Kennedy and Kennedy

FAMILY COURT OF AUSTRALIA

KENNEDY & KENNEDY

[2018] FamCA 974

FAMILY LAW – CHILDREN – Child related proceedings – Where the mother seeks an order for sole parental responsibility – Where the father seeks an order for equal shared parental responsibility – Where the mother seeks orders that the child live with her primarily and spend time with the father on alternate weekends – Where the father, primarily, seeks orders that the child live with him and spend time with the mother four nights each fortnight or, alternatively, that the child live with the mother and spend time with him four nights per fortnight – Where the parties have become locked in intractable conflict since their separation – Where that conflict has been exacerbated by the actions of the parties’ relatives – Where the mother asserts that the child’s time with the father contributes to his sense of anxiety and stress – Where the father asserts that the mother has not promoted his relationship with the child – Where the child was previously diagnosed with Pervasive Developmental Disorder – Not Otherwise Specified – Where that diagnosis has since been removed from the Diagnostic and Statistical Manual of Mental Disorders – Where the parties are now in dispute as to the correct diagnosis for the child’s accepted developmental delay – Where the father asserts that the child has been diagnosed with Attention Deficit Hyperactivity Disorder – Where the mother asserts that the child may have Autism Spectrum Disorder – Where the Court finds that the conflict between the parties renders an order for shared parental responsibility inappropriate – Where the family report writer found that the child has an anxious, dependent attachment to the mother – Where the Court finds that the child has a meaningful relationship which is of benefit to him with both parties – Where the Court finds that both parties are capable of caring for the child, but have exposed him to the parental conflict – Where the Court finds that the father’s proposal that the child live primarily with him would cause the child considerable anxiety and stress – Court makes orders for the child to live with the mother and spend four nights per fortnight with the father – Court makes orders for the mother to have sole parental responsibility.

Family Law Act 1975 (Cth) ss. 43, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Dundas & Blake (2013) FLC 93-552
In reB (A Minor) (Adoption: Natural Parent) [2002] 1 WLR 258
Marsden & Marsden [2018] FamCA 157
Mazorski & Albright (2007) 37 Fam LR 518
Sigley v Evor [2011] FamCAFC 22
VR & RR (2002) FLC 93-099

APPLICANT:

Ms Kennedy

RESPONDENT:

Mr Kennedy

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC 3281 of 2008

DATE DELIVERED:

23 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

1 - 16 August 2018, 22 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

SOLICITOR FOR THE APPLICANT:

Walter & Elliott Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Michael Jokovic & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

THE COURT ORDERS THAT:

By consent, all previous parenting orders in relation to the child, X, born ... 2007 (“the child”), be discharged.

Parental responsibility

The mother shall have sole parental responsibility for the child, subject to orders 3, 18, 19 and 20 herein.
Prior to making a decision in relation to a major long-term issue concerning the child, the mother is to:
(a)Notify the father in writing of her proposed decision;
(b)Take into account any response received from the father in relation to her proposal;
(c)Make a genuine effort to reach agreement with the father in relation to the issue; and
(d)Notify the father in writing as soon as practicable after the final decision is made.

Living arrangements and time

The child shall live with the mother.
The child shall spend time with the father as follows:
(a)During school terms – in each alternate week from after school on Friday until before school on Tuesday;
(b)During the school holiday periods at the conclusion of Terms 1, 2 and 3 each year – for half of the school holiday periods, commencing at the end of school on the last day of term and concluding at 4.00 pm seven (7) days later, or the day that is the midpoint of the holiday period, whichever is the later;
(c)During the school holiday period at the conclusion of Term 4 each year:
(i)From 10.00 am on 27 December until 4.00 pm on 9 January; and
(ii)For a period of seven consecutive nights, commencing at 10.00 am eight days immediately before the first day on which students are required to attend school in Term 1 and concluding at 10.00 am on the day after the seventh night that the child spends with the father; and
(d)At such other times as may be agreed between the parties in writing.
Order 5(a) shall be suspended during all school holiday periods and shall re-commence:
(a)On the first weekend after the commencement of Terms 2, 3 and 4 each year; and
(b)On the second weekend after the commencement of Term 1 each year.
In the event that Father’s Day falls on a Sunday which the child would otherwise spend with the mother pursuant to these orders, the child is to spend time with the father from the conclusion of school on the Friday prior to Father’s Day until the commencement of school on the Tuesday following Father’s Day, provided that the child’s time with the father the following weekend is suspended.
In the event that Mother’s Day falls on a Sunday which the child would otherwise spend time with the father pursuant to these orders, the child is to spend time with the mother from the conclusion of school on the Friday prior to Mother’s Day until the commencement of school on the Tuesday following Mother’s Day, provided that the child’s time with the mother the following weekend is suspended for an equivalent period.
Notwithstanding any other order herein, the child is to spend time with the father from after school on the Thursday prior to Good Friday, or 3:00 pm if a non-school day, until 4:00 pm on Easter Saturday each year.
Notwithstanding any other order herein, the child is to spend time with the mother from 4:00 pm on Easter Saturday until 6:00 pm on Easter Monday each year.
In respect of the child’s birthday, he shall remain in the care of the parent as provided for by orders 4 and 5 herein (unless otherwise agreed in writing) and that parent shall facilitate a telephone or Skype call between the child and the other parent.

Changeovers

By consent, for the purposes of changeover:
(a)On school days, the father shall collect the child from school at the commencement of his time, and the father shall return the child to school at the conclusion of his time; and
(b)On non-school days, the changeover shall occur at B Contact Centre at Suburb C or at such other location as agreed between the parties.
Each party shall use their best endeavours to attend changeovers in person.
In the event that either party is unable to attend changeover in person, they shall advise the other party by text message at least 24 hours prior to the changeover (except in the case of emergency) and inform the other party of who will be attending in their place, and that person attending shall be a person known to the child.
Unless the parties agree otherwise, the father shall meet the cost of B Contact Centre.

Telephone communication

The mother shall ensure that the child is available to communicate by telephone with the father between the hours of 6:00 pm and 7:00 pm on each Friday when the child is not in his care, with the father to initiate the telephone calls.
The father shall ensure that the child is available to communicate by telephone with the mother on one occasion during the periods that he is in the father’s care pursuant to orders 5(b) and 5(c)(ii) herein, and up to two occasions when he is in the father’s care pursuant to order 5(c)(i) herein.

Medical treatment

By consent, the General Practitioner Practice attended by the child shall, whenever reasonably possible, be “D Medical Practice Pty Ltd”.
The mother ensure that the child attends upon only one paediatrician, being Dr G.
The mother is restrained from taking the child to be assessed or treated by any psychologist, psychiatrist, therapist, paediatrician or other specialist medical practitioner, unless referred in writing by Dr G for such assessment or treatment.
In the event that Dr G is no longer available to treat the child, then the mother shall obtain a referral from Dr G to an alternate paediatrician and orders 18 and 19 herein shall apply to that paediatrician.
By consent, each parent shall keep the other parent informed at all times of the names, telephone number(s) and addresses of all medical practitioners attended upon by the child whilst he is in their care and shall notify the other as soon as practicable, and not later than 24 hours, after the child has attended upon a medical practitioner.
In the event that the child is prescribed medication and/or any other form of treatment by a medical practitioner, each parent shall inform the other parent of the medication and/or treatment prescribed as soon as practicable thereafter, but not later than 24 hours after the medication and/or treatment has been prescribed, provided that neither parent shall administer psychotropic or psychostimulant medication to the child without the consent of the other.
Each parent shall notify the other parent as soon as is reasonably practicable of any emergency, accident, serious illness or admission to hospital of the child, when the child is spending time with that parent.
By consent, each parent shall provide all necessary authorities and permissions to enable the other parent to speak with and obtain information and/or reports regarding the child from any medical or health professional attended upon by the child.

Miscellaneous

The mother do all acts and things and sign all documents necessary to ensure that the father can access information about the child from his school, treating medical practitioners, occupational therapist and speech pathologist.
Both parents are at liberty to attend any school, sporting or other extracurricular events and activities in which the child participates, which parents would typically attend.
The parents are to take all reasonable measures to ensure that the child continues to be known by the name X.
Each party be restrained by injunction from denigrating the other party and/or their family and/or friends to, or in the presence or hearing of the child and use their best endeavours to ensure that no other person denigrates the other party and/or their family and/or friends, to, or in the presence or hearing of the child and that in the event such denigration occurs by a person or person not a party to these proceedings, the parent caring for the child shall remove the child from the conversation and/or hearing of the words spoken.

Costs

Within six months, the mother shall pay to Legal Aid NSW the costs of the Independent Children’s Lawyer in the sum of $7,691.50.
Within six months, the father shall pay to Legal Aid NSW the costs of the Independent Children’s Lawyer in the sum of $7,691.50.

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 Kennedy & Kennedy 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 SYDNEY

FILE NUMBER: SYC 3281 of 2008

Ms Kennedy

Applicant

And

Mr Kennedy

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application for parenting orders brought by Ms Kennedy (“the mother”). The mother seeks orders that the child X, born in 2007 (“the child”), live with her and spend time with Mr Kennedy (“the father”) from Friday to Monday each alternate weekend.
The father’s primary proposal is for the child to live with him nine nights each fortnight and spend time with the mother over the remaining five nights. In the alternative, the father seeks the opposite of that arrangement, that is, that the child live with the mother nine nights each fortnight with him the remaining five nights.
Currently, the child spends time with the father on alternate weekends from Friday to Monday and on each Tuesday from after school until 8:00 pm.
These proceedings are brought in the context of longstanding interfamilial conflict, mistrust and disrespect between the parties.

