard to travel overseas. There had been some contention between the parties about matters in relation to the time of telephone calls, but that has been resolved. It also became clear that there was still no agreement in relation to matters with regard to extracurricular activities and, of course, overseas travel, which was opposed by the father, until the child attained the age of 14 years.
The mother’s proposed orders in relation to those contested areas were, therefore:
(1)That the mother have sole parental responsibility for the long-term decisions in relation to the health and education of the child, provided, however, that the mother informs the father of any decision required to be made, takes the opportunity to consider the father’s views and takes such views into account when a final decision is made;
(2)That the father provide the mother with at least six weeks notice of changes to his roster, which would change the time that the child spends with the father pursuant to agreed orders, and if there is less than six weeks notice, then the current arrangements would continue for a period of six weeks, so as to allow the mother to reorganise her own affairs;
(3)There was a dispute in relation to Mother’s Day and Father’s Day and the times that such arrangements would commence or conclude, particularly in circumstances where the child would otherwise be in the care of the other parent. However, that was not argued before me and I would consider that the parties, generally, had reached an amicable acceptance of what was appropriate, in relation to those arrangements.
(4)Decisions in relation to health and allied health treatment, there being significant contest between the parents in relation to issues with regard to X’s mental health. There is a diagnosis of ADHD and, at least, some indicators of Tourette’s Syndrome, but the father was not accepting of such a diagnosis and, at the very least, sought now to have arrangements made for a second opinion to be obtained.
(5)There was also significant dispute between the parties in relation to the costs associated with healthcare. The mother’s orders proposed in relation to issues with regard to healthcare were extensive and were detailed in her case outline as proposed orders 18 through 23.
(6)Dispute as to educational decisions. There appears to be significant dispute between the parties with regard the child’s continued attendance at the present time at the (omitted) State School. He is just completing Year 3 and has at least, three years of primary education to go before high school is commenced. The mother seeks continuity, she says, and a continuation of the child’s attendance at (omitted) State School. The father says that there have been a number of issues, including difficulties that he experiences in obtaining information from the school, such that issues of the wellbeing and safety of the child, combined with those communication issues, lead him to assess that a number of other schools may be able to provide more appropriately for the child’s special needs.
(7)Dispute also arose in relation to the responsibility for ensuring that each parent supply adequate uniform, school equipment or other items. The father noted that he pays child support in the vicinity of $170 per month and, therefore, that those payments should be utilised toward the child’s expenses noting, particularly, that in attending a state school, as is currently the case, the fees associated with attendance are only, approximately, $50 per annum.
(8)There was also dispute in relation to school equipment and responsibility for obtaining books and other items, which might be detailed in any school attended by the child’s resource requirements. The father, again, was of the view that his contribution by way of child support, should be utilised in that regard and he noted that if, in fact, his employment was not settled and he became unemployed, then if he were to be receiving child support from the mother, be it at whatever amount from the minimum to a very significant amount, he would be responsible for all expenditure in relation to the child’s needs.
(9)A controversial issue arose in relation to the child’s enrolment and participation in extracurricular activities, there being continued dispute between the parties – both in relation to the activities that might be arranged for X to participate in, but perhaps more particularly, with regard to each parents’ capacity to facilitate the child’s attendance, not only at sporting days but also at training days.
(10)Finally, there was dispute in relation to overseas travel, the father being concerned about the child’s capacity to adapt to significant changes in country, culture, language and the like and, therefore, indicating that there should be a preclusion on overseas travel upon both parents, at least until the child obtained the age of 14 years.
At the commencement of the hearing of this matter, I indicated that I had hoped, that with there being advice as to significant agreement having been reached between the parties, that it would not be a long or complicated determination required, in relation to the proceedings. I could not have been more wrong. The parties only appeared as witnesses on their own behalf, though the father indicated at the eleventh hour, in fact during submissions, that there were other witnesses that he would have hoped could have been called.
