Judd and Cotton
[2016] FCCA 2306
•9 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JUDD & COTTON | [2016] FCCA 2306 |
| Catchwords: FAMILY LAW – Parenting – equal time or substantial and significant time – lack of communication between parties – requirement for prescriptive orders for holidays – resumption of term time – whether change of surname for 7 year old is in her best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Reynolds & Sherman [2015] FamCACF 128 Chapman & Palmer (1978) FLC 90-510 | |
| Applicant: | MS JUDD |
| Respondent: | MR COTTON |
| File Number: | MLC 10344 of 2012 |
| Judgment of: | Judge Williams |
| Hearing dates: | 18 – 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 9 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. O’Connell |
| Solicitors for the Applicant: | Berry Family Law |
| Counsel for the Respondent: | Ms R. Wheeler |
| Solicitors for the Respondent: | Glenister Steinfort & Co |
ORDERS
All previous parenting orders regarding the child X born (omitted) 2009 (“X”).
The parents retain equal shared parental responsibility for X.
X live with the mother.
X spend time and communicate with the father as follows:
During school terms
a)in a two week cycle:
In week 1:
i)from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Monday (or until 9.00am if a non-school day, public holiday or pupil free day);
In week 2:
ii)from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Friday (or until 9.00am if a non-school day, public holiday or pupil free day);
b)as otherwise agreed between the parents, in writing
During School Term Holidays
c)In 2016, for the second half of the term three school holidays, commencing at 5.00pm on the middle Saturday, and concluding at 5.00pm on the day before the resumption of school
d)in 2017 and all successive odd numbered years
i)the first half of the term two holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on the middle Saturday of the school holidays
ii)the whole of the term three school holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on day before the resumption of school, subject to paragraph 24 hereof.
e)in 2018 and all successive even numbered years
i)The whole of the term one school holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on day before the resumption of school, subject to paragraph 24 hereof.
ii)the second half of the term two holidays, commencing at 5.00pm on the middle Saturday and concluding at 5.00pm on the day before the resumption of school
During the long summer holidays
f)for one half of the long summer holiday periods, and unless otherwise agreed in writing, on a week about basis as follows:
i)in 2016/2017 and each alternate year thereafter, the father’s time is to commence at 3:30 PM or the conclusion of school on the Friday of the week following the last week of school and continue every second week thereafter, with change over on each Friday at 3:30 PM
ii)in 2017/2018 and each alternate year thereafter. The father’s time is to commence at 3:30 PM or the conclusion of school on the Friday of the last week of school and continue every second week thereafter, with change over on each Friday at 3:30 PM
iii)should X be in the father’s care during the week she is to recommence school, the father’s time shall conclude at 3:30 PM on the day before the commencement of school
Special occasions
g)on Father’s Day from 4 PM on the Saturday prior to Father’s Day until 7 PM on Father’s Day
h)on X’s and the father’s birthday as follows:
i)if a school day from 3:30 PM or conclusion of school until 7 PM
ii)if a nonschool day from 2 PM until 7 PM, or as otherwise agreed in writing
i)at Christmas, from 3 PM Christmas Day until 3 PM Boxing Day
j)in the event Easter does not fall within school term holidays (“non holiday Easter”), as follows:
i)on the first non holiday Easter from 3:30 PM Easter Saturday until 3:30 PM on Easter Monday, and each alternate non holiday Easter thereafter
ii)on the second non-holiday Easter from 3:30 PM on Easter Friday until 3:30 PM on Easter Sunday, and each alternate non holiday Easter thereafter
k)such further or other times as may be agreed in writing
Suspension of the father’s time
In the event X is otherwise in the care of the father, her time with the father be suspended and she spend time with the mother as follows:
(a)on Mother’s Day, from 4 PM on the Saturday prior to Mother’s Day until 7 PM on Mother’s Day
(b)on X’s and the mother’s birthday as follows:
(i)if a school day from 3:30 PM or conclusion of school until 7 PM
(ii)if a nonschool day from 2 PM until 7 PM, or as otherwise agreed in writing
(c)at Christmas, from 3 PM Christmas Eve until 3 PM Christmas Day
(d)in the event Easter does not fall within school term holidays or any period either party is travelling overseas with X (“non holiday Easter”), as follows:
(i)on the first non-holiday Easter from 3:30 PM on Easter Friday until 3:30 PM on Easter Sunday and each alternate non holiday Easter thereafter
(ii)on the second non holiday Easter from 3:30 PM Easter Saturday until 3:30 PM on Easter Monday and each alternate non holiday Easter thereafter
The fortnightly cycle referred to in paragraph 4 (a) hereof, recommence on the first Thursday of each Victorian school term, irrespective of when the child spends time with either parent during the school term or long summer holiday periods.
The conclusion and resumption of school term shall be determined in accordance with the Victorian Department of education, regardless of whether or not school attended by the child starts or finishes on those dates.
Each parent be at liberty to telephone X at all reasonable times when she is spending time with the other parent and each parent shall facilitate such calls up to 2 calls per week and in addition each parent shall facilitate any calls X requests to make to the other parent, during time she is in their care.
All nonschool change overs shall take place at (omitted) shopping centre, unless otherwise agreed in writing between the parties.
Unless otherwise agreed in writing, X shall complete her primary school at her current school, (omitted) primary school.
Each parent do all such acts and things and sign all documents as may be required to authorise any school which X attends to provide to the other parent copies of all reports, notices, information, newsletters, photographs, invitations for parent/teacher interviews and other like information, at the expense of the parent receiving same.
Each parent be at liberty to provide a copy of these orders to X school
Each parent keep the other informed of their current residential address and telephone contact number and 14 days prior to any proposed change, of the new details.
Each parent notify the other as soon as practicable of any serious illness or injury suffered by X, whilst in their respective care and forthwith authorise the other parent to obtain all relevant information from any treating medical practitioners.
Both parents are at liberty to attend all school activities and functions normally attended by parents.
Each parent be and is hereby restrained from enrolling X in any extra curricular activity during the other parent’s time, without first obtaining the other parent’s consent in writing for such activity.
Each parent be at liberty to enrol X in extra curricular activities during their respective time with X and forthwith upon such enrolment notify the other parent.
In the event either parent enrols X in an extra curricular activity, in accordance with paragraph 17 hereof, then both parents do all acts and things to ensure that X participates in any end of term/year, concerts or special events and the parents keep each other advised of such events and both parents be at liberty to attend.
Each parent make available to the other parent any medication prescribed for X, so that each parent is able to administer any such medication and the medication shall pass between the parties, so as to ensure that it is in the possession of the parent who has the care of X.
The father be and is hereby restrained from taking X to his place of employment.
Each parent shall advise the other, no less than 28 days prior to intended departure, if they intend to take X outside the State of Victoria and provide to the other parent an itinerary of proposed travel including accommodation and contact details.
In the event either party intends to travel with X outside the Commonwealth of Australia, the travelling parent shall notify the other parent in writing , at least 60 days prior to departure, the following:
(a)the country to which X will travel and who will accompany X
(b)the airline X will travel with
(c)the date of X’s departure and return to Australia
(d)accommodation particulars and contact telephone numbers
Upon compliance with paragraph 22 hereof, the party, who has X’s passport in his/her possession shall provide the passport to the travelling parent, no less than 14 days prior to departure and the passport shall be returned to the other parent within seven days of X’s return to Australia .
In the event either parent wishes to travel internationally with X during the term one or three school holidays, as provided herein, then such holiday period shall be extended so that X shall be permitted to depart three days prior to the conclusion of the school term and return three days subsequent to the commencement of the new school term and such time to commence from the 3.30pm and conclude at 9.00am.
The mother be permitted to take, the child to the (country omitted), departing on 10 October 2016 and returning on 27 October 2016 and for this purpose the child be in the mothers care from 10 AM on 9 October 2016, subject to the mother providing no less than 30 days prior to the departure date notice of the following:
(a)the airline X will travel with; and
(b)the accommodation and telephone contact numbers during the proposed holiday.
In the event either party travels internationally with X, then the nontravelling parent shall communicate with X via either Skype, FaceTime, Viber, WhatsApp or Facebook Messenger, or such other electronic means as may be agreed between the parties on two occasions per week, at times to be agreed between the parties.
For the purposes of X’s overseas trip in October 2016, the father be provided with make up time in accordance with either option one or option two hereof and the father notify the mother at least 30 days prior to X’s departure of his preferred option:
(a)Option 1
(i)from 3:30 PM Friday, 28 October 2016 to commencement of school on Tuesday, 1 November 2016; and
(ii)overnight on for September 2016 (Father’s Day) until the commencement of school on Monday, 5 September 2016;and
(iii)from 3:30 PM Friday 16 September until 10 AM Sunday, 18 September 2016.
(b)Option 2
(i)from 3:30 PM Friday, 11 November 2016 to commencement of school 14 November 2016; and
(ii)3:30 PM Friday 16 September until 10 AM on 18 September 2016; and
(iii)10 AM Saturday, 29 October 2000 9:44 AM Sunday, 30 October 2016
Each parent be and is hereby restrained by injunction from:
(a)discussing these proceedings with or in the presence or hearing of X or permitting any other person to do so, and
(b)denigrating the other parent or members of the other parent’s family in the presence or hearing of X, or permitting any other person to do so.
That pursuant to section 65DA (2) and Section 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Judd & Cotton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10344 of 2012
| MS JUDD |
Applicant
And
| MR COTTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the mother and the respondent is the father of the child X born (omitted) 2009 (“X”). X is now 7 years of age.
