CLEMENT & CLEMENT (No.3)
[2012] FMCAfam 37
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLEMENT & CLEMENT (No.3) | [2012] FMCAfam 37 |
| FAMILY LAW – Parenting – change in circumstances – where father has relocated back to Sydney after previous orders made – whether mother should deliver the child to the father’s residence – whether time that the child spends with the father should be extended – whether the time with the father during the long summer holidays should be spent in a block period. FAMILY LAW – Practice and procedure – permissibility of the Bench questioning a witness – ‘leading’ questions from the Bench – statutory and common law basis for judicial officer posing questions to a witness. |
| Evidence Act 1995 (Cth), s.37 Family Law Act 1975 (Cth), ss.4, 60CC, 60CA, 61B, 61C, 61DA, 64B, 65DAA, 69ZM, 69ZN, 69ZX, 117 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Federal Magistrates Court Act 1999 (Cth), s.63 |
| Cooper v Cooper (1977) FLC 90-234 Clement & Clement [2010] FMCAfam 1143 Clement & Clement (No.2) [2010] FMCAfam 1473 In the Marriage of Bainrot (1976) FLC 90-003 In the Marriage of Filipovic (1977) FLC 90-266 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 In the Marriage of Lonard (1976) 2 Fam LR 11,116 In the Marriage of Stavros (1984) FLC 91-562; (1984) 9 Fam LR 1025; (1984) 75 FLR 323 Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155 Lindell & Ranteri [2010] FamCA 52 Rice & Asplund (1978) 6 Fam LR 570 Sheen & Paulo [2007] FamCA 1175 TVT & TLM (2006) FMCAfam 20 |
| Applicant: | MR CLEMENT |
| Respondent: | MS CLEMENT |
| File Number: | PAC 2925 of 2008 |
| Judgment of: | Monahan FM |
| Hearing dates: | 19, 20 and 21 October 2011 |
| Date of Last Submission: | 21 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Connor |
| Solicitors for the Applicant: | Argyle Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
All existing parenting orders in relation to [X], born [in] 2002 (“the child”) be discharged.
MR CLEMENT (“the Father”) and MS CLEMENT (“the Mother”) have equal shared parental responsibility for the child.
The child live with the Mother.
The child spend time with the Father as agreed between the parties or, failing agreement, as follows:
(a)During school terms:
(i)commencing on a Friday to be fixed, and in each alternate week thereafter until the end of Term 2 in 2012, the Father spend time with the child from 7:00pm on Friday until before school on Monday (or extended to before school Tuesday in the event that Monday is a non-school day);
(ii)commencing in the first school week of Term 3 in 2012, and in each alternate week thereafter, the Father spend time with the child from 7:00pm on Friday until before school on Tuesday (or 9:00am in the event that Tuesday is a non-school day);
(b)During the short NSW gazetted school holiday periods at the conclusion of terms one, two and three, for one half of each holiday period with such half to be as agreed between the parties or, failing agreement, as follows:
(i)the second half in even-numbered years on days and times as agreed, or failing agreement as to days and times from Friday in the last week of the relevant school term at 7:00pm until the midpoint Saturday at 5:00pm; and
(ii)the first half in odd-numbered years on days and times as agreed, or failing agreement as to days and times from the midpoint Saturday at 5:00pm until the Sunday immediately prior to the first week of the relevant school term at 5:00pm.
(c)During the long summer school holidays commencing in December 2012 and each long summer holiday period thereafter, for one half of that holiday period as agreed between the parties or, failing agreement, as follows:
(i)The first half in even-numbered years on days and times as agreed, or failing agreement as to days and times from the first Saturday at 10:00am until the relevant day closest to the midpoint of the holiday period at 5:00pm; and
(ii)The second half in odd-numbered years on days and times as agreed, or failing agreement as to days and times from the relevant day closest to the midpoint of the holiday period at 10:00am until the Sunday immediately prior the commencement of term one at 5:00pm.
AND FOR THE AVOIDANCE OF DOUBT paragraph 4(a)(ii) herein will recommence in the first week of each school term with the child spending time with the Father on the first Friday of the first week of each school term.
For the purpose of paragraph 4 herein changeover occur as agreed or, failing agreement, as follows:
(a)During school terms:
(i)at the commencement of the time the child spends with the Father the Mother take and deliver the child to the Father at the Father’s residence on the relevant day;
(ii)at the conclusion of the time that the child spends with the Father, the Father take and deliver the child to the Mother’s residence, except on school days when he returns the child to school;
(b)During all school holiday periods:
(i)at the commencement of the time the child spends with the Father the Mother take and deliver the child to the Father at the Father’s residence on the relevant day;
(ii)at the conclusion of the time that the child spends with the Father, the Father take and deliver the child to the Mother at the Mother’s residence on the relevant day.
In the event that the Mother would be likely to arrive at the Father’s residence prior to 7:00pm in facilitating changeover on any relevant Friday in accordance with paragraph 4 herein, the Mother notify the Father in advance of her arrival at the Father’s residence.
In the event that the Mother is unable to take and deliver the child to the Father’s residence on any relevant Friday in accordance with paragraph 4 herein due to work commitments, the Mother provide at least 24 hours notice to the Father and the Father or his nominee collect the child from school or from such other place as agreed and otherwise ensure that the child’s after-school commitments that day are facilitated by the Father, or his nominee.
The Father facilitate and otherwise ensure that the child attends school on all school days when the child is in his care in accordance with paragraph 4 herein.
In the event that either the Mother or the Father are unable to facilitate changeover then either may nominate an appropriate person to facilitate same.
In the event that the child is not otherwise doing so in accordance with these orders or by agreement of the parties, the child spend time with the Father on Father’s Day each year with the times and changeover to occur as agreed or, failing agreement with the Father collecting the child from the Mother at 10:00am and the Mother then collecting the child from the Father at 5:00pm.
In the event that the child is not otherwise doing so in accordance with these orders or by agreement of the parties, the child spend time with the Mother on Mother’s Day each year with the times and changeover to occur as agreed or, failing agreement with the Mother collecting the child from the Father at 10:00am and the Father then collecting the child from the Mother at 5:00pm.
During school terms, when the child is living with the Mother, the child communicate with the Father by telephone (or such other available electronic means such as Skype) at such times as agreed between the parties or, failing agreement the Father nominate two evenings per week for this communication time to occur for a maximum 30 time minute period between 5:00pm and 7:00pm.
Similarly during school terms, when the child is spending time with the Father, the child communicate with the Mother by telephone (or such other available electronic means such as Skype) at such times as agreed between the parties or, failing agreement, the Mother nominate one evening for this communication to occur for a maximum 30 minute time period between 5:00pm and 7:00pm.
During all school holiday periods, the child communicate with the party with whom they are not spending time by telephone (or such other available electronic means such as Skype) at such times as agreed between the parties or, failing agreement, each party nominate two times each week for this communication to occur for a maximum 30 minute time period between 5:00pm and 7:00pm.
To facilitate paragraphs 12 to 14 herein, each party provide the other with their nominated communication times in writing within seven days of the date of these orders and thereafter if either party wishes to change their nominated times they provide the other party with at least seven days written notice.
In the event that either party seeks to travel interstate or overseas with the child then that party provide the other with reasonable notice of not less than 21 days of their intention to travel with the child and such notice is to include:
(a)A written itinerary of the relevant plane, train and/or bus bookings and details;
(b)All accommodation details, including telephone numbers and websites where available; and
(c)A final written itinerary within seven (7) days of departure provide details of travel insurance and confirmation that the child has been registered on the Australian Government’s “Smart Traveller” website.
The Father be granted leave to provide a copy of these Orders to the child’s school and request that a copy of all school reports, school notices and newsletters and such in relation to the child be forwarded to the Father, at his expense, if applicable.
In the event that the school requires the Mother to provide an authority to facilitate paragraph 17 herein then the Mother forthwith sign any necessary authority.
The parties keep the other advised at all times of their current residential address, email addresses and landline and mobile telephone numbers.
The parties:
(a)advise the other immediately in the event that the child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practise attended; and
(b)authorise any medical practitioner, hospital or medical practise upon or at which the child may attend from time to time, to communicate with the other party in respect to the child’s medical condition and/or requirements;
Both parties keep the other informed about the child’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the child moves from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the child is living or spending time at the time when the existing communication book is filled.
Each party be restrained from denigrating:
(a)the other party;
(b)any partner of the other party; or
(c)any family member of the other party
in the presence or hearing of the child.
In the event that the parties are unable to reach agreement relating to the child’s long term care, welfare and development the parties participate in family dispute resolution.