When advised that there was the opportunity for that to occur, he seemed somewhat surprised. He also expressed similar concerns about not being able to challenge the family report which had been prepared in this matter, and in fact updated by family consultant Ms O. The first report being dated August 2013, and a further updated report being dated 25 April 2014. In that regard, the father was reminded that the matter was mentioned for confirmation of its readiness for hearing approximately two weeks before the trial was to proceed, and specific notice was given that if Ms O was required for cross-examination, then notice was to be given in accordance with the directions contained within the document releasing the report to the parties.
I must be frank and say that the father’s explanation of not understanding what might have been required, or not being a solicitor and therefore a little out of his depth troubled me, because the general excuse that was used by the father in relation to many of the matters that were before the court, was that he was just a simple man, and more often than not I thought unfortunately played the role of the victim. I shall come to that a little later in these reasons.
THE FAMILY REPORT
The report of Ms O was informative, though the first report, which is admittedly over a year old, identified a number of issues in relation to the parents, and this little boy. Under the heading, “The child and his relationships” it was noted in the first report that there were concerns arising from X’s behaviour which gave cause for Ms O to consider that there be some real indicators of ADHD as well as other possible difficulties experienced by the child. At paragraph 34, Ms O noted:
X was interviewed and first observed at his father’s house. X is small in stature, loud and very physically active. Throughout his observation and interview he demonstrated a persistent pattern of inattention, poor inhibition, hyperactivity and impulsivity. These behaviours were greater than is normally observed in children at a comparable level of development. In addition he showed a tendency to be oppositionally defiant towards his father, Ms H and the report writer. He was most responsive and less defiant in interaction with his father. Initially X refused to talk to the report writer despite a lot of cajoling from his father and Ms H but then changed his mind and confidently took the report writer into his room to see his toys.
Ms O then goes on in that same paragraph to note that her observations included a conclusion that X was highly egocentric and his behaviour was erratic and disobedient. She noted again in that same paragraph that he was hyperactive and demonstrated excessive vocal and motor levels. He ignored his father and his father’s partner Ms H, and requests to stop jumping over couches, as were all other requests to sit down and talk to the reporter, appear to have fallen on deaf ears.
Ms O goes on to note in paragraph 35:
X did not complete any of the play-based assessment activities. He was highly distractible, restless, fidgety, careless in the work he did do, blurted out answers, interrupted instructions, talked excessively and could not follow through on tasks. Moreover he was highly oppositional and defiant throughout his interview.
Ms O noted in particular that at the father’s residence, his responses in relation to his family:
…demonstrated a disrespect for his mother and Ms H, but he did not denigrate his father.
Ms O noted that he drew pictures of his mother that ridiculed her, and perceived Ms H as “inconsequential to his family”. He took delight in ridiculing Ms H, and wanted to show her how he had depicted her. Ms O went on then in paragraph 37 to note her observations when X spent time with his mother. She noted in particular that he appeared very similar in his behaviours with his mother to what was the case in his father’s care, noting that:
He was oppositional in response to all his mother’s requests unless they involved doing something he liked or wanted.
Ms O noted that the mother had raised with her the difficulties that she had in managing X’s behaviour, and Ms O observed that the mother’s responses to X’s behaviour did indicate that she grappled to manage his behaviours and coping with these behaviours. It was clear that Ms O noted serious concerns in relation to the child and his behaviour, concluding at the end of paragraph 37 with the following sentence:
X consistently displayed a pattern of behaviour congruent with many of the features of both ADHD and Oppositional Defiant Disorder.
Under the heading “Evaluation”, Ms O then went on specifically to address the issues that are now before this court. At paragraphs 38 through 42, she speaks about the central issue of conflict between the parents, relating to the child’s behaviour, and in particular, the different assessments that each parent has of the child. She noted in particular at paragraph 38, the following:
The greatest difference was in how each parent judges and responds to X’s behaviour. Given the preliminary psychological report of Dr T dated 17 February 2012 and his observed behaviour for this assessment, there is little doubt X fits a diagnosis for both ADHD and Oppositional Defiant Disorder.
