DREYER & FUNNELL
[2020] FCCA 107
•28 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DREYER & FUNNELL | [2020] FCCA 107 |
| Catchwords: FAMILY LAW – Parenting – graduated increase in time spent for young child with non-primary carer – consideration of making interim orders rather than final orders given young age of child – consideration of provision for review when child is older. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC, 69ZX Evidence Act 1995 (Cth), s.4 |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 MRR v GR [2010] HCA 4 |
| Applicant: | MR DREYER |
| Respondent: | MS FUNNELL |
| File Number: | BRC 12211 of 2017 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 28 & 29 August 2019 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 28 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Forge Legal |
| Counsel for the Respondent: | Mr Linklater-Steel |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
ORDERS
That all previous parenting orders be discharged.
That the mother and father have equal shared parental responsibility for all major long-term issues for the child X born in 2017 (“the child”).
That the mother and father are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a)They shall inform the other parent in writing about the decision to be made;
(b)They shall consult with each other in writing; and
(c)They shall make a genuine effort to reach a joint decision.
In the event the child is diagnosed with M Syndrome or any other medical condition that requires the parties to exercise parental responsibility to make an immediate decision about potential surgical intervention for the child:
(a)The parties must jointly consult Dr A and Dr B (and/or any other treating medical practitioner for the child) at the first available opportunity about the decision to be made for the child and the risks associated with any options available to the parties; and
(b)If time permits, within 24 hours of receiving the advice in Order 4(a), the parties must consult each other in writing and make a genuine effort to reach a joint decision.
That notwithstanding Orders 2 and 3:
(a)The mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with her; and
(b)The father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with him.
That the child live with the mother.
That the child spend time with the father as follows:
(a)From the date of these orders to and including 18 February 2020:
(i)8am to 5pm each Tuesday;
(ii)8am to 5pm each Thursday;
(iii)8am to 5pm each Sunday; and
(iv)1pm to 5pm each alternate Saturday.
(b)From 19 February 2020 to and including 18 April 2020:
(i)8am to 5pm each Tuesday;
(ii)8am to 5pm each Thursday; and
(iii)1pm Saturday to 8am Sunday each week.
(c)From 19 April 2020 to and including 18 July 2020:
(i)8am to 5pm each Tuesday;
(ii)8am to 5pm each Thursday; and
(iii)1pm Saturday to 12 noon Sunday each week.
(d)From 19 July 2020 to and including 18 February 2021:
(i)8am to 5pm each Tuesday;
(ii)8am to 5pm each Thursday;
(iii)3pm Saturday to 5pm Sunday each week.
(e)From 19 February 2021 to and including 18 February 2022:
(i)8am Wednesday to 5pm Thursday each week; and
(ii)5pm Saturday to 5pm Sunday each week.
(f)From 19 February 2022 to and including 18 February 2023:
(i)After school or 3pm Wednesday to after school or 3pm Thursday each week; and
(ii)After school or 3pm Friday to 3pm Sunday each alternate week.
(g)From 19 February 2023:
(i)After school or 3pm Wednesday to after school or 3pm Thursday each week; and
(ii)After school or 3pm Friday to before school or 9am Monday each alternate week.
That the father ensure the child attends E School on Wednesdays when she is in his care pursuant to Order (7)(e)(i).
That notwithstanding any other provision herein, unless otherwise agreed between the parents in writing, the child spend time with each of the parents on special occasions as follows:
(a)For Christmas:
(i)From 2020 and each even year thereafter, at Christmas from 5pm Christmas Eve until 2pm Christmas Day with the father and from 2pm Christmas Day and until 5pm Boxing Day with the mother;
(ii)From 2021 and each odd year thereafter, at Christmas from 5pm Christmas Eve until 2pm Christmas Day with the mother and from 2pm Christmas Day until 5pm Boxing Day with the father;
(b)For New Year:
(i)From and including 2021 (being New Years Day on 2021), in odd numbered years with the father from 1pm New Year’s Eve until 1pm New Year’s Day;
(ii)From and including 2022 (being New Years Day on 2022), in even numbered years with the mother from 1pm New Year’s Eve until 1pm New Year’s Day;
(c)For Easter:
(i)From and including 2021, in odd numbered years with the mother from 12 noon Easter Saturday to 12 noon Easter Sunday and in even numbered years with the father from 12 noon Easter Saturday to 12 noon Easter Sunday.
(d)On Mother’s Day, should that day fall on a weekend when the child would be otherwise spending time with the father, the child shall spend time with the mother from 9am until 5pm;
(e)On Father’s Day, should that day fall on a weekend when the child would be otherwise living with the mother, the child shall spend time with the father from 9am until 5pm;
(f)On the child’s birthday (with the parent who the child is not otherwise living with) as follows:
(i)If it is a school non-school day:
A.From 8am to 1pm with the father; and
B.From 1pm to 6pm with the mother.
(ii)If it is a school day:
A.From 3pm to 6pm with the parent whom the child is not otherwise living on that day.
(g)On the birthday of the mother and father as follows:
(i)For a 6 hour period on that parent’s birthday, with 30 days written notice to be given to the other parent as to the 6 hour period nominated.
That for the 2023 and 2024 school years the child spend school holiday time with each parent as agreed in writing and failing agreement with on a week about arrangement throughout the whole of the school holiday periods with the father to have in the first week and the mother the second week in 2023 and the mother to have the first week and the father the second week in 2024.
That unless otherwise agreed in writing, from and including the 2025 school year, the child spend half of each school holiday with each parent as agreed in writing and failing agreement with the father for the first half and the mother for the second half in odd numbered years and the mother for the first half and the father for the second half in even numbered years.
That each parent facilitate the child communicating by telephone or video call with the other parent at any reasonable time the child requests to do so.
That in the event both parents agree in writing, for the child to attend or undertake any extra-curricular activity:
(a)Each parent shall be responsible for transporting the child to all necessary rehearsals, practices, performances or any other requirements of such extra- curricular activity while the child is that parent's care;
(b)Each parent shall allow the child to practice and/or rehearse at all times the child reasonably requests whilst the child in that parent's care;
(c)Each parent shall allow the child to take any clothing, instruments, equipment, supplied or any other item required in relation to such extra-curricular activity between the parent's residences and each parent shall ensure that such clothing, instruments, equipment, supplies or any other required item is cared for and maintained and exchanged between the parents as and when necessary; and
(d)Each parent shall contribute equally to the cost of the activity.