Pursuant to s.13C of the Family Law Act 1975 the parties:
(a)attend and complete, as soon as practicable, a parenting orders program such as “[omitted program]” (“the Program”) at an organisation as agreed or, failing agreement, at [organisation omitted];
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)if applicable, pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other party or the other party’s solicitor;
and the Court notes that the purpose of this Order is to assist the parties to develop the ability to communicate with each other and to act in a more child-focused manner.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Clement & Clement (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2925 of 2008
| MR CLEMENT |
Applicant
And
| MS CLEMENT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR CLEMENT (“the father”) against MS CLEMENT, also known as MS TRAVIS (“the mother”), seeking various parenting with respect to the child of their relationship, [X], born [in] 2002 (“[X]”). The mother opposes the orders sought by the father and, instead, seeks that different parenting orders be made.
Background
The parties were married [in] 2001 and separated in early 2003. The parties divorced [in] 2005.
The father has subsequently re-partnered and become engaged to Ms W, with whom he has a son, [Y], born [in] 2010. The mother has not re-partnered.
The father is currently aged 40 years and the mother is currently aged 36 years.
Following the parties’ separation, final parenting and property orders were made by consent in the Family Court at Parramatta on 3 December 2003 (“the 2003 Orders”). In sum, with respect to parenting, the 2003 Orders provided that:
·[X] live with the mother;
·[X] spend time with the father as agreed between the parties; and
·the parties have equal shared parental responsibility for [X].[1]
[1] See the Terms of Settlement dated 21 November 2003, which comprises Annexure A to the father’s Affidavit sworn on 30 September 2011.
The father relocated from Sydney to Townsville in January 2006 and on 20 June 2008 filed an Application for Final Orders in the Family Court at Parramatta in which he sought to vary the 2003 Orders.
The matter came before Collier J on 20 November 2009 and following a hearing at which the parties were both represented his Honour delivered an ex tempore decision and made parenting Orders (“the 2009 Orders”)[2] which discharged the 2003 Orders and instead provided (inter alia) as follows:
[2] See the decision of Collier J, published under the pseudonym Clement & Clement [2009] FamCA 1355.
“…
(2) That the parents have equal shared parental responsibility for the said child.
(3) That the said child live with the mother.
(4) That the said child spend time with the father as follows:
(a) Each third weekend from after school Friday to 5pm Sunday extending to 5pm Monday in the case of a non-weekend.
(i) The first such weekend is to be in accordance with the current regime.
(b) During short school holidays from 5pm on the last day of term to 5pm on the Saturday closest to the midpoint of the holiday period.
(c) During the December 2009 / January 2010 school holiday period and each alternate year thereafter from 10am on 27 December to 5pm on 6 January and from 10am on 17 January until 5pm on 26 January.
(d) During the December 2010 / January 2011 school holiday period and each alternate year thereafter from 10am on 23 December to 5pm on 2 January and from 10am on 11 January to 5pm on 17 January.
(5) That for the purpose of the father spending time with the child:
(a) The father shall ensure that he notifies the mother of his availability to collect the child from school.
(b) If shall be the father’s responsibility on all occasions to collect the child from school and in event he is required by these Orders to collect the child at times other than the conclusion of school he is to collect the child from the mother’s place of residence.
(c) It shall be the father’s responsibility to return the child to the mother’s home at the conclusion of each period of time he spends with the child.
(6) That the father ensure the child is made available to attend swimming activities every second Friday the child spends time with him.
(7) That within seven days from the date of these Orders, the mother do all things and execute all documents necessary to include the father’s name in any document entitling him to communicate with the child’s school and receive all documents relating to school activities.
(8) That each party keep the other advised of up to date contact telephone numbers and residential addresses.
(9) That each party shall ensure the other is notified as soon as practicable in the event of any accident or emergency involving the child whilst the child is in their care.”
The father filed a Notice of Appeal against the decision of Collier J on 17 December 2009, but discontinued the appeal on 4 March 2010.
On 23 September 2010, the father relocated back to Sydney, taking up residence in rental accommodation in the suburb of [Suburb A].
These proceedings were commenced by the father by way of Initiating Application filed on 4 August 2010 and later amended by the father’s Amended Initiating Application filed on 4 October 2011.
Following an application by the mother for the dismissal of the father’s Initiating Application, an interim hearing was conducted before me in my duty list on 7 September 2010 and I delivered an ex tempore decision on that date. My reasons were later settled and released to the parties.[3] In that interim hearing, the mother foreshadowed a potential argument that the father’s application ought to be dismissed on the basis of the rule in Rice & Asplund (1978) 6 Fam LR 570. I made some comments on this issue in my decision[4] and the mother did not thereafter pursue the issue.
[3] See Clement & Clement [2010] FMCAfam 1143.
[4] Ibid, at [15] – [20].
The matter next came before me on 20 December 2010 for further interim hearing with respect to the father’s Amended Application in a Case filed on 15 December 2010 in which he sought interim changes to the arrangements for him to spend time with [X] in view of his relocation back to the Sydney area. He also sought orders with respect to overseas travel with [X].
I delivered my ex tempore decision on the father’s Amended Application in a Case only, on 20 December 2010. The decision was later settled in writing and released to the parties.[5] Inter alia, I made Orders in the following terms:
[5] Clement & Clement (No.2) [2010] FMCAfam 1473.
“3. Paragraph 4 of the Orders made by the Family Court of Australia on 20 November 2009 be amended so that [X] born [in] 2002 (“the child”) spend time with the Applicant Father as follows:
‘(4) (a) Each alternate weekend from after school Friday to 5:00pm Sunday extending to 5:00pm Monday in the case of a non long weekend, the first such weekend to be at the commencement of the 2011 School Term.’
4. Paragraph 4 of the Orders made by the Family Court of Australia on 20 November 2009 be amended to include the following:
‘(4) (e) The child spend time with the Applicant Father at all other times as agreed between the parties.’
5. In the event that either party seeks to travel interstate or overseas with the child then that party provide the other with reasonable notice of not less than 21 days of their intention to travel with the child and such notice is to include:
(a) A written itinerary of the relevant plane, train and/or bus bookings and details;
(b) All accommodation details, including telephone numbers and websites where available; and
(c) A final written itinerary within seven (7) days of departure provide details of travel insurance and confirmation that the child has been registered on the Australian Government’s ‘Smart Traveller’ website.”
On 21 October 2011, the father relocated from [Suburb A] to a rented property in [Suburb B], NSW.[6] The mother continues to live in [Suburb C], NSW, around which area she has apparently resided since shortly after the parties separated in 2003.
[6] See paragraph 4 of the father’s Affidavit sworn and filed in Court on 19 October 2011, that is, on the first day of the Final Hearing.
The matter came before me for final hearing on 19, 20 and 21 October 2011 (“the Final Hearing”). At the Final Hearing, the father was represented by Mr Connor of counsel and the mother was represented by Mr Sansom of counsel.
Issues in dispute
The issues that fall to the Court to decide largely relate to the time that the father is to spend with [X]. In particular, whether the father should spend time with [X] each alternate weekend from Friday after school until before school on the following Tuesday (as proposed by the father) or from Friday after school to before school on Monday, extending after 9 months to before school on Tuesday (as proposed by the mother).
The parties are also in dispute over whether the father should continue to spend time with [X] during the Christmas school holidays for split periods as provided for in the 2009 Orders (as proposed by the mother) or whether such holiday time should be merged into a single block period (as proposed by the father).
With respect to changeovers, the mother seeks the continuation of the 2009 Orders which require the father to collect [X] from school (or, where applicable, from the mother’s residence) and return [X] to the mother’s residence. In contrast, the father seeks an order that the mother drop [X] off at his residence at the commencement of the time he spends with [X] and that he return [X] to the mother’s residence at the conclusion of such time.
Furthermore, the father seeks the discharge of paragraph 6 of the 2009 Orders which requires the father to ensure that [X] attends swimming lessons on Fridays when [X] is in his care. The discharge of this particular paragraph is opposed by the mother.
Agreed and disagreed facts
The parties agree (or are not in substantial disagreement) with respect to the following:
·that the parties should have equal shared parental responsibility for [X];
·that [X] should live with the mother and spend time with the father during alternate weeks and school holidays;
·that the father should be permitted to have telephone and Skype communication with [X].
The parties are in disagreement with respect to the following:
·whether the father should immediately spend time with [X] each alternate weekend from Friday afternoons to Tuesday mornings, or transition to that arrangement after a further nine months of [X] spending each alternate Friday afternoon to Monday morning with the father;
·whether the Christmas holiday time that [X] spends with the father should be a single half-holiday period block or remain split into 2 shorter periods;
·whether the mother should deliver [X] to the father’s residence at the commencement of the father’s time with [X] or whether the current arrangement requiring the father to travel either to [X]’s school or the mother’s residence at the commencement and the conclusion of the periods of time he spends with [X] should continue; and
·whether the father should continue to facilitate [X] attending swimming lessons on Friday afternoons when [X] is in his care.
