Henry & Donald

[2007] FamCA 876

FAMILY COURT OF AUSTRALIA

HENRY & DONALD [2007] FamCA 876

FAMILY LAW – CHILDREN – Parenting orders – child’s best interest paramount consideration

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1),61DA(2), 61DB, 64A, 65AA, 65DAA, Pt VII
Legal Aid Commission Act NSW 1979,  ss 56, 57

Goode and Goode (2006) FLC 93-286
Foocks v McCarthy (1994) FLC 92-450
Flanagan v Hancock (2001) FLC 93-074
Kuebler & Kuebler (1978) FLC 90-434
Line v Line (1997) FLC 92-729

APPLICANT: MS HENRY

RESPONDENT: MR DONALD

FILE NUMBER: NCF 450 of 2005

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: NEWCASTLE

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 31, 31 July & 1 August 2007

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr J. Hamilton

SOLICITOR FOR THE RESPONDENT: Peter Hamilton & Associates

INDEPENDENT CHILDREN’S LAWYER: Mr Powe

Orders

1. That pursuant to Rule 17.02(2) of the Family Law Rules 2004, Order 8 made 31 July 2007 is discharged.

2. The parties shall have equal shared parental responsibility for the child R born … March 2003.

3. That hereafter the parties shall cause the child R Donald to be known as R Donald-Henry.

4. That each of the parties shall sign all documents required to give effect to Order 3 above.

5. That during the school term the father shall cause the child to reside within a 50 kilometre radius of the Newcastle Post Office.  Nothing in this order prevents the father from removing the child beyond the 50 kilometre boundary on the Friday and Saturday night on any given school weekend for social and family reasons.  In relation to the Indy 500 weekend, the order is extended so that the father must return the child to school or pre-school in accordance with his usual routine.

6. That each party do all reasonable acts and things to ensure the child maintains his educational and sporting activities when with that party.  In relation to sporting activities, if the child is playing competition sports, in each six week period, each party may arrange with the team coach for the child to miss a game.  If they do so, notice must be given to the other party.

7. Following the commencement of Term 2 schooling in 2008:

   (a)       the father may communicate with the child by telephone each    Wednesday between 6.30 pm and 7.00 pm.  For this purpose, the mother           shall provide the father with a telephone number that the father may use     solely for the purpose of giving effect to this order;

   (b)       that the mother may communicate with the child by telephone between            6.30 pm and 7.00 pm on Sunday evening during each period the child is      living with the father.  For this purpose, the father shall provide the        mother with a telephone number that the mother may use solely for the            purpose of giving effect to this order.

8. In each calendar year, the mother may once remove the child from the Commonwealth of Australia so as to visit family in New Zealand.  This is conditional upon the mother taking the child to New Zealand during periods in which the child is otherwise in her care.

9. No later than 28 days prior to her planned departure the mother shall provide the father with the following:

   (a)       an itinerary which identifies the address and contact numbers she and   the child will visit;

   (b)       a copy of the child’s airline ticket or details providing airline, flight      number, arrival and departure times.

10. Whilst the child is in New Zealand, the father may communicate with the child by telephone at the same frequency as provided for in Order 7(a) above upon a number the mother nominates.

11. That the parties forthwith sign all documents required to cause an Australian passport to issue to the child R DONALD-HENRY.

12. That during school term the mother shall cause the child to reside within a 50 kilometre of the Newcastle Post Office.  Nothing in this order prevents the mother from removing the child beyond the 50 kilometre boundary for social and family reasons.

13. That pursuant to s 65DA(2) and s 62B of the Family Law Act, 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.

14. That all outstanding applications do stand dismissed.

AND THE COURT NOTES:

1. Reference to the child R Donald in the orders issued 31 July 2007 is reference to the child now known as R Donald-Henry.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Ryan delivered this day will for all publication and reporting purposes be referred to as Henry and Donald

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 450/2005

MS HENRY

Applicant

And

MR DONALD

Respondent

REASONS FOR JUDGMENT

1. This is an application for parenting orders concerning the parties only child R born in March 2003.  The parties separated when the child was approximately 15 months old.  Since then the child has lived with his mother and regularly spent time with his father.  In the main the child’s time with his father has been defined by orders. 

2. Not long after the parties separated, they agreed upon interim orders which enabled the child to be with his father from 10.00 am Friday to mid Monday each fortnight supplemented by regular telephone contact.  These orders, which were made on 28 July 2004, continued until 18 August 2005, where, following a three day defended hearing, final parenting orders were made.  The 18 August 2005 orders increased the child’s time with his father.  In each two week period the child lived with his father from 10.00 am Friday until 5.00 pm Tuesday and from 10.00 am the following day until 4.00 pm Friday.  Following the mother’s appeal, on 28 November 2005 the 18 August 2005 orders were stayed and further interim orders made which reduced the time the child would spend with the father to each alternate weekend from 10.00 am Friday until 10.00 am Monday and on other specified occasions.

3. The mother’s appeal was allowed by consent and the parties’ applications remitted for rehearing by another judge.  This is that rehearing.

4. On the first day of this hearing, the father applied for an adjournment.  I refused his application and said I would give my reasons for doing so as part of my final judgment. 

5. The hearing commenced and on the morning of the second day the parties reached an agreement on most issues.  Their agreement is found in exhibit “A” and is set out below.

   1.That the child of the relationship [R DONALD] born 13 March 2003 (“the child”) live with the Mother.

