Kadar and Doumani - [2011] FamCA 285

FAMILY COURT OF AUSTRALIA

KADAR & DOUMANI

[2011] FamCA 285

FAMILY LAW – Application for variation of parenting orders albeit drafted as a general application for orders. No basis to find things had altered. Consideration of the rule in Rice and Asplund.

Family Law Act 1975 (Cth)

Marsden and Winch [2009] FamCAFC 152
Re F: Litigants in person guidelines [2001] FamCA 348
Rice and Asplund (1979) FLC 90-725
Saad v Saad (1993) FLC 92-332
SPS and PLS [2008] FamCAFC 16
Stapleton and Hayes [2011] FamCAFC 70

APPLICANT:

Mr Kadar

RESPONDENT:

Ms Doumani

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

495

2009

DATE DELIVERED:

27 April 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 & 7 April 2011

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Lynch

Orders

That the father telephone the mother’s designated telephone landline at 6.30pm each Wednesday night to speak to the child B and the mother do all things required to facilitate such telephone communication.
That each party:
(a)inform the other of their telephone landline and mobile telephone numbers;
(b)instruct their respective family medical practitioners to consult with the other parent about the child; and
(c)advise the other parent of any medical emergency involving or affecting the child
That all extant applications are otherwise dismissed.
That all exhibits be returned to the producing party.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist 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 Kadar & Doumani is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 495 of 2009

