Ferrer and Oldham
[2013] FCCA 1872
•15 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FERRER & OLDHAM | [2013] FCCA 1872 |
| Catchwords: FAMILY LAW – Parenting – best interests of the child – live with – spend time with – communication – when the child should commence school – exercise of equal shared parental responsibility – injunctive order restraining further specialist medical involvement with the child without the written consent of the parties save in an emergency. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2), 60CC(2)(b), 60CC(3), 60CC(3)(c), 60CC(3)(i), 60CC(4), 60(4A), 61DA, 61DA(2), 61DA(3), 61DA(4), 65D(1), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAB, 117 |
| Browne v Dunn (1893) 6 R 67 Sieling & Sieling (1979) FLC 90-627 |
| Applicant: | MR FERRER |
| Respondent: | MS OLDHAM |
| File Number: | CRC 153 of 2011 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 2, 3 and 4 October 2013 |
| Date of Last Submission: | 11 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2013 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Theobold |
| Solicitors for the Respondent: | Peter Marr & Associates |
| Counsel for the Independent Children's Lawyer: | Mr J Priestley |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Coffs Harbour Family Law |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
By consent, the mother and the father have equal shared parental responsibility for the child, X born (omitted) 2008 (“the child”).
By consent, each parent shall have the sole responsibility for making the day to day decisions concerning the care, welfare and development of the child when the child is in their respective care.
By consent, the child live with the mother at all times that the child does not live with the father.
That until the child commences school, the child live with the father on a two week cycle as follows:
(a)During the first week of the cycle, from 9.00am Friday to 9.00am Monday;
(b)During the second week of the cycle, from 9.00am Friday to 9.00am Sunday.
(c)By consent, at any other times as agreed in writing between the father and the mother.
By consent, in the December 2013/January 2014 school holidays the child will spend alternating weeks through the holiday period with the father.
That upon the child commencing school, the child live with the father as follows:
(a)During the school term as follows:
(i)Up until the commencement of the first school term in 2016, from Thursday after school to before school Tuesday morning in each fortnightly period commencing on the first Thursday of the child’s first week at school.
(ii)As and from the commencement of the first school term in 2016 from Thursday after school to before school Wednesday morning in each fortnightly period, commencing on the first Thursday of the child’s first week at school.
(iii)By consent, at any other times as agreed in writing between the father and the mother.
(b)During the school holiday periods:
(i)By consent, for one half of the Autumn/Winter/Spring school holiday periods which half shall be as agreed between the parties and failing agreement, being the first half in even numbered years and the second half in odd numbered years.
(ii)By consent, upon the child turning 8 years of age, for one half of the Christmas school holiday period which half shall be as agreed between the parties and failing agreement, being the first half in even numbered years and the second half in odd numbered years.
(iii)By consent, at any other times as agreed in writing between the father and the mother.
(c)Orders (a) and (b) above operate conditional upon the father constructing a separate bedroom for the child at his residence. Until this condition is satisfied, orders (5) and (6) above will otherwise operate for school and holiday times respectively.
By consent, the father and mother shall provide a safe secure and clean household environment for the child when the child is in his/her care.
By consent, the child spend time with each parent on special occasions as follows:
(a)During the Easter festive period as agreed between the parties and failing agreement with the father from 5.00pm Easter Saturday to 5.00pm Easter Sunday and with the mother from 5.00pm Easter Sunday to 5.00pm Easter Monday in even numbered years; and with the father from 5.00pm Easter Sunday to 5.00pm Easter Monday and with the mother from 5.00pm Easter Saturday to 5.00pm Easter Sunday in odd numbered years
(b)During the Christmas festive period, as agreed between the parents and failing agreement with the mother from 5.00pm Christmas Eve to 5.00pm Christmas Day and with the father from 5.00pm Christmas Day to 5.00pm Boxing Day in even numbered years; and with the mother from 5.00pm Christmas Day to 5.00pm Boxing Day and with the father from 5.00pm Christmas Eve to 5.00pm Christmas Day in odd numbered years.
(c)On Father’s Day with the father, in the event the child is not with the father on that weekend, from 9.00am to 4.30pm.
(d)On Mother’s Day with the mother, in the event the child is not with the mother on that weekend, from 9.00am to 4.30pm.
By consent, in order to facilitate the child spending time with each parent the delivery and collection of the child shall be at the child’s preschool/school or as agreed between the parents and failing agreement all changeovers are to occur at the offices of Interrelate (omitted).
By consent, the father and mother have liberal telephone communication with the child while the child lives with the other parent and each party will facilitate any request by the child to communicate with the other parent.
In order to facilitate telephone communication between the child and the parents, each parent connect either a landline telephone or have available an operating mobile telephone number at their residence.
By consent, the parents shall:
(a)Keep the other parent informed at all times of their residential address and contact telephone number;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child.
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the other parent.
(d)Provide photos and videos of the child to each other as requested in writing by the other parent to enable those photos and videos to be copied at the expense of the other parent.
(e)Keep and transfer between each parent a communication book to enable each parent to communicate in relation to the needs and interests of the child and to provide timely advice of the child’s social, sporting and cultural activities.
By consent, the parents authorise by this order, the School or preschool attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child.
By consent, each parent be at liberty to attend any school or preschool musical or sporting activity in which the child is participating.
By consent, during the time the child is with either parent that parent shall:
(a)Speak of the other respectfully;
(b)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.
By consent, in the event there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act1975 or by the Commonwealth Attorney-General; or
(b)Participate in family dispute resolution with a person under s.10G of the Family Law Act 1975.
The mother and the father each be restrained and an injunction hereby issue restraining each from taking the child to any specialist medical appointment without the prior written consent of the other party, save with the child’s current treating paediatrician, Dr A and unless in the case of an emergency.
No orders as to costs.
The matter be removed from the list of cases awaiting finalisation.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ferrer & Oldham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CRC 153 of 2011
| MR FERRER |
Applicant
And
| MS OLDHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
The father’s Amended parenting Application filed on 12 September 2013 concerns the child, X, born (omitted) 2008 and now aged five years and six months (“the child”).
The Respondent mother sought her own parenting orders for the child, as set out in her Amended Response filed 19 September 2013.
The father was self-represented.
The mother was represented by Mr Theobold of counsel.
The Court had appointed an Independent Children’s Lawyer for the child and Mr J Priestley of counsel appeared on behalf of the Independent Children’s Lawyer.
The parties during the course of the hearing, very sensibly substantially narrowed the areas of their dispute. As a result, substantial slabs of the parties’ affidavit material fell away and were not then relied upon.
The father ultimately relied on the following:
a)Paragraphs 13, 32, 33, 49, 52 to 54, 56 to 58, 94, 97 to 113 of his affidavit sworn/affirmed on 18 September 2013 and filed on 19 September 2013, as identified in Exhibits “A” and “B”, together with the annexures as referred to therein.
b)Affidavit of Ms S sworn/affirmed on 20 June 2011 and filed on 21 June 2011 (limited to paragraphs 3, 4, 5 and 6).
c)Affidavit of Mr K sworn/affirmed on 20 June 2011 and filed on 21 June 2011 (limited to paragraph 10).
d)Affidavit of Ms T sworn/affirmed on 20 June 2011 and filed on 21 June 2011 (limited to paragraphs 3 and 7).
e)Affidavit of Ms J sworn/affirmed on 16 December 2011 and filed on 20 December 2011 (limited to paragraphs 5 and 6).
f)Affidavit of Mr M sworn/affirmed on 14 April 2012 and filed 9 May 2012 (limited to paragraph 7).
g)Affidavit of Mr A sworn/affirmed on 1 March 2012 and filed on 9 May 2012 (limited to paragraph 7).
h)Affidavit of Ms N sworn/affirmed on 2 March 2012 and filed on 9 May 2012 (limited to paragraph 7).
The mother relied on the following:
a)Paragraphs 70, 71, 81 to 83, 90, 92, 93, 95, 97, 98, 100, 102, 119, 126, 128, 132, 154 to 165, 167 to 169, 171, 173 to 177, 181, 182, 184, 189 to 192 and 194 of her affidavit sworn on 11 September 2013 and filed on 12 September 2013, as identified in Exhibit “1”.
b)Affidavit of Ms K sworn on 24 July 2013 and filed on 10 September 2013.
Notwithstanding that the father says in his submissions that he has been forced to respond to the mother’s affidavit and in particular paragraph 102, where she says that she finds it difficult to communicate with him and feels intimidated by him and paragraph 119, where she says that the child had reported that the father had hit her on the arm and paragraph 120 (not being relied upon by the mother) and refers the Court to videos and parts of his affidavit material not relied upon during the hearing, those matters were not put to the mother in cross‑examination and are not now to be led as evidence through the husband’s submissions (see Browne v Dunn (1893) 6 R 67). In any event, neither counsel for the mother nor the Independent Children's Lawyer refers to this matter and the Court repeats its view as set out in paragraph 82 below.
