De Vries and Booth
[2007] FamCA 569
•8 June 2007
FAMILY COURT OF AUSTRALIA
| DE VRIES & BOOTH | [2007] FamCA 569 |
| FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr De Vries |
| RESPONDENT: | Ms Booth |
| FILE NUMBER: | SYF | 4359 | of | 2006 |
| DATE DELIVERED: | 8 June 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 13 and 30 March 2007 |
REPRESENTATION
| SOLICITOR FOR THE RESPONDENT: | Mr David Lardner |
Orders
With the exception of a previous PASS order all previous parenting orders be discharged.
[…], the Father and […], the Mother have equal shared parental responsibility for the child, a son born on … December 2002.
The Mother have responsibility for the day to day care, welfare and development of the child while the child resides with her pursuant to these Orders.
The Father have responsibility for the day to day care, welfare and development of the child while the child resides with him pursuant to these Orders.
The child reside with the Father as follows:
5.1During each school term in each alternate week from 7.00 pm on Friday to 5.00 pm on the following Sunday or 5.00 pm on the following Monday if the Monday is a public holiday in the Australian Capital Territory.
5.2For one half of each school holiday period as agreed between the parents and in default of agreement with the Father for the second half of the school holidays in even numbered years and with the Father for the first half of the school holidays in odd numbered years and in the absence of agreement the school holiday periods shall commence at 9.00 am on the day following the last day of school and shall conclude at 5.00 pm on the day prior to the commencement of school whether or not that day is a public holiday.
5.3.It be noted that the child will spend Christmas Day with the Father in each alternate year and in the absence of agreement it will be in each odd numbered year.
5.4In the event that Father’s Day falls on a weekend when the child is not otherwise residing with the Father pursuant to these Orders then on that weekend from 7.00 pm on Friday to 5.00 pm on the following Sunday or 5.00 pm on the following Monday if the Monday is a public holiday in the Australian Capital Territory.
5.5In the event that the Father’s birthday falls on a weekend which is a weekend when the child is not otherwise residing with the Father pursuant to these Orders then that weekend shall be substituted for the next scheduled weekend.
Subject to Order 5 hereof:
6.1The child shall otherwise reside with the Mother; and
6.2Notwithstanding any other order the child reside with the Mother on the weekend which includes Mother’s Day.
The child have telephone communications with the Father each Wednesday between 6.00 pm and 7.00 pm and the Mother shall facilitate such telephone communications.
Should the Mother cancel any period of time the child is to spend with the Father, the Mother will provide to the Father a medical certificate and the child will spend the following weekend with the Father in substitution for weekend contact, or following day for holiday contact.
For the purposes of implementation of these Orders the changeovers of the child from the care of the Mother to the care of the Father and from the care of the Father to the care of the Mother shall take place at the McDonalds restaurant located at S.
For the purposes of the changeover provided for in Order 9 hereof the Mother may authorise her parents to attend at S and effect the changeover and the Father may authorise his present wife, his parents or his sister in law to attend at S and effect the changeover and if this is to happen then each parent should so far as practicable give notice to the other parent.
The Father is permitted to take the child on overseas holidays upon the child reaching five years of age, and the PASS order will remain in force until … December 2007 and thereafter be discharged.
The Mother will sign all documents necessary to obtain an Australian passport for the child within 21 days of a request to do so by the Father.
If either party fails to sign any necessary document pursuant to these Orders then the Deputy Registrar, Canberra Registry shall be appointed to execute all such documents and to do such things as are necessary to give effect to the orders made by the Court.
Neither party will at any time permit the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle in which the child is not restrained in a way appropriate for his age and weight and in accordance with any laws or regulations prevailing in the State or Territory concerned.
Each of the Father and Mother shall:
15.1Inform the other as soon as possible of any serious illness or injury suffered by the child while in their respective care.
15.2Inform the other as soon as possible of any medical treatment being administered to the child or any specialist appointments which the child is to attend.
15.3Provide all authorities and directions necessary for all health professionals consulted by the child to provide to each of the Father and Mother all information and material held in relation to the child.
15.4Provide all authorities and directions necessary for all pre schools/schools attended by the child to provide to each of the Father and Mother all information and material held in relation to the child.
15.5Inform the other and keep the other informed as to their current residential address and contact telephone number.
Neither parent shall say anything to or in the presence of the child or allow any other person to say anything to or in the presence of the child which is in any way derogatory of the other parent or the other parent’s partner or in relation to proceedings between the parents concerning the child.
Each parent be at liberty to attend any schooling, sporting or religious activity in which the child is involved or participating in and to which parents are also able to attend or participate.
The Father will not approach within one kilometre of the Mother’s residential address or place of employment or the Mother’s parent’s residential address or place/s of employment.
The Mother will not approach within one kilometre of the Father’s residential address or place of employment.
In the event either party’s current mobile phone number ceases to be their phone number they will within 48 hours inform the other party in writing of their new mobile number of if they are not obtaining a new mobile number an alternative telephone number.
When the child is in the Father’s care, if the child requests he telephone the Mother then the Father is to assist the child to make such calls.
When the child is in the Mother’s care, if the child requests he telephone the Father then the Mother is to assist the child to make such calls.
The parties will not contact each other via telephone other than if there is an emergency.
Other than in respect of school holidays each party will give to the other not less than 48 hours notice of his or her inability to spend any particular period of time with the child unless his or her inability is created by an emergency in which case he or she will advise the other as soon as practicable.
In the event the child will not be residing predominantly at the residential address of the Father for each period the child spends with the Father then the Father shall inform the Mother in writing of the address at which the child will be staying.
In the event the child will not be residing predominantly at the residential address of the Mother for each period the child spends with the Mother then the Mother shall inform the Father in writing of the address at which the child will be staying.
The Mother shall request that any school attended by the child forward to the Father any school newsletter or school report ordinarily provided to the parents of children enrolled at such school.
The Father shall not arrange or permit the child to have a haircut without the agreement of the Mother.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4359 of 2006
| Mr De Vries |
Applicant
And
| Ms Booth |
Respondent
REASONS FOR JUDGMENT
Introduction
Before me for hearing are applications for final parenting orders. For reasons which hereafter appear, with the consent of all parties, I heard two sets of proceedings at the same time. The issues in both cases involve the amount of time the children will spend with their respective fathers.