Background
The mother was born on (omitted) 1977 and the father was born on (omitted) 1973. They commenced cohabitation during 2004 and married on (omitted) 2006. In December 2011 the parties separated for a two week period and then reconciled. They finally separated during March 2012.
Prior to X’s birth, the mother worked as a part-time (occupation omitted) and ceased work just before the birth. The father continued in full-time employment. In mid-2010 the mother returned to work as a part-time (occupation omitted) and increased her work commitments until commencing full-time work in approximately July 2011. X commenced childcare for three days a week and was otherwise cared for by her maternal grandparents, for one day each week, the mother on her day off, Tuesday and by her father on the weekend. These were the care arrangements in place immediately prior to separation.
After separation, the mother and X moved in with the mother’s parents, Ms L and Mr S, in their home situated in (omitted). The husband remained in the former matrimonial home (omitted), pending finalisation of the parties’ respective property applications.
Between March 2012 and October 2012, X lived with her mother from either completion of the mother’s workday on Sunday or Monday morning, until commencement of childcare on Thursday mornings. She otherwise lived with the father.
On 13 November 2012, the mother filed an Initiating Application seeking parenting, property and spousal maintenance orders. On 24 January 2013 the father filed a response seeking parenting and property orders.
On 30 January 2013, final parenting orders were made by consent, which provided, in summary, for X to live with her father in a four night block, from Thursday to Monday morning in one week and overnight Thursday in the other week. The orders also provided for X to live with the father during school holiday periods and special occasions. Otherwise, X lived with her mother. The orders also provided for the father to be in substantial attendance during all holiday periods X lived with him.
On 22 June 2015 the mother filed an Initiating Application seeking parenting orders which included the reduction of the father’s alternate Thursday overnight time, so that X would live with her father for four nights a fortnight. She also sought orders clarifying holiday time and special occasions. Significantly, she also sought an order that the father be in substantial attendance during all periods of time that X is in his care, arrangements for overseas travel and for X’s surname to be changed to X–Cotton.
On 28 August 2015 the father filed a Response seeking that X live with each of her parents on a week about basis, clarification of special occasions and an extension of the holiday time X spends with him .
On the 31 August 2015 orders were made by consent clarifying school holiday arrangements, make up time for X’s overseas travel with the mother in November 2015 and clarification of resumption of term time. Otherwise, the orders made on 30 January 2013, remain in full force and effect.
The proposals of the parties
The mother’s proposal
The mother’s proposal is as follows:
1. That the parties retain equal shared parental responsibility for the child of the marriage X born (omitted) 2009 ("”the child"”).
2. That the child live with the father as follows:-
2.1 During the school terms on a fortnightly cycle;
2.1.1 In week 1, from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Monday (or until 9:00am if a non-school day, public holiday or pupil free day);
2.1.2 In week 2, from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Friday (or until 9:00am if a non-school day, public holiday or pupil free day);
2.2 For half of all school holidays at times to be agreed and in the absence of agreement:-
2.2.1 In odd numbered years, for the first half of the school holidays commencing after school on the day that the school term ends and concluding at 5.00pm on the middle Saturday of the school holidays;
2.2.2 In even numbered years, for the second half of the school holidays commencing at 5.00pm on the middle Saturday and concluding at 5.00pm on the day before the resumption of school.
2.3 For half of the long summer holiday periods on a week-about basis, as agreed and failing agreement:-
2.3.1 In 2017/2018 and each alternate year thereafter the father's time to commence after school (or 3:30pm if a non-school day or pupil free day) on the Friday of the last week of school and continue every second week thereafter with changeover on each Friday at 3:30pm;
2.3.2 In 2016/2017 and each alternate year thereafter the father's time to commence at 3.30pm on Friday of the week following the last week of school and continue every second week thereafter with changeover on each at 3.30pm;
2.3.3 Should the father be spending time with the child during the week that the child is to recommence school, the father's time shall conclude at 3:30pm on the day before the resumption of school.
2.4 On Father's Day from 4:00pm Saturday until 7:00pm Sunday;
2.5 On the child's birthday and the father's birthday from after school (or from 3:30pm if a non-school day) to 7:00pm;
2.6 At Christmas from 3:00pm Christmas Day until 3:00pm Boxing Day;
2.7 By Telephone each Tuesday between 7:00pm and 7:30pm;
2.8 Such further or other times as may be agreed from time to time.
3. That the fortnightly cycle referred to in paragraph 2.1.1 hereof restart on the first Thursday of each Victorian school term as determined by the Department of Education (Victoria) irrespective of when the child spends time with either parent during the school term or long summer holiday period.
4. That the parties will determine the conclusion and resumption of school in accordance with the Victorian school term as determined by the department of Education (Victoria) regardless of whether or not the school attended by the child starts or finishes on those dates.
5. That the child live with the mother at all other times.
6. That in the event that the child is otherwise in the care of the father, the child's time with the father be suspended and the child spend time with the mother as follows:-
6.1 On Mother's Day weekend from 4:00pm on Saturday until 7:00pm on Sunday;
6.2 On the child's birthday and the mother's birthday from after school (or from 3:30pm if a non-school day) until 7:00pm;
6.3 On Christmas Day from 3:00pm Christmas Eve until 3:00pm Christmas Day.
7. The parties be at liberty to telephone the child at all reasonable times when the child is spending time with the other during school holiday periods, and they shall facilitate such calls save that the calls be limited to two (2) calls per week and the parties shall facilitate any telephone calls the child requests be made to the other party.
8. That for the purposes of changeover:-
8.1 During school times the father collect the child from the child's school at the conclusion of school and shall return the child to her school at the commencement of school on Monday morning following his weekend with the child;
8.2 At all other times changeover shall occur at (omitted) Shopping Centre unless otherwise agreed.
9. That the father be in substantial attendance during all periods of time that the child is in his care and should he be unable to do so, he shall contact the mother at first instance to care for the child during the father's absence, and for the purpose of these Orders, this means that the child cannot be out of the father's care for longer than:
9.1 Five (5) consecutive hours per day on weekends; and
9.2 Three (3) consecutive hours per day during school holidays.
10. That when the child is spending time with the father, the father not take the child to his place of employment for a period of more than thirty minutes per day.
11. Each party keep the other informed of their residential address and contact phone number.
12. Each party notify the other as soon as possible of any serious illness or injury suffered by the child whilst in their respective care.
13. That the child remain at her current school, (omitted) Primary School until she finishes her primary school education unless the parties agree otherwise in writing.
14. That the parties will agree in writing as to the high school the child is to attend twelve (12) months before the child is to be enrolled in that school and if the parties are unable to agree:-
14.1 The mother shall provide to the father three (3) suggested schools; and
14.2 Within thirty (30) days of receipt of the mother's suggestions, the father shall nominate one (1) of those schools.
15. The parties provide a copy of these Orders to any school which the child may from time to time attend.
16. That each party do all such acts and things and sign all documents as may be required to authorise any school at which the child attends from time to time to provide copies directly to the other parent of all reports, notices, information, newsletters, photographs, invitations for parent/teacher interviews and other like information, at the expense of the parent receiving such.
17. That the father and mother both be permitted to attend all school activities normally attended by parents.
18. That each party give all consents and authorities necessary to enable the other party to obtain information concerning extra-curricular activities.
19. That each party make available to the other any medication prescribed for child to enable the other parent to administer such medication to the child, and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.
20. That each party be restrained from enrolling or committing the child to any activity during the other party's time without first obtaining the other party's consent in writing to such activity.
21 That each party inform the other party no less than twenty-eight (28) days prior to the intended departure date if they intend to take the child outside the State of Victoria during the period when the child is in that party's care.
22. That in the event that either party intends to travel with the child outside the Commonwealth of Australia, they shall no less than thirty (30) days prior to the departure date notify the other in writing of:-
22.1 The country/ies to which the child will travel and with whom the child will travel;
22.2 The airlines upon which the child will travel;
22.3 The date upon which the child will depart from and return to the Commonwealth of Australia; and
22.4 The address/es at which the child shall reside and a telephone number on which the other party can communicate with the child.
23. That provided the intended travel destination is a Hague Convention country, paragraph 23 has been complied with and the travelling parent has provided a copy of the return ticket to the other party five days prior to departure, the travelling party be permitted to travel overseas with the child.
24. That in the event either party travels with the child pursuant to paragraphs 23 and 24 during the time the child would otherwise be in the non-traveling party's care, the non-traveling party shall be entitled to make-up time and such make-up time is to be determined as follows:
24.1 No less than thirty (30) days prior to the departure date, the traveling parent is to provide two alternate proposals for make-up time with such time to be the same type of day and time equivalent to the time the non-traveling parent is missing; and
24.2 The non-travelling party shall, within fourteen days of receipt of the proposal for make-up time referred to in paragraph 25.1, nominate one of those proposals.
25. That the mother be permitted to take the child out of Australia to the (country omitted) departing on 10 October2016 and returning on 27 October 2016 and for this purpose the child be in the mother's care from 10.00am on 9 October 2016, subject to the mother providing no less than 30 days prior to the departure date notice of:-
25.1 The airlines upon which the child will travel;
25.2 The addresses at which the child shall reside and a telephone number on which the other party can communicate with the child.
