Chappell & Chappell - [2008] FamCAFC 143

FAMILY COURT OF AUSTRALIA

CHAPPELL & CHAPPELL

[2008] FamCAFC 143

FAMILY LAW - CHILDREN – Parental responsibility – modified order for equal shared parental responsibility – where order made for a party to have the “management” of a child’s health and schooling issues – ambiguity in the order – reasoning employed to rebut the presumption of equal shared parental responsibility – whether orders did not reflect intentions of judicial officer as expressed in the judgment – appeal allowed – matter remitted for re-hearing on the issue of parental responsibility

Acts Interpretation Act 1901, s 15AD
Family Law Act 1975, s 4, s 26B(1A), s 37A(2A), s 60B, s 60CC, s 61B, s 61C, s 61D, s 61DA, s 64B, s 64D, s 65DAA, s 65DAC, s 65DAE, s 65G(1), s 65P(1), s 65X, s 67K, s 67Q, s 67T, s 68B, s 68M, s 69Z, s 79A(1AA), s 90K(2), s 92A(2)(bb), s 94AAA(1A), s 111B(4)
Family Law Amendment (Shared Parental Responsibility) Act 2006

Carpenter and Lunn [2008] FamCAFC 128
Goode and Goode (2006) FLC 93-286
Langford and Coleman (1993) FLC 92‑346
Newlands and Newlands (2007) 37 Fam LR 103
Repatriation Commission v Nation (1995) 57 FCR 25
Yunghanns and Ors v Yunghanns and Ors; Yunghanns (1999) FLC 92‑836

APPELLANT:

Mr Chappell

RESPONDENT:

Mrs Chappell

FILE NUMBER:

PTW

6752

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

15 September 2008

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Warnick, Boland and Thackray JJ

HEARING DATE:

15 July 2008

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

20 December 2007

LOWER COURT MNC:

N/A

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms E Swart

SOLICITOR FOR THE APPELLANT:

Shann Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr R Hooper

SOLICITOR FOR THE RESPONDENT:

Dwyer Durack

Orders

(1)That the appeal against the orders of his Honour Magistrate Moroni made on 20 December 2007 be allowed.
(2)That orders 1 and 2 of the orders made on 20 December 2007 be discharged.
(3)That the matter insofar as it relates to allocation of parental responsibility be remitted for rehearing, if practicable before Magistrate Moroni.
(4)That order 3 of the orders made on 20 December 2007 be varied by deleting all words after “summer school holidays”.
(5)That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the orders made on 20 December 2007.
(6)That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal against the orders made on 20 December 2007.
(7)That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing referred to in paragraph 3 of these orders.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 2 of 2008
File Number: PTW 6752 of 2006

Mr Chappell

Appellant

And

Mrs Chappell

Respondent

REASONS FOR JUDGMENT

Introduction

We are required to determine an appeal against orders made by Magistrate Moroni in proceedings between Ms Chappell (“the wife”) and Mr Chappell (“the husband”) concerning their son, [S].
Magistrate Moroni is a Family Law Magistrate of the Magistrates Court of Western Australia and the appeal therefore lies to the Family Court of Australia pursuant to s 94AAA(1A)(a) of the Family Law Act 1975 (“the Act”).
The orders, which were made on 20 December 2007, provided as follows:
1.Subject to the following order, [the wife] and [the husband] both have equal shared parental responsibility for the child, [S] born [in] 2000.
2.[The wife] have sole parental responsibility for the management of the said child’s health and schooling issues.
3.During all school holiday periods, the child live with each of the parties for one half of each such period, subject to the qualification that the child spend no longer than a week away at a time from either party until at least the commencement of the 2008/2009 summer school holidays and thereafter, spend no longer than 2 weeks away at a time from either party.
4.During all non-school holiday periods, the child live with [the husband] for 3 nights / 4 days between each cluster of [the husband’s] shifts, commencing the day immediately following the conclusion of each such cluster, and the child live with [the wife] at all other times.
5.Notwithstanding the provisions of paragraph 3 hereof:
(a)the child reside with [the husband] from 4:00pm Christmas Eve until 3:00pm Christmas Day in odd numbered years commencing 2007, and the child reside with [the wife] from 4:00pm Christmas Eve until 3:00pm Christmas Day in [intervening] years; and
(b)the child spend reasonable time with each party on his birthdays.
6.In the event either party proposes to travel with the child, then such party give to the other party:
(a)30 days written notice in respect of proposed interstate travel;
(b)60 days written [notice] in respect of proposed travel to New Zealand or to South East Asia; and
(c)90 days written notice in respect of any other proposed travel.
7.Both parties are hereby granted liberty to apply in relation to the implementation of any of these orders.
8. The parties’ costs of the proceedings be reserved.
9. The proceedings otherwise be and are hereby dismissed.
The Notice of Appeal proposes that orders 1 to 5 be discharged and be replaced with 18 far more detailed orders. These include an order that the parties have equal shared parental responsibility for [S] (without any proviso concerning the “management” of health and education issues).

Terminology

The proceedings were instituted after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act2006. The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary: Carpenter and Lunn [2008] FamCAFC 128.

Brief background

At the time of trial, the wife was 33 years of age and working in Perth. She was renting a home near the foothills of Perth.
The husband was also 33 years of age. He was living not far from the wife’s residence. He was working at [a country town], which is about a 90 minute drive from his home. His work involved a variety of shifts.
The parties were married in 1996 and separated in 2006. [S] was born [in] 2000. He was nearly 7 years old at the time his parents separated.
[S] has a mild intellectual disability. He has an aide at school and has needed speech therapy.
On 23 February 2007, the parties consented to the making of interim orders relating to [S]. Paragraphs 1 and 2 of those orders were in the following terms:
Until Further Order of the Court:
1.The child of the marriage [S] born [in] 2000 live with the mother except as set out hereunder:
(a)[S] shall live with the father for three nights/four days between each of the father’s shifts;
(b)Special days including [S’s] birthday, parents birthdays, Christmas, Easter and at any other time by agreement between the parties.
2.The father and mother have the equal shared responsibility for [S].