She goes on to note that the father appears to:
…selectively process or dismiss information about X. He dismisses Dr T’s assessment of X, rationalising his dismissal because he suspects Dr T is biased towards Ms Evans’ perspectives about X.
Ms O also noted that the father, at least according to the mother, disregards the medical advice given by X’s doctor, and that generally, the father does not hold X in any way accountable for his behaviours, or the consequences of that, particularly in relation to his peer interaction. At paragraph 44, Ms O brings together the various concerns that she says arise in relation to this matter and to the parties’ capacities to work together. She says:
For collaboration to occur for X’s sake not only will Mr Brandon need to resolve the issues preventing him from accepting his son’s status but the parents will need to challenge the status quo between them in terms of their communication. The parents, agreed in their Family Report interviews, the conflict between them has escalated and consequently their ability to communicate over issues of parental responsibility has deteriorated. Mr Brandon’s example of the clash between sports each parent enrolled X in and the negative effect it is having on X is evidence enough of this. In light of the above it appears the best course of action the parents could take to better manage and contain X’s behaviour and academic functioning is to cooperate with his school and specialist providers on a psycho-educational program for him rather than change his school.
Ms O’s recommendations then go on to note, that if this can occur, then equal shared parental responsibility should continue, and that there should be arrangements with regard to continued specialist treatment upon an equal shared parenting arrangement, as well as the child’s continued attendance at the (omitted) State School.
The father contested much of what was raised by Ms O in the first report, though he indicated in evidence that he assumed that because a second report had been commissioned, any contents or matters raised in that first report would not be of any consequence to the court. Of course, that is clearly not the case, and most obviously would not be the case when there were observations done some eight or ten months after the first observations, and there were continuing concerns that were noted.
At page 2 of the second report, Ms O identified the issues in dispute and other matters as assessed by her as being relevant in relation to the circumstances with regard to this little boy. She noted them under five dot points which are as follows:
·Which secondary school X should attend.\
·The ongoing conflict between the parents and inability to make neutral decisions related to their parenting responsibilities for X.
·The capacity of each of the parents to foster a relationship between the child and the other parent, and whether the parents should continue to share parental responsibility for X.
·X’s parenting arrangements over school holidays.
·Parenting arrangements in X’s best interest.
Thereafter, Ms O in a more abridged manner dealt with issues in relation to each of the parents. It is noteworthy, particularly in light of the argument now before the court, that Ms O indicated in paragraph 6 of her second report as follows:
Mr Brandon now thinks there is probably no school in (omitted) that has the capacity to cope with X’s special needs, so he is open to talking about a range of schools. He identified (omitted) as the school he is most interested in. He reiterated several times he is very keen to talk with Ms Evans about X’s secondary schooling and is frustrated because he emails her frequently about the issue but she never replies.
Interestingly, Ms O noted at paragraph 11 as follows:
Mr Brandon conceded he accepts Dr T’s psychological assessment of X but thinks X's Attention Deficit Hyperactivity Disorder (ADHD) but does not believe his behaviours should be categorized as severe. He thinks X's ADHD related behaviours are “dropping off” in his care. He agrees X had Tourette’s Disorder, as identified in Dr T’s assessment and agrees with her opinion that it is only borderline and that he will probably grow out of it.
Mr Brandon was asked about those issues by the mother in cross-examination, when she inquired about whether he accepts the child’s assessment. He answered, “I still deny the assessments” and when asked specifically what he believed now, replied with words to the effect, “X is a normal boy lacking parenting. He lacks family time and he has some behavioural problems”.
The fact is that the father, in relation to issues with regard to the child’s special needs as identified by a number of experts, fails to recognise them. However, he appears quite changeable in relation to the course to be followed, indicating previously that he accepts the report of Ms O, subject to certain clarifications or specific identifications and then indicating, before the court, that he didn’t accept the assessments. This gives rise to some concerns with regard to the father’s capacity to fully appreciate the circumstances and, more particularly, to follow through in relation to what might be required with regard to issues in relation to the child.