   2.That the child spend time with the Father as agreed between the Father and the Mother and failing agreement as follows:

   (a)during New South Wales school terms, in each two week period from the conclusion of pre-school/school for the child on Thursday to the commencement of pre-school/school for the child on the Tuesday, with the first of such periods to commence Thursday, 9 August 2007;

   (b)for the weekend including the running of the Indy 500 car race on the Gold Coast at such times as set out in sub-paragraph 2(a) with the next period to commence on the second Thursday following the Indy 500 car race;

   (c)for the first half of the New South Wales school holidays commencing in each even numbered year (except for the 2007/2008 Christmas school holidays), commencing at 5.00 pm on the last ay of school in the immediately preceding term and concluding at 5.00 pm on the mid point day of the holiday period;

   (d)for the second half of the New South Wales school holidays commencing in each odd numbered year (except for the 2007/2008 Christmas school holidays), commencing at 5.00 pm on the mid point day of the holiday period and concluding at 5.00 pm on the last day of the holiday period;

   (e)from 5.00 pm 25 December 2007 to 5.00 pm on 2 January 2008;

   (f)from 5.00 pm on 9 January 2008 to 5.00 pm on 16 January 2008;

   (g)from 5.00 pm on 23 January 2008 to 5.00 pm on 27 January 2008;

   (h)in each even numbered year the period set out in sub-paragraph 2(a) to commence on the first Thursday in each school term and in each odd numbered year to commence on the second Thursday in each school term;

   (i)in each odd numbered year commencing 2009 from 5.00 pm on 25 December to 5.00 pm on 27 December;

   (j)from 5.00 pm on the Saturday of the Father’s Day weekend to 5.00 pm on Father’s Day;

   (k)should the Father live outside a radius of 50 kilometres from the Newcastle Post Office, Corner Scott and Newcomnen Streets, Newcastle, the following applies:

   (i)   the periods set out in sub-paragraph 2(a) and 2(b) herein be suspended;

   (ii)            the child spend time with the Father each alternate weekend during school term time from after pre-school/school Friday to 5.00 pm the following Sunday except where such period occurs on a long weekend including a Monday, whereupon the period concludes at 5.00 pm on the Monday;

   (l)the period of time the child spends with the Father will be suspended from 5.00 pm on the Saturday of the Mother’s Day weekend to 5.00 pm on Mother’s Day and in each even numbered years from 5.00 pm on 23 December to 5.00 pm on 25 December.         

   3.In all school terms spending time with will be implemented by the Father collecting the child from his pre-school or school at the commencement of his time and the Father returning the child to his school or preschool at the conclusion of his time.

   4.That all school holiday spending time with periods will be implemented by the Father or his nominee collecting the child from the mother or her nominee at the commencement of the spending time with periods at McDonalds Family Restaurant at […] Street Newcastle and the Father or his nominee returning the child to the mother or her nominee at the same place at the conclusion of the spending time period.

   5.That the child continue to be enrolled in the [K] Preschool at [W] and the Father and Mother ensure that the child attends that preschool at the preschool times that coincide with the child spending time with and living with respectively that party.

   6.That the Father and Mother accept the advice of the Principal of the [K] Preschool as to whether the child should commence school at the beginning of the 2008 or 2009 school year.

   7.That the child be enrolled at and attend the [T] School from the commencement of his school life.

   8.That during school term spend time with periods between the child and the Father, the Father cause the child to reside within a 25 kilometre radius of the Newcastle Post Office.

   9.That the Father and Mother do all acts and things to ensure that the child’s primary treating medical practice is the […] Medical Practice in […].

   10.That the Father and Mother each cause the other to be notified in writing in advance of any specialist medical appointment of the child.

   11.That each party instruct any treating medical practitioner to provide to the other party at the party’s request details of the treatment of the child, the diagnosis and prognosis of the child and copies of any reports and tests specifically relating to the child at the other party’s expense.

   12.That the Father and Mother each notify the other of any medical treatments (by way of SMS) as soon as practicable but not more than four hours from the time of the treatment of the child.

   13.That the Mother and Father notify the other in writing of any changes in that party’s residence, landline telephone number and mobile telephone number as soon as that party becomes aware of such change.

   14.That the Father and the Mother do all acts and things to enrol, attend and complete a Parenting After Separation Course as directed by the Independent Children’s Lawyer.

6. Not long after the hearing ended, orders issued which accurately transcribe exhibit “A”.  However they do not acknowledge that an issue which remained outstanding is whether, whilst the child is living with the father, he must live within 25 or 50 kilometres of Newcastle Post Office.  Thus to the extent that the orders which issued dated 31 July 2007 suggest that order 8 is made by consent, the order is made erroneously and must be deleted pursuant to the slip rule. 

7. The issues which remain outstanding are identified in an agreed list[1].  The first issue is the child’s surname.  At his birth, the parties agreed the child would be known by the surname Donald. The mother contends the child should now carry a hyphenated surname which incorporates each of his parent’s names.  On her proposal the child would be known as Henry-Donald or Donald-Henry.  The father opposes any changes being made to the child’s surname.  He says that the mother’s proposals will inevitably lead to a degree of confusion for the child as well as flying in the face of social tradition whereby, according to the father, children take their father’s surnames. The Independent Children’s Lawyer submits that whatever decision is made concerning the child’s surname the parties must each ensure that he is known exclusively by that name.  With these comments I agree.

   [1] Exhibit “D”

8. The next issue concerns the mother’s proposal that an Australian passport issues for the child.  The mother has extended family in New Zealand and says that she will, infrequently, wish to take the child to visit his New Zealand relatives.  The father says the mother will use this as an opportunity to hide the child in New Zealand or flee with him to another country.  Thus, until the child is about 12 years old, when presumably he can resist any attempts the mother may make to flee with him, the father says the child should not leave Australia.  The Independent Children’s Lawyer submits that the child should have the opportunity to travel beyond Australia.  He submits that the father’s evidence that the mother may abscond with the child is so flimsy it should not stand in the way of this opportunity.  I agree with this submission.

9. The mother proposes an order that the child lives within 25 kilometres of Newcastle Post Office when with his father.  The rationale for this restriction is to ensure that the parties live sufficiently close to each other that the child is not burdened by excessive travel between his two homes.  As the mother plans to live in M with the child she wants the father to do the same.  The father agrees a geometric boundary is desirable but says 25 kilometres is unnecessarily restrictive and proposes a 50 kilometre boundary. The Independent Children’s Lawyer supports the father’s stance.

10. The mother proposes that she has sole long term parental responsibility while the father says the parties should equally share parental responsibility.  The mother’s proposal is based upon the parties inability to communicate constructively about the child, or at all.  The Independent Children’s Lawyer supports the father’s stance.

