CALLAGHAN & FARLEY
[2016] FCCA 2216
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALLAGHAN & FARLEY | [2016] FCCA 2216 |
| Catchwords: FAMILY LAW – Children – change of name – whether father’s surname should be middle name or hyphenated surname. |
| Legislation: Family Law Act 1975 ss.60CA, 60CC, 61DA, 65DAA |
| Cases cited: Palmer & Chapman (1978) 34 FLR 405 |
| Applicant: | MR CALLAGHAN |
| Respondent: | MS FARLEY |
| File Number: | CAC 1531 of 2012 |
| Judgment of: | Judge Boyle |
| Hearing dates: | 8 and 9 August 2016 |
| Date of Last Submission: | 9 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | Direct brief |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Barkus Doolan |
ORDERS
That the orders of 13 February 2014 be discharged.
That the parties have equal shared parental responsibility for the child X (“the child”) born (omitted) 2011.
That the parties shall do all things necessary to ensure that the child is known by the name X.
That the child shall live with the mother.
That the child shall spend time with the father as follows:
(a)Each alternate weekend from 10am Saturday until 5pm Sunday, and in the event that a public holiday falls before or after the weekend, then the child’s time with the father shall be extended by one night to include one public holiday with the father for that particular weekend, to be the first of the public holiday days if there are two.
(b)On the third weekend the child spends with the father during each school term, commencing the last term of pre-school 2016, and time shall commence from after school or pre-school on Friday and conclude at 5pm Sunday and on these weekends the father shall collect the child from school or pre-school at the commencement of time.
(c)From 9am 2 January 2017 to 5pm 6 January 2017.
(d)On the Father’s Day weekend from 10am Saturday to 5pm Sunday and should Father’s Day fall on a weekend the child would not ordinarily spend time with the father, the father’s time shall be suspended on the weekend immediately following Father’s Day.
(e)From 10am on Christmas Eve until 12pm on Christmas Day in even numbered years.
(f)From 12pm on Christmas Day to 5pm on Boxing Day in odd numbered years.
(g)The child shall spend school holiday time with the father as follows:
(i)During the school holiday period at the conclusion of Term 1 2017 for a block period of 5 nights as agreed and failing agreement from after school on the last day of Term 1 and concluding at 5pm on the fifth day of the school holidays.
(ii)During the school holiday period at the conclusion of Term 2 2017 for a block period of 6 nights as agreed and failing agreement from after school on the last day of Term 2 and concluding at 5pm on the sixth day of the school holidays.
(iii)During the school holiday period at the conclusion of Term 3 2017 for a block period of 7 nights as agreed and failing agreement from after school on the last day of Term 3 and concluding at 5pm on the seventh day of the school holidays.
(iv)During the school holiday period at the conclusion of Term 4 2017 for 3 periods of 7 nights as agreed between the parties in writing, and failing agreement the first, third and fifth weeks from 10am Saturday to 5pm Saturday.
(v)From 2018 and thereafter, for one half of all the term school holidays as agreed and failing agreement for the second half in 2018 and each alternate year thereafter, and the first half in 2019 and each alternate year thereafter.
(h)In the event the child commences any agreed extra-curricular activity, which falls on a weekend when the child is scheduled to be in the father’s care, the father shall be responsible for ensuring the child attends the activity unless otherwise agreed with the mother.
That the child shall live with the mother on the Mother’s Day weekend and should Mother’s Day fall on a weekend the child would not ordinarily live with the mother, the mother’s time shall be suspended on the weekend immediately following Mother’s Day.
That from the beginning of school terms in 2017 weekend time pursuant to Order (5) (a) and (b) shall be suspended.
That whilst the father resides further from Sydney than the (omitted) area, the mother shall deliver the child to the father at McDonalds Family Restaurant at (omitted) at the commencement of time and the father shall return the child to the mother’s residence at the conclusion of time unless otherwise agreed between the parties in writing, which shall include text message, or as may be specifically provided for otherwise in these orders.
That the mother shall deliver the child to the father’s residence at the commencement of time following the father advising the mother in writing of his address in the (omitted) area, or an area closer to Sydney than the (omitted) area.
