GADDY & BOCK
[2019] FCCA 1758
•1 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GADDY & BOCK | [2019] FCCA 1758 |
| Catchwords: FAMILY LAW – Application for parenting orders – child aged 13 – time spending arrangements – child lives in Adelaide with mother – father lives in Brisbane – child suffered episode of anaphylaxis when aged 2 – should child travel unaccompanied by air – assessment of risk – best interests – child’s views – logistical issues arising – payment of airfares. |
| Legislation: Evidence Act1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 64B, 65DAC, 65DAE |
| Cases cited: Bartel & Schmucker (No 3) [2012] FamCA 1094 |
| Applicant: | MR GADDY |
| Respondent: | MS BOCK |
| File Number: | BRC 1309 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 31 May 2019 |
| Date of Last Submission: | 31 May 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maik |
| Solicitors for the Applicant: | SJP Law |
| The Respondent: | In Person |
ORDERS
The parties have equal shared parental responsibility for the child [X] born … 2006 (hereinafter referred to as “the child”).
The child live with the mother.
The father spend time with the child as follows:
(a)For half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half in years ending with an odd number and the second half in years ending with an even number;
(b)During the period of school terms, at times to be agreed between the parties and, failing agreement, to be on no more than three occasions each school term provided the father gives 28 days’ notice of his intention to spend time with the child if that time is to occur in Adelaide and 56 days in the event that the time is to occur outside of Adelaide, and the time on each such occasion is confined to weekends, unless the parties agree otherwise.
The father be responsible for booking and paying for all of the child’s air travel required to give effect to order (3) above and he provide the mother with necessary travel information in writing, including flight numbers and times of departure and arrival no less than 28 days prior to the date scheduled for such travel.
The child travel accompanied by his father (or another adult as nominated by the father, who is acceptable to the mother) for the first incidence of travel pursuant to order (3) hereof, which occurs following the making of these orders and thereafter the child travel unaccompanied.
The child’s travel pursuant to these orders be in accordance with the child action plan for anaphylaxis relating to him as updated from time to time.
Each party ensure that the child has reasonable and private electronic and telephonic communication with the other parent during the period of time the child is in their respective care.
The proceedings be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gaddy & Bock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
BRC 1309 of 2018
| MR GADDY |
Applicant
And
| MS BOCK |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Gaddy (“the father”) and Ms Bock (“the mother”) are the parents of [X] born … 2006. The two parents are in dispute with one another about whether [X] should travel unaccompanied, by air, between Adelaide, Brisbane and return, and how the costs of this travel should be apportioned between them.
The parties married in … 2005 and separated in 2011. At the time, the family was living in Adelaide. Following separation, the father moved to live in Brisbane, while [X] remained in Adelaide, in the predominant care of his mother.
There is no dispute that [X] enjoys a close and loving relationship with his father, notwithstanding the distance between Adelaide and Brisbane and the practical difficulties arising as a consequence.
Mr Gaddy is a health care worker. He enjoys a good salary. As such, he has been able to regularly fly to Adelaide to spend time with [X]. In addition, [X] has been able to travel, on commercial flights, from time to time, to Brisbane, to see his father at his home there. The father has paid the expenses involved.
Hitherto, [X] has always been accompanied by a familiar adult, on these flights, most usually his father, but at other times by his mother and paternal grandmother. To the parties’ credit, up to this stage, they have been able to agree on these arrangements notwithstanding their undoubted expense, without the court’s direct intervention.
There have been compelling reasons for this arrangement. When [X] was an infant, aged about two years, he suffered a severe anaphylactic reaction as a consequence of exposure to peanuts. This must have been extremely frightening for his parents and illustrated to them, in the most emphatic of terms, how potentially fragile is the life of a child.
In such circumstances, it is only to be expected that the emotional and practical consequences of this event will continue to reverberate powerfully for each of them and indeed for [X] himself up to the current time.
Although [X] himself can have no personal memory of the event concerned, he knows that he nearly died because of exposure to peanuts. All concerned have powerful reasons to be vigilant, including [X], where his health and safety are concerned.
[X]’s mother, in particular, is concerned at the prospect of [X] travelling alone without some adult person being present, with whom [X] is comfortable and who knows of his condition in order that the child will have ready recourse to assistance, if there is a repeat incidence of anaphylaxis.
Fortunately, [X] has not suffered any subsequent episode of anaphylaxis. His parents are each intelligent and educated individuals who are well versed in medical matters – [X]’s mother is a health care worker. As a consequence, [X] has been attending a consultant paediatric immunologist/allergist throughout his childhood to date.
His current immunologist, Dr B has diagnosed as [X] as suffering from “a persistent-grade peanut sensitisation which provides potential for anaphylaxis if exposed”. In these circumstances it is essential for [X]’s safety that he avoids exposure to peanuts in even the minutest of forms. He has been prescribed an EpiPen by Dr B.
In genetic terms, an EpiPen is an automated handheld device, which delivers a measured dose of adrenalin by means of a spring loaded needle. It is designed to inject the adrenaline intramuscularly, most usually via the thigh, in the event that a person suffers anaphylaxis.
The needle is dispatched with sufficient force to puncture clothing and it can be either self-administered or applied by another person. Adrenalin is the orthodox treatment for a person suffering anaphylaxis, particularly in a situation of emergency.
Mr Gaddy has re-partnered. He and his current wife have a son, [E], born … 2017. For obvious reasons, the father wishes [X] and [E] to have a close and loving relationship with one another.
In these circumstances, the father wishes for [X] to travel to Brisbane, for regular periods of time, during each school holiday period. If [X] is to be accompanied, on these trips, it will require the purchase of six flights per trip which, from the father’s perspective, is both unnecessary and financially burdensome.