11. The father proposes that there is regular telephone communication between the child and each of his parents.  The father says he wishes to speak regularly with the child, effectively twice per fortnight and proposes that the mother speaks with the child once during each period the child is with him.  The mother says there should be no provision for telephone communication citing numerous examples where earlier attempts were unsuccessful and distressing for the parties, possibly also the child.  The Independent Children’s Lawyer suggests an embargo on telephone communication until after the child has settled into school.  This will coincide with the parties adjusting to the new orders, including having completed parenting after separation programs which should enhance their ability to communicate and thus ameliorate some of the earlier difficulties experienced with telephone communication.

12. The next issue concerns whether the parties should ensure that the child attends sports activities whilst in each parties care.  Neither party intends that the child will commence any form of regular sporting activity for a number of years.  Whichever activity he ultimately pursues, the parties agree will be centred upon the region around T School, which the child will attend.  The father wishes to include sporting arrangements in their agreement to ensure the child’s educational support so that the child can be confident, if playing a team sport that he can play throughout the season.  The mother says whilst she may well cooperate with such an arrangement, she does not wish to be constrained during the weekends the child is with her and postulates that the child may have one regular activity with his father and a different activity whilst with her.

13. As can be seen from exhibit “A”, the parties resolved significant issues concerning the child’s future care.  Their agreement provides the framework within which the outstanding issues must be decided.

The father’s adjournment application

1. The first anybody knew that the father sought an adjournment of the hearing was at its commencement.  During opening remarks, the father said he sought an adjournment so that his appeal to the Legal Aid Review Committee could be determined.  It is important to note that on 6 March 2007 the father obtained an adjournment of an earlier final hearing because he wished to pursue a legal aid application.  Although for many months prior to 6 March 2007 the father had been aware of the hearing dates, he had done little about obtaining legal aid.  Nonetheless he persuaded me he should be given additional time within which to do so.  In granting the adjournment, I made it clear to the father that his prospects of securing another adjournment were slim. 

2. These proceedings commenced in late June 2004.  On 13, 14 and 15 July 2005 there was a hearing in relation to which final orders were made on 18 August 2005.  On 9 December 2005, the Full Court allowed the mother’s appeal and remitted the proceedings for rehearing.  The parties attended a pre-trial conference on 25 October 2006 from whence the matter was listed for a four day final hearing commencing 6 March 2007.  Although the mother and Independent Children’s Lawyer were ready to proceed on 6 March 2007, the father was not.

3. The father says that some time after 6 March 2007 he spoke with an officer of the Legal Aid Commission of New South Wales about how to make a legal aid application.  He learned that he needed to provide past group certificates, I infer to establish his financial circumstances and thus eligibility.  The father is self employed.  Curiously he had not received group certificates for the two most recent tax years.  As the company with whom he predominantly worked is now in receivership, obtaining group certificates required some effort on his part.  Having received the group certificates, the father filed two taxation returns, the most recent being for the 2005/2006 tax year.  On 26 June 2007 the father signed a legal aid application which he posted to the Legal Aid Commission of New South Wales.  As he was not working for a few weeks he had time to personally attend and presumably speed up the application process.  In any event, his legal aid application was received by the Legal Aid Commission on 5 July 2007[2].  Probably because his application gives only limited information about these proceedings, certainly insufficient to determine that he has reasonable prospects of success, he was called in for an interview.  This interview took place on 29 July 2007.  At the interview the father was informed his application was refused.  He immediately applied for a review[3].

   [2] Exhibit “B”

   [3] Exhibit “C”

4. The father challenges the grant’s officer’s decision to take his partner’s financial circumstances into account when determining his financial circumstances.  As he and Ms A are living in a settled defacto relationship it is difficult to see how he can persuade the Legal Aid Review Committee that Ms A is not a financially associated person.  On the father’s evidence he says he usually works three days a week earning about $450 net per week.  Ms A earns approximately $550 per week net which means that between them they have $1,000 per week net disposable income.  The father pays $5 per week child support and neither he nor Ms A has any dependants.  Applying their circumstances, including identified rent, to the legal aid means test, one can see by reference to the means test calculator that the father is financially ineligible for legal aid. 

1. Nonetheless, the father relies on s 57 of the Legal Aid Commission Act NSW 1979.  This section is set out below.

   Section 57     Adjournment of certain proceedings

   Where it appears to a court or tribunal, on any information before it:

   (a)  that a party to any proceedings before the court or tribunal:

   (i)  has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

   (ii)  intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

   (b)  that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

   (c)  that there are no special circumstances that prevent it from doing so,

   the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

2. The father’s appeal is lodged pursuant to s 56 of the Legal Aid Commission Act NSW and prima facie attracts s 57.  Section 57, however, does not mandate an adjournment of federal proceedings.  Nonetheless, it is proper to consider the matters contained in s 57 when faced with an adjournment application pending a Legal Aid Review Committee determination.  The question for me that arises from s 57 is whether the father’s Legal Aid Review Committee appeal is bona fide and not frivolous, vexatious or intended to improperly hinder, impede or delay this hearing. 

3. The advantages of legal representation in a court hearing are obvious.  I have no reason to doubt that if he must participate in this hearing, the father prefers to be represented.  In this sense his appeal is bona fide.  However, I have real reservations about whether the father has any expectation that his legal aid application may succeed.  It also appears that his general approach to his legal aid application has been at best half hearted.  The father has had 19 months within which to establish his entitlement to a grant of legal aid.  Having secured an adjournment of a final hearing so as to press his legal aid application, the father can have been in no doubt that he needed to give resolution of this issue real priority.  With respect to him, he appears to have given his legal aid application little urgency.  When one has regard to the father’s legal aid application itself, it is apparent that he gives virtually no detail that addresses the legal aid merits requirement and only limited financial information.  From this, it appears clear that the father’s approach to securing legal aid has been frivolous.  On the information available to me, the father’s prospects of a successful Legal Aid Review Committee appeal are remote.  In all of the circumstances I am not satisfied he has pursued this issue with requisite diligence and I consider his general approach to have been frivolous.  He is unconcerned that his approach has the potential to improperly delay the hearing.  Thus even if s 57 were binding upon this court I am not persuaded that its provisions, when applied to the facts in this case, entitle the father to an adjournment.