Background

In 1975, the father was born and is currently aged 43 years.
In 1978, the mother was born and is currently aged 40 years.
In 1990, the father, who is of Country E heritage, immigrated to Australia from Country F.
In 2005, the parties married and commenced cohabitation. The mother says that this occurred on 10 April 2005, while the father contends that it occurred one day later. The difference between the parties, in that regard, is not a matter of significance.
In 2007, the child was born and is currently aged 11 years. The child is currently enrolled in year 5 at H Primary School.
On 21 May 2008, the parties separated. The child was 11 months old at that time. On that day, an ex parte Apprehended Violence Order (“AVO”) was issued as against the father. The application for a final AVO was, however, dismissed by the Local Court of New South Wales at Suburb J in 2009.
On 5 June 2008, the mother commenced proceedings in the Federal Magistrates Court (as it then was), seeking parenting and property orders.
On 11 June 2009, final consent orders were made in respect of the parties’ property.
In August 2009, the mother took the child to see Dr N (“Dr N”), a Developmental Psychologist.
On 15 September 2009, a divorce order was made.
On 2 October 2009, after a hearing before Orchiston FM (as she then was), final parenting orders were made. Those orders were appealed by the father.
On 31 October 2009, the father alleges that the maternal grandmother struck him with a telephone.
On 25 January 2010, an incident occurred at changeover, which resulted in an interim AVO being issued against the father. The application for a final AVO was heard and dismissed on 11 May 2010. The father has made a complaint in respect to the conduct of the Police concerning, what he contends is, their inappropriate handling of the matter.
On 30 September 2010, the father’s appeal against the final parenting orders made on 2 October 2009 was dismissed.
In January 2011, the child was diagnosed with Pervasive Developmental Disorder – Not Otherwise Specified by the Child Development Unit at K Hospital. That condition has since been removed from the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). The parties disagree regarding how the child’s developmental delay should now be categorised. The father considers that the child has Attention Deficit Hyperactivity Disorder (“ADHD”). The mother considers that he may have Autism Spectrum Disorder (“ASD”) and is concerned that, without a formal diagnosis, the child will not be eligible for special assistance at school.
On 18 April 2011, the mother filed a new application for parenting orders in the Federal Magistrates Court. That application was discontinued on 1 August 2011.
On 11 November 2011, the father filed a new application for parenting orders in the Federal Magistrates Court.
In December 2011, the father met his current wife, Ms L.
On 12 December 2011, final parenting orders were made by Collier J, with the consent of the parties. The child’s weekend time with the father, pursuant to those orders, was due to commence in January 2013. The orders also dealt with specialist treatment to be provided to the child.
In early-2013, during a conversation with the mother, the child referred to Ms L. The mother was not aware of the father’s relationship with Ms L, at that time.
During the 2013 Christmas period, the father did not comply with orders for the child to spend time with the mother.
In 2014, the father and Ms L were married. In mid-2014, the child advised the mother that the father and Ms L had been married.
In October 2014, the mother raised with the father the question of the child seeing a Psychologist. The mother asserts that the father did not agree to that course of action.
In December 2014, the mother requested the father’s agreement to the child attending upon a Psychologist and Speech Therapist. The mother asserts that that father did not agree to that course of action. The father asserts that he was always supportive of the child attending upon a Speech Therapist.
During the 2014 Christmas period, there was a further dispute between the parties regarding the child’s time with the mother.
On 7 January 2015, the mother asserts that, after he had spent time with the father, the child presented as being upset and unsettled.
On 19 February 2015, the child, the parties, the maternal grandmother and Ms L attended an appointment with Dr G, Paediatrician. Dr G suggested that the child commence a three to four week trial of ADHD medication. The mother expressed a wish to undertake further research of that medication before the child were to commence taking it.
On 21 March 2015, the child commenced a trial of 5 mg of Ritalin. That trial was subsequently increased to 10 mg, and then 20 mg.
On 7 April 2015, the mother filed a new application for parenting orders, in this Court.
On 9 June 2015, orders were made by Loughnan J for the appointment of an Independent Children’s Lawyer (“ICL”).
In his report dated 5 August 2015, Dr N reported:
... [The child] is now taking medication for an attentional difficulty, and it would appear to be working very well as he was extremely calm and patient for the entirety of the meeting on Monday.
... [The child] does not meet the new DSM 5 criteria for Autism Spectrum Disorder. He has good eye contact and facial expression, good non-verbal communication skills such as gesturing and emoting, pointing and posturing ...
On 21 August 2015, the child ceased taking Ritalin. The mother contends that this occurred on the advice of Dr N, after the child experienced, as she contends, adverse symptoms. The father disputes that any such advice was provided. I accept that Dr N did not provide such advice.
On 23 September 2015, orders were made by Senior Registrar Campbell clarifying the time that the child would spend with each party during school holiday periods.
In January 2016, the child commenced attending upon Ms M, Child Psychologist (“Ms M”).
In early-2017, the father arranged for the child to attend tutoring at the O School on Saturday mornings. Those tutoring sessions were later moved to Sunday mornings. The mother contends that the child does not enjoy attending those tutoring sessions. The father contends that the child appears happy and that his schoolwork has improved as result of his attendance at tutoring. I am satisfied that the child does not enjoy attending tutoring.
On 4 February 2017, on the advice of Ms M, the child was scheduled to begin the “SAS Program”, with a view to building his self-esteem. The parties were unable to cooperate in respect to the child’s attendance at that program.
On 20 March 2017, the parties had a dispute concerning the child’s health.
During the course of the Easter period in 2017, the parties had a dispute regarding the time each of them would spend with the child during the upcoming school holiday period.

On 17 April 2017, the mother contacted the Police after she was unable to contact the child, who was spending agreed time with the father.
On 26 April 2017, the child advised the mother that he was upset by the father’s driving after an incident that occurred at changeover.
In 2017, on the child’s birthday, an incident occurred at changeover.
In June 2017, the child’s appointments with Ms M were cancelled at her request, after the parties were unable to cooperate in respect to the child’s appointments with her.
On 8 July 2017, the child was distressed at changeover.
On 20 July 2017, the child was diagnosed with Alopecia Areata. The mother asserts that that condition is caused by stress. The father denies this to be the case. I am unable to make findings regarding the cause of that condition.
On 25 July 2017, the mother requested that the father suspend his time with the child, contending that the stress associated with their visits had aggravated the child’s Alopecia. The father refused that request.
On 6 September 2017, Dr P was appointed as the Single Expert.
On 13 September 2017, the parties and the child attended an appointment with Dr Q, Dermatologist at the K Hospital. The father informed Dr Q that he had Alopecia when he was the child’s age. The mother asserts that the father had never previously informed her of that fact.
The mother asserts that the child was distressed at changeovers on 30 September 2017 and 4 January 2018.
The mother asserts that on 30 January 2018, the child reported to her that he missed her during the school holidays, when he was spending time with the father.
On 5 February 2018, the parties attended upon Dr P for interviews.
On 12 February 2018, the mother asserts that the child reported to her that the father and Ms L had questioned him about what he had said to Dr P, during the interviews. I am unable to make a finding as to whether or not that occurred.
On 21 February 2018, Dr P’s report was released.
On 14 July 2018, the mother asserts that the child disclosed to her that adverse comments had been made about him at the father’s household, including the father referring to him as “evil” and “a stupid idiot”. I am unable to make a finding as to whether or not that occurred.
The mother and the child currently reside with the maternal grandparents at Suburb H.
The father and Ms L currently reside at Suburb FF.

