KEELIN & FAITH
[2020] FamCA 752
•24 September 2020
FAMILY COURT OF AUSTRALIA
| KEELIN & FAITH | [2020] FamCA 752 |
| FAMILY LAW – CHILDREN – where both parents are high functioning parents – where the great risk to the child is the parental conflict – where there has been an equal time arrangement for five years pursuant to interim Court Orders – where the Court finds the continuation of the equal time arrangement is the path of least emotional risk to the child – final orders made for the continuation of the equal time arrangement. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 62G, 65DAA |
| Goode & Goode (2006) FLC 93-286 Vallans & Vallans [2019] FamCAFC 260 |
| APPLICANT: | Ms Keelin |
| RESPONDENT: | Mr Faith |
| FILE NUMBER: | SYC | 1488 | of | 2015 |
| DATE DELIVERED: | 24 September 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 26 & 27 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M Todd |
| SOLICITOR FOR THE APPLICANT: | Super & Super Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms C Cantrall |
| SOLICITOR FOR THE RESPONDENT: | Norwest Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr S Cairns |
| INDEPENDENT CHILDREN’S LAWYER: | Mr C Harb Harb Lawyers |
Orders
That these proceedings be adjourned for pronouncement of orders at 9.30am (Queensland time) on 29 October 2020 in the Family Court of Australia at Brisbane.
That all parties have leave to appear by telephone on 29 October 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:
(a)They shall each telephone … (within Australia only) (toll free) by 9.25am on 29 October 2020;
(b)They shall each then enter the pass code …;
(c)Hold the line until the Court is ready to connect and proceed with the matter; and
(d) Not place the call on hold.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keelin & Faith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 1488 of 2015
| Ms Keelin |
Applicant
And
| Mr Faith |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents in this matter have been in dispute as to what final parenting arrangements are in the best interests of their son X, who is now 12 years of age, having been born in 2008. As the reasons which follow reflect, this case has had a somewhat torturous, prolonged and regrettable procedural history. It is clear, in my view, that the prolongation of the proceedings has not assisted the parties “moving on” with a post-separation co-parenting regime and a final result in the proceedings has awaited determination of the Court after a trial.
Thankfully, and to the benefit of X, this is a case that is finely balanced, not only because of the narrow area of dispute between the parents (important as they are) but because on any assessment of the evidence, the mother (currently aged 49 years) and the father (currently aged 62 years) are high functioning parents who do not, on the evidence, suffer from the impediments of mental illness, exposure to illicit or other illegal substances, excessive use of alcohol or examples of continued social or other misbehaviour (including criminal behaviour) which so often are challenges for parents who appear before the Court. In this circumstance, the great risk to this child is the perpetuation and continuation of parental conflict and other issues which are referred to in these reasons.
Legislative pathway
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
Competing proposals
By the time of final submissions, the parties’ competing proposals were clear. The primary proposals of the mother are set out at Exhibit 13 (Appendix One to these Reasons) and essentially provide for the child to live primarily in her care and for the child to spend time with the father during school terms each fortnight from after school on Thursday until commencement of school on Monday (essentially four nights a fortnight). The mother’s proposal includes a sharing of school holidays and seeks a number of restraints and collateral orders. A further significant aspect of the mother’s proposed Orders, and they are not consented to, are that the mother seeks an Order for sole parental responsibility for X (Order 2) and that the child is to attend C School at Suburb B for the commencement of Term One in 2021 (Order 8).
The father’s primary proposal is as contained in the case outline filed 17 August 2020 and are set out at Appendix Two. He seeks a continuation of the current Orders so far as week about (changeovers on a Friday) arrangement; and a continuation of the interim Order for equal shared parental responsibility. Importantly, he has a different proposal for the child’s schooling, asking the Court to Order that the child shall attend D School from the commencement of next year’s school year.
The Independent Children’s Lawyer, who has been involved in this matter since his appointment over five years ago, by minute marked as Exhibit 11 (at Appendix Three to these reasons) seeks in respect of disputed issues that the Court Order the parents to have equal shared parental responsibility; that the week about arrangement continue on a final basis; and in respect of the schooling issue, supports the mother’s proposal that the child attend C School next year.
At the commencement of the hearing before me, I indicated to Counsel, being Mr Todd for the mother, Ms Cantrall for the father and Mr Cairns for the Independent Children’s Lawyer, that in effect, if as the father had an alternate proposal (as set out in his case outline) that the child live with him, and in which case the child would spend time with the mother from cessation of school on Thursday until before school the following Tuesday each fortnight, that it was appropriate for the mother to at least identify, if she could, for the Court, any proposal for her time if the Court took the view that it was in the best interests of the child to live with the father.
The mother’s alternate proposal at the Court’s invitation is set out at Exhibit 1 and essentially proposed that if the child lived with the father (and he had sole parental responsibility) then the child would spend time with the mother from after school on Wednesday to the commencement of school on Tuesday in each alternate week. For the reasons which follow, having identified that as a proposal the Court might consider, the Court does not consider that proposal as being appropriate for the child or in his best interests.
Accordingly, the reasons which follow will use the parties’ primary positions as the competing proposals. I should also mention at this stage that the Court was greatly assisted in this case by the Counsel who appeared before me. This was not an easy matter, made more challenging in some ways by the need to use the platform of Microsoft Teams to conduct the trial. Mr Todd and Ms Cantrall could have said nothing more or made any other submission than they did to advance the position of the party who they represented. I thank them for their efforts in this difficult matter.
Contextual chronology
Neither Counsel indicated to the Court that a finding as to credit was really appropriate. Whilst of course the parties have perceptions of various matters, and with the history being so long and torturous those perceptions have to some degree become entrenched, I regarded both parents as essentially honest and reliable witnesses, although at times both found it difficult to make concessions against what they perceived to be their interests. Statements of fact which now appear in these reasons should be regarded as findings of fact.
The father was born in 1958 in Australia, and when the parties commenced cohabitation with their marriage in 2007 (or shortly before) he was by that stage employed and a father of two twin boys who were adults. His sons Y and Z were the product of a teenage relationship with the boys’ mother, and the father says he maintains a good relationship with that lady, although no evidence was provided to corroborate that fact. The mother was born in Country F, as it then was, in 1971. She came to Australia with her family, it seems seeking refuge, when she was 10 years of age. In the approximately 39 years since then, she has completed high levels of education, is well-spoken, and has been a law-abiding citizen in every respect.
The mother and father, as I say, were married in 2007, and shortly thereafter they moved as a family to G City for work. X was born in 2008 in Country H. As I say, he is now 12 years of age. I find that the family did return initially to Australia from Country H in August 2009 and returned to Country H again in mid-2010. From mid-2010 until December 2012, when the father returned to Sydney permanently from Country H, there is a history where I find the child and the mother primarily lived (certainly since December 2010) in Sydney, Australia, whilst the father continued employment in Country H but maintained, as best he could with those commitments and distance, a relationship with X.
There is no suggestion on the evidence that before he returned in December 2012 he was so concerned with the mother’s care of the infant child that he either returned to Australia and brought an application to resume primary residence of the child or otherwise brought matters to authorities’ attention if he held any concerns. When the father returned permanently to Sydney from Country H in December 2012, X had turned four years of age. Sadly for the parties and particularly the child, the tensions in this relationship, which may well have been simmering beforehand and which may not have been assisted by the exacerbation of not living in the same country permanently for nearly two years, started to come to the surface, the mother would say, from at least April 2013.
She says she asked the father to leave the relationship and the home. She asserts she was verbally denigrated on numerous occasions by the father. Much of this history, which is now over seven years ago, was not the subject of extensive cross-examination, nor was it necessary. At best it is easy to find on the evidence that the tensions in the impending breakdown of the relationship made the position uncomfortable, probably for both parents and therefore the child. Final separation on or about 21 February 2015 was precipitated to a large degree by an event, which is disputed, which took place on 19 February 2015.
It is the father’s evidence, which he maintains, that the mother, with a knife in her possession, caused him an injury and, furthermore, caused him to fear for the safety of X, who by that stage was aged six and a half years. This allegation of the incident is disputed by the mother in her evidence, and Exhibit 2, which is the police report (not supported, of course, by any evidence from the police officer who made the report or cross-examination of that officer) paints a slightly different picture of the event than that claimed by the father. In my view, in this case I am not required to make a definitive assessment of what occurred on that day other than to observe that it did not, of course, assist the relationship and it precipitated the separation.
On 21 February 2015, the father left the then family home with the child and I am satisfied from then, until proceedings were instituted by the mother on 10 March 2015, the father, he says to protect the child, did restrict the mother’s time. I note that there were no Orders at the time of separation and that, theoretically, the mother could have taken the child into her care. However, the dynamics of this relationship made it very difficult for her, in my view, to have felt comfortable to do so. Nonetheless she is the party who brought these matters to the Court by her application, and the Orders made 21 May 2015 by Judge Monahan provided for the child to live with the father and for the child to spend five nights a fortnight in the mother’s care.
The time the child was to spend with the mother (which also included holiday time) was not ordered to be supervised. His Honour adjourned the proceedings to an interim hearing date and, after hearing submissions and considering the evidence before him, on 14 July 2015 made interim Orders. Because these Orders are the Orders that have continued to apply and be applied by this family for over five years now, I set them out in full as follows:
“1.All extant applications be adjourned to this Court on 10 August 2015 at 10.00am for mention (“the mention hearing”).