Parties’ proposals
As stated above, the parties are in agreement as to them having equal shared parental responsibility and [X] living with the mother. The area of disagreement is the arrangements for [X] to spend time with the father. There are also various ancillary orders sought by each of the parties, although it appears that (with the exception of a minor disagreement with regard to the use of Skype) neither party joined issue with the other on whether these orders should be made. With regard to Skype, the mother’s counsel merely submitted that an ordinary order as to telephone contact, without specific extension to the use of Skype, was appropriate.[7]
[7] Transcript, 21 October 2011, page 66.
Father’s proposal
The orders sought by the father are those contained in his Amended Initiating Application filed on 4 October 2011, which, relevantly, are as follows:
“1. That all previous orders be discharged.
…
4. That [X] shall spend time with the father as follows:
4.1 Each alternate weekend from Friday after school to the commencement of school the following Tuesday morning.
School Holidays
4.2 For the first half of all NSW gazetted school holidays in the odd numbered years; and the second half of all NSW gazetted school holidays in the even numbered years.
Christmas Holidays
4.3 For one half of the Christmas school holidays being the second half in the odd numbered years and the first half in the even numbered years.
Father’s Day
4.4 On the Father’s Day weekend every year from Friday after school to the commencement of school on the following Tuesday morning provided that [X] shall spend time with the mother on the Mother’s Day weekend every year from Friday after school to the commencement of school on the following Tuesday morning.
5. That for the purposes of implementing order 4 herein, the mother or her nominee shall drop off [X] to the father’s residence at the commencement of visits and the father or his nominee shall return [X] to the mother’s residence at the conclusion of visits.
Skype/other telephone contact
6. That [X] shall have telephone contact with the father either by telephone or SKYPE each Monday and Wednesday between 5:00pm and 7:00pm, and the mother shall facilitate such contact to the father at that time.
7. During the NSW school holidays and Christmas school holiday periods the mother and father shall facilitate telephone contact and/or skype contact on the days when [X] is not residing with them on Monday and Wednesday between 5:00pm and 7:00pm.
8. That the father be at liberty to telephone [X] at such time as he chooses during the period [X] lives with the mother and the mother be at liberty to telephone [X] at such time as she chooses during the periods [X] spends with the father.
Specific issues
9. That both parties keep each other informed of their respective telephone numbers (including landline and mobile) and addresses.
10. That each party keep the other informed of [X]’s health and any health issues as well as any procedures or operations to be undertaken prior to such procedures or operations and within 7 days save and except in cases of an emergency.
11. That the mother keep the father informed of [X]’s progress at school and advise the father of all parent/teacher night appointments and co-curricular activities involving [X] no less than 7 days beforehand, so as to provide the father with the opportunity to attend such events.
12. That the mother provide to the father copies of school notices, information, newsletters, school reports and school photographs, within 7 days of her receipt of them.
13. That the mother pay the father’s costs of an incidental to the proceedings.”
Mother’s proposal
The mother provided the Court with a Minute of the Orders sought by her which, relevantly, provided as follows:
“3. That the Child spend time with the Father as follows:
a. For a period of nine (9) months following the making of these Orders, each alternate weekend from after school Friday to before school Monday; then
b. From nine (9) months after the making of these Orders, each alternate weekend from after school Friday to before school Tuesday PROVIDED THAT the Father lives no further from the Child’s school than [Suburb B]; and
c. Otherwise as per paragraphs 4(b), (c) and (d) of the Orders made by the Family Court on 20 November 2009; and
d. At all other times as agreed between the parties.
4. That in the event that either party seeks to travel interstate or overseas with the Child then that party provide the other with reasonable notice of not less than 21 days of their intention to travel with the child and such notice is to include:
a. A written itinerary of the relevant plane, train and/or bus bookings and details;
b. All accommodation details, including telephone numbers and websites where available; and
c. A final written itinerary within seven (7) days of departure provide details of travel insurance and confirmation that the child has been registered on the Australian Government’s ‘Smart Traveller’ website.
5. That Orders 5, 6, 7, 8 and 9 of the Orders made by the Family Court on 20 December 2009 [sic] are otherwise confirmed.”
The Family Report
The parties in these proceedings had the benefit of a Family Report prepared by Ms F, family consultant, released by me on 27 June 2011 (“the Family Report”). The interviews for the Family Report took place on 26 May 2011.
In the Family Report, Ms F outlines the factual background and the issues in dispute between the parties and then goes on to set out the details of her interviews with the father (at paragraphs 11 to 19), the mother (at paragraphs 20 to 31) and the father’s current partner, Ms W (at paragraphs 32 to 37). Ms F also describes her interview with [X] at paragraphs 38 to 48. These will be addressed at a later point in this decision.
Ms F presents the following evaluation (at paragraphs 49 to 57) and recommendations (at paragraphs 58 to 60) of the Family Report:
“49. Mr Clement has consistently spent time with [X] in spite of there having been significant geographical distance between them and has shown that he is highly motivated to sustain his relationship with [X].
50. Mr Clement and [X] appear to have a warm and close relationship.
51. It appears that Mr Clement and Ms W are very aware of [X]’s needs and are able to consider what may be helpful and appropriate and put that into action on a consistent basis, for example, the bedtime routine which helps [X] settle at night.
52. [X] and her mother seem to have a very close relationship. It was apparent, however, that the mother appeared quite anxious about separation from [X] and that [X] worries about her mother more than is usual in a child of her age.
53. [X] presents as a very active and happy child and this is reported by both parents and by Ms W. She is obviously loved by all and shows affection to both families. It would be most advantageous to [X], and her positive development, for the two families to be able to communicate more openly and effectively. She appears to be a sensitive child, who feels somewhat caught between the expectations of the parents and is worried for her mother when she is not with her. It would be helpful for [X] if her mother were able to reassure her that she is fine when [X] is with her father. The parents can rightly be proud of [X] and their parenting and it is hoped they will each continue to enable her to feel good about herself and her time with each parent.
54. However, it does appear that … [X] experiences some level of discomfort in relation to being caught in the dynamics between her parents, especially in wanting to protect her mother. It appears that she does miss out on some activities such as parties, because her parents do not communicate. It would be of advantage for [X], especially as she grows up, to have an overlap in her life with each family and to be able to attend events and social occasions, for example, with her school friends, and be taken to these by her father when it is his time to spend with [X].
55. It would seem that, as [X] has a positive relationship with both parents, the chief impediments to her spending equal time with both would be the poor communication between the parents and the distance and travel involved for [X] to attend the school she currently attends where she is happy and settled. While the current arrangements are working reasonably well for [X], it would be to her long term advantage for the time she spends with her father to be increased. An initial increase of one extra night per fortnight with the father returning [X] to school on the Monday morning would be reasonable.
56. While [X] is used to her routine at before school care, the advantage of her spending more time with her father outweighs the issue of the travel to school and her missing out on one morning at before school care. It seems that [X] has a very early start to her day usually and would still have the remainder of her week in her routine. As well, it would be of advantage for the father to be able to participate in [X]’s daily routines, albeit in a small way, by driving her to school.
57. While activities are important to a child of eight [now nine], they are perhaps of less importance when weighted against the child spending significant time with the non residential parent if the child enjoys a close relationship with that person. It may be possible for [X] to attend a regular sporting event on an afternoon after school that she is with Ms Clement, and continue to maintain the other activities on a fortnightly basis.
RECOMMENDATIONS
58. It is recommended that the amount of time [X] spends with her father gradually increase to four nights per fortnight from the current two.
59. It is recommended that, if [X] is to spend extra time at her father’s home, she will need to have whatever is required, by way of clothing and school work at both homes to ensure a smooth transition between the two homes, school and when travelling from the father’s home to school. It would be important for the parents to arrange a system whereby [X] does not have to have her clothes at school each changeover.
60. It is recommended that both parents should review [X]’s bedtime routines so that she feels comfortable sleeping in her own room each night.”
Evidence
Father’s evidence
At the Final Hearing, the father relied on the following documents:
·Amended Initiating Application filed on 4 October 2011;
·the father’s affidavit sworn on 24 May 2011 and filed on 25 May 2011;
·the father’ affidavit sworn on 30 September 2011 and filed on 4 October 2011;
·an affidavit of the father’s fiancé, Ms W (“Ms W”), sworn on 30 September 2011 and filed on 4 October 2011;
·the father’s affidavit sworn on 19 October 2011 and filed in Court with leave on the same date, that is, on the first day of the Final Hearing; and
·Case outline document prepared by the father’s counsel, Mr Connor, dated 17 October 2011.