It’s noteworthy, also, that the father seems to suggest that the child generally is a normal boy and at least on one occasion has made reference to him being similar in behaviours to what the father was as a boy and, yet, then suggests that there are too grave concerns for the child to be allowed to travel overseas with one parent or the other, because he might become disoriented, he might become otherwise distressed or simply lost in a new place.
The father, in fact, specifically made reference to the fact that he and his partner, Ms H, on occasion “lose the child in the supermarket”, and that he would prefer to lose him for two minutes than lose him for whatever period might occur in another country. He made reference, interestingly, to the disappearance of the child Madeleine McCann and noted that no doubt the McCanns were good and caring parents, but the child was gone. I gained the impression, the father, unfortunately, would say what suited him for the purposes of justifying his particular stance on a matter, notwithstanding that there were inherent contradictions in what he said.
Ms O went on in the second report discussing the mother’s interview to indicate that X, from the mother’s perspective, appeared to have improved in his behaviours, that he was now more responsive to her and more affectionate and that there were improvements in his conversation. Ms O, however, noted that the mother was still of the view that there were difficulties in relation to communications between she and the father in relation to some issues, though there had been improvements in respect of some issues.
The mother indicated to Ms O that she felt borne down by the pressure brought to bear and that, on occasions, she also felt, perhaps with some justification, that the father manipulated the child over sports he played and then simply directed her as to what was to occur. I note that the father also indicated that he expected arrangements to be made with regard to the child’s participation in various sports, though failed to appreciate that it was a “two-way street”, noting that when he was in town for the six days he had other family commitments with his new partner and stepchildren and that he simply couldn’t be expected to drop everything. The hypocrisy of the father’s stance in relation to a number of those types of issues was almost overwhelming.
In the comments that were contained in the report with regard to the child and his relationship and interaction with both parents, Ms O noted improvements, indicating that she found him more settled than was the case in the first assessment. She noted that with the father X was settled and interacted well with both he and Ms H and that both the father and his partner were able to talk with X, who would listen and respond to requests. She noted that the dynamic between X, the father and Ms H was close and loving.
She indicated, also, as identified by the mother that interaction with her was similar and that X was clearly able to converse better with his mother as was the case with his father. Positively, she noted that from her previous observations eight or ten months before, X was not showing any hyperactive or defiant behaviours.
In relation to her evaluation in relation to this matter, she made reference back, understandably, to her first report and to the fact that some issues appeared to have been resolved. Unfortunately, at the hearing, that was not as clear because, of course, as Ms O noted, the clinical psychological assessment from Dr T, dated 20 March 2014, clarified the position with regard to X demonstrating clinically significant emotional and behavioural disturbances and the report went on to indicate that X reached the clinical criteria for Attention Deficit Hyperactivity Disorder (combined presentation) and Tourette’s Disorder.
As I have already noted, the father at the hearing did not accept that that was the case. I make reference to that specifically because it was noteworthy that upon the assumption the there was now acceptance by the father and a workable relationship between the mother and the father, particularly with regard to communication in such areas, that it would be as she described in paragraph 41 of the second report:
…an equal shared parenting arrangement, as recommended in the first report is likely to be the most advantageous parenting arrangement for X.
Ms O goes on to note that there appeared to be resolution of the issues in relation to X’s primary schooling which was clearly not the case now in relation to the matter. Notwithstanding the many positives that she then indicated were clear in relation to the matter, she noted toward the end of her evaluation in this matter the following at paragraph 48:
In conclusion it seems the core issue in this assessment is the fact the parents cannot manage their shared parental responsibility for X, because of their ongoing conflict. Mr Brandon and Ms Evans argue over each issue that arises, sometimes even when they share similar views. For example both parents want X to attend a private school for his secondary education but cannot manage to discuss the issue. Both parents are actively treating X’s asthma and have demonstrated a responsible attitude towards his health by both going to see X's GP however Mr Brandon continues to doubt Ms Evans and suggests her management of X’s asthma is negligent. Both parents’ attitudes towards the other suggests their preoccupation with the hostilities between them often takes precedence over X’s needs and a clear example of this is their recent dispute over X joining Rugby League.
