Chamberlain and Sievers

FAMILY COURT OF AUSTRALIA

CHAMBERLAIN & SIEVERS

[2010] FamCA 794

FAMILY LAW – CHILDREN – Parental responsibility – With whom the child lives and spends time – Mother and father consent to the allocation of equal shared parental responsibility for the child – Father consents to the child relocating to Queensland with the mother – Father will also relocate to Queensland – Main issues to be determined by the Court include the timing of the relocation, the child’s residence before and after relocation, and the child’s school enrolment – Parties restrained from relocating the child until specified time – Child to spend additional time with the father prior to relocation – Child to spend equal time with the mother and father in a week-about arrangement following relocation – Child to be enrolled in specific school

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Harris v Caladine (1991) 172 CLR 84
Marriage of L & T (1999) 25 Fam LR 590
MRR v GR (2010) 42 Fam LR 531
Sampson v Hartnett (No 10) (2007) FLC 93-350

APPLICANT:

Ms Chamberlain

RESPONDENT:

Mr Sievers

FILE NUMBER:

NCC

1764

2009

DATE DELIVERED:

10 September 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

1, 2 & 3 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bateman

SOLICITOR FOR THE APPLICANT:

Kekeff Associates, Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Weightman

SOLICITOR FOR THE RESPONDENT:

Byrnes & Cox Lawyers

Orders

All former parenting orders relating to the child J, born … August 2001, (“the child”) are discharged.
The mother and father shall have equal shared parental responsibility for the child.
Up to and including 9.00 am on 29 September 2010 the parties are restrained from moving the child’s residences outside the local council areas of H, and T, mid north coast, NSW, and before that time (unless otherwise agreed):
3.1The child shall live with the father:
a)   From 9.00 am Sunday 12 September 2010 until the commencement of school on Wednesday 15 September 2010,
b)     From 9.00 am Sunday 19 September 2010 until the commencement of school on Wednesday 22 September 2010, and
c)     From after school on Friday 24 September 2010 until 9.00 am on Wednesday 29 September 2010
3.2The child shall live with the mother at all other times.
From 9.00 am on 29 September 2010 up to and including 3 October 2010, the child shall live with the mother.
From 4 October 2010 the parties are restrained from moving the child’s residences to a place more than 25 kilometres distant from the central post office in …, far north Queensland, and after that time (unless otherwise agreed):
5.1The child shall live with the mother:
a) From 4 October 2010 until 6.00 pm on Friday 8 October 2010, and
b) From 6.00 pm on Friday 15 October 2010 until 6.00 pm on Friday 22 October 2010, and then every alternating week thereafter.
5.2The child shall live with the father from 6.00 pm on Friday 8 October 2010 until 6.00 pm on Friday 15 October 2010, and then every alternating week thereafter.
Order 5 hereof is suspended:
6.1During the Queensland Christmas school holidays (which are deemed to commence at 6.00 pm on the last day of school term and are deemed to end at 6.00 pm on the last day preceding the day upon which the child is due to return to school), during which time:
a)   The child shall live with the father for the first half of such holidays when the holidays commence in even numbered years, and for the second half of such holidays when the holidays commence in odd numbered years.
b)     The child shall live with the mother for the first half of such holidays when the holidays commence in odd numbered years, and for the second half of such holidays when the holidays commence in even numbered years.
6.2Between 9.00 am and 6.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall live with the mother on Mother’s Day and with the father on Father’s Day.
6.3On 30 August each year, on which day the child shall spend time with the parent with whom he is not then living:
a)   From after school until 6.00 pm, if a school day, and
b)     From 2.00 pm until 6.00 pm, if not a school day.
For the purposes of implementing Orders 3-6 hereof, the father shall collect the child from the mother’s residence at the commencement of the time that the child is to live or spend time with him, and the mother shall collect the child from the father’s residence at the commencement of the time that the child is to live or spend time with her.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
8.1The father on each Sunday and Wednesday when the child is living with the mother, between 6.00pm and 6.30pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
8.2The mother on each Sunday and Wednesday when the child is living with the father, between 6.00pm and 6.30pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
8.3The parents on their respective birthdays, if the child is not then living with the parent on the date that that parent’s birthday falls, between 6.00pm and 6.30 pm, and for that purpose the parent with whom the child is not then living shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is living shall ensure that the child is able to receive the other parent’s call on that number at that time.
The parties shall forthwith do all acts and things necessary to enrol the child at L School, far north Queensland, so that the child may commence attending that school as from Monday 4 October 2010, on condition that the mother bears sole liability for the school fees for the remainder of the 2010 academic year.
Each party shall ensure that, whilst the child is living with them, he is:
10.1Not delivered to school more than 30 minutes earlier than the commencement of class, or other school-endorsed activity for him, and
10.2Not collected from school more than 20 minutes later than the completion of class, or other school-endorsed activity for him.
Other than to explain the effect of these orders to the child, each party is restrained from discussing any aspect of this litigation with the child.
Each party shall enrol in a post-separation parenting program approved by the Director of Child Dispute Services Newcastle, within 28 days hereof, and thereafter participate in and complete that course, and then furnish to the other party a certificate verifying successful completion of the course.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.
Each party shall ensure the child’s attendance at all educational, sporting, cultural, and extra-curricular events in which the child is enrolled or in which the child is due to participate.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.
Each party is restrained from allowing the child to remain in any car, house, or other confined space in the presence of any person who is smoking.
Each party is restrained from permitting the child to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.
Each party is restrained from causing or permitting the child to be known by any surname other than “Sievers”.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
The father shall forthwith procure, and the parties shall thereafter maintain, a communication book to facilitate communication between the parties in respect of issues related to the child and each party shall relay important information concerning the child to the other by way of written notification in the communication book, which will travel with the child at change-overs.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Costs of and incidental to these proceedings, including the costs reserved by Order 5 made on 12 May 2010, are reserved for 28 days.
Any and all outstanding applications are dismissed.

Notation

(A)The parties acknowledge that, without undue delay, they will each do all acts and things necessary to enrol and participate in a course of therapeutic counselling with an accredited child psychologist or child psychiatrist to address the conflict between them and their different parenting styles, and for that purpose:
a)They will participate individually and jointly as deemed appropriate by the therapist,
b)They will ensure the attendance or absence of the child as deemed appropriate by the therapist, and
c)They will bear the costs in equal shares, and pay such fees as and when they fall due.

IT IS NOTED that publication of this judgment under the pseudonym Chamberlain & Sievers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1764 of 2009

MS CHAMBERLAIN

Applicant

And

MR SIEVERS

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in these proceedings again find themselves burdened by controversy about proper parenting orders for their son, J, born in August 2001 (“the child”).
The parties previously reached agreement about final parenting arrangements for the child in November 2005, and that agreement was ratified by the Court making final orders on 28 April 2006. Those orders provided for the child to live with the parties in a shared care arrangement, requiring him to live with the parties for equivalent amounts of time.
The current proceedings were commenced by the mother in August 2009, proposing that the child live with her and that she have sole parental responsibility for him. The mother also proposed curtailment of the amount of time spent by the child with the father. Those changes were opposed by the father.
As the litigation progressed, the ambit of the dispute broadened.
In December 2009 the mother filed an Amended Application seeking additional orders that would permit her to relocate with the child from the mid north coast of NSW to the far north coast of Queensland.
In July 2010 the mother filed another Amended Application seeking additional orders to set aside a child support agreement struck by the parties on 30 June 2007.
The father also opposed the additional orders proposed by the mother.
On the cusp of the trial the parties were commendably able to substantially narrow their dispute, such that only a few discrete issues remained unresolved. The trial therefore proceeded in respect of only those residual issues, and the positions of the parties continued to evolve during the trial.

Background facts

The parties commenced their cohabitation in about March 1999, having commenced a relationship about a year before.[1]
[1] Mother’s affidavit filed 8 July 2010, par 3
Although the mother initially said that the parties lived together for 3 years,[2] it was in fact for a period exceeding 4 years. That computation is made possible because the mother states that their separation actually occurred on 30 August 2003,[3] which is well over 4 years after their cohabitation commenced.
[2] Mother’s affidavit filed 8 July 2010, par 2
[3] Mother’s affidavit filed 8 July 2010, pars 16, 19
The child was born in August 2001,[4] during the parties’ cohabitation. The child is presently aged 9 years.
[4] Mother’s affidavit filed 8 July 2010, par 3
Litigation was initially commenced between the parties shortly following their separation on 30 August 2003, and interim parenting orders were made by this Court on 17 October 2003.[5] Those orders provided as follows:
1.That the child [J] born on the […] of August 2001 live with the mother at all times that he is not living with the father pursuant to Orders made this day.
2.That the child live with his father from 3:00pm Monday until 5:00pm Wednesday each week and at such other times that may be agreed between the parties.
[5] Father’s affidavit filed 11 November 2009, par 8
The effect of those orders was for the child to live with the father for two days each week, and otherwise with the mother.
Some further interim orders were made on 28 May 2004,[6] which relevantly provided as follows:
[6] Family Report, par 4
1.The father to have contact with the child [J] born […] August 2001 as follows:-
(i)From 3:00pm 7 May 2004 until 5:00pm 19 May 2004. Changeover to occur at the [H] Post Office.
(ii)From 4:00pm Sunday 27 June 2004 until 7:00pm 7 July 2004.
2.That pending further order of the Court each party be and is hereby restrained from:-
2.1Applying for or obtaining a passport for the child of the relationship namely [J] born […] August 2001; and
2.2Applying to add the name of the said child to any other passport in particular a passport in the name/s of [the father] or [the mother].
3.That pending further order of the Court each party be and is hereby restrained from removing the child from Australia.
4.That residence period set out in clause 2 of orders of 17 October 2003 be suspended on Monday 24 May and to commence from 3:00pm Tuesday 25 May and conclude on Friday 28^th May at 5:00pm, collection and delivery as set out in clause 4 of the said orders.
It seems that the interim orders prevailed uneventfully until the parties reached agreement on a final parenting arrangement in November 2005, which was consummated by final parenting orders made on 28 April 2006.[7] Those final orders brought the litigation to an end.
[7] Father’s affidavit filed 11 November 2009, par 8
The final parenting orders provided as follows:
1.That the child of the relationship namely [J] born […] August 2001 reside with each of the parties as follows:-
Until [the child] starts School
1.1With the mother from 5:00 am (sic) Wednesday until 5:00 pm Sunday and with the father from 5:00 pm Sunday until 5:00 pm Wednesday in each week.
1.2For four (4) weeks each year as agreed but failing agreement for such period as is nominated by such party in writing provided that neither party shall be entitled to nominate a period of more than seven (7) consecutive days at a time and further provided that such holiday residence commences not earlier than 9:00 am on any given day and concludes not later than 7:00 pm on any given day.
1.3With the mother from 4:00 pm Christmas Eve until midday Christmas Day in each even year and with the father from midday Christmas Day until 4:00 pm Boxing Day in each even year and with the father from 4:00 pm Christmas Eve until midday Christmas Day in each odd year and with the mother from midday Christmas Day until 4:00 pm Boxing Day in each odd year.
1.4With the mother from 9:00 am until 6:00 pm on each Mother’s Day.
1.5With the father from 9:00 am on each Father’s Day.
1.6On […] January in each year from 2:00 pm until 6:00 pm unless [the child] is already with the father pursuant to these Orders.
1.7On [the child’s birthday] in each year from 2:00 pm until 6:00 pm unless [the child] is already with the father and in the event of [the child] being with the father on such day then [the child’s] residence with the father shall be suspended between the hours of 2:00 pm and 6:00 pm.
1.8With the mother on [the child’s] birthday] in each year from 2:00 pm until 6:00 pm unless [the child] is already with the mother and in the event of [the child] being with the mother on such day then [the child’s] residence with the mother shall be suspended between the hours of 2:00 pm and 6:00 pm when [the child] shall be with the father.
1.9With the mother on her birthday between 2:00 pm and 6:00 pm unless [the child] is already with the mother on such day.
1.10With the father at some time when the mother is away with the Army Reserve but not less than one weekend per month commencing 5:00 pm Friday.
After [the child] starts School
1.11With the mother from conclusion on (sic) school on Wednesday until 5:00 pm Sunday in each week during the school term and with the father from 5:00 pm Sunday until commencement of school on Wednesday in each week during the school term.
1.12With each of the parties for half of the gazetted school holidays as agreed but failing agreement with the mother for the first half of such school holidays commencing 9:00 am on the first Saturday following the breakup of school term and concluding at 9:00 am at the mid-point of such school holiday.
1.13With the mother from 4:00 pm Christmas Eve until midday Christmas Day in each even year and with the father from midday Christmas Day until 4:00 pm Boxing Day in each even year and with the father from 4:00 pm Christmas Eve until midday Christmas Day in each odd year and with the mother from midday Christmas Day until 4:00 pm Boxing Day in each odd year.
1.14With the mother from 9:00 am until 6:00 pm on each Mother’s Day.
1.15With the father from 9:00 am on each Father’s Day.
1.16On 19 January in each year from 2:00 pm until 6:00 pm unless [the child] is already with the father pursuant to these Orders.
1.17On 30 August in each year from 2:00 pm until 6:00 pm unless [the child] is already with the father and in the event of [the child] being with the father on such day then [the child’s] residence with the father shall be suspended between the hours of 2:00 pm and 6:00 pm.
1.18With the mother on [the child’s birthday] in each year from 2:00 pm until 6:00 pm unless [the child] is already with the mother and in the event of [the child] being with the mother on such day then [the child’s] residence with the mother shall be suspended between the hours of 2:00 pm and 6:00 pm when [the child] shall be with the father.
1.19With the mother on her birthday ([…] October) each year between 2:00 pm and 6:00 pm unless [the child] is already with the mother on such day.
1.20With the father when the mother is away with the Army Reserve but less than one weekend per month commencing 5:00 pm Friday.
The effect of those orders was that the child would live in a shared care arrangement such that, after the child commenced school, he spent 3 nights each week and half of all school holidays with the father. That was an arrangement that reflected the recommendation of the Family Consultant appointed in those proceedings.[8]
[8] Family Report, par 5

There is no evidence of any disharmony surrounding the implementation of those orders until some 3 years later in April 2009. In fact, the parties amicably agreed to amend their routine so that the child would spend 3 days each week and also one weekend each month with the father, without interruption by school holiday periods.[9]
[9] Father’s affidavit filed 11 November 2009, par 8
It is common ground that, but for a single occasion on the child’s birthday in August 2009,[10] the child did not spend any time with the father between April 2009 and late 2009.[11]
[10] Father’s affidavit filed 26 August 2010, par 4
[11] Mother’s affidavit filed 8 July 2010, par 21
There is no dispute that in April 2009 the father was compelled to surrender the home in which he was living to the mortgagee, and he then moved from the mid north coast to the central coast of NSW. The father asserts that he was in financial difficulty, living and working away from the mother and child who remained on the mid north coast of NSW, working split shifts, and living in unsuitable accommodation for the child.[12] The father also asserts that he explained his predicament to the mother at the time, who was sympathetic.[13] For her part, the mother concluded that the father was disinterested in the child because of his absence from the child’s life and the infrequency of his telephone calls to the child.
[12] Father’s affidavit filed 26 August 2010, par 4
[13] Father’s affidavit filed 11 November 2009, par 3
There is no doubt that the telephone communication between the child and the father continued, although there is controversy about its frequency. The father said that it occurred at least weekly,[14] whereas the mother alleges that the father barely called on a monthly basis over that period.[15]
[14] Father’s affidavit filed 11 November 2009, par 5
[15] Mother’s affidavit filed 8 July 2010, par 106.
In any event, the mother’s dissatisfaction with the circumstances at that time led her to institute the current proceedings on 24 August 2009. She was prompted to do so by what she calls the disappearance of the father from the child’s life,[16] even though she concedes the continuing telephone communication between the child and the father.[17]
[16] Mother’s affidavit filed 8 July 2010, par 21
[17] Family Report, par 9
Curiously, despite commencing the proceedings on 24 August 2009, the mother said nothing of the proceedings to the father when the child spent time with him only a week later for the child’s birthday. The father learned of the proceedings when he was served with the mother’s Application and affidavit almost a month later on 28 September 2009.[18]
[18] Father’s affidavit filed 26 August 2010, pars 4-5
The father moved from the central coast of NSW back to the mid north coast of NSW contemporaneously with the service of those documents upon him.[19] He then established contact with the mother in October 2009 and sought the resumption of the child spending time with him,[20] but that was resisted by the mother.[21]
[19] Father’s affidavit filed 11 November 2009, par 4
[20] Mother’s affidavit filed 8 July 2010, par 107
[21] Father’s affidavit filed 11 November 2009, par 6
In the face of the pending proceedings and the mother’s resistance, the father sought legal assistance. The father’s lawyer corresponded with the mother’s lawyer proposing that the operation of the parenting orders be resumed. In response to that request the mother’s lawyer asserted that the father had “abandoned” the existing parenting orders, indicated that a child dispute conference was some weeks away, and declined to permit the child to resume spending time with the father. The lawyer specifically noted that his response was in accordance with the mother’s instructions.[22]
[22] Father’s affidavit filed 11 November 2009, par 7, Annexure A
The parties attended a child dispute conference on 20 November 2009 but failed to resolve their differences. Even though the mother’s new partner learned of his posting from the mid north coast of NSW to the far north coast of Queensland a week before,[23] no mention of any proposed relocation of the mother and child was made at the child dispute conference.[24]
[23] Affidavit of Mr R, par 3
[24] Family Report, par 14
The matter came before the Court on 11 December 2009 for interim determination, at which time the issue of relocation was raised. On that date the parties agreed upon interim parenting orders and notations to the following effect:
1.That Orders 1.11 and 1.20 inclusive made in the Family Court of Australia at Newcastle on 28 April 2006 are suspended in their operation.
2.The child to spend time with the father during the New South Wales school holidays as follows;
From: 1. 9am on 19 December to 23 December 2009 at 5:00pm.
2. 9am on 29 December to 31 December 2009 at 5:00pm.
3.      9am on 6 January to 10 January 2010 at 5:00pm.
4.      9am on 16 January to 20 January 2010 at 5:00pm.
5.      9am on 26 January to 27 January 2010 at 5:00pm.
Notations
A.These orders are made without admission by either party and pending the hearing of the Mother’s Application for relocation.
B.In the event that the mother’s said application is not able to be determined by the Court prior to the resumption of the school year in New South Wales for 2010, the parties agree that the child shall spend time with the father from 5:00pm Sunday evening until the conclusion of school Wednesday at 3:30pm, however each fourth weekend commencing Friday 19 February 2010 [the child] shall spend time with the father from after school Friday to before school Monday.
The child resumed spending time with the father once those orders and notations were made, the effect of which was that the child spent three nights per week, and one weekend per month, with the father.
The parties attended a second child dispute conference on 18 December 2009,[25] but again failed to achieve any compromise.
[25] Family Report, par 14
On 22 December 2009 the mother filed an Amended Application proposing her relocation to far north Queensland with the child, which issue was first foreshadowed to the Court and the father on 11 December 2009.[26] The mother did not expressly seek any orders providing for the child to spend time or communicate with the father.[27]
[26] Order 2 and Notation A made on 11 December 2009.
[27] Family Report, par 16
The mother’s partner, whom she has since married, moved to far north Queensland to take up his new posting in January 2010.[28] The mother remained living with the child on the mid north coast of NSW pending the hearing of her interim application to relocate with the child to meet up with her husband in Queensland. That interim hearing was fixed before the Court on 20 April 2010.[29]
[28] Mother’s affidavit filed 8 July 2010, par 58
[29] Order 1 made on 19 February 2010
For reasons which are insufficiently explained by the evidence, the mother’s interim application for relocation was withdrawn, but she then proceeded to relocate with the child to Queensland in any event on or about 18 April 2010. The mother attributes those events to miscommunication between herself and her then solicitor.[30]
[30] Mother’s affidavit filed 8 July 2010, pars 62-63
The circumstances of the relocation are troubling. Even if the mother was genuinely mistaken about her freedom to leave with the child for Queensland, the manner in which it occurred still reflects poorly upon her. Without any warning to the father at all, the mother and/or her husband sent a text message to the father after they had already departed saying:[31]
“[Father], we have relocated to Queensland. We are providing [child] with a stable loving home. You do not have a stable home nor any consistent long term employment. You provide no maintenance we must support him. Communication with my wife or myself will be through solicitors. [Child] will be available by phone on my number between 6 and 7 pm.” (sic)
[31] Mother’s affidavit filed 8 July 2010, par 64
On the advice of her counsel, received on or about 20 April 2010, [32] the mother returned with the child from Queensland to the mid north coast of NSW, taking some days to do so.
[32] Mother’s affidavit filed 8 July 2010, pars 66-69
On 12 May 2010 the Court made orders, pursuant to the father’s interim application, restraining the mother from relocating the residence of the child beyond the mid north coast of NSW and reserving costs.[33]
[33] Orders 4 and 5
The mother has taken a literal approach to the interim parenting orders made on 11 December 2009. Although the Court then only made orders for the child to spend time with the father for discrete periods in December 2009 and January 2010, the parties had a clear understanding about the frequency with which the child would spend time with the father thereafter.[34] Acting upon her unilateral interpretation of that agreement, it is conceded that the mother refused to permit the child to spend any time with the father during both the April[35] and July[36] school holidays in 2010.
[34] Notation B made on 11 December 2009
[35] Mother’s affidavit filed 8 July 2010, par 93; Family Report, par 19
[36] Father’s affidavit filed 26 August 2010, par 29
The Family Consultant met with the child, parties, and other relevant persons on 27 July 2010 and produced her report on 2 August 2010. The report was then released to the parties on 4 August 2010.
The matter came before the Court for trial on Wednesday 1 September 2010. The trial was concluded on Friday 3 September 2010 and judgment reserved.

Initial proposal and evidence of the mother

The mother approached the trial pressing for the orders set out in the Amended Initiating Application filed by her on 8 July 2010, which were the fourth set of orders she sought since commencing the proceedings barely 12 months ago.
The application of the mother was for orders achieving the following effect:
a)The setting aside of a child support agreement entered into by the parties on 30 June 2007 (Order 1).
b)The child to live with her, and for her to have sole parental responsibility for the child (Order 3).
c)Depending upon whether the mother is able to relocate to far north Queensland with the child (Orders 4, 22), and conditional upon the father’s personal supervision of the child (Orders 5, 11):
i)Whilst the child lives on the mid north coast of NSW, the child should spend time with the father on one weekend per month and two nights per week during school terms, and for half of school holidays (Orders 5, 5.1, 5.2, 5.3),
ii)Whilst the child lives on the far north coast of Queensland, the child should spend time with the father during some school holiday periods, and for one weekend during school terms (Orders 5.4, 5.5, 5.6, 7)
d)Various orders for implementation of the time spent by the child with the father, depending upon whether the child lives in Queensland or NSW (Orders 8-10).
e)Telephone communication between the child and both parties (Orders 12-14).
f)Miscellaneous injunctive orders (Orders 15-16, 23-26).
g)The issue of a passport for the child (Orders 19-21).
h)The father’s participation in a parenting course and drug and alcohol counselling (Orders 17-18).
i)The parties’ use of a communication book (Order 27).
In addition to the orders proposed in her Amended Initiating Application, the mother also sought orders set out within her Application in a Case filed on 13 July 2010. Although that Application in a Case was contemplated by earlier procedural orders,[37] the failure to file the Application until 13 July 2010 made it otiose for two reasons.
[37] Notation A(a) made on 12 May 2010
Firstly, the belated filing of the Application meant that it could not be allocated a date for interim hearing in advance of the final trial on 1 September 2010. Accordingly, the Application was made returnable at the final trial.
Secondly, the mother’s application was for orders proscribing the father’s conduct in respect of the child’s attendance at school at certain times. By filing an Application in a Case, the mother purported to seek those orders on only an interim basis, but in reality, she desired that outcome on a final basis. Why the mother did not include an application for such orders in her Amended Initiating Application filed only days before is perplexing. To grant the orders sought in the Application in a Case would mean that they would not survive the final parenting orders simultaneously made in response to the mother’s Amended Initiating Application.
In support of her proposals the mother was permitted to rely upon the following affidavit evidence:[38]
a)   Affidavit of the mother filed on 8 July 2010.
b)     Affidavit of the mother filed on 13 July 2010.
c)     Affidavit of the mother filed on 1 September 2010.
d)     Affidavit of Mr R filed on 8 July 2010.
e)     Affidavit of W Chamberlain filed on 8 July 2010.
f)   Affidavit of Ms C filed on 24 August 2010.
g)     Affidavit of Mr N filed on 23 August 2010.
h)     Affidavit of Ms B filed on 13 August 2010 (paragraphs 1-3 and 14-16 only).
i)   Affidavit of Mr B filed on 13 August 2010 (paragraphs 1-4 and 18-19 only).
[38] Orders 5-6 made 19 February 2010; Orders 2 and 5 made 31 August 2010

Initial proposal and evidence of the father

The father approached the trial seeking the orders set out within his Amended Response filed on 26 August 2010.
In summary, the father’s proposal was that:
a)   The parties have equal shared parental responsibility for the child (Order 1).
b)     In the event of the parties living in close proximity, the child shall live in a shared care arrangement largely reflecting the agreement found in the earlier orders of the Court made on 28 April 2006 (Order 2).
c)     In the event of the parties living so far apart that shared care is impracticable, then subject to arrangements for defined special days (Orders 4-5, 17), the child shall live with the father and spend time with the mother for half of the Christmas school holidays and almost the entirety of every other school holiday period (Order 3).
d)     The child shall have telephone communication with the parties (Order 5).
e)     The parties should be bound by various injunctive orders (Orders 6-16, 19), including that the child’s surname remain unchanged (Order 15).
f)   The Court make a declaration about the effect of the orders (Order 18).
The parenting orders proposed by the father joined issue with the parenting orders proposed by the mother. However, there was no formal joinder of issue on the orders sought by the mother to set aside the child support agreement. Nevertheless, it was mutually understood that those orders were also opposed by the father.
In support of his proposals the father was permitted to rely upon the following affidavit evidence:[39]
a)   Affidavit of the father filed on 11 November 2009.
b)     Affidavit of the father filed on 12 December 2009 (paragraphs 9-13 and 16-17 only).
c)     Affidavit of the father filed on 26 August 2010.
[39] Orders 5 and 7 made 19 February 2010; Order 4 made 31 August 2010

Evidence of the family consultant

Following commencement of the proceedings in August 2009, the parties participated in child dispute conferences with a Family Consultant on 20 November 2009 and 18 December 2009 without achieving any compromise.
As the litigation progressed, the Court ordered the preparation of a family report pursuant to s 62G of the Family Law Act on 19 February 2010. Pursuant to that order, another Family Consultant prepared the family report.
The affidavit of the Family Consultant, annexing the family report, was adduced in evidence. The family report was supplemented by the evidence she gave orally in cross examination during the trial.

Partial agreement between the parties

At the request of the parties, the commencement of the trial was delayed to permit their negotiations. The parties did not achieve a settlement of all issues in dispute, but the issues were substantially narrowed.
During the course of the evidence the father tendered two Minutes of Orders proposed by him.[40]
[40] Exhibits F1 and F2
The mother gave oral evidence that she agreed to all but a few identified portions of the orders proposed in the father’s first Minute of Order,[41] and opposed all of the orders set out in the father’s second Minute of Order.[42]
[41] Exhibit F1
[42] Exhibit F2
The mother also tendered a Minute of Order, but not until final submissions were commenced.[43]
[43] Exhibit M1
The parties acknowledged that any proposed orders not comprised within the various Minutes of Orders were abandoned.
By reference to the evidence and submissions, the residual controversial issues between the parties were as follows:
a)   The timing of the child’s relocation to far north Queensland (Order 1 of Exhibit F2; Order 1 of Exhibit M1).
The parties agreed that the child could relocate with the mother to far north Queensland from the mid north coast of NSW, and that the father would also relocate his residence to the same area to permit the child to retain frequent interaction with him. The mother wished the relocation to occur in the school holidays between the third and fourth academic terms, but the father wished the relocation to be delayed until the conclusion of the 2010 academic year.
b)     The amount of time that the child would live with each of the parties before the child’s relocation to far north Queensland (Orders 2, 3, and 5 of Exhibit M1).
The mother proposes that the time the child lives with the father be structured in two tranches, if the relocation is to occur in September 2010, but that the existing interim arrangement be curtailed if the relocation is delayed until December 2010. The father proposes continuation of the interim arrangement, but an expansion of the child’s time with him in the September school holidays if the relocation is to occur in September 2010.
c)     The amount of time that the child would live with each of the parties in their new households in far north Queensland (Orders 2 and 3 of Exhibit F2; Orders 4 and 5 of Exhibit M1).
The parties agreed that the child would live in each household in a shared care arrangement, but differed upon the duration of the child’s residence with each party. The father desired an equal time arrangement, but the mother wanted the child to live with the father for only five instead of seven consecutive nights per fortnight. The mother was however agreeable to equal division of the school holidays.
d)     The manner of division of the Christmas school holidays (Orders 6(b)-6(e) of Exhibit F1; Orders 2(b), 2(c), 3(b), and 3(c) of Exhibit F2).
The parties disputed the manner in which the period across Christmas Eve, Christmas Day, and Boxing Day should be equitably shared with the child. The father proposed splitting those days, which would necessitate the parties remaining in and around the far north Queensland city in which they lived over that period. The mother proposed that the Christmas period simply fall into the first half of the Christmas school holidays, which the child would spend with them in alternating years. That would enable family travel beyond the environs of their city of residence to share Christmas with members of their extended families. The father ultimately agreed to the mother’s proposal and the issue dissolved.
e)     The identity of the school to be attended by the child upon his relocation to far north Queensland (Order 3 of Exhibit F1; Order 6 of Exhibit M1).
The mother had identified the school she wished the child to attend. Although the father had no overt criticism of that school, he wanted time to consider other options.
f)   The time during which the parties must complete a post-separation parenting program (Order 10 of Exhibit F1; Order 7 of Exhibit M1).
The father wanted the program completed by each of them within 28 days. Although the mother was content to enrol within that period, she did not regard it as feasible to require completion of the program in such a short time-frame. The father accepted the mother’s point and the issue dissolved.
g)     Whether the parties should be restrained from using alcohol at all, or at least to excess, whilst they had the child living with them (proposed verbally by the mother).
The mother desired an injunctive order to that effect. Although agreed that neither party should be intoxicated whilst caring for the child, the father was equivocal about an order in the terms proposed because of problems associated with definition and enforcement. The mother ultimately accepted that an injunctive order was incapable of enforcement and was liable to cause more problems than it solved and so she abandoned her application.
h)     Whether the parties should be restrained from discussing the litigation, in one form or another, with the child (Order 4 of Exhibit F2).
The father desired such an injunction. The mother’s equivocation about such a restriction arose from her concerns about the ambit of the embargo. Given that the child would need to know about his impending move to Queensland and the time he would live with each party, some aspects of the litigation would need to be legitimately discussed with the child.
i)   The need for an injunctive order precluding the child being delivered to his school too early and from being collected from his school too late (Order 9 of Exhibit M1).
The mother wanted such a restriction upon the father, whereas the father wanted any such restriction to bind the parties equally and debated the terms in which any such order should be made.
j)   The need for an injunctive order about the child’s supervision by only the father or his nominee approved by the mother (Order 8 of Exhibit M1).
The mother desired such a restrictive order as an extension of an earlier order made consensually on 11 December 2009. The father opposed it.

Determination of the contested issues

Although the parties have resolved substantial tranches of their dispute, the remaining contentious issues must still be determined by reference to the provisions of Part VII of the Family Law Act (“the Act”).
The Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D). When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s.60CC).
With those provisions in mind I turn to consider the contentious issues individually.

Timing of the relocation

Given the belated agreement between the parties that the child should relocate to far north Queensland with the mother, and that the father himself would relocate to the same vicinity so as to remain close to the child, the mother advocated for the relocation to occur without undue delay. She wished to move in the school holidays between the third and fourth NSW school terms, so that the child would be settled to resume school in the fourth term in Queensland.
The mother advanced a number of reasons for her position.
Firstly, the accommodation she has been renting at a reduced rate since her reluctant return to NSW in April 2010 will not be available to her at the reduced rate for much longer. Her current rent is only $100 per week, but the owner of the flat in which she lives expects to demand rent of around $700 per week once the summer season starts from early October 2010. The mother denies her financial capacity to meet such a vastly increased cost. The mother cannot move into the local rental property she owns jointly with the maternal grandmother because it is leased until April 2011. She has inquired about alternate rental properties, but she also regards them as too expensive. As an indication of cost, she said that she and the maternal grandmother rent their property for $350 per week. If the mother rented a different property, the rent would still be more than three times her current rent. There was a possibility that she could stay temporarily with a friend, but that was no more than an unexplored possibility at this stage.
Secondly, the mother’s financial position is much less secure in NSW than it would be in Queensland. That is because she only has part-time work available in the locality where she currently resides, but has full-time employment waiting for her in the locality of her intended residence in Queensland. Her income will therefore be greater in Queensland. Moreover, once she moves, she and her husband will be relieved of the burden of maintaining two households – one in Queensland and the other in NSW. They will then only have the one household in Queensland.
Thirdly, the mother’s husband completes his long service leave in late September 2010 and he must return to Queensland to resume his employment duties.[44] The mother does not wish to be separated from him for several more months until December 2010. She is stressed and unhappy about the residential circumstances that have prevailed pursuant to the injunctive orders made on 12 May 2010.
[44] Affidavit of Mr R, par 35
Conversely, the father’s only reason for proposing that the child remain in NSW attending his current school until the end of the academic year was that such an arrangement would offer the child more continuity and less disruption.
When cross examined, the father conceded that the mother apparently had good economic reasons for wishing to relocate in the September holidays rather than waiting until the December holidays. That concession was all the more important in view of the extent of the father’s economic contribution to the maintenance of the child.
The father conceded that he currently pays child support of only $87 per month, which he stressed was pursuant to a child support agreement voluntarily struck between the parties some years ago. He also admitted that, despite the modest amount of child support payable, he had fallen into arrears with payments. The mother gave uncontested evidence about the amount of child support she has received from the father.[45]
[45] Mother’s affidavit filed 8 July 2010, par 47
The father has also been unable to contribute to significant dental costs incurred for treatment of the child.[46]
[46] Mother’s affidavit filed 8 July 2010, pars 45-46
The conclusion is unavoidable that the primary burden of maintaining the child has fallen upon the mother and her husband, and that that situation will continue into the foreseeable future.
Given the evidence the father heard from the mother about the uncertainty of accommodation arrangements for herself and the child if they are restrained from relocating to Queensland until December 2010, the father was also impelled to admit that he was concerned about the child’s accommodation should he and the mother be forced to remain in NSW for several more months. The father was apparently unable, and perhaps even unwilling, to offer the mother and child temporary financial assistance to overcome that problem.
The fact that the father decided to withdraw his opposition to the child’s relocation with the mother to far north Queensland, and relocate himself to the same locality, should not be permitted to pass without compliment. That decision was a testament to the father’s willingness to compromise and a tribute to his attitude to parenthood. Hopefully the mother will reflect upon that development and afford the father the respect he deserves for that decision. However, having come to that conclusion, the father was cross examined about the speed with which he could arrange his own relocation.
The father unconvincingly rejected the suggestion that he could make arrangements to relocate within as few as three weeks, but he did not assert that the delay would be measured in months. The father agreed he would probably only need to give his current employer two weeks notice of his resignation. He will not be confronted by any problems in swiftly departing his current accommodation. Presently he lives between two houses in two different townships on the mid north coast of NSW. He lives with friends and has no obligation under any lease. Since the father is employed as a real estate agent, he has skills in the realty industry and will likely encounter less difficulty than most in finding alternate accommodation in far north Queensland on reasonably short notice.
The Family Consultant was cross examined about the preferences of the parties. Her clear recommendation was that, since the parties had agreed upon relocation, it should occur as soon as practicable. The Family Consultant said that the mother would certainly be happier with an immediate relocation, and her happiness would affect the child’s happiness. The Family Consultant said she thought that the mother would be better able to meet the child’s needs if she was happier.
Although the Family Consultant agreed there was arguably an advantage in the child completing the 2010 school year at his current school in NSW, her opinion was that there was greater advantage for the child in living with a happy mother in Queensland.
I accept that the reasons advanced by the mother for relocating as soon as practicable are efficacious. They are more convincing than the father’s simply stated desire for continuity until the end of the school year. That of itself is not a compelling reason. Children are often called upon to move school, even mid term, when the family’s needs require it. There is no evidence in this case that the child will be deleteriously affected by his relocation to Queensland in the school holidays between school terms, rather than at the end of the school year.
The evidence of the Family Consultant was supportive of those findings. Her opinions were logical, reasoned, and clear. I accept her evidence because there was no reason advanced why I should not.
The orders therefore permit the child to relocate with the mother to far north Queensland in the upcoming school holidays in late September 2010. Because there is only an overlap of one week between the NSW and Queensland school holidays at that time, the relocation will need to occur within that week.

Duration of the child’s residence with each party before relocation

Under existing arrangements, whilst the child lives with the mother on the mid north coast of NSW,[47] the child spends time with the father each week from Sunday afternoon until Wednesday, and for one weekend each month. That arrangement was the subject of agreement between the parties and is not a formal order of the Court.[48] That arrangement has now been in place for nearly 10 months.
[47] Order 4 made on 12 May 2010
[48] Notation B made on 11 December 2009
The Family Consultant indicated that there was some merit in the child spending some extra time with the father during the upcoming school holidays immediately before his departure for Queensland. Given that the father may experience some transient delay in making his own arrangements to move to far north Queensland, there will be a short delay in re-introducing the residential regime for the child and father in Queensland. I am therefore satisfied that, in accordance with the Family Consultant’s recommendation, provision should be made for the child to spend a little more time with the father in NSW before the relocation occurs. The orders so provide.
The provision for extra time before departure is quite moderate in view of the fact that the interruption to the routine of time spent by the child with the father caused by the relocation to Queensland is likely to be of short duration. The father’s evidence left me with the clear impression that he could comfortably arrange his own relocation to Queensland within about a month. By the time these orders and reasons are published, he will have about that period of time before the child’s residence with him begins in Queensland.

Duration of the child’s residence with each party after relocation

The mother proposed that, once the relocations of the child and parties to far north Queensland are complete, the child should live with the father for five consecutive nights per fortnight. Although her Minute of Orders expressed orders in terms of the child “spending time” with the father in lieu of “living” with the father, her counsel conceded in final submissions that the mother was content with orders expressed in terms providing for the child to live with the father at certain times. That was the father’s desire.
The father pressed for a residential regime of equal time in each household. He proposed that the child live for seven consecutive nights per fortnight with each party.
Neither party was able to clearly articulate in their evidence why the child accrued an advantage through implementation of their own proposal, or suffered disadvantage through implementation of the competing proposal. The mother’s reason was pared down to her believing that she offered the child more routine than the father, and the father’s position was revealed to be simply that he regarded equal division of time between the parties as fair.
The Family Consultant said in cross examination that the numerical division of time in each household was really inconsequential, given the strength of the child’s relationship with each party.
The opinion expressed by the Family Consultant in the family report was that, assuming the parties remained living in reasonably close proximity to one another, serious consideration should be given to an equal time residential arrangement.[49] That opinion was posited upon two conditions being met by the mother – being her willingness to share parental responsibility for the child, and her making a genuine effort to improve her level of communication with the father.
[49] Family Report, par 135, recommendation IV
In the event of the mother’s refusal, or predicted failure, to achieve those outcomes the Family Consultant said in cross examination, as she did in the family report,[50] that the child’s best interests would probably be met by him living predominantly with the father.
[50] Family Report, pars 123, 134
The mother did give evidence during her cross examination that permits a finding that she probably will conduct herself in the future in a manner that is conducive to an equal time residential arrangement.
Firstly, the mother relinquished her proposal for the allocation to her of sole parental responsibility for the child. She accepted that the parties should have equal shared parental responsibility for him. Despite having excluded the father from participation in decisions about significant issues for the child in the past, such as his school enrolments,[51] consultation with a psychologist,[52] and the relocation to Queensland, she was bound to accept that it was improper for her to act unilaterally on issues of that nature.
[51] Family Report, pars 14, 31, 54, 65
[52] Family Report, par 31
Secondly, she recognised that the level of her communication with the father was historically poor and that she was as much to blame for that as the father. She promised her commitment to repair their parental relationship. She agreed to undertake a post-separation parenting program. She also agreed to participate in therapeutic counselling to abate their conflict and reconcile their different parenting styles.
Thirdly, she was prepared to abandon complaint about the father’s standard of care for the child. Although she may still regard her standard of care for the child as being superior to that provided by the father, she resiled from allegations of his abusive neglect of the child. She accepts the child is safe in the father’s home, such as to justify him living with the father for substantial periods of time. She was also prepared to readily acknowledge that the child and father loved one another deeply.
The oral evidence given by the mother elaborated evidence given in her recent affidavit to the effect that she is motivated to promote the child’s relationship with the father.[53]
[53] Mother’s affidavit filed 8 July 2010, par 112, 119
I accept the mother genuinely desires better communication with the father and that she is committed to improve it. However, that improvement will not be realised immediately. The relationship between the parties deteriorated over a period of years and it is likely that rejuvenation of the relationship will also take some time. The partial compromise of the litigation, and the expressions of sentiment by the parties in cross examination for improved relations, is indicative of a positive start by the parties on the path to redemption of their parental relationship but there is yet a long way to go.
The maternal grandmother will be living with the mother and child once the relocation to Queensland is achieved. Apart from the father, the mother and the maternal grandmother are the two most influential adults in the child’s life.[54] The maternal grandmother has a particularly poor opinion of the father,[55] which she admitted she is willing to openly share. Regrettably, the maternal grandmother seems largely ignorant of the detrimental effect upon the child of him intuitively recognising the negativity of her feelings towards the father. At least the mother recognises the prospect of that occurring, and how damaging it can be for the child. She said that she believed the child had already perceived the maternal grandmother’s disrespect for the father. The mother admitted she has already had to chide the maternal grandmother several times for speaking negatively about the father in the child’s presence.
[54] Family Report, par 41
[55] Family Report, pars 97-100, 132
The maternal grandmother admitted that the child has a close and loving relationship with the father, in light of which she said that she would promote the relationship. However, in view of her apparently genuine disrespect for the father, it will be difficult for her to promote the child’s relationship with him. She is more likely to impress upon the child by word and deed, even inadvertently, her disdain for the father.
Although the mother now seems more positively disposed towards the father, they are still not able to be genuinely civil with one another.
If the child is to spend most of his time living in a household where the prevailing sentiment about the father is negative there is a real prospect of corrosion of the child’s relationship with the father. That is an outcome that needs to be avoided. If the child lives for longer periods in the father’s household then the chance of that outcome is reduced.
There is little doubt the child is securely attached to both parents.[56] Although he expressed enthusiasm for the proposed move to far north Queensland, his fervent wish was for the father to follow. The child clearly wants to spend frequent and substantial time with the father.[57] His overriding concern is the persistent conflict between the parties, of which he is well aware.[58] That is the cause of any anxiety he feels.[59] The child is not of sufficient age or maturity for his views to carry much weight, but it is obvious that he will be content with a shared care arrangement that falls within the range of outcomes proposed by the parties.
[56] Family Report, par 111
[57] Family Report, par 115
[58] Family Report, par 112
[59] Family Report, pars 130, 131
By the conclusion of the trial the parties consensually invited the Court to make an order allocating to them equal shared parental responsibility for the child. Axiomatically, they each regarded that outcome as reflecting the child’s best interests. I accept their mutual submission that such an order is warranted.
Accordingly, the Act then obliges the Court to consider an equal time residential arrangement for the child. If that arrangement meets the child’s best interests, and is also reasonably practicable, then it follows that such an order should be made (see Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 42 Fam LR 531). As was recognised by the Full Court in Goode & Goode (at 80,901), there is now a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children.
An equal time arrangement is certainly practicable, assuming that both parties live in reasonably close proximity within the one city in far north Queensland. The uncontested evidence is that such a situation will exist within a matter of weeks of the Court’s determination.
As for the residual question about whether such an arrangement would meet the child’s best interests, there is little doubt that it would. For the reasons discussed, the evidence is heavily weighted in favour of that conclusion.
I am persuaded on the evidence that it is both in the child’s best interests and reasonably practicable for the child to live for equal time with each parent.

The child’s school enrolment

In expectation of her relocation with the child, the mother investigated schooling options for the child in Queensland. The mother decided that the child should attend L School. She made the decisions about both the relocation and the school enrolment without recourse to the father. That was not the first time in which the mother had usurped the father’s role in the exercise of parental responsibility for the child. She had earlier changed the child’s school enrolment in NSW without first discussing that with the father.
When the mother took the child to Queensland in April 2010 she took the child to the school, where he had the opportunity to meet teachers and inspect the facilities. The child was favourably impressed. He told the father so when he shortly after returned to NSW.

The father wants the child to have a Christian education. The school chosen by the mother offers a non-denominational Christian curriculum. The father was furnished with a prospectus explaining the attributes of the school.
Although the father remains understandably annoyed about not being consulted in advance, he accepts that the school chosen by the mother seems eminently suitable for the child. In the event the Court permitted the child’s relocation in September 2010, the father was agreeable that the child should attend that school in the fourth academic term of 2010. Nevertheless, the father wishes to keep his options open about schooling for the child from 2011 and beyond. He wishes to investigate other Catholic and Anglican schools in the area that might be as, or more, suitable.
The Family Consultant considered that once the child relocates and is enrolled to attend a particular school the child should not then be moved to another school within a short period of time. She recommended against any change of school between 2010 and 2011. The father heard her evidence.
Orders are made for the child to be enrolled at L School for the fourth academic term of 2010, on condition that the mother meets the school fees for that term. That condition is imposed because the mother unilaterally chose the school in the knowledge of the applicable fees, the mother’s husband has volunteered to pay the fees, and there is no evidence that the father is capable of contributing to those fees for the remainder of 2010. Although the father stated his desire to make a contribution towards the child’s future education costs, he maintained that his current economic predicament is parlous.
No orders are made dictating the child’s school enrolment after 2010. From 2011 and beyond the parties will need to exercise their equal shared parental responsibility to make decisions about the school the child attends. There is insufficient evidence to warrant the Court making any specific orders about school enrolment beyond 2010. Decisions about that will be influenced by issues such as the quantum of school fees, how those fees will be paid, the quality of education offered by the current school, the availability of suitable sporting and extra-curricular activities at the current school, travel time to the school, suitable friendship groups, and the like.

Restraint on discussions with the child

There is little doubt that the mother has discussed aspects of the litigation between the parties with the child. The child reported to the Family Consultant that she did,[60] and the mother admitted that she did so in cross examination. The Family Consultant and the father are both critical of the mother about that.
[60] Family Report, par 115
The mother was impelled to concede in cross examination that the child should not be immersed in discussions worthy of adults, but she obviously believes the child should have some rudimentary understanding of the controversy.
The point of distinction seemed to be the extent of the explanation the child would reasonably require so as to put him at ease about the conflict that has infected his life. The parties agreed that the child should know that he is moving to Queensland, when that will occur, and what his living arrangements will be like once he gets there. That information can be gleaned simply from an explanation of the orders set out at the commencement of these reasons.
Save for that style of explanation, I am satisfied the parties should not discuss any other aspect of the litigation with the child. The orders so provide.
Although the Family Consultant said in cross examination that she did not support any injunctive order of that sort, the equivocal terms in which she expressed that opinion must be understood. She said in cross examination that the child would need to be informed of his impending move to Queensland and that she did not believe that an injunctive order was necessary because the parties well understood her opinion that discussion of the litigation with the child was highly inappropriate. In the face of the clear concern she expressed in the family report about the mother discussing the litigation with the child, I am satisfied that an injunction is warranted.

Restraint on school deliveries and collections

The mother is concerned about occasions in the past when the father was unable to ensure the child’s delivery to and collection from school at times so as to avoid him being unsupervised by teachers. The evidence she adduced[61] was at least partially corroborated by a teacher from the child’s school.[62] Although the father indicated some factual disparity in cross examination, the issue did not need to be pursued. The father conceded that it was appropriate for the Court to make an injunctive order precluding the child’s early delivery to and late collection from school.
[61] Mother’s affidavit filed 8 July 2010, pars 80-102; Mother’s affidavit filed 13 July 2010
[62] Affidavit of Ms C
The only residual dispute was the extent of the restriction and whether it should bind each party equally.
As to the latter aspect, there is no doubt that it should bind the parties equally. If, as the mother asserts, she would not deliver the child to school too early, nor collect him from school too late, nothing is lost by her being bound by the injunction.
The father said in evidence that he would ensure that the child would not be delivered to school before 8.30 am and not be collected from school later than 3.45 pm. The difficulty is that they are suitable times having regard to the times of commencement and conclusion of classes at the child’s current school in NSW, but they may not be suitable times for the child’s prospective school in Queensland. There was no evidence about the times when classes will commence and conclude at the Queensland school. Moreover, being a private school, the Queensland school may offer sporting and extra-curricular activities both before and after classes which will influence the times when the child should be delivered and collected.
The mother’s current intention is that the child will travel to and from his new school by private school bus. She said the school operated a private bus service for students that provided a network of routes that at least covered her neighbourhood, some kilometres distant from the school. It may be that the residence secured by the father upon his relocation is covered by the same network.
The problems about school deliveries and collections in NSW, which are at least partially admitted by the father, are caused by the need to correlate employment responsibilities with proper availability for and supervision of the child. The father presently intends to find suitable employment upon his relocation to far north Queensland. The mother already has work available to her there, which she will commence as soon as she relocates. The mother’s husband is in full-time employment. The maternal grandmother, who will soon be moving into the mother’s household in far north Queensland, will also be in full-time employment.
I am satisfied that the injunctive order sought by the parties, albeit in different forms, should be made, and I am satisfied that it should bind both parties equally. The order is expressed in terms that are designed to take account of the available evidence, and cover anticipated contingencies.

Supervision of the child

The mother proposed an order in terms that required the father to personally supervise the child at all times the child is in his care, or to ensure that he is so supervised by a nominee approved by the mother.[63] I decline to make such an order.
[63] Exhibit M1 Order 8
The mother’s proposal is an intended replication of an order made between the parties in December 2009 during the course of the litigation,[64] but the father agreed to that interim order without admitting that it was necessary.[65]
[64] Order 1.7 made on 11 December 2009
[65] Notation A made on 11 December 2009
There can be little doubt about the father’s capability as a parent. The Family Consultant was sufficiently confident in the father’s parenting capacity that she was prepared to recommend that the child live predominantly with him, if certain circumstances prevailed. The mother has indicated her confidence in the father’s parenting capacity by agreeing to the allocation of equal shared parental responsibility and proposing a parenting regime where the child will live with the father for five consecutive nights per fortnight.
The mother’s concerns about the child’s early delivery to and late collection from school are satisfactorily cured by the injunction regulating the school delivery and collection times.
I am not satisfied that any further requirement should be imposed dictating the terms of the child’s supervision whilst in the care of the father. Making an order in the terms proposed by the mother will invite interrogation of the child by the mother about the circumstances of his supervision, and invest the mother with a right of veto over responsible adults that the father would be obliged to nominate to her for supervision purposes. Such an arrangement is anathema to the parties’ equal shared parental responsibility.

Conclusion

Order 2 is consensual. The father asked that the allocation of equal shared parental responsibility be made in more explicit terms,[66] but there is no need to do so. The breadth of parental responsibility is defined by the Act (s 61B), and it is plain that the parties share that responsibility equally. The manner in which they should exercise that parental responsibility is also delineated in the Act (ss 65DAC, 65DAE).
[66] Exhibit F1 Orders 2-3
Orders 3 to 5 inclusive dictate the child’s living arrangements before the child’s relocation to Queensland, during the course of his relocation from NSW to Queensland, and once he is relocated in Queensland.
The relocation is precluded before a specific date in the NSW school holidays, and provision is made for the relocation to take place within the overlap week of the NSW and Queensland school holidays.
Once the child is living in the far north Queensland city to which he is relocated, the orders preclude his subsequent relocation outside a reasonable radius of that city centre. The father was concerned that upon his own relocation to that city, the mother would decide again to relocate to another geographically distant place, rendering his relocation pointless.[67] To allay his fears, the mother was prepared to agree to an injunctive order that would preclude any later relocation.
[67] Father’s affidavit filed 26 August 2010, par 37; Family Report, pars 67, 86
The relocation orders are not expressed in the terms proposed by the father,[68] and agreed by the mother, but they achieve the parties’ intention. The order proposed by the father was in the nature of a declaration. I do not regard an order framed in those terms to be a proper exercise of power, or alternatively, appropriate. An order in those terms is not a parenting order within the meaning of s 64B of the Act, nor is it a mandatory or restrictive injunction under ss 68B or 114 of the Act. The nature of the orders that may be made by the Court within the ambit of power found in those provisions of the Act was discussed by the Full Court in Sampson v Hartnett (No 10) (2007) FLC 93-350.
[68] Exhibit F1 Order 4
Order 6.1 was consensual.
Orders 6.2 and 6.3 were also consensual, subject to slight time adjustments.
No provision is made within Order 6 for the child to spend time with the parties on their birthdays, even though the father sought such orders,[69] and the mother agreed. That is because such orders only meet the interests of the parties, not the child. Instead, provision is made by Order 8.3 for the child to communicate with the parties by telephone on their respective birthdays. If the parties later choose to depart from the orders by agreement, that is a matter for them.
[69] Exhibit F1 Orders 6(h) and 6(i)
The living arrangements for the child are implemented by the parties exchanging him at their respective homes pursuant to Order 7. That partially meets the proposal of the parties,[70] and partially replicates arrangements under the interim orders.[71] The order does not provide for change-overs at the child’s school, so as to relieve the child of the burden of having to take clothing and possessions to school each week in order to transport them between households. When the child attends school he will only need to take school books and equipment.
[70] Exhibit F2 Orders 2(b), 2(c), 3(b), 3(c); Exhibit M1 Orders 4.2-4.4
[71] Order 3 and Notation B made on 11 December 2009
Order 8 provides for telephone communication between the child and the parties. It is not in the same terms proposed by the father,[72] and agreed by the mother. The order provides structure and routine to the communication. Having regard to the week-about living arrangement, frequent telephone communication is less important.
[72] Exhibit F1 Order 7
Order 9 directs the child’s enrolment at L School for the fourth academic term of 2010 upon the child’s relocation. The mother is required to meet the fees for the reasons explained. Where the child attends school for the remainder of his academic life is a matter for the parties to decide as an incident of their equal shared parental responsibility. In exercising that shared responsibility they will no doubt remain mindful of the Family Consultant’s advice that it would probably be counter-productive to change the child’s school again as soon as the first term of 2011.
Order 10 precludes the child’s early delivery to and late collection from school.
Order 11 precludes the parties from discussing any aspect of the litigation with the child, other than explaining to him the effect of the orders.
Order 12 to 22 inclusive are consensual, albeit expressed in slightly different terms from the orders proposed by the father and agreed by the mother.
Orders 24 and 25 are self-explanatory.
The notation records the parties’ respective undertakings to participate, together if deemed appropriate by the appointed therapist, in therapeutic counselling in an attempt to overcome their conflict. The father proposed an order to that effect,[73] and the mother agreed, but counsel could not identify the legislative power for the Court to make such an unconditional order. The order proposed by the parties is not an injunctive order under ss 68B or 114 of the Act, nor a child welfare order under s 67ZC of the Act (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606), and it is difficult to conceive it as a parenting order under s 64B of the Act.
[73] Exhibit F1 Order 11
In the absence of further authority, or at least informed argument on the point, I am not prepared to make an order in the terms sought. The parties cannot consensually confer power on the Court to make an order that the Court lacks power to make (see Harris v Caladine (1991) 172 CLR 84 at 133). In those circumstances the parties jointly requested the Court to record the notation about their commitment to counselling, which I am content to do.
I am satisfied that those orders are practicable and reflect the child’s best interests.

I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 10 September 2010

Associate:

Date: 10 September 2010

Mother’s affidavit filed 8 July 2010, par 19
Family Report, par 4 Mother’s affidavit filed 8 July 2010, pars 19, 21 Father’s affidavit filed 12 December 2009, par 16 Father’s affidavit filed 11 November 2009, par 8 Father’s affidavit filed 11 November 2009, par 4

[2010] FamCA 794

10 September 2010

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