That should school holiday time pursuant to these orders commence at the conclusion of school term, the father shall collect the child from school and the mother shall collect the child at the conclusion of time from the father’s home provided that be no further from Sydney than the (omitted) area and otherwise McDonalds Family Restaurant at (omitted) at the cessation of time.
That for the purpose of these orders school holidays are in accordance with the published school calendar for the school the child attends and shall commence on the last day of school term and conclude on the last day of holidays, not including any pupil free day at the end of the holidays.
That each party shall notify the other, as soon as possible and in any event within 12 hours, of any serious injury or illness suffered by the child whilst with that party.
That each party shall notify the other not more than 24 hours after any change to their residential address, landline, mobile telephone numbers or email address.
That in the event either party arranges for school holiday periods with the child to be spent away from their residence, they shall notify the other party of the address and telephone number where the child can be contacted during those periods, not later than 48 hours prior to the commencement of any such holiday period.
That the mother authorise any child care centre, pre-school or school the child may attend to provide to the father copies of reports, newsletters and announcements of activities and inform the father within 3 days of her becoming aware or any other event not notified in by the school or pre-school in writing.
The father may attend at the child’s school or pre-school for parent teacher meetings and any other school or pre-school event to which parents are ordinarily invited.
The parties shall keep each other informed of all details of any medical or dental treatment for the child and shall authorise and direct any person or entity treating the child to discuss with the other parent matters relevant to the child’s health and welfare.
On a without admissions basis, the mother and father be mutually restrained from denigrating the other in the hearing or presence of the child.
That within 14 days of a written request from either party to do so, the other party shall do all acts and things and sign all documents necessary for the child to be issued with an Australian passport and the parties shall each pay one half of the fees associated with the passport application or renewal within 14 days of a written request to do so.
That the mother shall hold the child’s Australian passport and not unreasonably withhold the child’s passport from the father upon him complying with the provisions of the following order and the father shall return the passport to the mother immediately upon returning to Australia with the child.
That as and from the conclusion of Term 1 in 2018, the father be permitted to take the child out of the Commonwealth of Australia and travel with the father for a period of up to 2 weeks no more than once each year, or such other time as agreed between the parties, provided that the father:
(a)Gives the mother 2 calendar months’ notice in writing of his intention to travel overseas with the child including the primary destination
(b)Provides written confirmation to the mother that any travel overseas shall be limited to countries which:
(i)Are parties to the Hague Convention and where no current travel warning advising again non-essential travel to that country has been issued by the Department of Foreign Affairs and Trade;
(ii)A country that is not a party to the Hague Convention and where no current travel warning advising against non-essential travel to that country has been issued by the Department of Foreign Affairs and Trade and the mother gives written consent for the child to travel to that country;
(c)At least 14 days prior to departure, provides to the mother:
(i)Copies of return tickets for the child.
(ii)A detailed itinerary including addresses and phone numbers for the accommodation in which the child will be staying.
(iii)A list of all the countries the child will be visiting (including transit destinations).
That the mother be permitted to take the child out of the Commonwealth of Australia and travel with the mother for a period of up to 2 weeks as and from the commencement of 2017, or such other time as agreed between the parties, provided that the mother:
(a)Gives the father 2 calendar months’ notice of her intention to travel overseas with the child including the primary destination
(b)Provides written confirmation to the father that any travel overseas shall be limited to countries which:
(i)Are parties to the Hague Convention and where no current travel warning advising again non-essential travel to that country has been issued by the Department of Foreign Affairs and Trade;
(ii)A country that is not a party to the Hague Convention and where no current travel warning advising against non-essential travel to that country has been issued by the Department of Foreign Affairs and Trade and the father gives written consent for the child to travel to that country;
(c)At least 14 days prior to departure, provides to the father:
(i)Copies of return tickets for the child.
(ii)A detailed itinerary including addresses and phone numbers for the accommodation in which the child will be staying.
(iii)A list of all the countries the child will be visiting (including transit destinations).