Quite simply, there is no resolution in relation to such issues and there needs to be a final arrangement which addresses such matters. It becomes even more important when, as noted by Ms O at paragraph 50:
X’s vulnerable psychological status places him at a high risk of further mental health issues if his parents continue to argue over every little decision for him. Caught between his parents’ differing views X’s challenging behaviours are likely to escalate if he has to continue to juggle his parents opposing views and the negative effects of their opposition on his daily life. As X nears adolescence he is likely to develop strong feelings or feel frustration and anger about his parents continuous clashes about what he does and where he goes.
Ms O at paragraph 51 notes, and I am not sure whether it is intentional or not but in bold numbering:
Dr T’s notes that X shows clinical markers of anxiety, early indicators of depression and perfectionist traits, reinforce that his parents’ acrimony places him at greater risk than normal of developing anxiety and or depression as he enters adolescence. For this reason it is recommended the Court consider the merits of assigning sole parental responsibility to one of X’s parents.
In the recommendations, then, finally addressing all of those concerns that have been touched upon, Ms O suggests that the court give consideration to the merits of the mother having sole parental responsibility for X. As indicated, the parties are in agreement with some issues of equal shared parental responsibility though I must say that in light of the dispute with regard to the main points, health and education, I have some concerns that agreement with regard to issues in relation to name, religious upbringing and movement that might affect time with one parent or the other is simply “papering over the cracks”, in relation to the issues with regard to the parents.
I was enormously assisted by the assessments provided by Ms O in relation to this matter, because I would indicate that they almost exactly replicate my own assessments of these parties.
THE EVIDENCE
The father gave evidence in relation to this matter. He filed lengthy affidavits justifying his position and his stance and almost invariably took the position of having been the party who has been amenable and accessible, in relation to attempts to discuss arrangements. The father portrayed himself repeatedly, I thought, as a victim of the mother’s irrationality without any perception whatsoever of the difficulties that he gave rise to by his behaviours.
I was troubled, particularly, by the opening comments that were made by the father about finances. He says he pays $170.00 a month in child support, approximately $2,000 per annum, and suggests that that is the total contribution that might appropriately be made, with regard to the needs of this child, notwithstanding that there are identified needs as to health and mental health issues which require significant expenditure. The father was self-centred and the father lacked any insight into what real parenting would be, in relation to this child. I was troubled by the father’s position.
Indicators of the difficulties that the mother obviously experienced arose, for example, in relation to the schools that the father had suggested. He didn’t like the mother having the child at (omitted) State School, suggesting that there was some sort of deception or trickery on the part of the mother in having the child attend there and then subsequently buying a house in the locality. His suggestion that other schools might better meet the educational, psychological and protective needs of the child did not ring true, when it appears that there was little consistency in what he suggested.
Over the last 18 months he indicated that he had raised various schools including the (omitted) School, the (omitted) School, (omitted) School, (omitted) School, and he acknowledged that he had approached the (omitted) School but had not gone further in relation to that school.
He noted that at the present time, his assessment was that the (omitted) College “ticked all the boxes”, but I have to be frank in indicating that I am not at all satisfied that, firstly, the (omitted) School would be able to meet all of the needs in relation to this child, there being particular needs assessed but, more particularly, I am not at all satisfied that the father would continue to support the school, for example, when and if other issues arose.