On 27 November 2006 an application for final orders was filed on behalf of the Mother. In the application the Mother sought that parenting orders made on 11 February 2005 be discharged. The Mother sought that the child, a son, reside with her and she have sole responsibility for the long term care, welfare and development of the child. The Mother sought that the child spend “significant time” with the Father, to include the first half of each short school holiday period and during the December/January school holidays from 26 December of each year until 16 January of each year. The Mother proposed that the child spend time with the Father during the school term on the first weekend of each calendar month. She sought other orders, which I need not repeat in these reasons.
On 27 February 2007 a response was filed on behalf of the Father. He sought that the Mother’s application be dismissed.
On 30 March 2007 a minute of orders was filed on behalf of the Mother and she now seeks:
1. That Orders made in the Federal Magistrates Court at Canberra on 11th February 2005 be discharged.
2. The child, [L] born […] December 2002 ("the child") live with the applicant mother and that she have sole responsibility for the child's long term care and day to day care, welfare and development.
3. The child spend significant time with the respondent father such time to include the following:
(a)Subject to the next Order, the first half of each short school holiday period from 11.15 am on the day immediately following the cessation of the school term until 11.15 a.m. on the following Saturday;
(b)In the event that the [mother’s birthday] falls within the first week of the September/October school holidays, then and only then shall time commence at 11.15 a.m. on the Saturday most approximate to half the school holiday period until 11.15 a.m. on the following Saturday;
(c)For each December/January school holiday period commencing in December 2007 and yearly thereafter, from 2.15 p.m. on 26th of December until 2.15 p.m. on 16th January
(d)Telephone calls, initiated by the father, each Wednesday between 6.00 p.m. and 6.30 p.m.
(e)The first weekend of each calendar month during each ACT school term commencing at 5.00 p.m. on the Friday and concluding at 5.00 p.m. on the following Monday or Tuesday should the Monday be a public holiday. For the purposes of changeover in respect of this Order, changeover shall occur at the McDonalds carpark [S];
(f)In the event that the father's birthday falls on a weekend which is a weekend when the father shall not spend time with the child then that weekend shall be substituted for the next scheduled weekend.
(g)In the event that the child's brother, [M’s], birthday falls on a weekend when the child shall be spending time with the father then that weekend shall be postponed until the next weekend;
(h)In the event that Mother's Day falls on a weekend when the child shall be spending time with the father, then that time with the father shall be postponed until the next weekend;
(i)In the event that Father's Day falls on a weekend when the child is not spending time with the father, then that weekend will be substituted for the next scheduled weekend;
(j)In respect of implementation of the four previous paragraphs, the mother shall be responsible for conveying to the father by 31st January in each year a schedule as to the manner in which all or any of the matters referred to in the previous four paragraphs impact upon the father's weekends. Further the mother, at the same time as advising the father shall inform him as to which week of the school holidays he shall enjoy time with the child for the September/October school holiday period.
4. At all times the father shall be on leave during periods of time spent with the child, shall be substantially available personally to supervise the child during such periods and shall not leave the child with other persons other than in an emergency situation. Further, the father will provide, if requested, evidence from his employer that the father was on leave during the period of time spent together.
5. Subject to Order the changeover for contact will occur at the commencement of such time at Centrecare [C] Contact Service at […] and conclude at the Children's Change-Over and Contact Centre at [R] in the Australian Capital Territory ([R]).
6. If either party seeks to have another person to effect the handover, then he will:
(a)to the extent necessary comply with the change-over centres' requirements as to the registration of such persons but that in addition such person or persons shall be well known to the child;
(b)that the person at the time of transporting the child be appropriately licensed to transport the child.
7. Neither party will allow the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle that fails to provide restraints for the child that are appropriate for his age and weight; nor to be in a vehicle in which any person is smoking.
8. Neither party will allow any person to smoke in the presence of the child whilst in their control but in particular in the residence where the child is then residing.
9. The parties shall keep each other informed of their current mobile phone number and should such phone number be changed, then to provide that changed number within 48 hours of that said change.
10. The parties will not and will not allow third parties to physically and/or verbally abuse the child or to use abusive language in the presence of the child or to denegrate [sic] the other party or the other party's family in the presence or hearing of the child.
11. Subject to these Orders, the parties will not unnecessarily contact each other via telephone except to have contact with the child or to confirm contact times or any emergency of and concerning the child.
12. For the school holiday period commencing the 22nd December 2006, the child shall spend time with the father from 2.15 p.m. on Tuesday 26th December 2006 concluding at 2.15 p.m. on Monday 1st January 2007; and from 2.15 p.m. on Saturday 20th January 2007 until 2.15 p.m. on 27th January 2007. For the purpose of change over on Sunday 1st January 2007, this change over shall occur at the McDonald's Carpark, [S]
13. For the purpose of the time spent by the child with the father as referred to in the previous Order, change over shall occur at the commencement of each period at [R] and conclude at [C]. In the event that for the change over on 26th December 2006 [R] is closed, then the mother shall organise for the engagement of a private handover person whose identity and the place of hand over in Canberra shall be advised to the father as soon as possible after the mother being informed that [R] will not be open on that day.
14. Each party shall keep the other informed of their usual residential address and should either party change their residential address, then that person shall advise the other party of that change within seven days of such change. Notice shall be provided by SMS. In the event that for periods of contact the child is not to be ordinarily residing at the father's residence, then the father shall inform the mother by SMS of the address at which the child shall be at that time ordinarily residing.
15. The mother shall at time ensure that the father is informed of the school that the child is then attending and the father shall be at liberty to register his name with the school for the purpose of obtaining all literature published by the school including the child's school reports.
16. If either party obtains any medical treatment for [the son], involving attendance upon a medical practitioner then he or she shall will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
17. Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care.
18. The father will not approach within 1 kilometre of the mother’s address.
19. The mother will not approach within 1 kilometre of the father’s address.
20. The father shall not arrange or permit the child to have his hair trimmed or cut in any way.
21. The parties shall be restrained, without the consent of the other first had and obtained in writing, to obtain any passport for the child, whether it be a European, Dutch, [Pacific Island] or an Australian passport.