That the parties forthwith do all acts and things and sign all documents necessary so as to engage and attend upon either Mr P or Mr B for family therapy (or such other family therapist as agreed between the parties) with each party to pay their own costs of attendance and one half of the child’s costs of the family therapy, with the parties to follow the recommendations of the therapist as to the frequency of such appointments and whether the child is to be involved.
IT IS NOTED that publication of this judgment under the pseudonym Callaghan & Farley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
CAC 1531 of 2012
| MR CALLAGHAN |
Applicant
And
| MS FARLEY |
Respondent
REASONS FOR JUDGMENT
The matter involves a parenting dispute with respect to the child of the parties, X, born (omitted) 2011. X is almost 5 years old.
The father relies on documents as set out in his case outline document, as does the mother. The parties were both cross‑examined, as was the family consultant. The consultant has prepared two reports released 25 March 2015 and 10 February 2016. Additionally, the two memoranda of consultant, Ms R, were in evidence. Ms R was not required for cross-examination.
Various documents were tendered during the course of the hearing. The Exhibits tendered were as follows:
a)Exhibit F1. Enrolment form for X.
b)Exhibit F2. Letter from Barkus Doolan to father and provisional Apprehended Domestic Violence Order dated.
c)Exhibit F3. Childcare Centre Development Summary.
d)Exhibit M1. File notes from X’s early childhood teacher dated 23 June 2016 and 24 June 2016.
e)Exhibit M2. Email exchange between parties dated 22 September 2014.
The issues in the matter relate to:
i)The time X should spend with his father on weekends and how changeovers for that time should occur;
ii)Holiday time, in particular, when extended time should commence between X and his father, as both parents agree that the end point of such orders will be half the holidays, other than for the Christmas holidays.
iii)Whether X should be known as "X", as he is presently, or "X".
Background
The father was born on (omitted) 1968 and the mother was born on (omitted) 1973. The father has two children from a prior relationship, namely, A, who is 16, and B who is 13. Those children live in a week-about arrangement between the father and their mother. They are at school during the week as boarders at (omitted) in Sydney.
The parties commenced a relationship mid-2008. They did not at any time cohabit. The relationship ended during the mother's pregnancy on 20 January 2011. X was born on (omitted) 2011 and is not yet five years old.
Proceedings were commenced by the father on 5 October 2012 when X was approximately 14 months old. There has been litigation between the parties with respect to X since that time.
Since X's birth, the mother has lived in her current accommodation in (omitted). The father has moved between (omitted) where his parents live and rental accommodation in the (omitted). Presently, the father resides in (omitted) with his parents. He indicated in his oral evidence that he intends to return to the (omitted) area, although he is uncertain when that will occur. He expects it will happen within the next 12 months.
X initially spent day time with the father pursuant to orders of 19 November 2012 for four-hour block periods each fortnight. From 13 February 2014 the father's time was for eight-hour block periods each alternate Saturday and one additional Saturday. Once X turned three in (omitted) 2014, time increased to overnight from 10am Saturday to 10am Sunday extending after four visits to 5pm Sunday. The parties share the transport for X so that the mother delivers him to the father and the father returns him to the mother. This has been to the (omitted) area up until the father's most recent move to (omitted) in about February 2016.
It is common ground between the parties that the trip to (omitted) is about one and a half hours drive but that peak hour on Fridays can add an hour to that trip. The drive to (omitted) takes an additional hour. For X, time with his father involves a round trip of approximately five hours now that his father is residing in (omitted). The father's evidence is that he spends time on Sundays in Sydney over the winter months attending sporting fixtures for A and B. X attends with him on those occasions.
Unfortunately, the parties have not been able to develop a cooperative parenting relationship. They have been in litigation since October 2012. This is particularly unfortunate for X, as he suffers what has been described as "vulnerabilities" by the family consultant and "anxieties" by the father. It is clearly unhelpful for him that his parents are unable to communicate in a civil and sensible way.
X has never experienced his parents living together and acting cooperatively in his interests. There is a high degree of hostility and suspicion that surrounds exchanges between the parents, which impacts either reporting their legitimate concerns about X to the other. It is hoped that this ceases after the conclusion of litigation, although there is no guarantee that will be the case.