From the mother’s perspective, given [X]’s susceptibility to anaphylaxis, when coupled with what she believes is his anxiety relating to the possibility that he may have to self-apply the EpiPen and his reticence about seeking help from strangers, she believes it is essential for [X]'s safety that he continue to be accompanied by one of his parents whilst flying interstate.
In addition, she is concerned that [X] himself will not be able to recognise the symptoms of a potentially life threatening anaphylaxis on his own or even if he does, he will be too reticent to draw his situation to the attention of cabin staff on the aircraft concerned.
She is also concerned that [X] himself is emotionally incapable of applying the EpiPen himself because of his anxiety concerning needles. All in all, Ms Bock is of the view that [X] is too immature to travel alone, given his condition and the risk of him coming to harm, either emotionally or as a consequence of anaphylaxis, are too great for the court to contemplate at this stage.
Mr Gaddy does not agree. It is his view that the chance of [X] suffering an episode of anaphylaxis, whilst on a commercial flight, are acceptably remote. In addition, he believes that [X] himself understands his condition and will be vigilant in regards to the potential for him to be exposed to peanuts.
Given [X]’s diagnosis, Mr Gaddy accepts that the child is likely to suffer some level of anxiety at the prospect of travelling alone. However, he believes that it will be beneficial for [X], in terms of his developing resilience and self-confidence, if he overcomes this anxiety sooner rather than later.
These reasons for judgment are directed to resolving this ostensibly simple but, in my view, highly complex issue, given its emotional and practical components. As is well known, the service of [X]’s best interests is the paramount or most important concern, for the court, in whatever order it makes in respect of [X]’s parenting [see Family Law Act 1975 (Cth) at section 60CA].
However, as the Full Court of the Family Court has recently remarked,[1] the simple fact that a judge must determine what is in a child’s best interests, because the parents concerned cannot, is axiomatically not in that child’s best interests. This is because of the centrality of parental responsibility and decision making in most children’s lives.
[1] See Zahawi & Rayne [2016] FamCAFC 90 at [47]
One of the underlying principles of the Act is that parents should agree about the future parenting of their child [see section 60B(2)(d)]. This makes sense given the pre-eminent role parents have in providing love and guidance to their children, as they grow and develop.
One of the Legislature’s directives to the court is to ensure, wherever possible, that parents should share duties and responsibilities concerning their children [see section 60B(2)(c)]. The most significant responsibility conferred on parents is ensuring the physical and emotional safety of their children.
It is simply better that parents make any necessary decisions arising in respect of their children as it is they, by virtue of their role as parents and the necessary love and interest they hold for their children, who know them the best.
As a consequence, it is self-evident that they are the individuals best placed to make any difficult and potentially emotionally laden decision concerning the safety and health or other controversial issue regarding their children.
These aspirations are more difficult to achieve if the parents concerned have separated. The issues which led to the separation in question and the fact that the parents concerned now lead separate and distinct lives, with different emphases and aspirations, may lead them to have very different views as to the appropriateness of activities for their children to engage in and what are appropriate levels of safety to be imposed.
In some cases, disputes arising between separated parents, regarding some issue regarding their children, may be emblematic of deeper and more powerful emotional issues, which remain unresolved between the parents concerned. Such factors do not assist in providing an environment conducive to the making of dispassionate and rational decisions.
It is thus highly regrettable that the court is called to become involved in the resolution of this issue between Mr Gaddy and Ms Bock. Necessarily, in both subjective and objective terms, each party can muster powerful arguments in support of his/her position, regarding the issue of travel.
Human nature being what it is both the father and mother – each an intellectually capable and passionate individual – are convinced of the righteousness of his/her stance in the case. As a consequence of their current situation, despite their best endeavours, they are apparently incapable of compromise.
The court is called upon to resolve the issue as best it can. In so doing, the process itself has the potential to exacerbate existing tensions between the parties concerned, which axiomatically is not likely to be helpful to [X] himself, who is closely connected to both his father and his mother. The process may cause his emotional loyalties to be torn.
The court’s function is to adjudicate disputes. It attempts to do so in a logical and objective fashion, which is centred on what it considers to be best for the child or children concerned. It does not do so with any wish to usurp the central role of parents but does so, with regret, because the parents concerned, because of their difference of view, can offer no viable alternative to its adjudication.
The legal principles applicable
Part VII is the part of the Family Law Act 1975 (Cth), which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child. It may also deal with the time a child is to spend with a parent and issues to do with maintenance.
Accordingly, the major disputes arising in this case, namely:
·the conditions which should attach to [X]’s travel between Adelaide and Brisbane;
·the exact duration of these visits; and
·how his travel should be paid for;
are matters which fall within the court’s jurisdiction and are amenable to the making of a parenting order.
The best interests of any child concerned are the paramount or most important consideration [section 60CA] in making any parenting order. Fundamentally, the court must decide whether it is in [X]’s best interests to travel to Brisbane unaccompanied. Necessarily, given the structure of the Act, this is a multi-faceted inquiry.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply, to ensure that a child’s best interests are met through any orders it makes. I have already alluded to some of them.
The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(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).”
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations, which are as follows:
“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.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
The theoretical underpinning of the Act, provided by its principles and objects, contained in section 60B, emphasise the need for parents to agree about the future parenting of their children and share parenting responsibilities jointly.
These principles also recognise the rights of children to know and be cared for by both their parents, regardless of whether those parents are married, separated or have never in fact lived together, whilst at the same time ensuring the protection of children from coming to either physical or psychological harm, as a consequence of being exposed to abuse, neglect or family violence.
The father’s case is that it will not be beneficial to [X] if his time with his father is subject to unnecessary and unreasonable restrictions emanating from his mother. In addition, if the financial impost of [X] travelling from Adelaide to Brisbane becomes too great so as to become unsustainable, this will lead to the child’s time with his father becoming unduly restricted, which will not lead to him having the most meaningful level of relationship possible with his father.
