Hammerton & Hammerton
[2023] FedCFamC1F 325
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hammerton & Hammerton [2023] FedCFamC1F 325
File number: SYC 6043 of 2017 Judgment of: CHRISTIE J Date of judgment: 27 April 2023 Catchwords: FAMILY LAW – FINAL PARENTING – Where the mother indicated she did not intend to participate in the final hearing – Where the mother decided to participate upon reading the father’s minute of orders sought and affidavit – Where both parents were self-represented at the final hearing – Where the mother largely agreed with the father’s proposed minutes. Legislation: Family Law Act 1975 (Cth) ss 61DA, 60CC Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 27 April 2023 Place: Sydney The Applicant: Litigant in person (via Microsoft Teams) The Respondent: Litigant in person ORDERS
SYC 6043 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAMMERTON
Applicant
AND: MR HAMMERTON
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
27 April 2023
THE COURT ORDERS THAT:
1.The father and the mother have equal shared parental responsibility for the child X born 2008 (“the child”).
2.The child live with the mother.
3.The child spend time with the father as follows:
(a)On each alternate weekend commencing at 5.00 pm on Saturday until 9.00 am on Monday or the start of school;
(b)During December/January summer school holidays:
(i)for two weeks as agreed but failing agreement from 5.00 pm on Saturday, 16 December 2023 to 9.00 am on Monday, 1 January 2024;
(ii)for two weeks as agreed but failing agreement from 5.00 pm on Saturday, 28 December 2024 to 9.00 am on Monday, 6 January 2025;
(iii)for two weeks by agreement and failing agreement from 5.00 pm on Saturday, 13 December 2025 to 9.00 am on Monday, 29 December 2025;
(iv)for two weeks by agreement and failing agreement from 5.00 pm on Saturday, 2 January 2027 to 9.00 am on Monday, 18 January 2027;
(c)On Father’s Day each year from 9.00 am until 6.00 pm;
(d)On the child’s birthday or the nearest Sunday from 9.00 am to 6.00 pm;
(e)For the purpose of attending counselling with the father as directed by the counsellor outside of school hours;
(f)At such further times as requested by X or as agreed between the parties in writing;
(g)The parents will use their best endeavours to be flexible about arrangements having regard to the child’s age and schooling and extra-curricular commitments; and
(h)In the event that the child does not spend time with the father in accordance with Order 3, the mother will nominate equivalent make up time to take place within four weeks of the missed time.
Communication between the parents
4.Within seven days the father will provide the mother by email with the details of a parenting communication application which they can use to discuss matters relating to the child.
(a)Thereafter, the parents will use that application for all communication relating to the child (save in an emergency);
(b)The father shall meet the costs of the application in the first year and each alternate year thereafter. The mother shall meet the costs of the application in the second year and each alternate year thereafter;
(c)The parents will not use the child to convey any message as between them or to make any arrangements in respect of the child’s time with the other parent;
(d)The mother will provide the father with a minimum of seven days written notice of any changes that affect the father’s time with the child;
(e)The father will provide the mother with a minimum of seven days written notice if he is unable to have the child on his days.
Communication with the child
5.Each party may communicate with the child by telephone, text message or email at any reasonable time, and the child may communicate with either parent whenever they wish, and the other parent will do all things necessary to facilitate this.
Travel
6.For the purposes of international travel:
(a)Each party may travel with the child internationally to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction;
(b)The travelling party will provide the other party with a minimum of four weeks written notice in advance, subject to any emergency travel in which case the travelling party will notify the other party as soon as practicable;
(c)The travelling party must give the other party an itinerary for the child's travel, including full details of the travel and contact details whilst overseas or during travel;
(d)X’s passport will remain in the care and custody of the mother when not being used;
(e)In the event that the child does not have a passport, both parties shall do all things and sign all documents necessary for the child to be issued with a passport and the costs for any such application to be equally shared by the parties;
(f)In the event the father wishes to travel internationally with the child, the mother will provide the child's passport to the father no less than 14 days prior to any proposed travel with the child, and the father will return the child’s passport to the mother no less than 14 days after returning to the Commonwealth of Australia with the child.