26. That for the purposes of the mother's overseas trip referred to in paragraph 25, the father be provided with make-up time with the child for the time missed and for that purpose the father choose one of the two following options and notify the mother of his choice at least 30 days prior to the child's departure:-
26.1 Option 1: The child spend time with the father as follows:
26.1.1 From after school on Friday 28 October 2016 to before school on Tuesday, 1 November 2016;
26.1.2 Overnight on 4 September 2016 (being Father's Day) until before school on 5 September 2016; and
26.1.3 From after school on Friday 16 September 2016 until 10.00am on 18 September 2016;
26.2 Option 2:- The child spend time with the father as follows:
26.2.1 From after school on Friday, 11 November 2016 to before school on 14 November 2016;
26.2.2 From after school on Friday, 16 September 2016 until 10.00am on 10 September 2016; and
26.2.3 From 10.00am on Saturday, 29 October 2016 to 10.00am Sunday, 30 October 2016.
27. That each party be restrained by injunction from:-
27.1 Discussing these proceedings with or in the presence or hearing of the child;
27.2 Denigrating the other parent or members of that parent's family in the presence or hearing of the child.
28. That the parties do all acts and things and sign all necessary documents within fourteen (14) days from the date of these Orders to cause the Registrar of Births deaths and Marriages in the State of Victoria to record the child's full name as X.
29. That the parties forthwith do all things necessary to participate in counselling with a counselling service provider to assist them in respect of parenting and communication issues and for this purpose:
29.1 The mother shall within fourteen days provide to the father three suggested counselling services; and
29.2 The father shall, within seven days thereafter, nominate one of the suggested services referred to in paragraph 28.1 for the parties to attend.
30. That pursuant to Section 65L of the Act, the Director of Child Dispute Services shall appoint a family consultant to assist the parties in compliance with these parenting Orders including explaining the terms of the Orders and the obligations of each of the parties pursuant to these Orders.
31. The Father pay the costs of and incidental to this Application.
The documents relied upon by the mother are as follows:
a)Amended Initiating Application filed 4 July 2016;
b)Affidavit of mother sworn and filed 4 July 2016;
c)Affidavit of maternal grandfather Mr S sworn 15 June 2016 and filed on for 4 July 2016;
d)Affidavit of maternal grandmother Ms L sworn 13 June 2016 and filed on 4 July 2016; and
e)Affidavit of Mr V filed on 4 July 2016.
The mother gave evidence and was cross-examined. The paternal grandparents, Mr S and Ms L gave evidence and were cross examined.
The mother gave evidence in a forthright and candid manner. She made concessions and admissions when cross examined about her sometimes inappropriate actions and behaviour and her lack of insight. She impressed as a committed, competent and devoted parent to X.
The maternal grandfather presented as forthright and honest, although at times lacked some insight into his past actions. He was clearly supportive of his daughter and her parenting of X and impressed as devoted to X.
Similarly, the maternal grandmother was forthright and honest and again impressed as devoted to X. She appeared to have insight into the dispute between the parents and the respective families.
The father’s proposal
The father’s proposal is as follows:
1. 1. That the parties retain equal shared parental responsibility for the child of the marriage X born (omitted) 2009 (“"the child”)
2. As and from 29 August 2016 The child X born (omitted) 2009 live with the parties on a fortnightly cycle, as follows:
a. In week one with the Father from 9am or the commencement of school each Monday until 9am or the commencement of school the following Monday; and
b. In week two with the Mother from 9am or the commencement of school each Monday until 9am or the commencement of school the following Monday.
3. That in the event that the child is otherwise in the care of the father, the father's time with the child be suspended and the child spend time with the mother as follows:
a. From 3pm Christmas Eve until 3 pm Christmas Day;
b. From 3pm Easter Sunday until 3pm Easter Monday;
c. On Mother's Day weekend from 4pm Saturday until 9 am Monday or the commencement of the school;
d. On the Mother's Birthday from 3:30pm or the conclusion of School until 9am the next day or the commencement of School;
e. On the child's Birthday, from 3:30pm or the conclusion of school until 7pm;
f. Such further or other times as may be agreed from time to time.
4. That in the event that the child is otherwise in the care of the mother, the mother's time with the child be suspended and the child spend time with the father as follows:
a. From 3pm Christmas Day until 3pm Boxing Day;
b. From 3pm Easter Saturday until 3pm Easter Sunday;
c. On Father's Day weekend from 4pm Saturday until 9 am Monday or the commencement of school;
d. On the Father's Birthday from 3:30 pm or the conclusion of School until 9am the next day or the commencement School;
e. On the child's Birthday, from 3:30pm or the conclusion of school
f. Such further or other times as may be agreed from time to time.
5. That for the purposes of changeover:
a. During school terms, the parties shall collect the child from the child's school at the conclusion of school on a Monday and return the child to her school at the commencement of school on the following Monday;
b. At all other times at the upstairs Food Court at (omitted) Shopping Centre.
6. Each party shall be entitled to spend time with the child for a period of ten consecutive nights once in each twelve month period for the purposes of taking the child on an extended holiday providing:
a. A minimum of three months written notice is given by the party wishing to take the child on holiday, to the other party;
b. Consent to such holiday time shall not be unreasonably withheld by the other party;
c. The ten night period falls within the gazetted school holiday period for Victoria;
d. That the party wishing to take the child on holiday add the additional three (3) nights to the end of a week i n which the child i s spending time with that party: and
e. The child shall commence time with the party not taking the child on holiday at 9.00am on the eleventh day and shall remain with that party until 9.00am or the commencement of school on the following Monday whereupon the weekly cycle set out in paragraph 1 of these Orders shall resume.
7. The child shall complete remain at her current school Primary School at (omitted) Primary School until she finishes her primary school education unless the parties agree otherwise in writing
8. The parties shall agree in writing as to which secondary school the child is to attend fourteen months before the child is due to be enrolled at secondary school and if the parties are unable to reach agreement on the school the child is to attend:
a. The mother shall provide to the father three suggested Secondary Schools which are located within a 10 kilometre radius of (omitted) Primary School and which are traditional feeder schools for (omitted) Primary School;
b. Within 30 days of receipt of the mother's suggested schools, the father will nominate one such school and the mother and the father will enrol the child at that school.
9. The parties be at liberty to telephone the child at all reasonable times when the child is spending time with the other party and they shall facilitate such calls save that the calls are to be limited to two (2) calls per week and the parties shall facilitate any telephone calls the child requests be made to the other party.
10. Each party keep the other informed of their residential address and contact phone number.
11. Each party notify the other as soon as possible of any serious illness or injury suffered by the child whilst in their respective care.
12. The parties provide a copy of these Orders to any school which the child may from time to time attend.
13. That each party do all such acts and things and sign all documents as may be required to authorise any school at which the child attends from time to time to provide copies directly to the other parent of all reports. notices, information. newsletters, photographs. invitations for parent/teacher interviews and other like information, at the expense of the parent receiving such.
14. That the father and mother both be permitted to attend all school activities normally attended by parents.
15. That each party give all consents and authorities necessary to enable the other party to obtain information concerning extra-curricular activities.
16. That each party make available to the other any medication prescribed for the child to enable the other parent to administer such medication to the child, and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.
17. That each party be restrained from enrolling or committing the child to any activity during the other party's time without first obtaining the other party's consent in writing to such activity but each party will continue to take the child to the extracurricular activities she is enrolled in as at the date of these Orders for the remainder of 2016 and that each party continue to take the child to ther (sic) (hobbies omitted) classes in 2017 and thereafter.
18.That each party inform the other party no less than twenty-eight (28) days prior to the intended departure date if they intend to take the child outside the State of Victoria during the period when the child is in that party's care.
19. That in the event that either party intends to travel with the child outside the Commonwealth of Australia. they shall no less than thirty (30) days prior to the departure date notify the other in writing of:
19.1 The country/ies to which the child will travel and with whom the child will travel;
19.2 The airlines upon which the child will travel;
19.3 The date upon which the child will depart from and return to the Commonwealth of Australia; and
19.4 The address/es at which the child shall re3side and a telephone number on which the other party can communicate with the child.
20. That provided the intended travel destination is a Hague Convention country, paragraphs 6 and 1 8 have been complied with and the travelling parent has provided a copy of the return ticket to the other party five days prior to departure. the travelling party be permitted to travel overseas with the child.
21. That each party be restrained by injunction from:
21.1 Discussing these proceeds with or in the presence of hearing of the child; and
21.2 Denigrating the other parent or members of that parent's family in the presence or hearing of the child.
22. That the parties forthwith do all things necessary to participate in the counselling with a counselling service provider to assist them in respect of parenting and communication issues and for this purpose:
22.1 The mother shall within fourteen days provide to the father three suggested counselling services: and
22.2 The father shall, within seven days thereafter. nominate one of the suggested services referred to in paragraph 22.1 for the parties to attend.
23. That pursuant to Section 65L of the Act. the Director of Child Dispute Services shall appoint a family consultant to assist the parties incompliance with these parenting Orders including explaining the terms of the Orders and the obligations of each of the parties pursuant to these Orders.
24. That the Applicant pay to the Respondent the sum of $2.750. 00 being one half of the cost of the preparation of the Family Report by Mr V dated 9 December 2015.
The documents relied upon by the father are as follows:
a)Response filed 28 August 2015;
b)Affidavit of father sworn and filed 28 August 2015;
c)Notice of Risk filed 28 August 2015;
d)Amended Response filed 8 July 2016;
e)Affidavit of father sworn and filed 8 July 2016;
f)Affidavit of paternal grandfather Mr Cotton sworn 4 July 2016 and filed 5 July 2016;
g)Affidavit of paternal uncle Mr D sworn 1 July 2016 and filed 5 July 2016;
h)Affidavit of paternal aunt Ms L sworn 4 July 2016 and filed 5 July 2016; and
i)affidavit of Mr N sworn 8 July 2016 and filed 12 July 2016.
