HURST & MERRITT

[2017] FCCA 3102

FEDERAL CIRCUIT COURT OF AUSTRALIA

HURST & MERRITT [2017] FCCA 3102

Catchwords:
FAMILY LAW – Parenting – interim hearing – whether the child should live primarily with the mother or the father – issue of schooling.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65DAA

Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92
Re G: Children’s Schooling (2000) 26 Fam LR 143

Applicant: MS HURST

Respondent: MR MERRITT

File Number: SYC 5730 of 2016

Judgment of: Judge Monahan

Hearing date: 16 November 2017

Date of Last Submission: 16 November 2017

Delivered at: Sydney

Delivered on: 22 December 2017

REPRESENTATION

Counsel for the Applicant: Ms Sproston

Solicitors for the Applicant: Sharon Moss Legal

Counsel for the Respondent: Mr Kelly

Solicitors for the Respondent:

Solicitors for the Independent Children’s Lawyer:

Green & Associates

Ms Hennessey of Legal Aid New South Wales

ORDERS

THE COURT ORDERS THAT:

1. All extant applications be adjourned to this Court on 13 March 2018 at 9.30am for directions (“the directions hearing”).

2. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1. The parties have equal shared parental responsibility for X born in 2012 (“the child”).  

2. The child live with the mother.

3. The child spend time with the father as agreed in writing, and failing agreement:

   During school terms

   (a)In week 1 commencing in the first week of each school term, from Friday after school (or 9:00am on a non-school day) until Monday before school (or 9:00am Tuesday if there is a public holiday or a non-school day on the Monday) and each alternate weekend thereafter; and

   (b)In week 2 commencing in the second week of each school term, from after school Tuesday to before school Wednesday (or 9:00am Thursday if there is a public holiday or a non-school day on the Wednesday) and each alternate week thereafter; and

   During school term holidays

   (c)During the school term holidays following Terms 1, 2 and 3, commencing in 2018 and in every even numbered year thereafter, for the first half; and

   (d)During the school term holidays following Terms 1, 2 and 3, commencing in 2019 and in every odd numbered year thereafter, for the second half; and

   During the long summer school holidays

   (e)Commencing in December 2017, during the long summer school holidays as agreed between the parties;

   (f)Commencing in December 2018, and each long summer school holidays thereafter, for a period of 28 days, with such times and dates to be agreed between the parties, and failing agreement as follows:

   (i)In even numbered years, for the first 28 days commencing at 10:00am on the day following the last day of the school term and ending at 5:00pm 28 days later; and

   (ii)In odd numbered years, for the last 28 days commencing at 10:00am 28 days before the day immediately preceding the commencement of the new school term and ending at 5:00pm 28 days later.

   (g)Commencing 2018, in even numbered years from after school (or 3:00pm on a non-school day) on the day before Anzac Day to before school on the day following Anzac Day if Anzac Day falls during the school week, and from 3:00pm the day before Anzac Day to 10:00am the day following Anzac Day if it falls on a non-school day during which the child would not otherwise be spending time with the father.

4. In the event that the father is unable to spend time with the child in accordance with these orders, he provide seven (7) days written notice to the mother.

5. For the purposes of paragraphs 5(c) and (d) herein:

   (a)The school term holiday period commences on the first day after the last day of the school term at 10:00am and concludes on the last day before the commencement of the new school term at 5:00pm; and

   (b)In the event  that  the  school  holiday  period has an uneven number of days, then the party with whom the child spends the first half of the holiday period with shall have the extra day.

6. The parties do all acts and things and sign all such documents as necessary, to enrol and have the child attend at B School, C Street, Suburb D, NSW, commencing in 2018.

7. The parties be restrained from removing X from B Primary School without the consent of the other party.

8. Unless otherwise agreed by the parties in writing, all changeovers that do not occur at the child’s school, occur at the Suburb R Shopping Centre.

AND THE COURT NOTES THAT:

A.The purpose of the directions hearing is to ascertain whether the parties are still in dispute in relation to the ‘non contentious’ issues, and make further directions, including consideration of listing the matter for final hearing or considering whether this matter should more appropriately be transferred to the Family Court of Australia.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5730 of 2016

MS HURST

Applicant

And

MR MERRITT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings between Ms Hurst (“the mother”) and Mr Merritt (“the father”).  The relevant child of their relationship is X born in 2012 (“X”, or “the child”).

2. This decision only concerns interim parenting arrangements and in particular whether until further order X should primarily live with the mother (who resides in the northern Sydney suburb of Suburb E) or primarily reside with the father (who resides in the southern Sydney suburb of Suburb F). 

3. The parties commenced cohabitation in 2007 and separated in early 2015.  X was born in 2012.  Since separation the child has been residing in an “eight/six” arrangement.  That is, the child has been residing eight nights a fortnight with the mother and six nights per fortnight with the father.  While it would be unusual for a Court to disturb such a long-standing arrangement on an interim basis both parties pressed the Court to intervene as the parties are in disagreement about which school X should attend in 2018 and beyond. 