The father also gave oral evidence at the Final Hearing, was cross-examined by the mother’s counsel and responded to clarifying questions from the Bench. The father generally presented as a forthright and confident witness, although at times some of his answers displayed a degree of flippancy or were less than fully child-focused. On a number of occasions, he expressed a difficulty in recalling events, stating several times that his memory was “hazy”.
Ms W was present at Court and available to give evidence, however, she was not required for cross-examination and her affidavit was received into evidence without challenge.
Mother’s evidence
At the Final Hearing, the mother relied on the following documents:
·Response filed on 9 September 2010;
·the mother’s affidavit sworn on 7 September 2010 and filed on 9 September 2010;
·the mother’s affidavit sworn on 15 April 2010 and filed on 18 April 2011;
·the mother’s affidavit sworn and filed on 10 October 2011;
·Case outline document prepared by the mother’s counsel, Mr Sansom, dated 18 October 2011; and
·a Minute of Orders proposed by the mother.
The mother provided oral evidence to the Court and was cross-examined and was also asked some clarifying questions from the Bench. I will return to this point in more detail below. The mother presented as a confident and calm witness who answered the questions put to her and appeared to be child-focused. The mother also remained calm and unemotional under cross-examination, a fact that may, in part, be due to her training and experience as a [omitted].
Ms F’s evidence
Ms F attended Court on the afternoon of 20 October 2011 and was interposed for the purpose of giving oral evidence. Following some brief comments from the Bench outlining the parties’ updated proposals and a survey of her main recommendations, Ms F was cross-examined by Mr Sansom for the mother and by Mr Connor for the father.
In outlining her recommended course for increasing the time that [X] spends with the father, Ms F had the following to say in response to questions from the Bench:[8]
[8] Transcript, 20 October 2011, pages 79 – 79.
“…The main consideration that I thought - is that [X], being nine years old, that it was possible for her to have the four nights with her father. And because she has got a good relationship with both parents and seems to be a very happy child in both situations, that it would seem as if [X] at this age could actually cope with moving into the four day four night with her dad earlier than nine months. And when I talked with the mum yesterday, I did understand that she had concerns about the father's house stability situation. However, I felt that delaying for that amount of time wouldn't necessarily make it any easier for [X]. And it may be that there was a good time to consider changing it to the fourth night at the beginning of school in 2012.
So that she has two or three months to settle in to the extra night and then she move to the fourth night at the beginning of the school term 2012. It is quite a natural progression and she is quite a mature little girl. She has got a lovely nature and she seems to be quite adaptable from the brief time that I spent with her on the family report interview. So that was one - that aspect.
HIS HONOUR: Can I just clarify that then for the assistance of the court. When you talked about the recommendation that it increase to - gradually increase to four nights, do you - should I take that recommendation as saying there should be move to the third night, the Sunday night, in school terms either immediately or at some point ‑ ‑ ‑
THE WITNESS: Immediately.
HIS HONOUR: ‑ ‑ ‑ before the end of the year. And that the increase to the fourth night would be best for this child in the new school year, which would be talking about the end of January or early February 2012?
THE WITNESS: Mm.
HIS HONOUR: Is that the timeframe we are talking?
THE WITNESS: Yes, that’s what I’m thinking.
HIS HONOUR: All right. So any other things that you want to add?
THE WITNESS: The only other thing that came to me after speaking to both parents yesterday was in terms of the holiday time and the concern that the mother had about it being a long – 19 days being a long time to move straight to, and I wondered whether it was worth considering this coming Christmas holidays. If there’s no outcome as to the 19 days shared, perhaps it could be two weeks this holidays and whatever the remaining days are towards the end of the holiday, so divided two weeks and five days or something.
HIS HONOUR: Yes.
THE WITNESS: And then the following Christmas, to actually move to the 19 days division, if they are able to do that.
HIS HONOUR: So I take it what you are suggesting is as there be – like the gradual build up that you are recommending with respect to the fourth night, you would see some merit in a gradual build up to a block of half the long school holidays.
THE WITNESS: Yes, your Honour.
HIS HONOUR: And I think your suggestion was – correct me if I’m wrong – that they could consider this forthcoming school holidays where it would have been still eight and eight, or whatever it would be under the current orders, that perhaps there be two weeks, then a break and then another week.
THE WITNESS: Yes.”
When questioned by Mr Sansom with respect to her recommendations for an increase in the time that [X] spends with the father during school terms, Ms F provided further clarification of her reasoning:[9]
[9] Ibid, pages 82 – 83.
“[MR SANSOM:] …So I take it then you were then thinking at the time of writing the report there might be yet another increase after some period of time?
[MS F:] ‑‑‑…I was trying to specify that initially, to begin increasing at one night a week and then to move on to my final recommendation, which was up to four nights a week.
And when do you say – when did you intend, in your report, when writing it, that there be the progression from one extra night to two extra nights?
‑‑‑I didn’t specify that.
…
But when did you intend?
‑‑‑I would have thought that it would have been two or three months from the initial increase to the next.
And what was to be the purpose of delaying the increase to the full two nights?
‑‑‑Actually, you could increase it to the full two nights from the beginning.
That’s not what I asked?
‑‑‑No, no. You could actually – my thought patterns were that you could actually increase it to the two nights, but because of the mother’s concerns about the impact on [X] and the father’s situation, I felt that it would be a reasonable thing to do one – and the level of conflict between the parents was contributing to that as well, and I’ve mentioned that in my report: that it makes it quite difficult to come to an easy solution.
Right. So I take it from that evidence, three factors were at play in your mind at that stage: mother’s concerns, father’s situation, level of conflict?
‑‑‑Yes.”
Later, I asked Ms F for further clarification of the progression of any increase in the school term time that [X] spends with the father, in particular, the possible “marker” at which point such an increase could commence. The relevant passage of the transcript reads as follows:[10]
“[HIS HONOUR:] …But if I understand, you see no problem in moving almost immediately to the third night and you see benefits in moving to the fourth night either immediately or at some convenient – ‘reasonable marker’ I think was the words you used, and that you saw the beginning of the year as being a reasonable marker?
[MS F:] ‑‑‑I felt that in view of the mother’s concern that it would be a good idea to have a gradual increase, and I felt that that two or three months was gradual – sufficiently gradual to increase again.
[10] Ibid, page 90.
And if a decision wasn’t forthcoming until say, a few weeks before the end of the school year, would again using the reasonable marker idea perhaps move to the third night when the school year starts and then move to the fourth night on the next sort of reasonable marker, maybe the following term?
‑‑‑One could do that…”
During the course of her oral evidence, Ms F expressed the view that the parties might benefit from the completion of a ‘[omitted program]’ course which would assist them in acting in a manner that is child-focused and in reducing friction on occasions when they must come into contact with one another.
With regard to contact between the parties at changeovers, the following exchange between Ms F and Mr Connor during cross-examination is pertinent:
“[MR CONNOR:] …If the court saw merit in the father’s proposal that the mother collect the child from school and deliver the child on the Friday afternoon to the father, would – I’m just trying to understand how that may benefit the child, given what you have just said a moment ago?
[MS F:] ‑‑‑Sorry, and for the mother to take the child to the father?
Yes. Could there be benefits to the child if that was the case or do you think that what you said a moment ago about the benefits of the contact occurring at school would be the best way forward for this family?
‑‑‑While I think that their pickups and drop offs at school are helpful for minimising conflict ‑ ‑ ‑
Yes?
‑‑‑It is also helpful for the child to feel that the mother is committed to her attending with her father by the mother being able to drive the child at times – I understand the mother has said that she has some difficulty with her work and I’m not sure whether that can be changed; I haven’t had enough time to discuss that. But it would be of advantage, and I mentioned this yesterday, if she could consider how she could sometimes be available to take the child so that [X] has an opportunity to also feel that her mother is really supporting that.
So when you say that do you mean that to be a regular occurrence or an occurrence that should occur from time to time? For example, school holidays might be one opportunity when there’s no school?
‑‑‑Well it would be, yes. That would be very helpful, if it could occur – even if it was set at like – organised times when she could take the child, even if it wasn’t each time. But it would depend entirely on further investigation about the logistics of her [work] and so forth, which I didn’t have time to fully explore.”
The decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 contains an authoritative statement about how family reports should be treated in proceedings such as this case:
“In view of the comments in this case as to the weight to be given to a family report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182; (1976) 11 ALR 657; [1976] FLC 90-098 at 75,447; In the Marriage of Harris (1977) 3 Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276.
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong, or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the family report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[11]
[11] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Given that Ms F is an independent party in these proceedings, the Family Report and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given considerable evidentiary weight by the Court.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of a child, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case as different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations under s.60CC of the Act. These specific provisions will be examined in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[12] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[12] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life that is so important for children in teenage years.”[13]
[13] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘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.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of [X] – again, taking into account the considerations set out in s.60CC of the Act.