The father gave evidence and was cross examined. The paternal grandfather, paternal uncle, paternal aunt and Mr N gave evidence and were cross examined.
The father’s evidence was often very evasive, lacking in insight and he seemed unable to recall past events which were adverse to his interests. He frequently answered questions in a monosyllabic fashion and professed to not remember fairly recent events. He was unable to give straightforward answers to many questions. Despite the manner in which he gave his evidence, he clearly is a committed and devoted parent to X.
The paternal grandfather gave evidence in a similar fashion to the father. In fact there was a striking similarity of both witnesses, particularly when answering questions which the paternal grandfather perceived were adverse to the interests of his son. He also professed to be unable to remember recent events.
The paternal uncle gave evidence in a similar fashion to his brother and father. He too professed to be unable to remember recent events and could not give specific answers to many questions.
The paternal aunt was slightly more candid and forthright than her other family members, however, she too was unable to give specific answers to many questions, particularly about how often other family members cared for X.
The father and his family used similar words, including frequent use of the word flexible, when describing the father’s working arrangements and as often as possible stated that he was only required to work 30 hours per week. I was left with the impression that there had been significant prior discussion about the evidence which all family members would give in support of the father.
Despite the deficiencies in the manner in which the father and the paternal family gave evidence, all were clearly devoted to and welcoming of X and wholeheartedly embraced her as a cherished member of their extended family.
Mr N again seemed very focused on emphasising the flexibility of the father’s working arrangements and the requirement for him to work 30 hours per week. He was however slightly more candid than the paternal family.
Issues in dispute
The following issues are in dispute between the parties:
(1)Whether X should live primarily with her mother and the father’s time with her, remain in accordance with the existing arrangements;
(2)Whether X should live with each parent on a week about basis;
(3)Whether the father should be required to be in substantial attendance during all time X lives with him;
(4)Whether the father should be restrained from taking X to his (business omitted) and or his (business omitted);
(5)Clarification of the commencement and end of holiday periods;
(6)Overseas travel by X in the care of both parents and applicable make up time;
(7)The father’s preference for X to spend time with him each Easter and each September, to enable her to participate in the paternal family holiday;
(8)Notification to the other parent of X’s extra-curricular activities;
(9)X’s participation in extracurricular activity concerts and functions; and
(10)Whether X’s surname should be changed from Cotton to either Judd-Cotton or Cotton-Judd.
The Applicable Law
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Fortunately for X, both parents agree that she has a meaningful relationship with each of them.
Mr V, in the family report,[1] interviewed X independently. It is apparent from the report of that interview that X is:
“confident outgoing and has a strong sense of belonging to her family. Her parents are clearly equally seen as the source of her primary dependency needs being met and even though she engages with her parents differently, she engages with them equally positively. She conveyed a sense of absolute trust, security and dependence upon her parents.[2]
[1] Family report of Mr V dated 9 December 2015.
[2] Paragraph 28 of the family report.
The assessment of X’s relationship with each parent was further confirmed by the observations of the conjoint meetings, which are referred to in the family report.[3]
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[3] Paragraph 30 of the family report observation of X and her father, and paragraph 31 of the family report, observation of X mother stop.
This is an exceedingly rare case in this court as there are no protective allegations made by either parent.
Neither the Notice of Risk filed by the mother on 22 June 2015, nor the Notice of Risk filed by the father on 28 August 2015, assert that there are any allegations relating to child abuse or family violence, or other risk.
The additional considerations are set out in s.60CC (3) of the act. I will now consider the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X is seven years old and according to Mr V:
“is unaware of the background issues pertaining to her parent’s conflict and was a really unsure about the reason for our meeting” [4]
[4] Paragraph 25of the family report.
Mr V states:
“X spoke unequivocally positively about her parents, about living in two homes, and she told me there was nothing about the arrangements that she didn’t like. She described it as exciting and exhilarating spending time with both parents, that it was “exciting like it surprised to see who’s picking up after school.” And again, she reiterated that there was nothing about the two house arrangement that she didn’t enjoy”[5]
[5] Paragraph 27of the family report.
It is apparent from the family report that, quite appropriately, Mr V did not explicitly seek X’s views about her living arrangements. It is however abundantly clear that she is happy and enjoying the current arrangement and does not appear to express anything negative about her family circumstances.
She did not express any preference to either increase or decrease the current time with each parent.
Neither counsel sought to cross-examine Mr V or either parent about this issue and no submissions were made in this regard.
In terms of X’s views, the only conclusion I am able to make is that she is entirely happy with the existing arrangements.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As referred to at paragraphs 33 – 35 and 40 hereof, X has an excellent and unequivocally positive[6] relationship with both parents.
[6] Paragraph 30 of the family report.
At paragraphs 30 of the family report, Mr V details his observations of the interaction between X and her father. He states as follows:
“X greeted her father warmly and enthusiastically. She was physically affectionate, playful, talkative, she settled easily and comfortably with him. My observation of them together conveyed an overwhelming sense of warmth, comfort, security, certainty and confidence. X was settled and connected to her father, and together they played easily and cooperatively.”
At paragraph 31 of the family report, Mr V details his observations of the interaction between X and her mother. He states as follows:
“In every regard. X’s interaction with her mother was excellent. They maintained a very high level of dialogue throughout, they joined easily and effortlessly, and X was vibrant in the company of her mother. It was easy for X, and Ms L to simply sit and share activities, with the clear impression being that this was a very familiar exercise and activity for both of them. In many ways, Ms L engaged with X in a seamless manner and together they seem to have a special and intimate connection that immediately shone through.”
X and her mother live in the same home as her maternal grandparents and she obviously enjoys an excellent relationship with them.
X is a cherished and welcome member of her extended paternal family.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Participation in making decisions about major long-term issues in relation to the children
The orders of 30 January 2013 include an order that the parents have equal shared parental responsibility for X. Both parents, in this proceeding, seek an order for equal shared parental responsibility. This is one of the few issues about which the parents have been able to reach agreement.
There was no evidence that either parent had failed to participate in decision-making, spend time with X or communicate with her. Both parents seem to have participated in making decisions about long-term issues in relation to X.
There was also no evidence about any dispute involving X’s religious and cultural upbringing, her health or education.
X currently attends a local primary school and there was no evidence from either parent that this was not appropriate or that she should change school. In fact both parents sought orders that X continue to attend her primary school.
The only major long-term issue in dispute is X’s name. This is referred to at paragraphs 198 -226 hereof.
Opportunity to spend time with and communicate with the children
There were no allegations that either parent had failed to spend time with or communicate with X. Conversely, the mother’s allegations were that the father had availed himself of extra time with X arising from his interpretation of the existing orders.
It is self-evident that each parent wishes to spend as much time as possible with their daughter.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The evidence of the mother is that the father is currently approximately $7000 in arrears of child-support.[7]
[7] Paragraphs 97 and 98 of the mothers affidavit sworn for July 2016 and exhibit M3.
The father is currently assessed to pay child support at a monthly rate of $677.17. This is for the assessment period 1 August 2015 to 31 October 2016.[8]
[8] Exhibit M3 child-support assessment issued 15 July 2015.
The father was cross examined about the outstanding liability. It was put to him that he had not paid child support since October/ November 2015. His response was that he was unable to recall the exact date but he was aware that there were outstanding arrears. He was cross examined about the fact that he employed a cleaner and he admitted that he paid approximately $100 per week to a cleaner because he considered he was better off financially by attending work and earning more money than staying at home and cleaning his home. He did not seem to appreciate the impact of his actions.
He agreed with the proposition that the mother was a low income earner and that she would depend on receiving child support to provide for X. He also agreed that lack of child support would have a big impact on the mother and her capacity to support X.
His reason for not paying child support was that “all his money had gone on this case”. By that I understood his evidence to be that he had paid his legal fees in preference to paying child support. However, when further questioned it transpired that the father estimated he had spent approximately $50,000 on legal fees and that his brother had paid approximately 80% of the legal fees on his behalf. His estimate was that he had paid approximately 20% of those legal fees, which, according to his evidence, would amount to approximately $10,000.
I do not accept that the father prioritising the payment of $10,000 of legal fees, in preference to his outstanding child-support obligations, is appropriate conduct.
Furthermore, his evidence was that he had spoken to the child support agency last Friday, being a few days prior to the date on which he gave evidence and he either had or would be making arrangements for his brother to pay his outstanding child-support obligations. When questioned why he had not sought to discharge the child-support debt with the assistance of his brother earlier than during the course of the proceedings, his response was that he was unable to provide an answer because of advice from his lawyer.
The manner in which the father gave his evidence did not impress me as if he had any genuine remorse or regret at not having paid the outstanding child-support liability. Rather, he seemed to be focused on the potential impact on these proceedings. His demeanour and evidence was indicative of his general dislike and acrimony towards the mother and the conflictual nature of post separation parental relationship.
I find that the father has not fulfilled his obligations to maintain X.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother and X live with the maternal grandparents and have done so since separation. Since January 2013 X has enjoyed the stability and routine of the arrangements which were agreed to by her parents.
The father’s case is that week about arrangement would lead to greater stability and continuity of care. I do not accept that proposition. X has had continuity of care the past 3 ½ years. She has lived primarily in her mother’s household and notwithstanding the appalling parental relationship she has an excellent relationship with her father. There is no evidence to suggest that X’s relationship with her father would be adversely impacted or indeed improved, if the existing arrangements were to continue. In fact the unequivocal evidence of Mr V is that the existing arrangements are excellent for X.