There was no cross-examination of the father’s witnesses. Ms K for the mother, however, was the subject of cross‑examination.
The Court ordered a family report which was prepared by Ms B and that report has become Exhibit “Court 1”. Ms B was examined and her oral evidence was substantially in accordance with her written report (see paragraph 35 below).
The parties agreed that the document represented as Exhibit “Court 2” set out their competing parenting proposals. The Court will, by consent, make the orders in terms of that document which the parties and the Independent Children’s Lawyer have agreed to. Those orders are orders 2, 3, 4, 5(c), 6, 7(a)(iii), 7(b)(i), (ii) and (iii), 8, 9, 10, 11, 13, 14, 15, 16 and 17 as set out at the commencement of these reasons. However, the Court notes that the father’s written submissions received 11 October 2013, raised an issue concerning order 13(d) which he submitted amounted to a property settlement issue and which could lead the parties to further disputation. In those circumstances, the Court will insert the words “of the child” after the word “videos” and the words “as requested in writing by the other parent” after the words “to each other” in that order as that would deal with the issues of enforceability and the father’s submission that the disclosure of such material is a matter of the “good-will” between the parents.
The remaining issues in dispute, as set out in Exhibit “Court 2”, are summarised by the parties’ competing proposed orders in terms of proposed orders 3, 4, 5, 8 and 16 within that document as follows:
(3)That the child live with the mother/live with the father (as proposed by the father) and spend time with the father (as proposed by the mother).
(4)The mother be assessed by a Clinical Psychologist, registered in NSW, in the event that the mother is assessed as not having mental health issues that would limit her capacity to provide for the child (as proposed by the father).
(5)That until the child commences school, the child live with/spend time with the father on a two week cycle as follows:
The Independent Children’s Lawyer proposes and the mother proposes:
a)During the first week of the cycle, from 9.00am Friday to 9.00am Monday;
b)During the second week of the cycle, from 9.00am Friday to 9.00am Sunday.
The father proposes:
a)During the first week from 9.00am Friday to 9.00am Monday.
b)During the second week from 9.00am Friday to 9.00am Tuesday.
(8)That upon the child commencing school, the child live with/spend time with the father as follows:
a)During the school term on a two week cycle as follows:
i)The Independent Children’s Lawyer proposes: conditional upon the father building a bedroom:
1.During the first week of the cycle from Thursday after school to before school Monday morning; or
2.During the second week of the cycle from the conclusion of school on Wednesday to the commencement of school on Friday.
3.In the alternative to 1 and 2 above for a block period of 5 nights a fortnight from Thursday after school to before school Tuesday up until the commencement of school in 2016 and thereafter for 6 nights from Thursday after school to before school Wednesday.
ii)The father proposes:
1.Week about from 9.00am Monday to 9.00am the following Monday.
iii)The mother proposes: subject to the father constructing a separate bedroom:
1.A two week cycle – during first week each alternate weekend from Friday afternoon to start of school on Monday;
2.During second week from Thursday after school to start of school on Friday.
3.The mother also considered the suitability of (i)(3) above.
(16)The father proposes: The mother has a mobile switched on at all times the child is with her.
The mother proposes: That in order to facilitate telephone communication between the child and the parents, each parent connect a landline telephone to their residence.
The Court does not deal with proposed order 6 in Exhibit “Court 2” as by the time of the hearing the school holiday time sought in that order had already passed and accordingly, this was no longer a relevant issue in dispute.
Principles to be applied and procedure to be followed
Section 65D(1) of the Family Law Act 1975 (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of ss.61DA and 65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
Section 65DAB of the Act requires the Court to have regard to any parenting plans entered into between the parties. This is not relevant on the facts of this case.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing, the Court considers it inappropriate (s.61DA(3) of the Act) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for her parents to have such equal, shared parental responsibility (s.61DA(4) of the Act) [emphasis added].
The making of an order for equal shared parental responsibility is however, not of itself determinative of the amount of time that a child is to spend with her parents but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA(1) and (2) of the Act.
By virtue of s.65DAA(1) and (2) of the Act, the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” with both of her parents.
“Substantial and significant” time is defined in s.65DAA(3) of the Act as:
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.
To determine what time orders should be made under s.65DAA(1) and (2) of the Act, the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must affirmatively answer both of these questions for it to have the power to make an order of that nature. See the High Court of Australia’s decision in MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” order as is, otherwise, in the best interests of the child.
The best interests of a child remain the paramount consideration: s.60CA of the Act.
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
“(1)The “objects”…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” … are … :
(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 been 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 a right to enjoy the culture with other people who share that culture).”
Section 65DAA(5) of the Act provides that the Court must have regard to certain specific matters to determine whether the actual spending of either “equal time” or “substantial and significant” time is reasonably practicable.
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application but which may also be usefully examined here, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d)considering the matters in s.60CC of the Act that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s.61DA of the Act that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC of the Act, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) of the Act with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC of the Act, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC of the Act;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC of the Act; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Evidence
The parties relied on the affidavit material set out in paragraphs 7 and 8 above together with the following documents which were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
A
Father’s affidavit material
Father
B
List of affidavits to be relied upon by the father
Father
1
List of affidavits to be relied upon by the mother
Mother
Court 1
Regulation 7 Family Report of Ms B
13 May 2013
Court
2
3 pages of a notebook commencing with entry 20 September 2013 and concluding with entry 22 September 2013
Mother
3
Last entry of a notebook
Mother
4
Letter from Dr A
26 February 2013
Mother
5
Pages 12, 13 and 14 of the 2011 communication book
Mother
6
Report from NSW Health Department Mid North Coast Local Health District
23 July 2012
Mother
7
Annexure “2” of affidavit of father sworn 20 February 2013
Mother
Court 2
Proposed Minute of Orders handed up by the Independent Children’s Lawyer
Court/joint
8
Book referred to as the Blue Book
Mother
C
Document headed “Turner Ward Case 11 June 2009”
Father
D
First 2 paragraphs on page 3 of the report of Dr T
Father
E
2 pages of handwritten entries of 11 June 2009 of the Clinic Progress Notes
Father
F
Page from the hospital records with entries 19 May 2010, 21 September 2011 and 16 November 2011
Father
G
S.60I certificate
23 December 2010
Father
H
4 photographs of the child’s bedroom and 1 photo of the mother’s bedroom
Father
J
Letter from the mother to the father bearing the date 23 January 2010, but which should be 23 January 2011
Father
K
Report of Dr D to Dr M
30 September 2013
Father
L
Photographs of the child’s legs taken by the father in 2012
Father
M
Document with Mr Ferrer’s imprint of his knuckles and where the child’s bruises are located
Father
The evidence closed on 4 October 2013 and the mother’s and the Independent Children's Lawyer’s submissions were made on that day. The father was permitted a further period of seven days to file and serve his written submissions. That is not an opportunity, however, to introduce evidence not relied upon at hearing and to the extent that his submissions sought to do that, such evidentiary material is rejected. The father was self-represented. Latitude was given to him during the course of the hearing in that regard. However, such latitude does not extend to denying procedural fairness to the mother and the Independent Children's Lawyer and to introduce such evidentiary material in the submission phase would do exactly that.
Factual Matters
There appear to be a number of relevant uncontested facts as follows:
a)The father was born on (omitted) 1954 and is currently 59 years of age.
b)The mother was born on (omitted) 1964 and is currently 49 years of age.
c)The parties commenced cohabitation in 2005.
d)In 2005, the father received his (omitted) Superannuation pension as a result of being medically retired from his (omitted) employment with the (employer omitted).
e)In 2006, the parties acquired a property being acreage at Property K and lived there as their family home.
f)In 2008, the father’s son, Mr K, and his then partner Mr D, lived in a separate dwelling on the Property K property, moving out in 2009.
g)The parties separated on the father’s version in March 2009 and on the mother’s version in January 2011. It would appear that at times the parties lived in separate dwellings on the same property from 2009 to 2011. While the mother agreed that the father slept in a different dwelling, she asserted that they still maintained a relationship until January 2011.
h)The father’s occupation is retired (omitted).
i)The mother’s occupation is an (omitted), working part-time.
j)The mother lives in a shared rented house in (omitted), having moved there when the child commenced preschool.
k)The mother receives a Parenting Payment (Single).
l)The child attends two days per week at (omitted) Preschool.
m)The father has three adult children from a previous relationship with his former wife, Ms R, who is now in a relationship with Mr L. Those children, being namely Ms S (31 years of age), Ms T (29 years of age) and Mr K (25 years of age). The father has four grandchildren.
n)The father has a girlfriend by the name of Ms W who does not live with him. Ms W resides in the (omitted) area.
o)The mother has one adult child of an earlier relationship, namely Mr L, who is currently 26 years of age.
p)The child has been under the care of Dr A, a specialist paediatrician in (omitted) since January 2009.
q)On 23 February 2009, the child was admitted to (omitted) Children's Hospital. Multiple tests failed to identify any medical cause for the child’s “failure to thrive” assessment.