22.(a) Each of the parties is hereby restrained from removing, or causing or allowing any other person to remove the child [a son] born on […] December, 2002 from the Commonwealth of Australia;
(b)That the name of [the child] born on […] December 2002 be placed on the PASS list in relation to ports in Australia.
23. That all times the mother be permitted to register the child whether at schools or other places where registration is necessary as “[both parties’ surnames]” where the name [mother’s surname] is to be used as the surname with the name [father’s surname].
24. That the hearing of these proceedings be consolidated with the proceedings between the mother and [Mr Oshodi] which proceedings concern the child [M] born the […] November 1999 and bearing proceedings number (P)CAF1436 of 2001.
25. Should the mother cancel any time period, the mother will provide to the father a medical certificate and time will occur the following weekend in substitution for weekend time or following day for holiday time.
26. When the child is spending time with the father during school holiday periods, then the mother shall ring, and the father shall facilitate a telephone call to, the child between the hours of 6.00 p.m. and 6.30 p.m. each Wednesday. In the event that the mother is unable to get through to speak to the child then she is at liberty to continue to ring until such time as she is able to speak to the child.
27. Such further Order or Orders as the Court thinks appropriate Orders.
I assume the dates in paragraph 12 are wrong and should be 2007 and 2008. I found some of the orders confusing and difficult to understand.
The other proceedings are between Mr O and the Mother in relation to the parenting of their child M. In the Booth and Oshodi proceedings on 30 March 2007 I received a minute of orders and in those proceedings the Mother seeks the following:
1. That Orders 1 to 20 inclusive made in this Court at Canberra on 23rd January 2005 be discharged.
2. The child, [M] born […] November 1999 ("the child") live with the applicant mother and that she have sole responsibility for the child's long term care and day to day care, welfare and development.
3. The child spend significant time with the respondent father such time to include the following:
(a)Subject to the next Order, the first half of each short school holiday period from 11.00 am on the day immediately following the cessation of the school term until 11.00 a.m. on the following Saturday;
(b)In the event that the [mother’s birthday] falls within the first week of the September/October school holidays, then and only then shall time commence at 11.00 a.m. on the Saturday most approximate to half the school holiday period until 11.00 a.m. on the following Saturday;
(c)For each December/January school holiday period commencing in December 2007 and yearly thereafter, from 2.00 p.m. on 26th of December until 2.00 p.m. on 9th January
(d)Telephone calls, initiated by the father, each Wednesday between 6.30 p.m. and 7.00 p.m.
4. At all times the father shall be on leave during periods of time spent with the child, shall be substantially available personally to supervise the child during such periods and shall not leave the child with other persons other than in an emergency situation. Further, the father will provide, if requested, evidence from his employer that the father was on leave during the period of time spent together
5. Subject to Order 13 the changeover for contact will occur at the commencement of such time at Centrecare [C] Contact Service at […] and conclude at the Children's Change-Over and Contact Centre at [R] in the Australian Capital Territory ([R]).
6. If either party seeks to have another person to effect the handover, then he will:
(a)to the extent necessary comply with the change-over centres' requirements as to the registration of such persons but that in addition such person or persons shall be well known to the child;
(b)that the person at the time of transporting the child be appropriately licensed to transport the child
7. Neither party will allow the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle that fails to provide restraints for the child that are appropriate for his age and weight; nor to be in a vehicle in which any person is smoking.
8. Neither party will allow any person to smoke in the presence of the child whilst in their control but in particular in the residence where the child is then residing
9. The parties shall keep each other informed of their current mobile phone number and should such phone number be changed, then to provide that changed number within 48 hours of that said change.
10. The parties will not and will not allow third parties to physically and/or verbally abuse the child or to use abusive language in the presence of the child or to denegrate [sic] the other party or the other party's family in the presence or hearing of the child
11. Subject to these Orders, the parties will not unnecessarily contact each other via telephone except to have contact with the child or to confirm contact times or any emergency of and concerning the child
12. For the school holiday period commencing the 22nd December 2006, the child shall spend time with the father from 2.00 p.m. on Tuesday 26th December 2006 concluding at 2.00 p.m. on Sunday 7th January 2007; and from 2.00 p.m. on Saturday 20th January 2007 until 2.00 p.m. on 27th January 2007.
13. For the purpose of the time spent by the child with the father as referred to in the previous Order, change over shall occur at the commencement of each period at [R] and conclude at [C]. In the event that for the change over on 26th December 2006 [R] is closed, then the mother shall organise for the engagement of a private handover person whose identity and the place of hand over in Canberra shall be advised to the father as soon as possible after the mother being informed that [R] will not be open on that day
14. Each party shall keep the other informed of their usual residential address and should either party change their residential address, then that person shall advise the other party of that change within seven days of such change. Notice shall be provided by SMS. In the event that for periods of contact the child is not to be ordinarily residing at the father's residence, then the father shall inform the mother by SMS of the address at which the child shall be at that time ordinarily residing.
15. The mother shall at all time ensure that the father is informed of the school that the child is then attending and the father shall be at liberty to register his name with the school for the purpose of obtaining all literature published by the school including the child's school reports.
16. If either party obtains any medical treatment for [M], involving attendance upon a medical practitioner then he or she shall will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
17. Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care
18. The father will not approach within 1 kilometre of the mother’s address.
19. The mother will not approach within 1 kilometre of the father’s address.
20. The father shall not arrange or permit the child to have a haircut.
21. The parties shall be restrained, without the consent of the other first had and obtained in writing, to obtain any passport for the child, whether it be a Nigerian or an Australian passport.
22.(a) Each of the parties is hereby restrained from removing, or causing or allowing any other person to remove the child [M] born on […] November, 1999 from the Commonwealth of Australia;
(b)I direct that the name of [M] born on […] November 1999 be placed on the PASS list in relation to ports in Australia.
23. That all times the mother be permitted to register the child whether at schools or other places where registration is necessary as [both parties’ surnames] where the name [mother’s surname] is to be used as the surname with the name [both surnames]
24. That the hearing of these proceedings be consolidated with the proceedings between the mother hearing and [Mr De Vries] which proceedings concern the child [L] born the […] December 2002.