Fortunately for X, the existing arrangements have also ensured that she has an excellent relationship with her maternal grandparents, with whom she has primarily lived for the last three a half years and her paternal grandparents and family whom she sees on a regular basis.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents live in close geographical proximity to each other. There are no practical difficulties to prevent X spending time with each of her parents.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Upon hearing the evidence of both parents, I am satisfied that both have the capacity to provide for the emotional and intellectual needs of X.
However, I have concerns that if the dysfunctional and conflictual relationship continues between her parents, this will have an adverse effect on X in the future, particularly as she becomes more aware of their mutual acrimony.
Section 60 CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Any such relevant factors have been addressed in this judgment.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Apart from the highly conflictual parental relationship between them, both parents are generally responsible and competent parents save for the father’s attitude to taking X to his work premises. These concerns are referred to at paragraphs 150-167 hereof.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This is not a relevant consideration.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This is not a relevant consideration.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the vast majority of parenting cases it is preferable that orders are made to minimise future proceedings.
Since final orders were made by consent on 30 January 2013, the parents had been in continual dispute about the interpretation of those orders.
In order to minimise the prospect of future proceedings, it will be necessary to ensure orders are detailed and prescriptive. It is not in anybody’s best interests, least of all X’s for the parents to continue to be embroiled in disputes about the interpretation of orders.
Subsequent to the first parenting orders made 30 January 2013 there has been significant conflict and dispute in particular about the following issues:
a)The commencement and conclusion of school holidays;
b)Overseas travel by X and the father’s make up time;
c)The father’s preference for X to spend time with him each Easter and each September, to enable her to participate in the paternal family holiday;
d)Notification to the other parent of X’s extra-curricular activities;
e)X’s participation in extracurricular activity concerts and functions.
The commencement and conclusion of school holidays.
This long-running dispute resulted in the unfortunate events surrounding X’s first day of school.
Orders were made on 31 August 2015, which attempted to address this contentious issue.
I intend to make orders defining the commencement and conclusion date of all school holidays, and to make provision for the resumption of the term time cycle. Hopefully this will give the parties clarity and certainty and reduce the potential for further conflict.
Overseas travel by X and the father’s make up time.
The mother wishes to take X overseas in either the term one or term three school holidays each year. The father does not oppose overseas travel, however he is insistent that he have make up time with X.
Again, make up time has been the source of much friction between the parties. I intend to make orders for the mother to travel during the term one holidays in 2017 and each alternate year thereafter, and to travel during the term three school holidays in 2018 and each alternate year thereafter.
I intend to make provision for three additional days prior to the commencement of the relevant term holidays and three additional days immediately subsequent to the conclusion of the school holidays, to enable adequate time to travel to (country omitted) or the (country omitted), as has been the mother’s preference to date.
In order to provide make up time for the father, I intend to make provision for X to spend time with him for the whole of the term three holidays in 2017 and each alternate year thereafter and the whole of the term one holidays in 2018 and each alternate year thereafter.
Additionally, the orders will provide that, in the event the father wishes to travel overseas with X during his extended term holiday period, he will advise the mother at least 60 days in advance and he too will be entitled to travel with X for an additional three days prior to the holidays and three days subsequent to the conclusion of the holidays.
These arrangements will not require provision for make-up time for either parent.
The only outstanding issue in relation to make up time is the father’s make up time arising from the X’s overseas travel in October 2016. I note that the father has agreed to X travelling overseas with her mother during this time. That is a very sensible and entirely appropriate concession.
However, the father seems to be seeking a block period of 17 days with X, as make up time for her overseas travel. There is no suggestion that X was ever due to spend such a period of time with the father in October 2016, and I do not intend to provide make up time in an extended block .
I propose to allow the father to choose which of the make-up time offered by the mother is more convenient to him and I will specify the times in the orders.
I will also make orders providing for X to communicate with the non-travelling parent during the extended holiday periods and such communication will be via telephone, FaceTime, Viber, Skype, WhatsApp, Facebook Messenger or such other electronic communication agreed by the parents.
The father’s preference for X to spend time with him each Easter and each September, to enable her to participate in the paternal family holiday
The father wishes to have X spend Easter Sunday with his family each year and for X to enjoy an extended family holiday in (omitted) in the term three holidays each year.
It is not possible to accommodate the father’s proposal for X to attend his family functions in each of the term one and three school holidays and make provision for X to travel overseas with her mother, during either of the first or third term holidays.
I do not intend to make specific orders for either parent to spend Easter with X, except for any time that Easter falls outside the term one school holidays and the mother’s overseas travel in that year is to take place in the term three school holidays. Should this occur, then it is appropriate for each parent to spend time with X during Easter.
Notification to the other parent of X’s extra-curricular activities
Unsurprisingly, there has been a distinct lack of communication between the parents about the extracurricular activities X enjoys. There is no reason why either parent should not be informed about all extracurricular activities X attends, irrespective of whether they take place during the time she spends with them, or with the other parent.
I intend to make orders providing for notification to the other parent of any extra curricular activities X is enrolled in, during the time she spends with the parent who has organised the activity.
The orders will not provide that X be obligated to attend an extra curricular activity arranged by one parent during their time when she is in the care of the other parent. However, it would obviously be in X’s best interests if the parents were able to reach agreement about continuity of attendance at extra-curricular activities.
X’s participation in extracurricular activity concerts and functions
This issue arose due to the mother arranging for X to spend the weekend, in (omitted), rather than attending an end of year (hobby omitted) concert which had been arranged by the father.
The mother did not give a satisfactory explanation as to why X was unable to participate in the end of year event. Her evidence was that she asked, X and X’s preference was to visit her aunt in (omitted) rather than attend the concert. I do not accept this evidence.
I intend to make orders providing that X will attend all end of term/year concerts and/or functions for all her extra-curricular activities.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Any other relevant factors have been referred to in this judgment.
Equal shared parental responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
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 time 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) … 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 time 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.
(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.
Parental Responsibility
The mother seeks an order that the parties retain equal shared parental responsibility for X.[9]
[9] Paragraph 1 of the final orders sought in the Amended Initiating Application filed 4 July 2016
The father also seeks an order that the parties retain equal shared parental responsibility for X.[10]
[10] Paragraph 1 of the amended final orders sought in the Response filed 8 July 2016
I am also of the view that the statutory presumption of equal shared parental responsibility should apply in this case. There is no evidence to rebut the presumption and indeed neither party sought to do so. I accordingly intend to make an order that the parties retain equal shared parental responsibility for their daughter.
Statutory Pathway
Having determined that it is in the best interests of the child that there be an order for equal shared parental responsibility, I am now required to address the statutory pathway set out in s.65DAA(1)-(5).
Firstly, I will address X living equal time with both parents.
The father in his Application seeks orders that X live equal time with both parents. The configuration of equal time proposed by the father is that X live with each parent on a week about basis with change over to take place at 9.00am each Monday commencing as from 29 August 2016.[11]
[11] paragraph 2 of the amended final orders sought in the Response filed 8 July 2016.
The mother opposes an equal time regime and seeks that X live with her father during school terms on a fortnightly cycle as follows:
a)in week one, from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Monday (or until 9.00am if a non-school day, public holiday or pupil free day); and
b)in week two (from the conclusion of school on Thursday) or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Friday (or until 9.00am if a non-school day, public holiday or pupil free day).
The factors advanced by the father in support of his Application for shared care may be summarised as follows:
a)simplification of the existing arrangements, which would minimise dispute between the parents;
b)clear routine, stability and continuity of care; and
c)his capacity to organise himself and his work in order to accommodate X.
The factors advanced by the mother in opposition to an equal time arrangement may be summarised as follows:
a)she perceives herself as X’s primary carer and seeks that this continue;
b)the inability to communicate and resolve potential differences in implementing an equal time arrangement;
c)the father’s inability to care for X without significant assistance from his family members, which results in X being handed around between paternal family members;
d)the father prioritises his work commitments over his care of X;
e)any change to the existing arrangements would be likely to increase disagreements between the parents about matters relating to primary care .
Mr V was of the view that X is :
“excelling in every regard, that there is nothing about the current plan that is working to her detriment, and quite the contrary, X’s presentation suggests that she enjoys the time and opportunity to spend time with both of her parents and that she benefits from the contact with not only them but, their extended family”[12]
[12] paragraph 35 of the family report.
After cross examination by both counsel, Mr V’s oral evidence was that X would do well, if the existing arrangements continued, and if her time with the father was increased to either six or seven nights a fortnight. Despite the best endeavours of both counsel he would not commit to a recommendation, which preferred either of these three options.
Mr V did not, of course, have the benefit of hearing the evidence of the various witnesses during the course of the trial, and neither counsel put to him any substantial additional matters which arose from evidence during the prior two days of the hearing.
The issues which are relevant to and impact upon X spending equal time with each parent are as follows:
a)parental communication;
b)conflict arising from the parents inability to interpret orders;
c)The Father’s capacity to care for the child and his substantial attendance during time X is with him;
d)The restraint on the father taking X to his place of employment.
I will address those issues.
Parental Communication
It was apparent from the evidence of both parents that there are significant communication problems between them. In fact, it is accurate to say that there is almost negligible communication between the mother and the father.
Both parents were highly critical of and blamed the other for the lack of communication.