Mr Kadar

Applicant

And

Ms Doumani

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

B will soon be 13 years of age. For a number of years now he has been the centre of disputes between his parents. This proceeding was another example.
In 2007, final parenting orders were made by Monteith J after a contested hearing. I find that there is no circumstance that would warrant an alteration of the existing orders. These are my reasons.
In his amended application filed 18 February 2011, Mr Kadar (“the father”) applied for a variety of orders. Three proposed orders were of more significance than the others. They were:
(a)equal shared parental responsibility of the child;
(b)that the child live with the husband; and
(c)that the child spend time with his mother from 7.00pm on Saturdays until the commencement of school on the following Monday morning and for one half of all school holidays.
If the father’s position was accepted, it would amount to a significantly different lifestyle for the child to that which he currently leads.
In his affidavit of evidence, the father said that his application was for shared care. That description did not appropriately set out what he meant.
In her amended response, Ms Doumani (“the mother”) filed 15 September 2010, rather than seeking a dismissal of the father’s application, sought orders as follows:
(a)sole parental responsibility;
(b)that the child live with her; and
(c)that the child spend time with the father from after school on Friday until 5.00pm on the following Sunday of each alternate weekend together with telephone communication.
In her affidavit, the mother said that she “disagreed” with the father’s proposal that he should become the “primary carer” of the child as this would represent a “dramatic and negative impact” on the child. A document headed “Case Summary” did not take the matter any further.
Pursuant to an order of the Court, the child’s interests were represented by an Independent Children’s Lawyer. The criticism by the father of the Independent Children’s Lawyer’s actions and stance was long-standing. Nothing I read or heard, justified that criticism.
The Independent Children’s Lawyer’s position was that there had been no change of circumstances to warrant a reconsideration of the existing orders and although a Summary of Argument document said that the Court should determine what time should be spent by the father with the child, the articulated position at the hearing was that the father’s application should be dismissed.
The father appeared throughout the proceedings without legal representation. The mother had been represented until immediately prior to the hearing and her affidavit and other documents were prepared by lawyers. It has long been said that legal representation is a privilege not a right but it is disappointing when lawyers on record do not have the courtesy to appear and withdraw rather than bundle their clients into court without apparent preparation.
The father too had a complaint about his lack of legal representation. He said under cross-examination by counsel for the Independent Children’s Lawyer that he was prevented from having legal representation provided to him by Victoria Legal Aid because of the actions of the Independent Children’s Lawyer in advising Victoria Legal Aid that his case had no merit. I am not in any position to judge what occurred but I have no doubt that the father was not disadvantaged in a procedural or justice sense by representing himself. Whilst the father may disagree with that, he has had considerable litigation experience in this Court. He is intelligent and articulate and gave all appearances of understanding the concepts of the presentation of evidence. His cross-examination was well-considered and prepared.
The mother too is an intelligent and articulate woman who has tertiary qualifications as a social worker. Although English is not her first language, she had the benefit of her case being prepared by her former lawyers. Any inadequacy in cross-examination on her part was resolved by counsel for the Independent Children’s Lawyer canvassing issues about the child.
This case however highlights the difficulties of parents trying to present their positions opposed to one another where there is no respect for each other and no communication with each other. The less-adversarial trial approach is not much point where the parties’ positions are so entrenched. It must also be remembered that I conducted a first day of trial inquiry of the issues in dispute in late 2010.
In the hearing, each party was argumentative and excitable which did little to assist objectivity about the child. Neither party accepted the position of the other about the child’s welfare, lifestyle or educational progress but equally, neither had any corroborative evidence of substance to support their own case although each thought that they did. In the end, the evidence each presented was the best I had to work with bearing in mind this was, in reality, an application to change a substantive determination of parenting proceedings in 2007.
In Re F: Litigants in person guidelines [2001] FamCA 348, the Full Court set out a number of principles about the responsibilities of courts where litigants did not have the benefit of legal representation. Those guidelines were set out as an endeavour to ensure that a trial was conducted fairly but it was also made clear that it is not the function of a trial judge to give legal advice. It is the function of a trial judge to give general advice to a litigant in relation to the admissibility of evidence and in this case, that exercise was undertaken at the first day of trial. Sadly, neither party was particularly helpful in relation to the material presented. That is particularly the case where the application endeavoured to revisit final parenting orders made in 2007. The Full Court went on to indicate as part of the guidelines that a trial judge should explain to the litigant any relevant procedures and in this case, I have endeavoured to do that. I have also endeavoured as far as it was possible to do so, to clarify submissions and to bring the parties’ focus back on to the issues that ultimately had to be determined. In so far as I can be so satisfied, both parties had a fair hearing.