4. Not surprisingly, the parties each propose a school that is close to where they live.  Both parties argued that due to the geographical distance between the parties’ respective residences (which they agreed is approximately 55 kilometres) the near shared care arrangement that has been in place for nearly four years will become unworkable. 

5. The Court notes at this stage that neither party favours the child attending a school at a location approximately half way between their respective residences.  The Court further notes that any further deferral of X commencing school is simply not possible as the child turns six years of age next year and under state law is required to enrol in and attend school by the year the child has attained that age.  Consequently the parties either need to resolve this dispute shortly or have the Court make orders prior to the commencement of the next school year. 

6. Both parties were legally represented by counsel at the interim hearing that took place on 16 November 2017; the mother by Ms Sproston and the father by Mr Kelly. 

7. An Independent Children’s Lawyer (“ICL”) has been appointed in this matter and Ms Hennessey of New South Wales Legal Aid appeared at the interim hearing in that capacity. 

8. Unless otherwise stated any statutory references I make in these reasons will be to the Family Law Act 1975 (“the Act”).

Background

Relationship History

1. The mother was born in 1976 and is aged 41 years. The father was born in 1979 and is aged 38 years.

2. The parties commenced a relationship in 2007.

3. As stated, the child of the relationship, X, was born in 2012 and is currently 5 years of age.

4. The parties separated on a final basis on 14 February 2015.

5. The father has re-partnered and he and his partner now have a son named G. 

Procedural History

1. The mother commenced these proceedings on 10 April 2017 when she filed her Initiating Application.  The father filed his Response on 9 May 2017.

2. The matter first came before me in my duty list on 15 May 2017. On that occasion, I made orders, inter alia, for the parties to attend the ‘duty’ Child Dispute Conference, for the appointment of an Independent Children’s Lawyer and otherwise adjourned the matter for interim hearing on 16 November 2017.  The following interim consent orders were also entered into by the parties on that day:

   1. That within forty-eight (48) hours of the dates of these Orders the parties do all acts and things and sign all such documents as necessary to enrol X born in 2012 (“X”) at:

   a) H Early Learning Centre, Suburb J to attend on Mondays only.

   b) K Early Learning Centre, Suburb E to attend on Thursdays and Fridays only.

   2. That within seven (7) days of the date of these Orders the parties do all acts and things and sign all such documents as necessary to enrol X at:

   a) B Primary School, Suburb D,

   b) L School, Suburb F

   to commence school in 2018.

   3. That both parties are restrained from taking X to any primary school, for the purpose of induction or otherwise, without the prior written consent of the other party or further order of the Court.

   4. That both parties are restrained from discussing the issue of X’s attendance at any primary school in the presence or hearing of X.

   5. That both parties are restrained from denigrating the other party in the presence or hearing of X.

   6. That both parties shall ensure that X has reasonable telephone communication with the other when in the care of the other parent, limited to no more than one (1) occasion per day.

   11. That the Mother undergo supervised urinalysis and CDT testing for illicit drug and alcohol abuse as requested by the Father’s solicitor with such request to be made in writing by his solicitor with a frequency of testing to be no greater than one (1) test every four (4) weeks.

   12. That any test so requested must be completed within forty-eight (48) hours of receipt by the Mother’s solicitor of such request.

   13. A copy of any certificate or pathology results issues consequent upon a test so requested shall be given to the Father’s solicitor within twenty-four (24) hours of receipt by the Mother.

3. On that date I also made orders, by consent, appointing Mr M to prepare an expert report. That report was subsequently completed and released in Chambers on 30 August 2017.

4. As stated, the interim hearing proceeded on 16 November 2017, following which the Court reserved its decision.

Agreed and Disagreed Facts

1. As stated, the parties agree that they commenced a relationship in 2007 and separated in February 2015.  Their separation was preceded by a period of unhappiness and arguments.  The mother alleges that the father used threatening and intimidatory language and threatened her life.  The father denies the mother’s allegations of family violence. 

2. Following separation the mother left the former matrimonial home owned by the father and moved back to her parent’s home located in Suburb E. The maternal grandparents have subsequently constructed a granny flat on their property which the mother now occupies with X. 

3. As stated, following separation the father re-partnered.  His new partner is Ms N and they live with their son, G.  Ms N is currently pregnant with her second child with the father.  The father and Ms N continue to reside in the property owned by the father.  The mother has not re-partnered.

4. The mother, the father and Ms N are each in employment.  The father is employed as a Manager for Employer O. He has been employed in this capacity since 2007. The father works each weekend from Thursday through to Sunday evening.

5. The mother is employed as a Manager with a company (“Employer P”) based at Suburb Q. The mother works in the office from Monday to Thursday and works from home on Fridays.

6. Following judicial intervention the parties enrolled X in each of the desired schools.  They have also enrolled X, and he has subsequently attended, two different day care centres or preschools in the second half of 2017. 

