Downs and Seabridge

[2016] FCCA 2102

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWNS & SEABRIDGE [2016] FCCA 2102

Catchwords:
FAMILY LAW – Parenting – where mother relocated from (omitted) to (omitted) – where the child should live – what time the child should spend with the other parent – change of name.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Applicant: MR DOWNS

Respondent: MS SEABRIDGE

File Number: AYC 415 of 2014

Judgment of: Judge Altobelli

Hearing date: 2 November 2016

Date of Last Submission: 5 September 2016

Delivered at: Sydney

Delivered on: 3 November 2016

REPRESENTATION

Counsel for the Applicant: Ms Dart

Solicitors for the Applicant: Belbridge Hague

Counsel for the Respondent: Mr Lawrence

Solicitors for the Respondent: MDV Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Cooke

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Nowra Family Law

ORDERS

THE COURT ORDERS THAT:

1. All previous parenting orders be and hereby are discharged.

2. No orders be made in relation to the child X (hereafter referred to as “X”) born on (omitted) 2006.

3. The child Y (hereafter referred to as “the child”) born on (omitted) 2014 shall live with the Mother.

4. The parents shall have equal shared parental responsibility for the child.

5. The child shall spend time with the Father as follows:-

   (a)From the making of these orders until 6 January 2017, from 10.00am to 5.00pm on Friday, Saturday and Sunday on each alternate weekend with time to take place as follows:-

   (i)Y shall spend time with his father in the (omitted) Area on the first weekend of each four-weekly cycle and to give full effect to this order the mother is to transport Y to (omitted) for the purpose of these visits.

   (ii)Y shall spend time with his father in the (omitted) Area on the third weekend of each four-weekly cycle.

   (b)From 6 January 2017 to 19 February 2017:-

   (i)On the weekend commencing 6 January 2017 with time to take place in the (omitted) Area:-

   A.From 10.00am on Friday 6 January 2017 to 12.00noon on Saturday 7 January 2017;

   B.From 8.00am to 3.00pm on Sunday 8 January 2017.

   (ii)On the weekend commencing 20 January 2017 with time to take place in the (omitted) Area:-

   A.From 10.00am Friday 20 January 2017 to 12.00noon on Saturday 21 January 2017;

   B.From 8.00am to 3.00pm on Sunday 22 January 2017.

   (iii)On the weekend commencing 3 February 2017 with time to take place in the (omitted) Area:-

   A.From 10.00am Friday 3 February 2017 to 3.00pm on Saturday 4 February 2017;

   B.From 8.00am to 3.00pm on Sunday 5 February 2017.

   (iv)On the weekend commencing 17 February 2017 with time to take place in the (omitted) Area:-

   A.From 10.00am Friday 17 February 2017 to 5.00pm on Saturday 18 February 2017;

   B.From 8.00am to 3.00pm on Sunday 19 February 2017.

   (c)From 3 March 2017 to 12 April 2018:-

   (i)From 12.00 noon Friday to 12.00noon Sunday on the first weekend of each calendar month;

   (ii)From 12.00noon Friday to 12.00 noon Sunday on the third weekend of each calendar month, with time to take place in the (omitted) Area;

   (iii)From 9.00am Good Friday 2017 to 12.00noon Easter Sunday 2017, with time to take place in the (omitted) Area;

   (iv)From 12.00noon on 22 December 2017 to 12.00noon on 25 December 2017, with time to take place in the (omitted) Area.

   (d)From 12 April 2018 until the child commences school:-

   (i)From 12.00 noon Thursday to 5.00pm Sunday on the first weekend of each calendar month;

   (ii)From 12.00noon Friday to 12.00 noon Sunday on the third weekend of each calendar month, with time to take place in the (omitted) Area;

   (iii)At Christmas:-

   A.From 12.00noon on 23 December to 12.00noon on 26 December in years ending in an odd number, with time to take place in the (omitted) Area;

   B.From 12.00noon on 22 December to 12.00noon on 24 December in years ending in an even number, with time to take place in the (omitted) Area.

   (iv)At Easter:-

   A.From 9.00am Good Friday to 5.00pm Easter Saturday in years ending in an even number, with time to take place in the (omitted) Area;

   B.From 9.00am Good Friday to 5.00pm Easter Sunday in years ending in an odd number, with time to take place in the (omitted) Area.

   (e)Upon the child commencing school:-

   (i)During all NSW school term periods, from 9.00am Saturday to 12.00 noon Sunday on the first weekend of each calendar month, with time to take place in the (omitted) Area;

   (ii)From 12.00noon on the first Saturday to 12.00noon on the middle Sunday of the April and June/July school holiday periods in each year ending in an even number;

   (iii)From 12.00noon on the middle Saturday to 12.00noon on the last Sunday of the April and June/July school holiday periods in each year ending in an odd number;

   (iv)From 12.00noon on the first Saturday to 12.00non on the last Sunday on the September/October school holidays in each year;

   (v)For the first half of the December/January school holidays commencing in years ending in an even number and for the second half of the December/January school holidays commencing in years ending in and odd number.  To give full effect to this order, school holidays are deemed to commence at 12.00noon on the first Saturday after the conclusion of Term 4 and conclude at 12.00noon on the last Sunday prior to the commencement of Term 1.  The changeover on the middle day is to occur at 12.00noon.

(f)Additional Time in (omitted) Area

(i)For one additional weekend in each calendar month at times and dates and location of time to be agreed between the mother and father in writing and failing agreement then as follows and under the following conditions:-

A.All additional time under 5(k) is to take place in the (omitted) Area;

B.The father is to provide the mother with not less than four weeks written notice of the additional weekend date;

C.The commencement and conclusion times are to be as follows:-

(a)   From the making of these orders until 6 January 2017, the changeover times are to be 10.00am to 5.00pm on Friday, Saturday and Sunday;

(b)  From 6 January 2017 to 19 February 2017, the changeover times are to be from 10.00am on Friday to 12.00noon on Saturday and from 10.00am to 5.00pm on Sunday;

(c)  From 3 March 2017 and thereafter changeover times are to be from 12.00 noon Friday to 12.00noon Sunday.

(d)  Any weekend nominated under Order 5(k) cannot include Mother’s Day, Christmas Day, Good Friday, Easter Sunday, the child’s birthday ((omitted)), the mother’s birthday ((omitted)) or X’s birthday ((omitted)).

1. The Mother be at liberty to nominate up to 4 weekends in each year as being unsuitable dates for the child to spend additional time with the father pursuant to Order 5(k) and to give full effect to this order the mother must provide no less than 5 week’s written notice to the father of the unsuitable weekend dates.

2. The parents are to do all things necessary to changeover the child as follows:-

   (a)Changeovers for the time that is to take place in the (omitted) Area is to take place at the (omitted) McDonalds Family Restaurant at the commencement and conclusion of this time.

   (b)Changeovers for the time that is stipulated to take place in the (omitted) Area under Orders 5(a) to 5(f) inclusive is to take place at the paternal grandmother’s residence at the commencement and conclusion of this time.

   (c)Changeovers for all other time is to take place at the (omitted) McDonalds Family Restaurant at the commencement and conclusion of all other time.

3. The child is to have communication with the Father on each Tuesday and Thursday at 7.00pm with communication to be by Skype, if available, and if not then by telephone, with the father to initiate the Skype or telephone call and the with the mother to facilitate the child to accept the Skype or telephone call.

4. The parents shall each ensure that the other parent is kept informed of the following:-

   (a)Any medical problems or illness suffered by the child whilst in their care as soon as practicable;

   (b)Any hospital admissions for the child as soon as practicable

   (c)Any medications that have been prescribed for the child whilst in their care as soon as practicable;

   (d)Any change to their residential address within 24 hours of such change occurring;

   (e)Any change to their mobile telephone number or Skype address within 24 hours of such change occurring.

5. Each parent do all things necessary to irrevocably authorise Y’s day-care, pre-school and school, and all medical practitioners, psychiatrists, psychologists, therapists, counsellors and any other health care professional attended upon by the child to liaise with, consult with and provide information to the other parent at the other parent’s own cost.

6. The parents shall each be authorised to liaise with, attend upon and/or receive information, school reports, merit cards, school photo order forms and any other written material intended for parents from any school in which the child attends.

7. Each parent be and hereby are restrained from consuming or being under the influence of an illicit substance or from allowing the child to be in the presence of any other person consuming or under the influence of an illicit substance.

8. Each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each parent do all things necessary to remove the child from any other person so doing.

9. The Mother be and hereby is restrained from relocating her place of residence outside of the (omitted) Area without the written consent of the father.

10. The Father is authorised to apply to the Registrar of Birth, Deaths and Marriages to change the surname of the child Y born (omitted) 2014 to “Downs-Seabridge”.

11. Pursuant to section 28 (5) of the Birth Deaths and Marriages Act 1995 (NSW), the Registrar of Births, Deaths and Marriages is to register the child’s name as Y.

12. The parties be and hereby are restrained from using any other surname for the child other than Downs-Seabridge. 

13. Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

14. Pursuant to s.65DA(2) of the 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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

15. To assist the Mother with compliance with Orders that involve her travelling to (omitted) for the purposes of Y spending time with the Father, the Father shall pay to the Mother $300 no later than 7 days prior to the ordered time, provided no payment shall exceed $300 each calendar month.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

AYC 415 of 2014

MR DOWNS

Applicant

And

MS SEABRIDGE

Respondent

REASONS FOR JUDGMENT

1. This case is about a child, Y, born (omitted) 2014.  Y is 2 years old and currently lives with his mother in (omitted) and spends time with his father in (omitted) and (omitted).  These reasons for judgment explain why the Court has ordered that Y should continue to live with his mother in (omitted) and spend time with his father, both in (omitted) and (omitted).

Background

1. Up until shortly before the final hearing which took place on 25, 26 and 27 July, the Father’s application also related to the Mother’s daughter from a previous relationship, X, known as X.  X was born on (omitted) 2006.  She is 10 and a-half years old.  She is the Mother’s daughter of a relationship with Mr J.  He was given notice of the proceedings but did not participate the same.  It is clear from the Father’s case up until shortly before the hearing that he regarded X as being his psychological child with whom he had an important and strong relationship.  In any event, he did not press for orders in relation to X, but his case was conducted on the basis that X had an important relationship with Y. 

2. Y’s parents met in (omitted) 2012.  Y was conceived in or about (omitted) 2013 and born in (omitted) 2014.  His parents never cohabited.  Shortly after he was born, the Mother took Y and X and relocated from (omitted), where all the parties had been living at the time, to (omitted).  The Father says that this was done without his consent.  The Mother says that she gave him at least two weeks’ notice, and that he did not oppose the move.  Whilst the Court prefers the Father’s evidence to that of the Mother in this regard, in the end result nothing turns on this.

3. In September 2014, coinciding with the Mother’s relocation to (omitted), the Father commenced proceedings in the Federal Circuit Court in Albury asking for Y to be returned to the (omitted) region.