r)On 21 April 2009, Dr A referred the child to Ms P, a dietician, with respect to increasing her caloric intake. The child was then in good health, apart from being underweight.
s)On or about 11 June 2009, the child was again admitted to (omitted) Children's Hospital.
t)On 12 September 2009, the child was treated at (omitted) Hospital (Emergency) after falling and hitting her head.
u)On 8 January 2010, the child was treated at (omitted) Hospital (Emergency) after falling.
v)On 5 March 2010, the child was admitted to (omitted) Children's Hospital and diagnosed with Giardia.
w)In March 2010, the child entered an annual medical screening program for Lupus.
x)On 2 September 2010, the child was treated at (omitted) Hospital (Emergency) for convulsions.
y)On 10 November 2010, the child was treated at (omitted) Hospital (Emergency) after choking on nuts while drinking.
z)On 21 October 2010, the child was treated at (omitted) Children's Hospital to have a piece of nut removed from her bronchus.
aa)On 10 February 2011, the mother moved to (omitted), north west of (omitted).
bb)On 9 March 2011, the child was seen by Ms E, dietician.
cc)On 30 May 2011, the father commenced these proceedings initially in the Local Court of New South Wales at Coffs Harbour.
dd)In January 2012, the child was enrolled in (omitted) preschool, attending one day per week which increased to two days in 2013.
ee)In July 2012, the child was treated at (omitted) Hospital where her appendix was removed.
ff)On 18 July 2012, the then Department of Community Services inspected the father’s home and gave him advice on how to improve it for the child.
gg)On 23 July 2012, workers from the then Department of Community Services did a follow‑up inspection of the father’s home.
hh)On 31 July 2012, the then Department of Community Services confirmed that there were no current risks of harm for the child whilst in the father’s care.
ii)In December 2012, the child attended an optometrist, Ms L in (omitted).
jj)On 20 March 2013, the child was treated at (omitted) Hospital in relation to a salmonella infection. The child was subsequently readmitted on two occasions in April 2013, with respect to that same issue.
kk)By orders made on 24 May 2013, the parties resolved their property issues in dispute after attending at a Conciliation Conference.
ll)On 14 September 2013, the child was treated at (omitted) Hospital with respect to throat infection/tonsillitis.
There appear to have been a number of relevant matters in dispute between the parties over time which were identified as follows:
a)Whether the child is underfed by the mother or not.
b)Whether the father is controlling or not.
c)Whether the father has limited patience with child-rearing and becomes authoritarian and emotionally rejecting towards the child.
At the time of the hearing, Mr Priestley of counsel identified three principal issues being communication between the parents, the child’s health and the child’s schooling. This position was confirmed by Mr Theobold of counsel and by the father.
During the course of the evidence and, in particular, following Ms B’s evidence and the parties’ agreement as to equal shared parental responsibility, it became apparent that there was insufficient evidence before the Court for any decision to be made concerning the parties’ then competing proposals for the child’s schooling to commence in 2014. Ms K very helpfully suggested in her evidence, that she would be able to assist the parties in making a decision concerning the child’s schooling after further investigating that matter. Accordingly, the schooling issue is not now relevantly before the Court. The Court would hope that both parties would be able to choose a school which not only encourages the academic development of the child but also is able to promote each party’s involvement in the child’s schooling experience going forward.
Expert evidence
The family report writer’s report (which is Exhibit “Court 1”) was based as she described, on the material provided by the parties and the interviews conducted. While Ms B records that her report should be read in conjunction with the previous family report prepared by Dr S, dated 8 November 2011, no reliance was placed on that report given objections taken to it. The family report writer records that the strengths of her assessment included observations conducted with the parents and the child which were to the following effect:
a)The child has lived with the mother since separation.
b)After separation, the father agreed to 12 sessions of supervised time with the child at Interrelate. The mother had wanted to extend these sessions.
c)A Parenting Plan could not be negotiated between the parties and the father applied to this Court.
d)An interim order was made by consent on 23 June 2011, providing for the father to have time with the child from 9.00am to 1.00pm each Friday and Saturday, with changeovers at Interrelate.
e)A further interim order was made on 9 August 2011, which increased the father’s time with the child from 9.00am on Fridays to 4.30pm on Saturdays each week.
f)The father, notwithstanding earlier proposals, stated that he wanted the Court to make an order along with equal shared parental responsibility for the child to live with him at least half the time, so that he could work with the child on expanding her diet and the amount of food that she eats.
g)The father presented as being very concerned about the child’s lack of physical development (weight and height) and constant ill-health. He reported that the child had been recently hospitalised on two occasions, one for six days and one for three days. The father stated that the child was regularly ill (every two weeks) and often taken to and admitted to hospital.
h)The father believed that the mother did not feed the child adequately and that the child had had ongoing feeding difficulties, since she was six months old. The father said the child had been diagnosed as “failing to thrive” as an infant and sent to (omitted) Hospital twice. The father asserted that the mother had not acknowledged her declining breast milk production and later failed to adequately comply with the then recommended supplementary feeding regime. The father asserted that the mother began to blame him, alleging that he suffered with bi‑polar disorder and had been violent during the relationship and during his previous relationship, which he denied.
i)The father acknowledged that he had been chronically depressed for a time but stated that his depression ceased when various life stressors and crises had been removed.
j)The medical records examined by the family report writer confirmed that the child had been between 2009 and 2011 struggling to gain weight. This appeared to occur at a time when the mother was not producing as much milk due to thyroid function issues.
k)The father stated that the mother had taken food off the child if other people gave her food and rejected meals cooked by him, giving the child very small quantities of food and had been essentially obsessed with low-fat food. The father asserted that Dr A (being the child’s treating paediatrician) had advised that the child should be on a high-fat diet, including chocolate. The father confirmed that he could adapt by giving the child white chocolate, as the mother preferred that type of chocolate.
l)The father expressed concerns about the mother not having the child weighed.
m)The family report writer noted the medical records of Dr A which stated that he believed in the long term the child would be fine and that both parents had been given a food plan to enrich her diet and that her “failure to thrive” was most likely due to caloric restriction at the time.
n)The father in cross-examining the mother raised with her the child’s “failure to thrive” and sought an explanation from her as to her understanding of “caloric restriction”. It was clear that the mother understood that the child needed to eat more frequently and in greater quantities and that this was a matter that both parents had to work together on. The father was further critical that the mother’s household at dinner time had been described as involving a “high level of social and meal time stressors”, as reported by Ms E, dietician. The mother conceded that this may have been the case as she had felt that the father’s constant concern with respect to this issue had placed her under pressure at dinner time to ensure that the child was eating and that this, in turn, had the potential to have a negative effect on the child’s actual consumption at meal times.
o)The family report writer noted from the report of Ms E dated July 2012, that the child appeared to be meeting her anticipated growth requirements and did not require ongoing dietetic care at that time and that she had been discharged from ongoing care with the service.
p)The father expressed concern that what he perceived as the mother underfeeding the child, was as a result of a psychological disorder and about the mother’s sense of control and being “in her element when [the child] is ill or hospitalised”.
q)The father acknowledged that the mother appeared to be loving and concerned and wanted the best for the child but that she manipulated the child and involved the child in disputes with others, including his son, Mr K.
r)The father stated that currently cooperation and communication between the parents was “quite good” and he rated it as being “7 out of 10”.
s)The father noted that both parents were able to attend in hospital when the child was there and to communicate with respect to the child’s treatment.
t)The father further noted that the mother had advised him if she was taking the child to hospital and that the parties had recently agreed to vary interim parenting arrangements, so as to effect an exchange of the child in Sydney. The father believed that he and the mother were able to be flexible with each other and that there was communication and “give and take” between them. The father said that changeovers were peaceful and that the parties communicated directly by phone and when they saw each other in the local community.
u)The mother confirmed the father’s view and stated that she had recently asked the father to have lunch with her and the child to celebrate their property settlement. She also noted that she had recently invited the father to come into her house. The mother in cross-examination, however, said that this was very much as a result of the child making that invitation in the presence of both the father and the mother at the time of the child’s birthday.
v)The family report writer noted relevantly, that the mother reminded the father that the child’s antibiotics were in the fridge in the Contact Centre. The parties were observed to get the medicine together and that the father said that he would call around to her house to collect the child’s Inner Health supplements.
w)While the father stated to the family report writer that he believed he was no longer angry about the mother’s claims against him and was trying to accept her and work towards a good relationship, he appeared in Court to be focused on showing that the mother’s claims as to him being bi-polar and violent were not only false but to an extent maliciously made by the mother.
x)The father also stated that he remained wary of the mother’s further allegations, given the history to date but said he focused on his Dao philosophy of improving himself for the future.
y)The father referred to a video being taken of an altercation between him and the mother which he said clearly showed the mother’s lack of fear of him and her own aggression. Importantly, whilst a DVD was attached to one of the father’s affidavits this was not sought to be put before the Court. The father is to that extent to be congratulated in moving beyond that incident.