7.Each party forthwith do all acts and sign all documents and give all consents and authorities necessary to enable any relevant educational, professional and any school attended by the child to provide to each parent copies of reports, information, or documentation relevant to the child’s education.
8.Each party forthwith do all acts and things and sign all documents and give all consents and authorities necessary to enable any relevant medical professional and doctor, hospital, therapist or other relevant professional to provide to each parent copies of reports, information or documentation relevant to the child’s health and medical treatment.
9.Each party shall ensure the other party is kept informed as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by the child, whilst in their care, and in the case of emergency, as soon as practicable by telephone;
(b)Any medication that has been prescribed for the child;
(c)Vaccination status or reasons for not vaccinating;
(d)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding the child;
(e)Any social, school, or religious functions which the child is to attend while in the care of the other party;
(f)Their telephone number and email address; and
(g)Any other matter relevant to the welfare of the child.
10.The mother forthwith share all sports, extracurricular activities, and school events with the father, including venue, date, time, contact details and other relevant information (and the father shall be free to attend during his time with the child, or otherwise upon receipt of an invitation to attend from the child or from the mother).
11.Unless otherwise agreed in writing changeovers that do not occur at C School shall take place by the mother facilitating the child to take public transport to the father’s residence.
12.Without admitting the necessity of same, each party is restrained from;
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children including on social media at any time;
(b)Discussing any proceedings with the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so;
(c)Accessing the contents of the child’s phone including but not limited to screenshots, photographs, emails, social media and telephone logs without the consent of the child.
THE COURT NOTES THAT:
A.Orders 1, 2, 3(a), (c), (d), (e) and (f), 5, 6, 7, 8, 9 and 12 are made by consent.
B.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences which may follow from contravention of these orders are set out in annexure A attached and which form part of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hammerton & Hammerton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final parenting orders.
On 9 August 2018 Ms Hammerton, the applicant wife, commenced proceedings by filing an Initiating Application seeking parenting orders in respect of the parties children: Ms B born 2002 and X born 2008 (“the children”).
On 6 September 2018 Mr Hammerton, the respondent father, filed a Response to Initiating Application seeking final parenting orders in respect of the parties’ children.
Whilst the proceedings have been on foot, the parties’ older child Ms B turned 18. Accordingly, the proceedings deal only with the parties’ younger child, X, who is at the time of this hearing 14 years old.
The parties were unable to resolve the disagreement about orders for X as between them so as to arrive at consent orders and accordingly, the Court listed the matter for a final hearing and ordered that a court child expert prepare a report. The parties had earlier had the benefit of a child inclusive conference and report.
The matter came before the Court on 5 April 2023. On that day the report of the court child expert was released to the parties. The matter did not resolve and the matter came back before the Court on 24 April 2023 at which time the mother indicated to the Court that she did not wish to participate in the final hearing. I indicated that, in those circumstances, the matter would be listed for an undefended hearing but that the father was obliged to serve her with a copy of his minute of orders sought and the affidavit upon which he wished to rely and that she could, if she wished to, attend the hearing albeit that she would not have filed any material.
The father filed his minute of order as directed on 26 April 2023. The father sought the following orders:
1.The Father and the Mother have equal shared parental responsibility for the child [X] born […] 2008 ('child’)
2.The child live with the Mother.
3. The child spend time with the Father as follows:
a.On each alternate weekend commencing at 5pm on Saturday until 9am on Monday or start of school;
b. During December summer school holidays between:
i.5pm on Saturday, 16 December 2023 to 9am on Monday 01 January 2024;
ii.5pm on Saturday, 14 December 2024 to 9am on Monday 30 December 2024;
iii.5pm on Saturday, 13 December 2025 to 9am on Monday 29 December 2025;
iv.5pm on Saturday, 12 December 2026 to 9am on Monday 28 December 2026.
c. On Father’s Day in each year from 9am until 6pm;
d. On birthday […] or the nearest Sunday, from 9am to 6pm;
e.For the purposes of attending Counselling with the Father as directed by the counsellor outside of school hours.
f.At such further times as requested by [X] or as agreed between the parties in writing.
