FRAYTON & FRAYTON

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRAYTON & FRAYTON

[2015] FCCA 2527

Catchwords:
FAMILY LAW – Parenting – interim orders – where both parents agree that current parenting plan is not working – where expert’s report available – high interpersonal conflict – where dispute about preschool – where mother made unilateral changes.

Legislation:

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

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant:

MS FRAYTON

Respondent:

MR FRAYTON

File Number:

WOC 721 of 2015

Judgment of:

Judge Altobelli

Hearing date:

8 September 2015

Date of Last Submission:

8 September 2015

Delivered at:

Wollongong

Delivered on:

25 September 2015

REPRESENTATION

Solicitors for the Applicant:

Rachel Stubbs & Associates

Solicitors for the Respondent:

Sydney Family Law Specialists Pty Ltd

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER:

Parental Responsibility

That the mother and father shall have equal shared parental responsibility for X, born (omitted) 2011 (“the child”).

The Child’s Living Arrangements

That the child shall live with the father.

The Child’s Time with the Mother

Unless the parents otherwise agree, that the child shall spend time with the mother as follows:
(a)During school terms:
(i)Each alternate weekend from after day care/school Friday (or 3:00pm if a non-school day) until the commencement of school/day care on Monday (or 3:00pm if a non-school day), with such time to resume (after the holidays) on the first Friday following the commencement of school term for students; and
(ii)Each alternate Monday from after school/day care (or 3:00pm if a non-school day) until the commencement of school on Wednesday (or 3:00pm if a non-school day).
(b)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an even number.
(c)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an odd number.
(d)From 9:00am until 5:00pm on Mother’s Day.
(e)On the child’s birthday, if the child would not otherwise be spending time with the mother on his birthday, as follows:
(i)From 10:00am until 2:00pm if it falls on a non-school/day care day; and
(ii)From after school/day care until 7:00pm if it falls on a school day.
(f)At other times as agreed between the mother and father from time to time.

Suspension of the Mother’s Time

That the child’s time with the mother pursuant to these Orders, shall be suspended at the following times when the child shall live with the father:
(a)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an odd number.
(b)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an even number.
(c)From 9:00am until 5:00pm on Father’s Day.
(d)On the child’s birthday, if the child would not otherwise be spending time with the father on his birthday, as follows:
(i)From 10:00am until 2:00pm if it falls on a non-school day; and
(ii)From after school until 7:00pm if it falls on a school day.
(e)At other times as agreed between the mother and father from time to time.

Changeover & Other Matters

That unless otherwise specified in these Orders or agreed between the mother and father from time to time:
(a)The mother or her nominee shall collect the child from McDonald’s in (omitted) at the commencement of her time with the child; and
(b)The father or his nominee collect the child from McDonald’s in (omitted) at the commencement of his time with the child.
That notwithstanding any other provisions of these Orders if the mother or father’s time with the child commences or concludes at day care/school they shall collect/deliver the child from/to school.

Provision of Information about the Child

That the mother and father shall keep each other advised of their contact telephone numbers.
That the mother and father shall keep the other advised of their residential address and provide each other with no less than twenty-one (21) days’ notice in writing of any intention to change address.
That the mother and father do all things necessary to authorise the child’s school/day care to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.
That the mother and father be entitled to attend all day care/school functions, sports carnivals and other school events in which parents are invited to attend.
That the mother and father be entitled to obtain directly from any day care/school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the mother and father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That the mother and father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.

Restraints

That the mother and father be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing.

Schooling

That the mother and father shall forthwith do all things and acts and sign all documents necessary to enrol the child into (omitted) Early Learning Centre on Mondays, Tuesdays, Thursdays and Fridays commencing at the first possible date that the Centre can enrol him.
That both parties be restrained by injunction from changing the child’s day care without first obtaining the written consent of the other parent or Court Order.