That in the event that the parents do not agree in writing, for the child to attend or undertake a particular extra-curricular activity in accordance with Order (13) above, each parent shall be at liberty to enrol the child in such extra-curricular activity on the basis that:
(i)The enrolling parent will be solely responsible for the cost of the activity; and
(ii)The non-enrolling parent is not required to ensure the child attends any rehearsals, practices, performances or any other requirements of the extra-curricular activity whilst in their care.
That on or before 1 September 2023, the parents are to consult and confer by way of review of the longer-term parenting arrangements provided for in Orders (6), (7), (9), (10), and (11) herein, with a view to determining whether the arrangements are still in the child’s best interests and, if not, the parties are to negotiate variations of these orders by way of further consent orders.
(a)That in the event the parties have not been able to reach any agreement in relation to the longer-term parenting arrangements as part of the review provided for in Order (15) by 1 November 2023 the parents shall do all acts and sign all documents necessary to attend Family Dispute Resolution and for the purposes of same:
(i)the mother will no later than 14 November 2023 put a panel of three family dispute resolution practitioners to the father;
(ii)the father will select a family dispute practitioner from the panel within 7 days of receipt of the panel;
(iii)the parties will attend family dispute resolution within 14 days of the father selecting his preferred practitioner from the panel; and
(iv)that the parties will equally share the cost of the family dispute resolution.
That within 14 days of the date of these orders the parties must contact one of the following:
(a)Counselling Service F (or their nominee) on telephone number …;
(b)Counselling Service G (or their nominee) on telephone number …;
(c)Counselling Service H (or their nominee) on telephone number …; or
(d)Counselling Service J (or their nominee) on telephone number …
for intake in the “Post Separation Parenting” Program or such other Parenting Orders Program as recommended by that organisation.
That the parties shall comply with any reasonable direction of the Program Co-ordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;
(b)advise the Co-ordinator of their contact telephone number and advise the Co-ordinator of any change in that number;
(c)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.
That within 7 days of completion of the Parenting Orders Program each parent must provide the other parent with the certificate of completion from such program.
BY CONSENT
All changeovers when not at the child’s early learning centre/school shall take place at each parent’s residence unless otherwise agreed in writing:
(a)The child shall be collected by the father at the commencement of his time with the child;
(b)The child shall be collected by the mother at the commencement of her time with the child; and
(c)Both parents will be respectful at all times at changeover.
The parents shall ensure that the child is returned to the other parent with all clothing that they were collected in, along with all belongings that the child attended with at changeover.
That during the time the child is with either parent, the parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;
(d)Not denigrate or insult the other parent’s extended family in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent’s extended family in the hearing or presence of the child;
(e)Ensure their family members or partners do not denigrate the other parent’s extended family members or partner.
By this Order, the child’s medical and health practitioners, early learning centre and schools are authorised to provide the other parent with information that they are lawfully able to provide about the child as requested by either parent (at that parent’s cost) and to avoid doubt, this order restrains each parent providing any oral or written direction that in any way limits or precludes the release of information to the other parent.
That each parent shall keep the other informed of all medical appointments for the child and both parents are permitted to attend each medical appointment for the child.
That each parent shall keep the other informed of the names and contact details including but not limited to address, email and phone number of any treating medical or other health practitioners who treat the child.
That save for emergency circumstances, each parent shall give the other parent at least 48 hours’ notice of their intention to schedule a medical appointment for the child and use their best endeavours to schedule all medical appointments for the child at a time which is suitable for both parents to attend (should they choose to do so).
That in the event of an emergency requiring the child’s attendance upon a hospital, each parent is to advice the other parent as soon as practicable of the child’s attendance at a hospital, including the following information:
a.The hospital upon which the child has attended;
b.The reason for the child’s attendance; and
c.Details of the treating medical practitioner.
Save for emergencies, that both parents will inform the other parent as soon as reasonably practicable of any medical condition, accident, significant health issue or illness suffered by the child but within 24 hours.
That each parent shall inform the other parent of their residential address, email address and mobile telephone number within twenty-four (24) hours of a change in phone number or address occurring.
That each parent be at liberty to attend any early learning centre/school and extra-curricular activities which would ordinarily attract a parent’s attendance.
That neither parent consume alcohol above the legal driving limit whilst the child is in their care.
IT IS NOTED that publication of this judgment under the pseudonym Dreyer & Funnell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12211 of 2017
| MR DREYER |
Applicant
And
| MS FUNNELL |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of X are unable to agree about future parenting arrangements for her. X is a young child, about to turn three years of age, having been born in 2017. Throughout these reasons I will refer often to the parties as the mother and father and X as the child. I mean no disrespect in doing so.
The parents separated when the child was only four months old. She lives with her mother, who has been her primary carer since birth, and has been gradually increasing the time she spends with her father which at the time of the hearing was each Tuesday, Thursday and Sunday from 8am to 4pm. The child is yet to spend any overnight time with him.
The father would like to progress his time to ultimately achieve an arrangement whereby X lives with her mother for nine days a fortnight and with him for five, whereas under the mother’s proposal the child would gradually build up time and ultimately spend four days a fortnight with the father. He initially sought orders for a week about arrangement but amended his application after hearing from the bench that it was difficult to look that far into the future especially when there had been no history of the child spending substantial and significant time with him.
As part of his concession the father argued that I should only make interim orders to allow the parties to re-litigate in the event they were unable to agree on an equal time arrangement in the future. His motivation for interim orders was to limit legal costs associated with commencing fresh proceedings. The mother opposed the making of interim orders and sought orders be made on a final basis to include a mechanism for review. Her application was in effect one for short term final orders that would enable the parties to return to court in the event of disagreement. They were also in dispute about how any review should take place.
Although the parties sought orders for them to equally share parental responsibility, they differed as to the manner of such an order and they were also in dispute in relation to a number of other matters which will be addressed throughout this judgment. Notwithstanding these disputes, at the hearing they were able to reach agreement in relation to a number of matters and orders were made by consent on 29 August 2019. To enable the parties to have one set of orders for ease of reference I propose to repeat them in the orders at the commencement of this judgment.
