Cohan and Cohan

FAMILY COURT OF AUSTRALIA

COHAN & COHAN

[2007] FamCA 1059

FAMILY LAW - CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Cohan

RESPONDENT:

Ms Cohan

FILE NUMBER:

SYF

2754

2005

DATE DELIVERED:

11 September 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

23 and 24 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

COUNSEL FOR THE RESPONDENT:

Ms Rees

Orders

All previous orders be discharged.
Until the conclusion of Term 2 in the 2010 school year the mother is to be solely responsible for making all major decisions concerning the care, welfare and development of the child L born December 2003 (“[the child]”).
The mother in the exercise of her sole parental responsibility is to consult with the father in respect of all major decisions involving the child and is to take into account his views, wishes and perceptions in relation to the particular matter to be decided by her before she makes any such decision.
From the date of these orders until the child commences pre school in January 2008 she is to live with her mother at all times other than the following times when she is to spend time with her father:
(a)every Tuesday between 10.00 am and 6.00 pm
(b)each alternate weekend from after pre school (or 3.00 pm in the event that the child is not attending pre school on that day) until 6.00 pm the next day. The first period of time to commence Friday, 7 September 2007
(c)each alternate Saturday from 10.00 am to 6.00 pm. The first occasion to commence 15 September 2007.
As from the commencement of pre school in January 2008 the child is to spend time with her father as follows:
(a)each Tuesday from the conclusion of pre school (or 3.00 pm if there is no pre school) until pre school the next morning (or 9.00 am if there is no pre school)
(b)each alternate weekend from the conclusion of pre school on Friday (or 3.00 pm if there is no pre school) to 6.00 pm on Saturday
(c)each other Saturday from 10.00 am to 6.00 pm.

As and from the commencement of school in January 2009 the child is to spend time with her father as follows:
(a)every Tuesday from after school until school time the next morning
(b)each alternate weekend from after school Friday until before school on Monday.
As and from the commencement of 2008 the child is to spend holiday time with her father as follows:
(a)for three consecutive nights as nominated by the father during April, July and September. Such nights to include the weekends occasions being exercised by him during this period pursuant to other orders set out herein
(b)for seven consecutive nights as nominated by the father during December. Such nights to include the weekend occasions otherwise provided for in other orders set out herein.
The child is to spend such other time with her father as the parties may agree upon.
During the 2009 school year the child is to spend one half of the school holidays at the conclusion of the first, second and third school terms with her father. In the Christmas school holidays at the end of the 2009 school year the child is to spend every second week with her father.
During the 2010 school year the child is to spend one half of all school holiday periods with her father.
The parties are to ensure that the child spends time between them for all Jewish religious holidays on a basis which sees her spend half her time with each of her parents unless they otherwise agree.
In 2008 the mother is to be permitted, upon giving one month’s notice to the father, to spend one week in each of the months of April, July and September on holidays with the child. On such occasions the time the father is to spend with the child is suspended.
In either December 2008 or January 2009 the mother is permitted to have a two week holiday with the child upon giving one month’s notice to the father. During that period the father’s time with the child is suspended.
The mother is not to nominate any holiday period with the child during 2008 unless she is on leave from her work for the whole of the time nominated as a holiday time.
During 2009 and 2010 the orders providing for weekend and Tuesday night time for the father will be suspended during school holidays.
The parties are to ensure that the child spends Father’s Day with her father and Mother’s Day with her mother.
Wherever changeover for the child between her mother and father occurs other than at her pre school or school the mother is to deliver the child to the father’s residence at the commencement of such time and the father is to deliver the child to the mother’s residence at the conclusion of such time.
The parents are to ensure that the child spends time with each of her parents on her birthday each year.
The parents are to ensure that the child spends time with each of them on their birthdays each year.
Unless the parties otherwise agree the child is to attend S Pre School at D and D Primary School until the conclusion of her 5^th Class in primary school and thereafter she is to attend M School.
Neither party is to enrol the child in any extra curricular activity which is not approved by the other party. In the event of the parties agreeing upon the child participating in an extra curricular activity they are each to ensure she participates in that activity whilst she is in each parents care.
The parties are each restrained from removing the child from the Commonwealth of Australia without the written consent of the other party.
The parties are to communicate by e-mail whenever it is necessary. The parties are to keep hard copies of all e-mails passing between them to provide to a mediator or to a Court in the future should that be necessary.
At the conclusion of each week each party is to provide a short report to the other by e-mail setting out news about the child’s activities, advances and matters of interest relating to her time with that parent during that week.
In the event of any future disputes between the parties which cannot be resolved by them they are to avail themselves of the mediation and/or counselling facilities provided by Jewish Care.

By consent:

To facilitate the child’s attendance at M School, the father shall no later than the end of September in the year before the child commences her 6^th Class in primary school deposit the sum of $175,000 into an interest bearing deposit account to be held within the Commonwealth of Australia, such account to be in his name and to require the joint (not several) signature of himself and his accountant Mr L (“the fund”) and further:
(a)To facilitate the child’s attendance at M School, the husband shall, within seven days, deposit the sum of $250,000 into an Interest Bearing Deposit account to be held within the Commonwealth of Australia, such account to be in his name and to require the joint (not several) signatures of himself and his accountant, Mr L (“the fund”) and further:
(i)the monies held in the fund may be applied to pay the income tax assessed in relation to the earnings of the fund, as if assessed to the husband
(ii)the fund shall otherwise only be used for the purpose of paying the child’s education expenses at M School, including the school account, textbooks, school sponsored extra-curricular activity fees, school uniforms including sportswear, school sports and musical equipment, routine excursion expenses, stationery and such excursion expenses involving agreed interstate or international travel (such agreement being between the husband and the wife)
(iii)both parties shall be entitled to copies of bank statements issued in respect of the fund
(iv)no expense shall be paid by the fund unless the party claiming such expense provides to the other a copy of the relevant tax invoice

(v)in the event that there are any monies remaining in the account when the child has completed her high school education at M School, the husband shall be entitled to close the account and apply the monies to himself.