In Mazorski v Albright[2] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned. Accordingly, the emphasis in this case must be on the benefits, which [X] is likely to derive, from having a meaningful level of relationship with both his father and mother.
[2] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
In this case, there is little, if any, controversy arising between the parties to indicate that [X] has anything other than an important and valuable relationship with his father. Indeed, it is a significant element of Ms Bock’s case that she has never stood in the way of [X] spending time with his father.
The question of beneficial parental relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful, parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
It also seems to me that parental relationships will become more meaningful, for the children concerned, if they entail a greater degree of involvement of the parent concerned, in a variety of aspects of the life of the child concerned. In my view, it is significant that the Legislature has elected, in section 60B(1)(a), to speak, in unconfined terms, of parental involvement in children’s lives.
Necessarily, as a consequence of the distance between Adelaide and Brisbane and because [X] must attend school, the time between [X] and his father must largely be confined to school holidays, unless Mr Gaddy has the opportunity to come to Adelaide during the school year. It is in this context that [X] will derive any necessary benefits arising from interacting with his father.
On the other hand, the mother’s case centres largely on her concerns regarding the potential risks arising for [X] of travelling alone and so the need to protect [X] from coming to harm. Essentially, it is her case, that given [X]’s idiosyncratic susceptibilities, it would be an example of negligent parenting for him to travel unaccompanied at this stage.
As previously indicated, protective concerns are to be given greater weight. However, this cannot mean that the court is to overlook the prospective benefits accruing to a child of having a meaningful level of relationship with each of his or her parents. In every case, it is necessary for the court to balance the various considerations arising, without losing sight of the pre-eminence of the individual safety concerns surrounding the child involved.
The concept of neglect is not formally defined in the Act. As a verb, it means to fail to care for, or to be remiss about. As a noun, it means a lack of caring; negligence.
Abuse is defined in the legislation in terms of physical assault, including a sexual assault [see section 4]. It also includes situations in which a child is caused to suffer serious psychological harm or is exposed to serious neglect.
[X] is a much loved child. His parents are each insightful and intelligent individuals. As such, it is inconceivable that either would actively expose [X] to any realistic prospect of him suffering some form of abuse within its ordinary parlance.
The mother’s case centres on her contention that, for [X] to travel alone on an aeroplane, it would be, in the circumstances, an act of parental negligence and further, given the child’s personal anxiety about his anaphylaxis and the possible use of the EpiPen, it would expose [X] to suffering possible psychological harm if he did so.
Accordingly, issues relating to the psychological harm and neglect of children, to fall within the rubric of abuse, under the Act, must be assessed as being serious. In this context, the word serious denotes a situation which is important or demanding of consideration.
In all these circumstances, it seems to me that the mother’s case must centre on the examination of the question of whether for [X], to travel unaccompanied between Adelaide and Brisbane, in the circumstances prevailing, should be considered a situation characterised as an exemplar of parental lack of care or negligence, of such a degree, that it cannot be condoned by the court.
This situation must be assessed objectively. If the assessment was left to Ms Bock subjective judgment alone, she would clearly fall on the positive side of the question. It being her case that it is potentially dangerous for [X] to travel alone both because of the risk of anaphylaxis and that he may become emotionally distressed at its prospect.
Given the controversy between her and Mr Gaddy, it falls to the court to make its own assessment of the level of risk arising for [X]. This is essentially an intellectual task, to be carried out dispassionately against all the predictive evidence available.
In Deiter & Deiter,[3] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[3] See Deiter & Deiter [2011] FamCAFC 82 at [61]
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to potentially unsafe accommodation or to the sexual activity of a parent.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[4]
[4] Slater & Light [2013] FamCAFC 4 at [37]
Risk can cut two ways. It may be detrimental, for [X], to curtail a relationship with the potential to be meaningful for him by some unnecessary or artificial level of restriction on it, arising from some imprecise or uncertain allegation of risk.
In addition, as Mr Gaddy would have it, to deprive [X] of at least some form of challenge in his life, which he is likely to overcome with appropriate support and direction, may have its own unforeseen consequences. It may prevent him developing resilience and self-reliance, qualities which may assist him as he grows up.
The evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[5] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[6]
[5] See Evidence Act1995 (Cth) at section 140
[6] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
The father presented as a calm and rationale person. It was also obvious to me that he is devoted to [X]’s best interests. One theme was repeated throughout his evidence, namely, if he had any doubt whatsoever about [X]’s safety, in either physical or emotional terms, arising from him travelling alone, he would not persist with his application in this regard.
I accept his evidence in this regard. In my assessment, Mr Gaddy is not pursing his application to score points or secure advantage over Ms Bock. Rather he brings his application because he thinks the time is right for [X] to travel alone. In addition, he believes that if [X] overcomes the challenge of flying by himself, it will make him stronger.
Ms Bock presented as an articulate and passionate advocate for [X]. She acknowledged the importance, for [X], of him having a good relationship with his father. In this context, she asserted that she had never stood in the way of [X] spending time with his father, she merely wanted him to be safe and not compelled to do anything with which he was uncomfortable.
She conceded that it was not realistic for [X] to travel unaccompanied for the indefinite future. However, it remained her position that he was not yet ready to do so and to force him could have serious adverse consequences. Under-pining her position is her undoubted view that she, by dint of her role as [X]’s main provider of care, knows more about how [X] functions than anyone else.
Undoubtedly, [X]’s relationship with his mother is his most important relationship at the present time. Ms Bock is unchallenged in her role as [X]’s primary carer. She is fiercely protective of [X] and his interests as she perceives them.
In these circumstances it is all the more difficult for the court to assume any decision making role for [X], given Ms Bock’s obvious devotion to him and the centrality of her parenting role to him. However, if I was to have any criticism of her evidence it would be that it lacked any great capacity to consider alternative viewpoints to her own. In my assessment, Mr Gaddy was the more objective witness.