Applications

The mother’s application

The orders sought by the mother are set out in her Initiating Application filed on 7 April 2015, as follows:
1. That all prior orders be discharged.
Sole parental responsibility
2. That subject to Order 3, the Mother have sole parental responsibility in respect of medical/health care and education decisions for the child [X] (“the child”) born on ... 2007.
3. In relation to any decision the Mother is required to make in relation to education and medical/health for the child, the Mother is to undertake the following actions before making such decision:
3.1 The Mother is to provide the Father with no less than 14 days’ notice in writing of any such proposed decision; and
3.2 The Mother is to consult with the Father (by email) with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the Father about any such proposed decision; and
3.3 In the event that no agreement is reached between the Mother and the Father, the Mother shall make the final decision and within 14 days of so doing, provide the Father with written confirmation of the decision (by email).
Live and Spend Time Arrangements
4. That the child live with the Mother.
5. That the child spend time with the Father as follows:
5.1 During school term from the conclusion of school on the first Friday following the date of these Orders, or 3 pm in the event of a non-school day, until the commencement of school the following Monday and for the same period each alternate week thereafter with this Order to take effect in respect of the first Friday of each school term (noting that the child will be with the Mother for the end of each school holiday period pursuant to Orders 5.2 and 5.3).
5.2 For each of the autumn, winter and spring holidays, from the conclusion of school on the last day of Term for a period of 7 consecutive nights with changeover to occur at 2pm on the day following the seventh night.
5.3 For the summer school holidays from 2pm on 27 December to 2pm on 9 January each year.
5.4 In the event that Father’s Day falls on a Sunday which the child would otherwise be with the Mother pursuant to these Orders, the child is to spend time with the Father from the conclusion of school on the Friday prior to Father’s Day until the commencement of school on the Monday following Father’s Day provided that the child’s time with the Father the following weekend is suspended.
For the purposes of clarification, the effect of this Order (if it applies) is that the child will spend 2 weekends in a row with the Father and then 2 weekends in a row with the Mother before returning to the usual alternate weekend schedule.
6. In the event that Mother’s Day falls on a Sunday which the child would otherwise be with the Father pursuant to these Orders, the child is to spend time with the Mother from the conclusion of school on the Friday prior to Mother’s Day until the commencement of school on the Monday following Mother’s Day provided that the child’s time with the Mother the following weekend is suspended.
For the purposes of clarification, the effect of this Order (if it applies) is that the child will spend 2 weekends in a row with the Mother and then 2 weekends in a row with the Father before returning to the usual alternate weekend schedule.
7. Notwithstanding any other Order the child is to spend from 9 am on Good Friday until 8 pm on Easter Saturday each year with the Father provided that the child spend from 8 pm on Easter Saturday until 6pm on Easter Monday with the Mother.
For example, and for the avoidance of doubt, if the Easter weekend falls during a period the child is scheduled to spend time with the Father pursuant to Order 5, Order 7 takes priority and the Father must make the child available to the Mother from 8 pm on Easter Saturday until 6pm on Easter Monday and in the event weekend falls during a period the child is scheduled to spend time with the Mother pursuant to Orders 4 and 5, Order 7 takes priority and the Mother must make the child available to the Father from 9 am on Good Friday until 8 pm on Easter Saturday.
8. That in respect of the child’s birthday, he shall remain in the care of the parent as provided for by Orders 4 and 5 (unless otherwise agreed in writing) and that parent shall facilitate a telephone call or Skype call between the child and the other parent.
9. For the purposes of changeovers that do not occur at the child’s school, the Mother is to attend the Father’s residence and send a text message to the Father when she is at the front security door and the Father shall accompany the child down in the lift and wait in the lift whilst the child exits the front door and enters the Mother’s care just outside the security door.
Telephone Communication
10. That the Mother shall be at liberty to telephone the Father’s mobile (or the child’s mobile when he obtains one) on two occasions during the time he is with the Father pursuant to Order 5.2 (during the shorter school holiday periods) and on four occasions during the period identified in Order 5.3 (the summer school holiday period).
11. That the Father shall be at liberty to telephone the child (on the Mother’s mobile phone or the child’s mobile phone when he obtains one) on the following occasions:
11.1 Each alternate Tuesday during school term between 6pm and 7pm (being the Tuesday immediately following the weekend he spends with the Mother pursuant to Orders 4 and 5.1);
11.2 On two occasions during each period of the time he is with the Mother during the shorter school holiday periods;
11.3 On six occasions during the period he is with the Mother during the summer school holiday periods.
Holidays
12. That each party provide the other all relevant details for any holidays that they intend to take the child on at least 14 days prior to the planned departure including the address of where the child will be staying whilst on holidays, a contact phone number and the dates and means of travel.
Information relating to the child
13. That the Mother do all acts and things and sign all documents necessary to ensure that the Father can access information about the child from the child’s school, treating medical practitioners, occupational therapist and speech pathologist.
Medical
14. That each of the Mother and the Father notify the other of any serious injury or hospitalisation in relation to the child as soon as possible and in any event not more than three (3) hours after the emergency occurred and provide full particulars of any medical practitioner, health service provider or institution attended the child and provide any authority and direction necessary to enable the other parent to obtain all necessary information concerning the child.
15. In the event that the child is unwell and unable to attend school, the parent who has the care of the child shall notify the other as soon as practicable after the decision has been made that he will not attend school and in any event before 8am the morning school is due to commence and in the event the child’s time with that parent would normally cease at the commencement of school that day, they must offer the other parent the first option to care for the child.
16. That except in the case of emergencies the parents shall cause the child to attend upon [Dr R] at … or in the event Dr R in unavailable, Dr S at ...
17. That the child shall continue to attend upon Dr G, Paediatrician unless otherwise agreed in writing or Dr G for any reason in unable or unwilling to continue treating the child.
Non-denigration
18. That each party be restrained by injunction from denigrating the other party and/or their family and/or friends to, or in the presence or hearing of the child and use their best endeavours to ensure no other person denigrates the other party and/or their family and/or friends, to, or in the presence or hearing of the child and that in the event such denigration occurs by a person or person not a party to these proceedings the parent caring from the child shall remove the child from the conversation and/or hearing of the words spoken.
In final submissions, Counsel for the mother advised the Court that the mother sought to amend order 7 of her application such that, instead of the child commencing to spend time with the father at 9.00 am on Good Friday, that time would, instead, commence after school on the Thursday prior to Good Friday.
Further, I note that, while the mother’s application would see the time that the child currently spends with the father reduced from four to three nights per fortnight, at the end of the hearing, Counsel for the mother made submissions that her client agreed that it was appropriate for the child to spend a block of four nights per fortnight with the father.

The father’s application

The orders sought by the father are set out in his Amended Response filed on 16 July 2018, as follows:

The father’s primary proposal

Preamble
1.        In these Orders:
1.1.     Child means [X].
1.2.     Father means [Mr Kennedy].
1.3.     Mother means [Ms Kennedy].
1.4.     School means the school at which the Child attends.
1.5.Easter public holidays mean the days between Good Friday and Easter Monday as gazetted by the NSW Industrial Relations.

2. All previous Parenting Orders are discharged.
3.The parents shall have equal shared parental responsibility for the Child ([X] born ... 2007).
4.The parents shall have sole parental responsibility for making decisions relating to the day to day care, welfare and development of the child during such periods as the child is in their respective care.
5.At any time throughout the currency of these Orders, the parties may vary these orders by way of written agreement.
6.The Child shall live with the Father except for the following times outlined below:

Living arrangement
7.        The Child shall live with the Mother during the following times:
8.        From the date of these orders:
8.1.     During school terms:
8.1.1.from the conclusion of school each Thursday, until the commencement of school the following Friday or otherwise until 9:00am; and
8.1.2.Commencing the first week of the school term, each alternate Thursday or last day of school day in that week from conclusion of school to the commencement of school on the first school day of the following week;

8.2.During school holidays (excluding the summer school holidays during which Order 8.3 shall apply):
8.2.1.In odd numbered years: commencing from the last day of the school term as attended by the Child until 5:00pm Saturday, being the midpoint of the school holidays; and
8.2.2.In even numbered years: commencing from 5:00pm Saturday, being the midpoint of the school holidays until the first day of school, in the following school term for the Child;

8.3. During the school summer holidays:
8.3.1.In odd numbered years; commencing the last day of the school term four (4) attended by the Child, until 5:00pm on 7 January the following year; and
8.3.2.In even number years; commencing 5:00pm on 7 January, until the day the Child is required to return to school.

Other times
9.During the Easter public holidays orders 8 to 8.3.2 shall be suspended and the following orders shall apply:
9.1.The Child shall live with the Mother during the following times:
9.1.1.In the years 2019, 2020 and 2025 commencing from after school on the day before Good Friday to 5:00pm Easter Saturday;
9.1.2.In the year 2022 commencing from 5:00pm Easter Saturday to Easter Monday;
9.1.3.All other years commencing from 9:00am on Easter Sunday to the time the Child returns to school the following day.

9.2. All other times the Child shall live with the Father.
10.On the Child’s birthday orders 8 to 8.3.2 shall be suspended and the following orders shall apply:
10.1.On the years which the ... falls on a weekday, commencing from the conclusion of school to 9:00am the following day; and
10.2.On the years which the ... falls on a weekend, commencing from the conclusion of school on 25 June or 5:00pm (if it is a Saturday), to 9:00 am or commencement of school the following day.

Changeover
11.For all the times where the Child is not collected from the School, the Child shall be collected from “[B Contact Centre]” children contact centre located at …, [Suburb C] NSW …
11.1.The cost of such service shall be shared equally by both parents.

12.Should either the Father, or the Mother, be unavailable to collect the Child from school and/or the prescribed handover location, each respective parent shall nominate an alternate person known to the Child to collect the Child in place of either parent.

Medical
13.The general practitioner doctor practice shall be “[D] Medical Practice Pty Ltd”.
14.Each parent shall keep the other parent informed at all times of the names, telephone number(s) and addresses of all medical practitioners attended upon by the Child whilst the Child is in their respective care and shall notify the other as soon as practicable, and not later than 24 hours, after the child has attended upon a medical practitioner.
15.In the event that the child is prescribed medication and/or any other form of treatment by a medical practitioner each parent shall inform the other parent of the medication and/or treatment prescribed as soon as practicable thereafter, but not later than 24 hours after the medication and/or other treatment has been prescribed for the child.
16.Each parent shall notify the other parent as soon as is reasonably practicable of any emergency, accident, serious illness, or admission to hospital of the child, when the child is living with or spending time with that parent.
17.Each parent shall provide all necessary authorities and permissions to enable the other parent to speak with and obtain information and/or reports regarding the child from any medical or health professional attended upon by the child. Both parents are at liberty to attend any medical or health related appointments for the child.
18.Both parents are at liberty to attend any medical or health related appointments for the child.

Education
19.The Child shall attend T School until completion of Year 10;
20.The Child shall attend U School upon commencing High School.