z)The father stated that he was not in a new relationship and used alcohol minimally and did not smoke or use drugs. In cross‑examination he confirmed that he had a “girlfriend” in Ms W but that he did not live with her. There was no evidence filed on behalf of Ms W.
aa)The mother presented as being a very intelligent and organized person.
bb)The family report writer further noted that both parties had heavily invested in the dispute and had numerous documents corroborating their position and claims.
cc)The mother was not in a new relationship and said that she did not use illegal drugs and drank alcohol minimally.
dd)The mother said that she had a low level of trust in the father.
ee)The mother complained that the father needed to sleep during the day. The father acknowledged that he had some sleep disordered breathing issues which caused periods of wakefulness during the night.
ff)The mother’s worst fear for an equal time arrangement was that it would disrupt the child’s sense of security and well-being. The mother said: “I think she’s better off with one base”. The mother stressed that she was the primary carer, she stayed overnight in hospital when necessary with the child and noted that the child became stressed if she thought the mother was going to leave her.
gg)The mother expressed concerns that the father was forcing the child to eat more than was necessary, causing her to vomit.
hh)The mother showed the family report writer the child’s “blue book” which showed that the child’s growth had been regularly monitored by the Health Clinic and that in July 2011 she had “made it into the growth curve” and was now growing. She was apparently then tracking on the 5th percentile. The mother showed the family report writer a dietary plan which she noted had been developed in August 2011 and was very detailed and covered every aspect of the child’s diet and feeding regime.
ii)During the parent’s joint interview, the family report writer discussed with the parties what the child ate and each appeared to be actively involved in that process and had a good understanding of the required food groups and quantities. The Court notes from the observations of the report writer that both of the parties appeared to be “on the same page” as to those matters.
jj)Both parents agreed that the child needed to eat more and for her immunity to be boosted including agreeing to the child taking “Inner Health Plus” supplements. Both parents agreed that the child’s health was “fragile”.
kk)The family report writer noted that the father had agreed to put a stool in front of the wash-basin so that the child could wash her own hands whenever she wanted to, as well as when he thought it was necessary, adopting the family report writer’s suggestion, so as to diffuse an issue of difference between the parents as to the frequency of the child washing her hands, particularly when the child had come into contact with the parties’ dogs, being “(omitted)” in the father’s home and “(omitted)” in the mother’s home.
ll)Ms S, being the father’s eldest daughter, was interviewed and presented as being a confident and happy young woman who was very supportive of the father and concerned for the child. She supported the father’s evidence that she had not observed him to be physically violent.
mm)Ms S noted that the child was quite demanding and controlling towards both parents. This was also evidenced by her demands for the father to attend at her birthday at the mother’s home when it was raining as her birthday was, otherwise, to have been held in the park.
nn)Mr L, the mother’s adult son, supported the mother’s position and had a close relationship with the child.
oo)Both parents describe the child as bright and intelligent. She appeared to have above average language skills.
pp)Both parents described the child as clingy and wishing to sleep with a parent. The mother was seeking to have the child sleep in her own bed which was in a bedroom attached to her bedroom as part of an enclosed veranda. The father took objection to the mother’s evidence that this was a “separate” bedroom, as there was no solid separating wall between the bedrooms. The father’s evidence was that there was only one bedroom in his home and that the child had a bed at the foot of his bed. He, too, said he was encouraging the child to sleep on her own.
qq)The father denied any allegation that he had bruised the child on her arm, when it was asserted by the mother that the child had said that the father had hit her after she had stepped on the dog. The father in his evidence produced copies of the imprints of the bruising showing that it was inconsistent with the size of his hand.
rr)The family report writer noted that there were no records from Interrelate as to the child returning unhappy or traumatised after visits with the father.
ss)The family report writer’s observation of the subpoenaed records produced from the Department of Family & Human Services did not raise any particular concerns.
tt)The family report writer’s observation of the subpoenaed medical records indicated that the mother had informed the child’s psychologist, Mr W that the father had been violent towards her.
uu)The family report writer’s observation of the subpoenaed records from the Interrelate contact centre was all positive regarding the father’s interaction with the child. Those notes also describe the mother as being somewhat “anxious and sombre”. Further, it appeared that the mother was reluctant to accept suggestions for lessening the child’s anxiety around transitions and for her not to “draw out the leave taking” for the child.
vv)The child was observed to be always “happy and enthusiastic” to see the father. Significant weight is attached to that observation.
ww)The child presented as being a small and rather delicate and quiet little girl. The family report writer confirmed that the child was very intelligent and that she “happily described her family members in positive terms, carefully noting that [the] father could be described as being the same as [the] mother; that is, with a big kindly smile and cuddles”.
xx)Both parents were observed to play appropriately with the child.
The family report writer stated the following within the terms of her evaluation:
a)The parents had been separated for some time and had lived in a deteriorating relationship for some time prior to separation.
b)Both parents are highly intelligent, as is the child.
c)Both parents have extensive experience in academic pursuits and are, therefore, skilled in mounting a case against the other and supporting their views of reality.
d)Both parents dearly love the child and despite both having other adult children, they both feel the child is special.
e)The child’s special position in the family has been enhanced by her failure to thrive and ongoing fragile health. Both parents have at times, blamed the other for the child’s ill health and the issue of food intake has been contentious since she had been an infant.
f)From all reports the child is not underfed, either purposefully or subconsciously and that both parents are focused on helping her to gain weight. The father’s stated worse fear that the child might die if he could not assist her to eat more and improve her immunity was an indication of her importance to him in his life, rather than being a reality-based concern.
g)The mother was likely to be somewhat over-protective towards the child, mostly as a result of her ongoing health problems.
h)The child is quite powerful in relation to both of her parents.
i)The child has been exposed to the mother’s view of the father and at times repeats her views back to the mother as an expression of loyalty.
j)The transitions between the parties are likely to have been anxiety provoking for the child.
k)The mother’s fears and her view of the father reflected her perception of her own relationship, rather than having a basis in reality regarding the child’s relationship with the father.
l)Both parents treat the child very gently in all respects and the child is well aware of her unique power in her relationships with them.
m)The father has had more behavioural expectations of the child than the mother and that he is more likely to foster independence in the child. The child’s sleeping with both parents and resisting sleeping alone reflects her awareness of their respective needs of her as well as her anxiety mostly due to her awareness of the parental conflict.
n)The parents are now at a point when they are more open to discussing their differences regarding parenting with each other for the child’s sake.
o)The child’s intelligence will soon lead her to exploit the lack of open communication between the parents should it continue. Their distorted views of each other will also distort her view of herself in relation to their parental role with her if left unchallenged. Both parents were open to commencing counselling/mediation to design an increasing time arrangement with the father prior to the child commencing school. It was also suggested that short three day alternating blocks during the remaining two shorter school holidays in 2013 would be appropriate. It was also suggested that alternating weeks at Christmas in 2013 would be appropriate and that half of the school holidays could commence in 2014.
The family report writer makes the following recommendations in her report:
a)That the parents have equal shared parental responsibility for the child.
b)That the parents attend counselling/mediation at Interrelate as soon as possible to assist them to design and implement an arrangement of increasing time with the father before the child starts primary school. This process should culminate with an almost equal time arrangement [emphasis added], whereby the child spends from Thursday afternoon after school to Monday morning at school in one week and from Wednesday afternoon after school to Friday morning at school in the alternate week. (That is six nights in a fortnight.)
c)That increasing time with the father occur in the school holidays in short mini-blocks during 2013, culminating in block periods of a week in the shorter school holidays and half of the Christmas school holidays in 2014.
d)That the Court makes orders for special times and other issues in line with the mother’s Amended Response.
The Court has quoted extensively from the family report writer’s report as set out above. The family report writer was orally examined and her evidence was entirely consistent with the terms of her written report. Her oral evidence was to the following effect:
a)That following provision of the parties’ updated material, there was nothing that she had seen to cause her to change her recommendations as referred to above.
b)That her views remained that both parents were very good at arguing and were skilled at presenting their own cases.
c)That she was unable to comment on the school issues but confirmed that the parents were properly investigating options.
d)That whether she believed what the mother said or not did not detract from her clear observations that the child was very strongly attached to the mother. Weight is attached to that.
e)That the father was actively and positively engaged with the child and displayed an appropriate parenting ability with proper attention to safety issues concerning the child.
f)That both the father and the mother were engaged in a competitive fight where episodes and events had been raised, hurtful to each other and that this had had an adverse effect on all as the parents were looking towards what was fair to them as adults rather than for the child.
g)That to adopt a complete week about time regime would be “fairly hard on the child”. Significant weight is attached to this view, in support of the Independent Children’s Lawyer’s proposal.
h)That Dr D’s measurement of 98.5 centimetres being on the first percentile appeared at odds with Dr A’s measurement of 100.5 centimetres, suggesting that the child had improbably shrunk. Dr D’s weight measurement of 15 kilograms appeared more consistent with Dr A’s measurements of 15.2 kilograms, given that weight is more likely to fluctuate on a day-by-day basis.
i)That even if the father’s view was correct, namely that the mother had been untruthful in her history of engaging with a psychologist, that was not sufficient to change any of her recommendations.
j)That the mother was overprotective and had done things towards the father that had potentially reflected that overprotectiveness.
k)That her statement that the child was not now underfed was based on her assessment from all the reports she had had access to and was a statement of the present position known to her.
l)That both parents were focussed on the child’s needs to eat a greater quantity of food in smaller amounts so that the child enjoyed the meal experience. Both parents talked about what each fed the child and both appeared satisfied with the other’s supply of food for the child. Weight is attached to that.
m)That the parents were able to communicate particularly about medication issues and to exchange medicines.