4. Irrespective of the father’s legal aid appeal, I contemplated whether I should nonetheless adjourn the hearing so that he could have a further opportunity to prepare and present his case.  I decided against doing so as it seemed highly likely that an adjournment would not result in the father securing legal representation or being in a better position to present his case on the next occasion.  As his lack of progress between March 2007 and this hearing demonstrates, it is highly likely that all an adjournment would achieve is delay and on the next occasion the court would be faced with a hearing in which the father’s position is no further advanced.  Accordingly his application for an adjournment is refused.

The governing law

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.

   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.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order.  Goode and Goode (2006) FamCA 136. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)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

   (2)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

   (3)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.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.   Similarly where the Court has decided against maintaining equal shared.

The applicant mother’s circumstances

1. The mother was born in February 1971 and is 36 years old.  R is her only child.  Not long before the child’s birth, the parties left Sydney and moved to M.  The mother purchased this home a few years before she met the father.  This is where the child has always lived and is where they will continue living.  M is within 50 kilometres of the Newcastle Post Office.  The child has his own room and the home adequately addresses his accommodation needs.  The mother does not have a driver’s licence or own a car.  She has a small motor bike which she mainly uses to do her shopping and attend university.  The mother’s limited financial circumstances make it unlikely she could afford to purchase a motor vehicle and meet its running costs. 

2. The mother has not had paid employment since the child’s birth and is currently attending University where she is taking a Tertiary Preparation Course.  During term, the mother attends classes between 1.00 pm and 3.00 pm on Fridays and 11.00 am and 1.00 pm on Thursdays.  Whilst she is at university, the child attends pre-school.  Prior to this hearing, the child attended pre-school each Tuesday and Thursday and alternating Fridays from 9.00 am to 3.00 pm.  He only attended alternating Fridays because whilst in his father’s care he stayed at home with his father.  One of the agreements reached in this hearing is that the father will ensure the child attends pre-school on those Fridays he is with him.  This implements one of the Family Consultant’s recommendations. 

3. The mother has Graves’s disease and other health issues discussed in the Family Reports.  Her health is well managed and does not interfere with her ability to care for the child.

4. The child will commence school at T School in February 2008.  This is close to where he lives with the mother.

5. The mother supports the child from Centrelink payments and child support.  On average, the father pays her approximately $2 per month.  The mother is frustrated by the father’s lack of financial contribution to the child’s care, particularly given that he is paid employment.  When her counsel attempted to explore the father’s financial circumstances with him, the father determinedly feigned ignorance.  His inability to recall even basic issues such as recent wages, strongly suggests a lack of frankness by the father with the Court and previously the mother surrounding his income.  In vain the father sought to justify his failure to contribute to the child’s financial support by implying, that because the mother carries a “von Dutch” handbag, she obviously has sufficient money to provide for their son.  The father challenged the mother at length concerning her evidence that she is unable to afford a motor vehicle.  With respect to the father, this line of questioning merely reinforced the mother’s evidence in chief that she has limited funds and works hard to ensure that the child’s needs are met even though his father fails to contribute financially at an appropriate level.

6. The mother was born in Australia and has always lived here.  Her father is Scottish and moved to Australia prior to the mother’s birth.  Her father’s parents and sister also emigrated from Scotland and live in New Zealand.  The mother’s has cousins in New Zealand whose children are of similar age to the child.  The mother’s grandmother is in her eighties and the mother is keen that she and the child visit her in New Zealand before much more time passes.  Her grandmother has offered to pay the mother and the child’s return airfares to New Zealand. 

7. The mother’s parents live at S, which is in northern New South Wales.  The mother and the child are close to her parents and both enjoy visiting from time to time.  Because the mother does not drive, they either travel partly by train or are collected by one of her parents or her mother collects them from Newcastle. 

The father’s circumstances

1. The father was born in April 1978 and is 29 years old.  He lives with his partner, Ms A, at B.  B is an outer Newcastle suburb located near the F3 turnoff to Newcastle.  It is within 25 kilometres of the mother’s M home and the Newcastle Post Office.  The father’s parents are separated and his father lives in the P region which is in Sydney’s outer western suburbs.  This is where the father also lived until he moved to Newcastle to be closer to the child and where the child has spent a considerable amount of time.  The father’s mother lives in Queensland. 

2. The father works as a tradesman.  Since his move to Newcastle he says he usually works about three days per week, for which he earns approximately $450 per week net.  Although the father’s contribution to the child’s financial support was potentially a significant issue in the proceedings, the father provided no documents that corroborate his evidence.  On this issue the father was unconvincing and I was left with considerable unease that he may not have given an accurate picture of either his income or the full extent of his employment.

3. The father and Ms A have been in a relationship since July 2005.  Ms A works fulltime as a shop assistant at ….  Ms A provided an affidavit and attended the hearing.  She was not cross examined.  When Ms A saw the Family Consultant, she impressed him with her positive remarks concerning the mother and her willingness to promote the child’s relationship with her.  Ms A is about the same age as the father and it appears she has a pleasant relationship with the child and overall contributes positively to his situation.

The Family Reports

1. The Court received two Family Reports.  Mr P, Social Worker, prepared the first report which is dated 21 March 2005.  Mr P recommended that the parties jointly participate in several counselling sessions so as to improve their communication and joint management of their son. This does not appear to have happened. Concerning the parties’ then competing proposals, Mr P recommended that:

   ·The child lives with his mother.

   ·The child spends time with his father from Friday until Sunday evening each week.

   ·That the parties meet half way for changeover.

2. Concerning the child, Mr P said that the child: “Presented as a happy and engaging young child who seemed equally comfortable and affectionate with both his parents.  It clearly appeared that both his grandparents on both sides of the family are only peripherally involved with [the child’s] life, with both biological parents clearly demonstrating their care and parenting skills with [the child].  There were no child protection concerns with the child in either of his parent’s care and his attachment to both [the mother] and [the father] appears equally strong.”

3. The father highlighted Mr P’s opinion that the mother “ ….. in my view realises that she made a clear mistake in her relationship with [the father] and now does not desire that he has anything but minimal input into their son’s life.”  During this hearing the father repeatedly returned to this statement and sees it as supportive of his and other members of his family’s opinions that the mother has sought to make his relationship with the child as difficult and limited as possible.  With respect to Mr P, the father and his family members who expressed this opinion, it does not withstand scrutiny.  The uncontrovertible fact is that the mother has facilitated the child’s contact with his father in accordance with orders.  At no stage has she asked the court to inappropriately restrict the child’s contact with his father.  In addition to ordered contact, the mother has facilitated additional time on birthdays, Father’s Day and other special occasions.  Merely because she has not always agreed with the father’s requests, does not make her stance unreasonable or consistent with Mr P’s opinion.  In an attempt to explore this issue with the father, I asked him to discuss the child’s developmental needs at the various stages he has moved through since the parties separated.  The father said he had no idea of the child’s various developmental needs and has made no attempt to find out.  With respect to the father, if he wanted to maintain his criticisms of the mother’s stance concerning the child’s living arrangements, he needed to do so within the context of what is developmentally appropriate.

4. The Court received a second report from Mr C which is dated 2 March 2007.  Mr C was not cross examined.  Concerning the issues upon which he was invited to express an opinion, Mr C made the following recommendations:

   70.It is recommended that each parent have equal shared parental responsibility for long term decisions regarding [the child].

   71.It is recommended that while ever the father is residing within 50 kilometres of the Newcastle Post Office (not 25 kilometres), that [the child] live predominantly with the mother and spends time with the father on alternative weekends from after pre-school / school on Thursday to before pre-school/school on the following Tuesday (i.e. five nights per fortnight).

   72. It is recommended that while ever the father is residing within 50 kilometres of the Newcastle Post Office, [the child] spend half of all pre-school/school holidays with each parent.

   73.It is recommended that if the father should reside between 50 kilometres and 200 kilometres from the Newcastle Post Office, that [the child] live predominantly with the mother and spend time with the father on alternative weekends from after pre-school / school on Friday to 5.00 pm on the following Sunday (i.e. two nights per fortnight).

   74.It is recommended that if the father should reside more than 50 kilometres from the Newcastle Post Office that [the child] spend half of all pre-school / school holidays with each parent.

   75.It is recommended that (irrespective of how far away the father resides from the Newcastle Post office), that [the child] spend significant days (such as Christmas and birthdays) with each parent.

   76.It is recommended that (irrespective of how far away the father resides from the Newcastle Post Office), specific arrangements be made for the Indy 500 weekend which is a significant occasion for the father and the father’s extended family.  For example, if this weekend was to fall on a weekend that [the child] would otherwise be spending time with the mother, [the child] should spend the Indy 500 weekend with the father and the preceding weekend with the mother (in some years this would result in [the child] spending two weekends in a row with the mother followed by two weekends in a row with the father).  The father should give the mother at least 8 weeks notice in writing if a change of weekend is required for the Indy 500.

   77.It is recommended that telephone contact should be liberal and bounded by common sense and the age of [the child].  If the parents cannot agree on what is reasonable, it is recommended that the father be permitted to telephone [the child] on two occasions during the 9 nights that [the child] is with the mother each fortnight and that the mother is permitted to telephone [the child] on one occasion during the 5 nights that [the child] is with the father each fortnight.  Telephone contact should occur between 6.30 pm and 7.00 pm.

   78.It is recommended that both parents attend a parenting after separation program as soon as possible in order to improve their current poor co-operative parenting communication.  Suitable programs are provided by community agencies including Relationships Australia (Ph: 49491500), Unifam (Ph: 49256000), Interrelate (Ph: 49578888), and Newcastle Family Support Services (Ph: 49263377) and typically run for six to eight three hour sessions costing a total of approximately $80.

   79.It is recommended that an order be made on the surname of [the child] and that once ordered both parents use this surname and only this surname and if necessary, ensure that any record not in the court order surname be changed to reflect the court ordered surname.

   80.It is recommended that an order be made on the issue of a passport or not for [the child].

1. Mr C’s recommendations are supported by his investigations and his report.  His observations and assessment of the parties accords with my own.  I am satisfied that his opinions warrant considerable weight.

Determining the child’s bests interests

1. The parties both say that it is important the child has a meaningful relationship with each of them.  With this I agree.  I have no doubt that the child can only benefit from an outcome which ensures that he has meaningful relationships with each of his parents.  Having regard to their agreement, the child will have substantial and significant time with his father.  Whichever outcome is ordered on the remaining issues, the child’s relationship with each parent is assured.

2. There are no s 60CC(2)(b) issues which require consideration.

3. By s 60CC(3)(a) where a child has expressed views about its welfare, the child’s views must be considered along with any factors the Court feels are relevant to the weight given to the child’s views. The child is developing within normal parameters. Because of the child’s age, Mr C decided against formally interviewing him. At his age, the child does not have the maturity or life experiences to understand the nuances of the outstanding issues. Even if the child held views upon the outstanding issues, they could not be given any weight.

4. By s 60CC(3)(b) I am required to consider the nature of the child’s relationship with each of his parents, grandparents and other significant people. The Family Reporter observed that the child has a positive and relaxed relationship with his parents, paternal grandparents and Ms A. The child demonstrated strong and healthy attachments to his mother and father and moved comfortably between them. Although the child is highly likely to be aware that his parents are unable to communicate with each other and that, excluding Ms A, both sides of his family are antagonistic with each other, this has not yet intruded into his key family relationships. However, if the antipathy continues much longer and is displayed in front of him, the child is likely to be adversely affected by it. Unless it abates, within the reasonably foreseeable future, I would expect that the child may start to manipulate his parents to his perceived advantage. There are already signs that this may be starting to happen. Because ultimately this type of behaviour is destructive it will be to the child’s disadvantage and detract from his ability to maintain healthy family and social relationships. Mr C commented that: “Unless the parents significantly improve their cooperative co-parenting, including their communication with each other, it is extremely likely to have a significant negative impact on [the child’s] long term well being.” With these comments I agree. The parties both impressed as being of at least average intelligence and have the ability to understand Mr C’s comments and my findings. If any good comes from this hearing, it is that they have the benefit of Mr C’s opinion that their current (mis)behaviour must end.

5. The child does not know his New Zealand relatives.  An advantage of the mother’s application for a passport so that he can visit them is that this gives the child an opportunity to meet an important part of his extended family.  Given his great-grandmother’s age unless this happens soon it is an opportunity which may be forever lost.

6. Section 60CC(3)(c) concerns a parents willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent. As I have earlier found, the father says the mother has consistently obstructed his attempts to spend time with the child and thus develop an even closer relationship with him. Although I accept that she has occasionally refused to co-operate with reasonable requests for additional time, this is far from the norm. This complaint fails to acknowledge that the father has enjoyed regular and age appropriate contact with the child since separation. As between the parties, the mother’s general approach to the structure, duration and amount of time the child has spent with his father since separation has been considerably more closely aligned with the child’s developmental needs than the father’s approach. To the extent the father relies on this issue to establish an adverse s 60CC(3)(c) finding he fails.

7. Each of the parties gives evidence concerning remarks the child makes to them critical of the other parent.  It is difficult to know whether the child’s reports are accurate.  Given his age his ability to accurately report on matters is contentious and, it is at least as likely his reports are inaccurate as accurate.  Nonetheless, each of the parties believes everything impliedly critical which the child says about the other parent and reacts accordingly.  Having read the affidavits, I thought it probable that neither of the parties likes or respects the other.  My initial impression was strengthened during the hearing.   At one level personal likes are irrelevant.  These only become relevant when the parties allow their dislike of each other to spill over into the child’s life.  There are signs it has already done so.  For example, the mother’s decision to unilaterally change the child’s surname and allow him to slowly become known in the wider community by a name other than the name it was agreed he would carry at birth, is inconsistent with her obligation to encourage the child’s relationship with his father.  The parties decision against compromise has left the child in the situation where depending on which parent he is with, he uses a different surname.  This simple vignette demonstrates that while the parties cooperate in the sense of complying with orders concerning the child’s living arrangements, there are subtleties upon which each seizes to maximise their relationship with the child, even where it is inconsistent with encouraging his relationship with the other parent.  The only distinction between the parties is that at least during the hearing the mother was able to speak positively about the child’s relationship with his father and expressed her desire that it continues to grow.  After the father was given the opportunity to discuss positives he sees in the child’s relationship with his the mother there were long pauses.  I was left with a strong sense that if the child looks to his father for anything positive to be said about his mother, he will be waiting a long time.  Both parties clearly require professional assistance so as to assist them reframe their ability to recognise each other’s strengths as parents and communicate these to the child.  If they fail to do so, as he gets older, the child who is obviously strongly attached to each of them will start to doubt his parent’s affection for him.  Potentially, this turn of events is emotionally damaging for the child and may compromise his ability to form healthy relationships in the future.  Again, one of the positive outcomes of this hearing is that both parents have received information that will hopefully avoid future adverse consequences for their son.

8. Section 60CC(3)(d) concerns the effect of changing the child’s circumstances. Consequent upon their agreement, the child’s living arrangements will change for the better. He will have the opportunity to spend considerable periods with each of his parents and his father has an opportunity to have greater contact with his preschool and from next year, his school. The rate of change is age appropriate and consistent with the child’s needs.

9. Under this sub-section, I will consider the effect on the child of changing his surname.  When I come to consider the change of name issue I must ensure that the best interests of the child are the guiding principle for determination of the name issue.  There are numerous decisions that pre-date the 2006 amendments relating to children's surnames.  Foocks v McCarthy (1994) FLC 92-450 contains a useful guide for determination of this issue. In that case Warnick J said: "There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents". See also Flanagan v Hancock (2001) FLC 93-074.

10. The factors to which the earlier courts most frequently have regard in determining whether there should be any change to a child's surname or for the surname to revert back to that which was previously used include:

    ·The short and long term effects of any change in the child's surname.

    ·Any embarrassment likely to be experienced by the child if its name is different from the parent with whom the child usually resides.

    ·Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

    ·The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.

    ·The effect of frequent or random changes of name.

    ·The contact that each parent has had and is likely to have in the future with the child.

    ·The degree of identification that the child has with each parent.

11. The child was born prematurely to parents living in defacto relationship.  At hospital, he was called “baby [Henry]” and his Medicare card issued on the mother card noting him as R Henry.  This is the standard approach. Until the parties separated, they called the child “[Donald]” and this is the name by which he was known.  His birth certificate identifies him as R Donald.  The child was still very young at separation and it is doubtful that he was even aware he had a name other than his Christian name.  After separation the mother decided the child should carry both parent’s names.  Quite quickly the situation developed whereby in his father’s care the child is known as R Donald and in the mother’s environment as R Henry.  I do not accept the mother’s claim that this has arisen because the child was originally given Medicare cover using her card.  As far as Medicare and the hospital were concerned, this was a temporary measure pending the parents giving effect to their naming decision.  Neither parent treated changing relevant documentation with any urgency.  After separation the mother opportunistically used the Medicare argument to pursue her own naming agenda.  With respect to her in this instance, her usually sound parenting judgment failed her and her actions in placing the child in such a confusing situation are reprehensible.

12. The father shares the mother’s Scottish ancestry.  The Donald clan is a well known Scottish clan.  By being known by the surname Donald, the father says the child’s attachment to the clan is strengthened.  There is no evidence that the father participates in clan activities or that culturally he has any ongoing connection to his Scottish heritage.  Even if the child uses the Donald surname he will have very little connection with his clan. According to the father, boys take their father’s surname.  In an ever changing society naming conventions have also been changing.  I do not accept that there is now a social norm of general application which results in male children of unmarried parents being known exclusively by their father’s surname. 

13. It is my expectation that both parties will be significantly involved in most aspects of the child’s life, certainly in all of its important aspects.  For example, his education, his closest friendships, family and in the local community.  He identifies strongly with each of his parents and is acutely aware that they carry different surnames, as he does. He probably appreciates that his name is connected to the names his parents carry and draws part of his identity from this.  Because he has used each parents name for some time now, it is likely that dropping one altogether could be confusing, perhaps even troubling in terms of the child understanding its ramifications vis a vis his relationship with the parent whose surname is deleted.  With this in mind, there is advantage to the child in carrying a hyphenated surname from which he and others can easily recognise his parents.  Because his surname has been surrounded by such controversy, settling upon one surname will resolve rather than create confusion.  The child is old enough to understand who his parents are and to accept that it is reasonable that he carries each of their surnames.   There seems no prospect that whichever name is used will cause the child embarrassment.  Neither party has a preference for the particular construction of the child’s hyphenated surname.  By using the surname Donald-Henry, as Donald is first, it achieves some of the prominence which the father desires and I will order accordingly.

14. Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time and communicating with a parent. This sub-section raises the issue concerning the geographic boundary within which the child will live whilst with his father. The mother contends that if, while the child is living with his father, he lives more than 25 kilometres from her the burden upon the child moving between his parent’s homes is unreasonably onerous. She highlights that during school term, pursuant to order 2(a) of the orders made 31 July 2007, the child will travel between his father’s home and school reasonably often. In each fortnight, this will include two days in which he travels to and from his father’s home and school. Within a 25 kilometre boundary, this journey should take no more than about half an hour each way. At 50 kilometres, the journey will require approximately one hour. These are average time expectations and may vary on occasion. Similar issues will arise with weekend sports and special functions.

15. The father’s objection to the lesser geographical boundary is twofold.  Firstly, he prefers living in a rural rather than urban environment.  He perceives living in a rural setting he can enjoy activities with the child which are not immediately available if living closer to town.  I accept this proposition.  Secondly, he believes that further away from the centre of Newcastle, the cost of housing falls.  Whether he is renting or, as he ultimately hopes, is in a position to eventually purchase a home, he says the further out from the centre he is living the cheaper it is.  I accept his evidence that as he is of modest means, this is an important issue.  Although neither party referred to this issue, I consider it is potentially advantageous if the prospects they will come across each other as they go about their daily lives are less rather than more likely.  The closer the parties live to one another, the higher the likelihood of impromptu contact.  Neither party is comfortable in this situation.  Their discomfort may well spill over to the child.  He and the parents are likely to have greater enjoyment in their respective social milieu if it is theirs alone.  The amount of travel involved if, when the child is living with his father, he lives up to 50 kilometres from where he attends school and sports, does not impose an unreasonable burden on the child.  Overwhelmingly his travel will be by car.  On balance I agree with the father and Family Consultant that the 50 kilometre is appropriate.  In order for this limitation to be effective similar restraints must be applied to the mother.  So that there can be no further arguments about it, the restraints do not mean that the child must sleep every night within a 50 kilometre radius of the Newcastle Post office.  The point is to ensure that he does not need to travel too far to and from school and pre-school. Therefore so long as the child is back from any weekend visit away from his parents homes the night before school or pre-school the next day the terms of the restraint will be complied with.  It is not my intention that the child will miss out on the opportunity to visit grandparents or participate in activities away from his parents homes whilst he is in their care.

16. I now turn to consider the telephone communication issue.  The father proposes that each of the parties be at liberty to call the child at all reasonable times.  He says the parties should be trusted to adopt a common sense approach to the issue.  Unfortunately the parties both say telephone communication has previously met with varying degrees of success and where unsuccessful blames the other.  Between paragraphs 83 and 215 of her affidavit sworn 5 December 2006 the mother gives evidence about repetitive calls the father made to her and her difficulties in persuading the child to talk to his father for anything more than a couple of minutes.  The call mainly relate to the period between July 2004 and March 2005. As the transcript of the father’s cross-examination on 15 July 2005 makes plain there is no doubt that on some occasions on July 2004 there are days upon which he called the mother’s home repeatedly.  In the lead up to father’s day he made between 12 and 13 telephone calls in order trying to make arrange to see the child.   On occasions the mother says she could not make the child speak to his father, which given the child’s age is understandable.  The father says the fact that he managed to have the child speak to the mother by telephone for 14 minutes proves that had the mother made the same effort he did telephone contact could have been more successful.  While this is possible the more likely explanation is that young children sometimes manage telephone calls and sometimes cannot.  The child is now old enough to manage telephone communication without supervision.  He only needs access to a speed dial button on his parent’s telephone and a reminder to place a call. Provided telephone contact is limited to outgoing and not incoming calls there is little prospect of repetitive incoming calls. An obvious advantage of telephone communication is that the child can more spontaneously share his news with his parents and enrich their relationship by more frequent contact.  So as to maximise the success of telephone communication I will delay its introduction until after the child starts school.  The reason for this is to give him and the parties to settle into the new parenting arrangements and the anticipated effects of the parenting after separation program to commence.  The time for the calls is as recommended by the Family Consultant which should not disrupt the child’s usual routine.  If for some reason the child is occasionally unable to place a call the parties should make arrangements for him to catch up with the other parent at another agreed time.           

17. There are no s 60CC(3)(f) and (g) factors which require additional comment.

18. Section 60CC(3)(h) does not arise.

19. Section 60CC(3)(i) concerns the parent’s attitudes to the child and the responsibilities of parenthood. Both parties are strongly committed to the child’s welfare and desire to be the best parent each is capable of being. Where difficulties have arisen, the genesis for these appears to be in the parties suspicions about the other. Both appear determined to find fault with the other even for the most minor transgressions. These attitudes largely arise from their tumultuous relationship and have to a significant extent caused each of the parties unnecessary stress. Because of their suspicious attitudes to each other, the parties have been overly critical and possessive about matters such as the child’s haircuts, attendance at doctors, where and with whom the other parent has been living. It is unnecessary for the parties to agree upon every issue concerned with the child’s well being. There are areas, however, where agreement is necessary. There should be a reasonably common approach to the child’s routine, diet and behaviour. He should not get into trouble for misbehaving in one home with similar behaviour unchecked in the other. A common approach to medical intervention is important. Presently, the parties disagree about whether the child requires treatment for asthma. The parties need to put aside their suspicion about the other and cooperate in investigating the child’s health needs and then accept proper advice. It seems to me that the only impediment to a reasonably consistent approach to the child’s care is the parties antipathy for each other and consequential communication difficulties. If possible, these parties need to see the other through the child’s lens. He can see the good in each of his parents and it now each party tries to do the same thing. The prospects they will do so are increased by virtue of their agreement to attend a parenting after separation program. Because both parties are competent and caring parents, I am cautiously optimistic that this may result in a more cooperative parenting relationship in the future.

1. There are no operative family violence orders.  Because the parties reached agreement on the majority of matters, sensibly issues relating to family violence were not explored during the hearing.  I am not in a position to make any further findings concerning the matters raised in the affidavit evidence.  It is sufficient to record that I am satisfied that the arrangements encapsulated in the parties agreement do not expose the child to a risk of family violence. 

2. Section 60CC(3)(l) requires that the Court makes orders least likely to lead to the institution of further proceedings. Parenting orders are never final in the sense that the Court retains jurisdiction to make different orders in the event the parties or child’s circumstances change. Litigation is costly in financial and emotional terms and as far as possible I will make orders consistent with the subsection. The mother contends that unless and order is made giving her sole parental responsibility for the long term decisions about the child’s welfare the risk of future litigation is heightened. On a purely theoretical basis this must be correct. She says the problem arises because of the parties limited ability to communicate which suggests further litigation will be needed in order to resolve an inevitable impasse. This issue is not considered in a vacuum and must be analysed in the context of the agreed orders. From the orders it is apparent that long term arrangements are now in place concerning the time the child lives with each of his parents, where he will attend school, the boundaries within which he will live, provision of information by the parties to each other about the child and medical care. Because the child is young, long term parental responsibility issues will still arise. Notwithstanding their poor communication, as the parties agreement in this hearing reveals, when they consider issues about the child from his perspective, they are able to agree. The impediment to agreement lies primarily in their antipathy for each other and poor communication. As I have earlier found my expectation is that these issues will gradually resolve.

3. Section 60CC(3)(m) enables the Court to take into account any other factors or circumstance which the Court considers relevant. Under this section I will consider the mother’s passport application. Useful guidance to the resolution of this issue is found in Kuebler & Kuebler (1978) FLC 90-434 and Line v Line (1997) FLC 92-729. The mother has strong ties to Australia which is where she has lived all of her life. This is where her closest family members live and where she owns a home. She does not own property anywhere else. The mother has not repartnered and there is no evidence which suggests she has an emotional pull to live in another country. New Zealand is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. It is commonly accepted in this Court that Australia and New Zealand have a close and cooperative relationship and the Convention is given its full effect by the two countries. These are all weighty factors which weigh in favour of the mother’s passport application and associated orders. I agree with her that the child is likely to be enriched by the opportunity of seeing his great grandmother and New Zealand relatives in their homes.

4. The father alleges the mother is a flight risk.  His argument is based upon his belief that the mother has obstructed his relationship with the child, which belief is reinforced by Mr P’s opinion referred to earlier.  For my reasons given earlier, I do not accept these remarks.  In terms of opportunity, the father says that the mother’s New Zealand uncle is a sailor and has a boat on which the mother could leave New Zealand for parts unknown.  I accept the mother’s evidence that her uncle is retired.  However even if he still owned a boat this does not heighten the risk of the mother fleeing New Zealand with the child.  With respect to the father, his insistence that the uncle’s fishing boat was relevant to the Court’s consideration of whether the mother should be able to take the child to New Zealand was fanciful.  His evidence on this issue had a great feeling of being nothing more than a childish “tit for tat” response motivated by his perception that the mother made it difficult for him to take the child to the Indy car races and visit family in Queensland. 

5. I am satisfied that the child could enjoy an occasional trip to New Zealand to see his New Zealand relatives and that he should have the opportunity to do so.  The mother is happy to give the father advance notice that she is planning a trip to New Zealand and provide him with an itinerary.  The itinerary will include addresses and contact numbers.  If the mother and the child are overseas for more than seven days the mother must make arrangements with the father so that he can telephone the child on the eighth and each fourth day they are away thereafter.  As the father pays so little child support he must carry the telephone contact expenses.  By affording the mother the opportunity to take the child to New Zealand occasionally does not expose the child and father to anything more than a theoretical risk of non return.  Accordingly I will make orders which enable an Australian passport to issue and thereafter facilitate an annual New Zealand holiday.  Although this is more frequent than anticipated, the orders are facilitative and designed to limit the prospects of further proceedings. 

6. There is considerable overlap between s 60CC(3)(c), (f) and (i) and s 60CC(4) and 4(a). The father has sought to participate in every aspect of the child’s life to the fullest extent possible. He is an enthusiastic and committed parent. I make the same findings concerning the child’s mother. The only other matter which requires consideration is the extent to which the mother has given the father the opportunity to participate in making decisions about the child. Her approach to changing the child’s surname has been inconsistent with involving the father in these matters. Merely because the child lives primarily with her does not entitle the mother to unilaterally progress long term issues. Unless the court orders equal shared parental responsibility my concern is that the mothers attitude reflected in her approach to the child’s surname may again come to the fore. I was concerned about the mother’s desire to exclude sporting activities from the parties agreement to ensure educational activities are continued while the child is in each parents care. The mother says most sports clubs allow children to participate even if they only attend games fortnightly rather than weekly. So as not to be tied down to sports activities while the child is with her this is what the mother proposes. She considers that the father may want the child to pursue one activity while the child is with him whereas she may wish to enrol in a separate activity. On her case compromise is unlikely and the child would be denied the opportunity to be a fully participating member of either activity. Not only might this mean he is denied the opportunity to excel through full participation he may also be seen by his peers to be letting his team down. A far better outcome is that the parties agree upon the child’s sporting activities and give their decision full effect. From time to time it will be reasonable that the child misses an occasional game and the orders will provide for this opportunity. If for some reason the mother is unable to get the child to a game or event the father kindly offers to take him. Obviously the mother will need to let him know in advance that she seeks his assistance.

7. For these reasons I as satisfied that the orders are in the child’s best interests.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  24 August 2007