The father continued to suggest that a change might assist the child, notwithstanding the expert evidence, particularly that of Dr T with regard to the need for there to be some consistency and support. The father was determined to get his own way in relation to this matter. He had, in my assessment, little appreciation of the best interests of the child but, rather, was more determined to achieve what he considered fair and right for him, rather than in any way appreciating what might be in the best interests of this little boy.
The father’s stance in relation to financial aspects and his “rights” during his six days that he returned to (omitted) from working away was in complete contrast to any appreciation of what the mother had to do to earn a living, to provide a house and accommodation for the child for more time than him and to generally ensure that the child’s needs were met. The father was self-centred in the extreme and his attitude generally troubles me.
Insofar as the mother was concerned, I have rarely, if ever, appreciated more the difficulties that a single parent has, particularly when there is ongoing disputation and conflict, arising almost invariably as a result of the behaviours of one parent directed toward the other parent. The father cross-examined the mother for some hours. He asked about daytime activities. He asked about schools and the approaches to schools. He raised concerns that the mother was not interested in the child or neglectful of the child because she could not necessarily always accommodate the child’s needs, particularly with regard, for example, to training times and the like.
The father, again, had absolutely no appreciation or intended not to give consideration to the fact that the mother was a single parent and whilst she fortunately had some assistance from her mother and father, the paternal grandparents, the primary obligation fell upon her. Only for six days out of 14 was there an obligation upon the father, and he complained that he might sometimes be put upon to act in a situation where he had clearly the opportunity to be involved in activities for the child but that they should be attended to by the mother, because she was neglectful.
I was not at all impressed with that stance nor was I impressed with the suggestion that the mother might in any way abrogate her responsibilities by delaying treatment of the needs of the child. Convenience within a household and the capacity of one parent or other to meet the needs is a factor that arises in intact families and is even more important in families where there is separation. The father failed to realise any of that or to appreciate that he could properly and should properly be involved in such activities.
The mother was asked at length about the arrangements in relation to selections of X’s doctor, dentist, psychologist, optometrist and paediatrician. The mother said that she made those decisions, noting in particular that a number of them were made when the parties were still together and there was no objection raised in relation to them. However, the father then went on to suggest that because he did not have the input that he wanted, he was to some extent a “glorified babysitter”.
The fact that the father seems to delight in ensuring that the mother would bear the financial responsibilities because of his minor contribution of $2000 or thereabouts per year, again, was of particular concern. It was even of greater concern when the mother indicated and it was not challenged, that the father maintained family medical insurance for he and his partner, her children and X, but would not provide the mother with a copy of that card, so that claims could be made by her in relation to X’s attendance.
Rather, the father seem to insist that there be two lots of family benefits with regard to medical insurance taken out, notwithstanding that the child would be covered twice and if the mother were not required to have family cover but only herself covered as would presently be the case, then there would be some reduction in the need for additional expense being met by the mother.
The father’s attitude, again, was self-centred and uncaring of the mother’s circumstances or, unfortunately, of the best interests and the welfare of the child, as he seemed through his attitude, to insist that the mother incur additional expenses which then removed valuable dollars from her household. The father was critical of the mother being able to purchase a house and travel overseas, though he reluctantly, I thought, acknowledged that in a shared household as he has with Ms H, there was probably more that was available financially within their household, than would be the case with the mother.
Again, the father’s lack of insight or, in fact, any real compassion for the mother’s circumstances troubled me. When the father asked about why the mother had rejected a suggestion that X participate in the “(omitted) Program”, a counselling forum, the mother responded at some length with words to the effect:
We had a plan in place with the guidance officer. It was arranged in April 2014. I also spoke with the guidance officer on the last occasion in June 2014 and X has confirmed that he is still doing the planned activities.
She went on specifically to note that the “(omitted) Program” was at 3 pm on a Tuesday and as X was in her care on both Tuesdays, because of the arrangements that were in place, it would simply be another call on her time and a responsibility for her, notwithstanding that the father asked about it. The father rather flippantly made reference to the fact that he had contacted the “(omitted) Program” and had suggested other times that might be able to be available but acknowledged that he had probably not advised the mother of this.