(b)The child’s attendance at M School is conditional upon the husband’s compliance with Order 26(a) hereof.

The court notes the undertaking given by Mr L.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Le Poer Trench delivered this day will for all publication and reporting purposes be referred to as Cohan & Cohan.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2754 of 2005

Mr Cohan

Applicant

And

Ms Cohan

Respondent

REASONS FOR JUDGMENT

Introduction

The child, L, born in September 2003 is the daughter of Mr Cohan (the father) and Ms Cohan (the mother). She has been living with her parents in different configurations of time since the parental separation in about January 2005. The parents have been endeavouring to negotiate a settlement for the proposed parenting plan for the child but have been unable to reach an agreement.
At the commencement of the trial each of the mother and father filed in court a minute of order sought by them. The father’s minute was marked as Exhibit “F1”; the mother’s minute of order was marked “M1”. There is not a great deal of difference between the parties’ positions however I will deal with the major differences later in these reasons.

The Issues

1.Should there be an order for equal shared parental responsibility in this case?
2.Should final orders be made or interim orders or final orders to operate until a fixed date?
3.What progression of overnight time for the child with her father should be provided?
4.What school should the child attend next year? When should she commence school at M School?
5.What orders should be made in relation to the child participating in extracurricular activities?
6.What orders should be made for dispute resolution between the parties in the future?

Background

The parties were married in February 2000. At a later time in November 2002 they undertook a Jewish marriage ceremony.
The parties separated on 18 January 2005 and a decree absolute became effective on 7 July 2006. There is one child of the marriage.
The mother is 34 years of age and the father 40 years of age.
The mother works five days a week as a retail manager in R. She works Tuesday to Saturday inclusive but has some flexibility in her work time. The father has no paid employment and has not been employed since he held a position in a shop some years ago. The father is financially supported by his parents.
The mother lives with her parents and the father lives in accommodation provided by his parents and which is occupied by his parents when they reside in Australia. The father’s parents spend about six months of each year in Australia.
Interim orders were made by consent in this matter on 19 April 2005. Those orders provided for the child to reside with her mother and spend times with her father being three hours in one week on Monday, Thursday and Friday of that week and in the next week for three hours each Monday, Thursday and Saturday. That time was to be loosely supervised by the father’s mother. There were other provisions made in those orders.
On 22 August 2005 further orders were made of an interim nature. These orders provided for the father to spend four hours with the child on each of the days which had been provided for in the earlier orders. There were other specific occasions where the father was to have time with the child. The orders provided for the parties to attend upon Unifam or Relationships Australia and participate in a programme of counselling.
The relationship between the parties has been very tense and difficult since the separation. That has been heightened by criminal proceedings which were brought against the mother and were heard in the Local Court. Those proceedings alleged an assault by the mother on the father’s mother and were concluded by the dismissal of charges against the mother. These charges were laid because of an altercation between the mother and the father’s mother in a hospital ward near the bed of the child who had on the particular occasion been hospitalised as a result of falling in a swimming pool at the mother’s parent’s home. She was at the time under the supervision of the mother’s mother.
The child presently attends S Pre School which is located in D. She attends Wednesdays, Thursdays and Fridays between 9.00 am and 3.00 pm.
The mother’s work as a retail manager enables her to work during the times that the child is at pre school with the exception of Friday when she’s required to work until 5.00 pm.
Both the mother’s parents reside with her at B. Both parents are significantly involved in the child’s life.
To understand the conflict between the parties it is necessary to recite some further history.
Prior to the marriage the parties had been residing in the mother’s parent’s house. Just prior to the proposed religious wedding ceremony the father moved out of the same accommodation as the mother to observe the Jewish custom which required the parties to live separately for three months prior to their marriage.
The mother was christened as a Catholic. Her upbringing was a secular one. However, as her maternal grandmother was Jewish, the father was satisfied that the mother had some Jewish heritage as he wished to have a relationship with and marry a “Jewish girl”.
In about the middle of 1999 the mother discovered that she had been adopted. This happened shortly before the mother and father were due to travel to Singapore and stay for a couple of weeks with the father’s parents. The impact of ascertaining that she was adopted in the circumstances of this case was that she had no Jewish heritage. The mother told the father about the news of her adoption whilst the parties were in Singapore. The day after that revelation to the father he proposed marriage in the presence of his parents. The next day the mother told the father’s mother that she was adopted. There was a negative reaction from the father’s mother who made some statements to the mother which was distressing to her.
Following the return to Sydney from that holiday there was breakdown in the relationship however in January 2000 the relationship was established again and the parties were married in a civil ceremony in February 2000. Following that ceremony the father’s parents “disowned him”. He was not permitted to use the accommodation owned by his P and the financial support they had provided to him ceased. The parties took up residence with the mother’s family.
Following her marriage the mother decided to convert to Judaism. The parties were later married in a Jewish wedding ceremony in November 2002. In about 2002 the father was able to re-establish his relationship with his parents.
In the mother’s affidavit she attests to a difficult relationship with the father’s parents. She described the father’s mother … as “overbearing, intrusive and insensitive to my feelings and she has undermined my role as [the child’s] mother on a number of occasions.” The mother then set out specific examples of where she says that had occurred.
On 25 May 2005 the mother says the father and his parents accused her of assaulting them while they were all at the emergency department of the Prince of Wales Children’s Hospital at Randwick. In March 2006 those charges were dismissed in the Waverley Local Court.
During the time that the parties lived together the mother felt the father had not supported her at all in the concerns she had raised with him about his parents intervention in the caring for the child.
The mother says that she has no confidence the father, without the assistance of his mother, is able to attend to the child’s needs on a daily basis. He has not been able to demonstrate his capacity to care for her in such circumstances. The mother in her affidavit evidence sets out a large number of aspects of the father’s personal habits, dietary habits and religious habits. She emphasises that these habits are different to those observed by herself. The mother describes the father as being excessive and obsessive in these aspects of his life. I form no concluded view as to whether the father’s behaviour is or is not obsessive or excessive however the importance and relevance of this evidence for me is the impact on the mother of making an order which stretches her tolerance and pushes her into a state of anxiety about the child’s care in her father’s house.
The mother says that having converted to Judaism she observes the rituals of the Sabbath meal and other rituals associated with the period from sun down Friday until sun down Saturday.
The father filed his affidavit on 31 May 2007. The father concedes in his affidavit material that most of the day to day care for the child to this point in her life has been provided by the mother and her family. The father asserts that he has played a significant part in the care of the child during times that she has been with him following the separation and to a lesser extent prior to the separation.
The father for his part felt excluded from the mother’s family because they spoke a European language he did not understand and also because he felt his involvement with the child was rejected by the mother. He claimed that he was constantly criticised in virtually every aspect of his attempted care for the child and in his own practices.
The father in his affidavit recites the history of his contact with the child following the separation in January 2005. He says that he was permitted some limited time with the child up until the time his parents left Australia and then the mother would not allow the child to spend time with her father in an unsupervised circumstance. It was not until 19 April 2005 when orders were made in the court that some regular time between the child and the father was reinstated.
The father in his affidavit sets out the events of 24 May 2005 which was the day that the child was hospitalised following her falling in the swimming pool at the mother’s parent’s residence. Needless to say there is a different construction on whether or not the husband’s parents were invited into the hospital ward where the child was or whether they forced themselves into that environment.
Following the further orders on 8 June 2005 the father continued to spend time with the child on Monday, Thursday and Friday in one week for periods of four hours and on Monday, Thursday and Saturday in each other week for a period of four hours.
The father confirms that after the parties attended at court on 22 August 2005 they commenced counselling with Relationships Australia. They had counselling sessions in September, November and January 2006.
The father annexed to his affidavit a copy of a letter written to the parties by Relationships Australia on 4 May 2006. This letter identified prime areas for the parties to action. They include: 1. arrangements for the child to have time with the father and his family; 2. the various schooling options for the child and how a decision would be reached as to the commencement of the child’s education; 3. parental communication. How can this be improved? How can both families improve their parenting of the child so that she is presented with a model of parenting as a co-operative and collaborative exercise?
The areas identified by Relationships Australia have not been addressed by the parties and still today remain the main issues for the parties.
The father complains that since August 2005 the mother has not agreed to any extension of time other than that stipulated in court orders. The father has been pressing for overnight time with the child and notwithstanding the recommendation of the Family Consultant in the Family Report prepared last year he still has not spent overnight time with the child.