4.The Mother will provide the Father with a minimum of 7 days written notice of any changes that affect the Father’s spend time with the child. That the Mother will accommodate makeup days in such circumstances.
5.The Father will provide the Mother with a minimum of 7 days written notice if he is unable to have the child on his days.
6.Each party may communicate with the child by telephone, text message or email at any reasonable time, and the child may communicate with either parent whenever they wish, and the other parent will do all things necessary to facilitate this.
7.For the purposes of international travel:
a.each party may travel with the child internationally to countries which are signatories to the Hague Convention;
b.that the travelling party will provide the other party with a minimum of four weeks written notice in advance, subject to any emergency travel in which case the travelling party will notify the other party as soon as practicable;
c.that the travelling party must give the other party an itinerary for the child's travel, including full details of the travel and contact details while overseas or during travel;
d.that [X’s] passport will remain in the care and custody of the Mother, when not being used;
e.that in the event that the child does not have a passport, both parties shall do all things and sign all documents necessary for the children to be issued with passports and the costs for any such application is to be equally shared by the parties;
f.that in the event the Father wishes to travel internationally with the child, the Mother will provide the child's passports to the Father no less than 14 days prior to any proposed travel with the child, and the Father will return the child’s passport to the Mother no less than 14 days after returning to the Commonwealth of Australia with the children.
8.Each party forthwith do all acts and things and sign all documents and give all consents and authorities necessary to enable any relevant educational, professional and any school attended by the children to provide to each parent copies of reports, information, or documentation relevant to the children’s education.
9.Each party forthwith do all acts and things and sign all documents and give all consents and authorities necessary to enable any relevant medical professional and doctor, hospital, therapist or other relevant professional to provide to each parent copies of reports, information or documentation relevant to the children’s health and medical treatment.
10.Each party shall ensure the other party is kept informed as soon as is reasonably practicable of:
a.Any medical problems or illness suffered by the child, whilst in their care, and in the case of emergency, as soon as practicable by telephone;
b.Any medication that has been prescribed for the children;
c. Vaccination status or reasons for not vaccinating;
d.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding the child
e.Any social, school, or religious functions which the child is to attend whilst in the care of the other party;
f. Their telephone number and email address;
g. Any other matter relevant to the welfare of the child.
11.That the Mother forthwith share all sports, extracurricular activities, and school events with the Father, including venue, date, time, contact details and any other relevant information.
12.Unless otherwise agreed in writing changeovers that do not occur at [C School] take place at [Suburb D, E Store], Father’s residence or as convenient to [X].
13.Each party shall ensure the other party is kept informed about any changes to their respective residences as soon as reasonably practicable.
14.Without admitting the necessity of the same each party is restrained from;
a.Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children including on social media at anytime;
b.From discussing any proceedings with the parents or the parental relationship in the presence of hearing of the children or permitting any other person to do so;
c.From accessing the contents of the child’s phone including but not limited to screenshots, photographs, emails, social media and telephone logs without the consent of the child.
15.Father seeks orders to address the impact of these orders if parties relocate, i.e., within NSW, interstate or internationally.
16.Father proposes that a co-parenting app is used for communication between the parties and costs shared.
The father relies on an affidavit filed on the same day and served on the mother.
As previously mentioned, there is a child inclusive conference memorandum and a family report.
On 26 April 2023 the mother indicated an intention to participate in hearing via electronic communication.
Consequently, the matter proceeded as a defended hearing albeit that the mother had not filed evidence. Both parties elected not to cross-examine.
BACKGROUND
The parties to the proceedings commenced cohabitation in late 1997 and separated on 24 November 2012. They were divorced in 2017. Their oldest child, a girl, was born 2002 and their younger child, a boy, was born 2008.