4. The matter came before his Honour Judge Harman who on 17 October 2014 made orders  to the following effect: -

   Each parent to have parental responsibility of Y whilst he is in their respective care

   Pending further order, Y shall live with the Mother

   Pending further order, Y shall spend time with the Father:

   Every 4th weekend from 10 am to 5 pm on Friday,

   Saturday and Sunday

   The Mother shall transport Y to (omitted) for the purpose of those visits

   Changeover shall occur in (omitted) as agreed between the parents.

   From 10 am to 5 pm on Friday, Saturday and Sunday of any weekend when Mr Downs is able to travel and remain in the (omitted) area, with changeover to occur at the Mother’s home.

   By consent, each parent shall forthwith and within 7 days of today’s date do all things, sign all documents and give all consents, authorities and instructions necessary to cause registration of Y’s birth if same has not already occurred and/or to including upon Y’s birth registration record, the father’s details.

   S13C – each party to undertake intake at (omitted) and (omitted) FRC for the purpose of assessment as to suitability for the provision of family counselling and FDR services and thereafter partake in such services offered

   Proceedings transferred to Wollongong Registry of the FCC for mention on 27 November 2014.

5. The implementation of the orders was not without its problems. 

6. It is common ground that the geographical distance between (omitted) and (omitted) is over 500 kilometres and that the travelling time can be between five and six hours.

7. Pursuant to the orders made by his Honour Judge Harman, the Father did travel to (omitted) to spend time with Y many times.  The Mother complied with the orders, for the most part, but did not make Y available to spend time with the Father in (omitted) in May 2015, June 2015, August 2015, December 2015 and in January 2016 she limited Y’s time with his father.

8. There was an issue between the parties about the financial assistance that the Father pay for the Mother’s travelling expenses to (omitted), pursuant to the Court orders.  The matter was ultimately resolved by way of interim consent orders made 9 February 2016 in which the parents agreed that, pending the final hearing commencing on 25 July 2016, the Father pay to the Mother $300 per month to assist her with compliance with the orders made by the Court on 17 October 2014. 

9. The parties agreed that the payment be made on or before the Wednesday before the Mother was due to travel to (omitted).  The parties also agreed that the Mother provide the Father with receipts evidencing the expenditure of the $300 within seven days of the contact event concluding.  This was the arrangement in play as at the date of the final hearing.  The Court notes that the parties expressly agreed that the payment would only be made “until 25 July 2016”. 

10. No submissions were made at the close of the evidence that this order be extended on an interim basis, pending judgment.  The provision of financial assistance by the Father to the Mother, in order to implement orders for Y to spend with him, was an issue at the final hearing.

11. When his Honour Judge Harman made the original interim orders, the consumption by both parents of drugs was an issue.  His Honour made orders for drug testing.  As a result of the drug testing undertaken, it appears to the Court (and this is reflected in the manner in which the parents conducted the hearing) that the consumption of drugs was no longer an issue in this case. 

The Competing Proposals

1. Y was represented by an Independent Children’s Lawyer, Ms Ung.  Mr Cooke of Counsel appeared on behalf of the Independent Children’s Lawyer at the hearing.  The Independent Children’s Lawyer’s proposed minute of order is reproduced in the first schedule to these reasons.  In short, the orders proposed that Y continue to live with the Mother, that the parents have equal shared parental responsibility, and that Y spends time with his father on a gradually increasing basis, both in (omitted) and in (omitted). 

2. The Independent Children’s Lawyer’s proposal is very detailed and proposes the gradual escalation of Y’s time with the his father over five stages (until 6 January 2017;  then to 19 February 2017;  then to 12 April 2018;  from 12 April 2017 until Y commences school;  and, finally, upon the commencement of school). 

3. The Independent Children’s Lawyer also proposed orders that the Mother be restrained from relocating her place of residence outside of the (omitted) area without the Father’s written consent.  She also supported the Father’s application that Y’s surname be changed to “Downs-Seabridge”.

4. For the most part, it should be noted, the Independent Children’s Lawyer’s proposal reflects the expert evidence that was given by Dr A, a consultant child, family and adult psychiatrist.  Dr A’s report, dated 12 June 2015, was in evidence and will be discussed below.

5. In relation to the name change issue, it should be noted that in cross-examination the Mother’s opposition to the Father’s proposal appeared lukewarm at best, and, thus, this issue will not attract considerable attention in the reasons that follow.

6. The Father’s proposal is contained in his further amended application filed 7 July 2016.  The orders that he seeks are reproduced in the second schedule to these reasons.  In addition to the name change, he sought orders in relation to Y that depended on whether the Mother relocated back to the (omitted) area or not.  If she relocated, the order was that she do so within eight weeks and that Y live with both his father and mother.  Insofar as Y lived with his father, the proposal was that the time gradually increase from the current arrangement to incorporate overnight time, with further increases at age 4, 5, and when he attends school.  By the time that Y started school, he would be in an equal shared care arrangement between the parents.  The Father offered to pay the Mother’s first four weeks’ rent, up to $3,000, as well as $1,000 to assist in the costs of relocation. 

7. Should the Mother not relocate back to the (omitted) area, he proposed that Y live with him, and spend time with the Mother every third weekend from 5.00pm Friday to 5.00pm Saturday, and then time during the school holidays.  No orders were sought in relation to X. 

8. It was common ground at the hearing that the Mother did not want to relocate back to the (omitted) area, and would not do so.  She had her reasons.  What is significant from the Court’s perspective, however, is that the Father’s case was not conducted on the basis that the Mother should be coercively ordered to relocate back to (omitted).  Rather, his case was that if she would not return voluntarily, such would be the Court’s concerns about her attitudes towards Y’s relationship with his father, as well as towards her responsibilities as a parent, that the Court would seriously consider reversing the existing lives-with arrangement. 

1. The final orders sought by the Mother were contained in her case outline document dated 19 July 2016.  The orders are reproduced in the third schedule to these reasons.  She proposed that she have sole parental responsibility for Y and that he live with her.  She proposed orders for Y to spend time with his father on an incremental basis, using the milestones of his third birthday and then when he attends school. 

2. Until Y’s third birthday, he would spend time with his father during school holidays for one weekend in (omitted), but daytimes only, and then two weekends each month in the (omitted) area, again, for daytimes only.  From his third birthday, overnight time would be introduced in the (omitted) area four times each year, and in the (omitted) area, two weekends each month.  Once he started school, Y would spend time with his father for half of all the short school holidays, and one weekend during the school term in the (omitted) area.

3. The Mother specifically sought an order to assist her with complying with those orders that required her to travel to (omitted) by payment to her of $300 no later than seven days prior to the scheduled contact occurring. 

4. The Mother’s proposal contemplated the possibility of the Father relocating closer to the Mother’s home, and she makes a detailed proposal about the Father’s time in those circumstances.  The evidence created the strong impression, however, that the Father was unlikely to relocate to the (omitted) area in order to be closer to Y’s home, because of his work commitments, and very strong family ties in the (omitted) region.  The Mother was represented by her solicitor, Ms Vine, and her Counsel Mr Lawrence. 

The evidence

1. In the Independent Children’s Lawyer’s case, evidence was given by Dr A.  His expert’s report was in evidence.  He was extensively cross-examined.  His evidence will be dealt with before that of the parents and their witnesses, simply because his evidence was both independent, and expert.  It does not necessarily mean that his evidence will carry any greater weight than that of the other witnesses. The discussion of his evidence also provided a convenient opportunity to discuss, and assess, the evidence given by the parents.

2. In the Father’s case, he relied on his affidavit sworn 4 July 2016, and that of the paternal grandmother, Ms D, sworn 1 July 2016.

3. In the Mother’s case, she relied on her affidavit sworn 7 July 2016, and that of the material grandmother, Ms N, also sworn that date.

4. All of the lay witnesses were cross-examined.  A number of general observations can be made about their evidence.  These observations colour the Court’s treatment of the evidence set out below.

5. The Father impressed as genuinely concerned about the welfare of his son, Y, and wanting to do the best he could for him.  He clearly meant well.  It was apparent from all the evidence, however, that even when he spent time with Y, the vast majority of it was spent in the company of other members of his family, particularly when the time took place in (omitted). 

6. Whilst all of his interactions with Y were appropriate and indeed quality interactions, his opportunity to be involved in Y’s life has been limited.  He failed to take advantage of the opportunities given to him in cross-examination to demonstrate a more than superficial insight into Y’s short, medium and long-term needs.  For example, he clearly could not, or would not, understand the emotional impacts on Y if the Court were to accept his proposal that Y live with him. 

7. When pressed in cross-examination to explain the rationale for progressively increasing his time with Y, including overnights, it became apparent to the Court that he did not actually think it was necessary for Y, despite the recommendations from the expert which were, no doubt in part, reflected in his own proposals to the Court. 

8. This is regrettable because his proposal otherwise demonstrated careful consideration and a serious effort to adopt a child focus. Alas, this may well reflect good legal advice rather than any genuine belief by the Father that Y’s developmental needs and attachment relationships actually mandated a very carefully considered incremental approach to spending more time with his father. 

9. Nonetheless, the Father impressed the Court as being genuine and wanting to have a long-term, ongoing, meaningful relationship with his son in whatever circumstances might arise.  He at no time conveyed the impression of having any negative feelings towards the Mother, and there is no doubt in the Court’s mind that in terms of Y’s relationship with his mother, the Father has an entirely appropriate, positive and supportive attitude. 

10. The Father impressed the Court by the way in which he gave his evidence in a very matter of fact and responsive manner.  He was frank about his past problems with cannabis use, and the Court accepts his evidence that these are past issues, and present no risk to Y.  The Court accepts the Father’s evidence. 

11. Before turning to consider the Mother’s evidence, findings can be made about both of them in terms of their relationship with each other.  The parents cannot communicate.  They do not trust each other, but this lack of trust is not shared equally, with the Mother’s distrust of the Father palpably greater than the reverse.  Whilst there was probably a high level of conflict between them as from separation – which the Court finds was primarily fuelled by the Mother’s relocation – that conflict which was often manifested at changeover seems to have settled down, perhaps because of the ongoing scrutiny of the Court proceedings.

12. Whereas the Father was quite an impressive witness, the Mother was not.  Her disdain for him both as a person, and as Y’s father was manifest not just in what she said, and how she said it, but her demeanour throughout the hearing.  For example, she could not bear to look at him in the witness box and studiously looked anywhere but where he was.  Consistent with Dr A’s observations of the Mother (to be discussed below) she was at times dismissive and flippant about the seriousness of the proceedings, sometimes to the point of being plainly disrespectful of the Court, its processes and the importance of these proceedings to her son. 

13. She resented the litigation, and considered it an unacceptable invasion into her privacy and life.  It was her view that the Father was “using the case to punish [her]”.  She was manifestly affronted by the Father’s application in relation to her daughter X, an affront and indignation that had not waned after the Father amended his application so that no orders were sought in relation to X. 