The impression I gained was that it was just yet again an imposition by the father upon the mother without any appreciation of the fact that the mother had to work and whilst there may be some flexibility in her employment, she still had to be responsible primarily for the obligations that were arising in relation to this little boy. The mother was clearly at the end of her tether and I would ask rhetorically, “How much more can this mother do?”
The mother referred to a feeling that there had been three and a half years of emotional abuse, that she had sought to consult with the father in relation to everything involving the child and that she had sought to involve him and yet he had simply been derogating of what she might have suggested and lacked any concern. Her plea was impassioned. It was a cry from the heart and I accept unconditionally that it was an absolutely genuine reflection of her frustration and disappointment in respect of the attempts to negotiate with the father, in relation to arrangements.
The fact is that the mother had done all that she possibly could in relation to arrangements. Almost invariably, the father’s position was one of conflict or dismissal of the mother’s position or simply a suggestion that if the mother proposed such an arrangement, then he would oppose it on principal. The mother’s stance in relation to the matter was impressive. She still sought to involve the father. She still sought to make arrangements which would give every opportunity for this little boy to be involved in activities with his father.
Notwithstanding that, however, the father continued to be critical of the mother and whilst abrogating his responsibilities on many occasions, continued to have no appreciation whatsoever of what might actually be the appropriate stance to follow in relation to this matter. I was enormously impressed with the mother and must say that I appreciate absolutely the frustration and difficulties that she says have arisen in relation to her relationship and exchanges with the father.
THE LAW
I turn now, as I obviously must, to the law and to the presumption that arises at law that equal shared parental responsibility is the starting point in relation to decisions to be made. I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children.
I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child. Certainly, some agreement has been able to be reached and as indicated in the reasons, parental responsibility with respect to some of the long-term issues are agreed to be shared between the parties. But what remains live are issues with regard to health and education and in many respects they are the two most significant issues in relation to decisions to be made with regard to X.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
DISCUSSION:
First and foremost, therefore, is the need to consider whether parental responsibility should be, as the father suggests, equally shared in all respects or, as the mother proposes, that it be rebutted and vest solely in her.
Section 61DA(4) provides the Court with a wide discretion in respect of what might or might not rebut the presumption of equal shared parental responsibility. It would be, in a perfect world, always appropriate that the two most important persons in a child’s life, the child’s parents, decide jointly what arrangements should be made in the best interests of the child. Here, it is clear that the parties have not been able to work together in relation to decisions to be made with regard to those fundamental issues relating to the child, his health and his education.
That is obvious, as I noted earlier in these reasons, with regard to the contested areas between the parties relating to the decisions to be made in relation to health and education when the parties cannot agree on the school that the child attends, the responsibility for fees or other school expenditure or, in fact, generally issues with regard to treatment of the child.
The parties had the opportunity to deal with such issues. The first family report provided in this matter by Ms O suggested equal shared parental responsibility and joint decision-making processes. That has not occurred, and as exampled throughout these reasons, the parties have remained in dispute with there being continuing distrust and accusations by one or the other of negligent parenting. As noted, Ms O observed that the parents’ “pre-occupation with the hostilities between them often takes precedence over X’s needs”.
I have found the father’s attitude to be self-centred and to lack any real appreciation of the needs of the child and certainly a total lack of consideration of what might assist the mother in relation to meeting the primary needs, as she does, of this little boy. As I noted in these reasons, the father has on many occasions abrogated his responsibilities in relation to the child, and has then sought to criticise the care provided by the mother. It emphasises the lack of respect and civility that is essential for there to be equal shared parental responsibility.
I am not satisfied that there will be any fundamental change in that behaviour on the part of the father, and that to leave the decision-making process in respect of issues with regard to education and health as requiring joint consultation and decision-making, is a recipe for disaster. Whilst the parties remain in their current positions, if you like, “pre-occupied with the hostilities between them” then there is no basis upon which I could be satisfied that decision-making of this nature would be in the best interests of the child.