21. All school reports shall be sent to both parents.
22.Both parents are at liberty to attend any school, sporting or other extracurricular events and activities in which the child participates.
23.During the Child attending any school, the school shall contact both parents in the event of emergency.
24.The school shall not accept participation of [Ms V] in any of the auxiliary organisation to the school (for example parent teacher committee).

Travel
25.Unless otherwise agreed, seven (7) days prior to the Child going on holidays with that parent, that parent shall provide the itinerary to the other parent by e-mail;
26.Both parent [sic] agree to apply and receive an Australian passport for the Child;
26.1. The Child’s passport shall be held by the Father:
26.2.Unless the Father has provided a notice of international travel prior to receipt of notice from the mother within 14 days of written notice from the Mother the Father shall provide the Child’s passport to the Mother; and
26.3.The Mother shall return the passport to the Father within one week of the notified return date.

Other orders
27.Each parent shall advise the other and keep the other informed by email as to their respective, residential addresses, mobile telephone numbers, e-mail addresses, and any other information necessary for the child to communicate with the other parent and shall notify the other parent of any changes thereto within 48 hours of the date of any change.
28.Each parent shall facilitate communication between the child and the other parent during times that the child is not living with the other parent, at all reasonable times by telephone.
29.The Father shall do all acts and things and give all authorities necessary for the Mother to arrange directly with the Child's school, provision to her of copies of all school notices, newsletters, reports, photographs, or, any other records held by the school in relation to the Child.
30.The parents are to take all reasonable measures to ensure that the child continues to be known by the name [X].

Cost
31. Costs.

The father’s alternate proposal

In the alternative to paragraphs 1-32 above
Preamble
1.        In these Orders:
1.1.     Child means [X].
1.2.     Father means [Mr Kennedy].
1.3.     Mother means [Ms Kennedy].
1.4.     School means the school at which the Child attends.
1.5.Easter public holidays mean the days between Good Friday and Easter Monday as gazetted by the NSW Industrial Relations.

2. All previous Parenting Orders are discharged.
3.The parents shall have equal shared parental responsibility for the Child ([X] born ... 2007).
4.The parents shall have sole parental responsibility for making decisions relating to the day to day care, welfare and development of the child during such periods as the child is in their respective care.
5.At any time throughout the currency of these Orders, the parties may vary these orders by way of written agreement.

6.The Child shall live with the Mother except for the following times outlined below:

Living arrangement
7. The Child shall live with the Father during the following times:
8. During the school term:
8.1.From the time the child finishes school on every Thursday, until the commencement of school the following Friday or otherwise until 9:00am; and
8.2.Commencing the first week of the school term, each alternate Thursday or last day of school day in that week from conclusion of school to the commencement of school on the first school day of the following week;

9.During school holidays (excluding the summer school holidays during which Order 10 shall apply):
9.1.In even numbered years: commencing from the last day of the school term as attended by the Child until 5:00pm Saturday, being the midpoint of the school holidays; and
9.2.In odd numbered years: commencing from 5:00pm Saturday, being the midpoint of the school holidays until the first day of school, in the following school term for the Child;

10. During the school summer holidays:
10.1.In even numbered years; commencing the last day of the school term four(4) attended by the Child, until 5:00pm on 7 January the following year; and
10.2.In odd number years; commencing 5:00pm on 7 January, until the day the Child is required to return to school.

Other times
11.During the Easter public holidays orders 8 to 10.2 shall be suspended and the following orders shall apply:
11.1.The Child shall live with the Father during the following times:
11.1.1.In the years 2019 and 2025 commencing from 5:00pm on Saturday being the midpoint of school holiday to 5:00pm Easter Monday;
11.1.2.In the year 2020 commencing from 5:00pm Easter Saturday to 5:00pm Easter Monday;
11.1.3.All other years commencing from 9:00am on Easter Friday to 9:00am Easter Sunday.

11.2. All other times the Child shall live with the Mother.
12.On the Child’s birthday orders 8 to 10.2 shall be suspended and the following orders shall apply:
12.1.On the years which the ... falls on a weekday, commencing from the conclusion of school to 9:00am the following day; and
12.2.On the years which the ... falls on a weekend, commencing from the conclusion of school on 25 June or 5:00pm (if it is a Saturday), to 9:00 am or commencement of school the following day.

Changeover
13.For all the times where the Child is not collected from the School, the Child shall be collected from “[B]” children contact centre located at …, Suburb C NSW ...
13.1.The cost of such service shall be shared equally by both parents.

14.Should either the Father, or the Mother, be unavailable to collect the Child from school and/or the prescribed handover location, each respective parent shall nominate an alternate person known to the Child to collect the Child in place of either parent.

Medical
15.The general practitioner doctor practice shall be “[D] Medical Practice Pty Ltd”.
16.Each parent shall keep the other parent informed at all times of the names, telephone number(s) and addresses of all medical practitioners attended upon by the Child whilst the Child is in their respective care and shall notify the other as soon as practicable, and not later than 24 hours, after the child has attended upon a medical practitioner.
17.In the event that the child is prescribed medication and/or any other form of treatment by a medical practitioner each parent shall inform the other parent of the medication and/or treatment prescribed as soon as practicable thereafter, but not later than 24 hours after the medication and/or other treatment has been prescribed for the child.
18.Each parent shall notify the other parent as soon as is reasonably practicable of any emergency, accident, serious illness, or admission to hospital of the child, when the child is living with or spending time with that parent.
19.Each parent shall provide all necessary authorities and permissions to enable the other parent to speak with and obtain information and/or reports regarding the child from any medical or health professional attended upon by the child. Both parents are at liberty to attend any medical or health related appointments for the child.
20.Both parents are at liberty to attend any medical or health related appointments for the child.

Education
21.The Child shall attend [U School] upon commencing High School.

22. All school reports shall be sent to both parents.
23.Both parents are at liberty to attend any school, sporting or other extracurricular events and activities in which the child participates.
24.During the Child attending any school, the school shall contact both parents in the event of emergency.
25.The school shall not accept participation of [Ms V] in any of the auxiliary organisation to the school (for example parent teacher committee).

Travel
26.Unless otherwise agreed, seven (7) days prior to the Child going on holidays with that parent, that parent shall provide the itinerary to the other parent by e-mail;
27.Both parent agree to apply and receive an Australian passport for the Child;
27.1. The Child’s passport shall be held by the Father:
27.2.Unless the Father has provided a notice of international travel prior to receipt of notice from the mother within 14 days of written notice from the Mother the Father shall provide the Child’s passport to the Mother; and
27.3.The Mother shall return the passport to the Father within one week of the notified return date.

Other orders
28.Each parent shall advise the other and keep the other informed by email as to their respective, residential addresses, mobile telephone numbers, e-mail addresses, and any other information necessary for the child to communicate with the other parent and shall notify the other parent of any changes thereto within 48 hours of the date of any change.
29.Each parent shall facilitate communication between the child and the other parent during times that the child is not living with the other parent, at all reasonable times by telephone.
30.The Mother shall do all acts and things and give all authorities necessary for the Father to arrange directly with the Child's school, provision to him of copies of all school notices, newsletters, reports, photographs, or, any other records held by the school in relation to the Child.
31.The parents are to take all reasonable measures to ensure that the child continues to be known by the name X.

Cost
32. Costs.

The mother agreed to order 13 of the father’s alternate proposal, in respect to non-school day changeovers occurring at B Solutions Contact Centre, save insofar as she contended that the father should pay the cost of that service. For reasons which I will set out, I find that the father should meet that cost.
The mother agreed to order 14 of the father’s alternate proposal, in terms of persons other than the parties attending changeover. However, I prefer the orders of the ICL, in that regard, in that they ensure that the parties will be aware, and be able to inform the child, of who will be attending to collect him at changeover. I note that the mother, similarly, consented to that proposal by the ICL. I will require that any person attending changeover in place of one of the parties be a person known to the child.
The mother also agreed to orders 15 and 16 of the father’s alternate proposal and I will make those orders by consent.
The mother agreed to order 17 of the father’s alternate proposal, with the qualification that the child not be administered psychostimulant medication. I will make that order, with that qualification. For reasons which I will set out below, I am not in a position to determine whether the child should be administered such medication. However, I find that, based on the parties’ previous conduct and the concerns of Dr P in relation to the child being sporadically or inconsistently administered ADHD medication, both of which I will also set out below, such a restriction is appropriate.
The mother agreed to order 19 of the father’s alternate proposal. I have made that order, but removed the words “Both parents are at liberty to attend any medical or health related appointments for the child”. For reasons which I will set out, I find that the parties’ relationship is characterised by high levels of acrimony, particularly in relation to issues surrounding the child’s medical treatment. As such, I find that the child should attend medical appointments with the parent who is caring for him at that time, only.
The mother also agreed to order 23 of the father’s alternate proposal, in terms of the parties attending the child’s school, sporting and extracurricular events and activities, subject to the parties being invited to the relevant activities. I consider that qualification appropriate and will make orders accordingly.
The mother also appeared to substantially agree with order 30 proposed by the father, which related to the father accessing information from the child’s school, but appeared to have some difficulty in respect of the child’s school reports, in terms of that order and proposed order 22. However, the mother’s application makes specific provision for her to ensure that the father have access to information from the child’s school, and makes no mention of that information being restricted so as not to include school reports. For reasons which I will set out, I consider it important that the father be involved in the child’s development, in that regard.