The parties assumed separate residences in late 2012 with the husband renting a two bedroom apartment five minutes from the former matrimonial home. The husband’s evidence was that, in the year post separation, he saw the children on an informal schedule each weekend and they stayed with him. In 2014 both children were, according to the information they provided to Ms F (the court child expert who saw them for the purpose of the child inclusive conference) in 2020, in the care of the father for about six months. By 2014 there were issues as between the parents about the time being spent in each household and the father contacted G Service.
Between 2014 and 2016, notwithstanding the fact that the parties were separated, they took family vacations with the children to N Region, New Zealand, City H, J Town, City K and other places and also had dinners together on a Wednesday night.
Between late 2016 and early 2017, the children and the mother travelled to Country L. The father says that on her return she sought to reconcile with him.
The father says he did not reciprocate those feelings and the parenting relationship between the parties was, on the father’s case, affected by this.
In the father’s affidavit material he sets out that in late 2017, he and his daughter had a disagreement about whether or not her brother could take a phone to school.
Between that date and early 2023 the father and his daughter did not speak.
In 2023 the parties’ daughter turned 21. The father says that, at the mother’s request, she encouraged the parties’ daughter to meet with the father and this occurred. The father hopes that their relationship will improve.
On 22 November 2021 the Court made interim orders by consent as follows:
…
3.All previous parenting Orders are discharged
4.The Father and the Mother have equal shared parental responsibility for the child [X] born […] 2008 (‘child’).
5. The child live with the Mother.
6. The child spend time with the Father as follows:
6.1.on each alternate weekend commencing at 5pm on Saturday until 9am on Monday or start of school;
6.2.on Father’s Day in each year from 8am until 5pm;
6.3.birthday […] or the nearest Sunday, from 8am to 5pm;
6.4.For the purposes of attending Counselling with the Father as directed by the counsellor outside of school hours.
6.5.At such further times as requested by [X] or as agreed between the parties in writing.
7.Each party may communicate with the child by telephone, text message or email at any reasonable time, and the child may communicate with either parent whenever they wish, and the other parent will do all things necessary to facilitate this.
8. For the purposes of international travel:
8.1.each party may travel with the child internationally to countries which are signatories to the Hague Convention;
8.2.That the travelling party will provide the other party with a minimum of six weeks written notice in advance, subject to any emergency travel in which case the travelling party will notify the other party as soon as practicable;
8.3.That the travelling party must give the other party an itinerary for the child’s travel, including full details of the travel and contact details while overseas or during travel;
8.4.That the children’s passports will remain in the care and custody of the Mother, when not being used;
8.5.That in the event that the child does not have a passport, both parties shall do all things and sign all documents necessary for the children to be issued with passports and the costs for any such application is to be equally shared by the parties;
8.6.That in the even the Father wishes to travel internationally with the child, the Mother will provide the child’s passports to the Father no less than 14 days prior to any proposed travel with the chid, and the Father will return the child’s passport to the Mother no less than 14 days after returning to the Commonwealth of Australia with the children.
9.Each party forthwith do all acts and things and sign all documents and give all consents and authorities necessary to enable any relevant educational professional and any school attended by the children to provide to each parent copies of reports, information, or documentation relevant to the children’s education.
10.Each party forthwith do all acts and things and sign all documents and give all consents and authorities necessary to enable any relevant m3edical professional and doctor, hospital, therapist or other relevant professional to provide to each parent copies of reports, information or documentation relevant to the children’s health and medical treatment.
11.Each party shall ensure the other party is kept informed as soon as is reasonably practicable of:
11.1.any medical problems or illness suffered by the child, whilst in their care, and in the case of emergency, as soon as practicable by telephone;
11.2.any medication that has been prescribed for the children;
11.3.any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child noting that all General Practitioner appointments will be at the same clinic to be confirmed in writing within 14 days of these Orders;
11.4.any social, school or religious functions which the child is to attend whilst in the care of the other party;
11.5.their telephone number and email address;
11.6. any other matter relevant to the welfare of the child.