25. Should the mother cancel any time period, the mother will provide to the father a medical certificate and time will occur on the following day for holiday time.
26. When the child is spending time with the father during school holiday periods, then the mother shall ring, and the father shall facilitate a telephone call to the child between the hours of 6.30 p.m. and 7.00 p.m. each Wednesday.
27. Such further Order or Orders as the Court thinks appropriate.
Again, I assume the dates in paragraph 12 are wrong and should be 2007 and 2008. Again, I also found some of the orders confusing and difficult to understand.
The Father appeared before me without legal representation and the Mother was legally represented. In the Booth and Oshodi proceedings Mr Oshodi appeared without legal representation.
I had the benefit of an answer to questionnaire (Exhibit A) from the Mother and an answer to questionnaire (Exhibit B) from the Father.
The Father was born in the Pacific Islands on … October 1975. The Mother was born in Australia on … October 1975.
The parents first met in October 2001 and commenced to live together in December 2001. They were married on 15 March 2002 and lived in Canberra. The parents separated in April 2003 and were divorced in November 2004.
There is one child of the relationship L who was born on … December 2002. The parents separated when the child was very young.
The Father commenced to live in Sydney in May 2003 and he has remarried.
Mr Oshodi was born in Nigeria on 20 September 1973 and he emigrated to Australia in 1989. The Mother and Mr Oshodi commenced to live together in July 1999 and separated in May 2000. They resumed cohabitation in January 2001 and separated in March 2001. They resumed cohabitation in April 2001 and finally separated in July 2001. The Mother and Mr Oshodi lived in Sydney. In July 2001 the Mother moved to Canberra to live with her parents.
There is one child of the relationship of the Mother and Mr Oshodi, M born on … November 1999. The child ordinarily lives with the Mother. The Mother and Mr Oshodi separated when the child was very young.
On the second day of the hearing I received a summary document from counsel for the Mother in which the following was stated:
1. That [L] born […] December 2003 (“[…]”) live with the mother.
2. That [M] born […] November 1999 (“[M]”) live with the mother.
3. That [L] spend time with his father as follows:
(a)In the mid year school holidays, subject to order 3(b) from 11:15 am the day after school concludes to 11:15 am on the middle Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(b)In the Sept/Oct school holidays if [the mother’s birthday] falls in the first week then from 11:15am on the middle Saturday to 11:15 am the following Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(c)In the Dec/Jan school holidays from 2:15 pm on 26 December to 2:15 pm on 16 January each year, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(d)During term time on the first weekend of each calendar month from 5pm Friday to 5pm Sunday or Monday (if a public holiday) with changeover at McDonalds [S].
4. That [L] communicate with his father by telephone calls initiated by the father between 6pm and 6:30 pm each Wednesday.
5. The father shall see [L] on the weekend of the father’s birthday or father’s day in lieu of his next time under order 3(d).
6. The father’s time with [L] is suspended should it fall on a weekend containing [M’s] birthday or the Mother’s Birthday but shall occur on the following weekend.
7. [L’s] father shall be personally available to spend time with him during those periods set out in order 3 and 5.
8. That [M] spend time with his father as follows:
(a)In the mid year school holidays, subject to order 3(b) from 11:00 am the day after school concludes to 11:00 am on the middle Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(b)In the Sept/Oct school holidays if [the mother’s birthday] falls in the first week than from 11:00am on the middle Saturday to 11:00 am the following Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(c)In the Dec/Jan school holidays from 2.00 pm on 26 December to 2:00 pm on 9 January each year, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
9. That [M] communicate with his father by telephone calls initiated by his father each Wednesday between 6:30 pm and 7pm.
10. [M’s] father shall be personally available to spend time with him during those periods set out in order 8.
The Mother said that she is seeking to “marry up” the orders as much as possible for the boys to spend as much time together as possible and to alleviate transportation difficulties.
Parenting - relevant principles
General
For a discussion of the relevant provisions of Pt VII of the Family Law Act1975 (Cth) see Goode and Goode (2006) FLC 93-286.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Family Law Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Goode and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Family Law Act. There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met and they are: first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) which underlie the objects. They are, except when it is or would be contrary to the best interests of a child: first, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Family Law Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Family Law Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders 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.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60B and s 60CC.
If I am satisfied that the presumption of equal shared parental responsibility does apply then, by virtue of s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether this is reasonably practicable. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether this is reasonably practicable. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60CC and s 60B.
Background
The Mother contended, and I accept, that there have been numerous proceedings between the parents in relation to the parenting of the children. Proceedings have been initiated by both the Fathers and the Mother. The Mother said, and I accept, that in both cases there have been numerous difficulties involving time spent by the boys with their fathers.
I have looked at the court files for the purpose of ascertaining the history of the litigation and I have no doubt that it has been very extensive both in proceedings between the parties and in proceedings between the Mother and Mr Oshodi. I will identify some of the history but what I say may not be exhaustive of what has transpired. There have been proceedings in the Local Court of New South Wales, the Federal Magistrates Court, the Family Court and the Full Court of the Family Court. There have also been child support proceedings. From time to time there has probably been what I describe as a correspondence war between the parties and their lawyers given the amount of correspondence that I have read. It may appear that the issues I have to decide fall within a narrow compass however, what I am concerned about is that the current proceedings are just another episode in a long and protracted history of parental conflict.
The Mother resides in Canberra and is employed by the Australian Public Service. She contended that she works between 9.00 am and 5.00 pm on Monday to Friday.
The Father resides in E in Sydney and is employed as a consultant. The Father has remarried. The Father pays child support and has done so for some time. According to his evidence he pays $645 per calendar month.
Mr Oshodi also resides in Sydney.
The Mother and Mr Oshodi commenced to live together in July 1999 and separated in May 2000. The child M was born in November 1999. The child ordinarily lives with the Mother. The Mother and Mr Oshodi resumed cohabitation in January 2001 and separated in March 2001. They resumed cohabitation in April 2001 and finally separated in July 2001. The Mother and Mr Oshodi lived in Sydney.