Although I have set out the details of the main part of the dispute, it is important to understand that each party sought a number of other orders. It is helpful to compare their respective positions.
Leaving aside those issues to which I have referred, the father’s position was that if he was to have the primary care of the child, the mother could telephone at all reasonable times. The mother’s position in relation to telephone communication by the father with the child was that it should be on Wednesday nights. This subject had been controversial including the subject of contravention proceedings. In part, from the mother’s perspective, the father did not strictly comply with the ordered times. From the father’s perspective, the mother was not available when she should have been or alternatively, her telephone was not working. That problem was resolved in my view by fixing into the order, the day and the time with precision.
The father also sought that school fees be paid equally. The mother agreed but that issue had previously been determined in 2007 and requires no further attention.
The father sought a non-denigration injunction but that also had been previously determined in 2007. He similarly sought injunctions relating to the exposure of the child to smoking but having regard to the evidence, there is no basis for me to make any such order. I find there is no evidence that the child is exposed to smoking or other drugs.
The father sought that both parties permit the child access to the internet and computer games but his position was that it only should be on one occasion per weekend. I shall deal with that issue below but I see no basis to limit the child’s exposure.
The father sought an exchange of telephone numbers in the event of any change and the mother agreed. The father sought that the mother authorise medical practitioners to consult with the other parent and again, notwithstanding the mother already had sole parental responsibility, she agreed.
Both parties agreed that each should notify the other in the event of a medical emergency. Commonsense dictates that.
Both parties wanted orders associated with international travel but that seems to have been covered in 2007.
At the conclusion of her proposed orders, the mother sought an order pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) which if granted, would prevent the father from making any further application without leave of the Court. Perhaps because of lack of representation, she did not address that issue. Neither did the father. In the recent decision of the Full Court of Stapleton and Hayes [2011] FamCAFC 70 (Bryant CJ, May and Cronin JJ) the following was said:
157.To the extent that the application seeks an order under s 118 of the Act, the father must establish to the satisfaction of this Court that the proceedings (being the appeal proceedings) were frivolous or vexatious. Those words have been defined in the explanatory guide to the Family Law Rules 2004. “Frivolous” is defined as being not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless...
…
159.Section 118 is directed towards those parties who use the court process as a form of abuse of other parties to the litigation but also waste an enormous amount of valuable court resources and time. As Mason CJ said in Rogers v R (1994) HCA 42; (1994) 181 CLR 251 at 255, the concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object. His Honour said that the circumstances in which abusive process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories.
Having regard to the view that the father held that there had been a change of circumstances over the three years subsequent to the 2007 orders together with his complaints about the lifestyle of the child, I could not find on the evidence that this was a frivolous application nor that it necessarily amounted to a waste of an enormous amount of Court resources and time. It could also not be said to have been a form of abuse because the father’s clear focus arose from his own subjective judgment as to what was good for his son. Accordingly, there is no basis for me to say that there is evidence that would support an order favouring the mother under s 118 of the Act.
The starting point in this case is that between 13 and 15 June 2007, Monteith J heard the parenting dispute culminating in the orders to which I have already referred. Monteith J explained in his reasons for judgment, the basis of the orders. His Honour said:
34.I consider that it is to the benefit of the child to have a meaningful relationship with both of his parents in this case. However, I consider that it is necessary to limit the amount of time that he spends with the father, because of the father’s behaviour and his rigid religious beliefs. Any further significant exposure to the father is likely, in my opinion, to be detrimental to the child.
35I consider it necessary to limit the exposure of the child to the father both with respect to physical and psychological harm, having regard to the evidence before me about the father’s past conduct.
36.Although the child is young he is expressing a clear desire to spend less time with his father. This is not surprising having regard to the evidence before me.