14. She was frequently unresponsive in cross-examination.  There was nothing positive, or of any significance, that she could say about the Father, or what he could offer in Y’s life.  She perceives him to be “a fucking nutcase”, a view that she maintained during cross-examination, but which is somewhat inconsistent with her own proposal to the Court.  Her loathing for him was barely disguised.  There was a smugness in her evidence that was perplexing. 

15. The Court formed the strong impression that the Mother felt she had the capacity to do whatever she wanted, with little deference to Court orders, or what anybody else’s views were in relation to the best interests of her son.  It was plainly evident not just from her evidence, but the manner in which she gave it, that she would, under no circumstances, return to live in (omitted). 

16. There was a sense, at times, in which her smugness and arrogance was almost an invitation to the Court to make the orders, as she would not comply, and the Court would then have to consider reversing the existing arrangements for Y.  Her arrogance in the witness box manifested a belief, nonetheless, that the Court would not make an order that was not in her son’s best interest, despite her own attitude.  It would be an understatement to say that she was ambivalent about the importance of Y’s relationship with his father.  A more accurate description would be indifferent. 

17. She presented as a bitter, angry and resentful woman.  She doubted if there was “any hope of (the Father) being of use or relevance” to Y.  For the Mother, this case was all about her needs, and not her son’s needs.  When confronted in cross-examination with some of the obvious limitations of her own past parenting, she minimised the same whilst deflecting and seeking to exaggerate the Father’s parenting limitations. 

18. If it were a race to determine which of the parents lacked the greatest insight into their son, there is no doubt that the Mother would win by a considerable distance.  It is no wonder that Counsel for the Independent Children’s Lawyer submitted that, in effect, whilst this was not the right time to reverse the existing arrangements for Y, should the Mother not comply with the orders, the matter would need to be carefully reconsidered. 

19. The Mother would do well to carefully listen to what the Independent Children’s Lawyer said, and to take it to heart.  Nonetheless, and whilst the Court has been scathingly critical of the Mother, if one set asides her abhorrent attitudes towards her responsibility as a parent to foster Y’s relationship with his father, there is no question that Y enjoys his main attachment with her, and that the Mother has more than adequately provided for his remaining needs. 

20. The paternal grandmother, Ms D, was certainly the most impressive witness in the case.  Y is very lucky to have her in his life.  She had a greater insight into her son’s limitations as a full-time carer than the Father did.  She impressed the Court, however, as being unequivocally, unreservedly, committed to, as well as ready, willing and able to, provide support to her son, and to Y, in their relationship with one another.

21. The maternal grandmother, Ms N, was a less impressive witness.  The Court did not have the same sense that she would remain a pillar in Y’s life, or even in the Mother’s life, in the same way that the paternal grandmother would.  She simply did not impress as a reliable witness, or alternate carer for Y.  She manifested an enmity towards the Father, consistent with that of the Mother (though not to the same degree) which was unmatched by either the Father, or the paternal grandmother towards her.

22. What became clear from the maternal grandmother’s evidence, and certainly that of the Mother, is that they had no reservations in exposing X to, and including her, in wholly inappropriate discussions about matters before the Court, and recruiting X in a campaign of denigration against the Father.  Fortunately for X, this campaign failed, as is manifested by Dr A’s observations of X with the paternal family.  

23. Nonetheless, it demonstrates the maternal grandmother’s lack of insight, and the extent to which she has bought into the Mother’s case without in any way questioning the reality of the picture that was no doubt painted by the Mother in relation to the Father.  Whilst the Court is satisfied that the maternal grandmother will be there for the Mother and thus for both X and Y, the Court cannot be certain how long this will continue into the future.

Submissions

1. At the conclusion of the evidence the Independent Children’s Lawyer made oral submissions. Both parents then submitted written submissions. All of the submissions were very helpful to the Court.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     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.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     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.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (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;

   (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);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (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;

   (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;

   (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;

   (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;

   (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;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (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;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The Evidence of Dr A, the Court Appointed Expert

1. Dr A’s report dated 12 June 2015 was based on interviews held on 11 and 12 May 2015.  He met with both parents, Y and X, as well as both the maternal and paternal grandmother.  He had available to him all of the affidavits that were filed as at that date, together with copies of all the documents produced on subpoena as at that date.  What the Court considers to be the relevant aspects of Dr A’s reports will be set out below, together with some comments or observations.

2. He met with the Mother and found her to be “initially over-familiar and mocking in her approach to the assessment.” She told Dr A that she found this “all a joke.”  She was frustrated and irritated with the assessment process and anxious about Court.  She acknowledged this herself. “She was dismissive and minimising of her relationship with Y’s father, Mr Downs and his rural family, referring to them as “noxious, arrogant, rural, chauvinist, racist with subservient women”. (Paragraph 5).

3. In the context of her upbringing, she described her experience of the maternal grandmother as “an emotional retard”, very strong, repressive, cool and not overly affectionate.  Dr A observed that “this was a striking description of the woman that she referred to as ‘Mum’ and relied on as her primary emotional support.”  In cross-examination, however, Dr A clarified that the Mother was describing her own upbringing and not her current relationship with her mother.

4. The Mother acknowledged her history of poly substance abuse particularly as a young adult.  She was a heroin addict and a drunk.  She agreed that during a drunken wild night she was given intravenous amphetamines and developed hepatitis C, for which she continues to be treated.

5. Dr A records at paragraph 85 and 86 as follows:

   85.When asked about additional issues, Ms Seabridge stated that she was disconcerted by Mr Downs’s “fake” behaviour.  Although X had always liked Mrs Downs, they had never been close.  X envied Mrs Downs’s grandchildren and had wanted to be involved.  Ms Seabridge was thus surprised to hear that X happily sat on Mrs Downs’s lap.  She viewed this as “very bizarre”.

   86.Ms Seabridge questioned the nature of the assessment and how it was possible to form an opinion given that the father’s statements to the Court had been “crap” and “ridiculous”. 

6. At paragraphs 92 – 94, he makes some further important observations about her:

   92.The stability of the environment which Ms Seabridge had provided for the children was explored.  She had lived in five different locations with X. X had attended three different schools.  There had been difficulties with the other children at her first school, (omitted).  X had thus moved to (omitted), which offered a (omitted) program which had worked well.  Although this had been good educationally, she had failed to make close friends.  Ms Seabridge emphasised that now that she was in (omitted), she was not moving again. 

   93.Ms Seabridge returned to the report writer’s lack of appreciation of “the enormity of the head/mind fuck” by Mr Downs.  “If he cared … he wasn’t there.  This is a crock of …”  Ms Seabridge again referred to her dislike of the assessment process and lack of trust in the outcome.  She dismissed the “army of crap” which had been submitted to the Court.  She added: “This is just craziness!”

   94.During her four years in (omitted), Ms Seabridge had never had paid work and had difficulty in establishing housing.  She was optimistic that work would be available in (omitted), while acknowledging that it had the same unemployment rate.  She hoped that the tourist flow would enable her to pursue her interest in (omitted).  Nonetheless, her first priority was her health.  Her mother would stay with her in (omitted) for however long she was required. When concern was raised regarding the multiple changes of environment for X and the impact upon her development, Ms Seabridge contemptuously responded: “That disgusts me!”  She went on to state that X was happier at her school in (omitted) than she had ever been.  She was enrolled in (hobby omitted) and was able to go to the beach.  She loved it there.

7. The Court notes that the Mother’s attitude as observed, and recorded by Dr A, was plainly apparent to the Court when she gave her evidence.

8. The Paternal Grandmother was interviewed.  She made a positive impression on Dr A.

9. The Father was re-interviewed.  At paragraphs 110 – 112, Dr A explores some of the Mother’s allegations against him:

   110.Mr Downs further detailed his frustration at the obstacles placed in his path by Ms Seabridge during his attempts to maintain contact with his son. Although he would try to be friendly at handovers but Ms N would respond in a curt manner. Ms N appeared unaware of discussions regarding alternative arrangements with Ms Seabridge.  Ms Seabridge had been angry, screaming expletives, when he had contacted Ms N directly. Ms N appeared irritated that he did not have consent to ring her directly.

   111.When pregnant with Y, Ms Seabridge had finally received a Housing Commission home unit after years on the waiting list.  Nonetheless, she had let this go. When he and his family offered help with the relocation, she had rejected this. This could be regarded to be tacit support for her decision. Instead, she had relied upon a Church charity, incorrectly stating that she had no one else to help.  He emphasised that his family had provided a lot of support, including child care, for Ms Seabridge while she was resided in (omitted).  He was willing to reduce his working hours to be available.  He spoke with empathy about the challenge of being a full-time carer for Y.  He remained motivated to share more in his son’s life. 

   112.Mr Downs’s gambling habits were explored in detail.  He acknowledged that at times he would spend $50 on poker machines.  He dismissed any suggestion that he had incurred $8,000 worth of debts, but acknowledged that he had been in arrears for $5,000 given a cancelled work contract.  He gave a detailed account of these circumstances.  He also acknowledged that the electricity had been cut off at the time as he was short of money.  He continued to help X and Ms Seabridge during this period.  He emphasised that he and his brother were resourceful people and were unaffected by the lack of electricity supply.

10. Dr A then addressed the terms of reference of his report.  He was unable to identify any significant risk to the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.  Both children presented as well-cared for.  Their interactions with their parents and grandparents were positive, and inconsistent with any allegation of harm.  Dr A acknowledged, however, that there were contested allegations in respect of which he was unable to make any comments.  Of course, the Court has had the benefit of all of the evidence before the Court, including that of both parents under cross-examination, and it, likewise, reaches the conclusion that, even based on the contested allegations, there is no risk of harm to these children from being subjected to, or exposed to abuse, neglect of family violence.

11. Dr A reported on the views expressed by the children.  Y was only 13 months old at the time of the interview, and whilst positive interactions were observed between Y and all of the significant adults in his life present at the interview, he certainly did not have the capacity to express any views.  The report covers the views expressed by X, as that was a contested issue at the time.  Dr A records that it was plainly evident to him that the issues before the Court had been discussed with X by her mother, “which had in turn impacted on her views. She was strongly motivated to remain in her mother’s case.” (Paragraph 118.)

12. The opinion by Dr A that X had been a participant in quite inappropriate discussions is a finding the Court makes and is consistent with the evidence of both the Mother, and the maternal grandmother.  The issue here is not so much X’s views, which are not only irrelevant but plainly unreliable because of the maternal influence, but rather on the Mother’s attitudes and insights.

13. In regards to the relationship between the children and each of their parents and grandparents, Dr A reports at paragraphs 120 – 121:

    120.A close and highly attuned relationship was observed between X and her mother.  Numerous positive and enthusiastic interactions were also observed between X and her maternal grandmother, Mr Downs and his mother, Mrs Downs.  Her presentation was inconsistent with the allegations of the mother and maternal grandmother that X was anxious and avoidant of Mr Downs.  The mother was surprised by the comfort, ease and enthusiasm in their interactions.  X sat smiling broadly on Mrs Downs’s lap, enthusiastically engaging in conversation.  According to the mother, this was inconsistent with previous interactions.