The difficulty of proceedings of this type is that the person who is most affected by them – the relevant child – does not directly provide evidence. Yet, for obvious reasons, the views of that child and what factors have formed them, are likely to be central in shaping the appropriate outcome.
[X] currently attends School C, where some issues have arisen regarding his progress there. He has been provided with an individual learning plan, arising from a diagnosis of a moderate language disorder. He has been referred to a speech therapist and a developmental paediatrician. In this context, it has been suggested that [X] may fall somewhere on the Autism spectrum.
In addition, it has been indicated that [X] experiences some difficulty with auditory processing and struggles to remain focussed at school. His expressive language skills are not as developed as other children of his age and he struggles to find the appropriate words to convey meaning to others.
The parties disagree about the implications of [X]’s special needs in the context of this case. From the mother’s perspective, they should dictate a cautious approach. On the other hand, the father categorises [X] as a normal child who suffers a mild disability, which should not disqualify him from travelling alone and which is unlikely to prevent him seeking appropriate assistance, for himself, in the event of an emergency.
Mr Gaddy is an experienced health care worker, who works in a hospital setting. It is his evidence, which I accept, that he has personally described to [X] the symptoms of anaphylaxis and has demonstrated to him, on many occasions, how to use an EpiPen. As a consequence, it is the father’s evidence that [X] has an acceptable knowledge of anaphylaxis and has been trained as to what to do if he is subject to an episode of it.
Obviously, [X] can have no direct personal recollection of his only reported incidents of anaphylaxis, which occurred when he was two years of age. As such, the mother fears that he may misinterpret potentially life threatening symptoms because he does not connect them with the descriptions provided by his father. In her evidence, she indicated a concern that [X] may consider any constriction of his throat to be no more than a sore throat, not requiring of any emergency attention. She is also concerned that [X] has a resistance to personal use of an EpiPen and will not seek out help to apply it.
Mr Gaddy considers that the particular scenario of [X] misreading an episode of anaphylaxis is inherently improbable. However, it is a more significant element of his case that, on any statistical consideration, given [X]’s age now and the time that has elapsed since his first and only episode of anaphylaxis, it must be regarded as highly improbable that he will experience a further such episode, whilst on an aeroplane.
In this context, Mr Gaddy points to the fact, a matter which is agreed between the parties, that [X] is well aware of his allergy to peanuts and, as a consequence, knows that it is imperative that he avoids them at all costs. On this basis, the father asserts that any risk arising for [X] is manageable.
It is further Mr Gaddy’s evidence that [X] is able to read food labels and packaging, particularly in regards to the contents of foods and is particularly vigilant so far as peanuts are concerned. In his evidence, Mr Gaddy indicated that he had recently been out, with [X], when the two decided to have an ice-cream together. He indicated that [X] carefully read the wrapper of his ice-cream to make sure that it was nut free.
Accordingly, in these circumstances, Mr Gaddy submits that [X] has an appropriate level of maturity and insight to enable him to take appropriate precautions against unwittingly consuming peanuts and is well aware of the reasons why he must be especially careful in this regard.
In addition, he has made his own inquiries with Qantas, which is his airline of choice for [X]’s travel between Adelaide and Brisbane. Qantas has advised him that it has removed peanuts as bar snacks on all its flights and from the passenger lounges owned and operated by it. In addition, they minimise the use of peanuts in their inflight meals.
Mr Gaddy has been further advised by Qantas that it maintains both adult and children’s EpiPens in its inflight medical kits and all its cabin staff receive training in respect of EpiPen use. As previously indicated, it is Mr Gaddy’s evidence that he himself has provided similar training to [X], who knows where, on the body, the EpiPen is to be applied in an emergency and that it is not necessary for clothing to be removed, given the force of the spring-loaded injection.
It is Qantas’ policy to accept unaccompanied minors, for travel on its domestic air flights, from the age of five years onwards. This includes children with allergies. The sole requirement attaching to such children being that they have an anaphylaxis action plan and an understanding of it. In this context, in late 2017, Mr Gaddy wrote to Dr B requesting a letter of support from her to enable [X] to travel unaccompanied on Qantas flights.
Dr B was prepared to provide such a letter on 9 November 2017.[7] She certified that [X]’s food allergy did not preclude him travelling unaccompanied on aircraft, provided he avoided consuming foods containing peanuts and carried an EpiPen in his carry-on luggage.
[7] See annexure SG1 to the father’s affidavit filed 3 May 2019
In all these circumstances, the probability of [X] suffering an episode of anaphylaxis whilst on a commercial airline flight between Adelaide and Brisbane, seems to me to be acceptably remote. He has not had an episode of anaphylaxis for ten years. He knows what substances to avoid. Qantas itself restricts the exposure of its passengers to peanuts. Its staff are trained to deal with anaphylaxis in general terms.
The most reliable predictor of what will happen, in the future, is what has happened in the past. It is a significant element of Mr Gaddy’s evidence that [X] himself is a relatively experienced traveller, albeit in the context of being in the company of a familiar adult.
Mr Gaddy estimates that the child has travelled on at least ten or eleven flights, including to New Zealand. It is his evidence that, if [X] is able to access the electronic device of his choice, most usually an Ipad, he can comfortably occupy himself on any airline trip. This evidence has the ring of truth to me.
The question arising is whether the prospect of travelling alone, whilst being aware of at least the possibility he will be subject to some form of anaphylactic shock, is of such gravity, so far as [X] is concerned, that it will represent some risk of emotional abuse or neglect that the court should not countenance such travel.
I am not in a position to reject, out of hand, the possibility that [X] carries with him some level of residual fear that he will suffer a future episode of anaphylaxis. After all, this has been part of his life’s story for as long as he can remember and has been reinforced to him by his ever vigilant parents. As such, the first experience of flying alone is likely to be daunting for [X].