37.I accept the evidence that the child has a close and loving relationship with his mother. His relationship with his father is much more problematic and his relationship with his half-brother is also a matter of concern. The father’s apparent inability to control T with respect to his behaviour to J is of concern.
38.Although the mother has concerns about the further exposure of the child to his father, I think she is willing to facilitate and encourage a continuing relationship. The father has made such extreme, unsubstantiated and extraordinary allegations against the mother that I have grave doubts that he can facilitate and encourage a close and continuing relationship between the child and the mother. Her evidence that after the child had been with the father whilst she was overseas, she had come to the conclusion that the father was seeking to destroy her relationship with the child is a view that I accept.
…
41.Both parents, I believe, are able to provide for the needs of the child but I think the father’s capacity to provide for the emotional needs of the child are circumscribed by his rigid beliefs.
42.Both parents are of the Islam religion and of the same sect. However, the mother is much more child-focussed and aware of the child’s needs. The father, on the other hand, is not child-focussed and is much more concerned with his needs and imposing those upon the child.
…
44.The mother has displayed an attitude to the child and to the responsibilities of parenthood which are highly commendable. The father, on the other hand, has shown a complete lack of insight and, in my opinion, has been positively destructive of the relationship between the child and the mother.
His Honour then dealt with equal shared parental responsibility and found that the presumption was rebutted. Ultimately, his Honour made the orders giving the mother sole parental responsibility.
In his final address before me, the father was critical of the judgment of Monteith J and explained that he had initially appealed against the 2007 orders but was unable to proceed having regard to the absence of representation. He said that he was refused aid by Victoria Legal Aid because of the actions of the Independent Children’s Lawyer. He said he felt pressured by the barristers because he was a strict Muslim and that the Court was affected by something akin to the “Pauline Hanson” problem. Those comments did no credit to the father. No evidence was provided to support his assertions and the hearing was not conducted on a religious, cultural or racial basis.
I turn then to whether there is a basis for reopening the parenting dispute. The onus was on the father to produce the necessary evidence as he was seeking to have a reconsideration of the settled parenting orders. There is no similar onus upon the mother (see Saad v Saad (1993) FLC 92-332).
In SPS and PLS [2008] FamCAFC 16, Warnick J referred to the concept of rehearing issues which had been the subject of final orders. His Honour pointed out that the rule in Rice and Asplund (1979) FLC 90-725 must remain subject to the best interests principle. Part VII of the Act must therefore be applied but at the same time, it is in the interests of everyone that there be finality of litigation.
In respect of the assessment of the evidence, Warnick J said that the facts that related to the best interests of children and in particular, the determination of such questions as to whether there had been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements, were likely to be identical or at least intertwined and that it may be better for all of the evidence to be before the Court before that decision was made. In Marsden and Winch [2009] FamCAFC 152 the Full Court did not disagree with the approach taken by Warnick J. What has often been referred to as the “rule in Rice and Asplund” requires a court to consider in all the circumstances, having regard to the best interests principles, whether the question of a change of circumstances should be undertaken at the commencement of the case or after the evidence is all before the court. In this case, I felt it was appropriate that I should hear all of the evidence and did so.
The evidence in this case may therefore be summarised relatively simply. The father alleged that the mother had breached the 2007 orders without reason. He referred to mediation recommendations and the fact that the mother had declined to attend. He said that the vice-principal of the child’s school along with the class teacher, had met with the mother making recommendations that it was in the child’s best interest to spend more time with him because the child had told them that in the father’s household, he was able to study and complete his homework. The inference from that statement was that the child had been unable to complete the same exercise at the home of his mother. The mother denied any such conversation with the school occurred although she conceded that there had been a discussion with the vice-principal. I could not find on the balance of probabilities that the school did report what the father alleged or more importantly, that they believed that to be the case. To support his contention, the father attached letters from the school indicating concern about the child but the dates of those letters and their content were unhelpful in respect of any assessment by me as to whether the child would generally have been better off in his father’s household for educational purposes. They were not current.
The father went on to say that it was the mother’s resolve to minimise his “access” and remove him from the child’s life. I find that that is not the case. Contact is occurring and the father put all of the relevant allegations to the mother and she denied them. Nothing that was put by the father was corroborated in any significant way. Rather than appearing obstructive to the father’s relationship, the mother was positive in saying that she was encouraging of the child.