Credit
Although submissions were made by both counsel about credit issues, I find that the parties did their best in the circumstances to give a truthful account. Unfortunately an impact of the litigation is that each party perceives matters very much from their own perspective and neither was adept at making appropriate concessions. In this matter very little turns on the factual disputes between the parties. Of far greater significance are the particular needs of this child.
The Law
In considering parenting applications, the best interests of the child are the paramount consideration.[1] Section 60CC provides the framework for determining what is in a child's best interests.
Primary considerations
Section 60CC(2)(a):
The benefit to the child of having a meaningful relationship with both of the child's parents; and
[1] Family Law Act 1975 (Cth) s 60CA.
Section 60CC(2)(b):
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The orders sought by each of the parties will ensure that X is able to maintain a meaningful relationship with each of his parents. There is no doubt that X will benefit from having a meaningful relationship with each of his parents. As was noted by the family consultant:
Both parents are intelligent and capable individuals, and there are no concerns identified in relation to parenting capacity or risk[2].
[2] Family Report dated 8 February 2016, par 31.
Fortunately, X is not at risk of abuse, neglect or family violence in the care of either of his parents.
Additional Considerations
Section 60CC(3)
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
X at almost 5 years old is not of a sufficient age or maturity that he has expressed a view about parenting arrangements.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
X has an established relationship with his mother, who has been his primary carer since birth. The observations of the family consultant reflect this relationship:
The mother and X engaged in joint activity, and there was a high degree of reciprocity and cooperation.
X asked for assistance. He was responsive to Ms Farley's suggestions/help, and Ms Farley gently encouraged X's independence[3].
[3] Family Report dated 8 February 2016 par 28.
The counsellor observed the father’s relationship with X during the preparation of the first report, when the father attended with A. It is recorded:
X did not appear overtly affectionate with his father and brother. During the observations, X constantly babbled and appeared caught up in his own world.[4]
[4] Family Report dated 13 October 2015 par 27.
During the second report, the consultant observed:
Mr Callaghan did not actively involve himself in the play, and appeared to be more of an observer of X's imaginary play.
X appeared to have minimal reaction when his siblings left the observation or later when Mr Callaghan left the room and later returned.[5]
[5] Family Report dated 8 February 2016 par 29.
What the observations reflect is the reality of the relationships between X and each of his parents. He has lived with his mother throughout his life to date. He has spent time with his father, which has been with some difficulty due to the geographical constraints of where his father and mother reside.
Time arrangements for X have been structured around the geographical distance. It is, therefore, unsurprising that the consultant observed X's interactions with his father as "less secure" than with his mother.
X was observed to engage in some self‑soothing behaviours whilst with Mr Callaghan, and displayed little affection, proximity‑seeking or advances for assistance.[6]
[6] Family Report dated 8 February 2016 par 35.
The self-soothing behaviours include X “babbling”, which he did during the course of the preparation of the second report when with the father and with the consultant. It was noticeably less so when seen with his mother.
The mother is the parent that he has looked to and relied on for his sense of security:
appears to readily use her for support and comfort as well as a base of exploration.[7]
[7] Family Report dated 8 February 2016 par 34.
No doubt as a consequence of the greater level of involvement of the mother in X’s life, she is the parent most attuned to his needs. This is evident in terms of her ability to understand his language and communicate most effectively with him. During the course of the preparation of the report, it was evident that others have difficulty in understanding his language at times, including his father and the report writer.
Whilst the observations for the report provide only a snapshot of the relationships, the consultant had the advantage of seeing X in February 2015 and again in December 2015. He was three and a half at the time of the first assessment and four years three months at the time of the second assessment. The consultant observed that:
in considering whether there should be extension of the time X shares with his father, it is important that X is able to cope with proposed arrangements and to use his father as a source of comfort and support[8].
[8] Family Report dated 8 February 2016 par 32.
This is not meant as a criticism of the father. X has not lived in his father’s full‑time care and he is a child who has had some developmental issues. The parents antipathy and distrust of each other is unfortunate. It means that X's relationship with his father has developed in the absence of his mother. He does not yet have the same sense of security in his relationship with his father as he does with his mother.