The father says in paragraph 41 of his affidavit that he pays child support pursuant to a Child Support Assessment. He says he has found it difficult to focus on building up his business with the court proceedings on foot and consequently his income is low. He provides private health insurance for the child.
This aspect of the case was the subject of cross-examination and as referred to elsewhere in these Reasons in fact the father has no income other than provided by his parents.
In 1995 the father completed a Bachelor’s degree in America. In 1996 he completed a Master’s degree at that same university. In 1999 he completed a Master’s degree at an Australian institution.
The father seeks that all changeovers of care for the child take place either at school or pre school or between the parents themselves. For some time changeovers have taken place between the father and the mother’s mother and this, on the father’s evidence, has led to some discomfort at least on his part.
The father describes in his affidavit his religious observances and the importance to him of observing the Jewish Sabbath. He is a member of a Synagogue in D. It is important to the father that the child has an opportunity to join him and his family for Jewish festivals and Jewish religious holy days.
In relation to the child’s future schooling the father says that when she was six months old she was enrolled to attend M School from pre school to the end of her schooling. The father says that the mother agreed to that enrolment and further his parents pledged to pay for the child’s education at that school. Since that time it is the father’s evidence that the mother has changed her mind and she has enrolled the child in a kindergarten without his permission or knowledge.
The father acknowledged that the mother has advised him following separation that she has a number of options for the child’s schooling and not just one plan for the child to attend at M School for the whole of her schooling.
Since 22 August 2005 when the matter was first before the court as part of the Children’s Cases Project, the father has been pursuing overnight time with the child. To date the mother has not agreed to that taking place notwithstanding it was recommended in the Family Report released to the parties on 7 November 2006.
The father’s proposals are for the child to move immediately to overnight time with him and within a short space of time to be living in an equal shared time arrangement between he and the mother.
One of the matters that no doubt has caused considerable ill will in this case is the payment of child support or rather the lack of payment of child support. The father currently pays a child support assessment of $6 per week. During the course of the hearing he said that he was proposing to pay $100 per week from now on. There is a current child support assessment which requires the father to pay $6 per week. The father has no income and has not had any income since he held a part time job working in a shop in 2003. Following the separation the father’s payment of child support was higher than $6 per week however it has been $6 per week for some time.
The father has no income however he is supported by his parents and his evidence is that he discussed with his parents being able to draw $100 per week to pay towards the financial support of the child in her mother’s care and that they had agreed to provide those monies. It was at the end of 2006 that the husband’s parents agreed to a payment of $100 per week. The father provided no adequate reason for why he had not commenced paying $100 per week from the end of 2006 towards the support of his daughter.
The father continues to live in a unit owned by his parents in P. They live approximately six months of the year in Singapore and the balance with him at P. They provide for all of his income needs. He estimates that he currently draws between $500 and $750 per week from accounts provided to him by his parents.
The father has one sibling a brother who lives in the United States.
In 1995 the father completed a bachelor of arts in geography and economic development at Clark University in Massachusetts. In 1996 he completed a master of arts in international economic development at Clark University. In November 1999 the father completed a master of business administration at the Australian Graduate School of Management.
The father complains about the emotional environment at handovers involving the child moving from the mother’s mother to himself. He seeks that all handovers take place either at pre school, school or between the mother and himself.
The father participates in the Jewish Sabbath which commences before sunset on Friday and concludes after sunset on Saturday each week.
The father seeks that the child commence at M School in 2008. She would commence there in pre school. The mother opposes the child commencing at M School until 6^th class in primary school and she proposes that prior to that time the child attend D primary school.
Prior to the separation it appears common ground that the mother had agreed to the enrolment of the child at M School. This was in the face of a pledge by the father’s parents to pay for her school fees. The father concedes that in early 2006 the mother’s schooling proposals for the child included a number of options one of which only was that she attend M School.
The father took the child to the M School orientation day in November 2006.
At the hearing before me on 23 and 24 August 2007 the parties agreed to some terms which provide for the funding for the child to attend M School.
The father wishes to be able to take the child overseas at some time in the future.
In the two days’ of hearing before me in August 2007 the following issues were identified and addressed:
1.Should there be an order for equal shared parental responsibility in this case?
2.Should final orders be made or interim orders or final orders to operate until a fixed date?
3.What progression of overnight time for the child with her father should be provided?
4.What school should the child attend next year? When should she commence school at M School?
5.What orders should be made in relation to the child participating in extracurricular activities?
6.What orders should be made for dispute resolution between the parties in the future?
Each of the parents gave oral evidence. The Family Consultant Ms G gave oral evidence.