Paragraph two of the 2009 Orders allocated equal shared parental responsibility to the parties. There being no dispute between the parties in this case that each should have equal shared parental responsibility for [X], as well as no evidence to displace or rebut the statutory presumption, this arrangement should remain undisturbed.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that [X] spend equal time,[14] or alternatively substantial and significant time,[15] with each parent.
[14] Section 65DAA(1) of the Act.
[15] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
The time that [X] spends with the father was increased in frequency from “every third weekend” as provided in the 2009 Orders to every alternate weekend.[16] However, the father seeks an immediate increase in the time that he spends with [X] from two nights to four nights (Friday after school to before school on Tuesday the following week) per fortnight. The mother argues that the build-up to this four night arrangement should be gradated, with a nine month period of three nights occurring before the four night arrangement takes effect. I would note here that the mother’s position is supported by Ms F.
[16] See the orders made on 20 December 2010 and the reasons as settled in Clement & Clement (No.2) [2010] FMCAfam 1473.
Each of the parties’ proposals – and Ms F’s recommendations – would see [X] spending substantial and significant time, rather than equal time, with the father.
The Court also needs to consider the parties’ competing proposals with respect to the Christmas school holiday time.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
That said, s.65DAA(4) of the Act stipulates that:
“Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
The parties have established their respective residences at [Suburb B] and [Suburb C], both in the State of New South Wales, which are at a distance of some 68 km (estimated at 53 minutes drive, subject to traffic) from one another.[17] It should be noted that during cross-examination, the father estimated that the journey from his home in [Suburb B] to [X]’s school in [Suburb C] would take an hour, but conceded that he had not done a “dry run” to confirm this estimate.[18] While the mother’s residence may be considered to be situated on the outskirts of the Sydney Metropolitan area, the reality is that the father recently chose [Suburb B] as the locale for his current residence after the series of relocations detailed earlier in this decision. The current distance is considerably less than the previous interstate distance which formerly separated the parties.
[17] According to a ‘Whereis’ map tendered by the father and marked Exhibit “AF1”.
[18] Transcript, 20 October 2011, page 7.
The fact is that it is not uncommon for parties before this Court to arrange their accommodations at a distance from one another and, where children are involved, the travel necessitated by such relocations are by no means an uncommon consequence.
What is in issue between the parties is which of them is to do the travelling for the purpose of changeovers. The 2009 Orders, which the mother supports, require the father to do all the travelling, collecting [X] from school (or the mother’s residence on non-school days) and returning [X] to the mother’s residence. The father proposes that the mother deliver [X] to his residence at the commencement of the time that he spends with [X] and that he returns [X] to the mother’s residence (or, as seems to make more sense) to [X]’s school at the conclusion of such time.
The parties to this case have grave difficulties in communicating with each other about matters of importance in [X]’s life. Whilst this was acknowledged by the parties, continuation of such poor communication has the potential to impact upon their parenting of [X].
A particularly pertinent example of this arose during the cross-examination of the father by Mr Sansom where the father indicated that he apportioned no responsibility for the poor level of communication to himself. In addition, the father’s responses to further questions from Mr Sansom in relation to communication between the parties led me to conclude that on more than one occasion it appears that significant information which impacted upon [X] was not communicated to the mother at all. For example the father could not recall whether he told the mother about re-partnering and living with Ms W and, prior to that relationship, a woman named Ms W.[19] The lack of insight shown by the father in not communicating to the mother the fact that [X] would be introduced to, and spend time with, a new, and presumably significant, person is concerning. Further evidence of the father also cast doubt as to how, or even if, the father told the mother that he had enrolled [X] in YMCA swimming lessons in late 2010.[20]
[19] Transcript, 20 October 2011, pages 18 – 21.
[20] Transcript, 20 October 2011, pages 18 – 21.
Consequently, the Court has concerns about the parties’ capacity to communicate with each other in relation to parenting matters. In this regard, the Court is of the view that the parties would indeed benefit from the completion of a parenting course as recommended by Ms F, both to assist them in remaining child-focused and to assist them in their communication with each other. The Court is confident that the parties’ relationship will improve following the completion of such a course.
A related issue that arises from the above is [X]’s swimming lessons. The 2009 Orders require the father to ensure that [X] attends her swimming lessons during times that [X] is in his care. Notwithstanding the father’s evidence at the Final Hearing that he has not complied with that order,[21] the father asserts that he has taken [X] to her swimming lessons, even during periods while he lived in North Queensland.[22] The Friday swimming lessons evidently take place between 4:00pm and 4:45pm.[23] According to the mother’s evidence,[24] which was not challenged in this respect, [X]’s swimming lessons have been a long-standing and successful activity for [X], starting when she was just 10 months of age. The parties agree about [X]’s abiding love for aquatic sports.
[21] Transcript, 20 October 2011, pages 18 – 21.
[22] Affidavit of the father sworn on 24 May 2011 and filed on 25 May 2011, at [17].
[23] Transcript, 21 October 2011, page 69.
[24] Affidavit of the mother sworn on 15 April 2011 and filed on 18 April 2011; see also Transcript, 21 October 2011, page 50.
As stated, it appears that the parties have ended up in a position where they have each made arrangements for competing swimming activities for [X]. As [X] reaches an age where her social interactions and sporting activities will most likely take on a greater importance, each of the parents should be mindful of the impact on [X] that an inconsistent routine may have on her. There is nothing wrong with [X] being enrolled in additional swimming classes by the father during the time that he spends with [X], although thought should also be given to [X]’s wishes in this respect. That all said, a matter of such importance to [X]’s routine should be properly communicated to, and discussed with, the other party.
Another factor which was of some concern based on the parties evidence was the collection of [X] from school and the means by which [X]’s luggage and toiletries needed for her stay with the father were conveyed to the father in order to avoid [X] needing to bring baggage to school.[25]
[25] Transcript, 20 October 2011, page 61; see also paragraph 29 of the Family Report.
It appears that these difficulties could be reconciled by the father’s time with [X] commencing at 7:00pm on alternate Fridays, with the mother being responsible for [X] attending her swimming lesson and then driving [X] to changeover at the father’s residence. In the event that the mother was likely to arrive at the father’s residence prior to 7:00pm, the mother should then be required to notify the father in advance by telephone.
The mother could then deliver [X]’s clothing and toiletries when dropping [X] off on Friday and such could then be washed and retained at the father’s residence or else the clothes from the previous spend time period could be returned to the mother at the next Friday changeover.
The possibility of the mother having to occasionally work on a Friday was raised at the Final Hearing. In the event that she was rostered to work on a Friday night, the mother could provide reasonable notice to the father of this requirement and, on such occasions, the father or his nominee could collect [X] from school and facilitate her attending her Friday swimming lesson. It would appear the mother otherwise has the capacity to take [X] to the father’s residence at the commencement of the spend time period on alternate Fridays.
If such an arrangement were to be the ultimate decision of the Court, it would not preclude the father from being involved in swimming activities if he chose to continue [X]’s enrolment in swimming lessons with “[omitted]” on Sundays when [X] is spending time with him.
Should the Court make orders according to his proposal, the father raised no issue about his ability to get [X] to and from school on alternate Mondays, nor to return [X] to school the next morning at the conclusion of time for that fortnightly cycle. This is the practical reality of the father’s proposal given [X] is a school aged child. I state clearly here that the father, like all parents, will be responsible for ensuring that [X] attends school on those days that she is in his care and she is required to attend school. That is not to say that the father himself has to physically take [X] to school, though interaction by parents with schools is often a useful and informative experience.
Best interests of a child
As stated previously, the Court is under an obligation to make parenting orders that it determines are in a child’s best interests. For this purpose, the Court will now turn to a consideration of the factors in s.60CC(2), (3) and (4) of the Act in the context of this case.
Primary considerations: section 60CC(2)
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear from the evidence that, despite their difficulties in communicating with one another, both parties accept the need for [X] to have a meaningful relationship with the other party and extended family and that such should continue prospectively. That said, the parties differ on how this can best be achieved.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
No allegations are made by either party regarding any violence or abuse being directed towards [X].
Additional considerations: section 60CC(3)
Section 60CC(3)(a): any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
As part of the family report process, Ms F interviewed [X] and observed her with each of the parties. At paragraphs 38 to 48 of the Family Report, Ms F states:
“38. [X], (aged eight years and nine months of age), presents as a friendly, thoughtful girl who said she loves to be active, enjoys dance and gymnastics and loves animals. She seems quite mature for her age.
39. On the day of assessment, it was observed that Ms Clement was quite reluctant to leave [X] in the childcare room, asking her several times if she would not rather come with her, than stay in the room. [X] wanted to engage in the activities and was able to say that she preferred to remain in the room. Ms Clement was quite accepting of [X] remaining in the childcare room, when she was informed that this was the process followed to complete the assessment.