12.Unless otherwise agreed in writing changeovers that do not occur at [C School] take place at the [City M Train Station].
13.Without admitting the necessity for same each party is restrained from;
13.1.Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children including on social media at any time;
13.2.From discussing any proceedings with the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so;
13.3. From leaving the child alone overnight;
13.4.Form leaving the child in the care of a third party (other than his older sister or a sleepover as sought by the child) overnight;
13.5.From accessing the contents of the child’s phone including but not limited to screenshots, photographs, emails, social media and telephone logs without the consent if child.
14.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
As a consequence of those interim orders, the father and the parties’ son have been spending time together and engaging in activities.
THE LAW
These are parenting proceedings governed by Part VII of the Family Law Act 1975 (Cth) (“the Act”).
At s 61DA of the Act the legislation deals with the presumption of equal shared parental responsibility when making parenting orders. Section 61DA of the Act provides:
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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.
The Court is required to make orders which are in the best interests of the child the subject of the orders. In order to determine what is in a child’s best interests, the Court is required to take into account of all the relevant matters as they appear in s 60CC of the Act.
60CC How a court determines 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).
Note:Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
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.
CONSIDERATION
At the commencement of the hearing I inquired of the mother which orders were opposed. The mother told me that she was no longer opposing the making of an order for equal shared parental responsibility.
The key issues or disputes for adjudication were:
(a)Whether the parents should communicate and if so how?
(b)Whether the orders should be flexible having regard to the child’s age?
(c)Whether the father should have information about the child’s residential address and extra-curricular activities?
(d)When the father’s long holiday time should take place?
These proceedings have been on foot for a lengthy period of time. The history, as described by each parent, has led to a position of distrust and weariness. Notwithstanding this history, and a reluctance on the part of the mother to actively participate in these proceedings, the parties have achieved a number of positive outcomes for their children. The mother has encouraged the parties’ adult daughter to meet with her father after a period of estrangement. The parties have implemented an agreement where the parties’ son spends time with the father on a regular and frequent basis. It is plain that this is an enjoyable activity for both parent and child.
The Act provides that children have a right to know and be cared for by both of their parents unless such an arrangement would be contrary to their best interests.
Whilst the mother made allegations to the family report writer to the effect that she had experienced the relationship between herself and the father as abusive and controlling, she does not say to the Court that, as a consequence of that, there should be no time spent between the parties’ son and the father. She acknowledges that the time between them does not pose a risk to the child. In circumstances where the mother does not indicate that time with the father poses a risk, it is not necessary for me to resolve the factual dispute as between the parents as to whether or not the relationship was as the mother contends or as the father contends. It is safe to say that both of them found the relationship very difficult.
The mother has raised a concern that the orders which the father seeks may have an impact on her rights to privacy. For that reason it is necessary for me to consider whether or not any of the orders which I am being asked to make are orders which will function in a manner which is contrary to the best interests of the parties’ child.
I understand the father’s reasonable desire to know where his son lives. The mother is extremely reluctant to provide that information. In submissions she told me that the father had stalked her. The mother has not filed evidence, although she did raise this issue with the family report writer. Ideally, both parents should know where their children are. I am also concerned that this creates an additional burden for the child X in keeping his primary address secret from his father. However, on balance, I am of the view that the co-parenting relationship between the mother and father will be enhanced by acceding to the mother’s position. The mother properly accepted the father’s proposition to communicate via a specific parenting application and I am making that order. The parents will also communicate in an emergency. In those circumstances I will not make the order that the mother provide the address of her home to the father. This is not a finding that the father has in fact acted in the manner asserted by the mother but an order designed to assist the parents to rebuild their trust in the interests of their son.