The Independent Children’s Lawyer’s application

The ICL’s proposed minute of orders (Exhibit “17-ICL”) sets out the following:
1.That all previous parenting orders in relation to the child, [X], born ... 2007, be discharged.
Parental responsibility
2.That the mother shall have sole parental responsibility for the child, subject to Orders 3, 13, 14 and 15 below.
3.That, prior to making a decision in relation to a major long-term issue concerning the child, the mother is to:
3.1.     Notify the father in writing of her proposed decision;
3.2.Take into account any response received from the father in relation to her proposal;
3.3.Make a genuine effort to reach agreement with the father in relation to the issue, and
3.4.Notify the father in writing as soon as practicable after the final decision is made.
Living arrangements and time
4.        That the child shall live with the mother.
5.        That the child shall spend time with the father as follows:
5.1.During school terms – in each alternate week from after school on Friday until before school on Tuesday.
5.2.During the school holiday periods at the conclusion of Terms 1, 2 and 3 each year – for 7 consecutive nights commencing at the end of school on the last day of term, and concluding at 4pm on the day immediately following the 7th night.
5.3.During the school holiday period at the conclusion of Term 4 each year:
5.3.1. From 10 am on 27 December until 4pm on 9 January, and
5.3.2.For a period of 7 consecutive nights, with the 7th night being the night immediately before the first day on which students are required to attend school in Term 1 of the following year. For the purposes of this Order, the time shall commence at 10 am on the day of the 1st night.
5.4.At such other times as may be agreed between the parties in writing.
6.That Order 5.1 shall be suspended during all school holiday periods and shall re-commence:
6.1.On the first weekend after the commencement of Terms 2, 3 and 4 each year, and
6.2.On the second weekend after the commencement of Term 1 each year.
Changeovers
7.        For the purposes of changeover:
7.1.On school days, the father shall collect the child from school at the commencement of his time, and the father shall return the child to school at the conclusion of his time.
7.2.On non-school days, the changeover shall occur at [B Contact Centre] at [Suburb C].
8.That each party shall use their best endeavours to attend changeovers in person.
9.In the event that either party is unable to attend a changeover in person, then he/she shall advise the other party by text message at least 24 hours prior to the changeover (except in the case of emergency) and shall inform the other party who will be attending the changeover in their place.
10.The parties to equally share the costs of the changeovers at [B Family Services].
Telephone communication
11.The mother shall ensure that the child is available to communicate by telephone with the father between the hours of 6 pm and 7 pm on each Friday when the child is not in the father’s care, with the father to initiate the telephone calls.
12.The father shall ensure that the child is available to communicate by telephone with the mother on one occasion during the periods he is in the father’s care pursuant to Orders 5.2 and 5.3.2, and up to two occasions when he is in the father’s care pursuant to Order 5.3.1.
Medical treatment
13.The mother is to ensure that the child attends upon only one paediatrician, being [Dr G].
14.The mother is restrained from taking the child to be assessed or treated by any psychologist, psychiatrist, therapist, paediatrician or other specialist medical practitioner, unless referred in writing by [Dr G] for such assessment or treatment.
15.In the event that [Dr G] is no longer available to treat the child, then the mother shall obtain a referral form [Dr G] to an alternate paediatrician and Orders 13 and 14 above shall apply to that paediatrician.
Therapy
16.That the parties shall attend upon [Ms W] of [Y Group] for the purposes of therapy to improve their communication and co-operation with each other as parents.
17.That the parties shall have leave to provide [Ms W] with a copy of [Dr P’s] report dated 21 February 2018.
18.That each party shall attend sessions with [Ms W] as requested by her.
19.That the father shall use his best endeavours to ensure that his wife, [Ms L], attends sessions with [Ms W] if requested by [Ms W].
20.That the mother shall use her best endeavours to ensure that the maternal grandmother attends sessions with [Ms W] if requested by [Ms W].
21.That each party shall ensure that the child attends sessions with [Ms W] if requested by her.
Costs
22.That within 3 months the mother shall pay to Legal Aid NSW the costs of the Independent Children’s Lawyer in the sum of $7,691.50.
23.That within 3 months the father shall pay to Legal Aid NSW the costs of the Independent Children’s Lawyer in the sum of $7,691.50.
The mother agreed with orders 1 to 4, 5.1, 5.2, 5.3.1, 5.4 and 6 to 15, as proposed by the ICL.

Evidence

At the hearing, the mother relied upon the following documents:
a)Her Affidavit filed on 18 July 2018; and
b)Affidavit of Ms V (the maternal grandmother) filed on 18 July 2018.
The father relied upon the following documents:
a)His Affidavit filed on 16 July 2018;
b)His Affidavit sworn on 8 August 2018 (unfiled); and
c)Affidavit of Ms L filed on 16 July 2018.

The law - concepts and principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) of the Act sets out the objects of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).

The presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,399, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until a level of satisfaction is reached that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,937, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the court is of the view the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
In this matter, both the mother and the ICL have sought an order that the mother have sole parental responsibility for the child. Comparatively, the father has sought an order that the parties have equal shared parental responsibility.
It was not disputed that the parties’ relationship has been marred by significant animosity and mutual distrust. They currently do not communicate with each other on any level, other than through their legal representatives.
In determining whether there should be an order for sole parental responsibility, it is to be noted that there is an apparent conflict between paragraphs 155 and 181 of Dr P’s report.

Paragraph 155 of Dr P’s report reads, as follows:
[The child] had benefited from both home environments. He will continue to benefit from his mother's primary care. His developmental needs were well attended to within her home, with the support of the maternal grandparents. He will also benefit from significant and substantive contact with his father and [Ms L]. This relationship will become more important as [the child] progresses into adolescence and high school, with its attendant developmental challenges. Although sole parental responsibility would assist the mother as she would no longer have to consult the father, his exclusion from [the child’s] life would not be in [the child’s] best interests. Although it was correct that [the child] had experienced emotional distress on separating from his mother, he was not identified to have a psychiatric disorder such as Separation Anxiety Disorder or an Autistic Spectrum Disorder which would result in such transitions as being destructive and insurmountable. I thus do not support the mother's application for sole parental responsibility and reduction in [the child’s] time with his father. [Emphasis added].
Comparatively, paragraph 181 of Dr P’s report reads, as follows:
Although I support the active ongoing participation of the father, given the inability of the parties to have a consistent approach to parenting, sole parental responsibility for the mother will enable more functional parenting such as the future choice of high school. [Emphasis added].
In giving oral evidence, Dr P clarified the difference between those paragraphs. He stated that his recommendation as to parental responsibility is expressed at paragraph 181 and that the basis of that conclusion is his finding that the key issue for the child is consistency. Dr P explained that the child requires a consistent approach to his care and discipline so that his positive behaviours are reinforced and his negative behaviours effectively managed. In that regard, Dr P explained that, in this case, the parties “have very different worldviews, [and] they have very different approaches to [the child’s] developmental experience”.
In his oral evidence, Dr P gave practical examples of how the parties’ ongoing disputation is impacting upon the child, in the following terms:
When it came to the management of [the child’s] developmental issues, the parents dispute the observations contributing to diagnostic and management plans, and the – they have different views on whether to implement treatment and management plans or not, such as Dr G’s recommendation for medication. And the school do require a consistent response from parents with – from the moment of enrolment to the management of extracurricular activities and day-to-day educational and co-curricular activities, and without a consistent approach finding appropriate educational placements, following through with appropriate medical interventions, will be a source of ongoing conflict.
Dr P explained that the child is, and will continue to be, the subject of stress, if exposed to parental conflict and that his developmental progress will be impeded by such exposure.
As such, I am satisfied that Dr P’s conclusion as to the issue of parental responsibility is as expressed in paragraph 181 of his report. This is further clarified by the following oral evidence given by Dr P:
It is critical that [the child] is taken out of the middle. It is critical that there is a consistent approach to his day-to-day care and management, including his educational and health needs, and having a consistent approach to that is the key. And so for those reasons at the end of the day, despite recognising the important role of the father and [Ms L], I do come to the conclusion in paragraph 181 that for there to be more functional parenting so that there can be effective decision-making without conflict, without [the child] being caught in the middle, that she be granted sole parental responsibility and – for such decisions. And I do note in the mother’s outline and proposal her proposal to notify the father, to involve him in such decision-making and so on in a timely manner, but at the end of the day there – there must be a process for coming to a decision about what will and won’t happen.
As will be discussed, the parties’ respective Affidavits are replete with examples of their conflict in respect to the parenting of the child, including in respect to the important matters of health and education. That conflict is similarly referred to in the 2009 report of Mr Z, the Child Responsive Memorandum of Ms AA and, as stated, the report of Dr P.
I am satisfied that it is unlikely that either party will change in their approach to the parenting of the child. In those circumstances, I am satisfied that the parties are not capable of engaging in the form of consultation contemplated by ss65DAC(2) and (3) of the Act. I am, therefore, satisfied that the presumption of equal shared parental responsibility is rebutted.
I agree with Dr P’s conclusions that exposure to the parties’ ongoing conflict will be a source of stress for the child and that it is imperative that he be removed from the parental hostility to the greatest extent possible. For reasons which I explain below, I find that the ongoing potential for the child to be exposed to the parental conflict presents an unacceptable risk to his psychological health.
In identifying the parent to whom sole parental responsibility should be allocated, a relevant factor is the amount of time that the child will spend with each parent. In this case, for reasons which I will explain, I make orders for the child to live with the mother and spend time with the father.
In arriving at that decision, I have taken into consideration the concerns that Dr P expressed regarding, what he described as, the mother’s “excessive focus” on the child having ASD. Dr P clarified that he did not think that the mother’s “excessive focus” was indicative of a mental disorder, however, he expressed the opinion that it does prevent those persons involved in the child’s care from acknowledging that, while he had some features of ASD, “they have now substantially resolved, and so now we need to focus on other issues”. Another difficulty with the mother’s “excessive focus” on the child having ASD is that it draws her into conflict with the father, who is of a different opinion. A further issue of concern is the potential for the mother to take the child for repeat consultations with a view to confirming her view that he suffers from ASD.
Nevertheless, while the mother’s “excessive focus” on the child having ASD is a concern, it is not such that it overrides the objective of giving her, the parent with whom the child primarily resides, sole parental responsibility with a view to reducing the level of parental conflict that exists in this matter. Moreover, those risks associated with the mother having an “excessive focus” on the child having ASD can be mitigated, to a large extent, by orders requiring the mother to act in accordance with the advice of a specific medical practitioner and restricting her from having the child treated by other medical practitioners. Dr P recommended that Dr G, a Paediatrician who has previously treated the child, be identified as that specialist and both parties agree to that occurring. I will therefore make orders in terms of orders 13 to 15 as proposed by the ICL, which provide for the child to attend upon only one Paediatrician, being Dr G. Dr G will then, effectively manage referrals of the child for further treatment or assessment by another Paediatrician, Psychologist, Psychiatrist, Therapist or other specialist.
While I will make orders for sole parental responsibility, with the intention of decreasing the child’s exposure to parental conflict, I recognise that the father is an intelligent man and has much to offer in terms of the child’s future development. I will, therefore, make orders requiring the mother to make a genuine effort to reach agreement with the father in relation to major long-term issues for the child and to notify him of any decisions she makes, where such agreement could not be reached.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA of the Act does not apply and the Court is not obliged to consider making an order for the child to spend equal or substantial and significant time with each parent. The task of the Court, in those circumstances, is to make such orders as the Court determines to be in the best interests of the child. However, for reasons which I explain, I am of the view that the child should, nonetheless, spend substantial and significant time with the father.