40. [X] described her mother as ‘always happy’ and said that she is ‘proud of Mum’. She said that she is worried about her mother ‘in case someone’s going to hurt her’, this being in relation to her mother’s work. [X] appears quite protective of her mother and to a degree that may be more than usual in a child of eight.
41. In interview, [X] said that when she is at her father’s place, she is sometimes lonely in the mornings, as they are in separate rooms. She stated quite clearly that she is not scared, just lonely. She also said that sometimes her ‘dad’ might get ‘cranky’ if she cannot get to sleep. [X] added that she does not like her own bedroom at her mother’s home because the neighbours smoke, her own room is quite small and there used to be a dog sitting outside which used to ‘freak me out’. She said that her mother has a big bed and she is more comfortable there.
42. When discussing the time she spends with her father, [X] said that she does not think it could be increased because of the time it takes for her to travel to school, but she said that she does not mind getting up early to go to before school care because she is ‘used to it’.
43. [X] said that if she could change one thing in her life, she would like her ‘Dad to be a bit nicer to my Mum’. [X] described hearing her mother crying while talking on the phone to [X]’s maternal grandmother about an email Mr Clement had sent. [X] appeared very concerned about this.
44. When discussing who she can talk to if she feels upset, [X] said that she can talk to her ‘Mum, Ms W and Dad’. [X] seems to be in the happy position of being able to relate to both sides of her family even though the two sides may not get along.
45.While an easy-going relationship was not observed between [X] and her mother as Ms Clement appeared quite tense during the day, [X] presented as very close to her mother. They appeared to have an understanding and were able to talk easily when observed in the childcare room.
46. Observed in the childcare room, [X] related in a relaxed manner with her father. They were comfortable and physically affectionate with each other. [X] often teased her father and they shared jokes and humour when playing the wii game together.
47. [X] related warmly to her brother, [Y], when he was in the childcare room with his mother. She obviously loved carrying him around and he appeared attached to her, happy to be carried by her and to play with her. When he left the room he gave [X] a big hug and kiss and it would appear that their relationship is a warm one.
48. Similarly, [X] appeared very relaxed and at ease when observed with Ms W. According to [X], ‘[name omitted]’ (this appeared to be her usual name for Ms W) ‘is good to talk to’.”
It is clear from the Family Report that [X] loves both of her parents and their extended families and enjoys spending time with them. There is nothing to suggest that she would not benefit from spending a greater amount of time with the father, Ms W and her half-brother, [Y].
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
There is no doubt that both parties love [X]. In addition, the Court needs to consider the relationship that [X] has with the father’s partner, Ms W, and her paternal half-sibling, [Y]. In that respect I refer to my earlier comments on this issue.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
While both parties argue that they have individually been willing to encourage a closer relationship between [X] and the other party, each makes criticism of the other in this regard.
As stated, the poor quality of the parties’ communication with each other is of some concern for the Court. The 2003 Orders, as Mr Sansom pointed out in his submissions,[26] allowed for the father the spend time with [X] at such times as were to be agreed between the parties indicating that (in Mr Sansom’s words), “[at] that stage the parties had a workable relationship”. The Court has every confidence that the completion of a parenting course will allow the parties to re-establish their previous accord with respect to parenting matters and that with this shift in attitude, will come an active realisation of the need to encourage their child’s relationship with the other party.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …
[26] Transcript, 21 October 2011, page 62.
There would be a significant change to [X]’s circumstances if the orders sought by the father with respect to Christmas holiday time are made. Under the 2009 Orders, [X] spends two block periods of nine nights each with the father in each Christmas holiday period. Granted, the 2009 Orders were predicated on the father living in Townsville.
Notwithstanding the change in the father’s living arrangements, the shift from the current Christmas holiday spend time arrangements to a block period would be a major one. Had the Court been in a position to deliver this decision at the end of 2011 there may have been merit in further transitional orders being put into place for [X] to graduate into a block period of time with the father over the long summer holidays.
Nevertheless, the reality is that [X] has now had the benefit of the 2009 Orders continuing over the 2011/2012 long summer holidays and has spent two block periods in that time with the father. The Court is satisfied that move to a block period of half of the long summer holidays on and from 2012/2013 long summer holidays would be appropriate for [X] who will be, by then, 10 years of age. I have also taken into consideration here that such a transition accords with the recommendations of Ms F and will build upon the graduated spend time regime which will be put in place during 2012.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
Apart from the travelling time between the parties’ residences, there are no obvious practical difficulties and expenses related to either proposal. For the reasons outlined above, the Court does not consider these to be an impediment to the proposed spend time arrangements.
An issue was raised in the mother’s evidence that, on occasion, she may be required by her employer to work on Fridays, either during the day or on an evening shift. She further stated:
“I can have a shift change within 24 hours notice, and I have to attend.”[27]
[27] Transcript, 21 October 2011, page 31.
Later, in re-examination, the mother gave the following evidence:
“…What other shifts would you have to work on a Friday? What time would they start?
‑‑‑If I worked a dayshift, it would be 7am; if I worked an afternoon shift, it would be 4 pm.
Are there any other categories of shifts – day/afternoon?
‑‑‑They can really be varied at any time, but that’s the usual start – or the times that I start.
Right. So what time does the afternoon start?
‑‑‑4 pm.
All right. What time does your daughter get out of school?
‑‑‑3 pm.”[28]
[28] Ibid, page 45.
It is therefore clear that, in the event that the Court makes an order that the mother deliver [X] to the father at his residence or at some other place on a Friday afternoon when she is to be in the father’s care, there would need to be a proviso that if she was unable to do so due to work commitments, the mother would need to provide at least 24 hours notice to the father of this fact and the father (or his nominee) would then need to collect [X] from school or from the mother’s residence and otherwise ensure that [X]’s after-school commitments were facilitated by him.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
The Court is satisfied that both parties have the capacity to provide for [X]’s needs.
The Court has formed the view that the use of a communication book will assist the parties into the future in dealing with the responsibilities of parenthood.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
[X] is currently 9 years of age and has, for the majority of her young life, been in the primary care of the mother. There were certain issues raised in Ms F’s report with regard to [X]’s strong attachment to the mother,[29] as particularly evidenced by her sleeping in the mother’s bedroom.
[29] See, for example, paragraph 52 of the Family Report, extracted above.
Nevertheless, Ms F made it clear that she was confident that [X] would be able to adapt to an immediate increase in weekend time with the father, but that as a concession to caution and the concerns expressed by the mother, she was prepared to espouse a gradually increasing spend time regimen, with such increases attached to certain mid-term temporal “markers”.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parties question the other’s parenting ability. The comments made earlier in this decision on this issue stand.
As outlined earlier, the Court has formed a view that the parties would benefit from undertaking a “[omitted program]” or similar program, as suggested by Ms F.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
This consideration is not relevant to the present dispute. The warm and loving relationship which [X] enjoys with each of her parents is something which is to the credit of both parties.
Section 60CC(3)(k): any family violence order that applies to the child or remember of the child's family …
This consideration is not relevant to the present dispute.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits [X], it is clear that the parties will require specific Court orders to assist them in their future parenting.
The Court is confident that, once these parenting proceedings are resolved and defined orders are in place, there is a reduced likelihood of any further proceedings in the immediate future. That said, the Court believes the parties would be assisted by a Court order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
In his closing submissions, Mr Connor referred the Court to a number of authorities. In reading the transcript I am, with respect, somewhat unsure of the specific points in the father’s case which Mr Connor was seeking to support by reference to some of these cases. Nevertheless, I will consider the cases individually below.
The first case to which Mr Connor directed the Court was In the Marriage of Bainrot (1976) FLC 90-003 (“Bainrot”), a decision of Watson J. The case concerned a father who sought “custody” (in the language of the day) of two children of his marriage to the mother. The children were at that time living with the father in the home of the paternal uncle and aunt. The mother, in turn, sought orders defining periods in which she was to have “access” (again, as ‘spending time’ was then phrased). His Honour made the following Order, inter alia:
“That the mother is to have access to the children each Saturday from 9:00a.m. to 8:00p.m. She is to call for the children at their residence and return them to that residence. It is implied in this order that the father both personally and by persuasion of his relatives will ensure that the children are dressed and ready to go with their mother and that nothing has been done physically, or emotionally to spoil these periods of access.”[30]
[30] (1976) FLC 90-003, at 75,063 (per Watson J).