    121.Y was a bright enthusiastic 13-month-old infant with positive, engaged and highly attuned interactions with his mother, maternal grandmother, sister, father and paternal grandmother.  There was no indication that he was anxious or traumatised.  He did not suffer from Separation Anxiety.  A secure attachment was observed between Y and his mother, with positive secondary attachments with the other parties.  X was seen to be a loving and engaged older sister to her baby brother.

14. It is important to recognise, and record the professional opinion of the Court-appointed expert that Y was securely attached to his mother, and that his other relationships, including with the Father, was a “positive secondary attachment”.  Dr A maintained this view in cross-examination.  No other evidence was led before the Court which would lead it to make a finding contrary to Dr A’s professional opinion.

15. At paragraphs 122 – 124, Dr A deals with a term of reference he was given to explore the willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other party. This, of course, is not an additional consideration under section 60CC, but the evidence is clearly relevant to the issue of parental attitudes and responsibilities, and will thus be reproduced in that context:

    122.The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other party:

    123.The mother justified her reluctance to support a relationship between the children and the father and his extended family.  She provided extensive information consistent with her Affidavit material.  She viewed him to be neglectful, unreliable, a chronic user of cannabis, possibly on the Autistic Spectrum without the capacity to be a consistent supportive parent or partner.  She viewed him to be neglectful of the family’s needs.  She thus decided that there was no benefit for the children to remain in (omitted). She needed the support of her stepmother, but Ms N was unwilling to relocate south of (omitted). They had agreed to relocate there together.  It was alleged by the father and paternal grandmother that this was enacted in a precipitous fashion, without discussion or planning.  This was disputed by the mother who asserted that there had been discussion prior to the move.  Although she asserted that there would be regular and easy contact between Y and his father as (omitted) was “just over the hill”, it was evident that current regular weekend contact arrangements were disruptive, stressful, expensive and unsustainable.  The mother blamed the father for this and took no responsibility for these circumstances.  She was quick to debate feedback and justified her unwillingness to facilitate and encourage a close and continuing relationship between Y and the father.  She opposed an ongoing relationship between X and Mr Downs and his family. She diminished any existing positive engagement despite this being evident during the assessment. 

    124.The father and paternal grandmother were respectful of the children’s relationship with their mother.  The father’s Application for primary residence was a response to the mother’s relocation to (omitted), indicative of his motivation to be a significant figure in his son’s life.  He also expressed care and concern for X, despite acknowledging that he had no biological right to have X’s primary care.  He recognised the importance of not separating the siblings.

16. In cross-examination, the Mother indeed confirmed that at the time she moved from (omitted) to (omitted) she had regarded the prospect of regular and easy contact between Y and his father in terms of (omitted) being “just over the hill”.  That was plainly disingenuous of her.  It reflected a significant lack of insight on her part as to the potential impact on Y of her relocation so far away, in circumstances where she must have known, or should reasonably have known, that her relocation would expose him to the need for considerable travel. 

17. The Court specifically rejects the contention made by her Counsel that the Mother did not know what travel would be involved.  Bear in mind that a significant part of her case supposedly focused on the adverse effects on Y of the travel between (omitted) and (omitted).  It is simply implausible to suggest, as her Counsel did, that she simply did not know at the time she relocated.  Even if that were the case, though the Court rejects this, the fact is she should have known, and she should have considered the impact of travel on him.

18. Moreover, the Court accepts Dr A’s observations that the Mother blamed the Father for her need to relocate and took no responsibility for these circumstances, as being entirely consistent with the evidence.  When the Mother was systematically challenged in cross-examination about the reasons of the relocation, including work prospects, better accommodation, closer to her mother, the only reason that really survived critical scrutiny was the Mother’s acknowledgement that at least one of her reasons was to get away from the Father.

19. Furthermore, Dr A’s observation that the Mother opposed an ongoing relationship between X, and the Father and his family, is plainly evident from her evidence. 

20. Dr A was asked to consider the likely effect of any changes in the children’s circumstances, including of separation from parents and any other significant adults in their lives.  He deals with this at paragraph 126, clearly dealing with both children:

    126.The children’s removal from their mother as their primary carer, would an overwhelming experience of separation and loss, particularly for X.  It would be disruptive of the secure primary attachment relationship for Y. This would not be in their best interests.  The children’s removal from their mother would have a long-term impact on their emotional development, which would be characterised by initial regression and subsequent emotional vulnerability.

21. The Father’s Counsel’s cross-examination of Dr A on the issue of whether it could be in the best interests of Y to be placed in his father’s care was expertly done, but Dr A would not change his view.  To remove Y from his mother’s care would disrupt his secure primary attachment to her, and place him into the relatively unknown situation of his father, and the paternal family. Dr A was quite dogmatic about this – this would not be in the best interests of Y.  This remained the case even though, it should be noted, Dr A was scathing of the Mother’s attitudes as regards Y’s relationship with his father.

22. Dr A commented on parental capacity.  He found that both parents were seen to have capacity to respond to Y’s emotional and intellectual needs.  He was aware of the concerns raised by the Father in this regard.  He made the quite strong point that the “children’s positive developmental trajectory was inconsistent with exposure to substantive neglect or abuse.”  (paragraph 128).

23. Dr A deals with the Mother’s allegations about the Father, at paragraph 129:

    129.The mother alleged that the father lacked interest, motivation, attention and connection with the children.  This was reportedly exacerbated by his chronic cannabis use. Although there was no evidence that the father had recently imbibed cannabis his acknowledged chronic use was likely to have had a significant impact.  During the assessment, he was observed to be relaxed, attuned and responsive to the children’s needs. He was well supported by the paternal grandmother and extended paternal family.  This was acknowledged by the mother; although she expressed concern regarding the cannabis use of one of the paternal uncles.

24. It is interesting to note that the Mother maintained her concerns about the Father’s cannabis use, notwithstanding the fact that he was scrupulous about compliance with requests to produce drug tests, but she was not.  This hypocrisy did not seem to bother the Mother.  The Court is prepared to accept, in fact, that there were times before Y was actually born but was in the womb and times after he was born but before separation, when the Father could have demonstrated more interest and attention in connection with Y. 

1. The situation is, however, far more likely to be that which he asserted, than that which the Mother asserted.  That is to say the Mother rebuffed his attempts to have a greater involvement in Y’s birth, and life, but that is not to say that he could not have done more.  This is not an issue that determines this case.  The Mother’s case that the Father was disinterested in Y is rejected by the Court.  The more likely scenario is that she has sought to systematically exclude the Father from Y’s life.  She certainly has succeeded, so far as X is concerned. 

2. The risk that the Independent Children’s Lawyer pointed to, and which the Court acknowledges, is that insofar as she has succeeded in undermining X’s relationship with the Father, there is a risk that in the toxic household constituted by the Mother and the maternal grandmother, the risk exists that Y’s relationship with his father will, in the fullness of time, be undermined. 

3. And yet in contradistinction to that, the Mother advances a proposal (even if one suspects on the basis of good legal advice) that will provide a basis, perhaps a barely adequate one, for Y to continue his relationship with his father.  The best that the Court might be able to do in the circumstances of this difficult case is to make orders that facilitate the continuation of the Father’s existing meaningful relationship with Y, but to remain vigilant about anything the Mother does, says, or fails to say or do that has the effect of subverting the orders.

4. Dr A deals with parental attitudes at paragraphs 130 – 131 in the following terms:

   130.The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents or any other relevant person:

   131.The mother expressed a loving attitude towards the children and highlighted her commitment to the responsibilities of parenthood.  It was, however, concerning that she had failed to provide them with a stable residence, schooling and social network.  At the age of nine, X had attended three different schools.  The mother’s relocation of family to (omitted), given the maternal grandmother’s unwillingness to relocate further south, raised questions regarding her capacity to prioritise the children’s needs.  She was unwilling to acknowledge the impact upon the children which limited their contact with their paternal extended families.  The distance was problematic and unsustainable. She could not accept responsibility for the outcome of her relocation.  The father expressed a loving attitude towards the children. Although he asserted that he took the responsibilities of parenthood seriously, this was strongly disputed by the mother, who asserted that he lacked the capacity to prioritise the children’s needs.

5. In the passage above, he highlights some of the Mother’s deficits as a parent, deficits that she was clearly not prepared to accept in cross-examination, let alone in the course of the assessment. 

6. It must be remembered that the Court treats paragraphs 122 – 124 of Dr A’s report as being reflective of matters relating to the Mother’s attitude to the children and to the responsibilities of parenthood. 

7. Dr A observed that the children were not identified to have been exposed to family violence, and the Court accepts that this is consistent with the evidence before it. 

8. At paragraphs 134 – 135, Dr A again reiterates a problem inherent in the Father’s proposal for Y to live with him.  Dr A explains that it would be “distressing and challenging for Y and X to be separated.”  He emphasised that it was in their best interests to remain primarily within the same household.

9. Dr A considered the effect of making an equal time, or substantial and significant time order in relation to the children.  Whilst he thought that the Father, with the assistance of the paternal grandmother and extended paternal family, probably could implement an arrangement for either equal time, or substantial and significant time, he doubted very much whether the parents had the capacity to communicate with each other and to resolve difficulties that might arise in such an arrangement.  In any event, the Court doubts whether either would be reasonably practicable, in circumstances where the Mother remained in (omitted), and the Father in (omitted).

10. Dr A was asked to consider the mental state of both parents, insofar as it relates to parenting issues.  At paragraphs 139 – 40 he expresses the opinion:

    139.The mother had a vulnerable mental state in the context of her challenging developmental history, recurrent experience of separation and loss, recurrent child sexual abuse and ill health (Hepatitis C, Irritable Bowel Syndrome and the sequelae of her complicated pregnancy and delivery).  This was exacerbated by the current Family Court proceedings, which had been a source of extreme frustration and distress.  Whilst she expressed reactive emotional distress, a primary psychiatric disorder was not identified. She was not identified to have a persistent Depressive or Anxiety Disorder, Mood Disorder or psychosis.  She readily acknowledged the stress of her current circumstances, Family Court proceedings and the onerous impact of the weekend contact arrangements.

    140.The father exhibited a stable mental state. He had particular strengths related to his capacity to fix (omitted), which was both his profession and hobby, and was a talented drawer.  He was well supported by the paternal grandmother and extended family.  It was likely that his capacity to work and for domestic duties at times had been impaired by his chronic use of cannabis, as alleged.

11. Dr A’s description of the Mother’s mental state as being “vulnerable” was clearly manifest in the Mother’s evidence.  In cross-examination, however, he was forced to concede that another possible diagnosis for the Mother was borderline personality disorder, particularly in the context of her challenging developmental history, recurrent experience of separation and loss, child abuse and ill health, all seen in the context of the Mother’s behaviour in this litigation.  Even so, Dr A opined this did not mean that Y was at risk of harm in his mother’s care.