Paramount consideration in making parenting orders

Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA.
Section 60CC of the Act sets out the factors that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all relevant s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
In terms of achieving the appropriate balance between these considerations, in the decision of In reB (A Minor) (Adoption: Natural Parent) [2002] 1 WLR 258 at [16], Lord Nicholls said:
There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all, save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.
As I will set out, the Act and the relevant authorities provide some guidance to assist a trial judge to achieve the right balance.

Additional considerations

Section 60CC(3) of the Act sets out additional factors that the Court must consider in determining what is in the child’s best interests. Broadly, those considerations deal with the following matters:
a)Issues relating to the child – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.
In this matter, to ensure that all s 60CC considerations are taken into account, it is appropriate to address the additional considerations set out in s 60CC(3) prior to addressing the primary considerations set out in s 60CC(2).

Issues relating to the child – their views, level of maturity, culture and relationships

Any views expressed by the child

Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
At paragraph 163 of his report, Dr P records that: “[The child] expressed a strong preference for his mother and maternal family”. In his interview with Dr P, the child expressed the wish to spend less, rather than more, time with the father. The child’s preference to spend time with the mother, rather than the father, was further reflected in the following extracts from Dr P’s report:
If [the child] were to go on a long journey, he would go with [the mother], because they would be able to do fun stuff together. He told me that, if he went with his Dad, [Ms L] would have to attend as well because they were married.
[The child’s] three wishes were to stay with [the mother] and her family, to have lots of fun, but he was unable to identify a final wish.
Further, at paragraph 103 of his report, Dr P notes:
When asked about his experience of contact visits, [the child] told me that he enjoyed the Tuesday nights better than weekends. He preferred shorter times because he didn't worry so much about not getting to see [the mother] the same day. He repeated that he liked staying with [the mother] more. He explained that he would miss [the mother] and worry about her.
While it is appropriate to have regard to the child’s views, in light of his relative youth, they are not determinative of my decision.

The nature of the relationship of the child with each of the child’s parents and other persons

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of his parents and other persons, including any grandparent or other relative.
In his report, Dr P expressed the view that: “[The child] was seen to have a loving but dependent relationship with [the] mother”. Dr P explained this as being a situation where the child had “a particularly close relationship where he depended to a greater extent than average on [the] mother”. This was evidenced by the fact that the child advised Dr P that he “usually slept in [the] mother’s bed when residing at her home”. The mother denied that the child “co-sleeps” with her on a regular basis.
Having regard to the child’s account to Dr P, I am satisfied that it is likely that the child frequently co-sleeps with the mother. As Dr P explained, this is unusual, given the child’s age, and is problematic, as it may impede his ability to separate more easily from the mother when he spends time with the father.
Dr P gave further oral evidence regarding the child’s “anxious and dependent attachment” to the mother, which involves the child missing and worrying about the mother when he is spending time with the father, as follows:
… I observed that [the child] – when he was interviewed – … typically a child his age, in my experience, will be willing to separate and to be interviewed separately by myself. However, he felt uncomfortable about that and so his mother remained while he was being interviewed. … after a period he felt more comfortable and then was seen on his own. But he was more tentative than most children. … The – my observation was that there was a stronger connection with his mother and maternal grandmother than would be typical and, certainly, there was lots of evidence that he had had difficulty in leaving his mother to spend time with his father and when he came back from his father, he would complain to his mother about aspects of what had occurred. And he was particularly sensitive if there was any implication or comment – negative comment about his mother by [Ms L] or father and he felt distressed … He was very defensive of his mother.
Dr P agreed with Counsel for the father that a concern, in respect to the nature of the mother’s relationship with the child, is that the mother “might have an incapacity to promote the father’s relationship with – [the child]”.
In his report, Dr P described his observations of the child’s relationship with the father, as follows:
A close rapport was observed between father and son. [The father] asked [the child] about his understanding of [Country E] words. They smiled with each other in the context of direct eye contact. [The father] spoke about areas of interest, such as the world he was building [in a computer game]. [The child] asked about the paternal grandparents being in attendance as he had seen them in the waiting room.
Dr P also observed the child to have a close rapport with Ms L, as follows:
On the arrival of [Ms L] and the paternal grandparents, [Ms L] chatted easily with [the child], joining in the play as they built magnets and trains together. … A particularly close rapport was observed between [the child] and [Ms L].
Dr P noted that he observed the child’s interactions with the father and Ms L “over an extended period” and he described that “[the child] was observed to be relaxed and engaged in interactions with his father and [Ms L]”.
Dr P recorded his observations of the child engaging with his maternal grandparents, as follows:
While the father's family was being interviewed, [the child] was observed in interactions with his mother and maternal grandparents. A close rapport was observed, with numerous loving and highly attuned interactions evident.
In respect to his paternal grandmother, Dr P observed that she “also actively engaged with [the child]”.
While it has not impacted upon my decision, I note that Dr P recorded his observation that the paternal grandfather appeared to be less engaged in his interactions with the child, as follows:
The paternal grandfather sat separately for the duration of the family observation. He built a tower from the toys on his own, entirely disengaged from the family experience.

The maturity, sex, lifestyle and background of the child and either of the child’s parents

Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
There is a difference of opinion between the parties as to the nature and characterisation of the learning difficulties experienced by the child. However, both parties acknowledge that he has learning difficulties and has difficulty in maintaining his academic progress.
At the age of two years, the child underwent thorough testing with Dr N, with a view to determining whether he was meeting the appropriate developmental milestones for his age group. By way of summary, Dr N concluded that the child was exhibiting the behaviours typical of a 13 month old, when he was chronologically aged 26 months. However, it is agreed that, since that early intervention, the child’s developmental progress has significantly improved. It now appears to be the case that the child is generally receiving a “C grade” in his school subjects.
In his oral evidence, Dr P described the parties’ divergent views regarding the child’s developmental issues and proper diagnosis, as follows:
I think there is a problem with the mother viewing his problems as all to do with ASD and I think there’s a problem with the father viewing his problems as all to do with ADHD. I don’t think either view is correct. I think a more nuanced view of his developmental problems is necessary. I do think it is understandable given that [Dr G], as an experienced paediatrician, made the diagnosis of ADHD, recommended treatment for ADHD and the father did view that there was some value in that. I don’t think it’s surprising that he holds on to that diagnosis and motivation to keep – to seek ongoing treatment for ADHD. And I think it’s particularly relevant for the father, given his focus on academic and educational outcomes. So just as the mother is more focused on social communication and general developmental outcomes which has been the focus of her interventions, the father has really been … very focused on academic outcomes.