THE COURT FURTHER ORDERS:

The matter be listed for three day Final Hearing on 28 November 2016 at 10:00am.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.
The matter be adjourned to 1 August 2016 at 11:30am for Mention.
Leave be granted to the parties to file Consent Orders in Chambers regarding an updated Report by Dr L.

THE COURT NOTES THAT:

A.Trial directions will be made when this matter is next before the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 721 of 2015

MS FRAYTON

Applicant

And

MR FRAYTON

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain the Interim Orders made in relation to X, born (omitted) 2011. X will be 4 years old by the time these reasons for judgment are delivered. X is caught up in a power and control struggle between his parents, relating to where he lives and how much time he spends with each parent.

Background

X’s mother is the Applicant in this case. She is 38 years old and describes herself as a (occupation omitted) who lives in (omitted), a suburb of the (omitted) region of New South Wales. X’s father is the Respondent. He is 37 years old, describes himself as a (occupation omitted) and lives at (omitted), also in the (omitted) district of New South Wales.
The parents commenced cohabitation in 2008, married in 2010 and separated in about February this year. They live geographically proximate to each other. Shortly after separation the parents put in place a parenting plan providing for shared care, with X living eight nights a fortnight with his mother, and six nights a fortnight with his father. The arrangement involved multiple transitions. It is common ground between the parents that the current arrangement is disruptive to X. In short, they both agree that he is not coping with this arrangement. The issue for the Court is what arrangement should be made in the alternative?
The parents very wisely agreed to urgently obtain a short Report from a well-known and highly regarded child and adult psychologist, Dr L. The Report was ordered on 18 August 2015, and provided to the Court on 5 September 2015. It was shortly thereafter released to the parents. Much more will be said about this Report below.

The competing proposals

The Mother proposed Interim Orders that would enable her to enrol X into (omitted) Kindergarten in (omitted), that he would live with her, that there be equal shared parental responsibility, and that X would spend time with his father three nights a fortnight, during school holidays and on special occasions. The Order the Mother proposed is reproduced in the first Schedule to these reasons.
The Father proposed equal shared parental responsibility, that X live with him and spend time with the Mother each alternate weekend from after day care/school on Friday until the commencement of school/day care on Monday, together with each Tuesday from after school/day care until 4:00pm on Wednesday. The precise Orders sought by the Father are reproduced in the second Schedule to these reasons. He proposed an Order that X be enrolled into (omitted) Early Learning Centre.

The evidence

In the Mother’s case, she relied on the following Affidavits:
·Affidavit of Ms Frayton, affirmed 20 July 2015;
·Affidavit of Mr M, affirmed 3 August 2015; and
·Affidavit of Ms Frayton, affirmed 27 August 2015.
In the Father’s case, he relied on the following Affidavits:
·Affidavit of Mr Frayton, affirmed 1 August 2015;
·Affidavit of Mr Frayton, affirmed 1 September 2015; and
·Affidavit of Mr Frayton, affirmed 7 September 2015.
Both parties relied on the Expert’s Report of Dr L.
In addition, both parties relied, to various degrees, on the following documents produced on subpoena, and tendered in evidence:
·Documents produced on subpoena by Ms B, psychologist;
·Documents produced on subpoena by NSW Police;
·Documents produced on subpoena by Dr C, (omitted) Healthcare Centre;
·Documents produced on subpoena by (omitted) Preschool and Long Day Care Centre;
·Documents produced on subpoena to Dr H, (omitted) Healthcare Centre; and
·Bundle of correspondence between Rachel Stubbs & Associates and Sydney Family Law Specialists, dated 5 June 2015 and 6 August 2015.

The applicable law

In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)    If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time.”
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
When making an interim decision, the Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC 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 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, 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) 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, 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;
(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; 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.