The evidence of the Family Consultant

The Family Consultant prepared a Family Report which was dated 7 November 2006. She made a recommendation in terms of the time that the child should spend with each of her parents. That recommendation included the immediate commencement of overnight time with her father once a fortnight. She recommended that in mid 2007 the regime be reviewed to consider extension of alternate weekend time with the father from 4.00 pm Friday until Sunday afternoon. She recommended that transitions for the child between one parent and another be undertaken by the parents themselves and not the grandparents.
In her report the Family Consultant said that “observations of the child indicated that she is attached to, and has developed an affectionate and loving bond with, both her mother and father.” She said “young children of [the child’s] age are highly susceptible to parental distress and anxiety and if the parent experiences the separation as emotionally difficult it can also become difficult for the child.” The Family Consultant noted that the child moved quite well from one parent to another although the father made the situation more difficult by prolonging the leaving process from the child.

The Family Consultant observed as follows:
“while [the child] obviously enjoyed spending time with both of her parents, the nature of the interaction between each parent and [the child] were markedly different. … [The mother] generally presented as a calm, gentle and softly spoken person and this was reflected in the interactions between mother and daughter which appeared relaxed and comfortable. In contract, [the father] presented as energetic, loudly spoken and extremely active person who talked to, and played non-stop with, his daughter throughout the day of the interviews. Constant physical affection by father to daughter was noted.”
The Family Consultant observed the child with each of her grandparents and she appeared to enjoy interacting with them.
Under the heading “An assessment of the relationship between the parties themselves” the Family Consultant reports “The relationship between [the mother] and [the father] is extremely poor and characterised by mistrust and minimal cooperation.” The counsellor noted that the father felt marginalised from his daughter’s life whilst the mother felt that the father wanted to move too quickly to overnight time with the child. She observed:
“Both [the mother] and –[the father] presented as having somewhat overly enmeshed relationships with their own parents and, it would appear, while they were married they were unable to establish an independent and self sufficient family life for themselves. This situation appears to be continuing and questions arise about their capacity and ability, as adults and as [the child’s] parents, to make decisions for their daughter without their first seeking the approval of their own parents.”
In paragraph 12 of the Family Report the Family Consultant says as follows:
“To a significant extent, this situation now appears to be akin to a war between the two families with the respective grandparents, and in particular the grandmothers, and not the child or the parents as the key participants.
The origins of this are likely to be extremely complex and only able to be understood on a superficial level in a report such as this but the themes in this battle include: suggestions that the maternal family deceived the paternal family with regard to [the mother’s] Jewish bloodline given the subsequent revelation that she was adopted; whether or not [the mother] was accepted by the paternal family following her conversion to Judaism; liberal versus orthodox adherence to religion; suggestions of inferiority and superiority on the basis of class and wealth; which grandmother is the more destructive and should be removed from the situation; unresolved differences with regard to the events surrounding the accidental near drowning of [the child] and the subsequent allegations that [the mother] assaulted the paternal grandmother; which side of the family interfered more in their children’s relationship; whose child (who is now an adult) is more dependent versus independent and which side of the family has attempted to “take [the child] away” from the other and to “brainwash” her.”
The Family Consultant reports that on the day of the interview the mother appeared genuinely concerned about the father’s parenting capacity. She was particularly concerned about his ability to keep the child in a sleep routine, promote her toilet training and provide an adequate diet. The mother told the Family Consultant that she felt more at ease when the father’s mother was also present with the child.
In paragraph 17 the Family Consultant says:
‘[The mother] is also concerned about what sort of (role model) [the father] will be for [the child] because of her belief that he is “unable to find and obtain long term employment” and that he experiences “social and personality issues”.’
The Family Consultant said:
“Despite each parent’s complaints about the other, my greatest concern about the parenting capacity of both [the mother] and [the father] lies in their ability to protect [the child] from the conflict between themselves and between their two families.”
The dispute between the parents in relation to the school the child will attend was also discussed with the Family Consultant.
The Family Consultant said in the report:
“each parent’s position about schooling appears to represent the fundamental and possibly irreconcilable, difference between them. [The mother] advised that, while she wants the child to have “the best educational opportunities possible” and “has nothing against her going to [M School]” she questions at what age [the child] should commence going to a Jewish school.
For [the father], however, there appears to be no dilemma and he believes that [the child] should attend [M School] from pre school to the completion of secondary school”
The Family Consultant recommended a regime of time for the child to spend with each parent. This included immediately progressing to overnight contact one overnight period per fortnight with the father and by mid 2007 to alternate weekends with the father together with other time during day time only.
The Family Consultant was required for oral evidence. Prior to attending at court she was provided with copies of exhibits “F1” and “M1” so that she could understand what was being proposed by each party.
In relation to each parties proposal the Family Consultant said that one overnight period per fortnight should commence forthwith. She said there would be a logical extension to a full weekend at a later time. In addition once the full weekend time was being exercised by the father with the child then perhaps one night in the other week could be considered. She said that in 2009 she would expect the child would be able to enjoy a full weekend with her father from Friday through to Monday and one night in the other week.
In relation to holidays she suggested that once the child started school a week at a time during school holidays with her father would be appropriate in the first year and that included week about time during the Christmas school holidays at the end of her first year at school. She said that by the end of the second year at school the child should be able to cope with one half of school holidays periods.
The Family Consultant was asked about communication between the parties. She was told that the communication book ceased to operate in about May of 2006. It appears that there has been very little face to face communication between the parties or communication of any level since that time. The Family Consultant said that cooperative parenting and child focussed parenting is necessary for joint decision making. She was referring to questions which were asked to test whether it was appropriate for the parties to have equal shared parental responsibility.
In answer to questions about the time that the child should spend with her father the Family Consultant said that she could not say at this time that equal time for the child to be sharing between each of the parent’s houses would be in her best interests. She said there should be significant periods of time with each parent.
The father gave oral evidence. He was asked about his proposal for the child to spend time five nights in a block with him from the commencement of 2008. He agreed that it might be difficult for her. The father was asked about his child support assessment which he conceded was $6 per week at current time. He also agreed that he was paying $33 per week in 2005. He said this resulted from an assessment based on the income he had earned in 2003/2004 when he was working part time in the shop.
The father said that his current arrangement with his parents is that they financially support him. He has approximately $6,000 per year paid to a separate bank account which he can draw on and which is designed to give him cash of about $100 per week. In addition to that he is provided with credit cards which he is able to use for buying food, clothing and other comforts in life. It’s the father’s estimate that he spends between $500 and $750 per week of his parents funds.
The father said that in addition to the $6 per week he does pay private health insurance that covers the child. He also pays for meals and toys when she is with him.
The father agreed that the mother was paying $40 per day for the child to attend pre school. He also agreed that he contributes nothing towards that cost.
The father offered to pay child support at the rate of $100 per week from the time of the hearing. In fact he had spoken to his parents about paying that amount and they had agreed to paying that amount at the end of 2006 however the father had not implemented anything by the time of the final hearing before me.
In respect of the cost of education the father said it was his understanding that his parents were prepared to pay the fees associated with the child attending M School but for no other purpose.
The father agreed that if the child attended M School there would be other expenses associated with her attending and there would be a level of expenditure which the child would need in order to keep pace with her school friends and not feel stigmatised in any way. He agreed that the expenditure of monies for clothing, holidays, birthday parties and the like would depend on the generosity of his parents and/or the financial resources of the mother.
The father conceded that there may be some tension for the child arising from her attending M School and living in her mother’s household. This was particularly associated with the teaching of orthodox Judaism at the M School and the observance of liberal Judaism in the mother’s household, a matter which the father well understood.
The father was asked about his parents’ attendance at the hospital on the occasion of the “near drowning” of the child. He agreed that he was virtually powerless in preventing his parents from attending at the hospital on that occasion. He further said that he had asked his parents not to come into the hospital ward as it would distress the mother. He agreed that they had failed to heed his request. He agreed that the mother told his parents to leave. He also agreed that at that time he failed to ask his parents to leave. He agreed that he could have asked his parents to leave and that might have averted the conflict that occurred on that day.
The father conceded that the criminal proceedings against the mother provided a poor outcome in terms of the parties’ ability to communicate. He said that he had not done anything to try and prevent the proceedings.
In re-examination the father told me that he had attended a positive parenting programme in recent times. The programme was five weeks’ in duration and he attended for two and a half hours on each week.
The mother gave oral evidence. The mother agreed that since August 2005 there had been no open conflict between the parents. The mother agreed that she would attend an organisation with the father if she and the father could not agree about important matters relating to the child in the future. She was hopeful that the parties may be able to talk in the future about important matters relating to the child.
The mother said that she had spoken to the child about her attending M School. She told her that she (the mother) would be happy with the outcome whether she attended that school or attended the D primary school. She also agreed that her father had a strong opinion that the child should attend the D public school.
The mother said that next year she was proposing that the child should go to pre school for four days per week. I note that it is the father’s proposal that the child should go to pre school next year for five days per week.
Whilst acknowledging that the Family Consultant had recommended in the Family Report that overnight time for the child and her father should commence immediately she did not think it was in the child’s best interests at the time.