2.As the mention hearing is listed before Final Hearings, in the event that any party files an Application in a Case after the date of these Orders, neither party is to cause the Application in a Case to be made returnable on the date of the mention hearing without the express leave of Judge Monahan.
3.Leave be granted for the Application in a Case filed on 6 July 2015 (“the Application in a Case”) to be listed before the Court today.
4.The listing on 26 November 2015 of the Application in a Case be vacated.
5.The Independent Children’s Lawyer be granted leave to file up to a further 10 subpoenas.
6.All previous parenting orders be discharged.
7.The Applicant Mother and the Respondent Father have equal shared parental responsibility for X born in 2008 (“the child”).
8.The child live with each of the parents as follows:
a) Commencing 17 July 2015, the child live with the Mother from after school on Friday to before school the following Friday, and in each alternate week thereafter;
b) Commencing 24 July 2015, the child live with the Father from after school on Friday to before school the following Friday, and in each alternate week thereafter.
9.On the resumption of the school term, the term cycle for time continue where it left off at the conclusion of the term.
10.The child spend time with each of the parties during the forthcoming September/October school holidays period as follows:
a) With the Father for the first half commencing on the last day of the school term and ending on Sunday 27 September 2015 at 5.00pm; and
b) With the Mother for the second half to before school on the first day of term.
11.All changeovers on school days occur at the child’s school, with changeover when not at the child’s school to be at the Hungry Jack's Restaurant, Suburb J, located at K Street, Suburb J NSW.
12.All changeovers that occur at the child’s school be within the school security gate.
13.The child communicate with each of the parties as agreed and failing agreement:
a) during all times in which the child is in the Father’s care, the child communicate with the Mother on Sunday, Tuesday and Thursday between 7:00pm and 7:30pm; and
b) during all times in which the child is in the Mother’s care, the child communicate with the Father on Sunday, Tuesday and Thursday between 7:00pm and 7:30pm
with the relevant parent to initiate the call and the other parent to facilitate the child receiving the call, and the parent seeking to speak to the child is to initiate the phone call by calling the relevant landline number first, then the relevant mobile number.
14.Neither party make any other calls during the school term or school holidays other than in the event of an emergency.
15.For the purpose of all telephone calls, each parent give the child privacy and not have the telephone on loud speaker nor be listening in on any secondary telephone.
16.At all times the parties communicate with each other in a civil and courteous manner, and all text messages sent between the parties are to directly relate to the child only.
17.Each party be restrained from:
a) Taking the child to a psychologist;
b) Making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family, to the child or in the presence or hearing of the child, with such order to include verbal, written or electronic means including email and text message;
c) Physically disciplining the child, or from smacking, hitting, pinching or pushing the child for any reason; and
d) Discussing the details of these proceedings with the child, or in the presence or hearing of the child
or allowing any other person or persons to do so.
18.The Mother be granted possession of the key fob, Suburb Q leisure centre key, Suburb Q garage key, Suburb Q apartment key and the building door key.
19.The question of the issue of the Father’s costs of obtaining the relevant keys and remotes referred to in paragraph 18 herein be reserved.
20.Within 7 days the Mother will notify the relevant club and do all things to ensure that all recordings of the Father’s name be removed from such keys.
21.The child’s passport currently held by the Suburb V Registry of this Court be retained by that Registry pending further order.
22.The parties cause the child to remain enrolled in and attend R School, Suburb S.
AND THE COURT NOTES THAT:
A.Paragraphs 7, 9 to 12, 14 to 15 and 18 to 20 herein were made with the consent of the parties today.
B.Paragraphs 8 and 13 herein were made following a second contested interim hearing today.
C.Paragraphs 16 to 17 and 21 to 22 herein were orders made by the Court and essentially replicate or reflect earlier orders and notations made by the Court.
D.The Father provided the Mother with the relevant keys and key fobs today.
E.The Father advised that the approximate cost of obtaining the relevant keys and key fobs is $150.00 to $200.00.
F.The purpose of the mention hearing is to:
a. receive an update on the progress of the parenting arrangements;
b. consider the memorandum produced from the Child Dispute Conference;
c. consider the outstanding issues in regards to the issue of the proposed restraints contained in the Application in a Case and consider the issue of the Father’s costs of obtaining the relevant keys and key fobs;
d. consider whether any agreement has been reached in regards to the summer school holidays; and
e. ascertain the ambit of the dispute and make further directions.”
It is clear that when the Order was made by the Federal Circuit Court of Australia Judge, whilst he had the benefit of a child-inclusive conference memorandum, he did not have the benefit of a family report. Experienced child psychiatrist Dr L interviewed the parties and observed the parties with the child on 25 November 2015, resulting in his report dated 26 February 2016, which was released to the parties shortly thereafter.
At the commencement of these proceedings before me, I inquired and was told by Counsel for the mother, Mr Todd, that he did not intend to call or seek to cross-examine Dr L. He did, however, ask the Court to read the report, at least because it was a report referred to and relied upon by the family consultant, Ms M, who did provide the expert report to which I will refer shortly. I have done so. It is somewhat unsafe without this evidence being tested to apply much weight to even comments made by the child or the parties at that time. But it has some historical interest to the Court even if untested. In particular, I merely acknowledge that the report writer at that time observed that “[s]hared contact requires a good enough degree of communication and cooperation [that] shared arrangements are likely to be successful”.
The report writer opined at that stage that if it was clear from the Court’s perspective that a shared arrangement is unlikely to be successful, he would favour the mother to be the primary carer, as “I believe that she is better able to promote a relationship between the child and the other parent”, but that the child should see the father “for substantial contact”. There was a further recommendation made at that time by Dr L that “the parents seek assistance with a counsellor to assist each respectively to manage the complex family law situation”. I also note in the report that the child is recorded as saying, in the father’s presence as well, (see page 15, line 614) as follows:
“Then I asked X if he had any wishes to express. He said, “I want to live with him and I want the cat to come. I want the bike to come as well. I want to take the bed and all the stuff in the garage and then I want to have a happy life. I want to do it with dad.” Then the father said, prompting the child in an unhelpful way with pressure on the child, “Are you 100% sure with what you just said? And do you feel safe with dad?” X responded, “Yes can I live with you?””
I extract this comment from the report merely, as I will indicate later in these reasons, to demonstrate that there are some elements of that interview and wishes expressed by X (who at that time was but seven years of age) which are similar to more recent evidence I have now received in this case. It seems that when the matter came back before the Federal Circuit Court of Australia on 21 April 2016 (I presume with the benefit of the filed family report of Dr L) no changes to the interim orders were made (and I am not even sure that the Court was moved to do so). But in terms of the evidence at that stage, some restraints were issued against the father sharing with family and friends of the mother his views of the mother.
It seems at that stage the mother had brought to the Court evidence, as she relies upon in this trial, of denigration of her by the father to members of her family and her employer, and also an allegation of what she described as inappropriate publishing of sexualised photographs of her or “revenge porn”. Sadly, on reflection, with the transfer of the matter on 21 April 2016 to the Family Court of Australia, for whatever reason, the matter did not obtain any real attention so as to progress the matter to a hearing other than to be listed into the trial pool in March 2017, and then ultimately, on 8 October 2019, listed for a trial by Justice Henderson before me as a “visiting” Judge.
Although it is said that the date of 8 October 2019 was the first day of a “Less Adversarial Hearing”, I made it clear to the parties that the trial before me was not conducted as a Less Adversarial Trial. There is evidence before me, to which I refer shortly, that between the time of transfer from the Federal Circuit Court of Australia to the Family Court of Australia until 8 October 2019, some three and a half years, there were issues that erupted between the parties. I cannot easily discount that the prolongation of these proceedings and the pressure and uncertainty arising from the matter remaining in the Court list for so long did from time to time exacerbate the parties’ non-communicative relationship in the equal shared care arrangement that had been ordered and was being complied with.
After the matter came before Justice Henderson in October, there was a further dispute as to the facilitation by the initial Court expert appointed by Justice Henderson (Dr N) to complete an updated family report. What I do know is that by March 2020, Dr N made it clear that she was either unable or unwilling to prepare her report, although the correspondence to the Independent Children’s Lawyer suggests that it was in some way associated with conduct of the father. It was necessary, then, to amend the date for trial before me so as to commence, as it did, on 26 August 2020 and a report by a family consultant pursuant to s 62G of the Family Law Act 1975 was ordered on 7 April 2020.
To the great credit of the family consultant, experienced social worker Ms M, and considering the stresses on resources in the Suburb V Registry of this Court, Ms M was able to prioritise this matter and provide for interviews both electronically (and with the child face to face) between 11 and 27 May 2020, resulting in a report prepared by the family consultant dated 10 July 2020, released to the parties on 28 July 2020. The report has been marked Exhibit 10. I observe that, although in the circumstances of this case, maybe little could have been achieved but in the circumstances, it was regrettable that the family report was not released until 28 July, less than one month before the trial was to commence, and after the mother had, in accordance with directions made, filed her lengthy affidavit, it being filed on 24 July 2020.
I say that because, unlike the father who did not file his much shorter affidavit until 5 August 2020 (no doubt with an eye to what was in the family report and the evidence of the mother given in her affidavit), the mother was slightly disadvantaged in that regard. It is mere speculation whether the mother’s position may have changed with time to reflect upon the report of Ms M before she had effectively advanced her case through her 302 paragraph affidavit (including nearly 300 pages of annexures) that she was required to file as directed. The matter proceeded for two days, commencing before me on 26 August.