In July 2001 the Mother moved to Canberra to live with her parents.
In October 2001 an application was filed by Mr Oshodi in the Local Court at St James Centre in Sydney. On 26 October 2001 an order was made that the proceedings be transferred to the Family Court, Canberra Registry. An order was also made that Mr Oshodi have contact with the child M from 9.00 am to 12 noon on Saturday 3 November 2001 and each alternate Saturday thereafter and that Mr Oshodi collect the child from the Mother at the car park of McDonalds restaurant in D at the commencement of contact and return the child to the Mother at that restaurant at the conclusion of contact.
The parties first met in October 2001 and commenced to live together in December 2001.
In the Booth and Oshodi proceedings, on 16 January 2002 Faulks J made orders in accordance with a minute of orders which provided as follows:
1. That the child [M] (born […] November 1999) live with the mother.
2. That [M] have contact with the father as follows:
2.1Each alternate Saturday from 10.00 am to 5.00 pm, the first such contact period being on the 26th January 2002.
2.2From 6 April each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday.
2.3On Fathers’ Day from 10.00 am to 5.00 pm.
3. That the father exercise contact in accordance with order 2.1 in Canberra and Sydney on each alternate contact period with the first contact period being 26th January 2002, being in Canberra.
4. That to facilitate contact in order 2.1 if the father is exercising contact in Canberra contact changeover to be at [D] McDonalds Restaurant.
5. That to facilitate contact in Sydney order 2.1, 2.2 and orders 2.3 contact changeover be at [U].
6. That notwithstanding any other orders [M] live with his mother on Mothers’ Day.
7. That either party can at any time request an appointment with a counsellor of the Family Court in Canberra regarding [M] and the other party agrees to attend at a time convenient for both parties.
8. That when exercising contact with [M] in accordance with order 2 the father not remove [M] from the Australian Capital Territory or New South Wales.
9. That each parent advise the other of any change of telephone number at least 48 hours prior to the change taking place.
10. That each parent advise the other of any medical or other emergency concerning [M] and details of any hospital, medical practitioner or specialist who treats [M] whilst [M] is in that party’s care.
11. That the father or any other person acting on his behalf, be restrained from taking [M] within a 1 km radius of any international airport and/or seaport and/or any other place from which aircrafts or ships depart to international destinations.
12. That both parties not contact the other except in relation to matters concerning [M].
13. That both parties not discuss any aspect of these proceedings, or the level of the father’s contact with [M] or cause any other person to do so, in front of [M].
14. That neither parent say unkind or uncomplimentary things about the other to or in [M’s] presence, nor cause or allow anybody else to do so.
In addition to the orders set out in the minute Faulks J made the following orders:
2. From the 3rd May 2002 contact on alternate weekends will commence at 4.00 pm on Friday and end at 4.00 pm on Sunday with the handover being in each case Hungry Jacks at [U] unless the parties otherwise agree.
3. [M] will spend Christmas Day 2002 with his mother but will spend New Year’s Day 2003 with his father and those arrangements will be alternated from year to year unless the parties otherwise agree.
4. [M] will spend from 10.00 am until 4.00 pm on Easter Sunday 2002 with his father in Sydney.
5. [M’s] father may have contact with him in Canberra on [M’s] birthday between the hours of 9.00 am and 2.00 pm.
6. If either party obtains any medical treatment for [M], involving attendance upon a medical practitioner than (sic) he or she will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
7. Each of the parties be and is hereby restrained from applying for any passport for [M] either an Australian passport or a Nigerian or for that matter any other nationality until further order.
8. [Mr Oshodi] will give not less than 24 hours notice of his inability to exercise any particular period of contact unless his inability is created by an emergency in which case he will advise [the mother] as soon as practicable.
9. The matter is otherwise remitted to the Pre Hearing Conference list for the allocation of a hearing date in due course.
As seen, the parties were married in March 2002. They lived in Canberra. [Mr De Vries’] father is a employed with an overseas commission.
In the Booth and Oshodi proceedings, on 4 June 2002 Judicial Registrar Loughnan made an order that the Father deliver the child M to Mr Oshodi at Hungry Jacks restaurant at U in southern New South Wales. My understanding is that U is approximately 179 kilometres from E in Sydney and approximately 137 kilometres from N in the Australian Capital Territory. The McDonalds restaurant at S is also located on the Hume Highway in southern New South Wales and is approximately 147 kilometres from E and approximately 155 kilometres from N. I note that W is approximately 139 kilometres from U and approximately 107 kilometres from S.
In the Booth and Oshodi proceedings, in October 2002 there were contravention proceedings in the Local Court at Burwood.
In the Booth and Oshodi proceedings, on 29 November 2002 Faulks J made an order that orders made on 16 January 2002 continue until further order however, commencing with the contact period scheduled to commence on 29 November 2002, Mr Oshosi collect the child M from Canberra at the commencement of each period of contact and return the child to Canberra at the conclusion of each period of contact until the first period of contact in February 2003. He also made an order that each of the Mother and Mr Oshodi be restrained from removing or causing or allowing any other person to remove the child M from the Commonwealth of Australia and directed that the child’s name be placed on the PASS Alert List. He made other orders which I will not repeat in these reasons.
In the Booth and Oshodi proceedings, on 18 December 2002 Coleman J made an order that Mr Oshodi’s contact provided by Order 3 of the orders of 16 January 2002 commence at 10.00 am on 1 January 2003 and conclude at 4.00 pm on 1 January 2003. Further, he made an order that collection and delivery of the child M occur at the McDonalds restaurant at D.
The child L was born in December 2002.
In the Booth and Oshodi proceedings, in February 2003 there were further contravention proceedings between the Mother and Mr Oshodi in the Local Court at Burwood. The proceedings were resolved by the Mother and Mr Oshodi giving mutual undertakings.
The parties separated in April 2003. At this time the child L was very young.
During 2003 there were various procedural orders made in relation to the pending proceedings between the Mother and Mr Oshodi.
Mr De Vries commenced to live in Sydney in May 2003.