The Submissions

Submissions made on behalf of the mother

The submissions on the part of the mother were as follows:

Equal shared parental responsibility

It was submitted that the mother’s application is for equal shared parental responsibility because she believed that was in her daughter’s best interests. It was submitted that it was appropriate for the mother to consult with the father in respect of major decisions.

It was submitted that if one of the parties was to be solely responsible for the decisions relating to the long term care and welfare of the child then it should be the mother. It was submitted that in the near future it was likely that the child would be spending more time in her mother’s care than her father’s care. It was submitted that on the Family Consultant’s assessment it was the mother who had the greater flexibility and ability to compromise and therefore it was appropriate that she should be the parent responsible for making the long term decisions if there was to be a sole parental responsibility order.

Interim or final orders

It was submitted by the mother that there should be final orders not interim orders made. The litigation should conclude. The cost to the parties, and/or their parents has been heavy.

The time the child should spend with her father

It was submitted on behalf of the mother that the time suggested by the Family Consultant is the time that should be allocated in orders and that was supported by the mother.

Schooling

It was submitted by the mother that the evidence in the mother’s affidavit from paragraphs 30 through to 48 was well thought out and child focussed in relation to the reasons why the child should not commence at M School until 6^th class. It was also submitted that if the child went to M School then the father would require that she attend five days per week from the commencement of next year. This was not the mother’s view who is proposing that the child attend pre school four days a week next year and have one day with her mother.

Extracurricular activities

It was submitted each party should consult with the other where that activity would impinge on the time when the child is with the other parent. It was submitted that if the child does engage in any activity whether an activity agreed to by the parents or promoted by one party only then the other party is to be invited to participate in such activities.

Proposal for conflict resolution

The mother proposed (and this proposal was supported by the father) that the organisation known as “Jewish Care” would be the first port of call for both parties in the event of them being unable to resolve some aspect of conflict relating to the child’s future care.

Communication

It was submitted that the parties should communicate by email and that at the conclusion of each week each party should provide a short report on the activities and matters of moment that the child had engaged in with that parent.