12. Dr A found both children to be of sound mental health, and not having special needs.  He also found that neither the Mother, nor the Father, appeared to be currently abusing substances including cannabis.  Both had previous dependency issues which resulted in ongoing side effects.  For the Mother, it was Hepatitis C, and for the Father Dr A recognised that “his persistent dependency on cannabis would have the capacity to impact upon his ability to prioritise the children’s developmental needs.”

13. In other words, the Court formed the impression that Dr A was concerned about relapse on the Father’s part, which could raise parenting capacity issues.  However, as the Court observed earlier in its reasons, neither party conducted the case on the basis of a risk of harm from substance abuse.  On balance, the evidence does not support findings of risk of harm arising out of either parent’s substance abuse.

14. At paragraphs 147 – 151, Dr A makes a number of recommendations:

    147.Any other matter the Court Expert considers relevant:

    148.I would recommend joint parental responsibility.

    149.I would recommend the mother’s maintenance of primary residence with Y and X.

    150.I would recommend the gradual increase in contact between Y and his father over time. The nature of this contact will depend upon the living circumstances of both parents.

    151.While I see the potential benefit in X of having ongoing contact with Mr Downs and his extended family, during visits with her brother, Y, it should be recognised that the nature of X’s relationship with the Downs extended family was not at the same level as that of her biological father and would be a source of stress and tension if ordered against her mother’s wishes.

15. In conjunction with this, at paragraph 153 he deals with issues of practical difficulty and expense associated with contact.  In this regard, he states:

    153.The maintenance of the current arrangements whereby both parties were responsible to travel between (omitted) and (omitted) had resulted in significant, ongoing and unsustainable expense and stress.  When the mother travelled to (omitted), this resulted in significant disruption to Y’s daily routine.  It further resulted in regular separations from X.  The mother had experienced stress regarding this.  This was relevant, given her vulnerable physical health in the context of Hepatitis C and requirement for chemotherapy.  The current arrangements limited the capacity for both children to have regular, ongoing contact with their paternal extended families.  It was of concern that the mother and the children lacked any social support within the (omitted) area.  The mother asserted that she would have the capacity to obtain work in the future in the (omitted) area, unlike in (omitted); however, this remained untested. The mother relied upon the support of the maternal grandmother in (omitted).  When interviewed, the maternal grandmother was unwilling to make any commitment regarding the future, simply stating that she was planning to remain in the (omitted) area until the current issues before the Court were resolved.  This was of concern given the mother’s unstable developmental history and multiple relocations throughout her life.  The maternal grandmother had only relocated to (omitted), Queensland, several years ago because she was unwilling to remain in Victoria, due to the climate.  This raised questions regarding the stability of the mother’s residence in the (omitted) area; however, she did emphasise the importance of maintaining X’s current school placement.  I would support the benefits associated with this.  Nonetheless, it would be my recommendation that the mother return to the (omitted) area to enable both children to have regular contact with their paternal extended families, without the attendant distress of maintaining a long distance relationship.

16. In cross-examination, particularly led by Mr Cooke, Counsel for the Independent Children’s Lawyer, Dr A agreed that, on balance, the Mother’s proposal for sole parental responsibility was probably more potentially problematic for the children than an order for equal shared parental responsibility in circumstances where the parents could not communicate, and had no trust for each other.  He seemed to concede that, in effect (and these are not his words) equal shared parental responsibility was the lesser of two evils in circumstances where the Mother’s pervasive attitude of negativity towards the Father could mean that sole parental responsibility would become a licence for her to legitimately exclude the Father from Y’s life. 

17. The Court entirely agrees in this regard.  The Mother needs the accountability of an equal shared parental responsibility order to at least nominally keep the Father involved in Y’s life.  To grant her sole parental responsibility would, indeed, give her the licence to implement the Mother’s manifesto of excluding the Father from Y’s life.

18. Once again, it should be noted that Dr A was firm, indeed strident in his professional opinion that Y should continue to live with his mother, obviously despite her significant deficits in parental attitudes. 

19. The Court wishes to acknowledge that its own findings about the Mother accentuate her appalling attitude towards the Father, her baseless allegations and concerns about him, and her preference for advancing her own interests thinly disguised as Y’s best interests, in relocating from (omitted) to (omitted).  The Family Law Act 1975, however, mandates that decisions are made in the best interests of children, and not on the basis of which parent is more likeable or pleasant.  For all the Mother’s inadequacies, she is Y’s primary attachment figure at his age.  Dr A strongly warns against disrupting this primary attachment, even in the circumstances of this case.  The Court agrees.  The Mother can be made accountable in other ways without creating any risk of attachment harm or disruption by reversing the existing care arrangements.  Hypothetically, the decision might have been different if Y were older, had developed a mature, more resilient attachment with his mother and father, and the Father had a better track record of quality time with his son.  The Mother would do well to consider this should she ever deign to read and think about this Court’s reasons for judgment. 

20. Subject to the other evidence before the Court, the Court accepts Dr A’s recommendation that Y continue to live with his mother.

21. At paragraph 153, Dr A considers the possibility of the Mother returning to (omitted).  He clearly sees it as the best possible outcome.  When it was made clear to him, however, that the Mother did not want to relocate, and would not relocate, it did not change his fundamental opinion that Y should continue to live with his mother, wherever she lives, subject only to the continuation of the existing relationship with his father.  Dr A recognised the importance of stability for X, particularly in terms of her school.

22. As foreshadowed earlier in these reasons, the orders proposed by the Independent Children’s Lawyer for Y’s time with his father, and its gradual progression to overnights, and then successive overnights, is based on the evidence that Dr A gave not just in his report, but in his cross-examination.  For example, in cross-examination, he indicated that overnights could start at age 3 for Y and that, in any event it was better to graduate the introduction of overnights to make the transition comfortable for Y.  This was particularly the case as the number of overnights increased.

23. The key points that Dr A made in cross-examination are summarised by the Court in the dot points below:

    ·He strongly disagreed with the submission that the removal of Y from his primary carer would not be a problem.  He described it as a “significant problem”.  He described it as a “significant stress for Y to be removed from his primary caregiver, to be removed from his sister, to be removed from the family home and other connections, such as the maternal grandmother.”  Indeed, he thought that the mere contention reflected “that the Father lacks emotional attunement to Y’s emotional and developmental needs – psychological developmental needs.”  (Transcript, Dr A, page 4, lines 34 – 43).

    ·Dr A felt that the prognosis for an improvement in the parents’ communication was poor, not just because of their personalities, orientations, how they perceive their life experience and their children’s needs, but also because of the pragmatic reality of geographical distance between them, and the need for counselling to involve both of them.  (Transcript, Dr A, page 5, lines 4 – 14).

    ·Dr A believed that the Mother’s unilateral relocation exhibited a “preoccupation with her own emotional and psychological issues, rather than having the capacity to consider the infant’s wellbeing, and rather than considering the importance with regard to both Y and X’s need to establish and maintain stable environments and relationships.”

    ·Whilst in his report he had emphasised that the best possible outcome for Y in this matter, and X too, was to return to (omitted), he conceded that he might have to change his view “if there is a new stability that has been established in (omitted).” (Transcript, page 12, lines 14 – 21).

    ·Having accepted in cross-examination that “there are signs that the Mother does have features of longstanding and pervasive maladaptive personality traits consistent with a personality disorder”,  (Transcript, page 18, lines 36 – 38) at transcript, page 20, lines 28 – 45, he would not go so far as to predict that Y would, in his mother’s care, acquire his mother’s traits. 

    ·Referring to what counsel described as the Mother’s inability to prioritise Y’s interests over her own, at transcript, page 23, lines 12 – 27, Dr A explains that this attitude reflects a view that the Mother genuinely holds, based on what she perceives to be her experience of the Father, but which seems to be inconsistent with the evidence.  In effect, rather than being malicious, it is a misguided perception, “It’s not because she is doing it to harm Y.” 

24. The Court accepts Dr A’s evidence, and his recommendations.  The Court accepts that the independent children’s lawyer’s proposed orders, reflect his recommendation.  Dr A’s observations are entirely consistent with the Court’s own observations about the witnesses.  The Court accepts Dr A’s professional opinion about the matter.  Nothing that was put to him in cross-examination undermines the Court’s view.

Orders in the best interests of Y?

1. In this section the Court will consider the evidence organised by reference to the considerations listed in s.60CC of the Act.

2. The Court is satisfied that Y has a meaningful relationship with both parents, and will continue to do so on any of the proposals before the Court. This has been achieved, and indeed maintained, despite the logistical challenges created by the Mother’s relocation. This consideration is not determinative in this case.

3. The Court is satisfied that there is no evidence before the Court which would cause it to be concerned about any risk of harm issues in the care of either parent. Dr A came to the same conclusion on the material before him. This consideration is not determinative in this case.

4. Y’s views are not determinative in this case.

5. When the totality of the evidence is considered, none of the evidence before the Court indicates any concerns about the nature of Y’s relationship with any of the persons identified in the evidence. Indeed Y seems blessed with an excellent network of relationships, starting with his parents, his sister X, the extended paternal family, and the maternal grandmother. The Court does not accept the submission made on behalf of the Father that there are concerns about the nature of Y’s relationship with his mother. There are, as will be noted below, other concerns about the Mother, but not in terms of her relationship with Y.

6. Since separation, the Court is satisfied that the Father did avail himself of every reasonable opportunity afforded to him by the Mother, to spend time and communicate with Y, and to participate in decision-making about him. The Mother was less than supportive at times, and the significance of this will be discussed below.

7. The Court is adequately satisfied that the Father has fulfilled his obligation to maintain Y. Indeed he has probably gone further than required by statute.

8. Perhaps the most important consideration in this case is the likely effect on Y of the changes proposed by the Father. Dr A firmly rejected the Father’s proposal, despite careful and sustained cross-examination by Ms Dart on the Father’s behalf. The fact is that the Mother will not return to (omitted). This means that the Father’s orders would result in Y living with him, but away from his mother, sister and grandmother. Dr A rejected this as too great a change in his life, and one unnecessary in the circumstances of this case.

9. The Court agrees. Whilst there are clear concerns about the Mother’s attitudes, as will be discussed below, at the present time those attitudes do not warrant the drastic change that the Father proposes. To remove Y from his mother, the only consistent parent in his life, and from his sister X, and from where he has lived now for a considerable time, is plainly not in his interests.

10. The Court does not share the Father’s optimism, expressed in cross-examination that Y would cope without much difficulty in any transition to his care. The Court does not accept the submissions made on the Father’s behalf that Dr A’s opinion in this regard should be minimised because he, unlike the Court, did not have the ability to see the parents in the witness box. The reality is that almost every impression Dr A formed about the parents, especially the Mother, was confirmed by that parent in the witness box.

1. Dr A’s intransigence about supporting a reversal of care arrangements in favour of the Father is entirely consistent with the evidence before the Court. It is not in Y’s interests, for the time being, to be placed in the full-time care of his father. It would be an unacceptable change for this young boy.