As X matures and his relationship with his father develops this will no doubt become less of an issue for X. However, it is significant in the current dispute over time arrangements.
The father has raised concerns about X’s development, including his speech difficulties, toilet training and aggressive behaviour, particularly towards other children. The mother acknowledges that there have been difficulties for X, but says that she does not experience the same level of problem as the father reports. No doubt the different relationship X has with each of his parents is reflected in the way he behaves in their respective care. It is unfortunate, however, that this has become a focus of distrust between the parties, with each doubting the others reporting of X’s behaviour.
The father has had extensive parenting experience with respect to his two older children, A and B. Although there was little evidence with respect to them, it is common ground that they are lovely children. Both parties agree that X's time with his father should, as far as is practicable, coincide with his siblings.
The father says he and the mother of A and B have a cooperative parenting arrangement, which has involved equal shared care for the children for almost 10 years. Unfortunately, that level of cooperation is absent from the relationship between these parents. Seeking to draw comparisons between the father's experience of parenting A and B is not helpful in considering parenting arrangements for X. The time arrangements need to take into account the relationship X has with each of his parents, so as to meet his needs.
X is not yet five years old. He is a child with what has been described as "vulnerabilities" by the family consultant and "anxieties" by his father. By agreement, X spent three nights over the June long weekend 2016 with his father. On that occasion, the father collected X from the mother in Sydney on Friday and he remained with his father until 11:30am Monday. The mother reports X as saying over the next three or four days: "Don't leave me Mummy", that he had some problems with nightmares and that his behaviour was unsettled.
The father does not make any reference to the long weekend in his affidavit. During his oral evidence he referred to the mother as "exaggerating X's problems on return". This is entirely consistent with the parents' distrust of each other. With the consultant the father was able to concede that recently X was more settled in his care. Previously X had asked to "return to Mummy's house".
The consultant on being asked how overnight arrangements might best be sustained by X, commented:
The issue in this matter is not the exact number of overnights. The main difficulty is the co-parenting relationship. That is the biggest determiner of how he deals with the arrangements.
This resonates as the most significant aspect of this matter.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) To participate in making decisions about long-term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
Both parents have gone to considerable efforts to be involved in all aspects of X's life. This section is not of particular relevance.
Section 60CC(3)(ca) The extent to which each of the child's parents has fulfilled, or failed to fulfil their obligation to maintain the child.
Both parents contribute to X's financial support. The father pays child support in accordance with an assessment for X. Both parents contribute financially to the costs of transport for X to spend time with this father and, no doubt, those costs are considerable.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
These matters are considered together because they highlight the difficult balance for X, at his age and stage of development, of being able to spend sufficient time with this father to allow their relationship to develop and not being separated from his mother for longer than he can manage.
Transporting X to and from time with the father is a practical difficulty for X. Now that the father is living in (omitted), it is approximately two and a half hours drive one way for X to get to his father. If travel occurs at peak hour on a Friday, that can add an hour to the trip.
The father's evidence is that during the winter months, he regularly spends time on Sundays in Sydney with X to attend sport for A and B. The father seeks to collect X after school or preschool on Fridays and have the mother collect him on Sundays.
The father plans to return to live in the (omitted) area within the year. In terms of the move to (omitted), the only reference in his affidavit is this:
I moved back to (omitted) from (omitted) around Christmas last year.
During cross-examination, his evidence was that he moved in February 2016. The mother reports that she was not advised of that move at the time that it occurred and changeovers continued in (omitted).
The practicalities of the time arrangements are significant in this matter. The mother's evidence is that X has developed car sickness over the course of this year and has vomited on occasions during the trip and on arrival. The father accepts there have been occasions when X has been sick on arrival but disputes the cause as being car sickness.
The mother's evidence on this issue was credible and there was nothing in her demeanour or presentation that suggested she was exaggerating X's reactions. It appears that this is not a problem on each and every trip but that there have been occasions when she has had to pull over to the side of the highway for him to be sick, or to clean out the car after he has been sick. This is another example of the parent’s distrust of each other interfering in their ability to deal with X’s needs.