Jewish religious holidays

It was agreed between the parties that all of the Jewish holidays are to be shared by agreement between the parties other than the day of atonement and that is to be shared as provided for in the minutes of order which each party had filed in court.

Overseas travel

The mother submitted that the child should not be removed from Australia and that her name should not be removed from the “watch list”. The mother submitted that the order was made placing the child’s name on the “watch list” at the request of the mother at an earlier time. The mother would not feel content if the child’s name was removed from the watch list.

Submissions made on behalf of the father

Equal shared parental responsibility

It was submitted that it’s an extraordinary event to deprive one parent of equal shared parental responsibility. It was submitted that in this case there is not overt conflict between the parties. It was conceded that there is a lack of communication between the parties however I was reminded that during the hearing before me each of the parents had agreed that they would exchange salutations when they met in order to make the emotional environment less tense for the child. In answer to the proposition that parties who cannot agree on which school the child should attend to commence her schooling are hardly in a position to be endowed with equal shared parental responsibility, the father submitted that the attendance at M School for the child to commence her schooling was the only thing of real substance the parties couldn’t agree upon. The father said that the child had been enrolled in her current pre school without the consent or knowledge of the father. He submitted that the failure to consult about enrolling the child in her pre school did not escalate the conflict or disrupt the arrangement. It was conceded that the parties could not agree about increasing time for the child to spend with her father to an overnight occasion. That was the case notwithstanding a strong recommendation from the Family Consultant.

Interim orders

It was submitted that if the court was to make interim orders rather than final orders then there would be no need to have a sole parental responsibility order. It was submitted that there should be a final order. It was submitted that if the orders fail then the parties can apply for further orders from the court. It was submitted that if there was to be no order for joint shared parental responsibility then the order should be an interim one only.

Extracurricular activities

The father submitted that each of the parties agreed that they need to consult and agree in respect of any activity which impinges on each of their times with the child otherwise each party should be able to involve the child in activities which don’t require commitment from the other party.

The time the child is to spend with her father

The father’s regime as proposed in his minute of order requires that the child progress to two nights per week forthwith. The father however conceded in submissions that one night per week to commence with in 2007 plus day time periods would be appropriate. In 2008 it was submitted that the Family Consultant thought that alternate weekends and one overnight period in the other week would be appropriate and at least that should be the basis of the orders of the court. It was submitted that by 2009 the child should be spending equal time with each parent.
It was further submitted that if the conflict was removed from the parties’ relationship and they were able to co-operatively parent the child then there should be equal shared time once the child commences school.

School

It was submitted by the father that in 2004 the parties agreed on a school and that school was to be M School. If she attends M School then she would learn Hebrew from an early age. She would learn orthodox Judaism. It was submitted that the mother agreed she would embrace the decision of the court if that was for the child to commence M School forthwith. It was submitted that if the child did not attend M School it would not flow that that meant the father would not support the child at D primary school.
It was submitted that it is the father’s passion for the child to go to M School. It was submitted that the mother does not have the same commitment and passion for the child to go to D public school.

The Watch List

It was submitted that the child did not have a passport. If either parent wants to take her from Australia then it will require each to consent to the obtaining of a passport. It was submitted that it would not be necessary for the child’s name to be on the Watch List.
At the conclusion of the submissions there were no other issues that the father wished to submit upon.

Proposal for conflict resolution

The parties have agreed to attend Jewish Care for dispute resolution.

Communication

Communication is to be by e-mail.

Jewish religious holidays

The parties agree to share these holidays by agreement.

Credit

Each of the parents gave their evidence in a straight forward and apparently honest manner. I had no reason to suspect either party was being untruthful.

Relevant Law

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

In this case I propose to make orders which will enable the child to have a meaningful relationship with each of her parents. The father is seeking an order for equal shared time for the child, however, as can been seen in the evidence of the Family Consultant that is not recommended at this time for a variety of reasons associated with the child’s age and the poor state of the communication between the parties.
The orders I propose to make will provide for the child to share time on a structured basis at least to the middle of 2010. At that time if the relationship between the parents has changed and it is otherwise in the child’s best interests I would have thought a progression to equal shared parental responsibility and to equal shared time would be appropriate for the child.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The child is reasonably well protected from abuse and harm by her parents. There is the possibility of the child’s development being impaired and that is by the continuation of a high level of conflict between the parents. In submissions the father said there was no conflict between the parents. This showed a remarkable lack of insight on his behalf if that is truly what he thought. He was specifically referring to open conflict however, it would be remarkable if the child thought her parents were not in conflict or to use words she might understand if she thought her parents were “good friends”.

Additional considerations

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

The child is too young to express a view.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
I have referred to the evidence of the Family Consultant and I accept that evidence in terms of her assessment of the nature of the relationship between the child and her parents. I also accept that the child has a good and appropriate relationship with each of the parties’ parents.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
This has been a difficult matter to assess. On the one hand each of the parties appears dedicated to the proposition that they each should share in the care and decision making for the child. On the other hand the parties have demonstrated no capacity to put in place the type of co-operative parenting relationship which is necessary to enable an equal shared parental responsibility order to work. The parties have virtually no level of communication and very few proposals to change that in the future. Each of the parties carries a level of suspicion of the other which has been generated by the historical aspects of their relationship. The father has paid very little towards the support of the child in her mother’s care notwithstanding he has had the ability to pay at least $100 per week since the end of last year. The father does not earn an income and appears to have little ability to secure himself employment notwithstanding some impressive work credentials and qualifications. They have different approaches to their Jewish religion.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The matter which is particularly urged by the mother for consideration under this heading is the question of rapid introduction of overnight time for the child with the father. The mother opposes the introduction of overnight time for the child with the father other than in the form of a gradual process. She submits that it should commence at the rate of one overnight per fortnight and advance slowly from that point. She says that the child has never spent overnight periods with her father away from her mother. Although the Family Consultant had recommended its introduction last year the mother felt that the time was not right for the child at that time. She now agrees the time is right for a gradual introduction.