The same issues arise in respect of the use of an EpiPen. Fortunately, [X] has never had call to apply the device. As such, he has no personal or visceral experience of it, or indeed of anaphylaxis itself. In the absence of such experience, it is only to be expected that he would be frightened of both the possibility of anaphylaxis and how it would have to be treated.
For obvious reasons, it would not be appropriate to induce an episode of anaphylaxis for [X] so that he could then have the experience of being treated for it, in order to neutralise his fears. However as the American President Franklin D Roosevelt said at his first inaugural address: “the only thing we have to fear is fear itself.”
In this context of this issue, in my view it is relevant that Ms Bock deposes that she has recently arranged for [X] to receive a flu inoculation, this being his first injection since childhood. She reported that it took some time to talk [X] through the process but the injection had been successfully administered. I would hope that this commonplace childhood event – an inoculation – will assuage some of [X]’s fears.
In this context, Mr Gaddy points to the commonplace circumstance that children and indeed adults have to confront their fear of the unknown in order to progress in life. The most common exemplar of this being the fear of many to engage in public speaking. It is Mr Gaddy’s view that [X] will become a more emotionally resilient individual, if he is able to confront his fears and successfully overcome them, as he presumably did with the flu shot.
In order to provide some independent level of assessment of [X]’s emotional resilience in this regard and ascertain his views in respect of potentially travelling alone, at an earlier stage of proceedings, it was arranged for him to be interviewed by Ms F, on 16 October 2018. Pursuant to the provisions of section 11F of the Act, the court is authorised to obtain advice, from a family consultant, in appropriate cases.
Family Consultant Ms F provided a memorandum to the court in respect of her interview with [X]. However, she did not herself give evidence in these proceedings. She described [X] in the following terms:
“[X] presented as a thoughtful, articulate 12-year-old boy. There were no obvious speech or developmental issues.
[X] said he loves both his parents and believes they both love him. He likes living in Adelaide with his mother and likes visiting his father.
[X] said that he wanted to spend half the school holidays at home so that he could play with his friends. He thought his father would like more time with him, but was of the view that the current amount of time was correct. He said that he now spends between a week and a week and half with his father in the school holidays.
[X] was asked about spending a block of two weeks with his father and he responded positively that it would be ‘ok’ as it was only a few more days than he currently spent with him.
When asked, [X] described the steps in using an Epipen, demonstrating with his hands as he did so. That demonstration culminated in him miming pressing the pen firmly to his leg and pushing the button.
He then paused and said that he would not actually use the pen as it had a needle on it and the needle would hurt. He explained that the needle needed to be long enough to get through the fatty tissue. He was asked if he would let someone else know he needed it so they could do it for him. He said that he would.
[X] said that he thought he had had a needle once in his life when he was two years old. He could not recall any other experiences of needles.
Asked what he would do if he felt a reaction at school he responded ‘I don’t know… Ask a teacher’.
[X] said that he generally only ate his own food, but if eating any other ‘man-made food’ he would check and read through the ingredients to ensure there was no risk of nuts.
[X] said that the sign he needed the EpiPen it would be that he would feel his throat closing. He said there were other signs but that he did not remember them and at this point his face closed down and he appeared resistant to further discussion.”
Family Consultant Ms F indicates that [X] is aware of his potential to suffer anaphylaxis and is vigilant about it. In general terms, he knows how his condition is to be treated. However, as at October of last year, he expressed some reticence about using an EpiPen. It is also Ms Bock’s view that it would be a very different prospect for [X] to seek assistance from aircrew whom he did not know, in comparison to a familiar teacher at his school.
In this context, Family Consultant Ms F reported as follows:
“Many much younger children confidently fly unaccompanied. This child has flown the route with an adult many times previously but he appeared very anxious when the issue of him travelling unaccompanied was raised. It seemed that he had some underlying fear and anxiety in respect of his condition and being in a position of responsibility in relation to managing it.”
Given her assessment regarding [X]’s level of anxiety at the prospect of flying alone, Family Consultant Ms F recommended that:
·There be a formal psychological assessment of the child and intervention to address anxiety and a possible underlying needle phobia.
·There be a delay of nine months before [X] commences unaccompanied flights to enable time for therapeutic input;
·There be a review by his specialist prior to the commencement of unaccompanied flights; and
·The first occasion of such unaccompanied flight be from Brisbane to Adelaide, after an initial accompaniment on the Adelaide to Brisbane leg.
The rationale of this arrangement being that the parent most motivated to promote and support unaccompanied flying (obviously Mr Gaddy) put [X] on the first such flight and provide him with the necessary support and encouragement.
Family Consultant Ms F’s report was provided to the parties shortly after it was written. The case returned to court on 26 November 2018, on which occasion I made orders for [X] to spend time with his father, in Brisbane, during the forthcoming Christmas period. Given the moratorium recommended by Family Consultant Ms F, I was not minded to relax the requirement for supervision.
I was, however, hopeful that in the meantime some steps could be taken to provide some additional education to [X] about the use of an EpiPen and his condition generally, in the hope that this would allay some of his and the mother’s anxiety arising from the prospect of unaccompanied travel. In this context, I made the following order:
“The mother is directed to do her upmost to see if Dr B can fast track the child [X] into the “Transition to Adult Care” management program.”
I also directed that Ms Bock obtain the psychological assessment, as recommended by Family Consultant Ms F. Regrettably, neither of these interventions has had the desired outcome. In this context, I am concerned that the experts involved have been at cross purposes.
In January of 2018, Dr B reported as follows:
“[X] has anxiety both about having a future reaction and the use of the Epipen to treat it. He had an inadequate understanding today of both anaphylaxis recognition and management. Regarding the use of the Epipen, he was visibly anxious when asked to demonstrate how to self administer the device and stated emphatically he would not give himself the Epipen if he was having a reaction. He refused/declined to be educated by our staff today on anaphylaxis recognition and use of the EpiPen.