Dr L

It is quite unusual in interim parenting matters to have the benefit of an Expert’s Report. It will be unsurprising for the parties to learn that the Court places much weight on this evidence, given that it is both expert and independent. Dr L met with the parents and X, and was able to observe them on 26 August 2015. She had available to her all of the material that had been filed on their behalf before 5 September 2015.
The Court will record some of the observations made by Dr L in her Report and, where appropriate and necessary, add its own observations based on the submissions made, and the totality of the evidence before it.
The history of the family appears uncontentious. Both parents were involved in X’s care since his birth. The Mother breastfed X for the first 10 months of his life. She then went into full-time employment from when he was 16 months of age, and from that time until the date of separation the Father appears to have been X’s primary carer. Since separation in February 2015, the parenting plan involving an eight/six night arrangement was implemented. Dr L noted, and it is common ground, that this is a disruptive arrangement.
In May or June 2015, for about two weeks, the mother stopped the father’s time with X. Since then, both parents report that X has experienced sleep difficulties. X had been attending (omitted) Child Care Centre for the 18 months up until the end of August 2015. It is not contentious that the mother unilaterally terminated his enrolment there as at the end of August and that currently, because the parents are unable to agree, X does not attend preschool or child care.
Dr L observed that whilst both parents have the potential to parent X in a supportive way, they are entangled in their own interpersonal difficulties, and this results in the risk that X’s best interests will be compromised or overlooked. Dr L opines that, from X’s perspective, the most serious issue is his parents’ conflict interpersonal relationship.
In her observations of X, Dr L noted that he managed the transitions between parents and from the parents into her care satisfactorily. Whilst he presented as reasonably secure, there were elements of sadness about him. She thought that X was very much aware of the inter-parental conflict. Notwithstanding this, X’s interactions with both his mother and father were recorded to be sensitive, age-appropriate, and in no way intrusive or controlling. She thought that both parents were able to promote a secure attachment relationship with X.
After meeting the mother in interview, Dr L records at paragraph 22:
It was unclear to me as to what parenting plan Ms Frayton was proposing. On the one hand, she reported that her work as a disability carer is flexible and that she is able to work long hours when X is not in her care and shorter ones when he is in her care. On the other hand, she reported her plan to change X's child care centre to one that opens at 6am so that she could drop him off on her way to work and pick him up at 4 pm, allowing her to work 7 am to 3 pm five days per week She reported that this would give her 'after school' time with X. The change of preschool issue has resulted in conflict between Mr and Ms Frayton and the consequence has been that, since 28 August 2015, X has no child care place,
Dr L’s evaluation commences from paragraph 32. In her opinion, X’s social and emotional development appeared to be age-appropriate, he seemed aware of the inter-parental conflict, his speech was underdeveloped for his age but was nonetheless progressing during the time that he was at (omitted) Day Care. She records at paragraph 32, “…it is very unfortunate that X’s attendance at (omitted) Day Care was unilaterally terminated by” the mother. Whilst he appeared to have a reasonably secure relationship with both parents, the Father appeared to have been the primary carer for two years before separation. The Mother was distressed and regretful about her reduced involvement in X’s care due to her work commitments and her need to support the family financially.
At paragraph 35, Dr L records:
The mother reported that she now wishes to 'repair' her relationship with X and re-establish herself as his primary carer. Nevertheless, in my opinion, her approach to this appears confused. On the one hand, she claims her work situation is flexible and on the other, she unilaterally disrupted X's attendance at his child care centre in order to be better able to accommodate her work in preparation for X living with her. Her reported rationale was that she could establish a more 'stable' routine for X by his attending (omitted) child care cntre [sic] and be less reliant on babysitters. Her reported plan was to leave X at the centre at 6 am and collect him at 4pm, so as allow her more time in the afternoon with X and to establish a bedtime routine for him. Given the recommended sleep time for a child around 4 years of age is usually 11 ½ to 12 hours per night, it was not clear how this plan would allow her more time with X.
At paragraph 37, Dr L expresses the opinion that in the context of this case, where there are some signs of distress and the context is one of intense parental conflict, a nine/five night arrangement might be more appropriate until X is older. She did not rule out the possibility of equal shared care “in the future if the inter-parental conflict has abated”.
She considered the issue of which parent should be responsible for most of the care related to X. In this regard she says at paragraphs 38-40 inclusive:
38.    I suggest there is a question as to which parent might be most appropriate to primarily care for X. Initially, I considered that there might be some merit to supporting the mother’s wish to repair her relationship with X if she were to be able to spend a regular one day a week at home with X until he attends school in 2017 and if she sought psychological assistance to contain her negative feelings in relation to Mr Frayton . It is not in X's best interests to grow up with a mother who feels she has let him down because parental guilt can potentially undermine parental effectiveness, especially in relation to appropriate limit-setting.
39.    I, however, consider the mother's recent action in terminating X's place at (omitted) Day Care does demonstrate a certain lack of insight in relation to X's interests. Ms Frayton appeared to need to impose her own plan on Mr Frayton and to preempt Court orders. X now has been left without a child care place. I do not consider that (omitted) child care centre is a viable option because it will not be a centre in which Mr Frayton will feel valued as a parent (given the reported misunderstandings/miscommunications between and him and the centre).
40.    Without a child care placement, Mr Frayton who is partly self-employed may not be able to care for X or be restricted in caring for him. Ms Frayton reported that she is currently on worker's compensation and can care for X in the immediate future. The practical possibilities for X's care need to be explored.