The mother said she is concerned about the father’s ability to properly care for the child overnight in the absence of his mother. It is important for the child’s best interests that her mother not be over anxious about her care when she is with her father.
(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
This is not a consideration in this case. The parties live in close proximity to each other.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
There is no argument that each party has the capacity to provide for the child’s physical needs in terms of clothing, housing and sustenance. There is an issue about each party’s capacity to provide for the emotional needs of the child. On the mother’s side there is a concern that she has proceeded to parent the child during the last 12 months by ignoring the right of the father to have any real input to major decisions about her welfare including which preschool she should attend. The mother enrolled the child in S Preschool without any consultation with the father. On the other hand the father contributes nothing toward the preschool fees which cost about $120 per week. The father pays $6 per week in child support.
The father is very rigid in his approach to the mother. There appears to be little flexibility in his decision making. He failed to prevent his parents entering the hospital ward where the child was, following her “near drowning” episode. This was in the face of knowing that the mother did not want them there. He further did not appear to understand the repercussions for the child of having her mother face a criminal charge with the father’s mother, and the father as the principal witness.
The child’s emotional needs are unlikely to be best promoted in circumstances where she knows that her parents do not talk to each other. Further her schooling is likely to be affected by her knowing that she is not completely supported by each of her parents in the selection of her school.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The child is a young female child. She is born into a family which practices Judaism as their religion. Each party’s parents are very supportive of their child and very antagonistic and blaming of the other parent and his or her family.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents has practiced, to some extent, poor parenting. The poor parenting is in the area of conflict resolution between the parents. Notwithstanding extensive involvement with community based organisations the parties have not been able to reduce their conflict nor have they been able to agree upon important matters such as where the child is to start her school life. Unless they are able to effect a change in these matters the child will face a very difficult childhood where she will probably feel uncomfortable about her parents being in the same place as herself at events such as school concerts and the like. She will probably start to feel emotionally responsible for her parents rather than they being responsible for her emotional well being. The evidence of the Family Consultant told the tragic story of the consequences for the child of having to endure parents who continue high levels of conflict. Both parents appeared to understand that evidence but are apparently powerless to effect any real changes for the child.
(j)any family violence involving the child or a member of the child’s family
The only family violence alleged is that surrounding the incident at the hospital where it is alleged the mother assaulted the father’s mother. That case was dismissed in the Local Court.

(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

There are no current Apprehended Violence Orders which impact upon the parents contact with each other.
(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
In this case I have reached the decision that final orders should be made however, they should have a sunset clause in relation to sole parental responsibility. For reasons set out elsewhere in these reasons I have reached the conclusion that the mother should have an order for sole parental responsibility for the child until the middle of 2010. By that time I anticipate that the relationship between the parties will have matured to the point where they are able to properly and responsibly communicate with each other and consequently able to manage an equal shared parental responsibility order. It is not in the child’s best interests that the parental responsibility be restricted to one parent for any longer than is absolutely necessary.
(m)any other fact or circumstance that the court thinks is relevant

There is no other matter to be dealt with here.

Section 60CC(4) & (4A)

In this case the parties have failed to be able to make joint decisions about the care and welfare of their daughter largely because they are incapable of communicating in a way which makes practical the implementation of an equal shared parental responsibility order. Although there was no order requiring the child to spend over night time with her father there was a strong recommendation which was made by the Family Consultant. The mother failed to follow that recommendation.
The other matters which touch on this section have been set out by me in other parts of these reasons.

Section 61DA

Section 61DA requires the Court when making a parenting order to apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) provides that the presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. There is no such a ground in this case.
Notwithstanding that the presumption does not apply it is still open to the Court, as I see it, to make an order for equal shared parental responsibility.
For the reasons set out below under the heading “Determination of the Issues” I have decided not to make an order for equal shared parental responsibility.

Section 65DAA

Having determined that it is inappropriate to make an order for equal shared parental responsibility I am required under section 65DAA(1) of the Act to consider whether the child should spend substantial and significant time with her father.
Each party proposes that the child would spend some week day time and weekend time with the father. This will involve the father participating in the child’s daily routine and attending occasions and events that are of particular significance to the child.
Neither party has sought any injunction to prevent a parent participating in any school or extracurricular events to which parents are usually invited. All of the evidence and submissions suggest that each parent will participate wherever possible in supporting the child in any activity either at school or an extra curricular activity where parents usually attend.

Determination of the Issues

Should there be an order for equal shared parental responsibility in this case?

In this case there have been allegations of family violence. They were made by the father and his parents against the mother. The mother was alleged to have assaulted the father’s mother at a hospital at the bedside of the child during the episode of “near drowning”. That matter proceeded to a hearing in the Local Court and the charges were dismissed.
Each of the parties in their Minutes of Orders (exhibits M1 and F1) sought an order for equal shared parental responsibility. This was in circumstances where the parties have been unable to have any meaningful communication for months and where they are unable to agree on one of the most important aspects of their daughter’s life, namely where she will commence her formal schooling.
In my view it would be counter productive to the child’s best interests to require her parents to agree on important aspects of her life where their level of communication is extremely limited and where they have demonstrated an inability to agree thus far on her schooling. It would be counter productive because it has the potential to make their conflict more visible to the child.
There is the potential for the communication level of the parties to change and become more child focused than it is currently demonstrated to be. That was the subject of submission and my attention was drawn to the parties resolve to make their meetings more cordial and less stressful for the child. The parties have agreed upon a mediator to work with in circumstances where they reach impasses in the future in relation to the joint parenting of the child.
I acknowledge that it is in the best interests of children for their parents to be equally responsible for the long term decision making for their children. In my view this case has the potential to provide that outcome for the child. The making of an order for sole parental responsibility has the potential to cause considerable discontent in the parent who is excluded from the decision making. As against that the overall benefit to a child of having an order for equal shared parental responsibility is not there if realistically it cannot be demonstrated that the parties have the type of relationship and personalities which will enable such an order to be workable.
I propose to make a limited order for sole parental responsibility in this case. I propose to vest it in the mother as she will in the short term have more of the day to day care for the child. I propose that it should be limited in time. By that I mean that the order will only operate until the end of school term 2 in the 2010 school year. At the end of that time, if the parents have demonstrated an ability to successfully move to an equal shared parental responsibility order then it would in my opinion then be appropriate to make such an order. In the absence of any order the parties would be assumed to have equal shared parental responsibility by operation of the Family Law Act.