2. Issues of practical difficulty and expense permeate this case. And yet the parents and Y, appear to have coped relatively well with the distance and travel time between (omitted) and (omitted). These practical difficulties are not to the extent that they affect Y’s right to maintain personal relations with his father. The Court will need to adjudicate on travel expenses below.

3. Whilst each parent, in one way or another, sought to impugn or undermine the other’s capacity to provide for Y’s needs, there is no substantive basis for this. The fact is that each parent’s proposal for Y to spend time with the other is inconsistent with their stated concerns. The fact is that Y seems to be coping more than adequately, despite the parental conflict, despite the litigation, and despite the changes brought about in his life by his mother. The aggregated evidence before the Court presents a picture of a child whose physical, emotional and intellectual needs are being met by the significant adults in his life.

4. Matters of maturity, sex, lifestyle and background of the parents and Y are not determinative in this case.

5. The Court, in these reasons, has already clearly signalled its concerns about the Mother’s attitudes about Y, and about her responsibilities as a parent. She clearly struggles to see the importance of the Father in Y’s life. Her attitude towards him is disdainful. She struggles to prioritise Y’s needs above her own personal needs. Her unilateral relocation from (omitted) to (omitted) is an example of this. Her total indifference about the impact on Y of this change reflects poorly on her. There are clear attitudinal and insight defects present. Whilst the Father argues that this means there is a risk to his ongoing relationship with Y, the fact is that, for the time being, he enjoys an excellent relationship with his son, despite the Mother’s attitudinal defects. Any risk can be monitored into the future. Orders can be framed so as to protect that relationship. A further protective measure might be ensuring that this matter is relisted before the Court as presently constituted in any further litigation about Y, so that the Mother fully appreciates her accountability for her own actions.

6. No issues of family violence are determinative in this case.

7. On behalf of the Father, it is submitted that the order least likely to result in the institution of further proceedings is an order that Y live with his father. If that order were otherwise in the best interests of Y, that may well be true, but his best interests cannot be determined by the risk of re-litigation alone. If the Mother chooses to disregard these orders, it will be at her own risk. The Court has clearly signalled that, for now, it is in Y’s best interests to live with his father. That could easily change in the future and the Mother’s actions may perhaps be the precipitation of such change. She would do well to reflect on the criticism of her in these reasons for judgment, and adjust her attitudes accordingly.

Parental Responsibility

1. The statutory presumption in favour of equal shared parental responsibility contained in s.61DA of the Act has not been displaced. There is no evidence of abuse or violence. The totality of the evidence establishes that maintaining equal shared parental responsibility is in fact in Y’s best interests. As foreshadowed in these reasons, the Court believes strongly that to give the Mother sole parental responsibility would be to give her license to seek to further exclude the Father from Y’s life.

Equal time or substantial and significant time?

1. Equal time is neither in Y’s best interests, nor is it reasonably practicable in circumstances where the Mother lives in (omitted) and the Father in (omitted).

2. The best the Court can do is to make an order that will, in the fullness of time, amount to substantial and significant time between Y and his father. Developmental considerations mean that this must be achieved in a sensitive and graduated fashion. The Court is satisfied that the Independent Children’s Lawyer’s proposal achieves that.

Orders in the best interests of Y?

1. The evidence before the Court leads it to conclude that Y should continue to live with the Mother in (omitted), and that there should be equal shared parental responsibility.

2. The Mother’s spends time with proposal would result in Y spending time with his father in 3 stages: until he turns 3; between 3 and when he starts school; and thereafter once he commences school. In the first stage Y’s time with his father would be in the (omitted) area, and limited to 2 weekends monthly supplemented by one weekend in (omitted) during 2 sets of school holidays. Overnight time commences in the second stage, but the frequency is reduced to 4 times in (omitted) and 4 times in (omitted), each year. By the time he starts school, the Mother proposes half of all short school holidays, some time in the Christmas holidays, and one weekend during the school term in (omitted).

3. In the Father’s Counsel’s written submissions dated 12 August 2016, Counsel deals with the Independent Children’s Lawyer’s proposed Minute of Order. The Father consents to orders 1, 2 ,4, 8, 9 and 11 to 18 inclusive. At [87] of those submissions the Father’s proposal about his time with Y should he be allowed to remain with his mother in (omitted) becomes apparent. He contends as follows:

   a)Order 5.2(a)(ii), (b)(ii), (c)(ii), (d)(ii): Mr Downs seeks for the time in these orders to be from 8am to 3 pm (not 10 am to 5 pm) to enable Y to return to (omitted) at a more reasonable time and for such travel occur primarily in daylight. In relation to the earlier start, Mr Downs would be agreeable to an order that he be responsible for providing Y with breakfast and attending to his morning routine;

   b)Order 5.3(c): Mr Downs proposes that such time occur in (omitted) and conclude at 5 pm to enable Y to participate in a lunch with his wider paternal family and engage fully in celebrations that weekend;

   c)Order 5.4: It is assumed that this should read from 12 April 2018 (not 2017);

   d)Order 5.4(a): Mr Downs seeks for this time to conclude at 5 pm on Sunday. This will enable him to feed Y lunch before travelling to the changeover location at (omitted);

   e)Order 5.4(c)(i): Mr Downs seeks for such time to occur in (omitted) and conclude at 5 pm. This will enable Y to be involved fully in Christmas celebrations with the wider paternal family;

   f)Order 5(d)(ii): Mr Downs seeks for such time to occur in (omitted);

   g)Order 6.2: the Father seeks for changeovers to be at his home. There has not been any reason established by the evidence which would indicate that changeovers at the parties’ respective homes are not appropriate;

   h)Order 10: Mr Downs seeks that this provision also includes day care and pre-school.

   The Court accepts the validity of the Father’s submissions in a) and b) above. These proposed changes are neither unreasonable on the facts of this case, nor unworkable from Y’s perspective. The Court accepts that 5.4 should refer to “12 April 2018” instead of “12 April 2017”. The Court accepts the validity of the Father’s submissions in d), e) and f) above. Again, his proposal is neither unreasonable on the facts of this case nor unworkable from Y’s perspective. The Court accepts that there is an imposition on the Mother, but again concludes it is not an unreasonable one on all the facts of this case. The Court does not accept g) above. The Independent Children’s Lawyer’s proposal in this regard is a sound one. The Court is not confident that the conclusion of the litigation will necessarily end the tensions between the parents – indeed a temporary exacerbation may occur, hence the necessity for a conservative approach in relation to change over. The Court accepts h) as being appropriate. These changes will be incorporated into the Orders made, but the Court’s template may result in a change in the numbering of the Orders.

4. The Independent Children’s Lawyer’s proposal has already been described. It is a much more nuanced, child-focused approach to the orders. It provides for regular fortnightly time, once in the (omitted) and once in (omitted). It introduces overnight time. It gradually expands this and then appropriately contracts it when he starts school. It deals with school holidays appropriately. The Court prefers the Independent Children’s Lawyer’s proposal as being the orders in Y’s best interests, subject to the comments made in the preceding paragraph.

The Change of Name Issue

1. Orders 2 to 4 of the Father’s Minute proposed, in effect, that the child be known as Downs-Seabridge. The Mother formally opposed this but, as noted earlier in these reasons, in cross-examination her opposition appeared lukewarm at best. She could understand, for example, the benefit to Y of carrying his father’s name. Indeed she herself acknowledged that she carried her father’s name. She also acknowledged that if the Court did make the proposed order, she would do what was involved in implementing it.

2. This is a case where the Court is concerned about the Mother’s attitude in relation to the importance of the Father in Y’s life. It is even more important, therefore, that Y’s surname include his father’s name, as it preserves that important link with the Father, and indeed his broader (nationality omitted). The Independent Children’s Lawyer supported this order.

Travel Expenses Issue

1. The Mother sought an order that, to assist the Mother in complying with any spends time with order, the Father pay her $300 no later than 7 days prior to the scheduled contact occurring. The Father made no proposal in this regard, and inferentially opposed it. It is interesting to note, however, that at order 12 of his minute, he was offering financial assistance totalling $4,000 should the Mother be ordered to relocate to (omitted). Clearly he felt he had the capacity to do this. The litigation history of the matter indicates the Father’s willingness and capacity to contribute to the Mother’s costs of contact in (omitted). No submission was made suggesting the Court did not have jurisdiction or power to make the order. The Mother’s evidence about travel and cost associated with contact in (omitted) was unchallenged. The Father’s evidence about his struggle to make these payments, at times, was also unchallenged. Those periods of struggle, however, appear to have coincided with particular expenses associated with this case, for example, payment of the fees of Dr A. The impression formed from the Father’s evidence is that he has paid the amount of $300 per visit in (omitted), albeit reluctantly at times.

2. The Court could have been much better assisted on this issue, but obviously contribution to travel expenses was not recognised as the focal point of this case. The Court’s fear is that if it is not ordered, it just becomes an excuse for the Mother not to comply with the Orders. The order favoured by the Court will provide for one weekend monthly in (omitted). The Father’s commitment will thus be limited to 1 payment monthly of $300. There was no serious challenge about the quantum sought, and there is enough evidence to conclude that the Father is able to make this payment.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 3 November 2016

Schedule 1

The Independent Children’s Lawyer’s Proposed Minute of Order

PROPOSED MINUTE OF ORDER

BY THE INDEPENDENT CHILDREN’S LAWYER

BY CONSENT IT IS ORDERED:

1. That all previous parenting orders be and hereby are discharged.
2. That no orders be made in relation to the child X (hereafter referred to as “X”) born on (omitted) 2006.
3. That the child Y (hereafter referred to as “the child”) born on (omitted) 2014 shall live with the mother.
4. That the parents shall have equal shared parental responsibility for the child.
5. That the child shall spend time with the father as follows:-

5.1From the making of these orders until 6 January 2017, from 10.00am to 5.00pm on Friday, Saturday and Sunday on each alternate weekend with time to take place as follows:-

a)   Y shall spend time with his father in the (omitted) Area on the first weekend of each four-weekly cycle and to give full effect to this order the mother is to transport Y to (omitted) for the purpose of these visits.

b)     Y shall spend time with his father in the (omitted) Area on the third weekend of each four-weekly cycle.

