Cann and Chappel (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANN & CHAPPEL (No.2)

[2018] FCCA 2367

Catchwords:
FAMILY LAW – Parenting – best interests of the child – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D

Applicant:

MS CANN

Respondent:

MR CHAPPEL

File Number:

PAC 5541 of 2015

Judgment of:

Judge Newbrun

Hearing dates:

20 & 21 August 2018

Date of Last Submission:

21 August 2018

Delivered at:

Parramatta

Delivered on:

31 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Pagano Burlovich Lawyers

Solicitors for the Respondent:

Mr Gittoes-Caesar of Coleman Greig Lawyers

ORDERS

All previous parenting Orders are discharged.
The parties shall have equal shared parental responsibility for the child [X] (“[X]”) born 2010.
[X] shall live with the mother.
During school term [X]:
(a)Is to spend every second weekend with his father from 3:10 pm Friday to 9:10 am Monday in alignment with the current fortnightly schedule.
(b)Is to spend additional time with his father during school terms on every second Wednesday from 3:10 pm until 9:10 am on the following Thursday morning in alignment with the current fortnightly schedule.
During school term holidays the arrangement is to be as follows:
(a)The mother picks up [X] from after school at 3:10 pm on the last day of Terms 1, 2 and 3 and [X] stays with her for the first half of the school holidays until 3:00 pm on the second Sunday thereof.
(b)The exchange is to take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
(c)[X] stays with the father for the second half of the school term holidays from 3:00 pm on the second Sunday until the first morning of the next school term. The father is to take [X] to school on the first morning of the next school term and the mother is to pick him up from the school on the afternoon of the first school day after the holidays. [X] is to live with the mother that week until 3:10 pm on the Friday when the father picks up [X] from school at 3:10 pm and spends the weekend with him in alignment with the current fortnightly schedule.
During the Easter long weekend:
(a)The mother will pick [X] up from school at 3:10 pm on the Thursday afternoon preceding Good Friday and take [X] to his (hobby) class from 4:30–5:15 pm. [X] will spend the Thursday night with the mother.
(b)In odd numbered years [X] is to spend Good Friday and Easter Saturday with the father from 10 am Good Friday to 10 am Easter Sunday.
(c)In even numbered years [X] is to spend Easter Sunday and Easter Monday with the father from 10 am Easter Sunday until the father takes [X] to school at 9:10 am on the Tuesday morning.
(d)Exchanges are to take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
In Christmas holidays until those commencing in December 2020, [X] is to spend week about with each parent except that:
(a)[X] is to be with the father from 12:30 pm on 24 December 2018 to 12:30 pm on Christmas Day 2018 and each even numbered year thereafter.
(b)[X] is to be with the father from 12:30 pm on Christmas Day 2019 to 12:30 pm Boxing Day 2019 and each odd numbered year thereafter.
(c)[X] is to spend from 12:30 pm on Christmas Day 2018 and each even numbered year thereafter with the mother and is to remain with her until:
(i)If Christmas Day falls in a week when [X] stays with the mother, until the next scheduled changeover.
(ii)If Christmas Day falls in a week when [X] stays with the father, [X] is to return to the father at 12:30 pm on Boxing Day.
(d)[X] will spend the first week of the Christmas holidays with the mother in even years and the first week with the father in odd years.
(e)The parent with care of [X] during the first week of the Christmas/New Year holidays will pick [X] up from school at 3:10pm on the last day of term. To avoid disruption to the parents’ work schedule the first weekly exchange will take place at 10 am on the second Sunday of the holidays and each Sunday thereafter until the last Sunday of the holidays where [X] will stay in his mother’s care until the first day of the school year.
(f)Exchanges to take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
During Christmas holidays commencing in December 2020 and in subsequent years:
(a)[X] is to spend half of the holidays with each parent.
(b)In even years [X] is to spend the first half of those holidays with the mother, except that he is to spend from 12:30 pm on 24 December to 12:30 pm on Christmas Day in even years and from 12:30 pm on 25 December to 12:30 pm on Boxing Day in odd numbered years with his father.
(c)In even numbered years [X] is to spend the second half of these holidays with the father, until the Sunday preceding the first school term of the following year. On that day, the last Sunday of the holidays, the father will return [X] to the mother at 3 pm to allow [X] to prepare for the new school year.
(d)Exchanges will take place:
(i)At 3 pm on the day that falls at the mid point of the holidays to be calculated from the last day of school term until the Sunday preceding the first day of Term 1 of the new school year.
(ii)At the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
For Mother’s Day – if Mother’s Day falls on the father’s weekend [X] shall spend 7 hours with his mother at times agreed between the parties or failing agreement from 10 am to 5 pm.
For Father’s Day – if Father’s Day falls on the mother’s weekend [X] shall spend 7 hours with his father at times agreed between the parties or failing agreement from 10 am to 5 pm.
Mother’s birthday – if this day falls on a weekend [X] shall spend 3 hours with the mother if [X] is otherwise with his father. If this day falls on a school day the mother picks up [X] from school and returns him to his father at 5:30 pm.
Father’s birthday – if this day falls on a weekend [X] shall spend 3 hours with the father if [X] is otherwise with his mother on this day. If this day falls on a school day the father picks up [X] from school and returns him to his father at 5:30 pm.
[X]’s birthday – [X] spends 3 hours with his other parent if this day falls on a weekend or in the school holidays. If this day falls on a school day the parent that [X] is not otherwise staying with, will pick up [X] from school at 3:10 pm and return him to the other parent at 5:30 pm.
Exchanges for the occasions mentioned in paragraphs 9-13 above will take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
In the event of the child suffering a medical emergency or illness requiring medical attention while spending time with or living with the other parent:
(a)Each parent is to be notified as soon as practicable by text message or email;
(b)Each parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as possible, including sufficient details to enable each parent to attend to visit the child, should he be admitted to hospital; and
(c)The medical practitioner or facility shall be advised that each parent has access to the child’s medical records and the information obtained with them upon request.
Each parent may, if they choose, apply for a passport for [X], and the other parent will consent to the issue of that passport and will complete relevant sections of the passport application form and return the form to the parent applying for the passport within 7 days of being given it.
[X]’s passport is kept with the mother at all times other than when [X] is travelling overseas with the father.
Each parent by agreement be permitted to take [X] on a holiday for not more than 14 days upon giving the other parent two calendar months’ notice. Failing agreement between the parents the mother can holiday with [X] for up to 14 days in odd numbered years and the father can holiday with [X] for up to 14 days in even numbered years.
Each parent is permitted to phone [X] during the school holidays every Tuesday, Thursday and Thursday from 4:30 – 5 pm by calling the other parent’s mobile phone. Either parent will not obstruct these calls and will always advise [X] that his other parent has called. Equally, each parent will encourage [X] to feel that he is allowed to call his other parent whenever he wishes at any reasonable time and for any reasonable length of time. However, from December 2020, such phone calls shall reduce to every Tuesday and Thursday from 4:30 to 5 pm.
Any communication between the parties regarding [X] shall be via text message and/or email.
Neither parent will denigrate the other in [X]’s presence or hearing, and each parent shall use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family in [X]’s presence or hearing.
That the mother shall, within fourteen (14) days of being sent any forms by the father relating to the insertion of the father’s name on the child’s birth certificate, sign and return to the father those forms and in the absence of compliance, a Registrar of this Court is appointed pursuant to Section 106A of the Family Law Act 1975 to sign those forms on the mother’s behalf.

IT IS NOTED that publication of this judgment under the pseudonym Cann & Chappel (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5541 of 2015

MS CANN

Applicant

And

MR CHAPPEL

Respondent

REASONS FOR JUDGMENT

Introduction

This was the final hearing of parenting proceedings between Ms Cann (hereafter “the mother”) and Mr Chappel (hereafter “the father”) in relation to the child [X] born 2010 (hereafter “the child”).
The parties commenced cohabitation in about 2008.
The parties separated in about November 2010, shortly after the birth of the child.
On 6 May 2016, by consent, the parties agreed to certain interim parenting Orders, inter alia, that the parties have equal shared parental responsibility for the child; that the child live with the mother; and that the child spend time with the father commencing 15 July 2016, each alternative Friday from after school until Sunday 5:30 pm.
On 27 October 2016 the Court made interim Orders, inter alia, that (suspending earlier time with Orders between the child and the father) the child spend time with the father each alternative Friday from after school to 5:30 pm on Sunday, and that from the start of Term 1 2017, this time would extend to before school on Monday; and commencing 9 November 2016, each alternative Wednesday in the off week from after school to before school on Thursday morning.

The parties’ proposals

Both parties proposed that the child should live with the mother.
The mother’s final parenting proposals are set out in Exhibit A. Inter alia, she seeks an Order for sole parental responsibility for the child, and that, during school term, the child spend in the aggregate four nights each fortnight with the father.
The father’s final parenting proposals are set out in Exhibit D. Inter alia, he seeks an Order for equal shared parental responsibility for the child; that during school term the child spend in the aggregate five nights each fortnight with the father; and that the father be authorised to apply to the Registrar of Births, Deaths and Marriages that the child be registered as [X] Cann-Chappel.

Material relied upon

The mother relied upon the following documents:
a)Applicant mother’s Case Outline (Exhibit B);
b)Affidavits of Ms Cann filed 14 January 2016 and 14 August 2018.
The father relied upon the following documents:
a)Affidavit of Mr Chappel filed in Court on 20 August 2018;
b)Affidavit of Ms C filed in Court on 20 August 2018.
The following exhibits were relied upon:
a)Applicant Mother’s Proposed Final Orders (Exhibit A);
b)Applicant mother’s Case Outline (Exhibit B);
c)46 page bundle of annexures to the Applicant mother's Affidavit (Exhibit C);
d)Respondent father’s proposed Minute of Order (Exhibit D);
e)Family Report of Mr J dated 30 August 2017 (Exhibit E);
f)Letter from ENT Surgeon (Hospital) to Dr T dated 22 March 2010 (Exhibit F);
g)Letter from Centrelink to the Applicant mother dated 4 April 2017 (Exhibit G).

Evidence

The mother was born on 1972 and is currently aged 45 years.
The father was born on 1973 and is currently aged 45 years.
The mother has been the primary carer of the child from birth to date.
The father does not pay child support through the Child Support Agency. Between about late 2011 and March 2013 the father gave the mother groceries, money and items for the child in the amount of about $5,800.The mother pays for the child’s outside school activities including (hobbies). She pays the child’s school fees, being about $200 per term. During the last two years the father has purchased items of school and social attire for the child.
From about December 2014 the child began to spend time with the father every Tuesday from 9:30 am to 5 pm and Friday from 4 pm to Saturday 4 pm.
The Court refers to the increases in this time between the child and the father following the consent interim parenting Orders of 6 May 2016, and then subsequently through the interim Orders made by the Court on 27 October 2016.
Those latter interim parenting Orders provided that the child spend time the father, in the aggregate (from the start of Term 1 2017), four nights each fortnight. Further, those latter Orders provided that during the shorter school holiday periods the child would spend time with the parents on an equal shared basis, and that during the 2017 Christmas school holiday period the child would spend week about time with each parent.
In these latter Orders, the Court did not disturb the parties’ previous interim consent parenting Order that they have equal shared parental responsibility for the child.
Following the parties’ separation, there were at least two instances when the mother felt scared and intimidated by the father’s verbal and physical behaviour and made reports to the police accordingly (see paragraphs 39 and 41 of the mother’s Affidavit filed 14 January 2016). In relation to the latter incident on 8 July 2011, the parties were talking and the father would not let the mother close the driver’s door of her car.
In 2013 the father commenced a new relationship with Ms C. The father and Ms C have two children, twin daughters, [A] and [B], born 2014.
On 18 April 2014 the father sent the mother an email stating, inter alia,
I am not sure that [X] should be medicated for a condition that may be brought on by your own well known reactive stressful, inflexible behaviour … The fact that [X] has a mother who has behaved irrationally, erratically and angrily consistently throughout his whole life is paramount information in order for a true diagnosis for [X].
In late 2014 there was disputation between the parties in relation to the child’s time spent with the father. Inter alia, the mother contended that the father had unilaterally retained the child against the mother’s wishes on certain occasions. For the father’s part, inter alia, he contended that the mother was engaging in abusive behaviour towards the child by seeking to alienate the child from him. There were email and other written communications between the parties in relation to this disputation. At one stage the mother reported some of the husband’s communications to her to the police.
In early March 2015 the father told a social worker/family therapist with a specialty in child psychology who had assessed the child, that the mother had borderline personality disorder and was mentally ill (the Court interpolates at this point that there is no evidence of such a disorder in the mother, and in any event, notes the father’s present parenting proposals). The social worker/family therapist stated in her report of 12 March 2015, inter alia, that the recently reported aggressive behaviour of the child was due to the impact of ongoing parental conflict.
The mother, a (occupation omitted), resides in a two bedroom unit at Suburb C. She has lived there for two years and five months. She intends to live there for the foreseeable future. The child is in Year 2 at School 1 Public School, being six kilometres from the mother’s residence. The child started kindergarten at this school in early 2016.
The mother works three days in Week One and three and a half days in Week Two. In Week One she works on Mondays, Fridays and Saturdays. In Week Two she works on Mondays, Tuesday afternoons until 7 pm, Fridays and Saturdays. She is a self-employed contractor (occupation omitted) and works at (employers omitted).
In about July 2018, the father moved his residence from Suburb D to Town S for work purposes. He and his new partner are both self-employed. The father’s move to Town S came about as a result of an opportunity for the father to take on more work and participate in operating and expanding a business run by his friend. The father previously worked (occupation omitted).
In January 2017 the parties had a disagreement relating to the child attending his best friend’s birthday party. The mother had wanted the child to attend this party, noting that the child was spending time with the father, and the father did not cause the child to attend this party.
The child is described by his teachers as an intelligent, quiet, sensitive and reserved child. He is doing well academically at school. He received a medal for academic achievement at the end of kindergarten and a medal for outstanding student at the end of Year One.
In late September 2017 the child asked the mother if he could not go to the father’s home for so long for the commencement of the school holidays. He clung to the mother, stating that he was going to miss the mother too much in the holidays. In early 2018 the child drew some pictures saying that he hated himself. He had an emotional outburst, saying that he wanted to poke himself in the eye with a knife and that he was dumb and nobody liked him.
In June and July 2018 the child told the mother that he was experiencing bullying at school and that everyone kept calling him annoying. The mother discussed these matters with the child’s teacher. The mother had a meeting with the child’s teacher in late July 2018 about the child’s thoughts and the teacher told the mother that she was going to put in a referral for the child to see the school counsellor. In re-examination, the mother stated that the child had improved in the last two weeks and the child had told her that he could work it out himself.
Changeovers for the child have normally occurred at the child’s school. During the school holidays changeovers had usually been at McDonald’s Suburb B. The parties have agreed on at least one occasion to an alternative changeover venue for a Sunday changeover.
In terms of the child’s travel to and from Town S to his school, this involves the child travelling by car with the father to a ferry wharf at either Town S or Town T (Town S wharf is presently being repaired), then a ferry trip to Suburb A, then a car trip from that beach to Suburb C to connect with a Region 2 express bus. The express bus trip takes the child to Suburb E, followed by a short walk to the child’s school. The total trip from Town S to the school usually takes between about one hour and ten minutes to one hour and twenty minutes.

Between 26 August 2017 and 9 September 2017, the child spent three consecutive weekends with the father after the Family Report interviews on 29 August 2017 due to Father’s day falling on the child’s weekend with the mother. There was a noticeable change in the child’s behaviour. He became more aggressive towards the mother and soiled his pants at school three times in the following week.
On 12 September 2017 the child returned from the third weekend in a row with the father. That was a day of a school excursion for the child. The mother dropped the child off at school and the child refused to get on the bus to go to his excursion. The child was crying, screaming and begging the mother not to make him go. The child kept on saying to the mother, “I just want to be with you mum. Can we please go home?”
On 8 May 2018 the child told the mother that he just wanted things to stay the same in terms of spending time with the father.
The child has been spending nine nights with the father during school term holidays and week about in the Christmas holidays. The child started this arrangement in the first week of the Term 1 school holidays in 2017. He found the transition from three to nine consecutive nights with the father difficult and has requested on numerous occasions to the mother that the nights be reduced or that the mother call the child on the phone. The child has said to the mother words to the effect, “I want you to call me when I am at Dad’s place. I want you to call me every day.”
On Monday 30 July 2018 the child returned from spending the weekend with the father and said to the mother words to the effect,
Dad said that he wants one extra night now. I told dad that I want things to stay the same, but dad said, ‘No, we all get a bit of what we want’. Are you going to tell dad he can’t do that mum.
Recently the father and his new partner discussed the child’s surname with the child. The father asserts that the child wishes to have “[X] Cann-Chappel” as his name.On computer and video games the child has registered his name as [X] Cann or Chappel (due to limited space). The child has requested multiple times to the father that his school uniform be labelled [X] C. The father’s children from other relationships have the surname Chappel.
The parties’ communications since the Court’s interim parenting Orders of 27 October 2016 have been via text and email only. During 2018 the parties’ communications in this context have been civil in relation to the child (relating to issues such as school uniform, the child being sick, and on one occasion, change of venue for changeover). However, they only exchange text messages or emails about once or twice a month.
The child enjoys a positive relationship with the father’s twin daughters and regularly plays with them. There is a four year age difference between them.
The mother stated that it was important for both parties to have input into the decision as to which high school the child eventually attends.
The mother did not know if in the future she could reach agreement with the father regarding medical decisions for the child. She cited an earlier medical issue for the child being grommets; the mother sought to communicate with the father but he did not respond.
The mother believes that she could have face-to-face communications with the father in the event that an emergency arose in relation to the child. She stated that she could have face-to-face communications with the father if she had to. However, she stated that what prevents her from talking to the father is the fear of conflict. She referred to the father telling her that everything is her fault and the father’s constant putdowns of the mother.
The mother does not see a benefit to the child having increased time with the father due to the travel distance involved in the child spending time with the father. The mother reiterated, in cross-examination, her affidavit evidence that the child does not want to spend increased time with the father and that he was happy with the current arrangements.
The mother asserted, in relation to her proposed Order 7 in Exhibit A relating to the child spending week about with each parent during Christmas holidays until the commencement of Christmas holidays in December 2022, that she had “roughly” thought that the child would be ready for an equal sharing of such Christmas holidays in December 2022.
As to the father’s proposed surname change for the child, the mother stated that the child’s present name is how the child knows himself. The mother asserted that she has a pretty good idea that the child wants to keep his present surname. The mother asserted that the child knows he is part of the father, without his surname. The mother asserted that the child will know the father from the proposed amended birth certificate (inserting the name of the father as the child’s father). The mother asserted that at the child’s school the child was known as [X] Chappel.
The mother stated that the child has improved since 22 September 2017 (the last day of school before the school holidays) in terms of his distress in prospectively spending nine nights away from the mother. The child is not as distressed as previously.
The mother had very little confidence in prospectively co-parenting the child with the father. She characterised the parties’ relationship as hostile. The mother stated that at changeovers there was definitely “a hostile energy”, and the child picks up on that. The mother, in this context, stated her preparedness to do a parenting course to improve communication between the parties, but she was pessimistic.
The mother asserted that things will improve between the parties in relation to the child by continuing the child’s current routine and structure.
The father asserted that the implementation of the Court’s interim parenting Orders had provided very good stability for the child.
The mother asserted that the child’s travel between the father’s residence and his school was exhausting for him, being one and a half hours each way. She asserted that three hours of travel per day for a seven year old child is too much.The child had told her, in this context, that he was tired and referred to having to get up at 6:30 am when at the father’s residence.
The mother asserted that the child likes three telephone calls with her during the school holidays. In this context the mother asserted that the phone call need only take a few minutes and not necessarily thirty minutes.

Family Report

The Family Report was prepared by the family consultant, Mr J, and is dated 30 August 2017. Relevant interviews with the parties, the child and the father’s new partner took place in mid-August 2017.
At the time of the Family Report interviews, the mother was residing at Suburb C and the father was residing at Suburb D.
The parties informed the Family Report writer that in 2016 the child was not involved with the father for a number of months.
The mother informed the Family Report writer that she wanted the present parenting arrangements to remain in place, such that the child would spend time with the father on alternative weekends from Friday after school to Monday before school, plus the following Wednesday night. This would be some four nights per fortnight with the father. She also proposed that the child be with the father for half the school holidays, and that during the Christmas holidays the child be with the father each alternative week.
For the father’s part, he informed the Family Report writer, inter alia, that he proposed an equal care arrangement.
The Family Report writer noted that the mother did not mention family violence as a current issue or an issue that would affect parenting arrangements.
Both parties reported to the Family Report writer that they do not communicate to avoid hostility.
The mother described the child to the Family Report writer as an emotionally secure child who was bright, sensitive and reserved.
When the father was asked by the Family Report writer as to how the child would benefit from an equal care arrangement, the father stated, inter alia, that the child needs a balance and would gain by having some respite from the mother.In this context, the father asserted, inter alia, that the mother’s mental state may still be in question, that the mother was hard to live with, and that her lack of flexibility was a serious concern. (The Court interpolates at this point that there is no persuasive evidence before the Court indicating that the mother suffers from adverse mental health, that she is hard to live with, or that she suffers from a lack of flexibility.)
When the Family Report writer asked the father if the child had said anything about his parenting arrangements, the father stated that, “[h]e said he likes it the way it is”, but added that the mother had coached the child to favour the current arrangement. (The Court interpolates at this point that there is no persuasive evidence before it indicating that the mother has so coached the child.)
The father reported to the Family Report writer that the parties had been able to negotiate about small things like dates, and that their communication was improving, but agreed that the improvement was from a low base. The father agreed, also, that equal care may be difficult to implement given the parties’ lack of communication, albeit contending that with Court Orders, the mother would adjust.
The mother told the Family Report writer that her relationship with the father was non-existent and that the parties had not spoken in six years. She stated that there was a lot of animosity between them. The father described his present relationship with the mother as minimal. The Family Report writer noted that during the observation sessions the mother did not want to encounter the father and wanted him to leave the room before she entered.
The child was interviewed by the Family Report writer. He reported that he lives with the mother and sees the father on the weekends. Without prompting, he stated that he wanted to see the father on Tuesday as well.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that the child impressed as an emotionally secure child. He stated that it was clear that the child had a substantial relationship with the mother, and given his parenting history, the mother would have been the child’s primary attachment figure. The Family Report writer referred to the child as having a close and valued relationship with the father and that the father has become a solid important paternal figure.
The Family Report writer noted that the father had contended that equal care would be fairer and would enhance the child’s involvement with him. The Family Report writer noted that the mother had contended that if the child were to spend equal time with the father, the child’s routine would be disrupted.
The Family Report writer referred to the father’s contention that, given the mother’s mental state, the child needed seven days per fortnight away from her so that he could recover from the mother’s lack of flexibility and complicated psychological issues. In this context, the Family Report writer stated that, “[i]t was apparent that [the father] argued in favour of equal care as much as he argued that [the mother] was unreasonable and derogatory.”
The Family Report writer stated that his assessment indicated that the nature of the parties’ relationship and their failure to communicate were factors the Court might view as significant.
The Family Report writer noted that the parties communicated only through emails or text messages. He noted the father’s unclearness about how the parties might resolve parenting differences presently or in the future. The Family Report writer observed that, given the parties’ history, it seemed that conflict and arguments were probable if they were to interact.
The Family Report writer stated that the parties’ relationship was hostile and therefore they do not communicate. Accordingly, he stated that his assessment indicated that equal care was not a suitable option. Inter alia, the Family Report writer stated that equal care parenting required clear and unambiguous parenting information to be passed between homes; parents needed to be able to discuss the events and subtleties of the child’s life freely so that his management could follow with as little disruption as possible; and that children of the child’s age needed parenting arrangements that were reliable, predictable, and dependable, and they also needed those arrangements to be conducted within a relatively amicable atmosphere.
The Family Report writer stated that the incongruity of having parents who love him but do not love each other may become more acute, emotionally damaging, and confusing for the child if his parenting were to be equal. Such confusion may lead to a dissonance which the child may resolve by aligning with one parent and rejecting the other.
The Family Report writer stated that the parties did not possess the qualities required for successful equal care parenting. In this context he stated that the parties have no strategies to resolve disagreements productively.
The Family Report writer noted that the child indicated that he wanted to spend more time with the father. In this context he stated that it might be useful to find a way for that to occur without jeopardising the child’s security by exposing him to the dangers associated with his parents’ mutual hostility.
Accordingly, the Family Report writer recommended that in addition to the current Orders, and “given that [the father] is self-employed with apparently flexible hours”, the child might spend one additional afternoon per fortnight with the father, from after school to 7:30 pm, provided that he was not exposed to parental conflict during the changeover, and he might be given additional time with the father during the school holidays.
The parties did not seek to cross-examine the Family Report writer.
The Court takes into account the evidence of the Family Report writer, whilst observing that the father’s proposal at the time of the family report interviews was for an equal time arrangement, the father was at that time residing at Suburb D, not Town S, and that the family report writer conducted his interviews in August 2017.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
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: section 61DA of the Act. 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: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The child has meaningful relationships with each parent and would benefit from a continuance of those relationships.
Should the Court make final parenting Orders in relation to the child living with the mother and otherwise spending time with the parties in accordance with the mother’s proposed final Orders (see Exhibit A), subject to an amendment to proposed Order 7 in Exhibit A, such that during Christmas holidays the child spends week about with each parent until those commencing in December 2020, the child’s meaningful relationship with the father should be maintained and enhanced. And further, in these circumstances, the child’s meaningful relationship with the mother should not be detrimentally affected.
Unfortunately, there remains between these parties significant hostility and lack of trust. Their present communications in relation to the child, by way of emails and text messages, only occur about a couple of times per month. There has been no face-to-face contact or discussion for about six years.
Should the Court make final parenting Orders in accordance with the father’s proposals (Exhibit D), providing for the child to spend, in the aggregate, five nights per fortnight during school term times with the father, an arrangement approaching an equal time regime, there is a real chance, particularly as the child matures and enters high school and his day-to-day needs increase and become more complex, that the parties will need to increase their current levels of communication so as to adequately ensure that the child’s welfare needs are met.
On the evidence before the Court, it has no confidence that the parties will be able to increase their current levels of communication effectively and without significant conflict (which may well impact adversely upon the child’s emotional wellbeing), so as to adequately ensure that the child’s welfare needs are met. The Court has real doubts as to whether the parties participating in a parenting course will improve their communication capacities with each other.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Not applicable.

Section 60CC(3) - additional considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Court gives some, but not significant, weight to the child’s views as expressed to the mother in May and July 2018 that he is content with the current parenting arrangements.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to its discussion above under the meaningful relationship primary consideration.
The child also has positive relationships with his stepsiblings, stepmother and paternal grandparents.
The father contended that should the Court make time with Orders in accordance with his proposed final parenting Orders in Exhibit D, the child would benefit from having increased time with not only himself but his stepsiblings and stepmother. In relation to the contended benefits to the child of increased time with these persons, the Court refers to its discussion above under the meaningful relationship primary consideration, and the views of the child additional consideration, above, in particular. Apart from the father, the child presently enjoys spending the time that he does presently spend with his stepsiblings and stepmother.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

Each party has sought to take such opportunities, whilst noting that historically the mother has usually been making the major decisions for the child’s care welfare and development.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The mother has so fulfilled such obligations. The Court refers to its discussion above as to the father’s material support for the child, whilst noting that his direct financial support for the child, apart from those periods when the child was in his care, has been limited.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussion above under the meaningful relationship primary consideration, and also its discussion below under section 60CC(3)(e).
Further, should the Court make final parenting Orders in accordance with the father’s proposed time with Orders in Exhibit D, there is a not insignificant risk that the child will find the additional time away from the mother’s primary care disruptive to his usual parenting routine and experience emotional discomfort.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

The Court refers to father’s proposed ‘time with’ Orders in Exhibit D. Should those Orders be made by the Court, the child will be required to undertake certain travel between the father’s residence at Town S and his school at Suburb E and vice versa. The one-way travel in this context is usually between about one hour and ten minutes and one hour and twenty minutes. On each journey between the father’s residence and the child’s school, there are three different modes of public transport required. The Court refers to its discussion above relating to the evidence of the mother and child that the child is finding the early morning starts from the father’s residence tiring.
Further, and in any event, there is a real prospect that the child, as he grows and as his school educational requirements increase, will find this travel burdensome, inconvenient and not conducive to his social and educational aspirations.
The Court gives significant weight to this additional consideration, in the context of considering the parties’ competing parenting proposals in relation to the child spending time with the father during school term times.

(f) The capacity of each of the child’s parents; and 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 party would appear to have such capacities.

(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

The child would appear to be a particularly intelligent child who is progressing very well in primary school.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Each party would appear to have appropriate attitudes towards the child and to their responsibilities of parenthood. Again the Court refers to the unfortunate continued hostility and lack of trust that exists between the parties.

(j) Any family violence involving the child or a member of the child's family

The Court refers to the Family Report wherein it was stated by the Family Report writer that the mother did not mention violence as a current issue or an issue that would affect parenting arrangements.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court refers to its discussion above under the meaningful relationship primary consideration; the Court is of the view that the mother’s proposed final parenting Orders (with the amendment to her proposed Order 7, in particular) would be least likely to lead to the institution of further proceedings in relation to the child.

m) Any other fact or circumstance that the Court thinks is relevant

Subject to two matters referred to immediately below, the Court views the mother’s proposals in Exhibit A in respect to the differing proposals relating to school holidays, Christmas, and special occasions, as carrying the real benefit of particularity and thereby of certainty, noting the parties’ present communication difficulties, hostility and lack of trust. By comparison, the Court notes that certain Orders in the father’s proposed Orders refer to, inter alia, “at such time as agreed between the parties”.
Mother’s Day and Father’s Day Orders should be made as per the mother’s proposed Orders except that “4 hours” should be extended to “7 hours”, in proposed Orders 9 and 10 in Exhibit A (and change 2 pm to 5 pm) noting the father’s travel times. These longer hours will enable a full daytime day to be spent with each parent. The Court further notes in this context that to accede to the father’s proposed Orders could lead to the child spending at least consecutive weekends with a parent, potentially upsetting the child’s routine and stability.
In any event, the Court observes that the parties’ differing proposals in these contexts, for the most part, are not substantial.
However, as alluded to under the meaningful relationship primary consideration, the Court views the mother’s proposed week about arrangement for Christmas holidays extending to the commencement of Christmas holidays in December 2022 as being unnecessarily long, whilst acknowledging that presently, and probably for at least the next two years, the child will better cope emotionally with a week about arrangement during the Christmas school holidays. In this latter regard the Court refers to the evidence of the child experiencing emotional discomfort when spending extended time away from the mother. The Court is of the view that the parties should be able to conduct changeovers without conflict if the mother’s proposed Orders are made, as discussed above, noting recent successful changeovers, for example at Suburb A.
As to the father’s proposed name change for the child, he now seeks an Order that he be authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as [X] Cann-Chappel born 2010 be now registered as [X] Cann-Chappel.
The Court is of the view that it is not in the best interests of the child that the father’s proposed Order seeking a name change for the child be made; a persuasive case has not been made out for such a name change. The Court’s reasons now follow.
The parties have agreed to an Order, proposed Order 6 in Exhibit D, having the effect that the father’s name shall be placed on the child’s birth certificate.
The Court refers to the competing evidence of the parties as to the child’s wishes in relation to his surname; the father (and his new partner) asserts that recently the child expressed a wish to have [X] Cann-Chappel as his name, whereas the mother asserts that the child wants to keep his present surname. The Court cannot resolve this competing evidence, but in any event would not give significant weight to the child’s bare views in this context, noting his tender age.
The Court should pass some comment as to the father’s evidence in this context. He asserts that the child has, when playing computer/video games, registered his name as [X] Chappel or Chappel (due to limited space). Yet this occurrence should be contrasted with the father’s further evidence that the child apparently requested multiple times to the father that his school uniform be labelled [X] C, which latter requests are equally consistent with the child identifying with his present name.
The fact that the child’s stepsiblings have the father’s surname has not relevantly led to any significant confusion or emotional detriment in the child, and the father’s evidence overall, in this context of a proposed name change, does not suggest any such confusion or emotional detriment to the child.
The child, according to the father, asked “over a year ago” why he did not have the father’s surname, but that was not a direct request by the child for a name change. The father asserts that he and his partner “recently” “openly discussed” the child’s name with him, leading to the child apparently asking for the name change, but such discussions were not initiated by the child.
The Court accepts the mother’s evidence and finds that:
·The child’s present name is how the child knows himself, and for eight years the child’s surname has been Cann.
·The child knows that he is part of the father, even without the father’s surname.
·At the child’s present school the child is known as [X] Cann.
·The child adores the father, and he benefits from spending time with him.
·The mother will continue to facilitate the child’s meaningful relationship with the father.
There is force to the mother’s contention that the child will have confirmation, if necessary, that the father is his father from the proposed amendment to the child’s birth certificate inserting the name of the father as the child’s father.
There is no persuasive evidence before the Court that the child’s present meaningful relationship with the father will be enhanced by the Court making the father’s proposed name change. And there is a real risk that changing the child’s name as sought by the father will lead to some disruption in the child’s day-to-day life, at least in the short term, including emotional discomfort, particularly in the school context. In this latter context the mother’s evidence was that to create a new name for the child would label him as different.
As to the mother’s proposed Order for phone calls with the child during school holidays (proposed Order 19), the Court is of the view that it will be in the best interests of the child to make the mother’s proposed order (each Tuesday, Thursday and Sunday from 4:30 pm to 5 pm) noting that the child has experienced some difficulty in transitioning from three to nine consecutive nights during school holidays and his requests to the mother for regular phone calls during this period. However, from December 2020 such Order should change to phone calls only on Tuesdays and Thursdays, with a view to promoting further independence in the child.

Parental responsibility

The mother seeks an Order for sole parental responsibility, whereas the father seeks an Order for equal shared parental responsibility.
In the alternative, the mother seeks an Order that she have sole parental responsibility for making educational decisions in relation to the child. Lastly, again in the alternative, the mother seeks an Order for joint parental responsibility, but if the parties cannot reach agreement on major decisions relating to the child, that the mother be able to make the final major decision.
The Court notes that on 6 May 2016, when both parties were legally represented, that they agreed to an Order that the parties have equal shared parental responsibility. Both parties supported the continuation of this equal shared parental responsibility interim Order at the Court’s interim hearing held on 12 October 2016, again when they were both legally represented.
Barring emergencies, there would appear to be no major decisions looming for the child. A decision as to his high schooling will need to be made for him in due course, noting he is only presently in Year 2, aged almost eight years.
In his oral evidence in relation to the high schooling issue for the child, the father stated that he had not given serious consideration yet to this issue, whilst indicating that it was possible that he might consider high schools at Suburb F or Suburb E as suitable for the child. The mother’s views on this topic remain unknown.
Whilst recognising the shortcomings in the parties’ ability to communicate with each other in relation to this child both presently and prospectively, as discussed above under the meaningful relationship primary consideration, and whilst the Court has some reservations as to the prospective ability of these parties to reach agreement in a timely fashion in relation to the high schooling issue, it is nevertheless concerned that to make an Order for sole parental responsibility in favour of the mother carries the real risk of increased hostility, if not resentment, between the parties, and may potentially lead to increased conflict between them with adverse consequences for the child’s emotional well-being. The Court has similar concerns in relation to making the mother’s alternative proposed Orders in this context.
It is likely that both parties will wish to bring to bear significant considerations in relation to at least the high schooling issue when dealing with this issue.
It will be in the best interests of the child to make an Order that the parties have equal shared parental responsibility for major decisions relating to the child’s care welfare and development.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the child to make final parenting Orders as follows:
(1)     All previous parenting Orders are discharged.
(2)The parties shall have equal shared parental responsibility for the child [X] (“[X]”) born 2010.
(3)     [X] shall live with the mother.
(4)     During school term [X]:
(a)Is to spend every second weekend with his father from 3:10 pm Friday to 9:10 am Monday in alignment with the current fortnightly schedule.
(b)Is to spend additional time with his father during school terms on every second Wednesday from 3:10 pm until 9:10 am on the following Thursday morning in alignment with the current fortnightly schedule.
(5)During school term holidays the arrangement is to be as follows:
(a)The mother picks up [X] from after school at 3:10 pm on the last day of Terms 1, 2 and 3 and [X] stays with her for the first half of the school holidays until 3:00 pm on the second Sunday thereof.
(b)The exchange is to take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
(c)[X] stays with the father for the second half of the school term holidays from 3:00 pm on the second Sunday until the first morning of the next school term. The father is to take [X] to school on the first morning of the next school term and the mother is to pick him up from the school on the afternoon of the first school day after the holidays. [X] is to live with the mother that week until 3:10 pm on the Friday when the father picks up [X] from school at 3:10 pm and spends the weekend with him in alignment with the current fortnightly schedule.
(6)     During the Easter long weekend:
(a)The mother will pick [X] up from school at 3:10 pm on the Thursday afternoon preceding Good Friday and take [X] to his (hobby) class from 4:30 – 5:15 pm. [X] will spend the Thursday night with the mother.
(b)In odd numbered years [X] is to spend Good Friday and Easter Saturday with the father from 10 am Good Friday to 10 am Easter Sunday.
(c)In even numbered years [X] is to spend Easter Sunday and Easter Monday with the father from 10 am Easter Sunday until the father takes [X] to school at 9:10 am on the Tuesday morning.
(d)Exchanges are to take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
(7)In Christmas holidays until those commencing in December 2020, [X] is to spend week about with each parent except that:
(a)[X] is to be with the father from 12:30 pm on 24 December 2018 to 12:30 pm on Christmas Day 2018 and each even numbered year thereafter.
(b)[X] is to be with the father from 12:30 pm on Christmas Day 2019 to 12:30 pm Boxing Day 2019 and each odd numbered year thereafter.
(c)[X] is to spend from 12:30 pm on Christmas Day 2018 and each even numbered year thereafter with the mother and is to remain with her until:
(i)          If Christmas Day falls in a week when [X] stays with the mother, until the next scheduled changeover.
(ii)     If Christmas Day falls in a week when [X] stays with the father, [X] is to return to the father at 12:30 pm on Boxing Day.
(d)[X] will spend the first week of the Christmas holidays with the mother in even years and the first week with the father in odd years.
(e)The parent with care of [X] during the first week of the Christmas/New Year holidays will pick [X] up from school at 3:10 pm on the last day of term. To avoid disruption to the parents’ work schedule the first weekly exchange will take place at 10 am on the second Sunday of the holidays and each Sunday thereafter until the last Sunday of the holidays where [X] will stay in his mother’s care until the first day of the school year.
(f)Exchanges to take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
(8)During Christmas holidays commencing in December 2020 and in subsequent years:
(a)[X] is to spend half of the holidays with each parent.
(b)In even years [X] is to spend the first half of those holidays with the mother, except that he is to spend from 12:30 pm on 24 December to 12:30 pm on Christmas Day in even years and from 12:30 pm on 25 December to 12:30 pm on Boxing Day in odd numbered years with his father.
(c)In even numbered years [X] is to spend the second half of these holidays with the father, until the Sunday preceding the first school term of the following year. On that day, the last Sunday of the holidays, the father will return [X] to the mother at 3 pm to allow [X] to prepare for the new school year.
(d)Exchanges will take place:
(i)     At 3 pm on the day that falls at the mid point of the holidays to be calculated from the last day of school term until the Sunday preceding the first day of Term 1 of the new school year.
(ii)     At the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
(9)For Mother’s Day – if Mother’s Day falls on the father’s weekend [X] shall spend 7 hours with his mother at times agreed between the parties or failing agreement from 10 am to 5 pm.
(10)For Father’s Day – if Father’s Day falls on the mother’s weekend [X] shall spend 7 hours with his father at times agreed between the parties or failing agreement from 10 am to 5 pm.
(11)Mother’s birthday – if this day falls on a weekend [X] shall spend 3 hours with the mother if [X] is otherwise with his father. If this day falls on a school day the mother picks up [X] from school and returns him to his father at 5:30 pm.
(12)Father’s birthday – if this day falls on a weekend [X] shall spend 3 hours with the father if [X] is otherwise with his mother on this day. If this day falls on a school day the father picks up [X] from school and returns him to his father at 5:30 pm.
(13)[X]’s birthday – [X] spends 3 hours with his other parent if this day falls on a weekend or in the school holidays. If this day falls on a school day the parent that [X] is not otherwise staying with will pick up [X] from school at 3:10 pm and return him to the other parent at 5:30 pm.
(14)Exchanges for the occasions mentioned in paragraphs 9-13 above will take place at the Suburb A terminal whilst the father lives on the Region 1, and otherwise at McDonald’s Suburb B.
(15)In the event of the child suffering a medical emergency or illness requiring medical attention while spending time with or living with the other parent:
(a)Each parent is to be notified as soon as practicable by text message or email;
(b)Each parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as possible, including sufficient details to enable each parent to attend to visit the child, should he be admitted to hospital; and
(c)The medical practitioner or facility shall be advised that each parent has access to the child’s medical records and the information obtained with them upon request.
(16)Each parent may, if they choose, apply for a passport for [X], and the other parent will consent to the issue of that passport and will complete relevant sections of the passport application form and return the form to the parent applying for the passport within 7 days of being given it.
(17)[X]’s passport is kept with the mother at all times other than when [X] is travelling overseas with the father.
(18)Each parent by agreement be permitted to take [X] on a holiday for not more than 14 days upon giving the other parent two calendar months’ notice. Failing agreement between the parents the mother can holiday with [X] for up to 14 days in odd numbered years and the father can holiday with [X] for up to 14 days in even numbered years.
(19)Each parent is permitted to phone [X] during the school holidays every Tuesday, Thursday and Thursday from 4:30 – 5 pm by calling the other parent’s mobile phone. Either parent will not obstruct these calls and will always advise [X] that his other parent has called. Equally, each parent will encourage [X] to feel that he is allowed to call his other parent whenever he wishes at any reasonable time and for any reasonable length of time. However, from December 2020, such phone calls shall reduce to every Tuesday and Thursday from 4:30 to 5 pm.
(20)Any communication between the parties regarding [X] shall be via text message and/or email.
(21)Neither parent will denigrate the other in [X]’s presence or hearing, and each parent shall use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family in [X]’s presence or hearing.
(22)That the mother shall within fourteen (14) days of being sent any forms by the father relating to the insertion of the father’s name on the child’s birth certificate, sign and return to the father those forms and in the absence of compliance, a Registrar of this Court is appointed pursuant to Section 106A of the Family Law Act 1975 to sign those forms on the mother’s behalf.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 30 August 2018

[2018] FCCA 2367

31 August 2018

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