The parties’ respective applications in relation to the build-up of the child’s time with the father were highly detailed with a number of subtle or minor variations. Counsel were directed to consolidate into one document the parties’ time proposals which became Exhibit F2 and is reproduced below with the differences being highlighted in red ink. This table should be read in the context of X currently attending E School on Mondays, Wednesdays and Fridays.
| Age of child | Father’s Proposal as per F2 for an interim order | Number of overnights | Mother’s Proposal as per M1 for a final order | Number of overnights |
| 2019 - 2020 – E School | ||||
| 2 years old | 1. From the date of these orders: a. 8am-5pm each Tuesday b. 8am-5pm each Thursday c. 8am-5pm each Sunday d. 8am-5pm each alternate Saturday | 0 per week | 1. From the date of these orders: a. 8am to 5pm each Tuesday b. 8am to 5pm each Thursday c. 8am to 5pm each Sunday | 0 per week |
| 3 years old | 2. From 19 February 2020: a. 8am-5pm each Thursday b. 1pm Saturday to 1pm Sunday c. 8am-5pm each Tuesday | 1 per week | 2. From 19 February 2020: a. 8am-5pm each Thursday b. 4pm Saturday until 8am Sunday | 1 per week |
| 3 years and 3 months old | 3. From 19 April 2020: a. 8am-5pm each Thursday b. 1pm Saturday to 5pm Sunday c. 8am-5pm each Tuesday | 1 per week | 3. From 19 April 2020: a. 8am-5pm Thursday b. 4pm Saturday to 12pm Sunday | 1 per week |
| 3 years and 6 months old | 4. From 19 July 2020: a. 8am-5pm each Thursday b. 8am Saturday to 5pm Sunday c. 8am-5pm each Tuesday | 1 per week | 4. From 19 July 2020: a. 8am-5pm Thursday each week b. 5pm Saturday to 5pm Sunday each week | 1 per week |
| 2021 – E School | ||||
| 4 years old | 5. From 19 February 2021: a. From 8am Wednesday to 5pm Thursday b. From 5pm Saturday to 5pm Sunday | 2 per week | 5. From 19 February 2021: a. 8am Wednesday* to 5pm Thursday each week (on the basis that the Father takes the child to E School on Wednesdays) b. 5pm Saturday to 5 pm Sunday each week | 2 per week *The Mother has made a further concession since M1 |
| 2022 – Prep | ||||
| 5 years old and starting Prep | 6. From 19 February 2022: a. From 8am Wednesday to 5pm Thursday each week b. From 5pm Friday to 5pm Monday week 2 | 1 in week one Total - 5 per fortnight | 6. From 19 February 2022: a. 3pm Wednesday (or after school if it is a school day) to 3pm Thursday (or after school if it is a school day) each week* b. 3pm Friday (or after school if it is a school day) to 3pm Sunday week 2 | 1 in week one Total - 4 per fortnight |
| 2023 - year 1 | ||||
| 6 years old | 7. From 19 February 2023: a. Afterschool Wednesday to afterschool Thursday in week 1 b. Afterschool Friday to before school Monday in week 2 | 1, 3 Total - 4 per fortnight | ||
| 2024 - year 2 | ||||
| 7 years old | Review of existing time at 4 nights per fortnight | |||
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2]
[1] S.60B
[2] S.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[3] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[6]
[4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[5] S.61DA
[6] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[8] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[9] A major long-term issue in relation to a child means an issue:
[7] S.61B
[8] S.61C
[9] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[10]
[10] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[11] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[12]
[11] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[12] S.65DAA(2)(c) & (d)
Material relied on
In support of his case the father relied on:
a)His Case Summary Document filed 2 April 2019;
b)His Further Amended Initiating Application filed 21 August 2019;
c)His affidavit filed 11 March 2019; and
d)His Notice of Risk filed 16 November 2017.
The mother relied on:
a)Her Case Summary Document filed 2 April 2019;
b)Her Amended Response filed 27 August 2019;
c)Her affidavit filed 12 March 2019;
d)Her affidavit filed 28 June 2018;
e)The affidavit of Dr B filed 18 March 2019; and
f)Her Notice of Risk filed 30 January 2018.
The Court also had the benefit of a family report by Mr C dated 9 July 2018 and an addendum to same dated 15 March 2019. A number of documents were also tendered into evidence.[13]
[13] Exhibit C1: Consent orders;
Neither the mother nor Mr C were required for cross-examination however I heard evidence from the father.
In determining this matter, I have had regard to all of the written and oral evidence. I have also considered the submissions made but the submissions do not form part of the evidence. In order to avoid repetition and limit the length of this judgment I will not repeat all of the evidence of the parties but refer to the evidence that is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore, throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the court is required to assess the evidence on the balance of probabilities.[14]
[14] Section 140 Evidence Act 1995 (Cth)
The Evidence
Both parents are of Country D heritage. The father however was born in Country K and the mother in Country L. The father is 36 years of age and has lived in Australia since he was a one-month old baby. He lives in a rented apartment in a suburb of Brisbane some 15 minutes drive from the mother’s residence. He is a health care worker working three days a week and also pursues an interest as an entertainer. The mother also came to Australia when she was young and is presently 35 years old. She is a health care worker and continues to live in the former matrimonial home.
The parties met through a mutual friend in 2002 and commenced their relationship in 2005. They began living together in 2008 before marrying in 2012. X was born in 2017 and the parties separated shortly after her birth in 2017. Their relationship up until separation was unremarkable. Neither party made allegations of family violence against the other although there was evidence of each of them communicating in a derogatory manner to each other as their post-separation conflict escalated.
The parents separated as a result of a disagreement over the father engaging in sexual relations with other women outside of the marriage. The father claimed he was under the impression the mother was agreeable to an open relationship. He said they discussed the boundaries of their relationship and read several books on the topic together. The mother, on the other hand, said although the issue of an open relationship was discussed she never expressed any agreement to it.
The mother found communications from the father to friends where, in her view, he was boasting about the number of women he had had relations with. She also found he had been collecting images of the women he had been intimate with, in what she described as a “trophy room”. Notwithstanding this, the mother initially wanted to continue their relationship. She asked the father to delete the images and videos of women he had collected along with their contact details. The mother, whose evidence was not challenged, deposed to the father responding to this request with words to the effect:
“If there is one thing I can’t do for you is to delete everything. These women were an important part of my life and I want to keep them to have a memory of them…I’ll keep them for 12 months and if our relationship is still ok at that point, then I will delete them. I want to keep their contacts in case it doesn’t work out with us so that I can contact them.”
The parties subsequently separated. I accept that the mother has found it difficult to trust the father as a consequence of the circumstances of their separation which has impacted her ability to communicate with him.
The mother remained living in the family home after separation and the father would return to visit and care for X. The mother has had the assistance of the maternal grandmother in the care of the child, particularly when she was working. Either the mother or maternal grandmother remained present in the home when the father would visit to see X which occurred three times a week for an hour. This arrangement continued throughout 2017.
An attempt at mediation in October 2017 was unsuccessful and the father commenced these proceedings on 16 November. Interim orders on 14 March 2018 provided for the father to spend time with X initially for three hours each Thursday, Sunday and Monday and from 26 April 2018 X’s time was increased to four hours on Thursday and Sundays. A family report was also ordered.