The Magistrate’s judgment

After setting out background information, Magistrate Moroni noted the following as being the issues he had to determine:
(a)how much time the child should spend living with each of the parties respectively during school term;
(b)in what form the child’s summer school holiday time with each of the parties should be structured;
(c) which school the child should attend in 2008;
(d)whether [the wife] should be given sole responsibility for the management of the child’s medical and health care issues, and those relating to his school and extra curricular activities;
(e)how time spent with the child on Christmas Day should be divided between the parties; and
(f)sundry issues relating to possible overseas travel for the child into the future.
His Honour then observed:
9.Happily, the parties are agreed that they should have equal shared parental responsibility for the child. Given the provisions of section 61DA of the Act, the Court has little difficulty in making the necessary order by consent. The statutory presumption is certainly not rebutted. [The wife] seeks a special order in respect of the management of health/schooling issues, about which more will be said later.
His Honour then observed that neither party was proposing [S] should spend equal time with each of them and said his focus would therefore be on s 65DAA(2) of the Act. This is the provision which requires the Court if it makes or proposes to make an order for equal shared parental responsibility to consider whether a child should spend “substantial and significant time” with each parent. His Honour went on to note that [S’s] best interests were the paramount consideration, having regard to ss 60CC(2) and (3).
In a paragraph which is of particular importance, his Honour then said:
12.Both parties have presented to the Court very lengthy lists of proposed parenting orders. However, the Court’s firm view in this case is that less orders would be of greater benefit to the child and the parties than more orders. The Court will rule on all of the major and practical issues put to it for determination, but it will not be seeking to deliver chapter and verse a comprehensive code of instructions for the parties to follow in perpetuity. The parties must, in their best interests and more importantly in the best interests of the child, learn to make decisions for themselves regarding his welfare going forward. It is obviously a very expensive exercise for the parties to bring child welfare disputes to Court. The money invested in litigation would be much better spent on the child. Whilst both parties have presented to the Court very extensive sets of proposed orders, in the Court’s experience there is a danger in attempting to make long and detailed series of orders attempting to anticipate every possible area of dispute which might arise between two parents over the long term. The Court is always mindful of the need to reduce the possibility of generating further litigation into the future around the interpretation of Court orders going to matters of minute detail. The Court here will resolve all of the important issues in contention, but it will leave the parties, with or without the assistance of their lawyers, to attempt to reach agreement on those mechanical issues which will arise following the delivery of this judgment.
His Honour then noted that, subject to one qualification concerning management of medical and educational issues, the orders sought by the wife were contained in her Papers for the Magistrate. The orders sought were as follows (and we observe that they did, in fact, include the qualification to which his Honour referred – see paragraph numbered 25):
Child Related Matters
7.The [wife] and the [husband] have equal shared responsibility for the child [S] born [in] 2000 (“[S]”).
8.The parents have equal shared responsibility for making decisions about major long-term issues in relation to [S] in accordance with section 65DAC of the Family Law Act.
9.The parents have sole responsibility for making decisions about non-major long-term issues in relation to [S] in accordance with section 65DAE of the Family Law Act while the child is in their respective care except as referred to in these orders.
10.The care arrangements for [S] are based on the father’s usual 10‑week roster in his employment at [his workplace] which includes day shifts and night shifts defined as follows:
(a)      day shifts including travelling time – 5:00am to 9:00pm;
(b)night shifts including travelling time – 5:00pm to 9:00am.
11.[S] shall live with the mother except as set out hereunder.
12.[S] shall live with the father as follows:
(a)for 3 nights and 4 days between his working shifts, with the time to commence the morning following the husband’s sleep period on termination of his shift;
(b)one-half of term school holidays (subject to the husband having leave from his employment and providing to the wife no less than 14 days prior to the commencement of the specified period evidence of such leave);
(c)one-half of the Christmas school holidays with [S] to spend week about with each of his parents (subject to the husband having leave from his employment and providing to the wife no less than 14 days prior to the commencement of the specified period evidence of such leave).
13.The handover arrangements for [S] shall be:
(a)subject to paragraph 13(e) hereof midweek/school days, pickup 8:00am by father;
(b)midweek/school day (including Sunday night) drop off 6:30pm by father;
(c)weekends including Public Holidays pickup 12:00pm by father;
(d)weekend (Friday or Saturday nights) the mother collect [S] at 7:30pm;
(e)in the case of the father’s short break when the father’s pickup time shall be the end of the school day.
14.The father will provide the mother with a copy of his work roster within 72 hours of it being made available to him.
15.[S] spend time with either parent defined to include:
(a)on [S’s] birthday at times to be agreed between the parents;
(b)on the father’s birthday at times to be agreed between the parents;
(c)on the mother’s birthday at times to be agreed between the parents;
(d)      on Father’s Day at times to be agreed between the parents;
(e)      on Mother’s Day at times to be agreed between the parents;
(f)the father/mother from 4:00pm Christmas Eve until 3:00pm Christmas Day commencing 2007/2008 respectively and with the mother/father from 3:00pm Christmas Day to 5:00pm Boxing Day commencing 2007/2008 respectively and thereafter on an alternate basis PROVIDED THAT if the father’s roster does not permit this arrangement then the arrangements referred to in paragraph 12 hereof shall apply.
(g)subject to the father’s work shift blocks, every alternate Easter Sunday;
(h)      at any other time by agreement between the parents.
16.The mother have liberty to change the school in which the child is enrolled from his current school to [a different] Primary School at the commencement of the 2008 school year.
17.Either parent may have reasonable telephone contact with [S] while he is in the care of the other parent.
18.Both parents keep each other advised of their current landline and/or mobile telephone number.
19.If either parent wishes to travel outside of Australia with [S] during school holidays then the departing parent shall provide the other parent with at least 90 days notice of the proposed travel, including the following details:
(a)      The proposed date of departure and return;
(b)a copy of any proposed itinerary or any other documentation evidencing the proposed destinations;
(c)contact details to enable the non-travelling parent to make contact with [S] during the travel period.
20.The non-travelling parent will not unreasonably refuse permission to the departing parent to travel with [S].
21.Both parents will sign all documents necessary to allow the departing parent to obtain a passport for [S] which shall be held by the mother for safe keeping.
22.The parents will sign all documents necessary to enable either of them to obtain any information written or otherwise from the school attended by [S].
23.The parents will each inform the other as soon as possible of any hospitalisation, significant injury or health problem suffered and treatment received by [S] while he is in either parents’ care.
24.Both parents hereby authorise any medical practitioner or medical institution attended by [S] to release to them such information regarding his medical and dental health as may be reasonably requested from time to time.
25.Subject to paragraph 25 the mother have the management of:
(a)      [S’s] medical and health care matters;
(b)all school related and extra curricula activities, including but not limited to the purchase of school related items such as books, equipment and uniforms, and enrolment issues.
26.In relation to the matters referred to in paragraph 24 the mother shall where possible:
(a)provide the father with reasonable notice of any such health and medical related treatment;
(b)confer with the father in relation to health and medical related treatment, school and extra curricula matters.
27.Both parents shall obtain all necessary treatment for [S] when he is in their care on an emergency or immediate needs basis.
28.The reasonable costs of and incidental to any medical or health treatment and school related or extracurricular activities for [S] shall be paid for by the parties equally.
29.The father shall pay to the mother his one-half contribution to any expenses incurred by the mother in relation to paragraph 28 within 5 days of the mother providing written proof to the father of the expense incurred.
30.Otherwise all applications are dismissed.
The inconsistency apparent at paragraph 25 of the proposed orders was resolved when counsel for the wife asked his Honour to amend the preamble to paragraph 8 to read “subject to paragraph 25”. (Transcript of Proceedings of 5 November 2007, p 7). We observe also that the reference in paragraph 26 of the orders to “paragraph 24” should be read as being a reference to “paragraph 25”.
His Honour then set out the orders sought by the husband. These were in the following terms:
1.That the husband and wife have equal shared parental responsibility for the child [S] born [in] 2000.
2.That the said child shall live on a shared care basis with the husband and the wife in a five week regime (including four shifts) as follows (and assuming each week commences on a Saturday):
a.In week one the said child shall live with the husband from 1.00 pm Sunday until 6.30 pm Thursday, and at all other times with the wife;
b.In week two the said child shall live with the husband from 3.15 pm Monday to 6.30 pm Friday, and at all other times with the wife;
c.In week three/four the said child shall live with the husband from 3.15 pm Wednesday until 6.30 pm Sunday, and at all other times with the wife;
d.In week four/five the said child shall live with the husband from 3.15 pm Friday until 6.30 pm Monday, and at all other times with the wife;
e.Or otherwise in accordance with the husband’s employment commitments should the roster change at any time in the future.
3.        The said child shall further live with the husband as follows:
a.   For half of all school term holidays as agreed between the parties but failing agreement the first half in 2008 and each alternate year thereafter and the second half in 2009 and each alternate year thereafter;
b.   For half of the long summer holidays as agreed between the parties but failing agreement from the 6.30 pm on the middle day of the said holidays until 6.30 pm the day prior to school recommencing in the 2007/2008 school holidays and each alternate year thereafter and from the day school concludes until 6.30 pm on the middle day of the said holidays in the 2008/2009 school holidays and each alternate year thereafter;
c.   From 9.00 am Christmas Eve until 3.00 pm Christmas Day in the year 2007 and each alternate year thereafter;
d.   From 3.00 pm Christmas Day until 3.00 pm Boxing Day in the year 2008 and each alternate year thereafter;
e.   From 9.00 am until 6.30 pm on Father’s Day;
f.   On the child’s birthday at times as agreed but failing agreement for a minimum of three hours as nominated by the husband;
g.   On the husband’s birthday at times as agreed but failing agreement for a minimum of three hours as nominated by the husband;
h.   For such further or other time as agreed.
4.That the arrangements as outlined in paragraph 2 hereof shall be suspended as follows:
a.   during all school holiday periods;
b.   from 9.00 am until 5.00 pm on Mother’s Day;
c.   On the wife’s birthday at times as agreed but failing agreement for a minimum of three hours as nominated by the wife;
d.   For such further or other time as agreed.
5.That the arrangements as outlined in paragraph 3 hereof shall be suspended as follows;
a.   On the child’s birthday at times as agreed but failing agreement for a minimum of three hours as nominated by the wife;
b.   From 3.00 pm Christmas Day until 3.00 pm Boxing Day in the year 2007 and each alternate year thereafter;
c.   From 9.00 am Christmas Eve until 3.00 pm Christmas Day in the year 2008 and each alternate year thereafter;
d.   For such further or other time as agreed.
6.That for the purposes of changeover the husband shall collect the child from school when his time commences at the conclusion of the school day, and otherwise shall collect and return the said child to/from the wife’s place of residence.
7.That the husband do provide the wife with a copy of his work roster as soon as practicable following receipt.
8.That the wife do offer the husband the first option of caring for the said child in the event that she is unable personally to do so.
9.That the husband and wife each have liberty to have telephone communication with the said child when the child is not in his or her care.
10.In the event that the husband or wife wish to travel with the child overseas, the travelling party shall provide the other parent with as much notice as possible, and a minimum of 30 days notice and provide a copy of the return ticket and itinerary and the non-travelling parent shall not unreasonably withhold their consent.
11.That the husband and wife keep each other notified of their residential address, landline and mobile telephone numbers, and email addresses.
12.That the husband and wife provide 28 days written notice of any intention to change his or her permanent place of residence.
13.The husband and wife authorise any school or childcare facility at which the said child may attend to provide each of them on a regular basis with copies of all school reports, other reports relating to the child’s progress and behavioural issues and all circulars in relation to the child.
14.The wife and husband shall authorise any school or childcare facility which the said child may attend to provide to each of them in a timely manner, copies of all notices received from the school together with details of all functions, parent and teacher nights and other extra curricular activities to which parents are invited whether they are related to the school or childcare facility or organised by other organisations.
15.Both parties may attend all school or childcare functions including, but not limited to, parents/teacher appointments, assemblies, open days, special events and presentations.
16.Both parties may attend sporting and other co-curricular and extra-curricular activities in which the child is involved.
17.Each party shall forthwith advise the other party if the child requires emergency or major medical treatment or is involved in an accident or becomes seriously ill whilst in the care and control of that party.
18.That the husband and wife do all such things and sign all necessary documents to authorise any medical practitioner, specialist or organisation that may attend to the child to release to each of them all information regarding the said child’s medical and dental health as may be reasonably requested by them.