…
I understand consideration is currently being given to whether [X] could travel unaccompanied on interstate flights. Certainly, a peanut allergy per se does not preclude travelling (including of minors travelling unaccompanied) providing the EpiPen is carried on board in carryon luggage. Families are also able to supply food for the child to eat on flights. This is reflected in his anaphylaxis travel plan. It may be worth considering formal psychological assessment and intervention to address anxiety and a possible underlying needle phobia if these pose a barrier to travel or to his safety. I am happy to provide one or more separate appointment times to provide [X] with education on anaphylaxis recognition and management and EpiPen use at any time, once he is more amenable to this.”[8]
[8] Ibid at annexure G6
I was hopeful that Dr B could be prevailed upon to provide the sessions intended to provide him with more education on anaphylaxis recognition and management. However, for reasons about which I can only conjecture, she has not done so. Rather, she has indicated that she will review [X]’s case in 2020 and, at this stage, consider whether he should be admitted to the Transition to Adult Care Anaphylaxis Management Program.
In this context the parties have very different views about [X]’s level of understanding of his anaphylaxis and its treatment. Ms Bock describes his knowledge as sketchy; whilst, as previously indicated, Mr Gaddy is of the view that it is more advanced. In my view, it is regrettable that there has not been greater input from Dr B in this regard.
As a consequence of the orders made in November, Ms Bock arranged for [X] to be examined by Ms D, an experienced paediatric psychologist, who frequently provides reports to the court in respect of the views and the perceptions of children, particularly in the context of parental disagreement. Ms D provided a report, in respect of her involvement with [X], in March of 2019. In addition, Ms D provided oral evidence to the court.
Ms D’s impressions of [X] were similar to those of Family Consultant Ms F. Ms D was of the view that, in order to illicit information from [X], it was necessary for her to both repeat and simplify her questions to him. As such, she considered him to be a child who experienced difficulties with both attention and comprehension.
In respect of the central issues arising in this case, Ms D reported as follows in respect of [X]:
“When asked his understanding of possible symptoms he might experience with exposure to peanuts, [X] reported 'lip swelling, difficulty breathing and a feeling in my throat'. [X] was able to demonstrate how it should be administered into his thigh and reported he would allow an adult to administer it to him if required. At school or when on camp he would advise a teacher if he felt unwell. He carried an Epi-Pen in his bag. The school also had one. [X] reported he was very careful in checking food, did not share others food and would check labels. He did not think he would be able to give himself an Epi-pen because it would hurt. [X] reported his father had talked with him about the Epi-pen and had shown him lots of times how to use it, but had never asked him how he felt about using the Epi-pen on himself.
…
[X] reported he felt 'not good' about flying interstate unaccompanied and being required to say he felt okay to use the Epi-Pen. He had told his father via a message on the iPad, that he did not like being forced to do this.
…
When asked if he was aware his parents had different ideas about him travelling unaccompanied and wanted to check how he felt, [X] responded that his mother thought 'I can do it when I'm ready' and his father thought 'I can do it now'. [X] did not think his father listened to what he wanted, adding 'I wish it would all come to an end because I'm sick of talking about it'. [X] thought his father listened about other things e.g. what he would like for Christmas.”[9]
[9] See annexure C to the mother’s affidavit filed 26 March 2019
Ms D administered a battery of psychometric tests designed to assess [X]’s level of anxiety, in general terms. She reported that the child had mildly elevated scores. Mr Gaddy relies on this evidence in support of his assertion that [X]’s level of anxiety, about the issue in question, cannot be regarded as extreme.
In the conclusion section to her report, Ms D wrote as follows:
“In summary, while [X] shares a strong emotional attachment with his mother, his thoughts and views as expressed during interviews impressed as his own and not due to influence. He consistently repeated his preferred travel arrangements. Mr Gaddy is urged to give careful consideration to [X]'s views and ensure he feels heard and understood to support a relationship of trust.
In view of [X]'s strongly held views and anxiety about the requirement to travel unaccompanied/use the Bpi-pen if required, and his communication difficulties, he does not present as sufficiently confident or competent to manage the expectations required of him at this time. It is recommended [X]'s ability to self-manage his health condition is reviewed once he has completed the 'Transition of Care' program and on the advice of Dr B.”[10]
[10] Ibid at annexure C
Over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Such rights are likely to become more compelling the more mature a child is. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[11]
[11] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[12]
[12] See R & R: Children’s Wishes (2000) 25 Fam LR 712 at 724 [54]
The overall impression presented by Ms D, when she provided her oral evidence to the court, was one of bemusement. On a number of occasions, she indicated that she did not believe it was her role, in essence, to decide whether [X] should travel unaccompanied between Adelaide and Brisbane. From her perspective, this was the role of his parents and, if necessary, in default it fell to the court, rather than to her.
As previously indicated, [X] has not, as yet, been able to transition to the program recommended by Dr B, nor has he taken up the opportunity to have one on one sessions with her, as proposed in early 2018. In this context, I am concerned that Ms Bock is mildly resistant to such interventions. Certainly, she presented as disinclined to challenge the father’s indication that she would review [X] in 2020. This confirms my view that there has been a level of miscommunication between the various experts concerned. I am also concerned that Ms D does not appear to have an opportunity to consult with Mr Gaddy about the issues arising in the case.
In all these circumstances, I am not of the view that [X]’s views as expressed to Ms D should be the defining factor in the case, at this stage, particularly given my assessment, which I hope is objective, that the chances of [X] suffering an episode of anaphylaxis, on a commercial airline flight, at this stage are infinitesimally small.
I also consider that, by dint of his professional experience, Mr Gaddy himself is likely to have a significant appreciation of [X]’s understanding of anaphylaxis and its treatment. In this context, in my view, it is also significant that [X] has recently received an inoculation, without any apparent emotional mishap.