I make comment in this case that the prolongation of the litigation has not assisted X or the parties. This is as much reflected by the parties’ cost notifications (Exhibit 9), which reveals that between them, over $320,000 of costs have been expended and/or incurred in the litigation since it was commenced by the mother over five years ago. This is an additional pressure both parties have had to incur, especially where it seems clear on the evidence they are not rich people who would find it easy to meet these expenses. In fact, I think unfairly to the mother, the father on more than one occasion during the trial sought to assert that the mother’s consistent pursuit of her wish in the best interests of the child, in her view, for majority care was effectively some form of “child abuse” by exposing the child and the father to the litigation.
I do not accept the father’s characterisation, which I regard as unfair towards the mother, not the least because the first family report of Dr L provided some evidence (which again, I remind the reader of these reasons, were untested) that raised concerns about the father’s contact and conduct. But of course, more than anything else, this litigation has been fuelled between these two very good, high-functioning parents by the chronic toxic relationship which has endured, fuelled by a lack of trust and respect for each other to a large degree and manifested in the at times ineffective communication between them as parents of this little boy.
I propose to deal with some discrete issues before dealing with the competing proposals within the matrix of the relevant primary (s 60CC(2)) and additional (s 60CC(3)) considerations.
Is the child at risk of psychological or emotional harm in the care of the father?
It is the mother’s case, and one strongly and persistently urged upon the Court by her Counsel Mr Todd, that the child is at risk of psychological and emotional harm broadly as a result of the father’s lack of respect for the mother; his involvement of the child in a dispute; and the influence (negative as it is, towards the mother) that the father exerts over the child.
I propose to deal with some aspects of the foundation for that submission later in these reasons. But for this discrete finding now, I acknowledge that there is a risk that the child could be exposed to emotional harm if the father’s attitude towards the mother and his evident respect towards the mother is not more positive, as she deserves it to be. The mother in her affidavit sets out a range of examples where she says the father has denigrated her (see paragraphs 70 to 83). Most of these occurred when the relationship was coming to an end, although at paragraphs 101 to 115, the mother sets out examples of further denigration, she says, of her by the father.
Many of the comments which the mother says the father made to her about her are offensive and I find completely inappropriate. I cannot, however, on the evidence be satisfied that the father has consistently exposed the child to his negative views of the mother. I say that because the difficulty in reconciling the behaviour in those early days with the history of arrangements for the last five years has been that (apart from occasions where the child has reacted to the mother’s disciplining and/or has expressed views adverse to the mother) even the mother’s evidence is that for “98 per cent of the time” the arrangements set out in the interim Orders have worked, consistent with those Orders.
The mother refers in her material to the letters apparently sent to her family, her employer, and the “revenge porn”. The father, in my view, whilst less than convincing in his denials that he sent those letters – was prepared to concede that at times he has made some similar comments referred to in the letters. Whoever wrote those letters to those parties was not seeking to do anything other than paint the mother in a poor light, quite unfairly to her, and likely to cause her emotional pain. There is no doubt that it has caused her emotional pain. During her testimony she indicated, in an emotional reflection of how she felt, that she had felt, in a sense, attacked by the father for many years.
The cross-examination of the father by Mr Todd began with seeking to have him assess whether the concerns he had expressed at the commencement of the proceedings post-separation (see pages 16-17 of the mother’s annexures) still apply today. That range of issues referred to by the mother in which it is said that the child was at risk on every issue in the mother’s care whilst not at risk on any issue in the father’s care has altered slightly in respect of the matters raised by Mr Todd in the father’s perception. Yet still the father asserts, but as I say now and will continue to say in his reasons I reject, that the child is in many ways at some level of moderate risk in the mother’s care but at high risk in respect of social aspects and also of abduction.
The evidence of the father given during the trial on this aspect, when seen in the light of his fixation of matters he apparently held at the time of commencement of the proceedings, does him little credit when:
a)he has had five years to either accept, explore or reject the mother’s equal care of the child through many of the child’s developmental issues; and
b)even in the view of his “risk assessment”, he proposes primarily that the child live in a week about arrangement.
It simply makes no sense that he would come to this Court and apparently continue to assert for over five years that the child live in an equal time arrangement if he genuinely held the concerns of risk which states he still holds, although to a lesser intensity.
In my view, considering the evidence the father gave under cross-examination, there is at least some weight to be applied to the tactic undertaken by the father (when he had obviously seen the recommendations of the family report writer) not to raise any significant issues about the mother’s conduct at all (which were only extracted from him in cross-examination), but rather to prepare an affidavit supporting equal time and not seeking to give evidence about matters of which he was aware, having had the benefit of reading the mother’s affidavit beforehand.
For these reasons, and in the absence of the father gaining any renewed insight through the trial process or the counselling that the Court proposes the to order for the parents (which both parents agree to be undertaken at their joint expense by Dr P), there is a risk that the father’s behaviour will continue and could cause this child emotional and psychological harm, in my view. Mr Todd, on behalf of the mother, asserts that the child’s behaviour is an example of “parentification”.
As I understand the term, I would not agree, and neither did Ms M, although considering the child is nearly 13 years of age, it does appear, on the evidence, sustainable to find that the father, whether deliberately or not, has caused the child at times to feel empowered to say or do whatever he may wish to do so far as it relates to the mother. I will return to this topic later in these reasons.
Compliance with orders
It is a strange feature of this case that, since the Orders were made on 14 July 2015, there has been no application for enforcement or contravention filed. I can only assume that the parents had the benefit of sensible legal advice at the time, but it seems, on the evidence I have heard, that there is little evidence of the conflict such to have caused a revisiting of these arrangements other than through a trial process. It is acknowledged that the first example of what Mr Todd described as “self-placing” by the child occurred on 17 July 2018. Other examples occurred on 4 October 2019, February 2020, and 6 March 2020. I conduct a brief analysis of those events now and rely on the findings I make in respect of this matter generally.
The parties, through their material and as explored briefly in cross-examination, identified only four significant events when it was described as reflecting X “voting with his feet”. In my assessment these events do not amount to a considered and sustained demand to “self-place” (notwithstanding the child’s expressed wishes), but more a manifestation of the child’s awareness of differences in his parents’ style of parenting – and an opportunity to express his disagreement – particularly towards the mother. It is also of note, that the three last events identified all were within six months of the anticipated trial of these proceedings. In any event, I make these findings:
a)17 July 2018 – at paragraphs 16 and 17 of his trial Affidavit, the father deposes to receiving a telephone call from X at 3.15pm during a school holiday period (when he was with the mother), and asserted “Mum is abusing me”. The mother, at the request of the child, took him to Hungry Jacks. The child then stayed with the father for three nights preceding the week the child was scheduled to be in the father’s care. At paragraph 19 the child, the father says, gave him a report of the mother getting angry with him and threatened to “throw all my toys out”. The child returned to the mother on 27 July 2018 when the week-about parenting arrangements continued undisturbed until the next event over 14 months later.
The mother’s version of the incident is set out at paragraphs 169 and 171 and confirms the child became angry and “had a temper tantrum because he didn’t like how I handled him bullying a younger boy whilst he attended a computer course”. She admits she said to X “I hope you are proud of yourself” and she threw out three toy dinosaurs. The mother says this incident was preceded by remarks made by X on 14 July 2018 (see paragraph 168) and further on 22 July 2018 – effectively saying that the father will “win in Court” and that the father said he could “choose to stay with him”. The mother says the child told her some time later the father had replaced the toys “thrown away”.
My assessment of this trivial incident is that whilst the mother’s form of chastisement and consequences could have been better, yielding to the child’s demand sent a message to X he was in control. The father’s response, where the suggestion of “abuse” was a total exaggeration, should have been to tell him to work it out with his mother – as parents and children have to do.
b)4 October 2019 – this was the Friday before the first LAT event on Tuesday, 8 October 2019. I have no doubt the child probably knew a Court event was imminent. It was meant to be a day when the child would return after school to the mother’s home to commence the next week with her. In fact, as paragraphs 21 to 31 of the father’s Affidavit set out, the dispute between the child and the mother resulted in the child, after an argument with the mother, telephoning the father “distressed and crying”, saying he would be “at the oval” for collection. The father says he thought “he must have run away from his mother and was on his own”, some 45 minutes’ drive from where he then was. The father did not ring the mother, but did telephone Police who spoke to the child who told the Police apparently “he doesn’t want to stay with his mother”. An attempt to changeover on the Saturday morning failed when a dispute between the child and the mother occurred over the “child’s” iPhone. The child returned to the mother on Tuesday, 8 October 2019 (after the Court event), with the father saying he had to encourage the child to go to the mother which he did. No further disruption of a similar nature then occurred for nearly four months.
The mother’s version of the incident is deposed to at paragraphs 180 to 200 and in effect the mother says the child made comments on 4 October 2019 like “why is Court like just wasting my life” and ‘why can’t you just stop Court”. I accept X said these words to the mother and that they demonstrate his awareness of Court events approaching. The child again raised the issue of the throwing out of his dinosaurs; threatened to ring his father (which he did); went to the oval; spoke to the Police (who the mother said told her effectively there was nothing they could do) and was present when the parents had an argument over the “child’s” phone.
The childish behaviour of the parents around this dispute continued with changeover arrangements that did not result in the child returning to the other until about 9.45pm on 8 October 2019.
In my assessment this is another example of the mother “giving in” when she should have stood firm but her position to do so was not assisted by her discussions with the father and then his “support” of X doing what he wanted to do. This “empowerment” of the child is not in his best interests.
c)February 2020 – I see no need to dissect the events which the mother deposes to at paragraphs 211 to 220 of her trial Affidavit. I accept that the comments the mother says the child made, were made. Whilst I do not say the father has overtly influenced the child to make comments like:
“You are so stupid, wasting money on Court, you could have a nicer car instead.”
“I’m just going to annoy you until you take me to my Dad’s.”
“You’re wasting my university money on Court.”
the father’s assertion that he believes the mother’s pursuit of orders other than equal time, have a similar ring to them.
That the child during this period over February 2020, on one occasion, rather than returning to his mother’s home chose to catch a bus to his father’s; lied to his mother about needing to go to the toilet at school when he shared with friends he “was doing a runner”. Although the father’s position was, in essence, that his actions were those of a concerned parent, I again indicate these events demonstrate how a child of even good parents can be manipulative – especially when the parents communicate poorly and are not seen by the child as being “on the same page”.
d)6 March 2020 – the father’s evidence in chief about this event, noting the conversations the father says he had with the child just nine days earlier (see paragraph 34), are deposed to in paragraph 35 as follows:
“35.On Friday 6 March 2020 X was again meant to go to his mother’s place after school. He came home to my place instead. I received no communication from Ms Keelin. I sent X to school on Monday with instructions to do what he was supposed to do and go to his mother’s after school. He did so.”
Before I move to the mother’s version and her cross-examination, the father’s evidence is already concerning at one level. The Orders of the Court detail what the parents are “suppose to do”. This child is expected to be encouraged and guided to do what the Orders prescribe that bind the parents.
Nonetheless, I am critical of the mother’s apparent assumption that the child went to the father’s home. Merely “tracking him” on his mobile phone was not sufficient. The fact that the mother left the child, until he surfaced for some time after she expected him to be at her home after school, is as disappointing as the father’s failure to immediately ring or communicate with the mother when he knew of the child’s whereabouts.
If am to accept that the father did not know the child was coming to his home and that the mother merely assumed he had, then it takes little imagination to think of tragic consequences that could have befallen this child using public transport in these circumstances if they were both wrong. The child should have understood, if both parent’s view is accepted, that neither knew where he was and as a result they would be rightfully concerned. This lack of understanding of the emotional pain that would cause his parents shows his immature attitude and reflects poor parenting in my view.
Family report
The report of family consultant Ms M is relied upon by the Independent Children’s Lawyer and the father to support the primary positions that they adopt. Ms M, for the reasons set out in her report, provided at paragraphs 65 to 75 her “evaluation”, which follows:
“65.X has lived in an equal-time parenting arrangement since Orders were made for this by Judge Monahan in 2015. At the time those Orders were made, the parents were each seeking to be X’s primary carer, making serious claims about the other parent. In relation to the proposals currently on the table, while Mr Faith has stated that he wants the equal-time parenting arrangement to continue, it is clear that he actually wants X to live in his primary care, as does Ms Keelin. Unfortunately for X, the parental relationship and the attitude both parents hold about the other seems to be similar to that which existed in 2015. The recent history from both parents suggests that they have parented X in parallel for five years, with little communication between them that is positive. It is hard to imagine what it has been like for X to go back and forth between his parents knowing that they dislike each other intensely. It is noted that the parents even seem to perceive X to have a different personality and interests. Ms Keelin considers X is not achieving his academic potential and she has some concerns about his peer relationships. She does not think he is interested in any one sport. Mr Faith considers that X is doing well at school and he sees him as a confident, social, sporty boy. It is hard to reconcile these differences or to understand what it must be like for X to experience such a compartmentalised childhood when his parents see him so differently. It seems likely that X is currently preoccupied with the Court process which may be affecting his schooling and peer relationships and it is seen as helpful if he can continue to attend the school counsellor. It seems important that any such support for X be confidential from any Court proceedings, so that he has the best chance of being open.
66.In many respects both parents seem very committed to X and his care. Ms Keelin has a somewhat reserved personality, and yet she spoke about X with warmth and care. Mr Faith has a determined personality and he has such a dramatic and negative way of speaking about Ms Keelin, yet he, too, is very in touch with X and hands on with X’s activities.
67.When reading Dr L’s Expert Report, the most potent information relevant to this assessment is the way in which X’s words to Dr L resonate with things he said to the Family Consultant. Similar to the way X did with Dr L, X listed for the Family Consultant all the positive things his father has done for him. It is noted that Mr Faith also recited such a list to the Family Consultant. While it is not possible to be sure that Mr Faith has helped X with what to say, as this is denied by both Mr Faith and X, there do seem to be similarities in the way they talk about past events. X uses similar dramatic language to his father, for example, saying that his mother threw him against the wall, but that, when questioned further, it seemed that X was saying that his mother pushed him into a wall divider. Other examples might suggest that Mr Faith has influenced X. One example is X’s account of his father being punched by his mother when this did not seem to be an event that X himself had observed. Despite Mr Faith’s protestations about influencing X, it does seem that, if Mr Faith talks to X about his mother in the same way he has expressed himself to the Family Consultant, it is not surprising that X has such a negative view of his mother. Despite X’s very strong views, it is therefore not possible to discount the possibility that that X has been influence in his views by Mr Faith and the Court will need to consider carefully what weight should be placed on them.
68.Mr Faith claims that no love exists between X and his mother. The Family Consultant notes, however, that there are some inconsistencies in X’s resolve to be negative about his mother. For example, Ms Keelin’s account of X holding her hand and of them playing Lego together and going for walks suggests otherwise. It is also noted that, despite X’s strong statements, he has largely complied with the week-about arrangement for five years. Mr Faith argues that X runs away from Ms Keelin’s home, but it is not clear that this is what occurred as Ms Keelin argues that the two occasions such a thing happened were orchestrated by Mr Faith and connected to upcoming Court events.
69.In relation to the claims made by both parents about family violence, there does not seem to be clear supportive evidence to support one parent’s version of events over the other. It is acknowledged that the Family Consultant did not view the police subpoena material which, if accepted into evidence, may assist the Court on this issue. It does seem that Ms Keelin is frightened about what Mr Faith may do next, but Mr Faith claims the same is true for him, as he claims Ms Keelin makes false allegations about him. Having changeovers mostly before and after school may have gone some way to making things easier for the parents and X.
70.In relation to the claims both parents make about the other’s mental health, it is noted that Dr L did not diagnose any mental health condition for either parent. Having said that, it seems likely that ongoing family law proceedings have negatively impacted the functioning of both parents from time to time.
71.Ms Keelin proposes that the longstanding parenting arrangement be changed so that X lives primarily with her. She claims that Mr Faith is influencing X against her and that X’s development of his personality is being manipulated by Mr Faith. Ms Keelin said that she knows her proposal is against X’s wishes. It is noted that, regardless of how X came to hold such views, he holds them very passionately. If the Court made orders for X to live primarily with his mother, there would seem to be some significant risks associated with this option. There is a risk that X would refuse to comply with such an Order as he gets older, and that he self-places himself with his father. There is a risk that having to comply with such an Order would cause acute emotional and psychological tension for X given his loyalty to his father, and that there would be conflict between him and his mother, more so as he ventures into adolescence. It seems possible that an irreconcilable breakdown in the relationship between X and his mother could be an outcome of a change in the Orders, particularly if they are contrary to X’s expressed wishes. This option would also seem to be likely to involve further family law proceedings, and to increase the conflict between the parents and lead to X being further involved in Court appointments. It is also possible that such an Order would increase the negative aspects of Mr Faith’s behaviour as he would feel in some way that he has lost a great deal, an atmosphere that X is unlikely to be immune to. If the Court makes an Order for X to live primarily with his mother, this would also be a big adjustment for X, who is likely to miss his father and brother a great deal, especially as X identifies with his father so strongly. It may be, as Ms Keelin suggests, that X would benefit from spending less time with his father if this means that X would be freer to develop his own personality, but it may have also have the opposite effect if X spends his days longing to be with his father and battling with his mother.
72.Although Mr Faith is not at this time formally seeking an Order for X to live primarily with him, there does seem to be some logic in Ms Keelin’s thinking that X would be estranged from her completely if this was to occur. Mr Faith does not seem to be able to promote the relationship between X and his mother. On the one hand, Mr Faith says that he has encouraged X in his relationship with his mother, and yet he also claims that Ms Keelin is a violent and uncaring mother to X. It is not clear to the Family Consultant whether Mr Faith believes all the things he says about Ms Keelin to be true or whether he says them out of a desire to gain some advantage in the dynamic between them. Some of his statements about Ms Keelin seem very dramatic, such as his claim that Ms Keelin and her family are psychologically scarred because they lived in a concentration camp. If the Court finds evidence to suggest that Mr Faith has purposefully made up such claims about Ms Keelin, this is very concerning for X’s future as such distortions in thinking could permanently damage X’s perception of his mother and impact their future relationship. The Family Consultant considers there is a strong likelihood that if X lives primarily with his father he will lose his relationship with his mother.
73.Mr Faith is formally asking the Court to maintain the current Orders for a week-about equal time parenting arrangement. Taking everything into account, this option seems to be the one most likely to mean that X can maintain his relationship with his mother. It does mean that X would continue to move between his two homes with little chance of the parents being united on any issue. It must be said that, ordinarily, an equal time parenting arrangement is contraindicated when the parental relationship is so poor but, in this case, the polarised nature of X’s two homes seems to have allowed X a way of maintaining a relationship with his mother without disrupting his loyalty to his father.
74.If the Court maintains the current equal time parenting arrangement, it would seem to follow that the parents should have equal shared parental responsibility. The effect of this, given the dynamics between the parents, would mean that jointly made decisions are extremely unlikely. In this case, it may be necessary to have very prescriptive Orders and that important decisions, such as which high school X is to attend and overseas travel, should be made by the Court at the conclusion of these proceedings. It is noted that Ms Keelin has said that she would prefer to move closer to X’s high school if the Court leaves the parenting Orders as they are, as she wants X to make friends with local students. This is a very child-focussed approach and much preferable to X attending a school at some midpoint, so that it is harder for him to catch up with school friends in both houses.
75.The Family Consultant considers that great emotional and psychological harm has been caused to X over the life of the parenting dispute. Sadly, it seems that this may continue to be the case for X. Taking everything into account, it is suggested that a harm minimisation approach be adopted by the Court, by way of there being very clear Orders and a cessation of these legal proceedings. The priority for X will be to have a parenting arrangement which gives him the best chance of maintaining a relationship with both his parents.”
The evaluation led Ms M to adopt as her recommendations that the parents have equal shared parental responsibility; that the equal time parenting arrangement remain in force; that the Court make a decision about X’s high school (if the parents are unable to make a joint decision); and for X to continue to attend upon the school counsellor for the remainder of the 2020 school year. Her opinions set out in her report were the subject of cross‑examination and in respect of that cross-examination I note the following further evidence given by Ms M:
a)The father was not assessed as having “stepped away” from his concerns about the mother and his statement that “no love exists between X and his mother”;
b)She held concerns about the capacity of the father to promote the relationship between X and his mother but said it “is not clear” to her whether in fact he believes the things he says about the mother;
c)It was most potent to her assessment the way X expressed to Dr L similar comments to those expressed now;
d)The fact that X could not give a “balanced overview” of his parents reflects some influence – for example telling the child he would “go to jail” if X did not comply with the Order;
e)The strong loyalty to his father (for a complicated number of reasons), may not assist his emotional development and the prolonged period of these proceedings have added to the emotional risk to the child as well;
f)In recommending ultimately for the continuation of equal time, and considering the prescribed nature of the parents’ relationship, coupled with the child’s consistent views (expressed “passionately”), the report writer was adopting a “harm minimisation” approach;
g)If the child lived primarily with the father, his relationship with the mother would be at risk, but also, if the Court ordered that he live primarily with the mother (or spend less time with the father) his sense of loyalty to the father is “so great” the chid would struggle emotionally with a high risk of “self-placing” back to the father;
h)It would assist X if there was less involvement with the father (e.g. by telephone etc.) when he is in the mother’s care; and
i)Although Ms M, under cross-examination by Counsel for the father acknowledged an “equal time” arrangement was not the first option that came to mind, on balance in her view, the “path of least risk to the child” was continuing the current care arrangements. It has, at least, allowed the child to enjoy time with the mother, even though tensions have arisen at times.
In my view, the evidence of Ms M should be given some weight and her recommendations some weight. They are well-considered and try to identify the best arrangement for the child in a very difficult and finely balanced case. I of course, as Mr Todd properly reminded the Court, am not bound by the opinion of any Court expert, but the evidence of a Court expert is but part of the evidence that the Court needs to consider. However, often in cases, and this is one such case, it is appropriate to give weight to the opinion of the court expert who has been the eyes on the child and who, unlike the Court, has had a chance to observe the child. In this case I do so, having formed the view that the opinions expressed by Ms M in her report leading to evaluation are supported by generally the evidence I’ve heard and the findings I now make.
Primary considerations
I rely upon but do not repeat findings already made. The Court is required to consider “the benefit to the child of having a meaningful relationship with both of the children’s parents”. In my view, both parents acknowledge by their proposals (and even the alternate proposals that were offered to the Court) that they accept, as I do, that the child will benefit from having a meaningful relationship with both of his parents. I would find that his capacity to enjoy and be enriched by the significant skills and attributes that each parent has will not only allow him to have a meaningful relationship, but for the relationships which currently exist to continue to develop. As I now observe however, the conduct/conflict of the parties could put at risk their child’s development in that regard.
Section 60CC(2)(b) requires the Court to consider the need to protect the child “from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence”. The Parliament has indicated through the legislation that this consideration must be given greater weight than the consideration earlier referred to as to the benefit of having a meaningful relationship. I have already indicated my reasons for the finding that the child is at some risk of psychological or emotional harm in the care of the father if the father’s attitude and conduct does not change.
In my view, a further factor of risk to this child is the ongoing parental conflict. This is not as simple, in my view, as blaming the father for all the parental conflict which has occurred, although it is a contributor. The fact that the mother has felt it necessary in her trial affidavit to continue to set out details of historical events so long ago does suggest to the Court, and I find, that the mother, in her quest for the child to live primarily with her, has found it difficult to accept that the child gains the sort of benefits from living or spending substantial time with the father that he clearly does. It would be mere speculation as to whether these parties, if they had taken up the opportunity for personal counselling that Dr L recommended four years ago, would present differently to the Court now.
The parental conflict contributed to in some way by both parents and their ineffective communication, which despite the assertion by the father that it is all the mother’s fault (which I reject) are for this nearly teenage boy the greatest risk for him reaching his potential. It is for those reasons, and although I accept somewhat speculative, that the Court will Order (and the parties agree) that family therapy between the mother and father to improve their co-parenting technique and communication be undertaken.
Whilst I understand the mother, through her Counsel, suggests that this is not likely to be successful, on the evidence that I have seen before me, particularly the way that they have compromised their co-parenting for five years, and now that this litigation is at an end (at great cost to both parties) I believe there is every prospect that these two good and sensitive parents will be able to co-parent with less conflict into the future. Of course, if I am proved to be wrong, then sadly further litigation is likely. As a result, in that regard, the findings I make now may well become relevant in any further litigation.
Additional considerations
It has been a strong foundation for the father’s position that the Court should give weight to what has been the consistent wishes expressed by the child X to live with him. As I have already identified in the report of Ms M, that is certainly the expressed views of the child. In that respect I do not regard the four instances where the child has “self-placed” as an expression of a desire to live with the father, but rather a degree of unhappiness with the mother’s conduct at the time. I formed that view because of the way in which the child has previously and during those events, on the mother’s case, which I accept, engaged happily with her.
In many ways, this child is testing his boundaries. The parties’ attitude to the child doing so has the likelihood of creating an environment where this child will tell each parent what they think that parent may wish to hear, and even where, as in this case, the child has felt angry enough, as the mother would say, or confident enough, as the father would say, to express a view he knows will be contrary to the mother’s hopes and beliefs. He does so in that context.
As a result, I do apply some cautious weight to the comments made by the child as recorded by the report writer. I think it is likely that the child’s wishes have been shaped in some way by what he understands to be the father’s position and the strong loyalty that he has evinced in his behaviour towards the father and his household (which includes his older brother Y, aged 41 years). It is also clear to me that the father and the child do share a number of activities with which the child is participating, particularly racket sports.
On more than one occasion, the child’s involvement and interest in racket sports has been mentioned during the trial. The father and, in fact, the child’s older brothers have had a long association with racket sports, including coaching. However, history records often with children who are interested in a sport or activity, moving away from that sport or activity if they are placed under too much pressure by a parent or parents to excel in an unbalanced way. I have no doubt, from what I have seen in the evidence, that this child loves racket sports and may well wish to play at higher levels.
However, notwithstanding his wishes expressed, there may be some benefit to the child in maintaining an equal care arrangement that allows him to have some balance in the activities that he engages in at this stage until he is old enough and mature enough to decide whether a particular sport is something that should occupy significantly more of his time in both households. It is also, in my view, important to record and to again indicate what the child said to Ms M when he was asked his views about matters remaining the same, his apparent acceptance of that as a proposition (although I accept on conditions that he expressed) reflects strongly, in my view, that he can well cope with an equal time arrangement into the future.
I am not satisfied that in the history of this matter, bearing in mind the age and maturity of the child, that even an expression that he wishes to live with the father (sometimes expressed as to “100 per cent with the father”) is a mature reflection of the effect that would have on his relationship with his mother and the time he spends with the mother. I give the father some credit for what I believe to be, on balance, his genuine acceptance that just following the child’s wishes in this regard would be contrary to his best interests, such that although an alternate proposal, his primary proposal has been consistently and at trial was for an equal time arrangement.
However, it is likely that this child has the potential, like most teenagers, to manipulate and/or play off one parent against the other, especially where the parental communication is poor and where the child perceives that he can get his own way, because one parent will support something he wants to do without consulting the other parent. That is an element of the conflict between the parties and their poor communication that exists in this case, which both these parents should be alert to and which I have no doubt will be part of the therapy provided to them by Dr P.
It is clear that the child’s primary relationships are his mother and father. I am satisfied, despite the father’s unfair characterisation that the child may have “minor love” with the mother (which I totally reject), that X’s relationship with each parent is strong and warm. I have no evidence from his older brother Y, who was offered the opportunity to be interviewed for the family report. The evidence of Ms M in her report is that Mr T, who lives in the father’s home, “did not wish to be involved in the report process”. He has not provided any evidence. I do note, as the mother indicated in her evidence, that there is a significant generational gap between Y and X.
I accept the mother’s evidence that she has a strong and warm relationship with her parents and the other parties connected to the maternal family. Bearing in mind the maternal grandparents’ ethnicity, these relationships are important to the child and should be encouraged and nurtured. I have no doubt the mother will do so. Whilst the mother was critical of the father not presenting the child to her family when the child was in his care, I think that criticism was unwarranted. It is unlikely, in the high conflict situation these parents have created, that was ever likely to occur.
I am satisfied that the parents have, through their equal time arrangement, participated in making decisions about major long-term issues and have spent time and communicated with the child, although with telephone time, some difficulties have arisen from time to time.
I do not need to make a finding adverse to either parent about the extent to which each of them has fulfilled or failed to fulfil the parents’ obligation to maintain the child. I say that conscious of the mother’s assertion in her affidavit that between 3 March 2015 and 26 June 2020 the father had not paid his half of certain school and other fees, which he she calculated to be $18,903.
In final submissions when I raised this matter with Mr Todd, he properly conceded that there is no Order or legal obligation upon the father to do so. I accept that the issue relating to school involves some school fees if the child attends C School. The mother is aware that if the child attends that secondary college, she will be required to bear the costs of attending that college primarily, although the father may choose to contribute. If that is a decision made by the Court, it would be a positive expression of his obligation, under child support legislation in this country, to meet equitably the needs of their child; that to the extent that he is able to do so, he supports the child’s schooling, including payment of school fees and extracurricular activities if possible. I am not, however, enlivened to make any child support orders in that regard.
In the evaluation at the conclusion of these reasons, I shall deal with what is in this case a significant factor to be considered, namely, under s 60CC(3)(d), the likely effect of any changes to the child’s circumstances.
In respect of the parties’ capacity and attitude to parenting, I have already made the observation that these are good parents who have very strong work ethics; an appreciation of education and the benefits of a good education, and who value strongly honesty and lawful behaviour. Their compliance individually with the Orders of the Court reflect that attitude. The child has been described as a compliant child, which again reflects the parents’ attitude. However, not surprisingly, the parents, who have 13 years difference in age; different genders, of course; were initially raised and born in separate countries, are therefore different in many ways, parent differently. I do not, on all the evidence, find either parent to be superior or inferior to the other parent. They bring to the parenting role different skills and talents which, if not shaped by conflict and lack of respect and trust, as to some degree it has to date, has every opportunity to enrich this boy in a way where he could indeed be regarded as very fortunate.
There are no family violence orders in place, and apart from the incidents I have referred to already, particularly the incident in February 2015, family violence does not arise save for issues associated with the definition of family violence relating to denigrating and derogatory behaviour, to which I have already referred.
The Court is required to consider whether it would be preferable to make “the Order that would be least likely to lead to the institution of further proceedings”. I cannot envisage these parties being anxious to continue litigation. Of course, they are perfectly entitled to exercise rights of appeal if that is their desire. However, if they do not do so, then the Orders that I propose to make in my view are Orders least likely to lead to further proceedings.
The parties would be aware that if they sought to vary those Orders, they would need to demonstrate a substantial and material change of circumstances from the position not as it was in July 2015 when Judge Monahan made the interim Orders, but rather a change of the circumstances as I find them to be at this stage. It is to be hoped that these parents, again with the benefit of the counselling which they have agreed to undertake, will find ways, as all parents must do from time to time, to compromise and be flexible in the pursuit of the child’s best interests without engaging in further litigation or unnecessary conflict.
Parental responsibility
The parties have had an interim Order for equal shared parental responsibility for over five years. The mother’s proposition for sole parental responsibility was in some way shaped, I think, by her desire for an Order that there be primary care to her. As it will soon become apparent to the mother, I do not support her primary position. In those circumstances where an equal time regime occurs, it is important, in my view, that both parents have the opportunity to be involved in major long-term decision-making. Lest I be accused of pulling the cart before the horse, let me make it clear that there is no principled basis, in my view, notwithstanding the high conflict, to depart from the statutory presumption of equal shared parental responsibility in this case (see the observations of Justice Kent J in Vallans & Vallans [2019] FamCAFC 260).
Whilst the parties could not reach agreement as to the child’s secondary school education, a matter which I have determined to be at C School from the beginning of 2021, there is no other evidence that this healthy child, whose faith is not in dispute, where the parties do not seek to relocate or change his name, would be unable to, through proper consideration of the other party’s view, reach a decision in the interests of the child of a major long-term nature. More so, in my view, as Justice Kent in the aforesaid judgment indicated, to remove a parent with significant involvement in a child’s life from the decision-making process of a major long-term factor should not be something ordered lightly.
Equal time
With an order for equal shared parental responsibility being made, the Court is required to consider whether an order for equal time is in the best interests of X and reasonably practicable. In respect of the determination of whether it is in the best interests of the child, the mother’s primary proposal and the consequent effect on change in the child’s circumstances arising from the mother’s primary proposal have been considered, and in my assessment, an equal time order is in the best interests of X for these reasons:
a)I agree with the analysis undertaken by the family consultant that to continue with the equal time arrangement is the “path of least” emotional risk to the child;
b)When the continuation of equal time was raised with the child he indicated it would be “OK” – but on conditions which, on the evidence, are unlikely to arise (e.g. abuse by the mother);
c)Where I am satisfied both parents have the capacity to meet the physical needs of the child, reducing the father’s time, as the mother’s proposal would create, is likely to cause the child to continue to test the boundaries as the evidence identifies and, even if there was a moratorium of time, I believe the child’s expressed wishes to live with the father would intensify; and
d)I do share the concerns of the report writer about the father’s limitations. He appears to be a highly competitive parent, able to see all the positives (and there are some) of his parenting but unable to really understand and appreciate the difference the mother’s good parenting offers X. Whilst I accept the family therapist will not have an easy task, in the end the deep love each parent holds for X provides a chance that both parents, particularly the father, can modify their behaviour. The father hopefully, and I ultimately assess with assistance, can understand that as the major male role model for X, his negative attitude to the mother can create lifelong problems for X. He may not accept, but it could well result, in X rejecting him. There is more than enough love in the heart of this little boy for both of his parents.
In deciding that the equal time regime shall continue, the context to decide the schooling issue for X is set. Although both parents offer preferred schools, based on the evidence I assess it is in the best interests of X that he attend and commence his secondary education at C School for these reasons:
a)The attendance at C School permits a continuity of his Catholic education which both parents have supported for his primary education;
b)Although the father’s choice of D School is proximate to where X plays much of his racket sport, the slight inconvenience of travel to his racket sports commitments are outweighed by the benefit he derives from the likely greater continuity of friends and peers created through his primary school education at R School;
c)The child is accustomed to the use of public transport – the father deposing to having trained him in the safe use of public transport to his current school. Although the parents appear to support X generally using public transport, they both have the capacity at times to drive the child should that be required;
d)Not surprisingly, the father’s choice of D School is closer to his home (approximately 2.9 kilometres) than C School (approximately 31 kilometres). The reverse situation applies to where the mother lives, namely 7.1 kilometres to C School but 27 kilometres to D School (see Exhibit 12). The parents, and the child, have managed the travel to R School with the equal time arrangement for X’s primary education to date;
e)I am not satisfied on the evidence provided that either school is “superior” to the other or that X has such obvious “special needs” to require his educational support to be catered for in a way that distinguishes the two preferred options;
f)I would be cautious in applying any determinative weight to what the father says the child has expressed to him about the school, because of the prospect such views may have been shaped by X’s loyalty to his father and the child’s awareness of his father’s preferred option.
The Court takes note that Counsel for the Independent Children’s Lawyer, Mr Cairns, indicated support for an order that the child attend C School. The Court shall so order.
Form of order
An examination of the proposed orders attached to these Reasons reveals that, leaving aside different styles of drafting, many of the other orders that facilitate an equal time arrangement are broadly agreed. I will direct the Independent Children’s Lawyer to prepare an order, adopting the template of the Independent Children’s Lawyer at Appendix One; but taking into account the following matters that arise from the evidence and the separate proposed orders, namely:
a)the parties agree that changeovers, not otherwise taking place at school, should take place at Hungry Jacks, Suburb J;
b)Mother’s Day should be spent with the mother and Father’s Day with the father;
c)I would incorporate order 5 of the Independent Children’s Lawyer’s proposal (allowing the child to communicate with the other parent as he wishes), but would otherwise only permit, by order, the parent he is not living with at the time, to make one call a week – perhaps Wednesday. I take on board the concerns expressed by the family consultant about the child’s time with one parent being interrupted by initiated contact of the other parent;
d)It is not appropriate, in the absence of the child support jurisdiction having been properly enlivened, to make any orders as to school costs;
e)The restraints proposed by the Independent Children’s Lawyer’s order 8 should be incorporated, as should orders 10, 11, 12 and 13. I would make an order that the family consultant explain these orders to the child and shall have access to a copy of these Reasons;
f)To the extent that the father’s proposed order 8(a) seeks an injunction under s 68B of the Family Law Act 1975 and based on the evidence, no evidentiary foundation has been established for such order and as a result I will not make it;
g)In the absence of any evidence of “physical” disciplining of the child being at a level of concern, if at all, I see no basis for making order 8(d), and for similar reasons the father’s proposed order 8(e). If the parties consent to order 8(f) (arising from earlier interim Orders), it can be contained in these orders, although if not by consent I would not make the order. If previously made the destruction of images has now occurred and there is no evidence before me to contrary;
h)I will not make orders prescribing attendance at any particular extra-curricular activity. If the parties discuss and agree on X’s attendance which may span alternate weekends, then not attending is likely to create an issue between the child and the parent. They can manage that sensitively and any fall out without the necessity of an order;
i)I see no concerns to incorporating orders 10, 11 and 12 of the father’s orders;
j)It is not appropriate for the child’s passport (or any renewed passport), now that final orders are being made, to be held by the Registry. Both parents want to hold the passport. I would order that the passport be held in a joint safe custody facility with a bank and only to be released on the joint written authority of both parents to facilitate, in a timely manner, any agreed overseas holiday for the child, including presentation for any necessary visas;
k)I would not make an order sought by the mother at 10.1 to restrain the father from:
“Approaching, attending or coming to any school, sport, racket sports, religious and/or extra-curricular activity in any location that falls during X's time with the mother.”
anymore than I would restrain the mother from attending during the child’s “time with the father”.
It would be a very positive experience for X to see his parents jointly supporting his sport and other activities. The evidence of the child feeling some discomfort is another manifestation of these parents’ inability to reduce conflict and to involve the child in parental disputes. Now that these proceeding are concluded, and with the benefit of the work of Dr P, I expect, on balance, these parents should be able to participate in their child’s public activities. Of course, the parent with whom he is living at the time will be responsible for getting him there and taking him home. As X gets older he will no doubt be encouraged to take more responsibility for his activities and preparation. The evidence of his competing in a sporting event in the wrong shorts and, according to the father improving his performance after his intervention, is so trivial as not to justify further comment;
l)As the parents will have equal shared parental responsibility, the mother’s proposed order 13 is unnecessary. I would hopefully happily incorporate proposed order 14 and orders 16 to 19 relating to future travel, with the passport to be held as previously indicated;
m)I would not order the father to attend a parenting course as sought by the mother, noting both parents will undertake family therapy – a likely much more focused parent training exercise; and
n)Although the both parties seek in their applications orders for costs, the practice I would adopt is that if a party seeks an order for costs, including the Independent Children’s Lawyer, then on the next occasion I will make specific directions for costs submissions to be filed, served and responded to in the likelihood that any costs applications would be dealt with on the papers in chambers, unless otherwise ordered.
I will direct the Independent Children’s Lawyer to prepare an order, based on their template but consistent with these Reasons and circulate the orders to the parties within 14 days for comment and discussion. If the parties are able to agree on the form of order consistent with these Reasons, then it can be submitted to chambers.
If they are not able to agree on the form of orders, the matter will remain listed for pronouncement of orders at 9.30am (Queensland time) on 29 October 2020 by telephone.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 25 September.
Associate:
Date: 25 September 2020
APPENDIX ONE
That all previous parenting orders be discharged.
That the mother have sole parental responsibility for X born in 2008.
That X live with the mother.
That X spend time with the father as follows:
4.1during school term in a fortnightly cycle from after school on Thursday until the commencement of school on Monday.
4.2during school holiday periods after Terms 1, 2 and 3 Order 4.1 is suspended and time is to be spent as follows:
4.2.1For the whole of the term 1 and 3 holidays in 2021, 2023 and 2025 with the mother, commencing at 3pm on the last day of term that is a day when students are required to attend classes and concluding at the commencement of the new school term;
4.2.2For the whole of the term 2 holidays in 2021, 2023 and 2025 with the father, commencing at 3pm on the last day of term that is a day when students are required to attend classes and concluding at the commencement of the new school term;
4.2.3For the whole of the term 1 and 3 holidays in 2022, 2024 and 2026 with the father, commencing at 3pm on the last day of term that is a day when students are required to attend classes and concluding at the commencement of the new school term;
4.2.4For the whole of the term 2 holidays in 2022, 2024 and 2026 with the mother, commencing at 3pm on the last day of term that is a day when students are required to attend classes and concluding at the commencement of the new school term,
AND that following such holidays, upon returning to the new school term, X will stay with the parent who he spent the holiday period with for the balance of the week and will go to the other parent after school on the first Friday of the first week of the applicable term.
4.3during the December/January school holiday period Order 4.1 is suspended and time is to be spent as follows:
4.3.1For the first half of the holidays commencing in 2021, 2023 and 2025 with the father from the conclusion of school on the last day of term 4 until the midpoint of the holidays;
4.3.2For the second half of the holidays commencing in 2021, 2023 and 2025 with the mother from the midpoint of the holidays until 9am on the commencement of the new school term
4.3.3For the first half of the holidays commencing in 2022 and 2024 with the mother from the conclusion of school on the last day of term 4 until the midpoint of the holidays;
4.3.4For the second half of the holidays commencing in 2022 and 2024, with the father from the midpoint of the holidays until 9am on the commencement of the new school term
AND that following such holidays, upon returning to the new school term, X will stay with the parent who he spent the holiday period with for the balance of the week and will go to the other parent after school on the first Friday of the first week of term 1
That for the purposes of the end of term 4 school holidays, the midpoint of the holidays is the day which is the middle day between the last day the child is required to attend school and the first day the child is required to return to school the following term and in the event the school holiday period has an even number of days the midpoint shall be the latter of the two middle days of the school holiday period.
During term time, all changeovers will occur at X’s school.
During non-school days, days when X does not attend school for medical or other reasons, and the midpoint of the December/January school holidays as defined in Order 5, changeovers will take place at 3pm on Fridays at Hungry Jacks Suburb J.
That X attends C School from the commencement of term 1 in year 7 (2021)
That the father be, and is hereby restrained by injunction from:
9.1Discussing these proceedings, or any issues raised in these proceedings, with X and/or in his presence or within hearing range;
9.2Showing to X, discussing with X or leaving documents where X can read or access them any document prepared in connection with these proceedings;
9.3Denigrating the mother or her immediate family to X and/or in his presence or within hearing range;
9.4Physically or emotionally threatening and/or disciplining X,
and shall do all things within their power to ensure that no other person does so.
That the father be, and hereby is, restrained by injunction from:
10.1Approaching, attending or coming to any school, sport, racket sports, religious and/or extra-curricular activity in any location that falls during X's time with the mother.
10.2Publishing or distributing or causing to be published or distributed by any means any nude photos and/or nude videos of the mother;
10.3Sending or causing to be sent to any person, nude photos and/or nude videos of the mother;
10.4Sending or causing anyone else to send by any means any documents, photos, videos and/or any other items to the mother's family, mother’s brother and/or the mother's or mother’s brother’s current or future employer.
10.5Showing any nude photographs or videos of the mother to X and/or leaving these where X can find them.
10.6Communicating by any means with the mother's family and/or the mother's prior, current or any future employer.
10.7Communicating with the mother other than as follows:
10.8.1by telephone call to mother’s home phone to advise the mother of any serious illness or injury suffered by X and the name address and telephone number of the relevant hospital or medical practitioner;
10.8.2through the Our Family Wizard App and the father be and is hereby restrained from writing anything in such App to the mother which is not directly related to the child and he is further restrained from using offensive, discourteous or derogatory language in the App or from otherwise using the App to record personal comments or criticisms about the mother, or as a means to threaten or intimidate the mother;
That within 48 hours of the date of these Orders the father deliver to the mother's lawyer by courier (or by hand delivery through his lawyer) the original and every copy he has in his possession, custody or control of every nude photo and nude video he has of the mother, and further that the father concurrently provide a statutory declaration that neither he nor anyone known to him has any originals and/or copies of such photos and videos.
That each party shall keep the other informed of any serious illness or injury suffered by X whilst he is in their care and the name address and telephone number of the relevant hospital or medical practitioner.
That the father is at liberty to obtain from any school at which X attends copies of school reports, newsletters and other documents provided to parents and these Orders shall serve as authority to the school to provide such documentation.
That each parent shall keep the other informed of:
14.1Their residential address;
14.2Either their landline or mobile telephone number,
and advise of any changes thereto within 24 hours of such change.
Each parent is permitted to travel outside of Australia with the child pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) for a holiday during their time under these Orders with the child during school holiday periods and at other times if mutually agreed in writing.
That if either parent proposes to travel overseas for a holiday with the child pursuant to these orders, that parent shall give at least 42 days written notice prior to the commencement date of the proposed travel a full itinerary to include:
17.1The name of the airline/s and flight number/s, or ship and details or other mode or transport;
17.2The departure and return dates and times;
17.3The countries to which the child shall be travelling and/ or passing through;
17.4The dates on which the child will arrive and depart each country;
17.5A landline or mobile telephone number and contact addresses at which the child will be in each country; and
17.6Confirmation of the payment of travel insurance covering the child for the full period of the overseas travel including a copy of the insurance policy.
That within 14 days of the date of these Orders both parents do all acts and things necessary to apply for an Australian passport for the child. To facilitate this the mother shall provide to the father a completed passport application form and the father shall sign and complete all information that is appropriate and return the form to the mother within 7 days of receipt of the same. The cost of applying for the child's passport shall be equally shared.
That if the child's Australian passport is required to be applied for or renewed, both mother and father shall do all necessary acts and things and sign all necessary consents to enable this to occur so that the child has a valid Australian passport at all times and renewals are to take place not less than 6 months prior to expiry. The cost to renew the child's Australian passport shall be equally shared.
The child's passport shall be held by the last travelling parent and be provided to the other parent within 48 hours of the other parent requesting it for travel. The mother shall initially hold the child's Australian passport.
That the father attends a parenting after separation course.
That the mother forthwith provides a copy of these Orders to X's school.
That whilst the child is spending time with the other parent, the parent with whom the child is not with may call the child once each Thursday from 7.00pm until 7.15pm.
That whilst the child is spending time with the other parent, the parent with whom the child is not with, is not to send emails, texts, SMSs and messages to the child’s iPad, phone, computer, social media etc other than the phone call permitted under Order 19 hereof or except in the case of an emergency involving the child.
That the father pay the mother's costs of and incidental to these proceedings.
APPENDIX TWO
All prior parenting orders be discharged.
The Applicant Mother and the Respondent Father have equal shared parental responsibility for X born in 2008 (“the child”).
The child shall live with each of the parents during school terms and school holiday periods in accordance with the following orders:
a)During school terms and midterm holidays X shall live with each parent on a week about basis with changeovers to occur each Friday.
b)If X attends school on a Friday changeover day that is where changeover shall occur at cessation of school,
c)Changeovers that do not occur on a day that X attended school, whether it be a non-attendance day, midterm holiday period, due to illness or other reason, shall occur at Hungry Jacks, Suburb J at 5pm that day.
d)School holidays are defined as commencing at the cessation of school on the last student attendance day of term and concluding at the commencement of school on the first student attendance day of the new term.
e)In even numbered years X shall live with mother for the first half of the end of year holidays and with the father for the second half of those holidays extending to cessation of school on the first Friday of the next term.
f)In odd numbered years X shall live with the father for the first half of the end of year holidays and with the mother for the second half of those holidays extending to cessation of school on the first Friday of the next term.
g)If X attends school on a changeover day that is where changeover shall occur,
h)For changeover at the midpoint of the end of year school holidays, if the school holidays have an even number of days the midpoint will be the latter of the two middle days and changeover will occur at 5pm that day.
i)Changeovers that do not occur on a day that X attends school, whether it be a non-attendance day, due to illness or other reason, shall occur at Hungry Jacks, Suburb J at 5pm that day.
Notwithstanding any provisions in these orders to the contrary the child shall spend Mother’s Day weekend with the mother and Father’s Day weekend with the father from the Friday before that respective weekend to commencement of school the following Monday.
In the event X wishes to communicate with his mother or father while living with the other parent that parent shall do all things necessary to allow and facilitate such communication including allowing X access to any mobile phone, iPad or Apple Watch that has been given to him.
Both parties may communicate with X text message and/or e-mail at any given time and by phone each Sunday, Tuesday and Thursday when he is not living with them and for the purpose of communication by phone;
a)Each party shall ensure that X has access to a fixed phone and if not available a mobile phone and the number is known to the other party,
b)The party initiating the communication shall do so between 7pm and 7.30pm and the duration of the communication shall not exceed half an hour,
c)If X is unavailable to receive that communication the parent whom he is living with shall do all things necessary to facilitate X returning that call or communication to the other parent as soon as practicable that evening, and
d)Each parent shall give X privacy when he is communicating with the other parent.
Unless otherwise agreed each party shall do all acts and things necessary to ensure that X commences and completes his secondary education at D School.
The following restraints shall apply;
a)Neither party shall enter upon or approach within 100m the other party’s residence,
b)Neither party shall discuss these proceedings or any issues raised within these proceedings with X and/or in his presence. They shall not show to X documents prepared in connection with these proceedings or leave those documents at any time where he can access them.
c)Neither party will denigrate the other to X or in his presence in any language and shall take all necessary steps to ensure X does not remain in the presence of any third party denigrating the other parent in any language in X’s presence.
d)Neither party shall use physical discipline on the child.
e)Both parties are hereby restrained from recording by video, mobile phone, camera or any other recording device any changeover for X and is further restrained from requesting, permitting or enabling any other person to record changeovers with the child
f)On a without admissions basis and by consent;
i)Neither party shall publish or distribute or cause to be published or distributed any nude photos or videos of the other party and, if either party is in possession of any such material, shall destroy all copies digital or otherwise within 7 days,
ii)Neither party shall communicate with the other parties current or any future employer.
Each party shall use all endeavours practicable to ensure that the child attends organised sporting events for Saturday morning junior racket sports competitions and junior racket sports tournaments, or such other sport subsequently agreed upon by the parties for the child.
Each party shall as soon as practicable inform and keep the other informed of any school absence or serious illness or injury suffered by X and the name, address and telephone numbers of any treating health professionals.
Other than an urgent situation relating to X, or when otherwise not practical, the parties shall use Our Family Wizard App for communication relating to X, shall restrict their communication to matters relating to him and shall endeavour to communicate with the other in a manner which is courteous.
Whenever the Medicare card for X is updated the mother shall do all acts and things necessary to ensure that a duplicate card is issued and provide that duplicate card to the father within 7 days.
The child’s passport currently held by the Suburb V Registry of this Court be released by that Registry to the father.
Whenever the child’s passport has expired or is within eight months of expiring each party shall do all acts and things necessary to apply for a new or replacement passport for the child to be held at first instance by the father.
Neither party shall remove X from the Commonwealth of Australia or allow him to be removed without verified consent from the other party. The party holding the child’s passport shall provide it to the party travelling outside of the Commonwealth of Australia with the child, or to the supervising adult if he is travelling with a third party or school group, at or before the time of providing verified consent.
Within 14 days the mother shall do all acts and things necessary to cause to be delivered to the father’s solicitor Norwest Family Law a copy of the child’s immunisation records and certified copies of the following documents;
a)Birth certificate, and
b)Citizenship certificate.
In the event the Court determines that equal shared parental responsibility should not be ordered.
The Respondent Father have sole shared parental responsibility for X born in 2008 (“the child”) in relation to education, application for passport issue or renewal, overseas travel and health issues other than immediate health issues whilst the child is living with or spending time with the mother.
In the event the Court determines that equal shared care arrangements should not be ordered for the child.
The child shall live with the father.
The child shall spend time with the mother each alternate weekend during school terms from cessation of school on Thursday to commencement of school the following Tuesday commencing on the second Thursday following the date of these orders.
APPENDIX THREE
All prior parenting orders be discharged.
The Applicant Mother and the Respondent Father have equal shared parental responsibility for X born in 2008 (“the child”).
The child shall live with each of the parents during school terms and school holiday periods in accordance with the following orders:
a)During school terms and midterm holidays X shall live with each parent on a week about basis with changeovers to occur each Friday;
b)If X attends school on a Friday changeover day that is where changeover shall occur at cessation of school;
c)Changeovers that do not occur on a day that X attended school, whether it be a non-attendance day, midterm holiday period, due to illness or other reason, shall occur at Hungry Jacks, Suburb J at 5:00pm that day;
d)School holidays are defined as commencing at the cessation of school on the last student attendance day of term and concluding at the commencement of school on the first student attendance day of the new term;
e)In even numbered years X shall live with mother for the first half of the end of year holidays and with the father for the second half of those holidays extending to cessation of school on the first Friday of the next term;
f)In odd numbered years X shall live with the father for the first half of the end of year holidays and with the mother for the second half of those holidays extending to cessation of school on the first Friday of the next term;
g)If X attends school on a changeover day that is where changeover shall occur;
h)For changeover at the midpoint of the end of year school holidays, if the school holidays have an even number of days the midpoint will be the latter of the two middle days and changeover will occur at 5pm that day;
i)Changeovers that do not occur on a day that X attends school, whether it be a non-attendance day, due to illness or other reason, shall occur at Hungry Jacks, Suburb J at 5pm that day.
Notwithstanding any provisions in these orders to the contrary the child shall spend Mother’s Day weekend with the mother and Father’s Day weekend with the father from the Friday before that respective weekend to commencement of school the following Monday.
In the event X wishes to communicate with his mother or father while living with the other parent that parent shall do all things necessary to allow and facilitate such communication including allowing X access to any mobile phone, iPad or Apple Watch that has been given to him.
Unless otherwise agreed each party shall do all acts and things necessary to ensure that X commences and completes his secondary education at C School.
That the costs associated with X’s attendance at C School shall be shared equally between the parties.
The following restraints shall apply;
a)Neither party shall discuss these proceedings or any issues raised within these proceedings with X and/or in his presence. They shall not show to X documents prepared in connection with these proceedings or leave those documents at any time where he can access them.
b)Neither party will denigrate the other to X or in his presence in any language and shall take all necessary steps to ensure X does not remain in the presence of any third party denigrating the other parent in any language in X’s presence.
Each party shall use all endeavours practicable to ensure that X attends organised sporting and extra-curricular activity events in which he is enrolled.
Each party shall as soon as practicable inform and keep the other informed of any school absence or serious illness or injury suffered by X and the name, address and telephone numbers of any treating health professionals.
Neither party shall remove X from the Commonwealth of Australia or allow him to be removed without verified consent from the other party. The party holding the child’s passport shall provide it to the party travelling outside of the Commonwealth of Australia with the child, or to the supervising adult if he is travelling with a third party or school group, at or before the time of providing verified consent.
Within 14 days the parties do all acts and things required to engage with Dr P to undertake counselling to assist the parties in co-parenting and communication in relation to X.
The parties shall pay all costs associated with the counselling equally and shall continue to engage with the counselling as long as Dr P deems necessary.