The report from Mr C was released to the parties in July 2018. He made a number of recommendations including that the child progress to a single overnight with her father when she reached two years of age and the mother had ceased breastfeeding. In September 2018 the parties attended mediation. Although they reached heads of agreement, consent orders were not signed as the father subsequently withdrew his consent. Although the agreement fell through the parties did agree for the father’s time to be extended to six hours on one day and to five hours on the other two days each week.
A chambers order was issued on 6 September 2018 directing the family report writer to answer specific questions in relation to drug use, employment, child support and a specific incident that occurred on 1 September 2017. An addendum to the report was issued in March 2019.
The parties resolved their property settlement proceedings by consent on 6 February 2019.
Potential medical issue
A significant issue of concern to the parties is X’s health. Following her birth X developed a number of haemangiomas, I understand these to be a form of birthmark/skin lesion. As the haemangiomas spread, X was treated with Propranolol in an attempt to reduce the size of the haemangiomas on her body. The child underwent two MRI scans in July 2017. The first scan was only partially successful so a second was conducted whilst she was under a general anaesthetic. This scan revealed a lump at the base of her spine which was diagnosed as an intraspinal lipoma with vascular malformations. The lesion was present inside X’s spinal cord. The MRI examination notes which were annexed to the mother’s affidavit indicate the possibility of M Syndrome.
It is uncontentious on each party’s material that M Syndrome is an extremely rare condition. The mother deposes to her research that there are less than 20 confirmed cases and the father deposed to less than 100 cases worldwide. Both parties depose that should the lump in her spine increase in size and begin to press on her spinal cord a number of symptoms are possible including:
a)Loss of sensation of the bladder and bowels;
b)Decreased sensation / numbness in extremities; and
c)Sudden paralysis.
Both parties have an understanding that the symptoms of M Syndrome can be unpredictable with a rapid onset. Additionally, these symptoms are known to arise later in life, the mother says commonly around the age of five which X will turn in 2022. The worst case scenario would see X paralysed and wheelchair bound. The uncertainty surrounding the child’s future health and care needs formed the basis of the mother’s proposal for a future review of parenting arrangements.
X has a multi-disciplinary team who continue to provide care for her. Annexed to the mother’s affidavit was a letter dated 8 March 2019 from X’s neurosurgeon, Dr A, which suggests that X is progressing well and there has been no significant change to the size of the intraspinal lump. Dr A noted at this stage there is no need for surgical intervention as the risks of surgery outweigh the benefits. Dr A was unable to provide a long-term prognosis or immediate treatment options and recommended ongoing monitoring.
It was common ground that in the event the lesion in X’s spine grows she may begin to exhibit neurological symptoms requiring the parties to make a number of difficult decisions quickly including where and with whom any surgery is performed. The parties were in dispute as to the process which should be followed if this event were to arise.
Determining the best interests of the child – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication, I propose to group together a number of these factors.
The child’s relationships[15]
[15] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
Both parties sought orders that would provide for the child to continue to have a meaningful relationship with each parent. They both saw the benefit for the child in developing and maintaining close parent/child relationships. They differed however in how quickly the child’s time with the father should increase, with the mother taking a more conservative approach than the father.
There can be no doubt the mother has been the child’s primary carer since birth and the child is likely to have her closest attachment with the mother. Although the father is yet to have the child spend any overnight time with him, he has been regularly spending time with the child on three occasions each week. I am satisfied that the child will have developed a relationship with him by virtue of the consistency in which that time has taken place.
Initially the father sought orders that would have seen the child’s time with him gradually increase to the point that by the time she was five years of age she would be living with each of the parents in an equal time arrangement. He did not pursue that proposal at trial. Ultimately, he hoped to have implemented arrangements that would see the child live with the mother for nine nights a fortnight and the remaining five nights with him by the time X turned five years of age. The mother’s proposal on the other hand would see a much slower progression in the graduation of time so that the child would be spending four nights a fortnight with the father once she turned six. I will consider the competing proposals in more detail below, but I note there was no evidence to suggest that the proposals of either party would compromise the child’s relationships with either parent. It was also pleasing to see that each parent supported the child having relationships with extended family.
Risk of harm[16]
[16] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Although each party’s Notice of Risk and affidavit material covered an incident that occurred in front of X in September 2017 this issue did not form a significant aspect of the trial. They each allege the other and the grandparents were involved in a heated argument that involved not only derogatory comments but physical grabbing of adults and the taking and holding of the child. As this incident was not addressed in any significant way at trial, I do not propose to determine the factual dispute between the parents. I note the opinion of the family report writer at paragraph 12 of his addendum:
Single incidents of post-separation violence are generally considered to be associated with a relationship crisis – occasioned by the separation and the associated high state of arousal and the experience of grief. It is typical for parents to feel overwhelmed in their adjustment to such changes in the circumstances of their family and to experience some challenges associated with the regulation of both mood and behaviour. These things will typically become less of a problem as their adjustment progresses.
Although the parents complain about poor and at times inappropriate communication this is not a case whereby the child will be exposed to family violence in either party’s care. The mother had also raised issues as to the father’s use of marijuana and prescription drugs, but this issue was also not canvassed in such a way that I was invited to make any findings as to any consequential risk of harm issues.
I am satisfied that this child is not at risk of harm in either party’s care.
The child’s views[17]
[17] S.60CC(3)(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.
Given the child’s young age her views were not canvassed, nor would they be a determinative factor.
Practical difficulties[18]
[18] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties live in close proximity to each other and have made arrangements with their work that accommodate the needs of the child. I am satisfied there are no relevant issues under this consideration.
Parental capacity and responsibility[19]
[19] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
There was no evidence to suggest that either parent is unable to provide for this child’s day to day needs such as being appropriately housed, clothed, and fed. I am also satisfied that, given the educational backgrounds of each family, they will be able to meet her needs in this regard. There was also nothing in the evidence to suggest that the emotional needs of this child would be compromised by either parent into the future. Although the child was exposed to a volatile situation in September 2017, despite their differences, the parents have been able to shield the child from exposure to their conflicts.
The mother was critical of the father’s involvement in the care of the child during their relationship and soon after. Without wanting to minimise these issues I am satisfied that they are historic. Since the making of orders for the child to spend time with the father, the evidence would suggest that the father has been consistent with his time and the parents have, overall, been cooperative in arrangements. Similarly the father complained that initially after separation the mother did not keep him informed about the child’s medical needs but the parties agreed that this was no longer an issue.
The mother was particularly critical of the father for paying, in her view, only the minimum child support. She said he has chosen to work only three days a week and could earn more if he would work five. The mother also works part-time. The mother complained that the father told her he would not be making any child support payments above the assessment, but the father gave evidence that the mother refused to accept more than what he was assessed to pay. I am not able to determine this dispute. In any event, given I am primarily being asked to determine an appropriate graduated increase in the child’s time with the father, this issue whilst relevant in the overall context, will not be determinative of the time issue.