Agreed Outcomes

1. Regrettably the parties were unable to present to the Court a further minute of orders that resolves less contentious issues on an interim basis.  That is unfortunate but perhaps understandable given the breakdown in their relationship and their clear positioning on the residential arrangements for X.  It would be difficult to have mirrored spend time with arrangements.  Indeed, the Court acknowledges that it would be somewhat difficult to have mirrored spend time with arrangements given the father’s proposal involves the child spending every weekend with the mother. 

2. That said, both parties proposed orders were for them to have equal shared parental responsibility for X and for the child to spend one half of school term holidays with each party (except that the mother proposes that the child spend four weeks with the father during the long summer school holidays).  I note that each party also proposes that the child spend special days with each of the parties. 

3. I will also note again at this stage that the parties obtained an expert report from Mr M to assist with recommendations.  Those recommendations supported the child primarily residing with the mother and attending the nominated school located close to her residence.  The father has raised issues and criticisms of Mr M’s report and I will consider those submissions shortly. 

Proposals

Mother

1. In summary the mother proposes that the parties have equal shared parental responsibility for X but that the child lives primarily with her and spends time with the father during school terms on alternate weekends and one afternoon in the alternate week to occur at a midpoint location. She also seeks orders for the child to attend B Primary School.  The precise orders sought by the mother are as follows.

   1. That orders 3, 4, 11, 12 and 13 of the interim consent orders dated 15 May 2017 be discharged and dismissed.

   2. That  the  Mother  and  Father  have  equal  shared  parental  responsibility  for  X born in 2012 ( "X").

   3. That X live with the Mother.

   4. That X spend time with the Father as agreed and failing agreement:

   (i) During the school term, in the first week from Friday after school until Monday before school (or  Tuesday if there is a public holiday on the Monday) and thereafter each alternate weekend; and

   (ii) During the school term, in the second week for a period of two hours  one evening as agreed and failing agreement on Wednesday  between 5pm and 7pm with such time to occur at a midpoint   between  the Mother and Father's residences, or failing agreement  at Suburb R Shopping Centre; and

   (iii) In even numbered years commencing 2018 from 5pm on the day before Anzac Day to before school on the day following Anzac Day if Anzac Day falls during the school week and from 5pm the day before Anzac Day to 10am the day following Anzac Day if it falls on a non­school day during which X would not otherwise be spending time with the Father.

   (iv) During the Term 1, 2 and 3 school holidays, in every even numbered year commencing 2018 X spend the first half of the school term holidays with the Father and the second half with the Mother and in every odd numbered year commencing 2019, X spend the first half of the school term holidays with the Mother and the second half with the Father.

   (v) The school term holiday period shall commence on the first day after the last day of the school term at 10am and conclude on the last day before the commencement of the new school term at 5pm.

   (v)[sic] In the event  that  the  school  holiday  period shall  have an uneven number of days, then the parent with whom X spends the first half of the holiday period with X shall have the extra day.

   (vi) During the Christmas School holiday period, X spend four weeks with the Father and the remainder of the holiday period with the Mother with such times and dates to be agreed but failing an agreement then as follows:

   (a) In every odd numbered year, commencing 2017, the Father shall spend the first four weeks with X following the conclusion of the school term, and X shall spend the remainder of the holiday period with the Mother (noting it has been agreed by the Mother and Father that X will go camping with the Mother from 18 to 22 January 2018 and the Father will be provided, if applicable, with make-up time as agreed); and

   (b) In every even numbered year, commencing 2018 the Father spend the last four weeks of the holiday period with X and X  spend  the  first  part  of the  holiday  period with  the Mother.

   (vii) Such other time as agreed between the Mother and Father in writing.

   Christmas Day

   5. That X spend time with the Mother and Father at Christmas as agreed and failing agreement:

   (a) In every odd numbered year, commencing 2017,X spend from 10am on 24 December to noon on 25 December with the Mother and from noon on 25 December to 5pm on 26 December with the Father.

   (b) In every even numbered year, commencing 2018, X shall spend time from 10am on 24 December to noon on 25 December with the Father and from noon on 25 December to 5pm on 26 December with the Mother.

   Mother's and Father's Day

   5.   [sic]     (a) That X spend time with the Mother from 9am to 4pm on Mother's Day;

   (b) That X spend time with the Father from 9am to 4pm on Father's Day; and

   (c) If these days should fall on a day that X would be in the care of the other parent then their time shall be suspended.

   X's Birthday

   6.  (a) In every even numbered year, commencing 2018, X spend his birthday with the Father at such times as agreed between the Mother and Father, and failing agreement from 9am to 4pm

   (b)  In every odd numbered year, commencing 2019, X spend his birthday with the Mother at such times as agreed between the Mother and Father, and failing agreement from 9am to 4pm.

   Schooling.

   7. That the Mother and Father do all acts and things and sign all such documents as necessary, to enrol and for X to attend at B Primary School, C Street, Suburb D, NSW, Australia commencing school in 2018.