In that case, it is clear that one parent must have parental responsibility for decisions to be made particularly in relation to health and education, and I am more than satisfied that such responsibility should rest in the mother. Accordingly, I intend to order that in relation to those issues, the mother have sole parental responsibility for decisions to be made.
In light of the agreement reached between the parties, as well as the determination of sole parental responsibility vesting in the mother in relation to those particularly significant issues of health and education, it is not necessary for me to consider the matters that arise pursuant to the provisions of section 65DAA. In fact, the determination of sole parental responsibility in relation to those two fundamental matters vesting in the mother, to a significant degree, addresses the other issues that remain in dispute between the parties.
I do not, therefore, intend to provide lengthy reasons or explanation into why the orders proposed by the mother are, in my assessment, generally the more appropriate and child-focussed proposals. Quite simply, issues with regard to changes to the father’s roster are matters relevant to him, and whilst the mother is amenable to change so as to ensure that X continues to have the opportunity to spend time with the father, it is of course reasonable that she have, as suggested, a period of time to re-arrange her own affairs. I intend to make orders reflective of that in these proceedings.
Insofar as provision for the child’s school equipment, stationery and other incidentals are concerned, as well as school uniforms is concerned, there is an overriding need to ensure that the child’s requirements are met before there is any suggestion of one party or the other not contributing equitably. The father’s suggestion that because he pays $170 per month in child support, that the mother should meet the bulk, if not the entirety of those requirements, flies in the face of proper and responsible parenting. The father’s contribution of about $2000.00 per annum to the expenses met by the mother, is minimal particularly when one considers his current circumstances, financially, as well as the fact that the orders generally agreed to in relation to his time with the child are a reflection of convenience for him and his roster, rather than any reflection of what might suit the mother or even the child. The parties should properly share the cost of such expenditure and I intend to so order.
As I noted, an issue arose in relation to the child’s involvement and participation in extra-curricular activities and whilst the mother sought to have discussion before decisions being made, the father’s stance was to almost invariably oppose what was proposed by the mother, or to unilaterally encourage the child towards extra-curricular activities that the father was either interested in or which suited him, from a time-tabling perspective, and therefore negated any possibility of negation between the parties. The mother’s proposals in relation to extra-curricular activities and her having a final determination, if unable to be resolved, are appropriate and I intend to so order.
Finally, dispute remained live in relation to overseas travel, with the mother proposing that proper arrangements be made with regard to such travel, whilst the father opposed any travel by the child overseas until he was notionally of an age that he would be able to at least to some extent ensure his self-protection. The father suggested 14 years of age.
I struggle a little to understand the father’s opposition to overseas travel, it being the case that holidays would not be precluded to other parts of Australia, and whilst language difficulties might not arise, confusion for X would be just as clear if he were separated from one parent during any holiday time. I do not doubt either parent’s capacity to provide for the child or to meet for the child’s needs when holidaying and unfortunately would think that the father’s opposition here to overseas travel was based on a continuing wish to control the mother and decisions she made, or perhaps simply out of jealousy that she might be able to budget so as to travel overseas whilst he may not be able to do so.
Unfortunately, it would be the child who misses such opportunities if they became available and I am not at all satisfied that there is a risk to this little boy in holidaying with one or other of his parents overseas before he attains the age of 14 years. I intend to make orders again generally reflective of the mother’s proposals.
In almost all respects I have found that the mother’s proposals more appropriately reflect the best interests and the welfare of the child as the paramount consideration. When noting the contents of section 60B, the objects and principles of the act, and section 60CC(2), (2A) and (3), the primary and additional considerations which are reflective of the objects and principles, I am satisfied that the orders proposed by the mother, where disputed by the father, more appropriately provide for the future needs of X.
The orders of the Court are as outlined at the commencement of these reasons.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 13 January 2015
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