Unilateral withdrawal from (omitted) Day Care

The Mother’s actions in unilaterally withdrawing X’s enrolment from (omitted) Preschool appears to be a significant factor that Dr L considered in seeming to at least tacitly favour the Father as the person who should be primarily responsible for X’s care. It is important, therefore, to consider the evidence about the Mother’s actions in this regard. It has the potential to reflect on some of the considerations that the Court must take into account in making the decision that is in the best interests of X.
The Mother’s Affidavit of 27 August 2015 deals with her decision in relation to X’s preschool at paragraphs 3-13 inclusive. The facts are relatively uncontentious. The Father deals with the same issues and, in particular, annexes the relevant correspondence in his Affidavit of 1 September 2015.
In essence, the Mother deposes that in late July or early August she began looking at alternative preschools for X to attend. Her purpose in doing so was quite clear: “…to allow me to work morning shifts and therefore be home earlier to assist with X’s daily routine”.
At paragraph 5 she expresses it in the following manner: “…I was seeking alternative schooling for X to accommodate my work schedule and being able to be an active and present parent for X”. This theme is reflected in her solicitor’s letter to the Father’s solicitor dated 6 August 2015. Specifically, she asserts in the letter that by working morning shifts, she can get home earlier each afternoon and evening (which will allow her to continue to work on reducing X’s anxiety at bedtime). The Court interposes at this point to observe that, as Dr L records at paragraph 35 of her Report, if X has to be at the centre by 6:00am, and is to have the recommended sleep time for a child his age of about eleven and a half to twelve hours per night, it is by no means clear how the Mother’s plan would allow her more time with X. Dr L was released to the parents on 7 September 2015.
In any event, in the Mother’s Affidavit she says that in or around late July or early August 2015 she contacted (omitted) Kindergarten to inquire about opening times and vacancies, and attended an interview on 4 August 2015. She deposes that (omitted) would allow her to drop X off at the commencement of her shift, and collect X at 4:00pm. She deposes that following the interview, she decided it would be in X’s best interests for him to start there as soon as possible. She says that she had a conversation with X’s teacher at (omitted) Preschool in or around 4 or 6 August to let them know that the Mother was seeking alternative schooling. After a discussion with her solicitor in early August 2015, she caused a letter to be sent to the Father’s solicitor on 6 August. Indeed, the letter in question sets out the Mother’s proposal to transfer X to (omitted) Day Care “as a matter of priority, with X to commence … 31 August 2015”.
The letter seeks confirmation that the Father did not object to the proposed course of action. The letter is sent 6 August at 3:02pm, with 6 August being a Thursday. The Mother says that on Sunday, 9 August she took steps to enrol X into (omitted) Kindergarten. In any event, at paragraph 7 of her Affidavit the Mother acknowledges that she did this without the Father’s consent. She explains at paragraph 7, “I had not yet received a response from Mr Frayton about my proposal to attend the new day care centre, and I was worried that, given the high demand for day care spots in our area, that he would miss out”.