In giving oral evidence, Dr P explained that the child “spoke very clearly” about his distress in being separated from the mother. This is of particular concern, given the child’s underlying developmental delay. In that regard, Dr P further explained that:
… And so what happens for children who have an underlying developmental disability in particular is that they’re more likely then to become more disorganised because they don’t have the capacity to holds thing together in the same way that an average child would, and so the distress then goes on to general disorganisation, or having greater difficulty in attending to the activities of daily living, which he has been making good progress with, but remains a struggle.
Dr P explained that, even though the child loves the father and benefits from the attention he receives in the father’s home, “It would still be distressing and disorganising if most of the time he was not in his mother’s care”. As a result, Dr P was of the view that orders providing for the child to spend most of his time in the father’s care would not be in his best interests. I accept the validity of Dr P’s analysis in arriving at that conclusion and the opinion he has expressed.
A further concern associated with the child spending a substantially increased amount of time with the father is the fact that the mother and the maternal grandmother are unlikely to support that occurring. Dr P explained that, in those circumstances, the mother and the maternal grandmother, in their interactions with the child, would likely place a greater emphasis on his experience of distress when spending time with the father. I am satisfied that the likely conduct of the mother and the maternal grandmother, in that regard, would increase the anxiety experienced by the child in spending significant periods of time with the father.
Nevertheless, Dr P was of the view that an increase in the time that he currently spends with the father would be manageable for the child. In that respect, Dr P expressed the view that the child would be able to cope with spending an additional night per fortnight with the father, either by way of increasing the current weekend or mid-week time.
In explaining his reasoning for that, Dr P gave the following oral evidence:
I think there is no doubt that [the child] is loved and cared for in – by his father and in his father’s home in the care of the father and the stepmother. I think there is no doubt that even though there have been concerns raised by the mother and by [the child] on occasion that overall he has enjoyed the time and the relationship and the activities that he has experienced, despite having difficulties. As he grows older he has greater capacity to manage change. He has greater capacity to cope with the changes and requirements in an educational context – currently in primary school and then in high school – and I think he will have a greater capacity to cope with more extended separations from his mother provided that he is predominantly in his mother’s care; that he feels secure that he will remain predominantly in his mother’s care.
Comparatively, I find that there is no reasonable basis for reducing the amount of time that the child currently spends with the father, as initially proposed by the mother. I note that, after hearing the evidence of Dr P and the submissions of Counsel for the ICL the mother agreed that it was appropriate for the child to spend a block of four nights per fortnight with the father, in lieu of the time that the child currently spend with the father on Tuesday evenings.
Even though the child expressed to Dr P that he wished to spend less time, rather than more time, in the father’s care, I accept the validity of Dr P’s opinion that the child would be able to cope with some increase in his time with the father, subject to the qualification regarding changeovers. I am not satisfied, however, that at this point in time, the child has the capacity to cope with spending five nights per fortnight with the father, as proffered in the father’s “alternate proposal”. I am of the view that orders providing for the child to spend four nights per fortnight with the father, together with additional time in the school holiday periods, will enable the child to maintain a meaningful relationship with his father and Ms L.
Dr P further explained that, in terms of the child’s ability to cope with any increase in his time with the father, “it will be very important that that’s not associated with increased handovers, particularly increased handovers between his parents”. For reasons that I have earlier set out regarding the conduct of the parties, the maternal grandmother and Ms L at changeovers, I accept Dr P’s opinion, in that regard, that any orders made should minimise the number of changeovers that will occur between the parties. In order to reduce the number of changeovers, the child’s time with the father will be structured with a nine night gap between the periods of time that they spend together. I am satisfied that the benefit that the child would obtain from reducing the number of changeovers between his parents justifies such an arrangement and that the child will become increasingly more comfortable with that arrangement, as he develops.
Further, in the context of the child’s developmental difficulties and the stress and anxiety that he has experienced as a result of being separated from the mother, the Court would only consider making an order for the child to live primarily with the father if the mother was clearly engaging in conduct to deliberately alienate the child from the father. There has been no direct evidence of any such conduct and, to the contrary, as noted by Counsel for the ICL, the suggestion that such alienation has occurred is “contradicted by the very close and loving relationship which the father says that he has with [the child]”.
The Court’s obligation to make orders that are considered to be in the best interests of the child means that this is not a punitive jurisdiction. That is, orders are not made to the benefit of one parent or adverse to the other as a reward or penalty for their conduct. The focus of the Court is to balance all relevant considerations, including those set out in s 60CC of the Act, to make orders that are in the best interests of the child. In this matter, the most relevant considerations are the fact that the child has developmental difficulties and a dependent attachment relationship with the mother. In that regard, I agree with and accept the following submission of the ICL:
The state of the relationship is as it is, and your Honour has to deal with that as best as your Honour can, and the impact on [the child] of the father’s proposals is that the most significant consideration would, in relation – when your Honour considers the impact of the father’s proposals – is the nature of the relationship, in my submission.
I have previously recorded that I have some concerns as to whether the mother is willing to encourage the child’s relationship with the father. I have also expressed concern about what Dr P described as the mother’s “perplexing” apparent determination to obtain an ASD diagnosis for the child. Those concerns do not, however, in my opinion, justify an order requiring the parties to change the child’s residence. I am satisfied that such an order would cause significant distress to the child. In that respect, in his report, Dr P states:
Separation from his mother, would occur against [the child’s] wishes and be associated with distress and disorganisation. Although this would settle, this would not be in his best interests.
Dr P does not go as far as to suggest that the child would suffer psychological harm as result of such an order. However, in giving oral evidence, he clarified that, while he believed that the distress and disorganisation that the child would likely experience, if such orders were made, would eventually settle, the child would not necessarily “adjust” to the new arrangements. He stated that the child would “continue to miss being in his mother’s primary care”. That evidence does not go so far as to satisfy the Court that the child would be at risk of psychological harm if he were to be separated from the mother.
I accept that even a short term regression in the child’s progress, which Dr P thought was likely to occur if his primary residence was to be changed to the father’s household, is potentially problematic because, as Dr P explained, it would likely impact upon the child’s daily functioning and schooling. I accept and agree with the submission of Counsel for the ICL that, given the child’s history of developmental difficulties and the progress he has made in recent years, “it would be a real disadvantage for this little boy to have that good progress go backwards as result of a significant change in his living arrangements”. I find that even a temporary regression in the child’s developmental progress would adversely impact upon his self-esteem, in that regard.

Practical difficulty of implementation

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The only significant practical difficulty and expense in respect to the orders that I make, is in respect to arrangements for a professional contact service to supervise changeovers that will occur outside the school term.
As noted by Counsel for the ICL, it appears that the cost of that changeover supervision, assuming it will take place between the hours of 9.00 am and 5.00 pm on a weekday, will be approximately $66 (Exhibit “16-F”). In circumstances where the father insists on changeover occurring at a contact centre, I find it appropriate that he meet the costs of that service. I address this point further below, in terms of my consideration of the primary consideration of the need to protect the child from harm.

Avoiding further proceedings

Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I am satisfied that the orders proposed by the father for a change of the child’s primary residence would, for the reasons I have explained, result in the child suffering significant distress and, at least in the short term, regression in his development. It would also result in increased tension in the parties’ relationship. In that regard, I accept the following analysis and opinion of Dr P:
Although increased contact could be implemented as proposed by the father, this would result in distress for [the child]. It is predictable that the mother and the maternal grandmother’s response would serve to validate rather than dissipate such distress. There would be ongoing parental conflict which would further amplify his distress, as they lack the capacity to effectively communicate and resolve the difficulties which would predictably arise.
I accept and agree with the submission of Counsel for the ICL that, if orders as sought by the father were made, it would be more, rather than less, likely that further litigation would follow.
The father has sought an order preventing the child’s surname from being changed. Such an occurrence would be likely to be somewhat confusing to the child, hurtful for the father and cause further disputation between the parties. I will, therefore, make an order in those terms.

Other relevant matters

Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.

Schooling

Having regard to the child’s developmental delays, Dr P expressed the view that “the school that [the child] attends is actually a key issue, and it will be a very significant factor with regard to his future”. Dr P stated that he is of the opinion that it will be of benefit to the child if his school is located in proximity to his primary residence, as he would:
… in terms of his general day-to-day arrangements, be able to engage in his education and co-curricular activities with less transport, maintain and build social relationships, which will be an area of particular challenge for him, with people in his local area.
Comparatively, Dr P thought it unwise to simply choose a school based on its location being midway between the parties’ residences. In that respect, Dr P gave the following oral evidence:
I think choosing a school right in the middle, so it’s not close to either parent, would actually not be in his best interests, and – and I think that the choice of school would be best one where the parent who was primarily responsible for his care had done – made appropriate enquiries to identify that that school had the capacity to address his particular areas of strengths and weaknesses. I do not think it is a matter of generic halfway between the two houses or which school has the best NAPLAN results.
Further, a determination regarding which school the child will attend has potential ramifications beyond maximising his prospects of maintaining acceptable grades. As Dr P explained, poor academic performance can impact upon a child’s sense of self-esteem and, in the context of the relationship between the parties, there are also potential ramifications in terms of the issue of the child’s academic performance being an ongoing source of conflict.
I accept Dr P’s opinions, in that regard.
As previously noted, as a result of the ongoing disputation between the parties and the impact of that disputation on the child, I have found that the presumption in favour of equal shared parental responsibility does not apply in this case. While consultation is imperative, empowering one parent to make the final decision in respect to the child’s education will mitigate against the possibility of there being ongoing conflict regarding his educational experience and outcomes. I accept the logic of Dr P’s reasoning that, in this case, the choice as to which school the child attends should be made by parent with whom the child primarily lives. In this case, that is the mother.