Having set out the lengthy orders sought by both parties, his Honour said:
17.At the outset, the Court should say that both of the parties made a very favourable impression indeed upon the Court. There is no doubt that each of the parties loves the child dearly and that each is motivated purely by a genuine desire to do what is best for the child. It is indeed extremely unfortunate that the parties have each incurred very significant legal expenses to resolve their dispute regarding future arrangements for their child. Neither party here is currently wealthy nor likely to be wealthy at any time in the foreseeable future. Fortunately, it does appear that the relationship between the parties themselves is slowly improving. It is to be hoped that after the dust settles following the delivery of this judgment, the parties will be able to develop more effective lines of communication and learn to work together rather than working against each other.
His Honour then reviewed the evidence. In so doing, he gave the following précis of the husband’s work roster and travel arrangements.
20.… At first blush, the task of comprehending the operative shift pattern is somewhat daunting. However, stripped down, the structure is not particularly difficult to understand. In essence, the [wife] [sic] works 4 clusters of shifts in every 5 week period. Three of those clusters comprise 4 consecutive shifts and the remaining cluster is comprised of 3 consecutive shifts. Each cluster commences with a day shift and finishes with a night shift. Day shift runs from 7 am to 7 pm and night shift runs from 7 pm to 7 am. The net result is that the [husband] works the equivalent of a 36 hour week averaged over 5 weeks. The other relevant factor concerns travelling time. The [husband] lives a long way from his place of employment. He said that he does participate in some form of car pooling arrangement, which means he can rest or sleep on the journey home. However, the Court understands that it takes about an hour and a half in each direction for the [husband] to get to and from work…
His Honour also reviewed the husband’s medical history, including his depressive illness during the parties’ relationship. His Honour found that the husband’s depression was likely to have resulted in the wife “assuming more of the parenting responsibility than she would have assumed” if the husband had been well.
Having reviewed other aspects of the evidence, his Honour went on to say:
24.The interim orders made 23 February 2007 provide for the [husband] to care for the child for 3 nights / 4 days between shifts. As mentioned above, each cluster of shifts ends with a night shift meaning each cluster ends at 7 am. The [wife] has insisted that the child only go to the [husband] the day after the cluster ends and she proposes that such pattern continue permanently. The [wife] is concerned that the [husband] would be likely to be fatigued on the day he finishes a cluster of shifts and that his capacity to parent on that day, and to drive a motor vehicle that day, is likely to be diminished. For his part, the [wife] [sic] says that if he was to collect the child on the day he finishes his cluster, then he would sleep until about 1:30 pm to 2:00 pm that day, before having coffee and then collecting the child from school or from the [wife’s] home. Then, he would plan to stay up until going to bed again that evening at a reasonable time after the child went to sleep. It is a part of the [wife’s] case that the [husband] was historically a poor sleeper. The [husband] said in his evidence that from 2002 he did complain to his doctor about insomnia.
In dealing with the wife’s proposals, his Honour said:
36.Moving to the [wife’s] evidence on the issue of how the child’s time should be divided between the parties in school terms, the [wife] is basically proposing that the interim orders made on 23 February 2007 be made permanent orders. That is, she believes it would be best for the child to stay with her for the day and the night immediately following the conclusion of the last night shift in every cluster of the [husband’s] shifts and then for him to spend the following 4 days / 3 nights with the [husband]…
His Honour then turned to another issue of considerable importance in this appeal, namely the wife’s proposals in relation to management of [S’s] medical and schooling issues. His Honour said:
37.On the subject of whether the [wife] alone should assume responsibility for the day to day management of medical and schooling issues for the child, the [wife] has said in her evidence that there are good practical reasons for her to take this role. She said that she has historically assumed this role and is likely to manage it better than the [husband]. She also said that she works closer to the child’s school than does the [husband] and so in a practical sense it is easier for her to get to the school at short notice if necessary. She also said that it was easier for her, in her line of work, to be contactable by medical service providers and easier for her to respond. The [husband] did say in his evidence that he has of recent times been permitted by his immediate manager at his place of work to carry and use a mobile phone for parenting related purposes and that coverage for his mobile phone now extends to his place of work.
After referring to the competing proposals concerning school holiday contact, his Honour then commenced to rule on the issues requiring determination.
The first matter determined related to the wife’s proposal for [S] to change schools. His Honour concluded that he was “a very long way short of convinced” that such a change would be in [S’s] best interests. Given the narrow compass of the appeal relating to this issue, it is unnecessary for us to detail his reasons. Having set out his reasons, his Honour said:
43.In the result, the Court’s view is that absent any Court order which might be made in 2009 or beyond, the child should stay at [his current] Primary School unless the parties agree that he should be moved to another school.
His Honour then turned to the time [S] was to spend with each parent during school holidays. He noted he had already ruled that during the 2007/08 summer school holidays, [S] should spend his time with his parents on a “week about” basis. He went on:
46.… This is because the child is still quite young and is yet to spend, as the Court understands it, more than a week away from his mother. As time passes and as the child becomes more mature he will be able to cope with lengthier periods away from each parent. In the 2008 / 09 summer school holidays, the child should be able to cope with a maximum of two weeks away from each parent. The Court will make a specific order to address the 2008 / 09 summer holidays but it does not propose to rule beyond that time. This is one of those issues, to which the Court referred in paragraph 12 hereof, which the parties should be able to sort out as between themselves when the time arrives. The 2009 / 10 summer holidays are a long way away and surely by that time the parties should be able to be able to communicate sufficiently effectively to reach their own agreement without having to call upon the intervention of the Court.
His Honour next turned to consider the time [S] was to spend with each parent on special occasions. Echoing the views expressed in paragraph 12 of his judgment, his Honour said:
49.As for special occasions, there is a limit to which the Court is prepared to go to spell out chapter and verse how the parties should live their lives. The [wife’s] proposal regarding Christmas Days looks eminently fair and reasonable and the Court will adopt it. Otherwise, the child’s birthday will always fall in the summer school holiday period. In the Court’s view the child should spend, absent any agreement to the contrary by the parties, a part of each birthday with each parent. Otherwise, the Court does not propose to make rulings on the whole host of other special days for a young child, for example, Easter, Father’s Day, Mother’s Day, the [wife’s] birthday, the [husband’s] birthday, the birthdays of the child’s grandparents and other family members and so on. The list would be almost never ending. Again, the Court makes the point that the parties themselves should accept responsibility for reaching their own agreement in respect of sharing time with the child on the many special days in his year.
His Honour then turned to what he described as being “by far the most difficult” issue, namely the time [S] was to spend with each parent during school term. His Honour described the parameters of the dispute in this way:
The [husband] seeks to extend the operation of the interim order made 23 February 2007 so as to result in the child spending 4 nights with him between clusters of shifts (as opposed to 3 nights currently), whereas the [wife] proposes that the current arrangement be made permanent.
His Honour went on to make some general observations, including reflections on the 2006 legislative amendments. The views he expressed are not the subject of any complaint before us. His Honour concluded that:
·    the proposals of both parents would result in [S] spending “substantial and significant time” with each parent;
·    both proposals would ensure that [S] has a “meaningful relationship” with each parent; and
·    the Court was obliged to make the order that would be in [S’s] best interests, taking into account the matters set out in s 60CC.
In dealing with s 60CC(3)(d), which requires the Court to consider the likely effect of any change in the child’s current circumstances, his Honour said:
59.…This does not mean that there is any presumption that the status quo must prevail, but what it does mean is that the Court must make some assessment here of how the change proposed by the [husband] would impact upon the child. The impression left with the Court is that the child has been doing very well under the arrangement in place since February this year…
His Honour then considered whether the evidence satisfied him “that making the change proposed by the [husband] would result in an uplift in the child’s development”. His Honour concluded there was no evidence that would lead to such a conclusion; that [S] was doing well under the current arrangement; and that accordingly he was not satisfied his welfare would be enhanced by spending “slightly more time with his father”.
His Honour said he considered there was merit in the wife’s reasons for wanting [S] to stay with her on the first night after the husband finished each cluster of his shifts. In view of a concession made on the hearing of the appeal, it is unnecessary for us to consider the reasons given by his Honour, which were principally concerned with the husband’s likely fatigue. He concluded that he would not “alter the substance of the structure put in place under the current interim order”.
His Honour then went on to make this observation, which is of considerable importance to this appeal:
62.… The [wife] has asked for various orders formalising handover arrangements on the day following the [husband] coming off night shift in school term time. This was not a subject taken far in the evidence nor in the final submissions. It would appear that the parties themselves have been able to give valid effect to the current interim order. If that is correct, then the parties need only to continue doing that which they have been doing in respect of handover.
His Honour then turned to issues associated with allocation of parental responsibility. He began his discussion in the following way:
63.The next issue for determination concerns the [wife’s] application for a special order that notwithstanding the making of an order that she have sole responsibility for the management of the child’s “health and school related issues”. Of course, the Court has already ruled on the subject of the child’s schooling in 2008 and that being so there is probably not much of substance left to be managed under the heading “school related issues”…
We pause to note that the first sentence of this paragraph does not make grammatical sense. It is apparent his Honour intended to insert “for equal shared parental responsibility,” after the words “notwithstanding the making of an order”. In any event, his Honour went on to observe that the husband opposed the making of:
any such special order, mainly on the grounds that it would be inconsistent with the principles set out in section 60B of the Act. That is, the [husband] argues that generally parents should share duties and responsibilities concerning the care welfare and development of their children, and, further, that parents should agree about future parenting of their children.
His Honour continued:
64.It is clear that the parties’ relationship, although improving, is not yet at the point where the Court could have confidence that in the short term they would be able to confer and discuss productively the management of the child’s health and schooling issues. The [husband] has said, not unreasonably, that he wants to be involved in the child’s upbringing to the maximum extent possible. He certainly wants to be consulted by the [wife], at the very least, before any significant decisions are made regarding the management of the child’s health and schooling issues. Again, this is obviously a sensitive subject about which both parties feel strongly. However, again, the test is all about the making of an order which is best for the child and not best for either party. Acknowledging that the relationship between the parties still requires a lot of work before it becomes completely functional and co-operative, the [husband] concedes (page 4 of his counsel’s closing submissions) that in the event of a deadlock between the parties, he would be willing to give ground and to “trial” the [wife’s] proposal. That is to say, the [husband], quite properly and pragmatically, acknowledges the inherent difficulty associated with the concept of “rule by a committee of two”. That is to say, whilst the theory of joint management and control is attractive, there needs to be a mechanism to break any deadlock which might arise from time to time. Overlaying all of these considerations are the provisions of section 60CC(3)(l) which speak of the need to make orders which are least likely to give rise to further litigation.
65.The [wife] has advanced a number of practical reasons why it would be better for her to have sole responsibility for managing the child’s health and schooling issues. She points out that her place of employment is much closer to the child’s place of schooling and also the places where the child is likely to receive medical services and so it is easier for her to attend at these places at short notice should the need arise. Also, she points out that the nature of her employment is such that she is very near a telephone most of the day and is more easily accessible by people at the school and by people who provide medical and related services for the child. The [husband] countered these arguments by saying that his employer is quite supportive of his parental obligations and has permitted him to have a mobile telephone with him during work hours which may be used for purposes related to the child’s welfare. The [wife] also contends that historically she has assumed the greater portion of responsibility for the management of health and educational issues and that she has managed quite well.
66.It does seem to the Court that where separated parents do not enjoy a particularly good relationship, there is much to be said for the making of orders which will limit, as far as reasonably practicable, the amount of communication required between them. It certainly seems to the Court that from the point of view of the education authorities and of the medical service providers, it is far easier for them to deal with just the one point of reference. That is to say, it is much easier for third parties to deal with and ask for decisions from just the one parent. It seems to the Court to be likely to advance the child’s interests if the management of his schooling and health issues is conducted as efficiently as possible. The Court considers that it would be more efficient for the third parties concerned to have to deal with just the one parent. The Court accepts that to date the [wife] has, in fact, been primarily responsible for the day to day management of the child’s health and educational issues, albeit that this may have occurred without the concurrence of the [husband]. The evidence suggests that the [wife] has done well in the discharge of these responsibilities. Her manner of presentation to the Court leaves it satisfied that she can be trusted to continue to manage these particular responsibilities to a very high standard going forward. The Court fears that making orders for these responsibilities to be shared is more likely to give rise to arguments in the future than making orders on this point as the [wife] has sought. That said, the Court would trust that the [wife] would pay appropriate respect and courtesy to the [husband] by actually consulting him about/advising him of the more important decisions arising from the management of health and school issues. However, the Court does not intend to make any orders compelling her to do so. The [wife] presented to the Court as a person who could be trusted to behave honourably.
His Honour then turned to the dispute concerning overseas travel. It is sufficient to note his Honour observed that:
the final parenting orders made in this case will of themselves inhibit overseas travel. That is to say, it will not be until the 2008/09 summer holidays that the child will be away from either parent for more than a week or so at a time. Thus, if either parent wishes to embark on a lengthy holiday with the child, then he/she will have to obtain the consent of the other parent.
His Honour then said:
Subject to hearing from counsel regarding the form of orders which should be made consistent with these reasons, the Court would propose to make the following orders…
His Honour concluded by setting out the orders he proposed to make which, with some minor alterations, were the orders ultimately made and which we set out at the beginning of these reasons.
His Honour’s reasons were delivered on 20 December 2007. Both counsel sought to avail themselves of the opportunity his Honour offered to comment on the form of proposed orders. Some of the matters they sought to agitate on that occasion have now been raised for consideration in this appeal.

Ground 1 – equal shared parental responsibility

By this ground the husband asserted that:
The Learned Magistrate erred in making an order that equal shared parental responsibility be subject to an order that the wife have management of health and education issues.
In order to consider this complaint, it is necessary to appreciate the statutory framework relating to the concept of parental responsibility.

The legislative framework

Section 61B of the Act defines parental responsibility as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61C provides that each parent has parental responsibility for their child, despite any changes in the nature of the relationship of the child’s parents (including changes brought about by separation). The section goes on to provide that it has effect subject to any order of a Court in force from time to time.
Section 61D provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on that person duties, powers, responsibilities or authority in relation to the child. The section goes on to provide that a parenting order does not take away or diminish any aspect of the parental responsibility of any person in relation to the child except to the extent expressly provided for in the order or necessary to give effect to the order.

Save for the insertion of three notes to section 61C, the 2006 legislative amendments did not in any way amend sections 61B, 61C or 61D.
Section 64B provides the definition of the term “parenting order” and related terms. Prior to the 2006 amendments the section relevantly provided as follows:
64B Meaning of parenting order and related terms
(1)…
(2)A parenting order may deal with one or more of the following:
(a)      the person or persons with whom a child is to live;
(b)      contact between a child and another person or other persons;
(c)      maintenance of a child;
(d)      any other aspect of parental responsibility for a child.
(3)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(a), the order is a residence order.
(4)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(b), the order is a contact order.
(5)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(c), the order is a child maintenance order.
(6)To the extent (if at all) that a parenting order deals with any other aspect of parental responsibility for a child, the order is a specific issues order. A specific issues order may, for example, confer on a person (whether alone or jointly with another person) responsibility for the long-term care, welfare and development of the child or for the day-to-day care, welfare and development of the child.
As a consequence of the amendments effected in 2006, s 64B now relevantly provides as follows:
64B Meaning of parenting order and related terms
(1)      …
(2)      A parenting order may deal with one or more of the following:
(a)      the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)      the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)       …
(g)…
(h)…
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
…
(3)Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.
It will be observed that one significant aspect of the 2006 amendments was the expunging of the convenient names previously given to each of the different types of parenting orders. We have alluded to some of the linguistic problems this has created in paragraph 5 of these reasons. For present purposes, however, the matter of greater importance is the elimination of the concept of “specific issues orders” and the apparent discarding of the notion that parental responsibility can be divided between responsibility for matters concerning “long‑term care, welfare and development” and matters concerning “day‑to‑day care, welfare and development”.
The concept of parental responsibility for long‑term care, welfare and development issues has now been replaced by responsibility for decisions about “major long‑term issues”. Section 4(1) of the Act provides the following definition of this expression:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a)      the child’s education (both current and future); and
(b)      the child’s religious and cultural upbringing; and
(c)      the child’s health; and
(d)      the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
…
The 2006 amendments provide no substitute for a specific issues order to deal with arrangements for the day-to-day care, welfare and development of a child although s 65DAE, which we will shortly discuss, makes it clear that where parents or another person have an order for shared parental responsibility, they do not need to confer on matters which are not major long-term issues.
We acknowledge there are some remnants of the concept of “day-to-day care, welfare and development” in the Act. For example, there is reference to it in the definition in s 4(1) of a “Subdivision C parenting order”. This definition was introduced by the 2006 amendments; however, it relates to the registration of overseas orders concerning children.
There is also reference to the concept in s 69Z, which provides that a medical procedure required to be carried out pursuant to an order for parentage testing in relation to a child must not be carried out without the consent, inter alia, of “a person who, under a parenting order, has responsibility for the child’s long‑term and day‑to‑day care, welfare and development”. (Section 69Z was amended by the 2006 legislation, but only by deleting the expression “specific issues order” and replacing it with “parenting order”).
Otherwise, the 2006 amendments removed all reference in the legislation to a child’s “long‑term or day‑to‑day care, welfare and development” – see ss 26B(1A), 37A(2A), 64B(6), 65G(1), 65P(1), 65X, 67K, 67Q, 67T, 68B, 68M, 79A(1AA), 90K(2), 92A(2)(bb) and 111B(4).
The amendments do not, however, eschew the concept of “care, welfare and development” of children. On the contrary, s 60B, which sets out the objects and underlying principles of Part VII of the Act uses that formulation on three separate occasions. We repeat below ss 60B(1) and (2) in their amended form since they are also relevant to other matters raised for consideration in this appeal (our emphasis added):
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It will be observed from s 60B (and many other provisions of the legislation) that great emphasis has been placed on the importance of parents jointly sharing responsibility for matters associated with their children’s care, welfare and development. Indeed, s 61DA now requires the Court to apply a presumption (subject to important qualifications) that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility. For a discussion concerning the difference between an order for equal shared parental responsibility and the parental responsibility which exists as a result of s 61C, see Goode and Goode (2006) FLC 93-286 at [29]-[30].
Section 65DAC indicates the consequences of making an order for shared parental responsibility. It is in the following terms:
65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
As the note to s 65DAC indicates, the section must be read in conjunction with s 65DAE, which was also inserted by the 2006 amendments. That section indicates that there is a range of issues about which parents do not need to consult with each other, even if there is an order for shared parental responsibility. Section 65DAE provides as follows:
65DAE No need to consult on issues that are not major long‑term issues
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b)shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.
Note:This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.
(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.
Once again, it will be observed from s 65DAE that in dealing with matters of parental responsibility the legislation is now constructed around the concept of “major long-term issues”. If an issue is a “major long-term” issue then parents must consult and ideally reach agreement. If the issue is not a “major long-term” issue, then consultation is unnecessary and parents may act unilaterally.
How in practice does a parent (or ultimately a Court) determine whether or not an issue of parental responsibility is a “major long-term” issue? It will be noted that the s 4 definition is somewhat circular and does little to elucidate, in particular, what is meant by “long‑term”. Some clue to the likely dilemmas of categorisation is provided by the note to s 65DAE which indicates that decisions about such things as what a child eats or wears are “usually not major long‑term issues” (see s 15AD of the Acts Interpretation Act1901 and the discussion of the use of notes in Pearce, D C and Geddes, R, Statutory Interpretation in Australia, 6^th ed, LexisNexis, Australia, 2006, at p 163). Clearly in the note it is contemplated that, for some children, decisions about matters such as what they wear and/or what they eat can be both “major” and “long-term”. Hence, the legislation contemplates a degree of elasticity in determining where the line falls between those decisions that are “major long-term” and those that are not. Such elasticity, in our view, affords proper recognition to the almost endless variety of family circumstances.

The submissions

Counsel for the husband submitted that the learned Magistrate failed to correctly apply the law with respect to parental responsibility by making an order that the wife have sole parental responsibility for “management” of issues concerning [S’s] health and schooling “in that he failed to correctly apply the law and principles set out in s 60B of the Family Law Act 1975”.
Counsel went on to criticise comments in his Honour’s judgment such as that there is an “inherent difficulty associated with the concept of ‘rule by a committee of two…’” and “whilst the theory of joint management and control is attractive, there needs to be a mechanism to break any deadlock which might arise from time to time”. Counsel submitted these were not correct statements of the law, nor adequate reasons to modify equal shared parental responsibility.
Counsel for the wife submitted in his written outline of argument that the order concerning responsibility for management of health and education was made only as a “circuit breaker” in the event of deadlock and did not exclude the husband from “decision making processes”. Counsel for the wife went on to submit in his written outline that the order:
was made upon the basis of the finding of the Learned Magistrate that the wife would appropriately include the husband and consult with him … The parties were expressly given liberty to apply which they may exercise in the event that some unresolved issue arises. This could of course also mean that if the husband took exception to a particular decision made by the wife he may apply.
In his oral submissions, counsel for the wife adopted a different approach. He submitted that his Honour had intended to leave both parents with parental responsibility in relation to all issues concerning [S’s] welfare, including education and health issues. He submitted that in seeking responsibility for “management” of health and education issues the wife had not wanted to remove any decision making authority from the husband, but rather wished to be the person with whom third parties would deal in relation to education and health issues. Counsel further submitted that the wife’s authority to deal with “management” of these issues was not quite the same as having responsibility for the “day to day care, welfare and development” issues associated with [S’s] health and education (to use the pre 2006 language).

Discussion

The first observation to make concerning paragraph 2 of the orders is that the word “management” was not defined in his Honour’s reasons or in the orders, nor is it defined by the Act. The fact his Honour made paragraph 2 of his orders expressly subject to paragraph 1, which deals with parental responsibility, would indicate that his Honour understood that the wife’s “management” of certain issues would derogate in some way from the husband’s parental responsibility.
The difficulty with the absence of a definition of “management” is that it is impossible to determine the extent to which the husband’s parental responsibility was diminished by the terms of paragraph 2. The confusion likely to arise from the use of such imprecise language is apparent from the wife’s own submissions. As we have observed, counsel for the wife initially acknowledged that the wife would be able to make decisions relating to [S’s] health and education as a consequence of the authority conferred on her by paragraph 2, whereas in his oral submissions counsel eschewed any suggestion that the wife would have any decision‑making authority.
The latter submission is also in conflict with the submissions counsel for the wife made to his Honour, where it was argued that “the parties have a poor ability to communicate and in the event of disagreement (or delay in securing agreement) then one of them should be charged with the ultimate responsibility for making a decision”. (Appeal Book II, page 277, para 8)
What then did the learned Magistrate have in mind in making the order he did? In posing this question, we are aware there is a divergence of judicial opinion concerning the extent to which it is permissible to go behind the words of an order by examining the reasons for judgment as an aid to construction (see for example Yunghanns and Ors v Yunghanns and Ors; Yunghanns (1999) FLC 92‑836 at [142]‑[143], Langford and Coleman (1993) FLC 92‑346 at pp 79,670‑79,671 and in particular Repatriation Commission v Nation (1995) 57 FCR 25 at pp 33‑34).
It is clearly imperative that orders relating to parental responsibility should be accompanied by as little ambiguity as practicable. This is especially so given the extent to which third parties such as schools and hospitals rely upon Court orders to satisfy themselves about the authority of parents to make decisions about their children. It could not be expected that third parties would be required to peruse the reasons for decision of a judicial officer in order to assist them to understand forms of words used in Court orders. The Full Court in Newlands and Newlands (2007) 37 Fam LR 103 at [92] pointed out the uncertainty that can be created when judicial officers use a form of words not mandated by the legislation when allocating parental responsibility.
Assuming, however, it was appropriate to consider his Honour’s reasons in seeking to give meaning to his orders, confusion would still arise. At paragraph 9 of his judgment, his Honour found that the statutory presumption in favour of equal shared parental responsibility was not rebutted. He noted also the agreement of the parties that they should have equal shared parental responsibility. When his Honour turned (at paragraph 63) to consider the wife’s application “for a special order”, his Honour observed that the Court had already ruled on the subject of [S’s] schooling in 2008 “and that being so there is probably not much of substance left to be managed under the heading ‘school related issues’ ”. That comment would tend to suggest that his Honour regarded the question of the choice of [S’s] schooling as a matter of “management”. If that were so then it is apparent his Honour had in mind a very wide meaning for the word.
In paragraph 64, his Honour expressed his lack of confidence in the parents’ ability in the short term to be able to “confer and discuss productively the management of the child’s health and schooling issues”. He noted the concession made by the husband in closing submissions that in the event of a deadlock between the parties, he would be willing to give ground and to “trial” the wife’s proposal. Using a form of words that has been the subject of criticism before us, his Honour went on to say that this concession:
quite properly and pragmatically, acknowledges the inherent difficulty associated with the concept of “rule by a committee of two”. That is to say, whilst the theory of joint management and control is attractive, there needs to be a mechanism to break any deadlock which might arise from time to time.
In our view, those observations too would clearly indicate that his Honour anticipated that with “management” came decision‑making.
His Honour made further observations at paragraph 66 of his judgment which we have set out in full above. In that paragraph his Honour expressly referred to the trust he had in the wife that she would consult/advise the husband of “the more important decisions arising from the management of health and school issues”. This again makes plain that his Honour anticipated that his orders would provide the wife with authority to make “the more important decisions” relating to health and education issues.

Consideration of his Honour’s reasons would therefore support an interpretation of paragraph 2 of the orders as giving the wife at least some authority to make important decisions, rather than her simply being a point of contact for educational and medical authorities.
We accept there is substance in the criticisms made by counsel for the husband concerning the views his Honour expressed in paragraphs 64 and 66 of his judgment. As his Honour noted, the Court is obliged to apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. Absent findings of child abuse or violence, the presumption may only be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. Accordingly, the facts (if indeed they are such) to which his Honour referred in paragraphs 64 and 66 that:
·    there are inherent difficulties associated with the concept of “rule by a committee of two”;
·    from the “point of view of the education authorities and of the medical service providers, it is far easier for them to deal with just the one point of reference”; and
·    the making of an order for sole parental responsibility would limit communication between parents who do not “enjoy a particularly good relationship”;
are not – in themselves – sufficient to rebut the presumption of equal shared parental responsibility.
In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
As we have discussed above, the Act provides only one basis for the broad categorisation of matters that require decisions to be made in the performance of parental responsibility. That is the distinction between matters that involve “major long‑term issues” and matters that do not.
We do not, of course, suggest it is always easy to determine whether or not an issue is a “major long‑term issue”. On the contrary, we consider the distinction between major long‑term issues and other issues is already sufficiently fraught with ambiguity as to make it imperative that no greater degree of ambiguity be introduced by use of other nebulous concepts that find no foundation in the words of the legislation.
We therefore accept that his Honour erred in acceding to the wife’s request to be given responsibility for “management” of issues relating to [S’s] health and education.

Ground 2 – change of school

By this ground the husband asserted that:
The Learned Magistrate erred in failing to make an order that the wife be restrained from changing the child’s school.
The husband had not sought such an injunction; however, we accept that the order he proposed for shared parental responsibility would have ensured that [S’s] school could not be changed without his agreement. His Honour did, however, find that it would not be in [S’s] best interests to change school and therefore refused to make the order sought by the wife which would have allowed her to move him to a new school.
At the time judgment was delivered, counsel for the husband brought to his Honour’s attention her concern about the inter‑relationship between the orders made for parental responsibility concerning education issues and his Honour’s finding that [S] should continue to attend his current school. His Honour expressed the view that he had dealt with the matter by dismissing the balance of the applications made to him and that included the application of the wife to change schools. (Transcript of Proceedings of 20 December 2007, pages 2‑3)
The outcome of Ground 2 was dependent on the interpretation we placed on his Honour’s orders concerning parental responsibility. If the combined effect of paragraphs 1 and 2 of the orders was that the husband retained shared parental responsibility for major long-term education issues, then there would have been no merit in the ground since an injunction would not be needed. If the proper interpretation was that the wife had been given responsibility for major long-term issues, then arguably his Honour should have included something in his orders to make clear that the wife’s capacity to determine such issues did not permit her to change [S’s] school.
Given the view we have reached in relation to the interpretation of his Honour’s orders, the outcome of this ground will now depend upon what we do to remedy the error we have identified in consideration of Ground 1. We will therefore return to this issue at the conclusion of these reasons.

Ground 3 – time spent with the husband

By this ground the husband asserted:
The Learned Magistrate erred in making orders about the time the child spends with each parent during school terms as the orders fail to provide for an appropriate amount of time with the husband, do not give effect to the reasons, fail to accurately specify times with each parent, and reduce the time the child spends with the husband from that spent pursuant to the interim orders when this was not the Learned Magistrate’s stated intention.
Notwithstanding what was said in her written outline of argument (and in the earlier part of her oral submissions), counsel for the husband ultimately conceded that it was within the proper exercise of his Honour’s discretion to decide that the husband’s time with [S] should not commence until the day after he had completed his cluster of shifts.
In light of this concession, it is unnecessary to consider the submissions originally advanced in support of the proposition that his Honour erred in failing “to provide for an appropriate amount of time with the husband”.
It is also unnecessary to consider the complaint that the orders failed “to accurately specify times with each parent”. This part of Ground 3 was not pressed by counsel for the husband. In any event, the parties had demonstrated an ability to agree times of handover under the terms of the interim consent orders. Those orders also lacked specificity about the precise time [S] would spend with each parent.
As his Honour said in paragraph 62 of his judgment:
It would appear that the parties themselves have been able to give valid effect to the current interim order. If that is correct, then the parties need only to continue doing that which they have been doing in respect of handover.
The only element of this ground ultimately pressed was the complaint that the orders reduced the time [S] “spends with the husband from that spent pursuant to the interim orders when this was not the Learned Magistrate’s stated intention”. Counsel for the husband submitted that paragraph 4 of the orders should have been made the subject of an exception which would have permitted the husband to collect [S] on the last day of what was described as his “short shift”. It was submitted that without such a proviso the husband would be unable to have the “three nights/four days” between shifts which his Honour’s order contemplated. (It was acknowledged that the “short shift” occurred only once every five weeks.)
We note that the interim consent orders contained a similar provision to that about which the husband now complains. That order provided that “[S] shall live with the father for three nights/four days between each of the father’s shifts”. It was common ground that prior to trial the husband had been collecting [S] on the Friday after school immediately following the completion of his “short shift” so as to ensure that he was able to have the three nights with [S] contemplated by the order. On all other occasions he was collecting [S] on the day following completion of his last shift. We were also told that it was common ground that notwithstanding the terms of his Honour’s orders, the parties had continued the same arrangement after the delivery of judgment.
We were not asked to make an order by consent reflecting this de facto variation of his Honour’s orders. Counsel for the wife submitted that it was entirely unnecessary for the variation to be formalised, given that the arrangement had been in place ever since the interim order was made. He further submitted that it may be problematic drafting an order to accurately reflect what was happening and he also claimed that the husband’s roster regularly changed. He also drew attention to the fact that any “exception” built into the order would only have impact on one and possibly two weekends in each of the four school terms.
His Honour’s reasons for judgment make clear that he anticipated that the effect of his orders would be that the husband would have the same amount of time with [S] as he had been exercising under the terms of the interim order. His Honour was aware that notwithstanding the wife’s concerns about the husband having [S] on the same day as he had concluded a night shift, those concerns had not led to her to deny the husband time with [S] on the same day as he completed his “short shift”. Knowing that this was the manner in which the parties had interpreted the terms of the interim order, we do not consider that his Honour erred in failing to build into the order an “exception” of the nature now sought by counsel for the husband.
We therefore consider there is no substance in this ground.