Should final orders be made or interim or orders to operate until a fixed date?

I propose to make orders which conclude a progression of time to the father at the end of school term 2 in the school year 2010. At that time if the parties’ relationship has sufficiently progressed they should be able to agree about further changes to the time the child spends with her father. It is to be hoped by that time the parties will be able to successfully manage an equal shared time arrangement for the child. If it becomes necessary to apply for further Court orders it will be because the parents have not been able to advance their parental relationship to a point where they are able to successfully co-parent her in a spirit of child focused co-operation. If they have not been able to achieve that relationship by mid 2010 then they will have substantially established their inability to jointly and co-operatively co-parent her.

What progression of overnight time for the child with her father should be provided?

I must in the circumstances of this case be guided by the Family Consultant in her recommendations. She was cross-examined and she was not in my view shaken in the level of her expertise. Further it appeared to me that her evidence on the time the child should be spending with her father was sensible and reasonable.
The Family Consultant recommended that the child should move to overnight time with her father forthwith. She recommended one overnight on a weekend and one night in the following week. In my view there should be some short space between introduction of one overnight per alternate weekend and the introduction of an overnight period in the week following. I propose to order that weekend time include overnight each fortnight such time to commence forthwith and then in January 2008 move to an additional over night period in the following week.
The overnight time should then increase again from the beginning of the school year in 2009 when the child will spend alternate weekends with her father from Friday to Monday and one overnight during the following week.
When the child attends her 1^st year of formal school in 2009 she should spend holiday time with her father. She should be able to spend a week at the end of the first three school terms with her father and alternate weeks during the holidays at the end of the fourth term. From the commencement of the 2010 school year she should spend half of the school holidays with her father. The parties are to agree on how each holiday period is to be divided.
It is clear that the mother still has misgivings about the father’s ability to care for the child by himself without the aid of his mother in an overnight arrangement. The gradual progress to overnight time with the father will give the child an opportunity to adjust to a circumstance where she has never been cared for by her father overnight post separation and the mother an opportunity to see the father can care for her appropriately.

What school should the child attend next year? When should she commence school at M School?

The father would like the child to commence schooling at M School next year. To this end he has been able to enlist his parents’ financial assistance and undertaking to pay for her education at that school. The school teaches the style of Judaism practiced by the father but not that practiced by the mother. The father’s counsel described the father as being passionate about the child attending this school from next year.

The father relies on the fact that the parties had agreed to place the child’s name on the waiting list for M School and that the proposed date of commencement was the commencement of her school life. He says the mother has now changed her mind and, in effect, she should not now be able to renege on an agreement made when the parties were together.
The mother’s reasons for wanting the child to attend D Public School are set out in her evidence and they are in my view good and sound reasons.
The father has shown himself to be more rigid and therefore less able to be flexible in his attitudes to parenting and his interaction with the Family Consultant. In my view he has an intensity about him which is quite different to that of the mother. I can well imagine that it will in the future be difficult for the child to hold a differing view from her father on important matters such as religion and schooling.
Each of the parents subscribe, as I have said, to differing religious practices albeit within the umbrella of the Jewish faith. If the child is to spend extensive time with her father, it will, in my opinion be quite difficult for the mother to share her view of Judaism with the child where she is attending M School and being educated in a different for of Judaism.
Further, it seems to me that the mother is entitled to have some considerable input to the shaping of the child’s broader personality. At least the same input as the father. Thus her concern about the narrowness of the community which the child will grow up in if she attends M School next year is a valid one. The mother is not opposed to the child attending M School at a later time in her schooling. In fact she proposes that the child will attend that institution for perhaps her most important schooling time. The mother’s approach appears to me to give the child an opportunity for a broader exposure to the general Australian community and enable to mother to expose the child to a lifestyle and outlook on life which she would wish for the child.
I conclude therefore that the child should commence at M School as proposed by the mother at the beginning of 6^th grade in primary class. In this respect the mother gave a good and valid reason, based on her own life experience, for the child to commence school at M School in sixth class rather than the traditional 1^st year of high school.

What orders should be made in relation to the child participating in extracurricular activities?

The parties agreed that they should consult and agree on the child’s participation in extra-curricular activities where those activities require the participation of the other parent. Where the activity will not commit the other parents time then there should be no requirement for consultation.
Such a position does not auger well for the future relationship of the parents. It seems to me to be a capitulation to a position that the parties find it too hard to communicate about matters which should be agreed upon and are looking for any excuse not to have to deal with each other. It raises a concern about who will have an overarching view of the child’s life and what might be seen as too much in terms of extra curricular activities. It seems to me that the child might find herself in an exceptionally busy extra curricular life with neither parent really being able to know what her commitments are.
I conclude that the best action I can take to protect the child from her parents’ conflict is to require them to agree on all extra curricular activities. In that way each will know completely what is involved for the child in each proposed extra curricular activity. It will also require the parents to communicate at an appropriate level in order to have the other agree upon a particular activity for the child.

What orders should be made for dispute resolution between the parties in the future?

The parties did agree at the conclusion of the case to nominate “Jewish Care” as the mediator in the event of future disputes.

The Orders

The orders should provide for a graduating introduction of overnight time for the child with her father. The orders will progress to a situation where in 2009 the child will be spending significant overnight time with her father as well as school holiday time.
As set out earlier there will be orders relating to participation by the child in extra curricular activities supported by each party.
Orders should be made for conflict resolution in the future. The parties should participate in such conflict resolution prior to returning to Court.
I am required to consider all possible outcomes for the child and make orders which are in her best interests whether such orders are sought by the parties or not. In this case I have considered making other orders to those sought by the parties which I raised with the parties in submissions.

I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date: 11 September 2007

[2007] FamCA 1059

11 September 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Remedies