Ultimately the parents agreed to an order for equal shared parental responsibility. The rationale behind orders for equal shared parental responsibility is to provide the child with the opportunity for both parents to have input into his upbringing in respect of matters which have long term significance to him. Those matters include decisions concerning health, education, religion, nationality and the like. Orders for equal shared parental responsibility require the parents to communicate. That does not require them to communicate necessarily face to face. The father says in his affidavit that the mother has recently been instrumental in encouraging the parties’ daughter to meet with him. The parties ought to be able to discuss, by the parenting application, any decisions which fall under the category of long term parental responsibility for X. Practically speaking, given X’s age, it is very unlikely that such issues will arise regularly or frequently in the period between now and when he turns 18.
The orders provide for a regime of time between X and the father premised upon X remaining in the primary care of the mother. The benefit of a regime which is set out in court orders is that neither of the parties will be required to negotiate one with the other and may make arrangements for X during his or her own time without fear that they will infringe on the arrangements of the other parent.
Family report
One of the key things set out in the family report was the necessity to protect X from conflict between his parents. Consequently, a minute of order which sets out with particularity those times when X is to spend school holidays or term time with the father will be an appropriate way of shielding him from conflict.
The family report writer also highlighted the need for each of the parents to understand that X’s age means that some flexibility will be necessary to take into account the fact that teenagers have significant commitments to school, extra-circular activities and their peers. What emerges very plainly from the family report is that the mother sees no value in a co-parenting relationship although she appreciates the value of the parent/child relationship to the child. In effect what she is asking the Court to do is to set up a system where the parties parent in parallel. If this could operate in the interests of the child, given the history of these parties, that might be appropriate. But it is unrealistic to think that the parties can have no communication with one another while their son is still finishing high school.
Fundamentally, the reason why I am disinclined to accede to the mother’s request that there be no requirement that she and the father communicate is because that would, as set out in the family report at [51], mean that communication falls to X:
51.Given that there is currently no communication between the parents, this may lead the parents to communicate through [X] to each other, which may place emotional pressure on [X]. [X] would benefit from not having to feel that he needs to communicate or relay messages between the parents, so that he does not feel in the middle of his parents or pressure to choose a side. It is acknowledged that it may not be feasible or beneficial for the parents to have communication with each other, and perhaps such communication could lead to conflict. However, it is important that [Mr Hammerton] and [Ms Hammerton] be mindful not to use [X] as a means of communication between them.
Accordingly, I will make a modified version of the orders sought by each parent to take into account their individual concerns but my overriding duty is to the child.
Holidays and activities
One of the key factors which appears to have assisted the child and father to reconnect and re‑establish their relationship is consistency of time together, shared holidays and shared activities, in particular sport.
I appreciate that the mother has said (from the bar table) that X may not want to have both parents at sport games. I think that permitting the father to attend games during any period X is in the care of his father, or if the mother or X specifically request his attendance, strikes a good balance between the competing concerns. The mother can absent herself from those games if she chooses.
The father set out in his minute of order specific two week blocks in the summer holidays. This approach has merit. The mother noted that they did not entirely align with school holidays. I provided the NSW school calendar to both parents. Ultimately neither took issue with the father’s two week block including some school days from time to time. The mother said that the father’s proposal meant that he always had all the public holidays. I accept that was so – it is in the child’s interests that each of his parents have the opportunity to spend non-work days with him during the school holidays and that they do not always fall to one parent. I have made orders to accommodate this. The parents remain free to agree to different periods but the orders provide a default if they cannot agree.
Changeover
The father sought a specific changeover order. The mother resisted it. Ultimately, the parents do not appear significantly in dispute that the father may collect the child from school or he may take public transport to his father’s home. I have made an order which appreciates that evidence.
The father foreshadowed a potential move in the future. He has paid a deposit on land. Given the child’s age and the timeframe for the father’s proposed move I have not made a specific order. The practical aspects of any such move will be a matter for consideration by the father (and if necessary the mother) in due course.
CONCLUSION
Having read the evidence, having heard the submissions, I am confident that the parties have reached a position where they can implement the orders I intend to make in a manner which will best suit the needs of their son.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 27 April 2023
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