The father asserted that the mother did not advise him of X’s activities such as swimming and yoga and did not provide him with information about X and her school and extra curricular activities. He perceived that she demonstrated a sense of complete disregard of his involvement in X’s life. He was also critical about the mother’s inability to greet him at change overs and her overt discourtesy towards him by turning her back on him in X’s presence. Under cross examination, the mother conceded that she had turned her back on the father.
The mother asserts that there is no communication or relationship between herself and the father. As stated by Mr V, the relationship is characterised by any ambiguity creating problems and minor problems escalating to become more substantial ones.[13] She also perceives that the father makes unilateral decisions and makes changes to arrangements without consulting her irrespective of the consequences to X and herself. This is exemplified by the hotly contested dispute surrounding X’s first day of school and the interpretation of the orders. The mother’s position has been that she will not communicate directly with the father and that he should communicate with her lawyers.
[13] Paragraph 22 of the family report.
Unsurprisingly, both parents accuse the other of bullying and intimidating behaviour. The mother alleges that the father has been unable to communicate with her pleasantly and as a result of that she has chosen to have correspondence directed to her lawyers.[14] The father asserts that the correspondence forwarded by the mother’s lawyer has been aggressive and bullying and he takes particular objection to the fact that the correspondence makes reference to contravention of the orders.[15]
[14] Paragraph 34 of the mother’s Affidavit sworn for July 2016.
[15] Father’s evidence under cross-examination by the mother's counsel.
The parties did attempt to mediate on two occasions, however each was unsuccessful. The father also attended and completed a post separation parenting course in February 2014.[16] This has not assisted with communication.
[16] Annexure 4 to the father's Affidavit sworn 8 July 2016.
The mother’s evidence was that the father had agreed to implement a communication book. He subsequently reneged on this agreement. His evidence was that his rationale for doing so was to avoid X being stigmatised by her friends in the event they discovered a communication book in her bag at school. I do not accept his explanation as a valid reason to reject a communication book.
From my perspective, the fact that the father would not agree to a communication book does not augur well for future improvement in communication. Having observed each of the parents give evidence and in particular their demeanour and the manner in which they spoke about the other parent, I am entirely pessimistic about the future communication prospects.
Both parents gave evidence that they were hopeful that counselling would improve the appalling lack of communication which has characterised their post separation parental relationship. The father stated on a number of occasions that the parties should put past grievances behind them and “focus on the business of parenting”. Whilst this is an admirable aspiration, I do not consider that counselling will be the panacea to the parental communication problems.
Whilst both parents professed a desire to improve their communication in the future, post separation neither had taken any steps to do so, such as participating in counselling or family therapy. If either parent had seriously thought that counselling would resolve the lack of communication, it would be reasonable to assume that sensible efforts to obtain counselling would have been made during the period of 4 ½ years since separation.
Mr V was cross examined about the benefit of the parties attending counselling, in order to address their communication problems and he was also of the view that it would do very little to improve future communication between the parents.
Conflict arising from the parent’s inability to interpret orders
Both parents were dogmatic about their interpretation of the existing orders, which has led to a high degree of conflict, in particular about holiday arrangements. Both accused the other of interpreting the orders to their respective advantage. Under cross examination both of them denied doing so.
The orders of 13 January 2013 have not been sufficiently prescriptive to enable the parents to agree on the time X spends with each parent during school holidays. The orders made on the 31 August 2015 were an attempt to clarify the orders of 13 January 2013. The conflict arising from the interpretation of the orders has been to X’s immense detriment.
The most significant dispute was around the conclusion of the school holidays prior to X’s first day of school in 2015.
The mother’s evidence was that the father failed to return X to her at the conclusion of the long summer holidays, so that she could attend her first day at school, leaving from the mother’s home. Upon the mother becoming aware that the father did not intend to return X to her, prior to commencement of school she instructed her lawyers to forward a letter via email to the father.[17] The father did not return X as requested and took X to school for her first day. The mother’s evidence was that she was excluded from participating in X’s first day of school, albeit she did attend school on that day.
[17] annexure 1 to the affidavit of the mother 4 July 2016.
The father was cross examined about this incident and admitted that he did not respond to the letter from the mother’s solicitors which was emailed to him on 28 January 2015. His evidence was that he considered that the first day of term was the same day as the last day of the holidays and that he was acting in accordance with the orders when he kept X overnight and took her to school. When asked whether he had obtained legal advice about the conclusion of the holidays and commencement of school, his response was that he couldn’t remember. I do not accept that evidence of the father. There has been much correspondence and affidavit material about this issue that to simply be unable to recall is implausible. The father’s evidence on this issue is a blatant example of his selective memory of events which were clearly adverse to his case.
I do not accept that it is plausible to consider the last day of the school holidays and the first day of the school term, are the same day.
In relation to this issue, both parents and in particular the father, impressed me as being non-compromising and unable to see anyone else’s point of view, except their own. Most regrettably, neither parent seems to have any insight into the effect on X of their behaviour.
I intend to make orders defining the school holiday periods to avoid any further conflict in this regard, However, I am not optimistic that this will resolve all future disputes about this issue and no doubt the parents, if minded to do so, will find another issue to dispute.
Father’s capacity to care for the child and his substantial attendance during time X is with him
The orders of the 30 January 2013 provide that the father be in substantial attendance during all periods of time that X is in his care during school holidays.[18]
[18] paragraph 8 of the orders made by consent on 30 January 2013.
The mother seeks an order that the father being in substantial attendance during all periods X is in his care and should he be unable to do so, he should return X to her mother’s care.[19] She is prescriptive of her understanding of substantial attendance.
[19] paragraph 9 of the final orders sought by the mother in her Amended Initiating Application filed 4 July 2016.
The mother’s evidence as to the necessity of such an order is that X is frequently left in the care of other members of the paternal family during time she lives with her father. Additionally, due to disputes about the interpretation of “substantial attendance”, the mother seeks clarification of “substantial attendance”. She proposes that if the father is unable to care for X for more than five consecutive hours per day on weekends and more than three consecutive hours per day during school holidays, X should be returned to the mothers care.
The mother was cross examined about this issue and in particular about the examples provided by her in her trial affidavit.[20] The mother conceded that the examples provided in paragraphs 68 and 102 were largely historical. The examples referred to in paragraph 71 arose from the father’s time with X during the summer 2016 school holidays and the examples provided in paragraph 72 arose from the April 2016 school holidays.
[20] Paragraphs 68 ,71,72 and 102 of the mother’s affidavit sworn 4 July 2016.
The father’s evidence is that X has an excellent relationship with her large extended paternal family and that she does not really spend significant periods of time with her family members without her father being present. In particular X enjoys spending time with her paternal grandparents, paternal aunt and cousins. X spends a day each school holidays with her paternal grandparents, who take her and her cousins to a movie and lunch. The father and his sister, Ms L, regularly assist each other with care of their children during the school holidays. The evidence of the father and his sister was consistent and to the effect that on one day of each term holiday period, the father would care for X and her cousins at his sister’s home and in turn, his sister Ms L would care for X and her own children at her home for a couple of hours on another day.
The paternal family presented as loving X and welcoming her as a cherished member of their extended family. In particular they were keen to ensure that she could celebrate Easter with them and the extended family holiday in (omitted), which usually takes place in the September school holidays.
However, I did have concerns about the evidence of the paternal family members. The paternal grandfather and the paternal aunt were evasive about the extent to which X is cared by each of them when the father is at work. There was simply no reason not to be candid and forthright about the times they care for X when she is in her father’s care.
The evidence of the father and the paternal grandfather was strikingly similar, non-responsive and generally evasive. Both professed to be unable to remember occasions when X had been cared for by her paternal grandparents and in particular her paternal grandmother. I do not accept the evidence of either witness about this issue. I also note that paternal grandmother did not swear an affidavit and did not give evidence on behalf of the father. The paternal aunt was slightly less evasive than her brother and father.
Despite my comments about the evidence of the father, his father and sister, I have no concerns about the diligence and capability of the paternal family members to care for X during times the father is unable to do so. I do not intend to impose any restraint on the paternal family caring for X whilst she is in her father’s care. Such time is beneficial to X and I accept the evidence that she greatly enjoys time with the extended paternal family. This was conceded by the mother, whilst being cross examined.
To impose restrictions as sought by the mother in the absence of the father’s candid compliance would be impossible to enforce.
Restraint on the father taking X to his place of employment
The mother is seeking to restrain the father from taking X to his place of employment for periods greater than 30 minutes when she is in her father’s care.[21] The father opposes any such restraint and his evidence is that X enjoys visiting his places of employment.
[21] Order 10 in the mother’s Amended Initiating Application.
The father currently has two places of employment. Firstly, the premises known as the (employer omitted) and secondly, the premises known as the (employer omitted).
Prior to April 2015 the father was employed by (employer omitted), a company owned by his brother, Mr D. In April 2015, (employer omitted) was sold to the father and two other business partners who incorporated a company, (business omitted) (“(omitted)”), to purchase (employer omitted). The father is the general manager of (business omitted) and his evidence is that he is required to work 30 hours per week, although he can arrange those hours to suit himself.[22]
[22] Paragraphs 32 of the fathers affidavit sworn 8 July 2016.
At the same time, the father incorporated a company known as (business omitted) (“(omitted)”).
Both businesses operate from factories in (omitted) a short distance from each other. The father refers to (business omitted) as the “(omitted)” and (business omitted) as “(omitted)”.