The father asserted that he was having problems with telephone “access” to his son and referred specifically to consistent Wednesdays in December 2010 and in January 2011 when he telephoned to find that there was no answer and thereafter no reply to any message was received. The mother had a number of explanations. She subjected herself to cross-examination about those. She explained that there had been a technical fault with the telephone but that was to be rectified in the ensuing days. She said that in respect of one of the alleged evenings, she was not at home because the child was at the school for a graduation night and the father was there as well and knew that it was taking place. Another explanation was that she had changed her address and her lawyer had provided an incorrect telephone number to the father. She produced the correspondence from the lawyers which established that that was the case. The father cross-examined the mother about that and appeared to suggest that this was either deliberate or alternatively, established the existence of another telephone line. I reject all of those hypotheses and accept the mother’s evidence. There was no deliberate avoidance of responsibilities by her.
The father also cross-examined the mother about having the second telephone line and she denied it. He suggested that the child had telephoned him from a number other than the usual landline and told him that he was not allowed to tell his father what it was. The truth or otherwise of that lies entirely in what the child said and I have no confidence in the accuracy of what was reported by the father. The mother was adamant that there was no such extra line and the father had every opportunity in the lead up to these proceedings to make the relevant inquiries including through a subpoena to the relevant telephone provider. Accordingly, I find there is no basis to suggest that the mother has been deliberately obstructive. In a heated exchange between the mother and the father when the mother was in the witness box, she referred to the fact that the father had telephoned as late as 11 pm at night and the father appeared to acknowledge that assertion but said it was necessary for an unspecified reason. The mother also made assertions about the fact that the father missed the designated times because of prayer obligations for the purposes of his religion. Again, neither party produced any corroborating material that would have assisted me.
The father’s argument was that the child should also live with him predominantly because of problems of performance at school and also the mother’s lack of concern about the child’s health. The father produced letters from the school indicating concerns about behaviour at school but they were mostly prior to 2011. He pointed to failures of the child in mathematics but the mother produced test results for Islamic Studies showing excellent results. The only guide to indicate overall performance lay in a number of records which appeared to have been produced on the day of the hearing. The father complained about the child’s absence from school particularly in relation to mornings, but in cross-examination, it appeared that for some period of time in 2010, the child went on a bus. No views of the school about unapproved absences could be seen from any of the records.
In relation to mathematics, in March 2011, the child produced a 40 per cent result. However, that related to a mathematics competition nationally and the results were shown in a generic letter. No views of the school could be ascertained clearly as to whether they had and have, any concerns. The father produced a test to the mother and asked her questions about it. He did not produce it when he gave evidence and did not mention it until cross-examination. He did not produce any evidence from the teachers and in any event, I was unable to ascertain what connection it had to the parenting issue. My inexpert eye suggests that the child is very good at arithmetic but perhaps not so capable in relation to other aspects of mathematics such as logic. That can be seen in the Westpac Banking Corporation’s mathematics competition.
There was an interesting dispute between the parties about library books not having been returned. The mother conceded that she owed the library at school $30 but claimed to have returned the relevant book. The refusal to pay the ongoing fee has now meant that for two years, the child has been unable to access books from the school library. Again, it is difficult to assess whether that has made any difference to the educational progress of the child. In other areas such as Islamic Studies and along with his understanding of the Quran, he seems to have progressed extremely well.
In his school reports of 2010, the child showed that in July, he was a very good reader but that was inconsistent with the father’s concern about the library books. It was suggested by the school that he needed to follow strict rules and improvement was required. In respect of his homework, the teacher expressed concerned that he tended to rush his work. Other studies had pleasing results including Islamic Studies where he was described as “high levels of work and eager to learn”. Concentration seemed to be his problem.
The report at the end of 2010 showed that the child had in fact improved and even in his own words, he was making an effort. Those words were appended to the last page of his school reports.
For the last term in 2010 the teacher said that the child could do better if he was well prepared.
Whilst the father produced a mathematics test conducted in early 2011, the mother produced an Islamic Studies test from 31 March 2011 in which the child did extremely well.
As an overall impression, it is clear that the child, in his early stages of educational development, has a problem with mathematics. The mother said that she was now addressing that with a tutor.
The father asserted that the child missed the very first day of school for 2011 but the mother’s explanation was he was kept home because he had a high temperature. What followed was that when the children were graded into classes, the child was put in a class that contained students of average ability. The parties could not agree on whether or not that occurred because of his lateness or because of his ability. In my view it matters little.
The father asserted that the child was unable to do his homework. The mother denied it. She pointed to the fact that her adult son who had accompanied her to court, was a tertiary student. She pointed to the fact that she had tertiary qualifications together with all the facilities at her home to enable the child to do his studies.
The father claimed that the child was distracted in class because he was always thinking about wanting to play with computer games. The father cross-examined the mother alleging that the child had every conceivable computer game but the mother denied it. She said that he only had five or six. There is no indication from the school that the child is adversely affected by his home life. He clearly has come under notice in relation to his homework but that is not a basis for me to criticise the mother. There are many possible explanations including the fact that he just does not have the necessary ability. In an interesting twist, the father said that when the child spent time with him on weekends, they studied mathematics but when I pointed out the inconsistency because the child was failing to show those results in the classroom, the father pointed to the fact that in the mother’s care, the child quickly forgot all that he had been taught. I find that is far too simplistic an explanation.
The father said that the child told him that his mother would not help him but again the mother denied the assertion and there is no basis upon which I could make such a finding.
The father pointed to the fact that the mother’s adult daughter who has two children who do not live with her but with the child. He alleged she was a person addicted to marijuana. He said that whenever he telephoned the house, the daughter answered the telephone. When I asked the connection between whatever the daughter’s problem was and the parenting dispute, the father said that the child was inhaling the drug from clothing of the daughter. The connection is far too remote for me to be seriously concerned with that issue.
I turn then to the question of health. The father asserted that the child had serious health problems. Notwithstanding that in 2007, Monteith J made an order for the mother to have sole parental responsibility, the father has consistently taken the child to a medical practitioner other than the one where the mother attended. Each party produced letters from their doctors. The father’s doctor expressed concerns about the child in 2008 and 2009 and again in February 2010. Just exactly what the attendances were for remained a mystery. One document produced by the father suggested that the doctor had claimed on Medicare for a “mental health care plan”. The father produced letters from his doctor referring to finger injury from basketball, “scratched spots” from his right cheek, a rash on his thigh and tooth problems. The father tendered a letter from a counselling practice suggesting that they would see the child but in May 2009 the psychologist wrote that if the father had concerns for the child’s safety and wellbeing, he should approach the Department of Human Services or the Royal Children’s Hospital. What they were contemplating is unclear but in 2009, the father’s medical practitioner thought the child’s problems were depression, stress, playing computer games and drinking “Cola”. In March 2011 however, the mother’s medical practitioner wrote a letter indicating that the child had been his patient for 12 years. He described him as follows:
He is a beautiful, normal, active, bright child. He saw me on some occassions (sic) for common children illnesses (sic). I cant (sic) see any reason to worry about his health either physically or mentally.
Neither party produced any affidavit material from the doctors nor were any clinical notes provided. All of the evidence would indicate that any concerns that the father may have had either dissipated or were not sufficiently serious to warrant calling the evidence properly at all.
The father also produced evidence of the child’s attendance upon a dental practitioner. Again, notwithstanding the sole parental responsibility order in favour of the mother, the father just took the child to a health professional. That document too did little to assist in determining whether there had been a failure of concern about hygiene by the mother.
The father said that the child in reality, did not live with the mother because that was what the child told him but when that allegation was put to the mother she emphatically denied it. Again, there is no evidence corroborating the father’s version such that I could make any finding along the lines that he asserted.
The father said that one of his concerns about the child’s physical development was that he did not play sport but rather, was constantly playing computer games. The mother denied all of that indicating that the child played soccer, kicked a football in a nearby park and attended basketball games. Even if the father’s assertion had some foundation, in my view, it would not be sufficient to remove a child of the child’s age from his mother and place him with his father.
The evidence therefore shows that there has been no change of circumstances from that which was before Monteith J.
The father in final address indicated that he was concerned that he had not even been allowed to have holiday time with the child. The mother’s response was that the child did not want to go. No evidence was led by either party about any of the details concerning what would happen during school holiday times nor about the child’s wishes. It is important to note that Monteith J made no orders for school holidays notwithstanding the school attendance and age of the child at that time. I see no reason to revisit the issues of extended periods of time because nothing has changed.
Even presuming that the changes of circumstances could be said to include the child having become four years older, changed schools and progressed to the first year of secondary education, there is so little evidence which would convince me that it would be in the best interests of the child to make the orders proposed by the father. I find that even if this was not an application to vary existing orders, I would not be prepared to make the orders he sought. I make that finding having regard to the considerations of Part VII of the Act to which I now turn.
Section 60B of the Act sets out the objects and principles which guide the determination of what is the best interests of a child. The objects are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. That presumption:
(a)is rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence; or
(b)may be rebutted if the court is satisfied on the evidence that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In 2007, Monteith J ordered the mother have sole parental responsibility. There is no evidence to suggest that anything has changed. The parties do not communicate about or agree upon, education, health, lifestyle or their respective roles as parents. With that degree of antagonism and mistrust, there is no prospect that the child’s welfare would be advanced by his parents having equal shared parental responsibility. It is not in his best interests for an attempt to be made to alter what Monteith J ordered in 2007 and which the husband appears currently to ignore anyway.
Section 60CA provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) provides:
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 reference to subsections (2) and (3) is a mandatory checklist of considerations that guide the decision maker but so too do the objects and principles I mentioned above. There are certainly overlaps.
The primary considerations are set out in s 60CC(2). They 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.
On the evidence, it would appear that the child does enjoy the period of time that he has with his father and is content to continue the existing regime because he is currently attending. The mother did not suggest that the child did not want to go to his father and the father suggested clearly that the father and son relationship, together with the sibling relationship, is working well. The child enjoys the benefit of a meaningful relationship with his father and there is no suggestion from the evidence that he does not have a close and meaningful relationship with his mother.
There is no basis for me to be concerned about his physical or psychological welfare arising out of the conduct of either of the parties.
Section 60CC(3) sets out additional but still mandatory considerations. In the paragraphs that follow, I shall set out my considerations.
I do not have the views of the child about any desire for a change because no evidence was presented that I could objectively accept. Counsel for the Independent Children’s Lawyer submitted that the father had not established that there was any substantial circumstantial change in that regard. I agree with that.
Section 60CC(3)(c) requires the court to look at the willingness and ability of the parents to enable and effect the relationship between the child and the other parent. In cross-examination, the mother said that she encouraged the child to respect and have a relationship with his father. The father’s attitude towards the mother indicates that he has no respect for her and I could not find that there is any evidence to indicate that he would promote the relationship between the child and his mother. The father’s position about seeking shared care made clear that he would prefer the mother to have a very limited role in the child’s life.
Section 60CC(3)(f) requires the court to examine the capacity for the parents to meet the needs of their children. Notwithstanding the criticisms by the father of the mother’s care of the child’s health and her concerns about his education, I find that the child’s needs are being met by the mother.
Section 60CC(3)(i) considers the attitude of the parents towards parental responsibility. That matter too was canvassed by Monteith J in 2007 and there is no basis on the evidence to suggest that there has been any change since then.
Neither party raised any apparent family violence issues.
Sections 60CC(4) and (4A) require the court to look at how the parents have involved themselves and the other parent in the activities of their child. I am satisfied that the father has a desire to maintain a relationship with his son and that it is important to him. There is no evidence however to suggest that the child’s time with the father should be altered as a result of anything that has happened since the orders were made in 2007.
In this case, nothing of substance has changed since 2007 such that I could find that it is in the best interests of the child for orders to be made along the lines proposed by the father. Save for making the apparently agreed orders, the father’s application must fail.

I certify that the preceding Seventy Four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27April 2011.

Associate:

Date: 27 April 2011