The Court finds that the Independent Children’s Lawyer’s proposed orders are largely supported by the recommendations of the family report writer and those recommendations are afforded significant weight, given that the recommendations and opinions expressed (and assumptions and observations which grounded them) were soundly based in accordance with the body of evidence before the Court and none of the relevant factual matters relied upon by the family report writer have been found to be inconsistent with such evidence. The Court has had regard to the general observations set out by the Full Court of the Family Court of Australia in Hall & Hall (1979) FLC 90-713.
The father’s evidence
The father says that he had been trying to get the child onto solids and formula and that the mother was taking food away from the child when it was given to her by the father or members of the father’s family.
The father said that the mother behaved erratically in relation to the child’s feeding, throwing away chicken patties on the basis that they contained too many food additives, but then feeding the child quiche with as many food additives in it. The father says: “I was so incensed that I kept the ingredients list for both products for future reference”.
The father was critical that the mother had cancelled consultations with Dr A.
The father says that between November 2008 and January 2011, the mother underfed the child.
It appears agreed between the parties that the mother had difficulty producing milk shortly after the child’s birth.
The father expressed concerns given the height of the mother (159 centimetres) and himself (169 centimetres), that the child’s weight and height “continuously tracked below the third percentile”. He says “genetic or inheritance cannot explain the lack of growth”.
It appears also agreed that the child’s “failure to thrive” was as a result of a lack of caloric intake as identified by Dr A. The mother agreed saying that she had difficulty having the child increase her caloric intake. She further said that the father’s constant concerns about this issue had put pressure on her which increased the level of anxiety at meal times and which in turn, had a negative effect on her ability to encourage the child to eat more.
Ms J confirmed that the father was meticulous in the child’s care and encouraged her to eat. Ms J reports in December 2011, that the child now “eats normally with other children when at the centre and plays well with other children”. She also reported that the mother was very “controlling about what the child ate” and “put little morsels directly into her mouth one at a time, rather than encouraging her to be a bit independent with a plate in front of her with a few things on it”.
The balance of the affidavit material relied on by the father supported his active encouragement for the child to eat healthily and to encourage her interaction with other children. The relevant paragraphs of the affidavits as relied on by the father from his adult children were supportive of his position.
The father evidenced a clear distrust of the mother in that he asserted that her folder containing every receipt for the purchase of formula over time was simply to create a record for the Court, rather than evidence her administration of food supplements for the child. The Court accepts that the mother collected and collated that material to largely deal with the father’s concerns. The Court, however, accepts that she too was concerned about the child’s growth and was attending to it. There was no evidence of any underlying medical or psychological issue affecting the mother as asserted by the father in regard to this issue.
The father was critical of what he believed was the mother’s failure to accept that he could exercise equal shared parental responsibility and in particular, his valued experiences within the schooling system. The mother’s position at the time of the hearing was clear that she agreed to an order for equal shared parental responsibility.
The father was also concerned the mother had informed other people including medical personnel that he had suffered from depression, was bi-polar and had sleep apnoea issues. The father disputed this and no doubt he was upset by this disclosure. The father saw this as representing a degree of dishonesty in the mother which precluded her from remaining as the primary caregiver. The mother was similarly concerned that the father’s fixation with the child’s health was having a negative impact on both her and the child.
The father was also intent on showing that the mother was misleading the Court and others as to certain matters, but the matters which he substantially referred to had little relevance to the child’s living arrangements. For example, he was concerned that the mother had lied in reporting to Ms C that she, until recently, had not previously accessed the services of a psychologist. The father showed medical records that she had received treatment from a psychiatrist, Mr P in 2004. That was some four years before the child was born. Similarly, see paragraph 51 below.
Both parties confirmed that the child enjoyed the company of each and in particular, was comforted by being able to sleep in a parent’s bed and indeed, both were encouraging the child to sleep independently in her own bed.
The father was critical of the mother’s description of the child’s bedroom as being a “separate” bedroom, which he saw as misleading when it was in fact an enclosed veranda attached to her bedroom. This evidenced a level of competition between the parents, as the father had one bedroom with the child’s bed at the foot of his and the mother asserted she had two bedrooms with the child having her own bedroom. This level of disputation did not assist the parties in resolving issues and in concentrating on the best interests of the child.
The father was critical of the mother in failing to take the child to the health clinic, dietician and Dr A for measurements for the child and in particular, her production of the child’s Blue Book which he said had misrepresented a position to the family report writer and the Court. The Court heard the mother’s evidence about the child being measured and formed the view that the Blue Book was not inaccurate and indeed, the mother had measurements taken whenever the child was taken to appointments. The father submitted that the mother had made recordings in the child’s book in her own handwriting and that these were not in fact done by health professionals. This was not put to the mother in cross‑examination by the father and his submissions cannot now introduce evidence to that effect. There needs to be an end to litigation (see Browne v Dunn (1893) 6 R 67). The Court accepts that the mother was well aware that the father was concerned about the child’s growth and that she carefully monitored that position to not only protect the child but also to deal with the father’s numerous assertions. The Court accepts that the evidence shows that the child is otherwise in good health and thriving. The father’s continued concerns in this area are likely to place the child in ongoing conflict with the mother. As the father asserts whilst the child had reached a particular percentile, he was critical that this did not mean she was “tracking on it”. The father conceded that the Independent Children's Lawyer’s submission was correct, namely that as long as the child is tracking at a particular percentile, that is satisfactory progress. If one drops off a percentile band, then that is when there could be a problem. The father said that the child’s weight at 15.2 kilograms (if accurate), as he submitted and as was reported by Dr A in August 2013 and at 15 kilograms as reported by Dr D at the end of September 2013, (noting that Dr D’s letter of 30 September 2013 was admitted into evidence without the handwritten notes as to height and weight, given the disputed circumstances in which they were produced and the lack of any affidavit from the said Doctor), places the child in the 3rd percentile. The child’s height at 100.5 centimetres appears only slightly under the third percentile (as shown in the child’s Blue Book). Both parents were observed not to be of tall stature and therefore, it is likely that the child’s height will be to a degree, reflective of that genetic input, as was submitted by the Independent Children's Lawyer. The Court accepts that while the child’s health needs to be monitored to ensure as the Independent Children’s Lawyer submits, that she does not fall off the appropriate percentile track, this degree of “nit picking” should not assume such significance as to cause ongoing parental disputation which is more than likely to have a greater potential for a negative effect on the child’s ongoing health. Similarly, unless the parties otherwise agree, engaging a second opinion from another paediatrician is only likely to increase parental conflict. The child’s current paediatrician should be engaged by both parties to discuss the child’s progress.
The Court accepts that the father is very focused on the child’s health and has her interests clearly at the forefront of his thoughts, however, he needs to reflect on how his articulated concerns against the mother also have the potential to negatively impact on the child and her health.
The father’s criticism of the Dr S report contained in paragraphs 110 to 113 of his affidavit does not need to be evaluated as Dr S’s report was not relied upon.
The Mother’s evidence
The mother asserted that the father was critical of her care for the child and blamed her for the child failing to thrive and for the child being positioned on the lower end of the growth scales.
The mother maintains that a communication book has assisted the parents to communicate in relation to the child.
The mother is also critical of the father in failing to pay for supplements for the child’s dietary needs, the costs of an Early Intervention assessment as recommended by Dr A, contributions toward the gap cost for Dr A’s appointments, swimming lessons, kinder gym, ballet lessons, music lessons and tennis lessons.
The mother’s evidence was that she had advised the father of the child’s hospitalisation in June 2012 and that she had agreed to share the child’s care during that period of hospitalisation.
The mother says that the father was fixated on him spending time with the child, even when the child was ill or in hospital. She asserted that the father considered that he was more experienced than her in being able to care for the child when the child was ill.
The mother says that she finds it difficult to communicate with the father as she feels constantly under criticism in relation to the care she gives the child and that this criticism makes her “very anxious”. She further says that she is fearful of and intimidated by the father. The mother refers to an incident in September 2011 when she says she observed bruising on the child’s right arm and that the child had said to her that when she had poured sand on the dog at the beach the father had hit her on the arm. The father disputed this and produced an imprint of his hand and the bruises so as to evidence that the bruising was not consistent with him hitting the child. The mother conceded that there were discussions in the communication book about the child’s bruising and that it was normal for a small active child to suffer bruising and that her enquiries with medical professionals had confirmed that position.