(business omitted) is a (omitted) business and employs somewhere between five and 10 employees. Both the father and his brother Mr D gave evidence about the activities of (business omitted). There are a number of (omitted) located at the (business omitted) premises. There is also a forklift and a loading bay with trucks arriving and departing. Mr D was far more frank and forthcoming than the father about the description of the activities at the premises and I was left with the impression that it was a busy (business omitted). It is certainly no place for a child.
The father went to great lengths to attempt to demonstrate that the upstairs office was a suitably equipped for X and included a television and work/play desk equipped for her. Mr D’s evidence was that there were doors between the upstairs office and the (business omitted) floor, however there was no lock between the office and the (business omitted) floor.
The father’s evidence was that X had attended the (business omitted) three times in 2016 and that on each occasion he had been able to supervise. Mr E’s evidence was that he had seen X either at or outside the (business omitted) premises in her school uniform on a number of occasions. The father said that if he were required to attend to something on the (business omitted) floor, he would arrange for the (business omitted) storeman, Mr M, to look after X. The tenor of his evidence was that there was absolutely nothing wrong with taking X to the (business omitted) and placing her in the upstairs office whilst he attended to work commitments. I find this attitude and lack of awareness of the potential dangers to X, quite remarkable.
The father’s counsel tendered a series of photographs of X at the (business omitted) and some photographs of the (business omitted) itself. Exhibit F3 was a photograph of what appeared to be a red iron shield covered by a cyclone wire fence behind which, I was informed, welding took place at the (business omitted). I presumed the intention of this photograph was to demonstrate that X would not be exposed to welding during her time at the (business omitted) . Exhibit F4 was a series of photographs of the upstairs office at the (business omitted) which showed a television set on one wall and a pink coloured desk with some art supplies set up against another wall. That wall also had a number of artworks, which I presumed had been drawn by X, affixed to the wall. I am of the view that the office is not at all child friendly and I do not accept that it is an appropriate place for X. Furthermore, if the husband’s work commitments are as flexible as he maintained, there should be no necessity whatsoever for X to visit the premises.
The father’s evidence about the (business omitted) was equally concerning. Sometime after May 2015 the father set up a workshop for X at the (business omitted) premises. His evidence was that X loved attending the (business omitted) and they regularly went there, at her instigation, to do woodworking activities. Again, a number of photographs were tendered of X at the (business omitted). The first photograph of Exhibit F1 shows X in a grey dust coat with a forklift and a piece of heavy machinery in the background. The second photograph shows X proudly displaying a clock and (omitted) she had made for her mother at the (business omitted). Again, that photograph shows a forklift and a piece of machinery in the background. The first photograph of Exhibit F5 shows X using a hammer at the (business omitted). Fortunately, she is wearing safety glasses. However, the background of the photograph shows some form of heavy machinery which looks like a forklift. The second photograph of F5 shows X painting paddle pop sticks at a kitchen table in the (business omitted).
Interestingly, exhibit F6 shows X at home engaging in the type of artwork that the father says X prefers to do at the (business omitted). When questioned why X’s craft activities could not be relocated to the father’s home, the father’s evidence was that premises were rented and that X preferred the (business omitted). The father’s evidence was that his new home comprises three bedrooms and a double garage and the only occupants of the home were himself and X. Presumably a suitable craft facility could be set up at the home, as the photographs in exhibit F6 would indicate has already occurred and a timber workbench could be set up in a corner of the garage. This would alleviate the necessity for X to be placed at risk at either work premises.
I do not and could not possibly find that it is in X’s best interests to be taken to a (business omitted) or to the (business omitted), even if the premises are equipped with art and craft materials for her enjoyment.
To suggest otherwise lacks complete insight about the safety and potential risks for a seven year-old child. I do not accept the proposition that because no harm has come to X to date, it is unlikely to happen in the future.
There was no plausible explanation offered by the husband as to why X was required to attend either workplace. At no stage was it suggested that he would consent to an order restraining him from taking X to either workplace.
The evidence of the father, the paternal aunt, paternal uncle and Mr E about the father’s work commitments and obligations was remarkably similar. Each witness, at every available opportunity sought to emphasise the flexible nature of the father’s employment and the fact that he was only required to work 30 hours per week.
As the father has only relatively recently purchased a share in (business omitted) and is the new company’s general manager, it does not seem plausible to me that his work commitments are so limited and flexible. In addition to his commitments to (business omitted), he has established (business omitted) by himself and is the only person who works at the premises. I do not accept that the father’s employment is as flexible as his evidence would suggest and I do not accept that his commitment to (business omitted) is limited to 30 hours per week.
The only possible conclusion that I am able to reach is that the father is regularly required to attend at one or other of his workplaces whilst X is in his care. I find that X attends the father’s workplace more frequently and with more regularity than he is prepared to admit. If an order were made providing for X to live week about with her parents, in my view, the father would be unable to, or simply would not comply with the restraint I intend to make regarding X’s attendance at his places of employment.
He showed a complete lack of insight into the potential risks and harm to X and his evidence and that of his other family members was not candid and forthright about the times X attended the (business omitted) and (business omitted). I do not accept and have no confidence in the proposition that the father has completely flexible work commitments and would be able to care for X on a week about basis without her attending his places of employment.
Evidence of Mr V
Mr V prepared a family report on 9 December 2015. His report is Annexure A to his affidavit sworn 24 February 2016.
The family report was prepared after Mr V interviewed both parents individually and observed X in the company of her parents separately.
He concludes that despite the animosity and lack of communication between the parents, the X is doing extremely well. He states:
“she is happy, she is well adjusted, she is excelling socially, there are no concerns about her academically and in every regard, she is described as a happy, healthy and well-adjusted young person. My observations of her individually and in the company of her parents were unequivocally positive”[23]
[23] Paragraph 34 of the family report.
To summarise, Mr V concludes:
a)that X would do equally well if her time with her father, were increased from five nights to 7 nights in a 14 day cycle; and
b)that X is progressing unremarkably in the extreme and so “if it’s not broken, why fix it?”[24]
[24] Paragraph 38 of the family report.
Mr V was cross examined by counsel for each parent. Both counsel sought to obtain a concession from him that the proposal of their client was superior to the proposal of the other parent and that X’s best interests would be served by their respective client’s proposal. Despite the efforts of each counsel, Mr V would not endorse either proposal. His evidence was steadfast that either arrangement would be in X’s best interests.
It is abundantly clear, as has been set out in this judgment in great detail, that the parties’ communication and interaction with each other is extremely acrimonious. It is also blatantly obvious that they dislike each other intensely and seize every opportunity to embroil themselves in conflict. I have no doubt that the attitude of the respective extended family members contributes to and exacerbates the conflict.
There is no doubt that the paternal grandfather is disrespectful of the mother and antagonistic towards her. Similarly, there is no doubt that the maternal grandfather is antagonistic towards the father. Whilst the respective grandparents have attempted to initiate respectful communication between them, this has not eventuated.
I find that despite the protestations of each party, there is negligible prospect of the parties being able to adequately communicate or inter-react with each other in a pleasant manner. Regrettably, there is no chance of a cooperative and mutually respectful parenting arrangement in the future.
The mother has no confidence in the father’s capacity to care for X. The most obvious example of her lack of trust and confidence is her insistence that the father be in substantial attendance during times X is in his care. She clearly has no faith in the father acting protectively in terms of X’s exposure to the dangers of his work place. I share the latter concern.
Having considered the evidence referred to in this judgment, there is no evidence to support the father’s proposition that simplification of the existing arrangements would minimise dispute between the parents. Their mutually entrenched and antagonistic attitude towards each other and their capacity to cooperate would not change by increasing X’s time with her father.
The arrangements which had been in place since January 2013 already provide X with a clear routine, stability and continuity of care. Altering X’s time with her father to a week about arrangement, is a significant change in the routine that X has experienced for the past 3 ½ years.
Furthermore, for the reasons set out in this judgment and in particular under the heading, Restraint on the father taking X to his place of employment, I do not accept the evidence of the father that he has the capacity to organise himself and his work in order to accommodate a week about arrangement for X.
As X becomes older and moves into her teenage years, it is difficult to see how the parents would be able to adequately communicate and discuss the myriad of issues, which will no doubt arise in the future. If she were to live in a week about arrangement, it would be almost impossible to navigate day-to-day issues, such as attendance at extracurricular activities, school and homework obligations, location of uniforms and sporting equipment and present a united approach to any teenage oppositional and defiant behaviour.
For these reasons, I do not accept that it is in X’s best interests to live equal time with each parent.
I have determined that spending equal time with each of the parents is not in X’s best interests. Having made that determination, I will address whether it is reasonably practical for X to spend equal time with each of the parents.
The parents live in close proximity to each other and there is no geographical impediment for equal time.
For the reasons set out this judgment and in particular the highly conflictual and acrimonious relationship between the parents, I have no confidence in the capacity of the parents to implement an equal time arrangement.
Again, as referred to in some detail in this judgment, the parent’s capacity for future communication and resolution of difficulties is severely limited. The attendance at counselling, some four and a half years post separation, whilst an admirable aspiration, in reality will do little to improve the entrenched views of each parent and their inability to communicate. I have no confidence that they will be able to communicate in a polite and constructive manner in the future.
Miraculously, to date X seems to be unaware of the extent of the toxic relationship between her parents. It is however only a matter of time before the lack of communication, creation and escalation of conflict, mutual distrust and dislike of each other is likely to have an impact on X. This will be exacerbated if X lives equal time with each parent.
Having regard to the matters referred to herein and hearing the evidence of the parties and Mr V, I am of the view that spending equal time with each parent is not in X’s best interests and is not reasonably practicable.