Family therapy

The ICL has sought orders that the parties, and potentially the child, Ms L and the maternal grandmother, be required to attend family therapy with Ms W of Y Group. In giving oral evidence, Dr P expressed the opinion that it may be beneficial for the parties to attend family therapy, however, he expressed significant reservations as to whether, in light of the history of conflict between the parties, they will, firstly, be prepared to attend therapy and, secondly, cooperate in respect to that therapy.
Unfortunately, my observations of each party’s demeanour and the tone and nature of the evidence that they gave supports that pessimistic view held by Dr P. Neither party strongly advocated for orders for such therapy to be made. In light of the history of conflict in this family, I find that having another point of contact, such as therapy, may simply provide another opportunity for disagreement. I will not therefore make orders for the parties to attend family therapy.

Primary considerations

Meaningful relationship

Section 60CC(2)(a) of the Act requires me to consider the importance of the child having a meaningful relationship with the father. However, I must prioritise above that consideration the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse, in terms of s 60CC(2)(b): s 60CC(2A).
In this matter, both parties acknowledge that it is in the child’s best interests to have a meaningful relationship with each of them, in terms of s 60CC(2)(a). I accept that to be the case. In Sigley v Evor (2011) 44 Fam LR 439, the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
The evidence in this matter satisfies me that both of the parties love, and have a strong desire to properly care for, the child. Indeed, the intensity of their beliefs as to the appropriate means of caring for the child has, in large part, given rise to the disputation between them. Dr P acknowledged that “[The child] needs to know and love and have contact with both his parents”. That was not disputed by either party.
For those reasons, I have made orders for the child to spend four nights each fortnight with the father, as well as block time during the school holidays.
In respect to that school holiday time, the ICL proposes that, in the short school holidays, the child spend a period of seven consecutive nights with the father, which is slightly less than half of the school holidays. The mother agreed with the orders proposed by the ICL. However, primarily to avoid another source of potential conflict between the parties, in my view, it is appropriate to make orders that achieve an outcome where the child spends half of each of the short school holiday period with each parent. To avoid doubt, the reference to the commencement of the school holidays is intended to be from 4.00 pm on the last day of the school term, before the school holidays commence. I have also sought to clarify the “mid-point” of those holidays as being the seventh day of those holidays.
I accept that, at this stage of his development, it is likely to be distressing for the child to spend half of the Christmas school holiday period with the father in one block. However, I agree with the opinion of Dr P that it would be unsatisfactory for the child to spend no time with the father for a period of approximately four weeks during that period, as proposed by the mother. In that regard, I agree with the proposal of the ICL that the child spend an additional week with the father at the end of the Christmas school holiday period. The mother expressed concern that this additional week may cause unnecessary distress to the child, however, Dr P was of the view that the child would cope with that additional week, and I prefer his evidence, in that regard.
The mother expressed further concern that, if those orders were made as sought by the ICL, the child would not be at his usual place of residence on the day before commencing the new school year. I accept the validity of the submission of Counsel for the mother that, at this stage of his development, particularly in circumstances where he will be commencing high school in the year 2020, it is appropriate that the child spends the night before the new school year at his primary place of residence, which is the mother’s home.
Further, there did not appear to be a dispute between the parties that orders should be made to provide for the child to spend time with the mother on Mother’s Day and the father on Father’s Day and also to spend time with both parents during Easter. It also appeared to be the case that the parties agreed that birthdays should fall as they are, that is, that the child should spend time with them, in accordance with the normal spend time orders, regardless of whether a birthday falls on that day. The mother has sought orders requiring the party with whom the child is spending time on his birthday to facilitate a telephone call or Skype call between the child and the other parent. I consider that application to be appropriate and will make orders accordingly.

Need to protect the child from harm

I have previously set out Dr P’s evidence regarding the impact that being caught in the middle of the conflict between the parties has had on the child. That evidence is summarised by Dr P, as follows:
[The child’s] developmental progress will be impeded by exposure to parental conflict. He will be, and continue to be, the subject of stress, if exposed to parental conflict, and what will necessarily happen in such circumstances is he will be quizzed by his parents about each parent, and the maternal grandmother and the stepmother, about his experience. That will be experienced as pressure by [the child] if the two sides of the family are involved in making ongoing decision-making which is opposed to each other. And so [the child] remains in the middle. It is critical that [the child] is taken out of the middle.

Dr P gave oral evidence regarding his observations of the child as an example of the practical impact of the inter-familial conflict on him, as follows:
If I go back to paragraph 95 of my report, the concern [the child] had about his father coming was not about being fearful of his father or not wanting to see his father or stepmother or members of the extended family, it wasn’t a typical alienation-type presentation where he, you know, didn’t want anything to do with them. Instead, it was – his primary concern was twofold. One is that, you know, his – about what was being said that if he had anything negative to say then his father may react to that. Then, secondly, he was anxious about – not so much – he wasn’t anxious about seeing his father and that side of the family, he was anxious about the two sides of the family coming into contact with each other.
As explained above, I have taken into consideration the issue of risk to the child in arriving at my conclusion that one party should have parental responsibility. In this case, because I have determined that the child should live with the mother and spend time with his father, parental responsibility should be allocated to the mother.
The issue of risk also impacts upon the orders I make for the child to spend time with the father. Specifically, for reasons which I have explained, I am satisfied that it is in the child’s interest for the number of changeovers to be reduced. Currently, there are six changeovers during each fortnight. The orders proposed by the ICL increase the block period of time that the child will spend with the father and reduce the number of changeovers to two each fortnight.
I acknowledge that one disadvantage of making orders for the child to spend block periods of time with each parent will result in a situation where the child is not consistently with one parent on a particular night of the week. In the context of the parental conflict, that issue has the potential to result in disagreement between the parties as to the child engaging in extracurricular activities on particular afternoons. While that potential for conflict exists, I am satisfied that the benefit of reducing the number of changeovers between the parties outweighs the potential detriment. In that respect, I note that s 60CC(2A) of the Act requires me to prioritise the child’s safety and, in particular, in this case, minimise the potential for psychological harm as result of the child being exposed to parental conflict at changeover.
During the school term, changeovers will occur at the child’s school, without the presence of the party from whose care the child is leaving. As stated, orders will be made in accordance with the father’s proposal regarding changeovers that are to occur other than at the child’s school, in that such changeovers will take place at a contact centre. The father will be responsible for meeting the cost of that supervision service.
In that regard, I agree with and accept the advice of Dr P that it is less than desirable for changeovers on non-school days to occur at a Police Station. He stated, as follows:
[It] will bring up memories of the altercations that involved the police and involved his parents, and involved everyone getting frustrated. So it’s a – a place of bad memories, bad karma, if you like, for [the child], and it reinforces the idea that he is unsafe and that he needs to be protected from altercations between his parents.
As I have explained, that sense of anxiety and fear experienced by the child during previous altercations between the parties and their extended families at changeover presents an unacceptable risk of psychological harm to the child. Dr P further noted that both parties have, at times, called upon the Police to intervene in their disputation and, therefore, the child understands the role of the Police. I accept that it is not in the child’s best interests for him to be constantly reminded of the past tension and conflict between his parents, which necessitated law enforcement authorities being called upon to intervene. For those reasons, I do not consider it appropriate that non-school changeovers continue to occur at a Police Station.
Dr P expressed a preference for changeovers on non-school days to occur outside the father’s apartment block. In that respect, Dr P favoured a changeover scenario, which he described as a “simple idea”, whereby the mother would send a text message to the father indicating her arrival outside the building, after which the child would “[come] down in the lift and [go] outside the building and off he goes”. The mother agrees with that proposal.
In that context, I note and agree with the oral evidence of Dr P that:
… there are lots of challenges with regard to the contact centre. It would be related to the hours of operation, the availability and capacity of the contact centre. Then, once those dates are locked in, there would be a lack of flexibility with regard to changes because the contact centre would have to have availability and, clearly, there’s an ongoing cost involved. And so there are a number of logistic problems with it being a contact centre. And so again there is a … proposal which would only be – should only be considered to be implemented if necessary.
On the other hand, Dr P acknowledged that the strong objection by the father and Ms L to changeovers occurring outside their apartment building needed to be taken into consideration. I would hope that, in time, particularly as the child becomes older, the parties would be able to reach agreement on an appropriate changeover location, other than a contact centre, for those periods of time when the child is not attending school.
Finally, as I have earlier described, an unfortunate consequence of the parties’ failure to act in a child-focused, cooperative fashion has been the, at times, unhelpful interference by third persons in the parenting of the child. In those circumstances, I agree with proposed order 8 advanced by the ICL, that the parties be required to use their best endeavours to attend changeovers in person, rather than having others attend in their place.

Costs

The ICL has sought orders for the parties share her costs, to the extent of $7,691.50 each. Both parties referred to their relatively modest financial circumstances and neither party consented to such orders being made. However, equally, neither party made detailed submissions in opposition to such an order. In the event that such an order was made, both parties submitted that an appropriate timeframe for such payment would be within 12 months. However, if that period was unsatisfactory, the father contended that he should be permitted to have a period of six months within which to pay the costs of the ICL.
For reasons which I explained in Marsden & Marsden [2018] FamCA 157 at [351] to [365], I am of the opinion that, unless a party is legally aided, there is a presumption that they will share the costs incurred by the ICL.
In this case, I am satisfied that that should occur and I will make the costs orders, as sought by the ICL, save to the extent that I will permit both parties to pay those costs within six months.

I certify that the preceding two-hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 23 November 2018.

Associate:

Date: 23 November 2018

[2018] FamCA 974

23 November 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Costs

Injunction