A significant issue has been the poor level of communication between the parents. There have been occasions when each of the parents have been less than respectful when communicating in writing. I am satisfied that despite the fact that the mother continues to lack trust in the father the communication has improved between them and will more than likely continue to do so. I accept the view of the report writer at paragraph 92 of his report where he said:
…I formed the view that the parents are relatively intelligent and that, when the mother has made further gains in her personal separation adjustment, there may well be some potential for the development of a functional parenting alliance.
Background issues[20]
[20] S.60CC(3)(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.
Under either parent’s proposal both parents will be able to bring their respective Country D cultures to X.
Limiting further proceedings[21]
[21] S.60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Given the young age of this child and the fact that she has not spent any overnight time with the father, neither parent was confident to suggest long term orders as to her living arrangements beyond 2023. The father invited the court to decline to make final orders and to make interim orders instead. It was argued that this would make it easier for the parties to return to court if they were unable to reach an agreement in the future. This submission was also made in the context of the father having abandoned his application for an equal time arrangement.
The mother on the other hand submitted that the court should make final orders so as to conclude the litigation between the parties but include in them a mechanism for review in 2024.
The father argued that the matter should return to court in 2022 when X is five years of age. It was argued that by that time, on either party’s case, she would have been spending overnight time with the father for a couple of years. His counsel submitted the court would be better placed in 2022 to make an assessment on the progression, or reduction, in the father’s time as a family report could assess X’s lived experience in the father’s household. He also argued that the parties might have a clearer picture of the child’s medical needs at this point in time. The father argued that by keeping the matter before the court it would limit the parties’ legal expenses in bringing fresh proceedings. He was concerned about the length of time any new application may take to reach a hearing in the event proceedings had to be restarted.
The mother argued that there was no utility in prolonging the litigation for a future hearing in 2022 and to do so would risk encouraging further litigation. She submitted that the father’s proposal was really an attempt to keep alive his ultimate gaol of obtaining an equal time arrangement. Counsel for the mother submitted that the parents had experienced basically no litigation-free parenting during this child’s life as these proceedings where commenced when she was just nine months old.
I do not accept this litigation should continue. It is important for the parents to start co-parenting without the spectre of litigation hanging over their heads. Whilst I accept litigation is expensive for parents, keeping these proceedings alive risks the filing of Applications-in-a-Case each time the parties find themselves in disagreement which would only increase their legal costs. Freed from the ongoing litigation the parties will need to think twice before asking a judge to decide their disputes. In the event that the child’s medical needs necessitate a change in the orders made as a consequence of this judgment the parties would be able to rely on the fact of a significant change of circumstances to warrant the filing of fresh proceedings.
Presumption of Equal Shared Parental Responsibility
I am satisfied the presumption of equal shared parental responsibility applies. Although the parties and their parents became involved in a heated argument in September 2017 there is no history of ongoing family violence between them. I am also satisfied it would be in this child’s best interests for the parents to have equal shared parental responsibility. I have come to that view notwithstanding the difficulties they have experienced in communicating. They will no doubt experience differences of opinion from time to time, but I am satisfied they will be able to work through those differences. The report writer was also optimistic of improvement in communication over time.
The parties each sought different and very detailed orders in relation to parental responsibility although the orders were drafted on the basis that they would have equal shared parental responsibility. During submissions I canvassed the option of making a simple order that said the parties have equal shared parental responsibility without going into detail as to how they are to go about exercising that responsibility. Counsel for the father conceded that this option was open to the court and the father would not cavil with such approach. The mother’s counsel pressed for more detailed orders arguing the mother lacked confidence that the father would work with her in a timely manner to reach agreement without detailed orders. I accept that the mother still lacks confidence in the father, and find that it would be prudent to draft more detailed orders to minimise the potential for further disputes. Before doing so I will set out the proposals of each party in this regard.
The father’s proposed parental responsibility orders were:
(1) That except as otherwise stated, the Father and the Mother have equal shared parental responsibility for the major long-term issues of the child X born in 2017 ("the child") including but not limited to the following: -
(a) Schooling for the child including decisions about the type of schooling and the schools at which the child shall attend;
(b) Surgery, hospitalisation, specialist and medical treatment required by the child for any serious injury, illness or disability;
(c) Psychological, psychiatric or other therapeutic counselling for the child;
(d) Decisions about religion and religious instruction or any observance by the child; and
(e) Decisions about the child playing or being involved in any sporting, cultural, artistic or community activities including concerts, competitions, training or meetings or other developmental or extra-curricular activities that:
i) Fall whilst the child is in the care of both parents;
ii) Require both parents to actively be involved in; and/or
iii) Require both parents to financially contribute toward.
(2) That the parents are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a) They shall inform the other parent in writing about the decision to be made;
(b) They shall consult with each other in writing; and
(c) They shall make a genuine effort to reach a joint decision.
(3) That notwithstanding the provisions of Order 1: -
(a) The Mother shall be responsible for the day to day care, welfare and development of the child at all time when the child is living with or spending time with her; and
(b) The Father shall be responsible for the day to day care, welfare and development of the child at all time when the child is living with or spending time with him.
The mother’s proposed orders for parental responsibility were:
(1) That the Mother and Father shall have equal shared parental responsibility for all major long-term issues for the child X born in 2017 (“the child”).
(2) That the Mother and Father are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a) They shall inform the other parent in writing about the decision to be made;
(b) They shall consult with each other in writing; and
(c) They shall make a genuine effort to reach a joint decision.
(3) In the event the child is diagnosed with M Syndrome or any other medical condition that requires the parties to exercise parental responsibility to make an immediate decision about potential surgical intervention for the child:
(a) The parties will jointly consult Dr A and Dr B (and/or any other treating medical practitioner for the child) at the first available opportunity about the decision to be made for the child and the risks associated with any options available to the parties;
(b) Upon receipt of the advice at paragraph 4(a) arising from the parties jointly consulting each medical practitioner and within 24 hours and unless contrary to medical advice (such advice necessitating a decision to be made sooner than 48 hours later):
i) the Mother will notify the Father of her preferred course of action in writing;
ii) The Father will respond in writing within 24 hours with his input and views on the action she proposes to take.
(c) In the event the Mother and Father are unable to reach agreement after complying with paragraph (4)(b) above, the Mother and Father will have liberty to apply to the Court upon the giving of 6 hours notice to the other party.