Litigation about parenting issues then commenced between the parties. On 10 November 2003 in the Federal Magistrates Court at Canberra an order was made that until further order the Father have contact with the child L from 9.00 am until 12.30 pm each Saturday and for the purpose of collection and delivery the changeover occur at a McDonalds restaurant at D. An order was also made that neither party remove or attempt to remove the child from the Commonwealth of Australia and for the purposes of this that the child be placed on the PASS Alert List by the Australian Federal Police.
On 1 December 2003 an order was made in the Federal Magistrates Court that the Father have contact with the child L from 9.30 am until 1.30 pm on Christmas Day and thereafter each Saturday for certain specified hours over a period of seven weekends and then from 10.00 am until 5.00 pm.
In the Booth and Oshodi proceedings, on 22 December 2003 Faulks J made an order that the Father have contact with the child M from 8.00 pm “Christmas Night until the completion of weekend contact on Sunday” and that the Father be responsible for the collection of the child from the McDonalds restaurant at D.
On 16 August 2004 in the Federal Magistrates Court an order was made that until further order the Father have contact with the child L from 10.00 am Saturday until 4.00 pm Sunday each alternate weekend commencing on 21 August 2004 and that the changeover occur at McDonalds restaurant at D at the commencement of contact and at U at the conclusion of contact. On 16 August 2004 an order was also made that the Father have contact with the child in Canberra on Christmas Day from 9.00 am until 1.00 pm. Other orders were made which I need not repeat in these reasons.
The Mother then appealed against the orders made on 16 August 2004 in relation to the child L and the appeal was heard by Coleman J on 3 September 2004. Coleman J allowed the appeal and set aside Orders 1, 2 and 3 of the orders made on 16 August 2004. He made an order that the competing applications for “interim contact” be remitted to the Federal Magistrates Court.
On 3 September 2004 interim orders were made in the proceedings between the parties.
In the Booth and Oshodi proceedings, on 8 November 2004 Faulks J made a number of orders by consent and adjourned the hearing of a number of other issues. On 9 November 2004 Faulks J made a number of orders which were “not by consent”.
On 6 December 2004 a notice of appeal was filed on behalf of Mr Oshodi. He sought to appeal against paragraphs 2 and 11 of the supplementary orders which were not made by consent on 9 November 2004. In the notice of appeal Mr Oshodi sought that changeover should occur at the Shell service station at S and in the alternative occur at Centrecare C Contact Service at C with the Sunday changeover to occur at the Children’s Changeover and Contact Centre at R in the Australian Capital Territory.
In the Booth and Oshodi proceedings, on 23 January 2005 Faulks J made the following orders:
IT IS ORDERED THAT:
1. * The child, [M] born […] November 1999 (“the child”), live with the respondent mother and that she have sole responsibility for the child’s long term care and day to day care, welfare and development.
2. * The child have contact with the applicant father such contact to be as agreed but to include the following:
(a)* When the child commences full-time primary schooling, subject to Order 3, up to one half of each of the short school holiday periods except Sept/Oct being the second half in all odd-numbered years and the first half in all even-numbered years.
(b)If the father is not able to exercise holiday contact for some or all of the time provided in these orders, he provide the mother with one month’s prior notice in writing.
(c)* When the child commences full time primary schooling, subject to order 3, for one half of the September/October school holidays not to be the half which contains [the mother’s birthday].
(d)* That the school holiday period be to commence at 5.15 p.m. on the last day of school and to conclude at 5.15 pm on the Sunday prior to the commencement of school.
(e)* Telephone calls as and when [M] requests such contact. The mother will assist [M] to make such calls.
(f)* When [M] is in the father’s care, if [M] requests telephone contact with his mother, such contact shall occur and the father is to assist [M] to make such calls.
3. During term time [M] will have contact with his father on each fortnight, such fortnight to coincide with the fortnightly contact that [L] has with his father, such contact will commence at 5:15pm on the Friday of the weekend and conclude at 5:15pm on the Sunday of the weekend unless the parents otherwise agree.
4. * The father shall be substantially available personally to supervise the child during contact periods and shall not leave the child with other persons other than in an emergency situation.
5.(a) The change-over for contact will occur during term time at the Children’s Change-Over and Contact Centre at [R] in the Australian Capital Territory.
(b)The contact during school holiday periods will commence if [M] is to be with his father for the first half of the school holidays at [R] but other change-overs for school holiday periods will occur at Centrecare [C] Contact Service at [C] in the New South Wales.
(c)* If the father seeks to have another person to effect the handover of [M] for contact, he will ensure that the mother is aware of the identity of the person who will be responsible for the hand-over not less than 48 hours prior to the hand-over.
(d)* If the mother seeks to have a person other than herself or [her parents] to effect the handover of [M] for contact the mother will ensure that the father is aware of the identity of the person who will be responsible for the hand-over not less than 48 hours prior to the hand-over.
(e)Each of the parents will undertake as soon as practicable such intake procedures as either of the two contact services requires.
(f)If either parent should fail promptly to comply with the intake procedures of either of the contact services then there is liberty to apply for orders either by way of compensatory contact or for other orders about contact.
6. * Other than in respect of school holiday contact the father will give not less than 24 hours notice of his inability to exercise any particular period of contact unless his inability is created by an emergency in which case he will advise the mother as soon as practicable.
7. If [M’s] father’s birthday falls on a weekend which is not a contact weekend or if Father’s Day falls on a weekend which is not a contact weekend then the weekend on which either of those two events occurs will be a contact weekend in substitution for the next scheduled weekend contact period. This is provided that the father gives to the other notice in writing of not less than one month of his intention to exercise the contact during the weekends referred to.
8. * If the mother’s birthday […] October) or Mother’s Day falls on a contact weekend then the scheduled weekend contact shall occur in the weekend preceding and the mother shall inform the father with one month’s notice in writing of her intention to have [M] with her on those weekends.
9. * If the child will not be residing predominantly at the address of the father for the contact period the father shall inform the mother in writing of the address at which the child will be staying.
10. * The mother request that any school attended by the child forward to the father any school newsletter or school report ordinarily provided to the parents of children enrolled at such school.
11. * Neither party will at any point hereafter permit [M] to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle in which he, that is [M], is not restrained in a way appropriate for his age and weight.