   8. That the Mother and Father be restrained from removing X from B Primary School without the consent of the other party.

   Other matters

   9. That the Mother and Father be restrained from denigrating the other party in the presence of or directly to X.

   10. For the purposes of changeover, save as otherwise provided for in these Orders or as agreed by the parties in writing, during the school term, changeover will take place at the commencement of the Father's time at the Father's residence in Suburb F and at the conclusion of the Father's time the Father will deliver X to his school or  outside of school  hours to the  Mother's residence  in Suburb E and during the school holidays, changeover shall occur at the Suburb R Shopping Centre.

   11. That the Father pay the Mother's costs of and occasioned by the application.

Father

1. In summary, while the father also proposes that the parties have equal shared parental responsibility for X, he seeks an outcome whereby X lives primarily with him during school terms and spends time with the mother each weekend from after school Friday to before school Monday.  He also seeks orders for X to attend L School in Suburb F.  The precise orders sought by the father are as follows:

   a. The parties have equal shared parental responsibility for X born in 2012.

   b. The parties shall do all acts and thing necessary to ensure the child attends L Primary School at Suburb F NSW commencing in 2018.

   c. The child shall live with the father as agreed between the parties but failing agreement as follows:

   i. During School Terms

   1. From 9 AM or the commencement of school on Monday until 3 PM or the conclusion of school on Friday.

   ii. During School Holidays

   1. Half of all school holidays being the first half in even numbered years in the second half in odd numbered years.

   iii. Special Occasions.

   1. From 2 PM Christmas Eve until 2 PM Christmas Day in even numbered years and from 2 PM Christmas Day until 2 PM on 26 December in odd numbered years;

   2. from 5 PM on the day immediately before Father's Day until 5 PM on Father's Day.

   d. The child shall live with the mother at all other times.

   e. The time the child is living with the father is suspended as follows on the child shall live with the mother during the following times:

   i. From 2 PM Christmas Eve until 2 PM Christmas day in odd numbered years and from 2 PM Christmas Day until 2 PM on 26 December in even numbered years;

   ii. From 5 PM on the day immediately before Mother's Day until 5 PM on Mother's Day.

   f.   Changeovers shall occur as agreed between the parties but failing agreement by the father delivering/collecting the child from the Employer O.

   g. The child shall have liberal and flexible electronic and telephone communication with the parent he is not living with.

   h. That each party is to notify the other of their residential address, landline telephone number and mobile telephone number, within seven days of the date of these orders, and keep the other party advised of any proposed changes to the above details within fourteen (14) days of any proposed changes.

   i. That each party is to contact the other as soon as reasonably practical upon the child being admitted to a hospital or receiving specialist medical attention while he is living with them.

   j. Each party is at liberty to obtain all relevant medical records and consult the child's medical practitioners to obtain any information they require and these orders are sufficient authority for that purpose.

   k. Each party is at liberty to attend the child's schools and school functions and sporting functions and obtain all details from the child's pre-school or school including reports, school photos and these orders are sufficient authority for that purpose.

   l. Neither party shall denigrate the other in the presence of the child or permit any other person to do so within the hearing of the child.

ICL

1. At the commencement of the interim hearing the ICL indicated that she was unable to make any proposal to assist the Court. The ICL’s position changed, however, by the close of the interim hearing and the ICL ultimately favoured the outcome proposed by the expert, Mr M.  As stated Mr M recommended that X primarily live with the mother and spend time with the father.  As a consequence Mr M also recommended that the child attend B School.  While the ICL indicated that there may have been merit in the parties agreeing on X attending a school that is located either close to the Sydney CBD or in a mid-way suburb between their respective residences neither party sought such an outcome and in any event, as the ICL conceded, enrolments at this late stage of the year may be problematic.  I will consider Mr M’s recommendations shortly. 

Issues

1. While the issue of schooling has required the Court to consider changing, on an interim basis, long-standing parenting arrangements, it is an issue that the Court cannot avoid given the parties’ entrenched positions and the need for X to attend school in the new year.  Clearly the Court needs to determine whether X should live primarily with the mother or with the father and, depending on that outcome, the issue of the relevant school becomes less problematic as both parties desire that the child attend a school close to where the child lives.  Nevertheless, both parties pressured the Court to make specific orders for the child’s schooling. 

2. The option of enrolling the child in a school located at a place mid-point between the parties’ residences, or close to the city of Sydney, was not proposed or sought by either party despite that being an obvious option.  It may have enabled the current shared care arrangement to continue.  Given that the parties were opposed to that option the Court will not consider it as part of this decision. 

3. Consequently, the Court needs to determine:

   ·Firstly, whether the child should live primarily with the mother (including the school week) and spend time with the father on alternate weekends and school holidays or whether the child should primarily live with the father (including the school week) and spend time with the mother each weekend and during school holiday periods; and

   ·Secondly, whether the child should be enrolled in and attend B School (assuming he lives primarily with the mother) or be enrolled in and attend L Primary School, a Catholic school located in Suburb F (assuming he lives primarily with the father).

   ·Thirdly, strictly speaking, given the parties’ failure to provide any minute relating to less contentious issues, the Court may need to determine other issues relevant to parenting, including school holiday time, time spent on special days, the imposition of restraints, etcetera.  That said, during the course of the interim hearing, the Court was reassured that the parties would be able to present an agreed minute dealing with the less contentious issues and consequently the Court does not propose to consider that aspect of the dispute any further.

Evidence

Mother

1. The mother relied on the following documents at the interim hearing:

   ·Amended Initiating Application filed 10 May 2017;

   ·Notice of Risk filed 10 April 2017;

   ·Her affidavit sworn 9 November 2017 and filed 10 November 2017;

   ·Her further affidavit sworn 9 November 2017 and filed 10 November 2017; and

   ·Affidavit of Ms S, the maternal grandmother, sworn 11 May 2017 and filed 12 May 2017.

2. The mother also tendered the following documents:

   ·Letter dated 6 November 2017 from Mr T, General Manager, Employer P (“Exhibit “1”); and

   ·Further letter dated 16 November 2017 from Mr T, General Manager, Employer P (“Exhibit “2”).

Father  

1. The father relied on the following documents at the interim hearing:

   ·Response filed 9 May 2017;

   ·His affidavit sworn 25 October 2017 and filed 31 October 2017;

   ·His affidavit sworn 30 April 2017 and filed 9 May 2017;

   ·His affidavit sworn 3 May 2017 and filed on 9 May 2017;

   ·Affidavit of father's partner, Ms N sworn 25 October 2017 and filed 31 October 2017;

   ·Affidavit of Ms U, the paternal grandmother, sworn 25 October 2017 and filed 31 October 2017;

   ·Affidavit of paternal step-aunt, Ms V, sworn 28 October 2017 and filed 31 October 2017;

   ·Affidavit of father's friend, Mr W, sworn and filed 31October 2017; and

   ·Affidavit of father's work supervisor and friend, Mr Y, sworn 28 October 2017 and filed 31 October 2017.

Expert Report

1. Unusually for an interim hearing, but becoming increasingly more common in the Sydney registry, the parties had the benefit of an expert report for the interim hearing.  As stated, the relevant expert is Mr M, a former senior consultant with the Court and now in private practice. Mr M’s report was released to the parties by an order of the Court made on 30 August 2017.[1]   

   [1] The Court will admit the expert report into evidence as Exhibit ‘A.’

2. The interviews and observations for the expert report took place on 3 July 2017. Mr M details the background of the dispute in paragraphs 1 to 3, his interviews with the mother in paragraphs 4 to 24, his interviews with the father in paragraphs 25 to 37, his observations of the child with the parties, together and separately, in paragraphs 38 to 44, his interviews with the father’s partner (Ms N) in paragraphs 45 to 50, his interviews with the paternal grandparents in paragraphs 51 to 57, and his interviews with the maternal grandparents in paragraphs 58 to 61.

3. Mr M provides his evaluation in paragraphs 62 to 73.  In summary, Mr M makes the following comments:

   ·It is agreed between the parties that due to the distance between the parties’ homes, the only viable option would be for the child to live primarily with one party;

   ·The parties’ dispute about who has been the child’s primary carer is no longer relevant as it is evident that the child has a secure attachment relationship with both parties;

   ·Additionally, the child has developed secure attachment relationships with both sets of grandparents, which is important in light of the fact that both parties are working;

   ·That each set of grandparents provides an emotional bridge for the child between the two families, and that the mother and the father’s current partner appear to have a civil and cooperative relationship;

   ·The father acknowledges behaving in a verbally abusive manner to the mother in the past, which could best be categorised as ‘separation engendered’, although noting that if such violence is ongoing, it would be categorised as a form of chronic, intractable, controlling violence and the Court would need to consider restricted contact between the father and the child and the mother;

   ·There appears to have been a serious incident of physical violence during separation, which is denied by the father;

   ·Although the father is of the view that the mother’s employment requires her to be absent for significant periods, the mother denies this is the case and claims that when she has been obliged to be away from home this has mostly occurred whilst the child is in the father’s care.  It is noted that the child’s strong attachment relationships with both sets of grandparents would buffer the effects of parental absence;

   ·Whilst the child may have close relationships with the paternal cousins, new peer relationships will inevitably develop naturally in the context of the school community;

   ·The father contends that the mother prioritises her social life over the child’s needs and exposes him to excessive drinking and drug taking, although it is noted that this issue was unable to be determined from a factual perspective except to note that the mother has provided some evidence of negative drug testing and no specific instances of risk to the child have been referred to;

   ·Both parents would be able to provide a caregiving context in which the child’s social, emotional, physical and educational needs would be substantially satisfied and he would not be at risk in either household.  If it were not for the distance between the parents’ homes it would have been recommended that the child live with each of his parents for substantial periods

   ·Perhaps a decisive issue is the comparative availability of each of the parents.

4. Mr M ultimately provides his recommendations in paragraphs 74 to 78.  Those recommendations were as follows.

   If the Court accepts that parental availability is probably the only significant issue that clearly distinguishes the parents’ respective claims with respect to X’s living arrangements:

   74. It is recommended that X live primarily with his mother and that he be enrolled in B Primary School for the purposes of his primary school education.

   75. It is further recommended that he spend time with his father on each alternative weekend from Friday after school until Sunday Evening; for the long weekends (ie including the Monday) of the Queens Birthday and Labour Day; and overnight on the night before ANZAC day so that he can attend the Dawn Service with his father. ( It is noted that this proposal would be in keeping with an important part of the father’s cultural heritage). It is also noted that, if it were not for the prohibitive travelling time between the father’s home and X’s proposed school, (B School), the writer would have recommended that the time that he spends with his father be extended to at least include Monday night.

   76. It is further recommended that X spend one half of each of the school holidays with each of his parents.

   77. It is further recommended that parental responsibility continue to be shared.

   78. It is further recommended that the parents attend upon a therapist with experience in working with conflicted parents.

Submissions

1. The parties and the ICL each provided the Court with written submissions contained in their respective case outline documents.  In addition each of the parties’ legal representatives presented oral submissions at the interim hearing on 16 November 2017. The transcript for that day will reflect, of course, those submissions given. 

2. I do not propose to summarise the submissions made to the Court at this point in my reasons but I will refer to them where relevant in the reasons yet to give.

Law and Discussion

1. All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act and deal with matters relevant to this dispute including where a child is to live and the time that a child spends with the other parent. Parenting orders can also deal with the allocation of parental responsibility. Section 60CA of the Act provides as follows:

   In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.

2. Section 60CA through section 60CC of the Act deals with how the Court determines the best interest of a child. It is sometimes referred to as the legislative pathway. Most relevant to these parenting proceedings that are presently before me are the primary considerations in section 60CC(2) and the additional considerations in section 60CC(3), where relevant, and I will consider those further shortly. Before doing so, however, I will make some general comments about the process of how Courts determine parenting disputes, the law relevant to parental responsibility and equal time and substantial time parenting, and how the Court approaches disputes about schools.

Interim Parenting Proceedings

1. In addition to the relevant statutory criteria the Court is guided by case law relevant to interim parenting disputes including the Full Court’s decision in Goode & Goode (2006) FLC 93-286. At this point I note the following observation of the Full Court at paragraph 81 of the Goode decision:

   In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between parents as to what constitutes the best interests of the child.

   This matter is such a case. 

2. More specifically it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the hearing is truncated, proceeds by way of submissions only, and the evidence being presented by the parties is still being assembled but it certainly has not been tested by cross-examination.  That all said the Full Court in Goode made it clear that the legislative pathway must still be followed. 

Parental responsibility, equal time, and substantial and significant time

1. I note that in this case despite their disagreement as to which parent X should primarily reside with, the parties are in apparent agreement that there should be an order for equal shared parental responsibility. If an order for equal shared parental responsibility is made by the Court, whether by consent or otherwise, section 65DAA is triggered. This section requires the Court to consider whether there should be an order that the child lives in an equal time arrangement or otherwise spends substantive significant time with the parent that the child does not primarily live with.

2. Section 65DAA states as follows:

   Equal time

   (1)  Subject tosubsection (6), 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.

   Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2)  Subject to subsection (6), 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;

   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.

   Note 1:  The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:  See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   (3)  For the purposes of subsection (2), a child 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.

Note:  Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Disputes about schools

1. There is no presumption which favours a child’s primary carer choosing the relevant school that the child attends.  In the case of Re G: Children’s Schooling (2000) 26 Fam LR 143, the Full Court said the following at page 162:

   …we approach the question of the wife’s application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living… Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.

2. The Full Court went on to state that it must approach the exercise with its discretion on the basis that it is a decision between the competing proposals of the parties determined by reference to the best interests principle. 

3. I will now move to the primary and additional considerations under section 60CC(2) and (3) of the Act.

Primary Considerations: Section 60CC(2)

1. Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents, etcetera.  The Full Court considered this provision and the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92. In summary what the Court is required to do is consider and weigh the available evidence to determine (assuming the Court is satisfied that it is in the child’s best interests) how and what orders can be framed in order to ensure that the child has a meaningful relationship with both of their parents, and by implication extended family.

2. That said the Court must also consider section 60CC(2)(b) of the Act – the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence, and I also note at this stage that pursuant to section 60CC(2A) of the Act I am required to give greater weight to the matters relevant to section 60CC(2)(b) as against section 60CC(2)(b).

3. While both parties argued that they would support a meaningful relationship between X and the other parent they also both acknowledged that their proposal will reduce the time that the child currently spends with that parent.

4. Much of the mother’s argument relevant to section 60CC(2)(b) focused on the family violence she alleges the father subjected to her around the time of their separation and following their separation. While the father denies that he has perpetrated family violence upon the mother his interactions following separation were clearly inappropriate. I note that at paragraph 67 of the expert report Mr M states the following:

   Mr Merritt acknowledges that he behaved in a verbally abusive manner towards Ms Hurst during the emotional turbulence of the separation process. Affidavit material indicates that this abuse included comments that were misogynistic, threatening and controlling. It appears that his behaviour in this regard was confined to the separation period. Ms Hurst acknowledges that the co-parenting relationship has improved since that time. In this instance it is suggested that, under acknowledged typologies of intimate relationship violence, Mr Merritt’s violence could best be categorised as ‘separation engendered’. If it is demonstrated that such violence is ongoing, however, it would appropriately be categorised under the most chronic, intractable form of controlling violence and the Court would need to consider parenting arrangements that reflect this type of violence – including restricted contact with both X and his mother.

1. Much of the father’s arguments were based on the potential loss of the child’s relationship with him should the mother’s proposal be favoured.  This is because his current work arrangements involve weekend work.  The father argues that his weekend work is longstanding and that any outcome that required the child to spend alternate weekends with him would simply mean that the child would not be able to enjoy any meaningful time with the father as he would not be available.  The father argues that the mother is available to care for the child on weekends and that he is not. 

2. Consequently, the father argues that the appropriate solution would be for the child to live with him during the school week where the father only works part of that time and the mother works fulltime and then live with the mother on each weekend when she is available.  The mother argues that the outcome proposed by the father would mean that X would not be able to pursue friendships and his extracurricular activities in the area of his residence because he would be living every weekend away from his primary residence. In paragraph 72 of the expert report Mr M provides the following analysis:

   In summary, the writer is of the view that each of the parents would be able to provide a caregiving context in which X’s social, emotional, physical and educational needs would be substantially satisfied and he would not be at risk in either household.

   If it were not for the distance between the parents’ homes the writer would have recommended that X live with each of his parents for substantial periods of time.

3. I now move to make some comments about the additional considerations.

Additional Considerations: Section 60CC(3)

1. In relation to section 60CC(3)(a), the views of the child, etcetera, such views would be difficult in this case as X is just five years of age and has not as yet commenced his formal education.  Nevertheless the Court has the benefit of observations of X with each of the parties as contained in the expert report of Mr M. 

2. In relation to section 60CC(3)(b), the nature of the relationship between the child and each of the child’s parents etcetera, we have not, uncommonly in these types of disputes, different stories being presented to the Court at this stage.  That evidence will require testing.  That said, I note the following comments from Mr M at paragraph 38 of the expert report when he observed X with his parents:

   When he was observed with both of his parents together X played contentedly by himself and calmly explored his surroundings. He was noted to not especially orient himself towards one parent or the other and gave each big smiles when either one of them delighted in his play. He clearly enjoyed the attention of each of his parents. X showed no signs that he is aware of tensions between his parents. It was noted that, in this context, his parents did not say much to each other but neither did they express themselves either overtly or non-verbally in a manner that would indicate to X that there was tension between them.

3. I also note that at paragraph 63 and 64 of the expert report Mr M opines as follows:

   Each parent claims to have been X’s primary carer. In the writer’s view, irrespective of the parents various claims in this regard, this issue is no longer relevant in that it is evident that X has developed a secure attachment relationship with each of his parents and neither parent appears to have significant deficits with respect to managing his daily needs and responding appropriately to him at an emotional level.

   X has developed secure attachment relationships with both sets of grandparents and it would be appear to be common ground that he feels comfortable in the care of both the paternal and maternal grandparents. This is an important consideration given that both parents are working and will require, to some degree, the support of their respective parents with respect to X’s care.

4. As to section 60CC(3)(c), the extent to which each parent is provided an opportunity to participate etcetera, it is clear that both parties have been significantly involved with the child since separation.

5. Under section 60CC(3)(ca), the extent to which each of the child’s parents has fulfilled their obligation to maintain the child etcetera, both parties make allegations against the other and those allegations will require testing.  There does not appear to be any child support assessment in this matter and no child support is being paid by one party to the other on a voluntary basis. 

6. As to section 60CC(3(d), the likely effect of any changes etcetera, and section 60CC(3)(e), the practical difficulty issues etcetera, both parties propose significant changes to be implemented. 

7. The father argues that the mother’s proposal “is akin to allowing an interim relocation in that it would greatly affect the child’s stability and should not occur in an interim hearing.”  With respect, this is not a relocation case.  The child lives in Sydney and his parents live in different parts of Sydney, albeit 55 kilometres apart.  This problem needs resolution simply because the child cannot simultaneously attend two different schools and neither party favours a mid-town option, or favours relocating to the same part of Sydney.  The father’s proposal simply reflects his particular circumstances which are largely dictated by his employment.  Even if the parties lived in the same suburb the father’s work commitments would prevent him from being available to care for the child on all weekends.  In other words, the practical difficulties would largely still exist save that it would be less likely that the father would propose changeovers occur at his place of employment. 