(d) In the event that a decision must be immediately made upon receipt of the advice at paragraph 4(a) arising from the parties jointly consulting each medical practitioner, the Mother and Father will have liberty to apply to the Court for an oral hearing based on short notice and an abridgement of time.
(4) That notwithstanding Orders 2 and 3:
(a) The Mother shall be responsible for the day to day care, welfare and development of the child at all time when the child is living with or spending time with her; and
(b) The Father shall be responsible for the day to day care, welfare and development of the child at all time when the child is living with or spending time with him.
I have not been persuaded to adopt the mother’s proposal to provide for a liberty to apply on short notice in the event the parties are unable to reach an agreement about the child’s medical care. On the one hand the mother argued for the making of final orders in relation to the issue of the child’s time with the father but by seeking the leave to apply was in effect leaving the door open to return to court albeit on a limited basis. In my view this approach would not assist the parties to reach agreement as they will each have in the back of their minds the ability to argue their case before the court, which may cloud their thought processes at the very time they need to focus solely on X’s needs. If they are required to make an urgent decision for the sake of their daughter, they should be working together rather than continuing their dispute. I accept the mother in particular lacks confidence in their ability to communicate. She argued that the father lacked an understanding of the child’s medical needs and took too long to make decisions. She cited as one example the father’s withdrawal of consent reached at mediation. I was not so pessimistic. The parents, who are both well educated, should be able to speak to the medical specialists and make a joint decision about the child’s needs. Nothing in the evidence led me to conclude the father would not be able to do his part in doing so. He did not give any evidence of holding alternate views on the child’s health or that he did not accept the advice of her treating medical professionals.
Of course, if they do find themselves at odds as to the appropriate care, they would always have their rights to bring an urgent application before the appropriate court, which given this issue relates to a medical procedure, would be the Family Court of Australia. They do not need a liberty to apply provision to achieve that. Nor would a liberty to apply provision necessarily mean they would be able to have the matter heard any quicker than making a fresh application.
In cross-examination the father agreed that the process proposed by the mother with respect to obtaining medical advice and the time frame for consultation between the parties was appropriate although his counsel argued such an order was not necessary. I respectfully agree. The wording proposed by the mother may also lead to a dispute that she ultimately holds sole parental responsibility for medical care as she proposed the father would respond in writing within 24 hours of being notified by her of what action ‘she proposed to take’. Whilst she may not have intended her proposed order to confer on her sole parental responsibility for this issue, I would want to remove any risk of such a dispute arising. The mother’s proposed order for the parties to consult in writing and to make a genuine effort to reach a joint decision should be sufficient to cover what is required if this issue was to arise. However, given such a diagnosis would cause the parties anxiety at the time, I propose to make a specific order addressing the approach to be taken so they have a clear process and timeframe.
I do not consider it necessary to specify in the orders what is to be included in the definition of parental responsibility as sought by the father. These parents are able to differentiate between those matters that fall within the category of major long-term issues and those that fall within the ambit of day to day care decisions. I find that the child’s best interests would be served by the following orders in relation to parental responsibility:
(1) That the mother and father have equal shared parental responsibility for all major long-term issues for the child X born in 2017 (“the child”).
(2) That the mother and father are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a) They shall inform the other parent in writing about the decision to be made;
(b) They shall consult with each other in writing; and
(c) They shall make a genuine effort to reach a joint decision.
(3) In the event the child is diagnosed with M Syndrome or any other medical condition that requires the parties to exercise parental responsibility to make an immediate decision about potential surgical intervention for the child:
(a) The parties must jointly consult Dr A and Dr B (and/or any other treating medical practitioner for the child) at the first available opportunity about the decision to be made for the child and the risks associated with any options available to the parties; and
(b) If time permits, within 24 hours of receiving the advice in Order 3(a), the parties must consult each other in writing and make a genuine effort to reach a joint decision.
(4) That notwithstanding Orders 1 and 2:
(a) The Mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with her; and
(b) The Father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with him.
Consideration of Equal Time or Substantial and Significant Time
Having determined the child’s best interests would be met by an order for equal shared parental responsibility, I must turn my mind to whether it would be both in her best interests and reasonably practicable for her to live with the parents in an equal time arrangement. Although the father originally wanted orders that would see such an arrangement eventually put into place, he conceded that it would not be possible for the court to determine the appropriateness of such an order given her age and the fact that she is yet to spend any overnight time with him. With respect, this was an appropriate concession. Without any evidence as to how the child is coping with longer periods of time away from her primary carer and her adjustment to the father’s home the court is not in a position to determine whether such an arrangement would be best for her.
I must then turn my mind to whether a substantial and significant time order would be in X’s best interests and reasonably practicable. Similar considerations apply to that for an equal time arrangement. A child is taken to spend substantial and significant time with a parent only if they spend time with that parent on both days that fall on weekends and holidays; and days that do not fall on weekends and holidays. The time spent must enable the parent to be involved in the child’s daily routine as well as occasions and events that are of particular significance to the child along with enabling the child to spend occasions and events that are of special significance to the parent.[22]
[22] S.65DAA(3)
In this particular case I am asked to determine the appropriate graduated increase in time for X to spend with her father as it was conceded that the child would continue to live primarily with the mother. Under each proposal the child would eventually spend substantial and significant time with her father. I will address the competing proposals below.
What arrangements for X to spend time with her father would meet her best interests?
For context, X will turn three in 2020. She will commence her prep-schooling year in 2022 although she currently attends E School each Monday, Wednesday and Friday. The father generally works each Monday, Wednesday and Friday between 8am and 5pm and gave evidence that this would likely remain his work schedule into the future. The mother works up to four days each week. Presently X spends each Tuesday, Thursday and Sunday with her father from 8am to 4pm. She is yet to spend any overnight time with him.
The father proposed a six stage progression that would see X spending five nights per fortnight with him by 2022. The mother proposed a seven stage progression that would see X spending four nights per fortnight with the father by 2022. The times frames of the stages proposed by the parties were the same and will be individually addressed.
From the date of the orders until 19 February 2020
The parties agreed the current agreement for X should continue during this time. However, the father sought for X to spend an additional day with him, being each alternate Saturday from 8am to 5pm. The mother opposed the extra day arguing that as X’s primary care giver and financial provider she should be given the opportunity to have regular Saturdays or weekend time with her. This is an understandable position for her to take. When the proposal is considered in the context of X spending three days per week at E School and the other four days with the father, it is clear her time with the mother would be significantly reduced in those alternate weeks. On the other hand, it would provide two consecutive days in the father’s care which would be one way to help prepare X for overnight time with him. Regrettably the delay in delivering this judgment has meant that there will be only three weeks between the making of the orders and 19 February. Given that both parties propose the child start spending overnight time with the father from 19 February I am satisfied it would be in her best interests to have at least two consecutive Saturdays and Sundays with her father so she can get used to spending the increased time with him and the corresponding reduction in time with her mother.