12. * If either party obtains any medical treatment for [M], involving attendance upon a medical practitioner then he or she will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
13. * Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care.
14. * The father will not approach within 1 kilometre of the mother’s address.
15. * The mother will not approach within 1 kilometre of the father’s address.
16. * If either party’s current mobile phone number ceases to be his or her phone number he or she will with in forty-eight hours inform the other party in writing of the new mobile number or, if they are not obtaining a new mobile number, an alternate telephone number.
17. * The parties shall be restrained, without the consent of the other first had and obtained in writing, to obtain any passport for the child, whether it be a Nigerian passport or an Australian passport.
18.(a) * Each of the parties is hereby restrained from removing, or causing or allowing any other person to remove the child [M] born on the […] November, 1999 from the Commonwealth of Australia.
(b)I direct that the name of [M] born on […] November, 1999 be placed on the PASS list in relation to ports in Australia.
19. * The parties will not and will not allow third parties to physically abuse other persons or the child or use abusive language or denigrate the other party or the other party’s family in the presence or hearing of the child.
20. * The parties will not contact each other via telephone except if there is an emergency.
21.(a) The mother have leave to make application about the costs reserved by Judicial Registrar Loughnan on the 4th June 2002.
(b)The application for leave is granted but the application for costs is refused.
22.(a) The father will pay the mother’s costs of and incidental to these proceedings from the adjourned date previously set for the hearing in November 2004 until noon on the 8th November 2004.
(b)Such costs will be agreed or taxed.
(c)I certify that it was reasonable for senior counsel to be retained in this matter.
23. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
24. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
25. I direct that the matter be removed from the pending cases list.
26. For the sake of clarity the long or Christmas school holidays are regarded for the purposes of these orders as school holidays.
Items marked with an * are orders made by consent on the 8th November 2004
The orders were described as a compilation of the orders made by consent on 8 November 2004 and the orders made “not by consent” on 9 November 2004.
Mr Oshodi appealed against Orders 5(a) and 22(a) and (b). Mr Oshodi sought that the weekend time he spends with the child M commence and conclude at S. As the Full Court said, Mr Oshodi was seeking that the changeover place be the same for both children.
In the Booth and Oshodi proceedings, the Mother contended, and it was agreed, that the child M has not spent time with his father on a weekend during the school term since February 2005. As well, there have been occasions when the child did not spend time with his father during the school holidays which included January 2006. Mr Oshodi said that he has not been exercising the fortnight weekend school term time with the child M because of safety and fatigue reasons involved in travelling after work and driving to Canberra to collect the child. He said that this would be an eight hour drive. Mr Oshodi contended that in spite of not spending time with the child M during the school term he continues to enjoy a close relationship with the child and spends time with the child during the school holidays.
The applications for final orders were listed for final hearing before a Federal Magistrate on 2 February 2005. The parties however, reached agreement on all matters except the location of “our changeovers”. On 11 February 2005 a Federal Magistrate made the following orders:
1. That the child [L] born […] December 2002 reside with his mother.
2. That both parents have joint responsibility for his long term care, welfare and development.
3. That the parent with whom the child is residing with shall have responsibility for the child’s day to day care, welfare and development.
4. The mother shall advise the father of all schools/preschools/day care centres that [L] attends.
5. The child have weekend contact with his father as follows:
a)each alternate weekend from 9.15am Saturday until 3.00pm Sunday from 12 February 2005 until 1 March 2005.
b)each alternate weekend from 9.15am Saturday until 3.00pm Sunday from 1 March 2005 until 30 June 2005.
c)thereafter each alternate weekend from 7pm Friday until 3pm Sunday or Monday if it is a long weekend.
6. The child have holiday contact with his father as follows:
a)during the first week of the July and September/October school holidays in 2005 from 4pm on Wednesday 4pm the following Sunday.
b)during the second week of the April, July and September October school holiday’s in 2006 from 4pm on the Tuesday until 5.15pm the following Sunday, thereafter for one half of all school holidays.
7. The child have telephone contact with his father from the age of 3 years each Wednesday between 6 and 7pm. The mother shall facilitate such contact.
8. Should the mother cancel any contact period, the mother will provide to the father a medical certificate and contact will occur the following weekend in substitution for weekend contact, or following day for holiday contact.
9.a) the child will have contact with his father from 4pm 26 December 2005 until 4pm 28 December 2005 and each alternate year thereafter.
b)the child will have contact with his father from 4pm 24 December 2006 until 4pm 26 December 2006 and each alternate year thereafter.
10. The changeovers for contact shall be as follows:
(a)On a Friday at McDonalds [S]
(b)On a Saturday at McDonalds [D]
(c)On a Sunday or Monday at McDonalds [S]
(d)At Christmas at McDonalds [S]
(e)For holiday contact
(i)At the [C] Centacare Children’s Contact Centre when it coincides with the changeover for the mother’s child [M].
(ii)At McDonalds [S] at other times.
11. The father is permitted to take the child on overseas holidays upon the child reaching five (5) years of age, and the PASS order will remain in force until 25 December 2007 and thereafter be discharged.
12. The mother will sign all documents necessary to obtain an Australian passport for the child within (21) days of a request to do so by the father.
13. That if either party fails to sign any necessary document pursuant to these orders then the Deputy Registrar, Canberra Registry shall be appointed to execute all such documents and to do such things as are necessary to give effect to the Orders made by the Court.
14. Neither party will at any point hereafter permit the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle in which the child is not restrained in a way appropriate for his age and weight and in accordance with any laws or regulations prevailing in the state or territory concerned.
15. If either party obtains any medical treatment for the child, involving attendance upon a medical practitioner then he or she will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed, and will provide any relevant medications or prescriptions.
16. Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care.
17. The father will not approach within 1 kilometre of the mother’s address, the mother’s parent’s address or place/s of employment.
18. The mother will not approach within 1 kilometre of the father’s address or place of employment.
19. In the event either party’s current mobile phone number ceases to be their phone number they will with in forty eight hours inform the other party in writing of their new mobile number of if they are not obtaining a new mobile number an alternative telephone number.
20. When the child is in the father’s care, if the child requests telephone with his mother, such contact shall occur and the father is to assist the child to make such calls.