The mother asserted that because of the father’s ongoing criticism of her concerning the child’s food intake that this had made her even more anxious, so that it became harder for her to get the child to eat and that her anxiety meant that meal times were “not completely relaxed”. The mother said: “I was stressed because I felt pressured because I was blamed”. The mother said that she still did not understand why the child had failed to thrive, other than as a result of a caloric intake issue. The mother said, however, that in her view this was now in the past and the child was otherwise healthy. The Court accepts that position.
The mother conceded in cross-examination that it was she who thought the father may have suffered from bi-polar which she said had come into her mind after discussing matters with a social worker at the (omitted) Hospital. She conceded that she had no qualifications to make any such diagnosis. She also agreed that she had imparted her thoughts to other medical personnel and that this in turn, had caused the father a great deal of anxiety. She agreed that she had in the past considered the father’s property to be unsafe. This too had caused the father anxiety. The father’s anxiety increased when his time with the child was then the subject of supervision at Interrelate.
The mother stated that in January 2013, the child had reported playing on the veranda of the father’s home while the father was in bed.
The mother also asserted that the father had disciplined the child by locking her outside on the veranda at night as punishment for not eating her noodles and that the child was not let back in until she stopped crying. The mother said that this frightened the child.
The mother said that in order to avoid parental conflict, she had enrolled the child at (omitted) at (omitted), a preschool option proposed by the father.
The mother said that she had wished to delay the child commencing school. She discussed this with the father who wished the child to start in 2013. The mother said that she had obtained some advice from the child’s preschool principal Ms K which supported a delay. The mother said that she made this advice available to the father. The father attended the preschool to discuss the schooling issue with Ms K. The mother said that the father maintained that the child should commence school and that Ms K had a vested interest in the child staying at preschool. Notwithstanding this, the child did not commence school and the father at least in his cross-examination of Ms K, accepted her advice as good advice.
The issue as to the child’s schooling is the subject of further ongoing parental discussions and both parties have agreed that (omitted) College and (omitted) Primary School should be investigated as schooling options. Ms K’s evidence was that she would assist and support the parties in making an appropriate schooling decision and the Court is therefore, of the view that that is a matter for the parties to exercise their equal shared parental responsibility for the child, as agreed to be ordered. (See order 2 above and paragraph 70 below.)
The mother stated that the father had not attended an appointment with Dr A, the child’s paediatrician on 27 August 2013. While he may have been in attendance at the date the appointment was made in February 2013, he says that he did not receive any card or reminder of that appointment. The mother’s communication in the communication book did not make it clear as to when that appointment was to occur. The mother said that she assumed that the father had received an appointment card specifying the appointment date and that whilst she had received a reminder call, she did not pass that reminder onto the father. The mother also stated that she assumed that the father would keep a calendar as she did. Clearly both parties need to be able to communicate better, especially over specialist medical appointments concerning the child’s health, given the child’s health issues.
The mother confirmed that both she and the father had had lunch together at a café after the property settlement orders had been made. She also confirmed that the father had been “invited” into her house for the child’s birthday. The mother reluctantly conceded this as she said that he had been invited to the child’s birthday in the park but because it was raining and it had to be moved indoors, the child had insisted that he be invited in. The Court notes in this regard that the child was able to facilitate an agreement between the parents as to what she wanted to achieve on that occasion. This in turn, supports the assessment of the family report writer recorded at paragraphs 33(h) and (l) above.
Parental Responsibility
The Court has made an order, by consent of the parties and in terms of the recommendation of the family report writer, that they be afforded equal shared parental responsibility.
Accordingly, the Court must consider the issue of live with and spend time in accordance with the legislative pathway considering in those terms “equal time” and “substantial and significant time” in terms of the best interests of the child and whether such time is, otherwise, reasonably practicable.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which 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.
The father conceded that he had at times suffered from depression. There was, however, nothing in his medical history that otherwise relevantly negatively impacted on his parenting capacity. The mother conceded that while she may have discussed her observations of the father’s behaviour with a hospital social worker and concluded herself that he may have been “bi-polar”, there was no admissible evidence to that effect before the Court. The father took great objection to the mother referring to this issue to health professionals and saw it as an issue with the mother’s own mental condition that she would report such matters to such persons which he believed to be blatantly untrue.
The father himself conceded that while he had doubts concerning the mother’s mental health, given the matters he referred to in paragraph 73 above, there was no admissible evidence with respect to her mental condition which would otherwise negatively impact on her parenting capacity. Simply asserting, as the father does in his submissions, that events raise concerns about the mother’s actions and mental health is not enough and the father conceded as much.
Mr T for the mother submitted that, in those circumstances, there was no evidence to support an application for his client to be examined by a clinical psychologist and that it would be an invasion of his client’s privacy to continue this matter leaving it open to the father to come back to Court armed with some sort of report, given that any such application if it should have been thought necessary, should have been brought long before the commencement of the final hearing. The Court accepts that submission.
In light of paragraph 74 above and the fact that the father’s proposed order 4, as set out in paragraph 13 above, did not in any way connect relevantly to the implementation of a parenting order with the child, the Court will not make such an order. The Court does not have the power to make an order for a parent to undertake medical assessment unless it is a condition to a parenting order. See the Full Court of the Family Court of Australia’s decision in L & T (1999) FLC 92-875.
In those circumstances, the Court is of the view that the child has a meaningful relationship with the father and the alternative orders proposed by the Independent Children’s Lawyer being for a block period of time with the father for a period of five nights from Thursday to Tuesday commencing in 2014 and for a period of six nights from Thursday to Wednesday commencing in 2016 will ensure that that meaningful relationship is preserved and fostered.
The Court, given the weight attached to the family report writer’s recommendation, is not of the view that an equal time regime is currently in the best interests of the child. The Court accepts this, given the family report writer’s view that a complete week about regime would be “fairly hard on the child” and significant weight is attached to that expert view. This is so given also that the child has lived predominantly with the mother since the parties’ separation and is significantly attached to her.
Further, the Court is of the view that the parties’ level of communication (albeit improving) is still not at the level required to implement an equal shared time regime. Both parents conceded that they could have been more facilitative in using the communication book in making their own enquiries and in communicating with the other to remind each of medical commitments and appointments. The recent appoint with Dr A is but one example. The mother recorded that that appointment as scheduled for “next Tuesday”, which could have been 24 September 2013, when the father concluded he was not then available to attend but he did not tell the mother of that. It also appears that the appointment was in fact for 2 October 2013 when the mother, herself did not in fact attend due to her legal commitments, but sent her own mother with the child.
The Court accepts that after the parties had resolved their property settlement matters they met for lunch at a café in (omitted) and that that went well. That also bodes well for future communications.
Both parties acknowledged that communication was important for the ongoing best interests of the child to be served. The Court accepts that to facilitate an equal shared time regime, it is well understood that a high degree of parental communication and cooperation is required. The family report writer was not prepared to recommend an equal time regime at this time and substantial weight is given to that position.
The primary consideration referred to in s.60CC(2)(b) of the Act is inapplicable on the facts of this case, given that the parties’ competing proposals do not suggest that the child is in need of protection from anything.
Additional considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately to consider how together they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(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;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".
The Court finds that considering the age, maturation level and temperament of the child and given the views of the family report writer which the Court accepts, the child’s specific views were not sought nor expected. The family report writer observed a close and loving relationship between the child and the mother and similarly one as between the child and the father. The child was excited and happy to see the father and it would appear to spend time with him. Weight is attached to that.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The Court accepts that the mother has been primarily responsible in arranging for the child to attend medical appointments and particularly, those between May 2010 and the present. The mother has also taken the child to the health clinic and assessments with a dietician particularly in March, April, May and August 2011.
The child was able to convince the mother to extend an invitation to the father to attend her birthday party at the mother’s home, given that it was raining and an outside venue had to be changed. The mother agreed to this. Weight is placed on that in support of a strong relationship between both the child and the father and the child and the mother. This supports the family report writer’s evaluation as to the child being “quite powerful” in relation to both of her parents.
The Court accepts that both parents love and support the child and both are focused on her health concerns. Both parents deal gently with her. Both have a strong and supportive relationship with the child.
and other persons (including any grandparent or other relative of the child);
There is little evidence as to the child’s relationship with extended family members. The father’s adult children assert a good relationship with the child and this was not contested by the mother.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The parties were able to communicate and cooperate well, particularly at times when the child was hospitalised.
Both parties conceded that block times between the child and the other parent was to be preferred for the child. Weight is attached to that.
The Court accepts that there have been difficulties in the parents being able to facilitate and encourage a relationship between the child and the other parent, but that both have now expressed a desire through greater communication to seek to overcome those difficulties into the future. Both accepted an order for equal shared parental responsibility.