The father wanted such time to be a whole day similar to the Sunday. That is: from 8am to 5pm on each of those days. I am of the view that it would be preferable to start the Saturday time at 1pm and conclude at 5pm with the Sunday remaining from 8am to 5pm.
From 19 February 2020 to 18 April 2020
Given the child will turn three on … the parties agreed she should commence spending one overnight per week with her father. However, they differed in relation to the length of the time. The mother preferred the overnight time to commence at 4pm on Saturdays and conclude at 8am on the Sunday whereas the father sought from 1pm Saturday to 1pm Sunday. It was proposed that this would be every week, but the mother proposed that the current Tuesday time cease. The father wanted the Tuesday time to continue. There was no dispute that the Thursday time should continue.
The mother argued that her more conservative introduction of X to overnight time was informed by the parties’ history of poor communication. Her counsel submitted that the parties’ co-parenting relationship had traditionally struggled with changes in routine.
The father argued that his proposal would ensure X’s relationship with him continued to develop. It was submitted that the mother’s proposal, albeit with an overnight, was a reduction in his time with X and certainly a reduction in the awake time she would spend with him. The father argued the Tuesday time should remain as he is available to care for X whilst the mother is working.
Whilst there is merit in the mother’s argument that historically the parties have had difficulties with changes, I am satisfied that with the benefit of orders they should be able to make the transition without argument. The child is currently used to spending the Tuesdays with the father and I am of the view that that should continue. Any reduction in regularity would not assist in helping the child transition to more time in the father’s care.
In relation to the overnight time it will be important to settle X into waking up in the father’s home. This may take some getting used to for her. For this reason, I propose to take a more conservative approach to that proposed by the father although the mother’s proposal is in my view too conservative. I will make an order that would see her spend time with her father from 1pm Saturday to 8am Sunday. Whilst this will see her Sunday time reduced for a period of three months it may assist in assuring X that although she has spent time with her father overnight she will still be going back to her primary carer. Once she is used to that it would be appropriate to increase the Sunday time.
From 19 April 2020 to 18 July 2020
Each party’s proposal at this time was similar to their positions for the previous three months. They each sought an increase of four hours in the child’s overnight time with the father albeit with different commencement and conclusion times. I am also of the view that for this three month period it would be appropriate to increase the child’s time with the father by four hours. Given my finding in the previous paragraph I am satisfied that the Sunday time should conclude at 12 noon rather than 8am. It would continue to commence at 1pm on the Saturday. The Tuesday time should also remain given my earlier findings as to the benefit of the child continuing the regular time with her father.
From 19 July 2020 to 18 February 2021
At this stage the father sought to extend X’s overnight time with him from 8am on Saturday to 5pm on Sunday. The mother also proposed an extension from 5pm on Saturday to 5pm on Sunday. I am of the view that it would be appropriate to extend the time to 5pm on Sundays so the child has a full day with the father. Under the father’s proposal though the child would never have much time with the mother on weekends given he proposed the child come to him at 8am on Saturday. I propose to make the commencement time on the Saturdays to be 3pm to allow the child some time with the mother. Although this would see her time with the father commence some two hours later than in the previous six months it is not so much the number of hours that are important but the quality of that time.
Even though the mother maintained her position that the Tuesday time should have ceased long before this stage, I find that it would be in the child’s best interests for it to continue until she commences a second overnight. Which was proposed by both parties after her fourth birthday.
From 19 February 2021 to 18 February 2022
At this stage the parties finally find some common ground. Both agreeing for X to spend time with her father from 8am on Wednesday to 5pm on Thursday and from 5pm on Saturday to 5pm on Sunday. The mother’s proposal however is conditional on the father ensuring the child attends E School on Wednesdays.
During cross-examination the mother’s proposal was put to the father. He was hesitant in committing to taking X to E School during his time with her. Whilst his evidence was not entirely clear he seemed to hold the view that he thought two days a week at E School was more appropriate for X. His evidence was that he had not given much consideration to this. He was not concerned with the fees required for E School and said that he would comply with an order for him to do so should it be ordered. I am satisfied that it would be good for X to continue to spend the three days at E School in 2021 so she can be ready to face the extra time her Prep year will bring in 2022. I will order accordingly.
From 19 February 2022 to 18 February 2023
In 2022 X will be five years of age and attending her Prep year at school. Under the father’s proposed orders this would be the final stage in the graduation of the child’s time with him and would see X spending five nights per fortnight in the father’s care after one year of spending two nights a week with him. He proposed that X spend from 8am Wednesday to 5pm Thursday each week and from 5pm Friday to 5pm Monday each alternate week with him. This would see each parent have a full weekend with the child once a fortnight but would see X go from one night on a weekend to three nights at a time. It would also mean that she would go a longer time without seeing her father as she would no longer be spending every weekend with him.
The mother agreed that X should be spending each Wednesday night with her father. Her proposal for this night however would see it commence and conclude at 3pm or after school. She also proposed that each alternate week X spend from 3pm or after school Friday to 3pm Sunday with her father. This proposal would see X spending four nights per fortnight with her father.
It is unclear on the evidence and not directly addressed in submissions why the father proposed the times he did. Presumably these times would be more convenient with his work arrangements, but I do not make that finding. It is not clear whether he proposed to deliver X to school on the Wednesday morning or collect her from school and deliver her to the mother on Thursday and Monday afternoons. I am satisfied that it would be more appropriate to make orders that would fit in with the child’s school times. If a parent has work commitments, they would be responsible for ensuring the child is collected from school and is appropriately cared for until they are able to do so themselves.
Although no one as a crystal ball to determine how this child would cope with the graduated change, I am satisfied the father’s approach risks being too fast an increase for the child. In 2022 she will be commencing her Prep year at school which despite her time at E School will bring new challenges for her. To move from two overnights a fortnight to five may be too much for her. It would be preferable for her increase in overnight time with the father to be achieved more slowly. The mother’s proposed orders would be preferable for the child’s Prep year.
From 19 February 2023
X should commence year one in 2023. The Mother sought to alter her four night proposal at this time reducing the Wednesday overnights to fortnightly and extending the alternate weekends from after school Friday to before school Monday. I was not persuaded that there should be any reduction in the mid-week time, but I am satisfied that by this time she would be able to spend a whole weekend from afterschool Friday to before school Monday each fortnight with her father. This would see her spending five nights with the father and nine nights with the mother.