In any event, she acknowledges that on 10 August 2015, a Monday, and two business days after her own letter of 6 August, she was informed that the Father would not agree to the proposed change. Indeed, his solicitor’s letter of 10 August raises concerns about the “many significant changes to X’s life” and suggests that before any further changes are made, the parents have the benefit of a Report from Dr L. Thus, even though the Report was not ordered until 18 August 2015, it is clear that the parents were contemplating appointing Dr L as at 10 August.
In any event, at paragraph 9 of her Affidavit the mother deposes as follows:
At this point in time I had already had discussions with (omitted) Preschool and Long Day Care about moving preschools. When I discovered that Mr Frayton did not consent to X changing day care centres, I called (omitted) Preschool and Long Day Care on or around 12 August 2015. I spoke with Ms M. However, I was advised that unfortunately X’s spot had already been filled. I was also advised that there were no other vacancies at this time. I was advised that X’s last day at the centre will be 28 August 2015.
The Mother’s evidence in this regard is inconsistent with the documents produced on subpoena by (omitted) Day Care, which includes a handwritten note dated 14 August 2015 which appears to bear the Mother’s signature, which states as follows:
I write to inform you that X will no longer be attending (omitted) Preschool. X’s last day will be Friday, 28 August 2015.
Thank you.
Signature.
Ms Frayton
To the extent that paragraph 9 of the Mother’s Affidavit attempts to depict the situation as one where it was the (omitted) Preschool that proactively sought to end X’s tenure there by a certain date, it is clearly inconsistent with her letter.
Clearly, notwithstanding the Father’s solicitor’s letter of 10 August 2015, the Mother decided that she was going to take him out.
What is curious, interesting, and perhaps insightful from the Court’s perspective, is that the present application was already before the Court. Indeed, it first came before the Court on 3 August 2015. The Father’s Response had been filed on that day. He clearly proposed that X live with him, and spend each alternate weekend with the Mother.
Returning to Dr L, and specifically paragraph 39, the objective evidence before the Court, albeit untested in cross-examination, does lend support for Dr L’s concern about the Mother’s actions in terminating X’s place at (omitted) Day Care. She asserts that these actions, and the Court is inclined to agree, “does demonstrate a certain lack of insight in relation to X’s interests”. Consistent with Dr L’s hypothesis about the power struggle between these parents, a reasonable interpretation of these events is that the Mother “appeared to need to impose her own plan on Mr Frayton and to pre-empt Court orders”. As Dr L poignantly points out at paragraph 39, the consequence of the Mother’s action is that X has now been left without a child care place.

Best interests consideration

The Court is satisfied that the Orders proposed by each parent will ensure a meaningful relationship for X with each of his parents. This is not a determinative consideration.
The Court does not accept the Mother’s submission that there is any need to protect X from harm, or the risk of harm, in any form, whilst in the Father’s care. Her own proposal to the Court is plainly inconsistent with this submission. The matters that are advanced by her in relation to this consideration are disingenuous. Apart from the fact that X is caught in this power struggle between his parents in relation to him, there is no other risk of harm or need to protect him.
There are no relevant views expressed by X, direct or indirect, on which the Court would place any relevant weight.
All the objective information before the Court, principally sourced from Dr L, is consistent with X having an excellent relationship with both of his parents. Clearly, the Mother is not satisfied with her existing relationship with X and somehow feels the need to “repair” such relationship. A more objective perspective suggests that there is little there to be repaired. Again, the only problem in X’s relationship with either of his parents is that their inability to communicate about him, their distrust for each other, and their attempt to seek to control the other using X, is something that needs to change.
The Mother has clearly excluded the Father, in a most arbitrary and unilateral fashion, from her decision to take X out of the very happy and stable placement that he had at (omitted) Day Care’s. Whilst her reasons for doing so appear to be expressed in the language of doing something that was for X’s benefit, it is hard for the Court to discern any benefit whatsoever for X in what the Mother was trying to achieve. In the submissions made on behalf of the Mother it was submitted that the decision was “a lapse in judgment”. With great respect, when the evidence is viewed carefully, there seems an element of planning on the Mother’s part, and at least the opportunity, indeed several opportunities, to reflect and pause before taking action. It is by no means clear how, if the Mother’s real motive was to be more available for X, she was going to achieve it on her own plan. Dr L was perceptive of this.
The Court is required to consider the likely effect of change. The starting point is to acknowledge that all parties and Dr L agree that the current situation is unsatisfactory. Indeed, there is a distinct sense in this case that any change from the present arrangement has to be better than what it is. The real argument between the parents is which proposal is least likely to bring about adverse change for X. The Father’s proposal is attractive. He is a known quantity in X’s life. He is historically the primary care giver for him. He seems to have a flexibility in his work arrangements that the Mother does not, and is thus able to offer the continuity of care that the Mother cannot.
There are no issues of practical difficulty and expense in this case.
Despite the Mother’s assertions, there are no issues of parental capacity in this case. The evidence about the Father’s depression and anxiety is hardly, with respect to the Mother and those who represent her, a contrary indication about his capacity to meet X’s needs. The Mother’s own proposal is inconsistent with this assertion. Indeed, a more objective view of the evidence suggests that the Mother’s capacity to provide for X’s emotional needs is questionable, following her arbitrary decision to withdraw him from (omitted) Day Care’s. For this to happen during the Court proceedings also confirms a certain lack of insight on her part.
Following on from this, if there are any issues about parental attitudes in this case, it must stem from the Mother’s unilateral actions. This is compounded by what appears to the Court to be an attempt by her, in the presentation of her evidence and case, to somehow externalise responsibility for the consequences of her actions. Consistent with Dr L’s hypothesis of the power struggle, the Mother seeks to blame the Father for not accepting her enrolment of X in (omitted) Kindergarten. Dr L’s observation at paragraph 39 of her report explains why it is not unreasonable for the Father to have reluctance about (omitted). In any event, he proposes an alternative which, at the very least, provides certainty.
Both parents propose equal shared parental responsibility. There are worrying concerns about the ability of X’s parents to communicate and reach agreements. The most contentious issue appears to be his preschool, and so a specific Order needs to be made in this regard. Given that the Court is leaning towards an acceptance of the Father’s proposal (subject to comments below) it is in X’s best interests that he ultimately be able to make a decision about where he goes to preschool.
The Court is required to consider equal time, but Dr L believes this would not work, the current arrangement confirms this, and the evidence before the Court, even untested as it is, suggests that equal time would not be in X’s best interests, or reasonably practicable.
Both of the Orders proposed are otherwise substantial and significant time Orders.

Orders in the best interests of X?