Ground 4 – special occasion time

By this ground the husband asserted:
The Learned Magistrate erred in failing to make specific orders for special occasion time with each parent.
Both parties asked his Honour to make a large number of orders, many of which were not contentious or in relation to which there were only minor variations between the positions of the parties. His Honour, having indicated he proposed to make an order for equal shared parental responsibility, was obliged to consider the parents spending substantial and significant time with the child if in the child’s best interests and reasonably practicable. Substantial and significant time is defined in s 65DAA(3)(b) and (c) to include occasions and events which are of particular significance to the child, and for the child to be involved in events which are of particular significance to the parents. We have recited above his Honour’s reasons for declining to make such orders. In effect, his Honour considered that such orders were unnecessary and that the parties would be able to reach their own agreements in relation to special occasions.
It was submitted on behalf of the husband that his Honour’s confidence in the ability of the parties to resolve issues such as the sharing of time with [S] on special occasions was in conflict with his finding concerning their inability to “confer and discuss productively the management of the child’s health and schooling issues”. We do not consider there is any substance in this submission. His Honour came to his decision knowing that the parties had themselves consented to an interim order which was not specific in relation to sharing of [S’s] time on special occasions. We were not directed to any evidence to indicate that the absence of specificity in the interim orders had led to any disputation concerning such special occasions. There was, however, evidence to indicate that some issues had arisen in relation to matters concerning [S’s] health and education.
We should also observe that the absence of specificity in his Honour’s final orders would not leave only the husband at the whim of the wife in relation to the celebration of special occasions. In the absence of agreement, each parent could be denied contact with [S] on special occasions if the occasion fell during the time [S] was living with the other parent. This fact alone would provide an incentive to the parties to agree, since the special occasion might fall during the other party’s time with [S] in subsequent years.
It may be that some or all of the members of this Court would have made detailed orders relating to special occasions had we been determining the matter at first instance. Such orders would have had the potential advantage of minimising the possibility of future disagreements. We are unable to say, however, that his Honour erred in refusing to make such orders. His Honour gave reasons for the decision he reached and those reasons were both clear and cogent. There is accordingly no substance in this ground of appeal.

Ground 5 – change in arrangements

By this ground the husband asserted that:
The Learned Magistrate erred in failing to make an [sic] orders which provide for parental agreement for changing arrangements for time the child spends with each parent.
This ground was properly abandoned. The Act makes clear that any order of the Court may be varied by a subsequent parenting plan – unless the Court has made an order to the contrary: s 64D.

Ground 6 – holiday contact

By this ground the husband asserted that:
The Learned Magistrate erred in making long term orders that the child not spend more than two weeks away from either parent during school holidays.
It will be recalled that paragraph 3 of the orders read as follows:
During all school holiday periods, the child live with each of the parties for one half of each such period, subject to the qualification that the child spend no longer than a week away at a time from either party until at least the commencement of the 2008/2009 summer school holidays and thereafter, spend no longer than 2 weeks away at a time from either party.
The effect of this paragraph is that in the absence of agreement between the parties or a further order of the Court, neither parent would be able to spend longer than two weeks at a time with [S] during the summer school holidays after the commencement of the 2008/2009 summer school holidays.
Counsel for the husband submitted this was an error, as it would have to be anticipated that, with the passage of time, it would become appropriate for [S] to spend longer than two weeks away from either parent.
Counsel for the wife accepted that this would be so, but submitted there was no error on the part of his Honour as the parents themselves could agree about increasing the time [S] spends with each of them. His Honour had expressed a similar view when counsel for the husband voiced objection to the form of the order at the time judgment was delivered. (Transcript of Proceedings of 20 December 2007, pages 3‑5)
Counsel for the wife also submitted that it would be difficult for either parent to have a period longer than two weeks away from [S] because of the interruptions of Christmas and [S’s] birthday early in January. There is no substance in this submission, as clearly there would be an opportunity for a holiday longer than two weeks after [S’s] birthday and prior to the commencement of the new school year.
There is also no substance in the submission made by counsel for the husband that paragraph 3 of the orders was inconsistent with paragraph 6, which required the parties to give notice to the other party if they planned to travel with [S] overseas. No inconsistency arises since such a holiday could be taken in a period of two weeks or less. As his Honour said (at paragraph 67):
the final parenting orders made in this case will of themselves inhibit overseas travel. That is to say, it will not be until the 2008/09 summer holidays that the child will be away from either parent for more than a week or so at a time. Thus, if either parent wishes to embark on a lengthy holiday with the child, then he/she will have to obtain the consent of the other parent.
We consider, however, there is substance in the submission of counsel for the husband that his Honour erred because paragraph 3 of his orders did not reflect his intentions as expressed in his judgment. It will be recalled that his Honour said (at paragraph 46):
The Court will make a specific order to address the 2008/09 summer holidays but it does not propose to rule beyond that time. This is one of those issues, to which the Court referred in paragraph 12 hereof, which the parties should be able to sort out as between themselves when the time arrives.
By making an order that had effect beyond the 2008/2009 summer school holidays his Honour, in effect, did rule on the issue on which he said he did not propose to rule. His Honour’s intention was that this would be a matter for the parties to negotiate after the 2008/2009 school holidays. He did not express in his judgment any intention for there to be a “default position” which would restrict length of holidays to two weeks unless there was agreement between the parties. Such, however, is the effect of his Honour’s order.
We therefore consider there is merit in this ground. The error we perceive to have been made can, of course, be remedied simply by deleting all words after “school holidays” in paragraph 3 of the orders.

Outcome of the appeal

We have found merit in Ground 1 relating to the allocation of parental responsibility for educational and medical issues. We have said that the outcome of Ground 2 depends upon what course we follow as a consequence of our determination of Ground 1. We have found merit in Ground 6, but have said that the error identified can be simply resolved. We have found no merit in the other matters raised.
The issue we must now determine is whether or not we should remit the issues concerning parental responsibility for further consideration, either by his Honour or by another judicial officer, or alternatively whether we should re‑exercise his Honour’s discretion.
Our task in this regard is made more difficult as a consequence of a concession made before us by counsel for the wife. Were it not for that concession, we may have considered it appropriate, given his Honour’s findings, for the parties to have equal shared parental responsibility for all major long‑term issues save for issues relating to [S’s] health and education and that the wife should have had responsibility for the latter.
We are, however, constrained in making such an order by virtue of the fact that counsel for the wife conceded before us that it would be appropriate for there to be an order for both parents to have equal shared parental responsibility for all issues concerning [S’s] welfare, including health and education. This concession, however, was made in the light of the expectation of the wife that she would be left to undertake the “management” of [S’s] health and medical issues, whereas we have indicated that this would not be an appropriate form of order.

We have also given consideration to the possibility of making an order that the wife be responsible for all issues concerning [S’s] health and education which are not “major long term issues”. The difficulty with such an order, however, is that arguably it would make the wife responsible for making decisions about things as minor as what [S] will wear to school (to adopt the example used in the note to s 65DAE). This is clearly inappropriate in the circumstances of the present case and also is not what the wife is really seeking to achieve.
In our view, we consider there is no alternative other than to remit the matter for re-hearing on the issue of parental responsibility. Both parties will be able to consider their position on this issue in the light of the analysis of the law we have provided. In such circumstances, we do not consider it would be appropriate for the wife to be held to the concession she made before us concerning full shared parental responsibility.
We consider that the rehearing of the matter should be conducted by Magistrate Moroni, if practicable, since no attack has been made against the findings of fact he made. His Honour’s task, upon a rehearing of the matter, would be to make the decision he would have made, had he the benefit of the analysis now provided by our reasons. His Honour can also consider again whether there is need for a specific order restraining the wife from changing [S’s] place of school.

Costs

Both parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in the event the appeal succeeded. The appeal has succeeded on a question of law and in our view it is appropriate that costs certificates be granted, both for the appeal and the rehearing.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 15 September 2008