(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;
The father submitted that as the parties had agreed to alternating weeks in each vacation there would be some change and adjustment for the child during the school term if that was not continued. That may well be the case, but it is important for the child to have an arrangement in place during the school term which would otherwise meet the child’s needs and best interests and provide her with a degree of ongoing security, particularly as she is about to commence her schooling.
The Court accepts that given the child will be commencing her schooling in 2014, there is a need to ensure stability and a lack of disruption during the schooling week. Given the need to expand the father’s time, this needs to be done in a structured and staged approach. This supports the expansion of such time in the period up until the first school term in 2016 for five nights per fortnight and then from the commencement of the first school term in 2016 for six nights per fortnight.
or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no other relevant child.
The Court accepts that each party’s proposal provides more than adequate time for that party to ensure that extended members of his or her family are able to spend time with and interact with the child.
(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;
No practical difficulty or expense issue was relevantly raised by either party.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
Each of the parties had the relevant capacity to provide for the child’s day-to-day needs.
The Court was concerned that if the father continues to maintain, to the same degree he has in the past, his concerns about the child’s percentile growth in terms of height and weight, then this issue is likely to impact negatively on the mother’s care of the child. If this issue is maintained, where there is no medical basis for doing so, then the Court would be concerned to potentially reduce the father’s time with the child. The Court is of the view, however, given the father’s evidence, that that is unlikely to occur.
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;
No relevant matter was raised with respect to this factor.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The mother expressed concern about the father’s attitude to the past and in particular, his assertions as to her ability to protect the child so far as her calorific intake was concerned. As the father said “the child’s physical condition and the reason for it is the nub of this case”.
The father conceded in cross‑examination that there were no reports indicating that the child had any ongoing health issues. Weight is placed on that concession. For the father then to submit in his written submissions that there were “no reports that the child was healthy”, is simply bizarre. The family report writer observed the child. These observations confirmed that the child appeared healthy. The child has had, however, numerous admissions to hospital, including for tonsillitis, appendix removal and a salmonella infection. No issue of blame arises out of these events and the child was appropriately treated by hospital staff and other professional medical intervention. Both parties communicated over these issues.
The father himself described the child engaging in play activities such as on the swing, participating in a jumping game, playing hide-and-seek, shopping and eating lunch time meals of meat pies and vegetables and dinner time meals of pasta and vegetables (five different vegetables per day), orange juice/milk, bananas, strawberries and blueberries. The father described no eating issues so far as the child was concerned save that he carefully monitored the food types and sought to increase the child’s food quantities. The Court does not accept in those circumstances, that the father’s time with the child needs to be brought to equality in order to protect the child against eating deficiencies. The times recommended by the family report writer would enable the father to continue his involvement in the child’s dietary regime to ensure the child’s ongoing health and are recommended for the reasons she states.
Dr A in a report prepared and dated 27 August 2013 stated that in his review of the child then at five years and four months she was, otherwise, eating well and progressing normally in all other respects. She appeared happy and well and her nutrition was normal. He suggested a review and if the child’s tonsils remained significantly enlarged a reference to an Ear Nose and Throat specialist for further management and advice.
Ms K, the child’s preschool principal, observed that the child’s general development was appropriate for her age and she was “energetic” throughout the day. She recorded that the child “participates enthusiastically in all types of activities, including physical games” and “demonstrates the use of age appropriate self-feeding skills and independence”.
The Court accepts the mother’s submissions that it is the job of both parents to support each other as they parent the child. The mother’s evidence was that she has felt stressed about feeding the child since the child had been very young and that the father was the cause for some of that stress. As a result of that, she says the child is also stressed particularly around feeding times and food intake. The Court accepts that this litigation should bring that issue to an end.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply to this child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
While some protective matters were raised with respect to the father’s residence and importantly the need for the child to have her own sleeping accommodation, the father readily conceded that certain of the live with orders would be conditional upon him constructing a second bedroom for the child. The father accepted that the child’s bed at the foot of his own bed did not encourage her to sleep separately. Other matters concerning the state of his 100 acre property are of less concern, given the assessment of the father’s parenting ability and his observed attention to safety issues. The father’s evidence was that he carefully supervised the child when spending time on the property outside the living areas and had removed shipping containers, shed poles and other items and regularly checked the property to ensure its safety.
The father’s property had access to tank water which was used for washing and not drinking. Drinking water was carried into the property by the father using 20 litre drums filled from town water by the father. No issue is raised with respect to that.
(j) any family violence involving the child or a member of the child's family;
Apprehended Violence complaints made by the NSW Police on behalf of the mother against the father and by the father as against the mother were withdrawn and dismissed in May 2011.
The Court finds that this factor does not relevantly apply to this child.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
On 9 December 2004, an interim Apprehended Violence Order was issued against the father to protect his son, Mr K, former wife Ms R and daughters Ms S and Ms T. This order was made final on 20 June 2005.
The father’s evidence was that he had consented to the final order and the matters had arisen when he had sought to protect the family as against Mr K’s asserted drug taking. The Court notes that both Ms S and Mr K attended in Court to support the father’s case.
The Court finds that this factor does not, relevantly apply to this child.
(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
The father said that he sought “equal time” so that the mother was not seen as the “primary” caregiver. He said that this would, using the family report writer’s words, “end the war between the parents”. This to an extent evidences the level of competition between the parents. The father could “end the war” simply by accepting the orders made. The focus has to be on the child and at this point in time, that focus requires her to spend slightly more time with the mother than the father so as to give her the security she needs and for the other reasons referred to herein.
The father further submits that if the Court was not inclined to make an equal time order that the Court should specify a time in the future when such equal time could commence. The Court accepts that to do so may prevent the need for further litigation. However, the Court has to act on evidence and the expertise of the family report writer to which weight is given is to the effect that the parties are not, at the present time, in a position where she could recommend equal time. The orders the Court proposes provides that if the parties are able to agree to such equal time, then order 7(a) (iii) would facilitate that.
(m) any other fact or circumstance that the court thinks is relevant
The Independent Children's Lawyer submits that the father had an opportunity to go to the appointment with Dr A on 27 August 2013 and in attempting to explain why he didn’t go he got himself into a massive tangle which could only be explained away by the father being entirely less than frank with the Court. The father said that he had to go away to prepare documents for Court which he filed more than three weeks later. He said that he needed to access a friend’s computer at (omitted) in order to prepare those documents and to use the internet in their preparation. He then came back when he realised that that was wrong and stated: “I was confused. I don’t believe I was aware of it [the medical appointment on 27 August]”. Clearly of concern is the father’s assertions in relation to the child’s health and yet his failure to attend an important medical appointment or, indeed, to chase that matter up with the Doctor, when he was aware in February 2013 that it was likely that there would be a review in six months’ time. The father conceded that he should have made such enquiries so as to ascertain the appointment date. The Independent Children's Lawyer submitted that the father had two opportunities in six weeks to be with Dr A, but did not go to either of them because he prioritised other things above them, which while not necessarily constituting a criticism of the father, belied his argument that there was some big issue about the child’s health. In other words, the Independent Children's Lawyer submitted that “deep down he [the father] knows the child is well and healthy and does not need to go to these appointments for the reasons he is now saying”. The mother it would also appear, did not go to the appointment with Dr A on Tuesday 1 October 2013 (which was, in fact, attended by her mother). So neither of the parties has gone to the most recent appointment with Dr A about the health of the child. Similarly, the Independent Children's Lawyer submits that “it comes a little strange from the mother’s mouth to be suggesting and to be fair to her nothing was made of it, that there was something to be criticised of the father in not so attending”. The Court accepts that submission.
On 22 December 2011, Federal Magistrate Jarrett (as he then was) made an order restraining the mother by injunction from taking the child to any psychologist or any other treating health care professional without the father’s written consent (excluding emergency circumstances). To discharge that order has the potential to cause ongoing parental conflict. The Court accepts the submissions of Mr T that if that order was to remain the father should be bound by a similar injunctive order. This is, particularly, the case given his evidence about seeking a referral to another specialist paediatrician. The father’s evidence was that he could do so as he was not bound by the same order as that which bound the mother, namely to seek his prior consent. As he said: “I was not required to do it”. The Court accepts that he went to some lengths in the communication book to set out what had happened when he took the child to see the General Practitioner on the Monday just prior to the commencement of the hearing, but made no mention of seeking a referral to a specialist. This was a specialist, Dr M, at (omitted) some two hours distance from the parties. The father’s reason for that was that he said he did not wish to cause the mother upset at the changeover. His view was that the mother’s reaction could be unpredictable and he was, therefore, going to bring it up later. In those circumstances, he was well aware that this was an issue which would worry the mother and as it is an issue concerning the child’s health, it is an issue which both should be involved in with respect to their appropriate exercise of equal shared parental responsibility. Given that both parties’ evidence in relation to the medical practice that they use for the child was, to the effect, that all Doctors at that practice could be used, the Court is of the view that any injunction granted should be limited to seeking specialist medical intervention outside that of the child’s current treating paediatrician, Dr A. In those circumstances, the Court will make an order to the effect that the mother and the father each be restrained and an injunction issue restraining each from taking the child to any specialist medical appointment, save with the child’s current treating paediatrician and unless in the case of an emergency, without the prior written consent of the other party.