The father works as a self-employed (occupation omitted). He is able to determine where he lives. For most of X's life he has lived in the (omitted) area. He spends time with his girlfriend, Ms N, who resides in the (omitted) suburbs of Sydney. He accepts that it would be beneficial for him to be closer to Sydney for all three of his children. He gave evidence he has not given this serious consideration, despite the obvious advantages of living at the (omitted) edges of Sydney, where he could maintain work in the (omitted).
The relationship between the parties impedes their ability to reach agreements and communicate about X’s needs. The SMS exchange annexed to the mother's affidavit exemplifies the difficulties in the parties' communication:
Father: Hi, I'm in Sydney Friday night. I can be home by 10 am, but you have option of dropping him over at 10 before I go home. Your call.
Mother: Hi, where would I be dropping him over to?
Father: (omitted) suburbs.
Mother: Where?
Father: It was an offer for your benefit. Not interested in a juvenile interrogation.
Mother: If you are in Sydney, it would be best for X if you pick him up from his home.
Father: You can't drop X to a park 20 mins away? Fine. Your call. (omitted) it is, then.
Mother: Same could be said about you being able to drive 20 mins to actually pick your son up from his home. Doesn't personally bother me either way.
Father: I'm flattered you still put so much effort into me.
Mother: Geez, obviously doesn't take much to flatter you.
Father: You would rather travel four hours to prove something totally pointless. Makes me worry about our son's upbringing.
Mother: Handovers at our respective homes is best for him at this point, besides the fact they are court ordered (thanks to you!). We've been over this. If you are in Sydney, it makes sense that you pick him up from his home. It's really interesting how you turn everything into something to have a go at me about. Not interested in your nasty rubbish. PS. By the way, X is well - thanks for asking.
Father: So why did you ask where in (omitted) suburbs? Why didn't you just say "no"? Flipped your pointless argument. All that happened was you declining an innocent favour and once again illustrating your ongoing twisted motives. What's wrong with court orders, Ms Farley? Like AVOs.
Mother: Grow up! Doesn't it make sense to ask details about where I am being asked to drop my three year old son and why? Plus I get some vague response which really doesn't justify why you can't pick him up from his home where handovers go so much better.
Father: Vague? You hadn't even agreed and was asking specifics. Why I don't know? I mean, why? You've had weird men hanging around our son for years on a daily basis, but that's quite okay. Babysitters with diagnosed mental conditions, but that's okay. I'm the one questioned. Your own son clearly has a condition that you're either ignoring or have hidden the diagnosis from me and in breach of court orders. How long are you waiting? A court order forcing diagnosis? How many symptoms do you need? Focus on your son being dropped to his dad in a park, but ignore a life‑changing issue. And, apparently, it's me who needs to grow up.[9]
The SMS exchange continued in similar vein, without any helpful resolution in issues for X.
[9] Mother’s Affidavit filed 9 February 2016 Exhibit F1 28-29.
X attends day care two days a week, preschool two days a week, occupational therapy once a week, a psychologist fortnightly and speech therapy for blocks during school terms. It is a lot for a 5 year old to manage. X will start school in 2017, which will involve him in formal arrangements five days each week. He may also require before or after school care depending on his mother's working arrangements.
A regular separation from his mother of two nights is something X has not yet done. If changeover is on Saturday mornings, he will arrive rested after the school week. On the other hand, the round trip is between 5 and 3 hours, which means if time commences on Saturday he does not have a day with his father uninterrupted by travel.
On balance, regular weekend time should continue from 10am Saturday to 6pm Sunday. The orders will extend that time if there is a public holiday that falls on the father's weekend during school term. The counsellor recommends four times each year when the time should commence Friday night and the orders will reflect that on one occasion each school term. The timing of the Friday night will be specific to avoid that becoming a source of further conflict between the parties.
With respect to holiday time, the argument is whether that should begin in January 2017 or at the conclusion of the first term of school 2017. During January 2017 the father has extended family visiting from overseas with a planned family holiday to the (omitted). Although the mother regarded the June long weekend as unsuccessful for X, he will have had a further seven months to mature prior to January 2017. It is in his best interests to spend time with his extended paternal family on holidays.