5.2From 6 January 2017 to 19 February 2017:-

a)   On the weekend commencing 6 January 2017 with time to take place in the (omitted) Area:-

(i) From 10.00am on Friday 6 January 2017 to 12.00noon on Saturday 7 January 2014;

(ii)    From 10.00am to 5.00pm on Sunday 8 January 2017

b)   On the weekend commencing 20 January 2017 with time to take place in the (omitted) Area:-

(i) From 10.00am Friday 20 January 2017 to 12.00noon on Saturday 21 January 2017;

(ii)From 10.00am to 5.00pm on Sunday 22 January 2017

c)   On the weekend commencing 3 February 2017 with time to take place in the (omitted) Area

(i) From 10.00am Friday 3 February 2017 to 3.00pm on Saturday 4 February 2017

(ii)    From 10.00am to 5.00pm on Sunday 5 February 2017

d)   On the weekend commencing 17 February 2017 with time to take place in the (omitted) Area:

(i) From 10.00am Friday 17 February 2017 to 5.00pm on Saturday 18 February 2017

(ii)    From 10.00am to 5.00pm on Sunday 19 February 2017

5.3From 3 March 2017 to 12 April 2018

a)From 12.00 noon Friday to 12.00noon Sunday on the first weekend of each calendar month;

b)From 12.00noon Friday to 12.00 noon Sunday on the third weekend of each calendar month, with time to take place in the (omitted) Area;

c)From 9.00am Good Friday 2017 to 12.00noon Easter Sunday 2017, with time to take place in the (omitted) Area.

d)From 12.00noon on 22 December 2017 to 12.00noon on 25 December 2017, with time to take place in the (omitted) Area

5.4From 12 April 2017 until the child commences school:-

a)   From 12.00 noon Thursday to 12.00noon Sunday on the first weekend of each calendar month;

b)     From 12.00noon Friday to 12.00 noon Sunday on the third weekend of each calendar month, with time to take place in the (omitted) Area;

c)     At Christmas:-

(i)From 12.00noon on 23 December to 12.00noon on 26 December in years ending in an odd number, with time to take place in the (omitted) Area;

(ii)From 12.00noon on 22 December to 12.00noon on 24 December in years ending in an even number, with time to take place in the (omitted) Area

d)     At Easter:-

(i)From 9.00am Good Friday to 5.00pm Easter Saturday in years ending in an even number, with time to take place in the (omitted) Area;

(ii)From 9.00am Good Friday to 5.00pm Easter Sunday in years ending in an odd number, with time to take place in the (omitted) Area

5.5Upon the child commencing school:-

a)   During all NSW school term periods, from 9.00am Saturday to 12.00 noon Sunday on the first weekend of each calendar month, with time to take place in the (omitted) Area;

b)     From 12.00noon on the first Saturday to 12.00noon on the middle Sunday of the April and June/July school holiday periods in each year ending in an even number;

c)     From 12.00noon on the middle Saturday to 12.00noon on the last Sunday of the April and June/July school holiday periods in each year ending in an odd number;

d)     From 12.00noon on the first Saturday to 12.00non on the last Sunday on the September/October school holidays in each year;

e)      For the first half of the December/January school holidays commencing in years ending in an even number and for the second half of the December/January school holidays commencing in years ending in and odd number.  To give full effect to this order, school holidays are deemed to commence at 12.00noon on the first Saturday after the conclusion of Term 4 and conclude at 12.00noon on the last Sunday prior to the commencement of Term 1.  The changeover on the middle day is to occur at 12.00noon.

Additional Time in (omitted) Area

5.6 For one additional weekend in each calendar month at times and dates and location of time to be agreed between the mother and father in writing and failing agreement then as follows and under the following conditions:-

a)All additional time under 5.6 is to take place in the (omitted) Area;

b)The father is to provide the mother with not less than four weeks written notice of the additional weekend date;

c)The commencement and conclusion times are to be as follows:-

i)From the making of these orders until 6 January 2017, the changeover times are to be 10.00am to 5.00pm on Friday, Saturday and Sunday;

ii)From 6 January 2017 to 19 February 2017, the changeover times are to be from 10.00am on Friday to 12.00noon on Saturday and from 10.00am to 5.00pm on Sunday;

iii)From 3 March 2017 and thereafter changeover times are to be from 12.00 noon Friday to 12.00noon Sunday

iv)Any weekend nominated under Order 5.6 cannot include Mother’s Day, Christmas Day, Good Friday, Easter Sunday, the child’s birthday ((omitted)), the mother’s birthday ((omitted)) or X’s birthday ((omitted))

5.7 That the mother be at liberty to nominate up to 4 weekends in each year as being unsuitable dates for the child to spend additional time with the father pursuant to Order 5.6 and to give full effect to this order the mother must provide no less than 5 week’s written notice to the father of the unsuitable weekend dates.

6. That the parents are to do all things necessary to changeover the child as follows:-

6.1 Changeovers for the time that is to take place in the (omitted) Area is to take place at the (omitted) McDonalds Family Restaurant at the commencement and conclusion of this time.

6.2 Changeovers for the time that is stipulated to take place in the (omitted) Area under Orders 5.1 and 5.2 is to take place at the paternal grandmother’s residence at the commencement and conclusion of this time.

6.3 Changeovers for all other time is to take place at the (omitted) McDonalds Family Restaurant at the commencement and conclusion of all other time.

7. That the child is to have communication with the father on each Tuesday and Thursday at 7.00pm with communication to be by Skype, if available, and if not then by telephone, with the father to initiate the Skype or telephone call and the with the mother to facilitate the child to accept the Skype or telephone call.
8. That the parents shall each ensure that the other parent is kept informed of the following:-

8.1 Any medical problems or illness suffered by the child whilst in their care as soon as practicable;

8.2 Any hospital admissions for the child as soon as practicable

8.3 Any medications that have been prescribed for the child whilst in their care as soon as practicable;

8.4 Any change to their residential address within 24 hours of such change occurring;

8.5 Any change to their mobile telephone number or Skype address within 24 hours of such change occurring.

9. That each parent do all things necessary to irrevocably authorise all medical practitioners, psychiatrists, psychologists, therapists, counsellors and any other health care professional attended upon by the child to liaise with, consult with and provide information to the other parent at the other parent’s own cost.
10. That the parents shall each be authorised to liaise with, attend upon and/or receive information, school reports, merit cards, school photo order forms and any other written material intended for parents from any school in which the child attends.

9. That each parent be and hereby are restrained from consuming or being under the influence of an illicit substance or from allowing the child to be in the presence of any other person consuming or under the influence of an illicit substance.
10. That each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each parent do all things necessary to remove the child from any other person so doing.
11. That the mother be and hereby is restrained from relocating her place of residence outside of the (omitted) Area without the written consent of the father.
12. That the father is authorised to apply to the Registrar of Birth, Deaths and Marriages to change the surname of the child Y born (omitted) 2014 to “Downs-Seabridge”.
13. That pursuant to section 28 (5) of the Birth Deaths and Marriages Act 1995 (NSW), the Registrar of Births, Deaths and Marriages is to register the child’s name as Y.
14. That the parties be and hereby are restrained from using any other surname for the child other than Downs-Seabridge. 
15. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
16. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

Schedule 2

The Father’s Proposed Minute of Order

1. That the parents shall have equal shared parental responsibility for the child, Y (dob: (omitted) 2014).

   Y’s name

2. That the Father is authorised to apply to the Registrar of Births, Deaths and Marriages to change the surname of Y born (omitted) 2014 to “Downs-Seabridge”.

3. That pursuant to s 28(5) of the Births, Deaths and Marriages Act 1995 (NSW), the Registrar of Births, Deaths and Marriages is to register the child’s name as Y.

4. That the parties be, and hereby are, restrained from using any other surname for the child other than Downs-Seabridge. 

   In the event that the Mother relocates back to the (omitted) area

5. That in the event that the Mother relocates back to the (omitted) area, the Mother must do so within 8 weeks of the commencement of these Orders.

6. That in the event that the Mother relocates back to the (omitted) area, that Y live with the Father as follows:

   6.1From the commencement of these Orders until the commencement of time provided for in Order 6.2:

   6.1.1From 5:00pm Wednesday to 10:00am Thursday;

   6.1.2Each alternate weekend from 10:00am Saturday to 5:00pm Sunday.

   6.2That once Y attains the age of 4 years:

   6.2.1From 9:00am Wednesday to 5:00pm Thursday;

   6.2.2Each alternate weekend from 5:00pm Friday to 5:00pm Sunday.

   6.3That once Y attains the age of 5 years:

   6.3.1From 9:00am Wednesday to 5:00pm Thursday;

   6.3.2Each alternate weekend from 5:00pm Thursday to 5:00pm Sunday.

   6.4That once Y commences school:

   6.4.1Each alternate week from the conclusion of school Friday to the commencement of school on the following Friday thereafter.

7. That Y live with the Mother at all other times, subject to Order 6 herein.

8. The father is permitted to communicate with Y by telephone each Tuesday in between 6pm and 7 pm with the father to make the telephone call.

9. Once care arrangements outlined in order 6.4 and 6.4.1 commence, that each parent is permitted to telephone Y on Tuesdays and Thursdays in the week that Y is not in their care in between 6:00pm and 7:00pm.

10. That notwithstanding any Order to the contrary, Y is to spend the following special occasions in the care of each parent:

    10.1With the Father from 5:00pm Good Friday until 10:00am Easter Sunday in 2017 and each odd-numbered year thereafter, and with the Mother from 10:00am Easter Sunday until 5:00pm Easter Monday in 2017 and each odd-numbered year thereafter;

    10.2With the Mother from 5:00pm Good Friday until 10:00am Easter Sunday in 2018 and each even-numbered year thereafter, and with the Father from 10:00am Easter Sunday until 5:00pm Easter Monday in 2018 and each even-numbered year thereafter;

    10.3With the Father from 5:00pm Christmas Eve until 2:00pm Christmas Day in 2016 and each even-numbered year thereafter, and with the Mother from 2:00pm Christmas Day until 5:00pm Boxing day in 2016 and each even-numbered year thereafter;

    10.4With the Mother from 5:00pm Christmas Eve until 2:00pm Christmas Day in 2017 and each odd-numbered year thereafter, and with the Father from 2:00pm Christmas Day until 5:00pm Boxing Day in 2017 and each odd-numbered year thereafter;

    10.5That Y spend a minimum of two hours on his birthday with the parent whom he is not currently spending time with if it falls on a weekday, and a minimum of four hours on his birthday with the parent whom he is not currently spending time with if it falls on a weekend;

    10.6That Y spend a minimum of four hours with the Mother on Mother’s Day if he is not currently spending time with the Mother;

    10.7That Y spend a minimum of four hours with the Father on Father’s Day if he is not currently spending time with the Father.

11. That for the purpose of changeover, the Father is to collect Y from the Mother at the commencement of time and the Mother is to collect Y from the Father at the conclusion of time.

12. That should the Mother relocate to (omitted) within 8 weeks of final orders being made then:

    12.1The Father is to pay the bond and the first 4 weeks rent on any rental property leased by the Mother up to the amount of $3,000;

    12.2The Father is to provide to the Mother $1,000 to assist her with the costs of relocation.