8. I now move to section 60CC(3(f), the capacity of each of the child’s parents etcetera, and again in this case the parties make criticisms of the other that will require testing.  While I accept the submissions of the father (and the ICL) that the tasteless messages he sent to the mother following separation were “separation engendered”, the father also caused some naked photographs of the child (with an apparent erection) to be sent to the mother in August and November 2016.  That is some 18 months after separation.  Those photographs are clearly inappropriate and demonstrate poor judgment by the father. The father’s accompanying comment that the mother was “shit bat crazy” and that he doesn’t “need parenting lessons” only amplifies his lack of insight.

9. In respect of section 60CC(3)(g), maturity, sex, lifestyle and background issues etcetera, there are no other specific matters here to assist the Court.  The mother is of Country Z heritage and the father comes from a primarily Country AA background. 

10. In respect to section 60CC(3)(h), if the child is an Aboriginal child or a Torres Strait Islander child etcetera, that is a question that is not clear at this stage.  It would appear that the father may have some Aboriginal heritage. 

11. In relation to section 60CC(3)(i), the attitude issues, I simply reiterate earlier comments made.

12. In respect of section 60CC(3)(j), family violence etcetera, I refer to previous comments. In respect of section 60CC(3)(k), family violence orders etcetera, I am not aware that there is any Apprehended Domestic Violence Order past or present relevant to the parties or the child in this case.

13. As to section 60CC(3)(l), whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings etcetera, that is not applicable at this stage because this is an interim decision only. 

14. As to section 60CC(3)(m), any other fact or circumstance, there are no other additional facts or circumstances that the Court thinks are relevant to the present dispute and have not already been referred to in the reasons given.

Conclusion

1. This is a very difficult interim decision for the Court to make. The burden falls upon the Court to determine which proposal is in the best interests of the child. It is unfortunate that X can no longer live with both parties as he presently does. That said, an interim decision is required and the Court acknowledges that the outcome is only going to upset and disappoint one of the parties. 

2. It is deeply disappointing that the parties were unable to budge from their respective positions and that neither party were willing to either relocate to a similar area or choose a school that might be more appropriate to enable the current circumstances to continue.  That said, the father would continue to find it difficult to spend time with X on weekends given his current employment.  That would, arguably, be the case even if the parties lived in closer proximity. 

3. As stated, a decision is now needed as the child commences his school education in the New Year. Consequently, having regard to the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and determines as follows. 

4. Firstly, I am satisfied and find that the presumption for equal shared parental responsibility is not rebutted and consequently the parties should have equal shared parental responsibility for X.  I note that this outcome was sought by both parties in any event and was also recommended by Mr M to continue. 

5. Secondly, I am satisfied and find that the child should primarily reside with the mother and as a consequence X should be enrolled and attend B Public School unless otherwise agreed and the parties should be restrained from removing the child from that school without the consent of the other party.

6. Thirdly, X should spend substantial and significant time with the father.  The mother’s proposal largely reflects the recommendations that Mr M has set out in paragraphs 75 and 76 of the expert report.  That said, I find the mother’s proposal for time to occur on alternate Wednesday afternoons problematic. In lieu, the Court finds that an additional overnight midweek, being Tuesday overnight Wednesday would be preferable, subject to the father’s ability to collect and return the child to the relevant school. The mother proposes an additional week to be spent in the long summer school holidays. I find that appropriate. The Court will make orders for the long summer school holidays commencing in 2018 onwards. Given that the 2017 summer holidays have commenced and the parties have presumably made arrangements, the Court will simply make orders for the child to spend time with each party as agreed.  I also find it appropriate that the child spend the one half of all school term holidays with the father and that the father be under an obligation to inform the mother in writing with at least seven days’ notice if he is unable to spend time with the child in accordance with the orders.

7. Fourthly, I find it appropriate that changeovers not occurring at school occur at the Suburb R Shopping Centre, which is approximately a halfway point between the parties’ residences.

8. Fifthly, in relation to the apparent non-contentious issues, I note that the parties had liberty to approach Chambers with an agreed minute of orders. That minute has not been forthcoming. That is disappointing.  

9. The matter will need to return to Court.  I propose to bring the matter back to Court next year to ascertain that the parties remain in dispute about parenting matters and if so the matter can be listed for final hearing at the earliest opportunity. Regrettably, given current resourcing of this Court it may be some time before a final hearing will take place.  That said, the father at present relies on a large number of witnesses. Consequently, should the matter proceed, the Court will have to consider whether the matter should remain in this Court or be transferred to the Family Court depending on the length of time that any final hearing may require. 

10. There will now be orders of the Court to reflect this decision.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Associate: 

Date:  22 December 2017