The Independent Children's Lawyer agreed that one of the benefits for the child was that Dr A had been involved with her for a substantial period of time and both parties had engaged well with that Doctor in that process.
Matters in s.60CC(4) and (4A) of the Act
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular, the Court must consider the matters set out below:
(a) [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; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
Both parties were able to reach agreement as to the child’s medical centre and as to which general practitioners could be retained. The child’s medical centre, having a number of different general practitioners on duty at any point in time all having access to the child’s medical records, there appeared no difficulty in the child being able to see any one or more of the Doctors at that centre in those circumstances, although Dr C appears to have been the general practitioner primarily used.
When the child has faced any medical emergency, both parties have been readily able to communicate with each other and weight is attached to that.
Both parties appear to have appropriately used the communication book to assist their communications.
There appears a general lack of respect between the parties. Notwithstanding this, the father’s response to his failure to let the mother know about what he described as a “precautionary visit” to a medical professional was that this was “not a matter of respect” and if there had been a need, he would have telephoned the mother. That, however, is his assessment of a need. Clearly, the mother felt after the event, that there had been such a need. The father emphasised the existence of an order in his favour for notification, given that he asserted that the mother had “doctor shopped”. This assertion the mother denied. Similarly, the Court is of the view that this supports both parties being bound by an order to prevent the engagement of specialist medical intervention for the child without the written consent of the other, save in circumstances of emergency.
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The mother was critical of the father’s failure to pay for the child’s treatment and extra-curricular activities. The father did not dispute the mother’s assertion but indicated that he covered expenses when the child was otherwise with him.
Given the parties’ proposed orders, this factor does not relevantly apply to this child.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5) of the Act:
(a) how far apart the parents live from each other; and
Nothing was raised by the parties that the distance between the father’s residence and the mother’s residence would have any impact on the reasonable practicability of the live with/time arrangements.
The father’s residence is accessed by a relatively rough dirt road although, according to the father, that does not prevent access to and departure from the property, even in heavy rain.
(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
Nothing was relevantly raised by the parties which would, otherwise, impact on their capacity to implement the child living with/spending such time with either parent.
(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
The father’s residence does not have a land-line telephone connected to it and according to him, there would be substantial cost in doing so. This cost was not quantified. Nevertheless, the father has access to a mobile telephone which has appropriate coverage. The Court is of the view that as the child matures it would be of some assistance for the parties and the child to be able to utilise the internet and in particular, Skype communication.
The Court accepts the evidence of both parties that they will seek to improve the level of communication between them so as to implement an order which provides for a substantial and significant time/live with arrangements.
(d) the impact that an arrangement of that kind would have on the child; and
The child currently lives predominantly with the mother. The Court’s orders proposed an increase in the father’s time from five nights to six nights over the period from the commencement of the orders up until the commencement of the first school term in 2016 and, thereafter, together with agreed school holiday time.
The Court proposes that there be an order that the child live with the father at such other times as is agreed in writing between the parties.
(e) such other matters as the Court considers relevant
The Court finds that there are no other matters relevant to the Court’s determination with respect to this factor.
Given the child’s relationship with the mother, it is considered in her best interests for the child to live with the mother for a majority of her time in a fortnightly period so as to give her the stability of those arrangements, particularly as she is about to commence her schooling in 2014 and the family report writer was clearly of the view that for the child this would be a substantial change and a change in all other areas should be minimised to enable her to better cope. This is, particularly, the case as both parties concede the child’s health has not been the best with a number of events of hospitalisation and operative treatments and she continues to be closely monitored in respect of her growth development both as to height and weight. Ms K also confirmed that notwithstanding the child’s age she was somewhat behind in her level of social outgoing which had to be built up and this was one of the main reasons impacting on her recommendation to delay the commencement of formal schooling until 2014.
In light of that and the family report writer’s clear recommendations, the Court is of the view that the Independent Children’s Lawyer’s proposal for the time up until the child commences school should be adopted and that, thereafter, the alternative proposal for block time with the father is to be preferred with a build up over two years to initially commence in 2014 for five nights a fortnight and then in 2016 to six nights a fortnight. If that regime otherwise works and the parties continue their efforts in improving their communication, then the parties can always agree to a further expansion of time to a week about regime, given that the orders contemplate such “other times” as the parties otherwise agree in writing.
The Independent Children's Lawyer submitted and the Court accepts that at one point in time the child was failing to thrive linked historically to an inability by the mother to produce sufficient milk, but the medical evidence did not currently pinpoint any specific reason for that, save for calorific restriction. Nevertheless, these matters are in the past and the parties are years beyond that crisis. The father needs to move beyond his long term criticism of the mother as being somehow justified and to give up on an almost obsessive like attitude which is clearly, contrary to successfully co-parenting the child.
The Independent Children's Lawyer submits and the Court accepts, that there is a high degree of competition between both parents. The Court also accepts that given the allegations made by the mother against the father, he has in defending himself, lashed back at her. However, at the time of the final hearing many of the matters raised by the parties have fallen away. That leaves the remaining issues of communication and health. The Court accepts from the material exhibited, being the Mid North Coast Health District report in July 2012 and the reports of Dr A in February and August 2013 that the child is otherwise in good health.
As the Independent Children's Lawyer submitted, he had hoped for the benefit of the child that in the way the litigation process unfolded at hearing, the father’s obsession would die the death it should die, but Mr Priestley submitted that unfortunately it did not and the father had “flogged it right through to the finish”. The Independent Children's Lawyer submits that for the father and more importantly for the child, now that the litigation has reached an end and when judgment given, that the parties accept the umpire’s decision and move on.
Other parenting matters
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands (2007) 37 Fam LR 103).
The Court adopts the orders which reflect a live with arrangement rather than spend time given the family report writer’s evidence about the conflict between the parents and each parent’s desire to be in control and their level of competitiveness. The Court is of the view that “live with” arrangements specifying relevant times will assist the parties in further reducing conflict based on perceived competition.
The father sought an order that the mother has her mobile switched on at all times and with her. Mr T submits, and the Court accepts, that this is an onerous order that implies that the father can contact the mother 24 hours a day 7 days a week and that such an order would, in effect, provide him with the right to do so. Should for instance the battery of the phone fail or if the mother be out of a telephone area, it could lead to contravention applications and that such an order is likely to bring the parties back to Court. There is little evidence of any difficulties with telephone communication between the father and the child. The Court will not make such an order.
Further, the Court accepts that both parties operate a mobile phone and accordingly, in order to facilitate telephone communication, each parent should be given the option of either connecting a landline telephone number or having available an operating mobile telephone number at their residence.
Restraints and injunctions
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
In the circumstances, the Court is of the view that an injunction should be made against both parents in terms of that set out in paragraph 118 above as being in the best interests of the child and so as to ensure that the parties take steps to exercise equal shared parental responsibility in relation to the child’s health. Counsel for the Independent Children's Lawyer supported the injunction, albeit he proffered that an undertaking could be sought from the father. Given the father sought an order as against the mother and in the circumstances of this matter, the Court is of the view that an order should be made as against both parties.
Costs
The father submits that he incurred costs when he was informed that both his two adult children, Ms S and Mr K, would be required for cross‑examination and was only advised on the third day of the trial that they would no longer be needed. He submitted that Mr K had made himself available for all three days and lost three days’ pay as his employment was on a casual basis. The father further submitted that Ms S had to come with her children from Western Sydney involving considerable expense and that he had covered the expenses of both Ms S and her children, as well as that of her mother and step-father who had babysat the children while Ms S was at Court. He said that the accommodation expenses were for four nights and were more expensive due to the school holiday period.
The costs associated with accommodating Ms S’s mother and step-father would not, however, meet any test of reasonableness for witnesses’ expenses.
There is no quantification of the actual costs sought by the father.
In any event, s.117 of the Act prescribes that each party shall bear his or her own costs, unless there are sufficient justifying circumstances. In the circumstances of a tactical decision by Mr T not to require Ms S and Mr K for cross‑examination, when such a decision was made on the last day of the trial, must be considered against the fact that in order to conclude the trial in time meant that those witnesses not be so required and, further, that the parties had moved a substantial way during the conduct of the trial itself to agree on issues which made their evidence of much less relevance. In those circumstances, the Court is not satisfied that there are any justifying circumstances to ground an order for costs relevant to this issue. There will, therefore, be no order as to costs.
The father also submitted that these proceedings cost him and the Legal Aid Commission of NSW substantial amounts of money, particularly in relation to the mother’s allegations concerning depression and sleep apnoea. The Legal Aid Commission of NSW has made no application for costs. The father being self-represented is not, otherwise, entitled to legal costs.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders the subject of the Independent Children's Lawyer’s proposal (as modified by the orders proposed by the Court) are otherwise in the best interests of the child and accordingly, the Court will so order.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 15 November 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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