In all these circumstances, I have come to the conclusion that it would not represent an unacceptable risk, for [X], in either emotional or physical terms, to travel between Brisbane and Adelaide, as outlined by Family Consultant Ms F.
In my view, it is a proportionate response to the risk arising, if [X] travels with his father between Adelaide and Brisbane, for the purposes of the forthcoming mid-year school holiday and thereafter, after having been briefed and supported by his father, he then returns to Adelaide unaccompanied.
In my assessment, if [X] did in fact react extremely badly to such a proposal, Mr Gaddy is not the sort of parent who would unnecessarily dig in over the issue. Rather, I was impressed by his sensitivity and forbearance. I do not consider that he would unnecessarily force [X] to do something over any repeated and forceful objections raised by the child. In my assessment, Mr Gaddy is emotionally in tune with [X].
After considering all his evidence, I found him to be a sensible, insightful and measured parent. In addition, I consider that he has approached the issue of unaccompanied travel, with both Ms Bock and [X], in a sensitive and patient manner. I agree with his view that it is appropriate for there to be a move in respect of the issue and it is more likely than not that [X] will successfully adjust to the change, particularly in the first unaccompanied flight, which is a return leg from Brisbane to Adelaide, rather than vice versa.
Financial issues
Although the parenting relationship between the parties is reasonably cohesive and they have demonstrated some facility to communicate with one another effectively, particularly in terms of [X] spending regular periods of time with his father, their relationship is not without its challenges.
In particular, each labours under a significant level of resentment regarding issues arising as a respect of their mutual but countervailing perceptions that there is a significant level of inequality or unfairness regarding arrangements for the financial support of [X]. These mutual resentments are longstanding and, in my assessment, particularly strong, so far as Ms Bock is concerned.
It is her view that it is she who provides the lion’s share of financial support, for [X], much of which goes unacknowledged by his father who is largely oblivious of the restrictions in her household and the sacrifices she must make to ensure that [X] has the sort of comfortable well-resourced middle class childhood to which both she and Mr Gaddy aspire for [X].
On the other hand, it is Mr Gaddy’s perception that he has been a reasonable and generous parent, so far as child support issues are concerned. In this context, he points to the fact that he and Ms Bock have negotiated a child support agreement, which renders him liable to provide a fixed and indexed amount of child support, which is greater than he would be assessed to pay, if the statutory formula was applied to his circumstances.
More significantly, he relies on the fact that he has agreed to pay the bulk of [X]’s private school fees, at School C, including other school expenses, such as uniforms and books, from the time he started his education in 2012. Between 2013 and 2015, Mr Gaddy agreed to pay 75% of these expenses, but from 2016 onwards, he agreed to pay 90% of them.
It was the import of Mr Gaddy’s evidence that the School C’s fees have increased dramatically in recent years – from $8,000.00 to $25,000.00 per annum. In these circumstances, although he is well paid by community standards, he asserts that he is under some level of financial pressure. As a consequence, he regularly works a 60 hour week, which impacts upon his time with his current partner and his other family.
From his perspective, in these circumstances, the mother’s continued insistence that [X] be accompanied on his travel between Adelaide and Brisbane, requiring him to pay for six air tickets for each such holiday, is emblematic of the mother’s lack of empathy for his situation and demonstrative of her overall objective unreasonableness in respect of financial matters.
Mr Gaddy earns $292,500.00 per annum. As previously indicated some of this income relates to overtime worked at the Town A Hospital, at which he is a health care worker. Mr Gaddy would like to reduce his hours but does not feel able to do so. He pays child support in an amount of $694.00 per week, which equates to $36,088.00 per annum.
In addition, on my calculations, based on the evidence of Mr Gaddy, he pays a further sum of at least $22,500.00 per annum relating to [X]’s education expenses. This equates to around 20% of his gross income being allocated to expenses related to the support of [X].
Mr Gaddy is purchasing a home in Queensland, which is subject to a mortgage. He calculates that he has around $100,000.00 equity in the property. He supports his current partner and child. His financial statement does not reveal any obvious sources of surplus income after his expenses are taken into account.
In these circumstances, I do not consider that the father is in a strong financial position, when his recurrent expenses are considered. Nor do I consider that there is any evidence to indicate that he has ever sought to escape or minimise his financial obligations for [X] or indeed any other parental obligation owed to the child by him.
The mother is a health care worker employed by the …Hospital. At present, she is not engaged in work but, on her own application, has been allocated to a project concerned with …. From her perspective, this provides more child-centric hours and allows her to be available for [X] before and after school.
Her gross salary is currently $103,116.00 per annum. She owns the house in which she and [X] live. It is subject to a significant mortgage, which consumes around $31,200.00 of her income each year. Like Mr Gaddy, Ms Bock’s regular expenditure consumes her income. She has no savings to speak of and no obvious areas in which to rationalise expenditure.
It is axiomatic from the terms of the child support agreement that it was a joint parental decision that [X] receive a private education. I also accept unequivocally that the payment of child support does not necessarily acquit all the expenditure incurred in providing for a child. It is likely, given the type of education [X] is receiving, that there will be manifold expenses required to be satisfied each and every day.
In addition, I also accept that the responsibilities incumbent on Ms Bock, as [X]’s primary carer, will inevitably impinge on her capacity to earn an income. Her situation provides her with less flexibility in terms of the hours she can work and the possible overtime she can accept.
It seems to me, putting aside the other issues relating to [X]’s unaccompanied travel, that the parties are simply unable to afford the expense of him being accompanied, by an adult, on each journey between Adelaide and Brisbane. In addition, to continue this requirement, will only add to the unhelpful resentment, concerning financial matters, presently arising between the parties.
The question remaining is how the expense of [X]’s personal travel is to be allocated between the parties. Mr Gaddy has not provided any current evidence regarding the cost of flights. Neither I nor the parties have the ability to predict what airfares will be in three or five years’ time or even in six months.