The father raised that if the mother's partner is still residing on the (omitted), there could be some arrangement for day time visits. The mother's evidence is that her partner is considering moving to Sydney and his arrangements are somewhat uncertain. Given the poor communication between these parties, I do not propose making orders that do not provide certainty. It is most significant for X that there be limited opportunity for conflict between his parents. This should not inhibit the parties making other arrangements by agreement.
The parties have a different approach to orders for time for special occasions, such as Christmas and birthdays. The mother sought orders that would permit a sharing of those special days, where the father sought that the times fall where they fall.
The parties have always lived a significant distance apart. Birthdays can be celebrated in each household when X is with the respective parent. Travel on those days is not practical. Christmas Day is somewhat different, as it tends to bring extended family together. The orders reflect that difference by allowing the parties to share that celebration with X.
Father’s Day and Mother’s Day were regarded separately by both parties, so that X shall spend the whole weekend of those days with the appropriate parent.
The father sought make up time if either party elects to have 2 weeks with X for overseas travel. Both parties have the opportunity for overseas holiday time, albeit the father not until 2018. Time with a child is not a ledger where a strict accounting must be made. Make up time can be the source of ongoing disputes between parties and these parties have already demonstrated ample capacity to be derailed by dispute. There will be no orders for make up time.
The mother sought orders for a passport, which is agreed between the parties. The mother sought that she be able to travel overseas for two weeks from 2017 and that the father be able to do so from 2018. The father sought that occur mutually so that he could also take X away for two weeks in 2017. This ignores the nature of the relationship between X and each of his parents and would be impracticable for him. Orders with respect to overseas travel will be made in accordance with the orders sought by the mother, save that they both have an obligation to keep the other advised about where X will be staying.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs
Each of the parents has the capacity to meet X's needs, including his emotional and intellectual needs. The lack of trust in the parental relationship creates a difficulty for their working together in X’s interests. The communication via SMS, as set out above, whilst only a snapshot of the parents’ communication highlights their inability to maintain focus on X and not devolve into disputes.
X is involved with a psychologist, a speech therapist and an occupational therapist. All of these have been organised by his mother. There are emails between the parties which show,[10] despite there being a serious issue for X, the parents’ tendency to be distracted by sniping at each other. This is so particularly for the father:
How many health and educational professionals have noted an issue in writing? What are your qualifications again? You said he had nothing wrong, remember? Refused to let me get him referred to a specialist. That's your record, Ms Farley. Blame his father.
[10] Mother’s Affidavit filed 9 February 2016 Exhibit F1 pp 47-49.
In a later email exchange,[11] the mother advised the father X’s name was on the waiting list to see a paediatrician at (omitted) Hospital for a developmental assessment. This had been recommended by X's preschool and was something the father wanted to occur. The email from him to the mother, on being advised of X's name being on the waiting list is unhelpful:
Righto. Obviously, just another autonomous decision giving no consideration to our court orders or his father's opinion at all. I haven't even had a chance to ring her. Thanks.
[11] Mother’s Affidavit filed 9 February 2016 Exhibit F1 pp 49-50.
Notwithstanding those emails, the father agrees that the arrangements that the mother has made for interventions for X are working for X. The father has seen the psychologist on three occasions. He has declined attending at the same times as the mother. In his view, that would not be productive at the moment.
It is unfortunate that the communication issues between the parents interfere with them being able to care for X appropriately. Although both speak to the psychologist, there are obvious benefits in information being freely passed between both of them and X's treating practitioner at the same time. The father suggests that it might be possible for this to happen in the future when litigation is no longer hanging over them. It is unclear whether this is simply wishful thinking.
X has had, on the father's evidence, issues with toileting from time to time. He frequently wears a nappy on overnight visits with the father because there has been, as the father put it, varying degrees of success in him remaining dry overnight. Up until earlier this year, the father has on occasion put X in a nappy for the return trip home to avoid accidents. The mother says that in her care, there are very few accidents for X and she regards him as fully toilet trained.
It may be that there are different approaches to toilet training in the different households. It may be indicative of X experiencing some anxiety in his father’s household. It is not possible to make a finding about this. Better parental co-operation is important for these matters to be resolved for X. This is another example of an issue for the child becoming a parenting dispute.