In what is otherwise a finely-balanced case, the Mother’s capricious acts in withdrawing X from (omitted) Day Care raises sufficient concerns in the Court’s mind about her ability to prioritise X’s needs over her own, her lack of child focus and sensitivity, and her capacity to provide for X’s emotional needs, that the Court prefers the Father’s proposal.
The effect of the Father’s proposal would be that X spends five nights a fortnight with his mother. This is consistent with Dr L’s recommendations. Curiously, the Mother’s proposal for X to spend time with his father was only for 3 nights out of 14. This again raises concerns about the Mother’s ability to take on board independent and expert advice about what is best for X.
One of the issues about the current arrangement is the multiple transitions between the care of each parent. The Father’s proposal, as currently framed, would provide for six transitions a fortnight. This could be reduced to four transitions a fortnight by removing a Tuesday night each week and substituting it with two nights in the alternate week. There is no suggestion from the evidence that X could not cope with this. Thus, unless the parents otherwise agree, X would spend time with his mother each alternate weekend from after care/school on Fridays to before care/school on Mondays, and then for two nights in the alternate week, from after care/school on day one to before care/school on day three as the parents agree or, failing agreement, from Monday through to Wednesday.
In the circumstances, the Orders that the father proposes about enrolment at (omitted) Early Learning Centre is clearly needed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 25 September 2015

Schedule One

Applicant Mother’s proposed Minute of Order

That the child of the relationship, namely X, born (omitted) 2011 ("the child") live with the mother.
That the parties forthwith do all things, sign all documents and take all steps necessary to enrol the child into (omitted) Kindergarten in (omitted).
That the parties have equal share parental responsibility for the children in relation to the care, welfare and development of a long term nature involving the child to include, but not be limited to, issues about:-
a.The education of the child, both current and future.
b.The religion of the child.
c.The health of the child.
d.Any change to the child's living arrangements that may make it significantly more difficult for the child to spend time with either parent.
e.The child's name
That each party be solely responsible for the day to day welfare and development of the child whilst the child is in each party's care
That the father spend time with the child as follows:-
a.During each of the school terms on a fortnightly basis commencing 31 July 2015 :-
i.In Week 1 from after school Friday or 5:00pm to before school the immediately following Monday or 9:00am, with such time to extend to 5:00pm on the Tuesday if a non-school day, and each alternate week thereafter;
ii.In Week 2 from 9:00am on Wednesday until 5:00pm and each alternate week thereafter.
b.During the New South Wales school holiday periods from Thursday at 9:00am to immediately following Monday at 6:00pm and each alternate week thereafter.
c.At Christmas as follows:-
i.In odd numbered years commencing 2015 from 3.00pm on Christmas Day until 3:00pm on Boxing Day
d.At Easter as follows:-
i.In even numbered years commencing 2016 from 3.00pm on Easter Sunday until 3:00pm on Easter Monday.
e.On Father's Day from 2.00pm on the day immediately preceding Father's Day to 6.00pm on Father's Day if the child is not already spending time with the father
f.On the child's birthday if the child is not otherwise spending time with the father as follows:-
i.From 10.00am until 3.00pm on a non school day; and
ii.From after school until 7.00pm on a school day
g.By telephone at the instigation of the father between the hours of 6.30pm and 7.00pm each Tuesday and each Thursday.
That for the purposes of Order 5(a)(i) herein, the collection and return time for the child shall be at the times nominated therein before the child starts school in 2016, and that following such date, the father collect and return the child from school at the commencement and conclusion of the school day.
That for the purposes of order 5(a)(ii) herein, when the child commences Kindergarten , the father's time with the child shall be amended so that the father spends time with the child from after school Wednesday to before school Thursday.
That the provisions of Orders 5, 6, 7 be suspended as follows:-
a.On the weekend that includes Mother's Day from 2:00pm on the Saturday proceedings Mother's Day until 6:00pm on Mother's Day.
b.In odd numbered years commencing 2015 from 3:00pm on Christmas Eve until 3:00 pm on Christmas Day;
c.In even numbered years commencing 2016 from 3:00pm on Easter Saturday until 3.00pm on Easter Sunday
That periodic weekend time be suspended during school holiday period and resume at the conclusion of school holidays and be calculated as if holidays had not intervened.