Mr Connor also referred the Court to In the Marriage of Filipovic (1977) FLC 90-266 (“Filipovic”). In that case, the parties had a demonstrated history of failing to meet at changeovers which had previously been held at a Police Station and were extremely vitriolic in their relationship with one another. The matter came before Emery J, who took the view that the Police Station was an unfit environment for the child to be exchanged between the parties. In making an Order that the mother deliver the child to the father at the father’s home, Emery J stated:
“I gave serious consideration to such an order [namely, that changeover occur in a public place in the Melbourne CBD] but rejected the idea as it would be open to too great a potential for argument. The wife may not appear, alleging perhaps that either she or one of her two children was ill; the husband might be late and she might leave before he arrives and likewise if she arrived late on the return of the child he might take the child back home with him.”[31]
[31] (1977) FLC 90-266, at 76,417 (per Emery J).
It does not appear that Emery J was doing anything more than making an order appropriate to the circumstances of the case before him, much less intending to lay down a general rule that mothers ought to deliver children to the home of fathers at the commencement of access. The circumstances of this case being fundamentally different to those in Filipovic, I see nothing in the case binding me to adopt the measures which were chosen by Emery J.
Mr Connor also referred to a decision of the NSW Court of Appeal in Cooper v Cooper (1977) FLC 90-234 (“Cooper”). Cooper was an appeal from a decision of Allen J in the Family Law Division of the NSW Supreme Court. At first instance, Allen J had declined to make an “access” order in favour of the applicant father, who had previously removed the subject child from NSW to South Australia. While the child was with the father in Adelaide, the mother obtained a “custody” order in the NSW Children’s Court. The child later came into the care of the father. In its substantive terms, this decision has no bearing on the facts of the present case. However, the Court’s attention was drawn to the comments of Moffitt P, the following of which accord with the line of thought from the previously discussed cases:
“If the earlier, interim access was some type of trial, the attitude of the wife, but, perhaps more, that of the army of her relatives who were present, doomed the trial to failure. The boy was let known there were court proceedings and that if his father gained an order for access, he had to see his father. There does not appear to have been any encouragement but, on the contrary — at least from an emotional point of view — a positive discouragement, to have any relationship with his father. It may be that this was the inevitable result of the deep gulf between the father and mother, and the inevitable consequence of the mother's reaction to the conduct and deficiencies of the father. However, the fact is that her approach and that of the relatives in the presence of the boy placed him in an impossible emotional position. It is of assistance in this context to quote what Edmund Davies L.J. said in B. v. B. (1971) 3 All E.R. 682 at 688. Referring to an attitude of a mother, who did not willfully attempt to turn the boy against his father, but because she honestly believed it was not in the interests of the boy for there to be access, she had done nothing towards creating an atmosphere in which the boy would willingly go to the father for access, his Lordship said: —
‘In general one parent who takes that attitude in relation to the other parent is undertaking a tremendous responsibility and discharging it thoroughly badly. Again speaking generally, it is the duty of parents, whatever their personal differences may be to seek to inculcate in the child a proper attitude of respect for the other parent.’”[32]
[32] (1977) FLC 90-234, at 76,254 (per Moffitt P).
The principles enunciated in the English authorities, particularly those in Jones, have found support in various Australian cases.[43]
[43] See, for example, In the Marriage of Lonard (1976) 2 Fam LR 11,116, Tyler v Thomas (2006) 150 FCR 357; [2006] FCAFC 6 and Huang v University of New South Wales (No. 3) (2006) 154 FCR 16; (2006) 90 ALD 307; [2006] FCA 626 (particularly the comments of Rares J at [48]).
In proceedings under the Act, it has been long been recognised that it was a necessary part of a judge’s role as the trier of fact to pose questions to a witness where further clarification of evidence is needed. The Full Court[44] made the following apropos remarks in In the Marriage of Lonard (1976) 2 Fam LR 11,116 (at 11,119):
“The other aspect of the High Court's decision [in R v Watson; Ex parte Armstrong (1976) 9 ALR 551; 1 Fam LR 11,297] concerns the extent of the court's function in itself eliciting further material: ‘He may not convert proceedings between parties into an inquiry which he conducts as he chooses.’ However, the court is not always limited to the material produced by the parties. The Family Law Act recognizes that it may be necessary for the court to enquire further into a matter, especially in the case of children. The court has power to call witnesses itself in any case (reg 111). It also has power in custody cases to call for a report on such matters relevant to proceedings as the court considers desirable and to order separate representation. In accordance with its duty to regard the welfare of the child as the paramount consideration it may be appropriate for the Court to suggest that the parties call additional evidence or further witnesses, to suggest a line of questioning or, with restraint, to ask questions of the witnesses. These powers can be used in the context of contested litigation in such a way as to avoid distracting either party in the presentation of his or her case and as an aid to the court in deciding between the alternative proposals of the parties for the custody of the child. The extent of the judge's function in contested litigation was discussed by the Court of Appeal in Jones v National Coal Board [1957] 2 All ER 155 at 159.”
[44] Consisting of Evatt CJ, Asche and Pawley JJ
In dismissing an appeal against a decision of Altobelli FM, Boland J made the following comments in the case of Sheen & Paulo [2007] FamCA 1175 (“Sheen”):
“[64]There is no doubt undue questioning by a trial Judge in an adversarial trial may constitute appealable error (see Jones v National Coal Board (1957) 2 QB 55 at 63–66; [1957] 2 All ER 155 at 159–161). It seems to me that the principles therein established must now be read in the light of the legislative changes introduced by Div 12A of the Act. It is also relevant to have regard to the fact in this case it was the first occasion the matter was listed before the court.
[65]Reading the whole of the transcript discloses that his Honour, having read the parties' affidavit material, was endeavouring in his questions directed to each of the parties, to identify the issues in dispute between them. His Honour identified with the father the circumstances which lead to his application, it being the father's case he had received P's school reports after the orders were made in 2005, but the provision of reports had ceased when the mother sent a copy of the orders to P's school recently (transcript 02/08/07, p 4). His Honour also sought to explore with the mother what was in issue from her perspective.[45]”
[45] [2007] FamCA 1175, at [64] and [65].
As her Honour states, there is a point where interventions may cease to be merely productive and useful and might cross into Jones territory. That is where a reasonable observer might conclude that procedural fairness has been de-railed by an unreasonably inquisitive Bench denying counsel the opportunity to conduct their case. Indeed, Jones is still very much a watch-word for procedural fairness in court proceedings. However, as the comments of Boland J in Sheen make clear, in family law proceedings these principles must be read in the context of the provisions of Part VII Division 12A of the Act (“Division 12A”).
Legislative basis for judges asking questions of witnesses
Division 12A of the Act was introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and the provision contained in the division commenced on 1 July 2006.
According to s.69ZM(4) of the Act, Division 12A applies to “child-related proceedings”. In child-related proceedings, s.69ZN of the Act makes it clear that the Court is to give effect to the principles in s.69ZN of the Act both in the child-related portion of any proceedings as well as in the Court’s application of the other requirements set out in Division 12A. Those principles are as follows:
“Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.”[46]
[46] Section 69ZN of the Act.
In ensuring that these principles are carried into effect in proceedings where children are concerned, such as the present proceedings, this Court is at liberty to exercise the powers granted to it under s.69ZX of the Act. In particular, s.69ZX(1)(e) of the Act provides that in so doing a Court may:
“(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.”
In addition, it is apparent that specific legislative authority for a judicial officer propounding questions to a witness existed in the Federal Magistrates Court prior to the enactment of Division 12A of the Act, and that this power subsists without the restraints upon which the application of that Division are contingent.
The Federal Magistrates Court was established by, and finds its source of power under, the Federal Magistrates Act 1999 (Cth) (“the FM Act”). Section 63 of the FM Act provides as follows:
“(1) The Federal Magistrates Court may:
(a) put a question to a person giving testimony in a proceeding if, in the opinion of the Federal Magistrates Court, the question is likely to assist in:
(i) the resolution of a matter in dispute in the proceeding; or
(ii) the expeditious and efficient conduct of the proceeding; and
(b) require the person to answer the question.
(2) Subsection (1) has effect subject to the Rules of Court.
(3) This section has effect in addition to, and not instead of, any other powers that the Federal Magistrates Court may have to ask questions.”
The provisions of Division 12A of the Act extend to various aspects of the conduct of child-related proceedings. Interestingly, though, while the head of power in s.69ZX(1)(e) of the Act, with respect to questioning a witness, is restricted by s.69ZM of the Act to child-related proceedings or to such part of any proceedings which are not strictly child-related but in respect of which the parties consent that Division 12A should apply,[47] there is an independent parallel grant of power in the FM Act. That power in the FM Act applies to all proceedings before the Court and is subject only to the requirement that the question be likely to assist in “the resolution of a matter in dispute in a proceeding” or “the expeditious and efficient conduct of the proceeding”.[48] This section puts it beyond doubt that a Federal Magistrate is entitled to question a witness.
[47] Section 69ZM(2) and (3) of the Act.
[48] See s.63 of the Federal Magistrates Act 1999.