Holiday time and special occasions
The parties sought similar orders for many of the special occasions that occur annually. I will only address those orders that require a significant determination.
I do not propose making any specific orders for the Easter period in 2020 as the father’s time pursuant to the orders that will flow from this judgment will only see the child spend time with him from 1pm Saturday to 8am Sunday on the Easter weekend and should continue remain unchanged this year. Save for the commencement and conclusion times, the parties were in agreement for the Easter arrangements in 2021 and thereafter. I propose to set the commencement and conclusion times to at 12 noon to enable the child to have the morning with one parent and then lunch and the afternoon with the other parent on the Sunday. The mother had sought 1pm and the father 2pm but I received no submissions as to why I would prefer either option.
The mother did not seek any specific orders in relation to school holidays. The father sought orders for the child to spend half of each holiday period for each parent alternating yearly. Counsel for the father conceded during submissions a week about arrangement would be more appropriate for the longer holiday periods in light of the child’s age. The drafting of the father’s proposed orders did not specify a commencement date for when the child would start spending school holidays with each parent. I am satisfied that that time should not commence until 2023 given that is when the child will move to spending five nights a fortnight with the father albeit the maximum consecutive time would be three nights. The amount of time should be limited to a week at a time for at least two years to ensure the child is used to being away from the mother for a period of up to seven nights at a time. Thereafter the time could be extended during the summer holidays for up to three weeks at a time.
Other Issues
The father sought an order that would enable him to provide to the mother a list of general practitioners he proposed to treat X with the mother to select one. The evidence suggests that X has been treated by a general practitioner known to the mother. This has led to the father feeling uncomfortable about attending the practice. Although I appreciate the father’s apprehensiveness in attending a surgery, as this is no longer an issue, I do not consider it necessary to make any order in this regard.
During the hearing I raised the prospect of the parties being assisted by their attendance at a parenting orders program. As neither party raised any issue with such attendance, I will make such an order.
Although each party sought a restraining order in relation to the use of illicit substances. I do not consider it necessary to order parties to comply with the law and will not make that order.
Each party proposed orders for agreement in relation to X’s enrolment in extra-curricular activities. The orders were in different terms, but no submissions were made as to why one version should be preferred. Overall, I am satisfied that the parties should reach an agreement as to which activities the child is to participate in prior to any enrolment and they should each share the cost of that activity equally. They should also ensure she attends the agreed activities when in their respective care. A parent however should not be required to contribute to or ensure the child attends an activity that has not been previously agreed to. I will order accordingly.
The mother sought an order preventing a party from introducing the child to a new partner unless they were in a serious relationship. Whilst I accept this proposed order was well intentioned and child focused, I am not satisfied it is necessary to make such an order.
Both parties sought orders for the child to travel overseas. The orders differ in detail, but no submissions were made as to why I would prefer one over the other. There was no evidence of any intention to travel overseas in the near future although the mother’s proposed orders included a provision for her to take the child away for up to 21 days on one occasion only. Whilst I accept the parties have had much difficulty in reaching agreements, I do not propose to make any orders for overseas travel. Both parties by virtue of their orders envisage future overseas travel I am satisfied that they will be able to reach agreement without the need for prescriptive court orders.
Provision for review
Although the mother was opposed to these proceedings remaining alive by the making of interim orders, she did seek to include a provision for review in 2024 that would envisage a return to court if the parties were unable to reach agreement at that review. The father also sought orders for review, albeit on a more restricted basis. Under his proposal, a review would be enlivened in the event X is diagnosed with a medical condition which resulted in permanent disability. In which event it was proposed that the parties would attend family dispute resolution. The mother opposed the order sought by the father on the basis that a dispute could arise as to what is meant by the term ‘permanent disability’. It was also argued that the father’s proposal is superfluous in a sense that any diagnosis of a permanent disability would be a significant change of circumstance in any event.
The mother wanted a wider review than the father. Counsel for the mother submitted that at this point in time the best that could be achieved is the making of orders that would last until X was around six or seven years of age as to go beyond that would risk being speculative. It was argued that there is a distinct possibility there could be a significant change in circumstance when X turns five or around this time given her medical needs. This made it difficult for the parties to envisage orders much beyond that time frame. On the mother’s case the review would not be to address minor issues but to consider the long-term arrangements for X and would impose a positive obligation on each of the parties to review the arrangements.
It was intended by the mother that the principles set out in Rice & Asplund[23] would remain applicable, i.e. the applicant to any proceeding following the review would need to show that there has been a significant change of circumstances. The mother did concede however that the fact that the parties were unable at this point in time to predict X’s future needs would be a factor to be taken into account in any Rice & Asplund argument. It was argued that pursuant to s.69ZX(3)[24] a party would be able to invite the court hearing a fresh application to have regard to the knowledge of the parties at the time of these proceedings and what realistically could be achieved on the evidence.
[23] Rice & Asplund [1978] FamCA 84
[24] The court may, in child-related proceedings:
Whilst it is usually preferable to draft orders that will bring a sense of finality to litigation, cases such as this warrant a different approach. I accept the submission that at this point in time it would be speculative to make orders beyond the child’s seventh birthday. I simply do not know how this child will adjust to spending substantial and significant time with her father and, as both parents acknowledge, her health issues may have an impact on her living arrangements. Although the father’s proposal for a review took into account the child’s health I am of the view that a more broad mechanism for review is warranted in this case. I am mindful the father made an appropriate concession as to an equal time arrangement at this point in time. We simply do not know what arrangements would be in X’s best interests when she is seven years of age. Therefore, it would be wise for the parties to conduct a review of her living arrangements prior to that point in time. In doing so, if they are unable to reach an agreement between themselves, they should use a family dispute resolution process before filing any application. In the orders I make in this regard I will set a time frame for that review which should take place in the second half of 2023. By then X will be six years of age. If the parties are unable to agree on future arrangements through negotiation or dispute resolution, I would not want any delay in the filing of a court application.
Conclusion
For the reasons set out in this judgment I will make the orders set out at the commencement of this judgment. These orders also incorporate the orders made by consent of the parties on 29 August 2019.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 28 January 2020
Exhibit F1: Father’s proposal;
Exhibit F2: Father’s proposal and mother’s proposal;
Exhibit M1: Mother’s minute of order sought;
Exhibit F3: Letter from Forge Legal to Hopgood Ganim;
Aide Memoir 1: Orders sought comparison table.S.60CC(3)(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).
S.60CC(3)(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.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, 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.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(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.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(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.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parentsS.60CC(3)(h): If the child is an Aboriginal child or Torres Strait Islander child: (a) 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 (b) the likely impact any proposed parenting order under this Part will have on that right. See also S.60CC(6).
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Costs
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