10.That school holidays be defined as commencing at 5:00pm on the last day of school and concluding at 5:00pm on the Friday before school resumes.
11.That for the purposes of changeover the parents or their nominees are to collect the child at his day care/school on those occasions the mother and father's time commences or concludes at the day care/school, and on all other occasions changeover is to occur in the car park at McDonald's (omitted).
12.That the child be at liberty to communicate, whether by telephone or otherwise, with the either parent in accordance with his wishes and that for this purpose, both parties are to facilitate the telephone calls the child wishes to conduct.
13.That each parent refrain from making critical or derogatory remarks about the other parent, or members of the other parent's family in the presence or within hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent's family in the presence or within hearing of the child.
14.That the parties use a communication book which book shall travel between the parties via the children for the purposes of exchanging information pertaining to the children, including details of medical treatment and activities which concern the children.

That whilst the child is in each party 's respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other properly informed of any required treatment or medication required in relation to the child and the parties shall ensure the proper administration of such medications and treatments is performed by them.

Schedule Two

Respondent Father’s proposed Minute of Order

Parental Responsibility

That the mother and father shall have equal shared parental responsibility for X, born (omitted) 2011 (“the child”).

The Child’s Living Arrangements

That the child shall live with the father.

The Child’s Time with the Mother

That the child shall spend time with the mother as follows:
a.During school terms:
i.Each alternate weekend from after day care/school Friday (or 3:00pm if a non-school day) until the commencement of school/day care on Monday (or 3:00pm if a non-school day), with such time to resume (after the holidays) on the first Friday following the commencement of school term for students; and
ii.Each Tuesday from after school/day care (or 3:00pm if a non-school day) until 4pm Wednesday.
b.From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an even number.
c.From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an odd number.
d.From 9:00am until 5:00pm on Mother’s Day.
e.On the child’s birthday, if the child would not otherwise be spending time with the mother on his birthday, as follows:
i.From 10:00am until 2:00pm if it falls on a non-school/day care day; and
ii.From after school/day care until 7:00pm if it falls on a school day.
f.At other times as agreed between the mother and father from time to time.

Suspension of the Mother’s Time

That the child’s time with the mother pursuant to these Orders, shall be suspended at the following times when the child shall live with the father:
a.From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an odd number.
b.From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an even number.
c.From 9:00am until 5:00pm on Father’s Day.
d.On the child’s birthday, if the child would not otherwise be spending time with the father on his birthday, as follows:
i.From 10:00am until 2:00pm if it falls on a non-school day; and
ii.From after school until 7:00pm if it falls on a school day.
e.At other times as agreed between the mother and father from time to time.

Changeover & Other Matters

That unless otherwise specified in these Orders or agreed between the mother and father from time to time:
a.The mother or her nominee shall collect the child from McDonald’s in (omitted) at the commencement of her time with the child; and
b.The father or his nominee collect the child from McDonald’s in (omitted) at the commencement of his time with the child.
That notwithstanding any other provisions of these Orders if the mother or father’s time with the child commences or concludes at daycare/school they shall collect/deliver the child from/to school.

Provision of Information about the Child

That the mother and father shall keep each other advised of their contact telephone numbers.
That the mother and father shall keep the other advised of their residential address and provide each other with no less than twenty-one (21) days’ notice in writing of any intention to change address.
That the mother and father do all things necessary to authorise the child’s school/day care to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.

10.That the mother and father be entitled to attend all day care/school functions, sports carnivals and other school events in which parents are invited to attend.
11.That the mother and father be entitled to obtain directly from any day care/school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the mother and father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
12.That the mother and father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.

Restraints

13.That the mother and father be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing.

Schooling

14.That the mother and father shall forthwith do all things and acts and sign all documents necessary to enrol the child into (omitted) Early Learning Centre on Mondays, Tuesdays, Thursdays and Fridays commencing at the first possible date that the Centre can enrol him.
15.That both parties be restrained by injunction from changing the child’s day care without first obtaining the written consent of the other parent or Court Order.

[2015] FCCA 2527

25 September 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Appeal