Of note is the fact that neither the legislation nor the authorities prohibit questions from the Bench from being “leading”. This is in keeping with the rationale behind such questions in the first place – at common law, “to clear up any point that has been overlooked or left obscure”,[49] under the Act, to give effect to the principles set out in s.69ZM and also under the FM Act to assist in resolving a matter or ensuring that it is run efficiently and speedily. Were there to be a caveat on the manner in which the Court may ask questions pursuant to the legislative provisions, it would be expected that the Parliament would make such restrictions evident. Moreover, I note that there is no prohibition on the Bench asking leading questions such as that imposed on parties and advocates by s.37 of the Evidence Act 1995 (Cth); even the restrictions in s.37 are subject to being lifted “if the court gives leave”.[50]
[49] Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155, at 159.
[50] Section 37(1)(a) of the Evidence Act 1995 (Cth).
Discussion
The questions which I asked of the mother in the present case were put to her after each counsel had been given an unhampered opportunity to conduct their respective examinations in full. With this witness as with the previous witnesses in the matter, both counsel were afforded an opportunity to put follow-up questions to the witness based on any issues raised from my own queries. Interestingly, as stated earlier, neither Mr Sansom nor Mr Connor saw fit to do so in the case of the mother.
My questions caused no interruption to the flow of questioning by either counsel, nor was there any usurpation of the prerogatives of the respective counsel to conduct their client’s individual cases. The questions that I asked were in no way intended as a reflection on the skill, thoroughness or rigour of each counsels’ examinations. My questions were purely in aid of narrowing and isolating the issues in dispute and clarifying the evidence of the respective witnesses. I can understand that Mr Connor may have been disconcerted that there might be some erosion of the progress he was attempting to make in cross-examination of the mother, however this was neither the aim of the questioning, nor, with respect, a valid reason for an objection to be raised. In any event, the questions I asked followed the completion of cross-examination of the mother and did not occur during it.
I am convinced that the questions that I posed to the witnesses in these proceedings, and the manner in which those questions were framed, were proper in all respects and contributed to the isolation of the issues which it has fallen to this Court to determine.
Conclusion
After considering the evidence and submissions in light of the structured discretion contained in the Act, the Court is satisfied that the best interests of [X] would be served by the following arrangements as set out below.
I see no reason why there should not be orders for the parties to continue to have equal shared parental responsibility for [X]. Indeed both parties seek such an order in their respective proposals.
[X] will continue to live with the mother and spend substantial and significant time with the father. All orders of the Court with respect to spend time arrangements will be subject to agreement between the parties. That said, in default of agreement I will otherwise make orders for [X] to spend time with the father during school terms as follows:
·commencing on the next Friday in accordance with the current fortnightly cycle, and in each alternate week thereafter until the end of Term Two in 2012, the father spend time with [X] from 7:00pm on Friday until before school on Monday (or extended to before school Tuesday in the event that Monday is a non-school day); and
·commencing in the first school week of Term Three in 2012, and in each alternate week thereafter, the father spend time with [X] from 7:00pm on Friday until before school on Tuesday (or 9:00am on Tuesday in the event that Tuesday is a non-school day).
In the event that Tuesday was a non-school day then the father would return [X] to the mother at the mother’s residence rather than the school. In addition, should a relevant Monday be a public holiday or pupil free day then [X] would, of course, not be required to attend school that day and would remain in the father’s care until Tuesday morning.
As discussed, [X] will spend half of the short NSW gazetted school holidays with the father in the rotation provided for in the 2009 Orders, as amended by me, and as sought by the father. That is for the first half in odd-numbered years and for the second half in even-numbered years. During the long summer school holidays commencing in December 2012 and thereafter I am satisfied that it is appropriate for [X] to spend a block half period of that holiday period with the father, being the first half in even-numbered years, and the second half in odd-numbered years. This broadly reflects the existing arrangements under the 2009 Orders. The orders will provide a default with respect to days and times in the absence of agreement between the parties.
For the purpose of removing doubt and clarifying common issues with interpreting these orders there will be a provision specifying that the fortnightly spend time regime will recommence at the beginning of each school term. That is to say that [X] will spend the first weekend of each school term with the father and then in alternate weeks thereafter. In addition, and subject to any agreement reached between the parties, the father will bear the responsibility of ensuring [X] attends school on all those Mondays when she is in his care.
As to changeover, the mother will, unless otherwise provided in the orders, take and deliver [X] to the father at his residence at the commencement of the time that [X] will spend with the father. At the conclusion of such times, and again subject to any other order to the contrary, the father will take and deliver [X] to the mother at her residence, expect on school days when the father will return [X] to school.
More specifically, during school terms (and other times when relevant) the mother will be required to take and deliver [X] to the father at his residence at 7:00pm. This will allow the mother to continue to take [X] to her swimming lessons. At the time that the mother takes [X] to the father’s residence she can also deliver any clothes and other items that [X] may need during the period that she spends time with the father and collect any clothes or other items which [X] may have had left over at conclusion of the previous visit. In the event that the mother would be likely to arrive at the father’s residence prior to 7:00pm, the mother will be required notify the father in advance.
The changeover orders will also be subject to the reality that, should the mother be required to work on a Friday that she would otherwise be required to take [X] to the father, she inform the father as soon as possible, and at least 24 hours in advance, so that the father can collect [X] from school and take her to her usual swimming lesson and then back to his residence for the usual spend time period.
The orders will also provide for changeovers to be facilitated by an appropriate person (partner, family member, friend and so on) nominated by either the mother or the father.
In light of alleged past difficulties there will be a specific order allowing the father to provide a copy of the final orders to [X]’s school and request that he receive, at his expense should expenses be incurred, a copy of all notices and such as are usually provided to parents. In the unlikely event that the school refuses to comply, there will also be a self-executing Order requiring the mother to thereafter provide any authorisation that the school otherwise requires to enable the father to receive such material directly from the school.
I note that neither party sought specific orders in respect of special events such as Christmas Day, Easter, birthdays and such. Consequently, I will make no orders in relation to these days but otherwise encourage the parties to facilitate [X] spending time and/or communicating with the other party on these days, as appropriate and in [X]’s best interests.
The father did however seek orders in relation to [X] spending time with him on the Father’s Day weekend and also with the mother on the Mother’s Day weekend. No proposal in relation to this was put forth by the mother and nor is it canvassed in the 2009 Orders. Nevertheless, I am satisfied that an order allowing [X] to spend time with each party on the relevant day (in the event that [X] is not otherwise already in their care) is appropriate. Subject, of course, to agreement between the parties, [X] will spend from 10:00am until 5:00pm with the relevant party on the relevant Sunday. The orders will also have the default position that the party whose ‘day’ it is will be the one to collect [X] from the other party at the commencement of such time and then the other party collect the child at the conclusion of such time.
Again, no specific orders were sought by the mother in relation to general communication by [X] with the party she is not otherwise living or spending time with. The father does seek specific orders to communicate with [X] via telephone and/or Skype. Presumably no particular submissions were made in relation to this aspect as it is not a contentious issue for the parties in consideration of [X]’s age and relationship with the other. Nevertheless, I am satisfied that an order, in default of agreement, allowing [X] to communicate with the parent she is not otherwise with will assist these parties. The order will provide a mechanism for each party to nominate certain periods and advise the other within seven days of their nominations.
I also propose maintaining the order made by me on 21 December 2010 which requires the parties to give notice and provide particulars to the other in advance of interstate and/or overseas travel with [X]. I note that this order was originally made following a second interim hearing and is also an order sought by the mother in her minute.
The Court also sees benefit in an order restraining the parties from denigrating the other in the presence or hearing of [X].
As stated, the Court has formed the view that the use of a communication book will assist the parties into the future in dealing with the responsibilities of parenthood. The sole purpose of this communication book is for keeping the other parent informed about [X]’s activities, health, education and development through the use of a communication book.
The Orders will include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to [X]’s long term care, welfare and development.
In addition, both parties are to forthwith participate in a “[omitted program]” course provided by [organisation omitted] or such other appropriate provider as agreed. As discussed in this decision it is imperative that the parties improve their communication.
In his Amended Initiating Application, the father sought an order that the mother pay his costs of the proceedings. I also note that the mother sought an order in her Response filed 9 September 2010 for the father to pay her costs of and incidental to the Response on an indemnity basis however no such order was sought in the mother’s minute provided to the Court prior to the Final Hearing.
In the circumstances and in light of this decision, I see no reason at this stage to depart from the general principle in s.117 of the Act that each party should pay their own costs. In the event that a costs order is pressed then an Application in a Case and relevant supporting affidavit should be filed and the Court can consider these issues separately.
Lastly, there will be final Orders and notations of the Court to reflect this decision, the Court being satisfied that such Orders are in [X]’s best interests.
I certify that the preceding one-hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 16 March 2012
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