In the event that the Mother does not relocate back to the (omitted) area

1. That in the event that the Mother does not relocate back to the (omitted) area:

   13.1Y live with the Father;

   13.2That Y spend time with the Mother as follows:

   13.2.1Every 3^rd weekend, from 5:00pm Friday to 5:00pm Saturday, with such time to be suspended during school holiday periods;

   13.3During school holiday periods as follows:

   13.3.1Until Y commences formal schooling, for 4 consecutive nights in each school holiday period following the conclusion of terms 1, 2 and 3 as agreed but in default of agreement from 10:00am on the first Monday following the conclusion of school term until 5:00pm on the following Friday thereafter;

   13.3.2For 3 blocks of 4 days in the Christmas school holiday periods; 

   13.3.3Once Y commences formal schooling:

   (a)For one half of each school holiday period following the conclusion of terms 1, 2 and 3 as agreed but in default of agreement from 5:00pm on the first Saturday following the conclusion of the school term until 5:00pm on the following Saturday thereafter;

   (b)Until Y attains the age of 8 years, for each alternate week of the Christmas school holiday period, commencing the first week in odd-numbered years and the second week in even-numbered years;

   (c)Once Y attains the age of 8 years, for one half of the Christmas school holiday period, being the first half in odd-numbered years and the second half in even-numbered years.

2. That changeover occur at the McDonald’s Restaurant, (omitted).

3. The Mother is able to communicate with Y by telephone on Tuesdays and Thursdays in between 6:00pm and 7:00pm with the Mother to make the phone call, or alternatively;

   15.1The Mother can communicate with Y via Face Time or Skype at the time outlined in Order 15 above, providing the Mother provides the Father 8 hours written notice.

4. That notwithstanding any Order to the contrary, Y spend the following special occasions in the care of each parent:

   16.1With the Father from 5:00pm Good Friday until 10:00am Easter Sunday in 2017 and each odd-numbered year thereafter, and with the Mother from 10:00am Easter Sunday until 5:00pm Easter Monday in 2017 and each odd-numbered year thereafter;

   16.2With the Mother from 5:00pm Good Friday until 10:00am Easter Sunday in 2018 and each even-numbered year thereafter, and with the Father from 10:00am Easter Sunday until 5:00pm Easter Monday in 2018 and each even-numbered year thereafter;

   16.3With the Father from 5:00pm Christmas Eve until 2:00pm Christmas Day in 2016 and each even-numbered year thereafter, and with the Mother from 2:00pm Christmas Day until 5:00pm Boxing day in 2016 and each even-numbered year thereafter;

   16.4With the Mother from 5:00pm Christmas Eve until 2:00pm Christmas Day in 2017 and each odd-numbered year thereafter, and with the Father from 2:00pm Christmas Day until 5:00pm Boxing Day in 2017 and each odd-numbered year thereafter;

   16.5That Y spend a minimum of four hours with the Mother in the (omitted) area on his birthday if his birthday falls on a weekend and a minimum of two hours if on a weekday. If the mother is unable to attend the (omitted) area to spend time with Y the mother is at liberty to telephone Y between 6:00pm and 7:00pm on his birthday;

   16.6Y is to spend time with the mother on the Mother’s Day weekend each year from 5:00pm on the Saturday before Mother’s Day until 5:00pm on Mother’s Day.

Specific issues orders

1. That the parties are to keep each other informed of their residential address, telephone number (including mobile number) and email address and advise of any change to same within 48 hours of any such change;

2. That the parties are to notify each other as soon as possible in the event of:

   18.1Any medical or other emergency concerning Y;

   18.2Any health condition suffered by Y, including details of any medication prescribed to him; and

   18.3Any appointment being made for Y to attend upon a specialist, including the name and details of such appointment and that both parties be at liberty to attend such an appointment.

3. That the parties be permitted to attend any school, extracurricular activity or sporting activity for Y to which parents are generally invited to attend, irrespective of whose care Y is in.

4. That the parties be, and here by are, restrained from saying, rude, offensive and/or negative things about the other parent, their partners or family to Y or in his presence or hearing and are to use their best endeavours to ensure that no other person does so.

5. Each parent undertakes that if they cannot care for Y that the other parent must be contacted first, and be given the option to care for Y before making alternate arrangements for Y’s care, during such time with Y pursuant to these orders.

6. That Y live with the mother.

7. That Y spend time with the father as ordered by this Honourable Court.

Schedule 3

The Mother’s  Proposed Minute of Order

1. That the mother have sole parental responsibility for the long term care, welfare and development of the child, Y born (omitted) 2014.

1. That the child live with the mother.

Time With

1. That for the period following the making of these orders until the child’s third birthday, the child shall spend time with the father as follows:

3.1     In September/October School Holidays 2016 on one weekend in (omitted) as agreed between the parents from 10.00am until 5.00pm on Friday, Saturday and Sunday.

3.2     In December/January School Holidays 2016 on one weekend in (omitted) as agreed between the parents as follows:

3.2.1 From 10.00am until 5.00pm on Friday and Saturday; and

3.2.2 From 10.00am Sunday until 10.00am Monday.

3.3    On Christmas Day from 12noon until 5.00pm in the (omitted) Area.

3.4     On any two weekends per month, as agreed with the mother and as elected by the Father, in the (omitted) Area as follows:

3.4.1    From 10.00am until 5.00pm on Friday, Saturday and Sunday until 1 December 2016; and

3.4.2  From 1 December 2016 from 10.00am until 5.00pm on Friday and

3.4.3    From 1 December 2016 from 10.00am on Saturday until 5.00pm on Sunday.

3.5     Such other and further times as agreed between the parents in writing.

1. That for the period following the child’s third birthday until the child commencing school the child shall spend time with the father as follows:

4.1From 12 noon Friday until 12noon Monday as agreed between the parents in the (omitted) Area four times per year commencing April 2017; and

4.2From 12noon Friday until 12noon Monday as agreed between the parents on any two weekends per month the father so elects in the (omitted) Area.

4.3From Christmas Day until Boxing Day at times as agreed between the parties.

4.4Such other and further times as agreed between the parents in writing.

1. That once the child commences school the child shall spend time with the father as follows:

5.1        One half of all short school holiday periods as agreed between the parents but failing agreement the first half.

5.2        One weekend during the school term, as elected by the Father, in the (omitted) Area from 5.00pm Friday until 5.00pm Sunday.

5.3        Until the child is 7 years old from Christmas Day until Boxing Day at times as agreed between the parties.

5.4        Until the child is 7 years old no less than 7 days but no more than 15 days during the Christmas School Holidays as agreed between the parents in writing with no less than 14 days notice.

5.5        After the child turns 7 years old for one half the Christmas School Holidays being the first half in all odd years and the second half in all even years.

5.6        Such other and further times as agreed between the parents in writing.

Agreement and Compliance

1. To assist the mother with compliance with Order 3.1-3.2 the father shall pay the mother $300.00 no later than 7 days prior to the scheduled contact occurring therein.

1. That for the purposes of facilitating the fathers time in Order 3 above the mother shall provide the father with confirmation by text message and/or email of the dates of any impending travel by no later than 4.00pm on the Monday immediately prior to the agreed visit.

1. That for the purposes of facilitating the fathers time in Order 3.4, Order 4.2 and Order 5.2 above the father shall provide the mother with confirmation by text message and/or email of the dates of any impending travel by no later than 4.00pm on the Monday immediately prior to the agreed visit.

1. In the event that the parents cannot reach an agreement in accordance with Order 3.1-3.2 the mother shall travel to (omitted) on the second weekend of the school holidays.

1. In the event that the parents cannot reach an agreement in accordance with Order 5.2 the father shall spend time with the child on the fifth weekend of the school term.

1. That for the purposes of the father’s overnight time in Order 3.4, 4.2 and 5.2 the father shall provide the mother with confirmation that the father has booked suitable accommodation within the (omitted) Area no later than 7 days before the scheduled visit.

1. Unless otherwise agreed, for the purposes of short school holiday periods the fathers’ time shall commence on the first Saturday of the school holiday period and conclude on the second Saturday being the midpoint of the short school holiday period.

Changeovers

1. That for the purposes of changeovers in the (omitted) Local Area in Order 3 the father shall collect the child from the mother at (omitted) McDonalds at the commencement of his time and return the child to the mother at the same location at the conclusion of his time. 

1. That for the purposes of changeovers in the (omitted) Local Area in Order 3 the mother is to deliver the child to the Paternal Grandparent’s residence at the commencement of the Father’s time and the mother is to collect the child from the Paternal Grandparent’s residence at the conclusion of the father’s time with the child.

1. For the purposes of changeovers in Order 4 above the father shall collect the child at the commencement of his time from the mother at Truck Stop 31, Marulan on the (omitted) Highway and return the child to the mother at the same location at the conclusion of his time with the child.

1. That the father be permitted to Skype the child, if available, as agreed between the parents but failing agreement each Tuesday and Thursday evening at 7.00pm.

1. That the child spend time with the paternal grandparents as agreed between the mother and the paternal grandparents in writing.

Father’s Relocation

1. In the event that the father was to relocate the within 30 kilometres of the mother’s residence then the child shall spend time with the father as follows:

18.1     Until the child turns three years old as follows:

18.1.1    As agreed between the parents on three days per week from 10.00am until 5.00pm;

18.1.2    On Christmas Day from 12noon until 5.00pm in the (omitted) Area.

18.1.3    On Father’s Day from 10.00am until 4.00pm in the (omitted) Area.

18.2     Once the child turns three years old as follows:

18.2.1    On each alternate weekend from 5.00pm Friday until 3.00pm Sunday; and

18.2.2    Each Wednesday evening from 5.00pm until 7.00pm.

18.2.3    On Christmas Day to Boxing Day at times to be agreed between the parents;

18.2.4    On Father’s Day weekend from 5.00pm Friday until 3.00pm Sunday.

18.3     Once the child commences school as follows:

18.3.1    On each alternate weekend from after school Friday until 3.00pm Sunday; and

18.3.2    Each Wednesday evening from 5.00pm until 7.00pm;

18.3.3    One half of all short school holiday periods as agreed between the parents but failing agreement the second half.

18.3.4    Until the child is 7 years old from Christmas Day until Boxing Day at times as agreed between the parties.

18.3.5    Until the child is 7 years old no less than 7 days but no more than 15 days during the Christmas School Holidays as agreed between the parents in writing with no less than 14 days notice.

18.3.6    After the child turns 7 years old for one half the Christmas School Holidays being the first half in all odd years and the second half in all even years.

18.3.7    On Father’s Day weekend from 5.00pm Friday until 3.00pm Sunday.

18.4     For a minimum of two hours on the child’s birthday by agreement between the parents.

18.5     Such other and further times as agreed between the parents in writing.

1. That for the purposes of changeovers in the (omitted) Local Area in Order 19 above the father shall collect the child from school but if on a non-school day from the mother at (omitted) McDonalds at the commencement of his time and return the child to the mother at the same location at the conclusion of his time. 

1. That the father’s time in Order 18 above be suspended for the purposes of the mother spending time with the child as follows:

20.1    On the weekend of Mother’s Day from 10.00am and continuing for the remainder of the day;

20.2     On Christmas Day to Boxing Day each alternate year commencing 2019 at times to be agreed between the parents;

20.3     On Christmas Eve to Christmas Day each alternate year commencing 2018 at times to be agreed between the parents;

1. That the father be permitted to telephone child each Tuesday and Thursday at a time as agreed between the parents but failing agreement 7.00pm.

1. That the father be restrained by injunction from consuming any illicit substance.