The price of oil, and so of aviation spirit, is particularly susceptible to global tensions and the times in which we live are no less turbulent than those which have gone before. If oil spikes in value, airfares will go up. In addition, given [X] must travel in school holidays, when many other families travel in this country, his tickets are likely to come at a premium. There is nothing easy about the parties’ circumstances, particularly in respect of them having to find potentially four return tickets each year between Adelaide and Brisbane.
Section 60CC(3)(e) directs the court to consider “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.”
Hitherto, due to Mr Gaddy’s commitment, the logistical issues have not affected [X]’s right to maintain personal relations with his father. This is to Mr Gaddy’s credit. I consider that he is the parent better placed to ensure that this situation continues for two predominant reasons.
Firstly, he has the greater motivation to ensure [X] continues to be able to travel to Brisbane to see him, his half sibling and the father’s current partner. Secondly, his income is significantly greater than that of Ms Bock, although I concede he has many calls upon it, including those relating to [X].
Put simply, Mr Gaddy will ensure that the necessary tickets are booked and paid for to ensure a seamless degree of travel for [X]. Regretfully, I am concerned that if there has to be a process involving Ms Bock contributing to the fares in some way, it will involve double handling, obfuscation and conflict.
Essentially, if one parent is charged with the duty of arranging and paying for the fares and that parent is motivated to ensure the travel happens and has access to the necessary resources required, it will occur. In this case that parent is axiomatically Mr Gaddy.
No doubt Mr Gaddy will feel hard done by as a consequence of this decision. The evidence indicates that, up to this stage, he has borne the costs of [X]’s travel, including the cost of accompaniment, over many years. This is to his great credit. Although for him to continue to have to bear this expense will be burdensome and, if squeezed it is likely Ms Bock will have some capacity to contribute, I do not consider there are compelling reasons to, in metaphorical terms, upset this particular applecart.
Rather, it is likely to be in [X]’s best interests to allow the existing status quo, which has hitherto worked, remain in place, particularly given the fact that, as a consequence of this decision made by the court, the expenses involved in [X]’s travel will have been reduced by approximately two thirds.
Finally, it is implicit in the applications filed by each of the parties that they seek final orders in order to memorialise the existing and long standing arrangements for [X]’s parenting. In the main these arrangements are not controversial. It is agreed that:
·They should be conferred with equal shared parental responsibility for [X];
·[X] will live with his mother;
·[X] will spend half of each school holiday period with his father, with the halves to alternate each year;
·The father and [X] have the facility to spend time together in the middle of each school term, provided some form of notice is provided;
·[X] is to be able to have reasonable telephone and other electronic forms of communication with each parent, when he is in the care of the other; and
·[X] be permitted to travel overseas with each of his parents.
In his application the father has proposed some thirty six parenting orders in respect of [X]; in her response the mother has proposed some nineteen. As previously indicated, other than in phraseology and other minor issues, there are no great discrepancies regarding the respective positions of the parties, so far as the big picture of [X]’s parenting is concerned.
This is likely to be reflective of the fact that over the eight years or so of their separation, to their very great credit, the parties have been able to manage arrangements for [X]’s care without the need for the court’s intervention. I have no desire to jeopardise this situation and am alive to the very real possibility that the court’s unnecessary intervention may unwittingly upset this equilibrium, which is protective of [X].
In this context, the parties have sought orders which are reflective of the legal position flowing from the conferral of joint parental responsibility. In their respective evidence neither party has made any vociferous complaint regarding the exchange of information between them (including in respect of their personal contact details) or in regard to access to medical and educational information pertaining to [X].
Similarly, there has been no indication that the making of derogatory comments has been problematic between the parties or contact on either Father’s Day or Mother’s Day. It is also axiomatic that the child should not be permitted to consume any food which contains peanuts or traces of peanuts or is labelled as such. Each party is well aware of this fact and, as such, an order to the effect will serve no useful purpose.
In my view, the court should only make orders when there is a utility to do so. The parties are each educated professional persons, who are obviously devoted to [X] and his welfare. In these circumstances, in my view, it is condescending for the court to make orders merely for the sake of underlining to parties what their obligations to each other and to [X] are when it is clear that they are both well aware of what those obligations are and each is fulfilling them.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [see section 65DAC]. I will make an order conferring equal shared parental responsibility for [X] on the parties.
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Accordingly, neither one of them will have primacy, over the other, in respect of medical, educational or other major long-term issues to do with [X]. Rather, they are required to consult with one another about these matters. Necessarily any process of efficient consultation requires the exchange of all relevant material, between the parents, so that views can be exchanged and conceivably an agreed position reached in respect of such issue.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
In Bartel & Schmucker (No 3), Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [13]
[13] See Bartel & Schmucker (No 3) [2012] FamCA 1094 at [18]
The parties, in my assessment, are each capable and insightful parents, who are focussed on ensuring that [X] has a well-resourced and happy childhood, which will allow him to develop into an assured and resilient adult. He is a fortunate child to have such devoted and competent parents.
These proceedings have focussed on one specific area on which they have fundamentally disagreed about what is best and appropriate for their child. Although it would have been my personal preference that the parties themselves could have reached some compromise in respect of the matter, given the moment of the issue for each of them, that was not possible and it fell to me to decide it.
That does not mean that the parties are to be regarded as flawed parents or that, in future, they will not be able to exercise parental responsibility jointly, as the legislation envisages. I trust they will continue to consult with one another about all major long-term issues pertaining to [X].
From such consultation, it is to be hoped that [X] will derive a sense that each of his parents are involved in his life and care about him, notwithstanding their separation and the geographical constraints arising. I apologise that these reasons for judgment are perhaps more extensive than was necessary. This is testament to the intensity of the controversy which the issue of unaccompanied travel precipitated.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 1 July 2019
Key Legal Topics
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Family Law
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