21. The parties will not and will not allow third parties to physically abuse other persons or the child, use abusive language in the presence of the child, denigrate the other party or other party’s family in the presence or hearing of the child.
22. The parties will not contact each other via telephone other than if there is an emergency.
23. Other than in respect of school holiday contact each party will give to the other not less than 48 hours notice of his or her inability to exercise any particular period of contact unless his or her inability is created by an emergency in which case he or she will advise the other as soon as practicable.
24. That in the event the child will not be residing predominantly at the address of the father for each contact period the father shall inform the mother in writing of the address at which the child will be staying.
25. That the mother request that any school attended by the child forwarded to the father any school newsletter or school report ordinarily provided to the parents of children enrolled at such school.
26. The first weekend contact for [L] to commence Saturday 12 February 2005 and each fortnight thereafter in accordance with order 5 herein.
27. The father shall not arrange or permit the child to have a haircut.
I would be concerned about the effects on this young boy if the amount of time he spends with the Father during the school term was reduced.
The Mother contends, and I accept, that there is a very close relationship between the two children. The Mother contends that the children should always be with her on Christmas Day because this is the birthday of the child and that it is important that the boys are together on each others birthdays. However I am of the view that it is important for the child to spend time with the Father on days that are of significance to the child and the Father and such days include birthdays and Christmas Day. I am concerned that this is not recognised by the Mother.
I am required to consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the right of the child to maintain personal relations and direct contact with both parents on a regular basis. This is an important matter.
I am of the view that the point of changeover for all occasions should be at S. It is less confusing for the parties and the child and is reasonably accessible by both parents.
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parents have the capacity to provide for the needs of the child, including emotional and intellectual needs during the periods they each seek to spend with the child.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant. It was not suggested that this is an important matter.
I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
I am satisfied that the Father has an appropriate attitude to the child and to the responsibilities of parenthood. Amongst other things, he has persisted in his concern to spend time with his son and has done so in a concerned and not vexatious manner.
As to the Mother, I have some concerns about her attitude to the child and to the responsibilities of parenthood. I am concerned about how she has facilitated or failed to facilitate the Father participating in making decisions about issues in relation to the child and spending time with the child and communicating with the child. My overall impression is that the Mother perceives the Father’s relationship with the child to be less important that her relationship with the child and that she has some sort of priority role over the Father in relation to the child.
I am required to consider any family violence involving the child or a member of the child's family. I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to each child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2). These matters are not relevant.
I am required to consider 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. This is an important matter. It is sufficient to reflect on the history that I have outlined above. My impression is that the Mother may seek to agitate other issues to achieve what she wants and that unless all parties have professional assistance, there is a chance of more litigation whatever I do.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing I want to say about this consideration beyond what I have said elsewhere.
Conclusion
When the evidence is considered there are really only two matters raised. One is that the child has now become involved in activities such as playing rugby football and that time spent with the Father would prevent this from happening every weekend. The next matter is that given that the child was born on Christmas Day it is more important that the two boys spend that day together than it is that they spend a Christmas Day with their fathers and members of the paternal families.
In the Booth and Oshodi proceedings, there is a further matter and that is that the Mother and Mr Oshodi have a conflicting relationship and that they should not meet face to face and thus changeovers are difficult.
As to the first matter, I am satisfied that it is more important that the child spend regular time with his father than be involved in sporting and extra-curricular activities. As the child grows older this will change and the parents will have to accommodate the desires and aspirations of the child. However, at this stage of the child’s life given, amongst other things, the history of what has happened, the priority is his relationship with his father.
As to Christmas Day, there is no doubt that the boys should have the opportunity from time to time to spend that day together but it is also important that they have the opportunity to spend that day with their parents and members of the paternal and maternal families.
When making a parenting order I must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. However the presumption does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In this case I am not satisfied that there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Thus, I must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
Next, notwithstanding the extent of the previous litigation and parental conflict, I am not satisfied that the presumption has been rebutted.
In the result, I am satisfied that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
As I am satisfied that the presumption of equal shared parental responsibility does apply I then have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent.
I am satisfied that it is not reasonably practicable for the child to spend equal time with each parent. Amongst other things, this is because of the self evident consequences of the Mother living in Canberra and the Father living in Sydney. Because both conditions are not satisfied then I do not have to consider making an order for the child to spend equal time with each parent.
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent.
Section 65DAA(3) sets out what is meant by substantial and significant time. It provides that for the purposes of s 65DAA(2) a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both (emphasis mine) days that fall on weekends and holidays and time allows the parent to be involved in the child’s daily routine and occasions and events that are of special significance to the child and occasions and events that are of special significance to the parent.
In this case I am satisfied that it would be in the best interests of the child to spend substantial and significant time with each parent. However again the distance that the parents live apart from each other does not make it reasonably practical. With the exception of school holiday periods the Father is unable to spend time with the child during the school week and be involved in the child’s daily routine.
The child is only four years of age and I accept that he has a close relationship with his father and step mother. In my opinion, he is at an age where it is in his best interests to spend regular and significant time with both parents. In my view, with the exception of some matters that I will deal with, nothing has been put to me that demonstrates why the regime established by the orders of February 2005 is not in the best interests of the child. Put another way, subject to some matters, I am satisfied that the regime established by the orders of February 2005 is in the best interests of the child.
I am satisfied that it is in the best interests of the child that he spend regular and significant time with his father both during the school terms and also the school holidays.
I am going to discharge all existing orders even though there are some in respect of which nothing has been put to establish why they should be discharged or varied. It is intended that the orders I will make, will be, so far as is possible, a comprehensive regime.
The child will continue to spend time with the Father during the school term each second weekend and for half of the school holiday periods. The child will spend Christmas Day with the Father each alternate year.
I am going to make orders that are synchronised with the orders I will make in the Booth and Oshodi proceedings. I accept that this is important.
I am not going to make the orders sought in relation to the PASS Alert List and passport as nothing has been put to me that establishes why the orders made by the Federal Magistrate in relation to such matters should be varied.
I certify that the preceding 150 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan
………………………………………………………..
Associate:
Date: 8 June 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as De Vries & Booth
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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