Paediatric assessments were carried out on 8 September 2015 and 22 October 2015. Both parents were present at the initial assessment where recommendations were made with respect to speech pathology, occupational therapy, a psychologist, a hearing test, and both parents were given questionnaires to complete.
By the time of the second assessment on 22 October 2015, the father had not forwarded the questionnaire required, so his input with respect to X was not able to be taken into account. This is an area where it is critical that the parents react in a timely manner to matters required for X's welfare. The mother has followed up on all of the matters required. Any criticism of her with regard to these issues is not sustainable.
The parties have both agreed to attend on either Mr P or Mr B after the litigation is finalised, to work on their communication and co-operation in a therapeutic setting. It is hoped that this might provide them the skills to learn to parent cooperatively for X. It is in X’s interests that they do so.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
This is not a significant issue in this matter. X is an almost five year old boy who has relationships with his extended families on both his maternal and paternal side. He will be exposed to the lifestyle, culture and traditions of each side of his family.
The father seeks an order that X's name be changed from X to X. With either name, X’s family relationships are acknowledged.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) The likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant issue in this matter.
Section 60CC(3)(j) Any family violence involving the child or a member of the child's family.
Family violence is not an issue in this matter.
Parental Responsibility
There is no issue between the parties that there should be an order for equal shared parental responsibility for X. Their position is consistent with the presumption that would otherwise be applicable under section 61DA, and is in X’s best interests.
As a consequence of the order for equal shared parental responsibility, section 65DAA is enlivened. X’s parents have difficulties in communication as has been outlined above. His parents currently live about 2 ½ hours apart from each other. It is neither in X’s interests, nor reasonably practicable, for there to be orders for equal time, nor substantial and significant time. The orders permit frequent and regular time during weekends and holidays. The orders also permit both parties to be involved in days of special significance, such as Christmas.
Change of surname
Palmer & Chapman[12] sets out the principles to be taken into account in determining changing a child's name:
[12] (1978) 34 FLR 405.
(a) The welfare of the child is paramount.
(b) The short and long-term effects of any change of the child's name.
(c) Any embarrassment which is likely to be experienced by the child if the child's name is different from that of the parent with custody or care and control.
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) The effect which any change in surname may have on the relationship between the child and parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
The dispute with respect to X's name arose at his birth. The mother wanted his name to be X, with his father's name reflected as his middle name. The father did not agree and therefore did not sign X's birth registration form. The birth certificate then issued in the name X without father being named as he had not signed the form. In 2013, the father requested to be included on the birth certificate and subsequently, a fresh birth certificate was issued which included the father's details.
The parties separated prior to X's birth. X lives with his mother and will continue to do so. At the present time, he is not yet five years old and has been attending preschool and child care where he is known as X or X. There is no issue for X that he is aware of his parentage on both maternal and paternal sides. He has a close relationship with his father. He spends time with extended members of his maternal and paternal families and, in particular, his siblings, A and B. No one else in X's paternal or maternal families is known as Callaghan‑Farley.
X's name currently reflects the surname of both his parents. X has no middle name other than Callaghan. The mother was criticised that X does not refer to himself by his full name, that is, X. He is not yet five years old. That is something that will develop as he gets older and becomes aware of formal documentation, such as the passport that these orders will permit. He should be known by his full name on all records pertinent to him and it appears that is not the case at the moment.
Despite not sharing a surname with his father, X has developed a loving relationship with him. This will not be affected by the surname used by X. X recognises B and A as his siblings without them sharing a name or having lived together.
The parties react towards each other with hostility and distrust. Hyphenated surnames can be cumbersome and if there is any issue of the name being wrongly recorded, it is likely to lead to further dispute between the parties.
It is not in X's interests for there to be any further conflict between his parents. Retaining X's name as it currently is settles that conflict between them. The name reflects X's maternal and paternal sides of his family and should be used for him on all documentation.
It is hoped that these parents, who have an enormous amount to offer X, are able to benefit from the counselling they agree to undertake. Improved communication between will be a most significant issue for X’s future.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Date: 26 August 2016
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