HANNAFORD & NAISH

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANNAFORD & NAISH

[2020] FCCA 560

Catchwords:
FAMILY LAW – Interim parenting – high conflict – what time the father should spend with the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62B, 65DA(2), 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Applicant:

MS HANNAFORD

Respondent:

MR NAISH

File Number:

WOC 225 of 2019

Judgment of:

Judge Altobelli

Hearing date:

9 March 2020

Date of Last Submission:

9 March 2020

Delivered at:

Wollongong via AAPT Teleconference

Delivered on:

23 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Havenstein

Solicitors for the Applicant:

South Coast Law & Mediation Pty Ltd

Solicitors for the Respondent:

Legal Aid NSW Nowra Family Law

Solicitors for the Independent Children's Lawyer:

Walkden Law And Mediation

INTERIM ORDERS

By consent, the Child X born in 2012 (“the Child”) is to live with Mother.
The Child is to spend time with the Father as follows:
(a)During school terms, each alternate week from after school on Thursday until before school on Monday.
(b)During school terms, on the other alternate week from Thursday after school until Friday morning before school.
(c)During school holiday periods for half of the April, July and September public school holidays, such halves to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods.
(d)For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
(e)For the purpose of these Orders the school term and Christmas school holidays are deemed to commence at the conclusion of school on the last day of term, and changeovers shall occur at 6:00pm on the day in the middle of the school holiday period.
(f)In the event that the Father’s weekend falls on a long weekend including a Monday then time shall be extended to before school on Tuesday.
(g)Such other time as may be agreed between the parties.
In addition to the time that the Child spends with the Father as set out in Order 2 above, on the following occasions of special significance the Child shall spend time with the parties as follows:
(a)The Mother and the Father will each be entitled to spend three hours with the Child on his birthday at times by agreement between the parties and failing agreement the parent not spending time with the Child on a non-school day will have the Child from 10:00am to 1:00pm on that day, and if it is a school day then from after school until 6:00pm.
(b)The Father shall not spend time with the Child on the weekend which includes Mother’s Day but in substitution the Father will spend time with the Child on the following weekend at the same times as set out in Order 2.
(c)The Mother shall not spend time with the Child on the weekend which includes Father’s Day but in substitution the Mother will spend time with the Child on the following weekend at the same times as set out in Order 2 above.
(d)In the event that the Child is with the Mother during the first half of the Christmas school holiday period, the Father will spend time with the Child from 12 noon on Christmas Day until 6:00pm on Boxing Day.
(e)In the event that the Child is with the Father during the first half of the Christmas school holiday period, the Mother will spend time with the Child from 12 noon on Christmas Day until 6:00pm on Boxing Day.
(f)The parent who has the Child in his/her care be entitled to attend all events involving the Child including:
(i)Sporting fixtures;
(ii)Extra curricula activities that allow for parental attendance; and
(iii)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions,
And the parent who has the Child in their care on the day of such activity will be responsible for their day to day care at such event and the Child’s transportation to and from that event.
The parent who the Child is not living or spending time with on that particular day is restrained from attending such events, except for the purpose of collecting the Child after school on a day when the Child is due to return or go into their care.
The Father’s time during school terms will recommence the first weekend of the commencement of school term.
The parties are restrained from allowing the Child to be enrolled in any other school and enrolling the Child in another school unless otherwise agreed in writing between the parties.
By consent, the Child is not to be treated by a counsellor, therapist, psychologist or psychiatrist without the other parent’s written consent.
For the purposes of spending time with the Child, the Father will collect the Child from school or a public place as agreed between the parties at the commencement of his time with the Child and will return the Child to school or a public place as agreed between the parties at the conclusion of his time with the Child.
In the event agreement cannot be reached between the parents as to a public place in accordance with Order 7 above, then any changeover not occurring at school is to be facilitated using the services provided by B Contact Centre, with the costs associated with this service to be equally shared between the parties. If the services of B Contact Centre are to be employed to assist with changeover, the Mother and Father are to forthwith do all things necessary, sign all documents required and attend all assessments required to undertake the intake assessment for B Contact Centre supervised changeover services.
The Mother shall ensure that the Father is kept informed of:
(a)any medical problems or illnesses suffered by the Child while in the mother’s care;
(b)any medication that has been prescribed for the Child;
(c)any social, school or religious functions which the Child is to attend;
(d)the residential address of the Mother and particulars of the others who may reside with the Child;
(e)any other matter relevant to the Child’s welfare.
The Father shall ensure that the Mother is kept informed of:
(a)any medical problems or illnesses suffered by the Child while in the Father’s care;
(b)any medication that has been prescribed for the Child;
(c)any social, school or religious functions which the Child is to attend;
(d)the residential address of the Father and particulars of the others who may reside with the Child;
(e)any other matter relevant to the Child’s welfare.
The Child is to only be seen and treated by one medical practitioner as agreed to by the parties and failing agreement his current general treating medical practitioners, Dr C and Dr D of the E Medical Centre, and any other specialist recommended by those practitioners unless there is a medical emergency.
(a)Each parent must notify the other parent of attendance upon the medical practitioner immediately before such consultation and provide the other parent with the prognoses given by the treating practitioner and any written reports as soon as possible; and
(b)The parents must follow all recommendations made by the treating medical practitioner; and
(c)The medical practitioner may consult with each parent in relation to the Child’s medical treatment and is to given a copy of these Orders within 14 days of the Orders being made.
The Child must attend school unless the parent has taken the Child to the treating medical practitioner and received a medical certificate stating the reasons why the Child could not attend school on that particular day.
(a)The parent must advise the other parent when the Child is absent from school and provide that parent with a copy of the medical certificate from the treating practitioner.
The parents are restrained from allowing any dentist or other health professional (health professional) from treating the child unless it is the current treating health professional or is recommended by the current treating health professional or in the case of emergency without the other parents written consent.
The parents are restrained from verbally communicating with each other while either parent is in the presence or hearing of the Child unless it is an emergency.
The parents are restrained from allowing the Child to read or see material in relation to the current court proceedings.
The parents will use their best endeavours to ensure the Child does not read or see electronic communication between the parents or other legal professionals in relation to the court proceedings.
For the purposes of communicating information between the parties the Mother and the Father shall:
(a)Communicate by telephone matters of an urgent nature, and otherwise
(b)Communicate by text message or other messaging application about day to day matters including arrangements for each party to spend time with the Child.
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the Child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the Child.
Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within 7 days of such change occurring.
Within 14 days of the dates of these Orders and within 14 days of the Child’s subsequent enrolment at any school the parties do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the Child may attend from time to time, that school forward directly to the other party copies of all of the Child’s school reports and merit cards, any written material pertaining to the Child’s academic and extra-curricular activities.
The parties furnish to the other party, within 7 days of receipt of same, copies of all order forms for school photographs of the Child.
During any period referred to in these Orders, in the event of the Child being hospitalised or receiving medical attention, the parent spending time with the Child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
Each party be and hereby are restrained from removing and/or causing or allowing the Child to be removed from the Commonwealth of Australia.
Pursuant to s.65DA(2) and s.62B, 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 the 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 225 of 2019

MS HANNAFORD

Applicant

And

MR NAISH

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about X who is 7 years old. X’s mother is the Applicant, his father the Respondent. X has the benefit of an experienced Independent Children’s Lawyer. Both parents are represented by experienced lawyers and/or Counsel. The issue that the Court had to decide at an Interim Hearing held on 9 March 2020 was what time X should spend with his father.
There are characteristics of the dispute between X’s parents that are of concern, certainly to the Court, but probably to X if he were fully aware of what was happening around him. It is palpably evident from the evidence, and the way in which this litigation has been conducted to date, that X’s parents do not trust each other, they have no faith in each other’s motives, they cannot communicate in any constructive fashion about X, and they have regrettably allowed themselves to become self-absorbed in the parental conflict and thus are unable to clearly see what is in X’s best interests. Even at this very early stage of this litigation, this case bears the features of intractable parental conflict. As will be seen, there are major issues in respect of which the parents cannot agree, and then minor issues in respect of which they do not want to agree. It is hard to avoid criticising the parents for their behaviour to date. There is no doubt that each dearly loves their son. They are asked to consider whether the feelings they have towards each other, palpably negative as they are, are stronger than the love they have for their own son?

Background

By way of background X’s mother is 46 years old, and his father 36 years old. The Mother was born in Australia, the Father in Country F. He arrived in Australia in 2011. The relationship between the parents commenced in either 2011 or 2012. X was born in 2012, and the parents separated by August 2013. There is very little that the parents agree to about their life before separation, or afterwards. They each make allegations against each other, some of them quite serious, and these are for the most part denied. Their pervasive mistrust for each other was as present after separation, as it is in the present litigation. The Mother was probably the primary carer after separation, but the Father was probably involved in X’s life and spent time with him.
On 23 March 2018 the parents entered into a parenting plan pursuant to which X lived with his mother and spend time with his father each Tuesday and Thursday from after school until 8:00pm, and each alternate Wednesday from after school Friday to 3:00pm on Sunday. As for school holidays X would spend time with his father in the first week of the shorter midyear school holidays, and during the Christmas holidays as agreed. From X’s perspective that meant that each fortnight there were 10 changeovers. In all likelihood, based on this Court’s experience as well as the material before it, these changeovers were not just a movement between two physical spaces, but a movement between two significantly different psychological spaces. In between, there was the metaphorical ‘no man’s land’ in which the parental conflict was played out.
The matter first came before the Court on 21 August 2019. An Independent Children’s Lawyer was appointed. The parents were restrained from discussing the proceedings or denigrating each other in the presence of X. At that stage no orders were in place.
When the matter next came before the Court on 6 November 2019, the parents agreed that the Father would spend specific time with X over the December - January period.
The matter came back before me on 28 January 2020 for Interim Hearing. Due to some of the very serious allegations and counter allegations made by the parents in their material, the Court ordered a Child Inclusive Conference. A notation to the court order explained that the Court, the parties, and the Independent Children’s Lawyer were concerned about how X was experiencing the parental conflict, and in particular an incident that may have occurred on or about 30 December 2019. The incident in question involved a plastic object in the shape of a knife that was found in X’s shoe. As it turned out, each parent made allegations about what X said to them, at different times, about the genesis of that plastic object. The notation to the order also expressed that the Court, the parties and the Independent Children’s Lawyer would benefit from guidance as to the most appropriate intervention for X.
The matter finally came before me for Interim Hearing on 9 March 2020. The Court reserved its judgement but made Orders in relation to a Family Report, noting however that the case really needed an Expert’s Report but there were questions about affordability for the parties.

Section 11F Conference

On 7 August 2019 the parents attended a Child Dispute Conference. That Memorandum was in evidence. There was a certain optimism in this Memorandum in the sense that the parents may have reached a general agreement about X’s time with his father. Nonetheless, the Memorandum records serious concerns that each parent expresses about the other including, amongst other things, drug use and dealing, and mental health issues. Disturbingly, the Memorandum also recorded that each parent had a very different view about X’s health needs. The Family Consultant described the co-parenting relationship as poor, and noted that both parents agreed that they continue to have verbal conflict in the presence of X. The Family Consultant observed each parent to have a different parenting style, and suggested that the relationship was brief and perhaps troubled. In terms of issues for X, the Family Consultant observed that X is a much loved only child, who his parents believed to be intellectually bright. However, each parent expressed concern that the other was socially isolating him. In terms of future directions, the Family Consultant emphasised the importance of X being shielded from the parental conflict. She believed that the unfortunate number of changeovers involved in the current parenting arrangement, coupled with each parent’s narrative about their level of conflict, probably meant that X was continually exposed to, or at least faced the possibility of being exposed, further parental conflict. The Family Consultant suggested that X needed a predictable parenting arrangement which significantly reduced the number of times he moved between his parents.
On 29 January 2020 a Child Inclusive Conference was held, and the Memorandum produced as a result of this was in evidence. The Memorandum records that no agreement had been reached between the parents, and the Mother advised that she no longer supported X spending any time with his father. The Father indicated that he was no longer seeking residency, but rather additional overnight time during school terms and school holidays. The Mother asserted that she was terrified of the Father, demonstrated significant distress, was very angry at the Father’s allegations in relation to the plastic items found in X’s shoe, and asserted she had no knowledge of the same. The Family Consultant expressed concerns about the Mother’s volatility at paragraph 10 of the Memorandum, reproduced as follows:
The writer is concerned about the potential impact on the child of the mother’s volatility (as observed during this appointment), particularly when the writer was giving the mother feedback to the mother from the child’s interview. When the mother was told that the child was with his father, in the waiting area, she became highly distressed, seemed anxious and angry, and was crying and shaking. The mother said that the child was not to have any contact with his father, but was advised that there were no Orders to this effect and, as the mother had no one to care for the child her feedback could not proceed unless the child was with his father. The writer advised the mother that it would not be appropriate for the child to see her in her current emotional state, adding that the writer would collect the child from his father, when the mother was calmer. After the mother had been able to contain her emotions, she did not ask that her feedback session be discontinued, but seemed to have the capacity to listen to the feedback. She was calm when the child joined her at the end of the feedback.
The Family Consultant observed the co-parenting relationship to have in fact deteriorated further since the Child Dispute Conference. The Family Consultant expressed concern that neither parent seems to have the capacity to develop a more appropriate approach to communication, nor to shield X from the conflict. The Mother had developed a hostile attitude towards the Father. She raised concerns about the inappropriateness of the current parenting arrangements. She described herself as the “gatekeeper” between X and his father in the sense that she protects him from what she considers to be the Father’s bullying of him. The Mother seemed convinced that the only reason why the Father wanted X to live with him was so that they could return to Country F.

The purpose of the Child Inclusive Conference was for X to be able to speak to and be observed by the Family Consultant. The relevant paragraphs are 21 – 29, reproduced below:
[21] The mother introduced the writer to X as ‘a friend of mine’. At the commencement of his interview, the writer explained the role of a Family Consultant and spoke to the child about his parents each having different views about what the best parenting arrangement might be. The child said, ‘So this is a Court. I thought it was’.
[22] X presented as chatty, articulate and confident. He has an ability to add drama to his conversation and was, at times, somewhat, flamboyant. He seemed to experience some problems in sitting still and continually got up to walk around the room, check on what the writer was typing, and/or act out some aspect of his conversation. It might be that his behaviour was indicative of a level of anxiety X might have been experiencing, as both parents indicated that the school has not made any comments about him exhibiting such behaviour in the classroom. Both parents also indicated that X is excelling academically.
[23] X’s family drawing depicted him, his parents and maternal grandparents. He drew a speech bubble against each parent and wrote ‘Bla’ in each one. As he did this, he repeated the word a number of times. When asked what ‘Bla’ meant (in the context of his drawing) X said that it meant that his parents ‘see things differently. Daddy wants me to go overseas and Mummy does not want me to go until I am older’. He believes he ought to be able to visit his paternal family in Country F, but not until he is “12 or 13”, as, he said he wants do make a video of the visit and post it on YouTube, believing that he will be unable to do so before he is older. At this stage, X , who had been sitting quietly, stood up and jumped about the room. His speech became rapid and was difficult to follow, but seemed to relate to the excitement he would experience when he is able to post his first YouTube video. X resumed sitting and, when asked if anyone in his family drawing was sad, talked to himself in a rapid manner so that the writer could not comprehend what he was saying. He then commented, ‘What is happening here?’ as he tried to write ‘my family’ in a small cube he had drawn on the paper. He seemed to settle, and added another drawing at the foot of his family drawing, referring to both his parents allowing him to have ‘drive through Macca’s’ as a treat ‘if I am good’.
[24] X then said he would draw his family ‘in a different way’. He said that the first drawing was to be of his mother, ‘When she is not thinking about Court’. When asked what he meant, X said that, ‘She thinks about it [Court] every time she thinks something will happen’. He said that he was unsure what he meant by this, adding ‘She [his mother] thinks she will be happy after Court, if she wins’. He said that this would mean that ‘Daddy um…’. He was unable or unwilling to finish this statement, and resumed the drawing of his mother – which depicted a person [whom X identified as himself] riding a scooter down a hill. He said that this is an activity, which he does with his mother. He commenced a third drawing, which he said was ‘with my Dad’. It depicted his father’s caravan, garden at the rear of the caravan, and X again riding a scooter. He said that his father watches he scootering with his friends and says ‘Go X , go X .
[25] According to X , he enjoys all the activities he does with each parent and there is nothing he would want to change in either home. He perceives that his parents are ‘friends’, except for when they ‘fight’ ,but said that his parents ‘don’t fight so much so very often they’re friends’. He said that he does not feel fearful when his parents argue, but wonders who will ‘win’, wanting his mother to ‘win’. He spoke about his mother having ‘lots of good ideas’ and believes that his father could learn from some of his mother’s ideas, adding that his father also has ‘lots of good ideas’. Discussing his current parenting arrangements, X became excited about the possibility of his father being able to take him to school each alternate Monday. He then talked about how he would like to change some of the current arrangements, but as he was becoming excited (or perhaps anxious), his speech was rapid and his ideas flowed quickly between a number of alternatives.
[26] Using sentence completion cards (to explore feelings and emotions), X demonstrated that he has an active imagination, enjoys role playing and dressing up in costumes. He seems to have a positive sense of self, loves both his parents, feels close to his friends and uses dance to distance himself from his emotions.
[27] The writer told X that his parents had been concerned about him having a knife. X stood up and assertively assured the writer that, ‘It was just a bit of plastic and not sharp’. He commented about what he thought it could cut, dismissing wood and mental, but wondering if it might cut glass, in the context of the possibility of him being ‘trapped in a car’, but then decided that, ‘It probably couldn’t’. [The writer had been shown this item which is plastic and approximately 7.3 cms in length tapering to a point with some indents/serrating on one side, and which would easily have fitted in the sneakers which the writer was also shown, and would have been unlikely to cause much, if any, discomfort to the wearer, X ] According to X , he had found this item in a park when he had been with his father. He said he had put in his shoe (the sneakers), although offered no explanation for why he had done so.
[28] When asked if he had missed many days of school, X linked this to his recurring thrush infection. He commented ‘I have cream for it so now I am prepared for it. I am going to keep working on this, but need my parents’ help’. These comments were delivered in a confident manner and there was a sense that X believes that this was primarily an issue which he needed to deal with.
[29] There were brief informal observations of X with each parent: with his mother prior to his interview and when he was leaving with her, and with his father at the end of his interview and again prior to him returning to his mother. X was observed to exhibit a similar level of energy with his parents, as he had with the writer. His interactions with each were affectionate.
Under the heading ‘FUTURE DIRECTIONS’, the Family Consultant stated at [30] – [35]: –
[30] It is imperative for the child’s on-going emotional wellbeing and development that he be shielded from parental conflict, and discussions either has with the other either in person or by phone,. Each parent needs to ensure that the child is not privy to any conversation they have with their solicitors and is unable to access any written material they receive from their solicitors (whether by mail or electronic means).
[31] Comments X made indicate that he has a sensitivity, particularly to his mother’s responses to these proceedings. It might be of some assistance to X if each of his parents were to access professional assistance to help them deal with the emotional responses they each experience in relation to the current dispute.
[32] It is concerning that X talks about one parenting ‘winning’. It is important that he be assisted to understand that the current proceedings are related to what is the best outcome for his own development and welfare. Unfortunately, X’s view might reflect the view of one or other of his parents, in which case it is evident that he has been inappropriately involved in these proceedings. This is never appropriate for any child. Whether or not he might be assisted by one on one counselling is unclear, at this stage. As already noted at paragraph 31, what is important is that he is shielded from each parent’s own emotional response.
[33] X will benefit from changeovers, whenever possible, occurring at the end of the school day. The parent with whom the child is to spend the night ought to be the parent whom the school contacts if the child is unwell during the day. Changing the current parenting arrangements so that, perhaps the child no longer spends three hours on two occasions each week with his father, but rather that his overnight time with his father increases, will go some way to protecting the child from the parental conflict – perhaps an arrangement whereby the child continues to spend time with his father each week but all time is overnight (Thursday to Monday in one week and Thursday to Friday in the alternate week) – the writer notes that the mother is vehemently opposed to this, but indicated that she might agree to Friday to Monday each alternate week. The father indicated that he might support this option.
[34] Orders which clearly define the commencement and end day and time of the child’s time with each parent during school holiday periods will assist to further protect the child from parental conflict
[35] Should this matter continue to a final hearing, it is suggested there be consideration to the preparation of an expert report.
There are a number of important issues that emerge from the Child Inclusive Conference Memorandum. For example, the parents have now been told twice by an expert about the dangers to X of their ongoing parental conflict. Concerns were raised about the emotional response of both parents to the current dispute. X seemed to be alive to what could easily be described as the competition between his parents about him. It was possible that he was being inappropriately involved in the proceedings. The Family Consultant believed it important that he was shielded from each parent’s own emotional response. Paragraph 33 is the critical one in terms of the parenting arrangements.

Competing proposals

At the Interim Hearing the competing proposals were as follows.
Without descending into the detailed differences between the minutes of orders proposed, the Mother proposed that X spend time with his father each alternative weekend from the conclusion of school or 3:00pm Friday until before school on 9:00am Monday. She proposed that this arrangement would continue throughout the school holidays.
Without looking at the relatively minor issues in respect of which there seems to be a difference, the Father and the Independent Children’s Lawyer proposed that X spend time with his father from after school on Thursday until before school on Monday in one week, and then on the other alternate Thursday from 3:00pm until Friday morning. In terms of school holidays, it was proposed that X spend half of the midyear school holidays with the Father, and likewise half of the Christmas holidays.
There were a number of discrete issues on relatively minor matters in respect of which the Court will need to adjudicate.
The main issue was how much time X spent with his father during school terms, and during school holidays.

The applicable law

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

The Case Law

In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The material before the Court

In the Mother’s case, she relied on the following material:
a)Initiating Application filed 5 March 2019;
b)Affidavit of Ms Hannaford affirmed 3 March 2020 and filed 4 March 2020;
c)Affidavit of Ms Hannaford affirmed 23 January 2020 and filed 24 January 2020;
d)Affidavit of Ms Hannaford affirmed 20 January 2020 and filed 21 January 2020;
e)Affidavit of Ms Hannaford affirmed and filed 1 November 2019;
f)Affidavit of Ms Hannaford affirmed 4 March 2019 and filed 5 March 2019;
g)Notice of Risk filed 5 March 2019; and
h)Case outline document filed 24 January 2020.
In the Father’s case, he relied on the following material:
a)Affidavit of Mr Naish sworn 4 March 2020 and filed 6 March 2020;
b)Affidavit of Mr Naish sworn and filed 21 January 2020;
c)Affidavit of Mr Naish sworn 17 June 2019 and filed 19 June 2019;
d)Notice of Risk filed 19 June 2019; and
e)Case outline document filed 24 January 2020.
The Independent Children’s Lawyer relied on his case outline document filed 27 January 2020.
The following material was tendered as evidence during the course of the proceedings:
a)Documents produced pursuant to subpoena on E Medical Centre (exhibit R1);
b)The Child Inclusive Conference Memorandum dated 29 January 2020 (exhibit ICL1); and
c)The Child Dispute Conference Memorandum dated 7 August 2019 (Court’s exhibit 1).

Discussion

It is clear that the parents agreed that X live with his mother. No one sought an order in relation to parental responsibility, and the Court agrees that this is unnecessary at this time. That is not because there are no issues in relation to decision-making about major long-term issues about X, but rather, from the Court’s perspective, that no parent could be trusted with sole parental responsibility. The Court acknowledges that these are harsh words for the parents but sometimes self-focus creates a selective blindness and deafness which only harsh words have a chance of penetrating. X’s parents really need to reflect carefully on their own behaviour and consider the adverse impact of the same on their son.
It was encouraging to see that the Mother’s concerns appear to have abated somewhat, as between the Child Inclusive Conference on 29 January 2020 when she was recorded as no longer supporting X spending any time with his father, and the date of the Interim Hearing. Good legal advice may well have played a role here.
It was further encouraging to see that notwithstanding the toxic allegations that each parent made against the other in their respective affidavits at the Interim Hearing, there was an appreciation that the differences between their respective proposals were not going to be resolved or adjudicated by reference to contentious events in respect of which no findings can be made at this time.
The reality is that the only independent and expert evidence that informs the major decision for the Court to make is paragraph 33 of the Child Inclusive Conference Memorandum dated 29 January 2020, which was reproduced above. From the Court’s perspective, each of the proposals need to be compared to this independent and expert advice.
Whereas the Father and Independent Children’s Lawyer’s proposal synchronises with the recommendations made in paragraph 33, the Mother’s does not. In reality, the Mother maintains the vehement opposition to the recommendation which is itself reflected at paragraph 33.
Counsel for the Mother was pressed by the Court to explain why the Court should adopt the Mother’s proposal instead of the recommendations made by the Family Consultant. Counsel commenced by pointing out the inadequacies of the parenting plan with its multiple changeovers, frequent contact between the parents, and too many late nights for X. The Court accepts that the submission is probably correct. However, the Father and Independent Children’s Lawyer’s proposals address the same concerns. Counsel submitted that the Mother’s proposal set up stability for X with regular weekends, but no midweek time. Counsel accepted that this was a substantial change for X but it was a change from an arrangement that simply was not working. In reality, however, the proposal by the Father and Independent Children’s Lawyer likewise creates stability for X, whilst minimising the change to his life. Counsel submitted that X has lived all of his life with his mother, and has only been spending time with his father since 2019. This is true, but it does not make it any less of a change for X. He will still live with his mother. But on his mother’s proposal, instead of seeing his father each week, he will only see him each alternate weekend. When Counsel was asked what was the rationale of the Mother’s proposal that there be no change to the time arrangements during school holidays, he expressed his clients concern that extra time would only result in X returning home malnourished and neglected. This was a reference back to historical allegations made by the Mother but denied by the Father.
Curiously, the differences in the proposals cannot really be explained by reference to the very significant allegations of risk of harm that each parent makes in their affidavits. The Mother’s own proposal for time with the Father is inconsistent with her stated concerns. The decision of the Court is not determined by reference to risk of harm considerations except to the extent, as pointed out by the Independent Children’s Lawyer, that exposure to parental conflict is a risk of psychological harm to X.
Nor is this decision ultimately informed by issues of meaningful relationship. X would continue to have a meaningful relationship with both parents on either proposal.
In relation to the additional considerations under section 60CC of the Act, the only pertinent and defining consideration is the likely effect on X of the extent of change proposed by his mother. In respect of all other additional considerations the Court observes, there is much to be critical about in respect of each parent. The added benefit of adopting the Independent Children’s Lawyer’s and Father’s proposal, is that restructuring the current arrangements may result in greater protection of X from parental conflict. It also reduces X’s exposure to what the Family Consultant described as the Mother’s volatility. The Court accepts the proposal of the Father and Independent Children’s Lawyer on the above basis. The Court cannot ascertain any rational basis for there being no additional time between X and his father during school holidays.
The focus turns to the detailed orders, and in this regard the minute of order proposed by the Independent Children’s Lawyer, reproduced in the First Schedule to these Reasons, is the starting point.
Order 1 is redundant. Order 2 is made by consent. The Court makes orders 3.1, 3.2, 3.3, and 3.4, consistent with the proposals of the Father and Independent Children’s Lawyer, contrary to the Mother’s submissions.
In relation to 3.5 there is a minor, but important difference, in the proposals of the Father and Independent Children’s Lawyer. The Independent Children’s Lawyer proposes that school holidays commence at 9:00am on the first day after the school term ceases. The Father proposes that school holidays commence at the conclusion of school on the last day of term. The Court prefers the Father’s proposal. The evidence before the Court suggests that the propensity for the parents to have conflict means that eliminating any possibility of their coming into contact with each other is a desirable outcome for X. Accordingly 3.5 will need to provide for changeover at the conclusion of school on the last day of term.
Order 3.6 does not appear to be in contention so the order will be made.
Order 4 deals with occasions of special significance. Where there is a difference between the proposals of the parents, the Court prefers the Father and Independent Children’s Lawyer’s proposal. With the greatest of respect to the Mother, and those who represent her, it was hard to discern the rational basis for her objection to many of the orders proposed, let alone to order 4. Many of the Mother’s concerns seem to be steeped in what allegedly occurred in the past in respect of which no findings can be made.
There is an issue between the parents and the Independent Children’s Lawyer about orders 4.4 and 4.5 which relate to Christmas and Boxing Day. The Father preferred that these events alternate between the parents on an odd and even numbered year basis. The rationale for the Independent Children’s Lawyer’s proposal was that Christmas was a special day and X would enjoy spending time with both of his parents on that day. There are no significant geographical issues in this case. The orders will be made as proposed by the Independent Children’s Lawyer.
Order 4.6 deals with sporting fixtures and extracurricular events. The Father and Independent Children’s Lawyer’s support the order as framed. The Mother’s proposal seems to propose that both parents attend some or all of the activities referred to, irrespective of who X was living with at the time. The Mother’s proposal would, in effect, negate the intention of this order which is to keep the parents away from each other at times when X is present, and they are unlikely to be able to manage themselves in his presence. The order will be made as proposed by the Independent Children’s Lawyer, and supported by the Father. Thus, when X is with either parent, that parent can attend his sporting fixtures, extracurricular activities and school functions.
Order 5 proposes that the Father’s time during school terms commences on the first weekend of that school term. The Mother opposes this. It is not clear why. The order will be made to as proposed by the Independent Children’s Lawyer.
The need to make order 6 is avoided by making minor alterations to order 4.6.
There is, seemingly, a dispute about order 7. The Father and Independent Children’s Lawyer agree that the parents should be restrained from allowing X to be enrolled in any other school unless agreed in writing between them. For some inexplicable reason, the Mother prefers that the order only be limited to primary school. Regrettably, from the Court’s perspective, there is a growing sense that the Mother seems to object to something simply because the Father supports it. If the Mother has a rational basis for her contentions, such will of course be carefully considered. If there was a rational basis for her objection on this issue, it was by no means made apparent. Order 7 will be made as proposed.
Order 8 is, apparently, made by consent. Even if that were not the case, the Court makes it clear that it would have made this order. It is completely unbecoming of the parents that they would seek to have X treated by a mental health professional without reference to or consent of the other. The risk of partisan treating mental health professionals was apparent from the Mother’s Affidavit of 3 March 2020 where she sought to rely on the statement purportedly made by X to Dr H, deposed to at paragraph 18.
Order 9 deals with changeover and specifies that where it cannot take place at school, it should occur in a public place as agreed. The Mother opposes this, and suggests that the service known as B Contact Centre should be used with the cost being shared between the parents. The Court agrees. Under the proposed orders there should not be many times each year when the services of B Contact Centre will be needed. One problem with order 9 as presently drafted is that the Court does not have confidence in the parents ability to agree about the changeover venue at a public place. Moreover, the pervasive problem in this case is parental conflict in respect of which X must be protected. This contradicts using a public place. The orders will therefore anticipate inability to agree to a public place. If the parents can agree on a mutually acceptable alternative to B Contact Centre, then so be it.
Orders 10 and 11 are not in contention, and will be made.
Order 12 is an important order in this case. It mandates that X is to see only one medical practitioner, and any specialist recommended by that practitioner, except in the event of an emergency. This is no academic issue in this case. The parents have demonstrated that if X has a problem, they will each take him to their own doctor. The parents inability to perceive how their son might experience this is stunning. The Independent Children’s Lawyer proposed modification to his own order, by deleting any reference to the parents agreeing to the doctor. He proposed that there be express reference to Dr C and Dr D of the E Medical Centre. The Court accepts the wisdom of this.
There was no dispute about order 13.
Order 14 is appropriate and consistent with the Court’s rulings above. There was some suggestion that the Mother opposed this order, but if so there was no rational basis apparent.
There appeared to be no opposition to orders 15, 16, 17 and 18. There was some suggestion that the Mother had concerns about the use of a messaging application referred to at 18.2. Given the high level of communication difficulties in this case, the use of such an application would be beneficial for X. The order will be made to as proposed.
Orders 19 and 20 are not opposed. Orders 21 and 22, 23 appear to duplicate existing orders and are unnecessary.
Order 24 deals with the provision of irrevocable authorities for the provision of information, in this case to the Father. The Mother proposed an amendment that removed any need for her to provide an irrevocable authority. She also wanted a deletion of reference to extracurricular activities. Any rational basis for the Mother’s amendments is not clear. The Court notes that the enforceability of the order would be undermined by the proposal she makes. Again, there is a distinct sense that the Mother is opposing an order because the Father supports it.
The Mother opposed order 25 as being unnecessary. The order will be made. In a high conflict case such as this, orders need to be as prescriptive as possible.

The Mother opposed orders 26 and 27 dealing with the notice of hospitalisation or medical attention, and relocation. It is hard to understand the Mother’s opposition to order 26. The order will be made. Whilst order 27 seems sensible, there is no evidence to support the making of the same and accordingly it will not be made.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 23 March 2020

Schedule One

Minute of Order proposed by the Independent Children’s Lawyer

PENDING FURTHER ORDER IT IS ORDERED

That a Child Inclusive Conference be ordered for the consultant to comment on the child’s apparent need for protections and the incident involving the secretion of the knife in the child’s shoe.

That the child is to live with mother.

That the child is to spend time with the father as follows:

3.1.During school terms, each alternate week from after school on Thursday until before school on Monday.
3.2.During school terms, on the other alternate week from Thursday 3.00pm until Friday morning before school.
3.3.During school holiday periods for half of the April, July and September public school holidays, such halves to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods.
3.4.For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
3.5.For the purpose of these Orders the school term and Christmas school holidays are deemed to commence at 9am on the first day after the public-school term ceases and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period.
3.6.In the event that the father’s weekend falls on a long weekend including a Monday then time shall be extended to before school on Tuesday.
3.7.Such other time as may be agreed between the parties.

That in addition to the time that the child spend time with the father as set out in Order 3 on the following occasions of special significance the child shall spend time with the parties as follows:

4.1.The mother and the father will each be entitled to spend three hours with the child on their birthday(s) at times by agreement between the parties and failing agreement the parent not spending time with the child on a non-school with have the child from 10.00am to 1.00pm on that day and if it is a school from after school until 6.00pm.
4.2.The father shall not have the child on the weekend which includes Mother’s Day but in substitution the father will have the child with him on the following weekend at the same times as set out in order 3.
4.3.The mother shall not have the child on the weekend which includes Father’s Day but in substitution the mother will have the child with her on the following weekend.
4.4.In the event that the child is with the mother during the first half of the Christmas school holiday period, the father will spend time with the child from 12 noon on Christmas Day until 6.00pm on Boxing Day.
4.5.In the event that the child is with the father during the first half of the Christmas school holiday period, the mother will spend time with the child from 12 noon on Christmas Day until 6.00pm on Boxing Day.
4.6.That the parents will both be entitled to attend all events involving the child including
4.6.1.Sporting fixtures
4.6.2.Extra curricula activities that allow for parental attendance
4.6.3.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
And the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event.
The parents who the child is not living with at that particular day is restrained from attending such events.

That the father’s time during school terms will recommence the first weekend of the commencement of school term.

The parents are restrained from attending the child’s school or sporting unless they are caring for that child that particular day and if the Orders provide for the parent to take the child to school on that particular and the other parent to collect the child after school the parent collecting the child in the afternoon will be the parent able to attend school on that particular day to the exclusion of the other parent.

The parties are restrained from allowing the child to be enrolled in any other school and enrolling the child in another school unless otherwise agreed in writing between the parties.
That the child not to be treated by counsellor, therapist, psychologist and psychiatrist with the other parent’s written consent.

That for the purposes of spending time with the child, the father will collect the child from school or a public place as agreed between the parties at the commencement of his time with the child and will return the child to school or a public place as agreed between the parties at the conclusion of his time with the child.

10. That the mother shall ensure that the father is kept informed of:

10.1.any medical problems or illnesses suffered by the child while in the mother’s care
10.2.any medication that has been prescribed for the child

10.3.any social, school or religious functions which the child is to attend

10.4.the residential address of the mother and particulars of the others who may reside with the child

10.5.any other matter relevant to the child’s welfare

11. That the father shall ensure that the mother is kept informed of:

11.1.any medical problems or illnesses suffered by the child while in the father’s care

11.2.any medication that has been prescribed for the child

11.3.any social, school or religious functions which the child is to attend

11.4.the residential address of the father and particulars of the others who may reside with the child

11.5.any other matter relevant to the child’s welfare

12. That the child is to only seen and be treated by one medical practitioner as agreed to by the parties and failing agreement his current general treating medical practitioner and any other specialist recommended by that general treating practitioner unless there is a medical emergency.

12.1.Each parent must notify the other parent of attendance upon the medical practitioner immediately after such consultation and provided the other parent with the prognoses given by the treating practitioner and any written reports as soon as possible; And
12.2.The parents must follow all recommendations made by the treating medical practitioner;

12.3.The medical practitioner may consult with each parent in relation to the child’s medical treatment and is to given a copy of these orders within 14 days of the orders being made.

13. That the child must attend school unless the parent has taken the child to the treating medical practitioner and receive a medical certificate stating the reasons why the child could not attend school on that particular day.

13.1.The parent must advise the other parent when the child is absent from school and provide that parent with a copy of the medical certificate from the treating practitioner.

14. The parents are restrained from allowing any dentist or other professional health professional (health professional) from treating the child unless it is the current treating health professional or is recommended by the current treating health professional or in the case of emergency without the other parents written consent.

15. That the parents are restrained from verbally communicating with each other while either parent is in the presence or hearing of the child unless it is an emergency.

16. The parents are restrained from allowing the child to read or see material in relation to the current court processing.

17. The parents will do their best endeavours to ensure the child does not read or see electronic communication between their parents or other legal professionals in relation to the court processing.

18. That for the purposes of communicating information between the parties the mother and the father shall:

18.1.Communicate by telephone matters of an urgent nature and otherwise.
18.2.Communicate by text message or other messaging app about day to day matters including arrangements for each party to spend time with the child.

19. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

20. That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes to these details within seven days of such change occurring.

21. That the parties inform the other party in writing as soon as practical of any specialist medical appointments with any dentist, oral surgeon, special medical practitioner, psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant’) in relation to child.

22. That the parties do all acts and things to ensure that the other party is provided with all reports by any such consultant.

23. That the parties not be permitted to attend on such appointments, but be permitted to contact the consultant in relation to the treatment.

24. That within 14 days of these orders and within 14 days of the child’s subsequent enrolment at any school the parties do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the other party copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.

25. That the parties furnish to the other party within seven days of receipt of same copies of all order forms for school photographs of each child.

26. That during any period referred to in these orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

27. The parties are restrained from relocating the child more than 0km of the child’s school.

28. That each party be and hereby are restrained from removing and/or causing or allowing the child, X born in 2012 to be removed from the Commonwealth of Australia.

29. Pursuant to s.65DA(2) and s.62B, 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 the 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.

NOTATION:

A. That ICL would recommend that any general practitioner or health professional be provided a copy of these Orders and any reports prepared by a consultant or expert in relation to these proceedings.

[2020] FCCA 560

23 March 2020

Key Legal Topics

Areas of Law

Family Law