Having determined that it is not in X’s best interests nor reasonably practicable for her to spend equal time with each parent, I am now required to consider whether X spending substantial and significant time with each of her parents is in her best interests and whether that is reasonably practicable.
The mother proposes that X’s time with her father remain in accordance with the arrangements which had been in place since January 2013, namely that X live with her and spend five nights a fortnight with her father. In addition, the mother proposes X would spend special occasions and half school holidays with her father.
Their Honours Ainslie–Wallace and Ryan JJ, in Ulster & Viney[25] at paragraphs 84 to 88, considered the meaning of substantial and significant time.
[25] [2016] FamCAFC 119.
At paragraph 87:
[87] In Eddington and Eddington (No 2)(2007) FLC 93–349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
At paragraph 88:
[88] Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s.65DAA(3). The second requires the exercise of discretion in accordance with s.65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s.65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66]).
The time X currently spends with each parent clearly falls within the statutory definition of substantial and significant.
There was no contrary suggestion or submissions by either counsel.
It is apparent from the evidence of both parties and Mr V, that X has thrived and coped exceedingly well with these arrangements, and has an excellent relationship with both parents. She also has an excellent relationship with her extended family members. I therefore find that it is in X’s best interests to spend substantial and significant time with each of her parents.
In terms of reasonable practicality, the parties live in reasonably close proximity to each other. The existing arrangement has been successfully implemented, from X’s perspective, despite the lack of communication and high levels of conflict between the parents. The time she has spent in both households has obviously enabled X to feel safe and secure with both parents and to enjoy the different parenting styles each has to offer. I therefore find that it is reasonably practicable for X to spend substantial and significant time with each of her parents.
For the reasons set out in this judgment, I determine that the most appropriate arrangements for X are for her to spend time with her father in accordance with the arrangements she has known since January 2013, when she was 3 ½ years old. This will provide a sense of security, stability and continuity of routine for X. In the words of Mr V “if it’s not broken, why fix it?”[26]
[26] Paragraph 38 of the family report.
Change of Name
Apart from X’s living arrangements, the parents were in heated dispute about X’s name.
The mother seeks an order that X’s surname be changed from Cotton to either Judd-Cotton or Cotton–Judd.[27] The father opposes any change to X’s surname.
[27] Order 38 of the final orders sought in the Amended Initiating Application.
The mother seeks to change X’s surname for the following reasons:
a)it is in X’s best interests to change her surname while she is still young and is not identifying it with her identity;
b)to ensure X does not feel isolated from her family later in life;
c)to reduce logistics with travelling, schooling and other matters; and
d)to minimise confusion about X’s family background and family dynamic.[28]
[28] Mother's Case Outline filed 14 July 2016 at page 5.
The father opposes any changed to X’s surname as he says, “there is no reason for a name change other than Ms L wants it so “[29]
[29] Paragraph 39 of the family report.
Mr V’s evidence about the proposed change of surname is contained in paragraph 39 of the family report. In summary, he acknowledges the position of both parents on this issue, however it is quite clear that his view is that X sees herself as X.
He quite rightly identifies that it is really a further matter for dispute between the parents and “it has little direct relevance to X and her immediate welfare”[30]. His oral evidence was quite unequivocally that X should retain the surname Cotton.
[30] Paragraph 39 of the family report.
The applicable law
The considerations relevant to a change of name, as set out in Chapman & Palmer[31] may be summarised as follows:
i)the welfare of the child is paramount
ii)the short and long-term effects of any change of name
iii)any embarrassment which is likely to be experienced by the child of the child’s name is different to the parenting has the child’s custody and control
iv)any confusion of identity which might arise for the child. If the name is or is not changed
v)the effect that any change in surname may have on the relationship between the child and the parent whose name the child board during the relationship
[31] (1978) FLC 90-510.
In Reynolds & Sherman[32] the Full Court at paragraphs 53 to 56 considered whether an order dealing with a child’s name falls within s.64(B)(2)(i) and is a parenting order .
[32] [2015] FamCACF 128.
At paragraph 54, the Full Court said:
“If our tentative view is correct, her honour was obliged to consider the matters in s60CC, at least to the extent they were relevant. Her honour did not do so, electing instead to apply authorities such as Chapman and Palmer (1978) FLC 90-510 and Beach and Stemmler (1979) FLC 90-692, which were decided, prior to the 2006 amendments that introduced s64 (B) (2) in its present form.”
At paragraph 55:
“But even if our tentative view is wrong, the child’s best interests were still a most important consideration, and some consideration of the relevant matters in s60CC would therefore have been desirable. Had her Honour turned her mind to s60CC factors, we consider there was much material in the family report, which may have been of assistance”
In addition to the matters set out in Chapman and Palmer I will also, to the extent relevant and possible on the evidence, consider the matters set out in s.60 CC.
There was very little evidence about the proposed name change. The mother’s evidence is set out at paragraph 107 to 110 of her trial affidavit.[33]
[33] Mother’s affidavit sworn 4 July 2016.
The father’s evidence is set out in paragraph 51 to 54 of his trial affidavit. [34]
[34] Father’s affidavit sworn 8 July 2016.
Mr V’s evidence was set out at paragraph 39 of the family report.
Both parents and Mr V was cross examined about the proposed name change.
The short and long-term effects of any change of name
The mother’s evidence is that X is still young and “has not identified with her identity and her surname yet”.[35] The father’s evidence is that X identifies as X.[36] Mr V’s evidence is that “X knows herself by the last name Cotton”. There is no evidence that a change of name would have a short-term or long-term positive effect on X.
[35] Paragraph 107 mother’s affidavit sworn 4 July 2016.
[36] Paragraph 51 father's affidavit sworn 8 July 2016.
In terms of a long-term effect, the mother expresses concern about X possibly feeling isolated from being part of her family. She does not, however, give any examples of how this may occur, other than difficulties with logistics when travelling and filling out forms.
Any embarrassment which is likely to be experienced by the child of the child’s name is different to the parenting has the child’s custody and control
The mother did not provide any evidence about whether X experiences any embarrassment about having a different surname to her. The only example is referred to in the preceding paragraph, where the mother’s evidence is that having a different surname presents logistical problems.
Any confusion of identity which might arise for the child if the name is or is not changed
There is no evidence that X currently has any sense of confusion about her surname. Rather, the mother’s evidence is that she, the mother, has had some confusion at school, rather than X experiencing confusion. Mr V’s evidence is to the contrary, as he states that X is very clear that she understands herself to be X. [37]
The effect that any change in surname may have on the relationship between the child and the parent whose name the child board during the relationship
[37] Paragraph 39 of the family report.
The mother’s evidence is that a hyphenated surname would “indicate to X and others what X’s family dynamic is”.[38] She further states “that it would assist X identifying with both parents and her ongoing relationship with both parents, despite us not living together”.
[38] Paragraph 109 of the mothers affidavit sworn 4 July 2016.
The evidence of Mr V in relation to X’s identification with and her relationship with each parent is unequivocally positive. That is evident from his observations of X with each parent. Both parents also agree that X has an excellent relationship with each of them. There is simply no evidence to support the proposition that X has any difficulty identifying the nature of her relationship with both parents, or continuing to enjoy a positive relationship with either or each parent. In fact, the evidence, as set out in this judgment is overwhelmingly to the contrary.
The welfare of the child and relevant S60CC factors
There was no evidence that X has any view about the issue of the surname, other than the comments of Mr V that “X sees herself as X”.[39]
[39] Paragraph 39 of the family report.
As referred to extensively in this judgment, X has an excellent relationship with both her parents and her extended family. There is no evidence whatsoever that a change in X’s surname would positively impact on her relationship with her parents. Similarly, there was no evidence that the absence of the mother’s surname would diminish the relationship between X and her mother. Indeed it is one of the rare cases in this court where the child, the subject of the proceedings enjoys a positive relationship with each parent, despite the high degree of parental conflict.
Both parents have taken every possible opportunity to participate in making decisions about X’s long-term future and to spend time and communicate with her. As Mr V observes, Cotton is the surname both parents agreed upon at the time of her birth.[40] Furthermore, prior to these current proceedings, both parties again implicitly accepted Cotton as X’s surname. The final parenting consent orders providing for X’s care, which were made on 30 January 2013, referred to X as X. They do not reflect that at that time, there was any proposal by either party to change X’s surname.
[40] Paragraph 39 of the family report.
I am concerned that if X’s surname were changed to a hyphenated surname, in the absence of goodwill and commitment to the new surname by both parents, this could be a catalyst for further conflict and resentment between the parents. It could also present difficulties for X unless both parents were consistently supportive. This would clearly not be in X’s best interests.
It is evident from the evidence of Mr V, as referred to in paragraph 220 hereof, that X sense of identity is encapsulated an experienced through the use of the name X. He is also of the view that this is really an issue of dispute between the parents and “this issue falls into a category of concern that it has little direct relevance to X and her immediate welfare”[41]
[41] Paragraph 39 of the family report.
I’m also persuaded by the observations of Mr V :
“…many children have parents with different last names, whose parents are separated or not, and this does not cause them any great psychological or social confusion manage adequately… (sic)”[42]
[42] Paragraph 39 of the family report.
Mr V’s unequivocal oral evidence was that X’s best interests would be served by her surname remaining as Cotton.
For these observations and reasons, I do not propose to make an order altering X’s surname.
Conclusion
For these reasons, I make the order set out the commencement of this judgment.
I certify that the preceding two hundred and twenty seven (227) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 9 September 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies