Klein and Bray

[2011] FamCA 837

FAMILY COURT OF AUSTRALIA

KLEIN & BRAY [2011] FamCA 837

FAMILY LAW – CHILDREN – Parental Responsibility – With whom a child spends time – With whom a child communicates – Interim order that mother have sole parental responsibility for the child subject to conditions - Self executing order that interim orders convert into final orders in twelve months time if no application is made by the father – Final orders that father spend time with and communicate with the child

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA and 61DA

MRR v GR [2010] HCA 4

APPLICANT: Mr Klein

RESPONDENT: Ms Bray

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: TVC 1352 of 2007

DATE DELIVERED: 6 October 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 6 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reaston

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Reilly Stevens Bovey Lawyers

Orders

1. UNTIL FURTHER ORDER the mother have sole parental responsibility for B born … 2000 (“the child”) provided that in relation to the major long term issues concerning the child, including his education both current and future, religious and cultural upbringing, health changes and his living arrangements, that may make it significantly more difficult for him to spend time with the parties or either of them, the mother must consult in writing the matters set out at paragraph 2.

2. UNTIL FURTHER ORDER the mother, before making any decision in relation to the major long term issues concering the child, must:-

   (a)advise the father in writing of the decision intended to be made;

   (b)seek the father’s written response in relation to such decision;

   (c)consider, by reference to the child’s best interest, any response by the father; and

   (d)advise the father in writing as soon as reasonably practicable of her decision.

3. That interim orders 1 and 2 shall become final orders at the expiry of twelve (12) months from the date of this order, unless there is an order from a court exercising jurisdiction under the Family Law Act to the contrary.

   Living arrangements

   School terms

4. (a)    During school term the child will live with the mother and spend time with the father at all times agreed in writing between the parties, failing agreement the child will spend time with the father from after school Friday until the commencement of school Wednesday in each alternate week commencing the first week after the school holidays if the child has been primarily with the mother the last week of the preceeding school holidays or the second week after the commencement of school term if the child has been primarily with the father in the last week of the preceeding school holiday.

   (b)    This order will suspend insofar as the period of 28 October 2011 through to
   2 November 2011.  In relation to that proposed period the time the child spends with the father will run from after school Wednesday 26 October 2011 and shall conclude at the commencement of school on Monday 31 October 2011.

   (c)    If for the purposes of counselling of the child and upon the mother giving the father twenty one (21) days notice in writing, the times may be altered from “the after school Friday to commencement of school Wednesday arrangement” to arrangement from after school on the preceeding Wednesday to the commencement of school on the following Monday.

   School holidays

5. During school holidays, the child spend time with the mother and the father at all times as may be agreed in writing between the parties but failing agreement:

   a.   the first half in even years and the second half in odd years with the mother and the second half in even years and the first half in odd years with the father;

   b.   the first half is to commence at the conclusion of the last school day of each term; and the second half commence at 9.00am on the middle Saturday of the school holiday period or if in the Easter school holidays, at 9.00am on the middle Wednesday or if no middle day, on the day following the midpoint; and end at the commencement of the first school day of the school term.

Special days

Unless otherwise agreed in writing between the parties:

1. If the child is not already spending time with the mother on Mother’s Day, he spend time with her on that day from 9.00am until 5.00pm.

2. If the child is not already spending time with the father on Father’s Day, he spend time with him on that day from 9.00am until 5.00pm.

3. The child spend two hours on his birthday with the party with whom he is not then spending time unless the child’s birthday is a changeover day, and if no other period be able to be agreed between the parties, the two hours be from 4.00pm until 6.00pm.

   Changeover

4. The following changeover arrangements apply unless otherwise agreed in writing between the parties:

   a.during the school term, changeover shall usually occur at the child’s school or after or before school care facility if outside school hours and the parties have notified each other of that;

   b.if changeover occurs on a non-school day, the mother is to deliver the child to the father’s home at the commencement of time with the father and the father is to deliver the child to the mother’s home at the conclusion of time with the father, provided that the party delivering the child is to remain in his/her vehicle at the delivery and ensure that the child proceeds into the home of the other party, and that party is to remain inside his/her home and not approach the delivering party.

   Attendance at the child’s school and extra-curricular activities

5. Both parties are entitled to attend all events involving the child including: -

   a.     sporting functions;

   b.     extra-curricular activities which allow for parental attendance; and

   c.     school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, school fair, school fundraisers, parent and teacher interviews, canteen duties and social functions.

   Communication

6. The parties are to permit and facilitate the child to have reasonable communication with the party with whom the child is not spending time, including on special days, either by telephone, text message, Skype or email.

   Inability

7. In the event that the parent whom the child is living/spending time with, is not able to personally care for the child for an overnight period or longer, the parent shall advise the other parent to give them the first option to care for the child. If alternative arrangements are made with a third party, the parent shall advise the other parent of those arrangements and provide the name and contact details of the third party in whose care the child will be.

   Parties’ communication

8. All written communications between the parties concerning the child, including in relation to parental responsibility, be by email where practicable, or failing that, by text message.

9. All communication is not to contain any subject matter other than as may relate directly to the child and the carrying out of these orders.

10. To facilitate such written communication the parties provide each other with an email address and/or text message service number and give written notice of any change of such within 24 hours of any change.

    Information

11. The parties must keep each other informed of his and her residential address and emergency contact telephone number and give written notice of any change of such within 24 hours of any change.

12. In the event that the child is sick/requires medical treatment and needs to attend a doctor’s appointment, both parents are to be informed to enable both parents to attend the doctor’s appointment. If one parent cannot attend, the parent that attended the doctor’s appointment is to provide all information about the doctor’s appointment to the parent that could not attend including any medical certificates or reports and treatment plans.

13. The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the child attends and authorise such to provide to the other at his/her request and expense any information or reports concerning the child provided that this order is sufficient authorisation to do so.

14. These orders act as an authority to the child’s school to provide each party at his/her request and expense copies of school reports concerning the child and any circular or other written information concerning school activities usually provided to parents of children at the school.

    Non denigration

15. The parties are not to denigrate each other or their partners in the presence or hearing of the child and are to remove the child from the presence of other parties who may be doing so.

    Adult issues

16. The parties are not to discuss issues concerning the court matters with or in the presence or hearing of the child and are to remove the child from the presence of other parties who may be doing so.

    The Child’s ongoing emotional wellbeing

17. The mother and father will do all acts and things to facilitate the child’s attendance upon a therapist for the purpose of receiving therapeutic counselling to assist with the issues arising from the conflict between the parents and to assist the child in developing appropriate coping strategies.

    a.     the mother and father will share equally any costs associated with the child’s counselling and pay any accounts as they fall due.

    b.     the parties will ensure that the child is presented for such counselling as recommended by the counsellor.

    Physical discipline

18. The parties shall not use physical discipline on the child and shall not allow any third party to do so.

    Travel arrangements

19. If either party intends to travel away from C Town for periods in excess of 3 nights during the time that they are spending with the child, they shall provide to the other parent an itinerary and contact details (including an address and landline/mobile telephone number) 3 weeks prior to the intended date of travel.

20. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

21. The appointment of the Independent Children’s Lawyer be extended for a period of twelve (12) months from today’s date, (or such other time as is ordered by a court exercising jurisdiction under the Family Law Act) after which time her appointment shall cease.

22. This matter be removed from the list of cases requiring determination.

    IT IS DIRECTED

23. If the father wishes to make an application in respect of interim orders 1 and 2 above (noting that the subsequent orders are final orders) such application will be listed before Justice Benjamin at the commencement of the February, May or September 2012 sittings and shall be supported by:-

    a.      an application setting out the parental responsibility orders that the father seeks; and

    b.      an affidavit setting out the factual basis  upon which he asserts those orders should be made;

    and that the mother and the Independent Children’s Lawyer provided, at least, twenty eight (28) days notice of any such application.

24. Any future family report in respect of this matter should not be provided by
    Ms D.

25. All documents produced on subpoena be either returned to the party who produced them or if a photocopy, such photocopy to be destroyed by the Registry.

26. The Independent Children’s Lawyer forward to Justice Benjamin’s associate within one business day an electronic version of these orders.

27. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

28. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Bray & Klein has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVC 1352 of 2007

Mr Klein

Applicant

And

Ms Bray

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between the mother, Ms Bray, and the father, Mr Klein, relating to the parenting of their son, B, who was born in 2000 and who is now aged 11 and a half.  These proceedings were commenced by the father on 30 April 2010 by an application filed in the Federal Magistrates Court.  Unfortunately I do not have before me the precise statement of the orders sought by the father.  It was an attachment to his application but it appears not to be on the Court documents.  His affidavit of that time sets out that the father wanted equal time with the child and certain other orders. 

2. The mother filed a response on 13 July 2010 and the proceedings remained in the Federal Magistrates Court.  It was eventually transferred to this Court after a series of interim hearings.  The father has discontinued the proceedings.  The mother yesterday filed an amended response where she sought a series of orders far greater than those set out in her original response.  The effect of the orders sought by the mother involved a change to parental responsibility and, initially, she sought that the status quo, with regard to the time with each of the parents remain the same, but if there is a problem then the time that the father would spend with the child would fall back to each alternate weekend.  After some discussion and argument the mother changed her application and now seeks an order in the terms of the current arrangements and I propose to make, that order.  This arrangement accords with the recommendation of the Independent Children’s Lawyer.

3. The balance of the orders I am told, and I accept, reflect the existing arrangements with one exception, that is, with regard to the counselling arrangements for the child.  I will deal with that further in these reasons.  The effect of the orders the mother now seeks will mean that she has sole parental responsibility and that, in terms of counselling, she can put in place arrangements which she believes meets the needs of the child.

4. The father has filed a notice of discontinuance in relation to these proceedings and the proceedings are determined on an undefended basis, he being aware of most of the issues before this Court. 

BACKGROUND

1. The father is aged 40 and the mother is aged 38.  The father is a tradesman.  The mother is a professional.  They married in 2005 at E Town.  The father asserts they separated in May 2006.  There is one child of their marriage, the child, to whom I have alluded to earlier, who is aged about 11 and a half.  The party’s marriage was dissolved in about February 2008. 

2. The material before me today is:-

   (1)An affidavit of the Independent Children’s Lawyer filed 29 September 2011;

   (2)A letter for the Independent Children’s Lawyer addressed the father dated 30 September 2011, which I mark as Exhibit ICL1;

   (3)An amended response from the mother filed by leave in court today, and I give her leave for that purpose;

   (4)The mother’s original response filed 13 July 2010;

   (5)The Reasons of Willis FM of 4 March 2011;

   (6)A transcript of evidence taken in the Federal Magistrates Court on 4 March 2011;

   (7)A notice of discontinuance filed by the father on 27 September 2011;

   (8)An affidavit of Ms Bray sworn 18 July 2011;

   (9)A transcript of evidence before Willis FM on 20 September 2011;

   (10)The Family Report of 4 October 2010;

   (11)The memorandum of Ms F dated 6 October 2010;

3. Evidence was also give by Ms Bray in court today and I have accepted that evidence. 

4. The first issue which I need to determine is the question of procedural fairness.  The two substantive orders which I propose to make will relate to the counselling arrangements for the child and parental responsibility.  As to the counselling arrangements, they have been a live issue in this Court for some time.  Orders were made in the Federal Magistrates Court that the child undertake counselling, and the father, from the transcript, did not treat this order in any effective manner, and when the child acted out with difficulties earlier this year and there was a recommendation for counselling, the father again did not seem to embrace that.

5. The evidence of the mother is that the father does not embrace counselling for the child and does not see it as need for the child.  It is a clearly live issue which was addressed through the whole of these proceedings.  The mother seeks orders in a way which will enable the child to receive the counselling which it is clear he needs, and I am satisfied that that order ought to be made, and if father discontinued and chose not to argue that it is a matter for him and I am quite prepared to make final orders in that respect.  The other orders simply reflect the status quo with the exception of the parental responsibility aspect.

6. In terms of parental responsibility this was not an issue which was raised in a direct sense during the course of these proceedings.  However, it is clear that these parents have been unable to agree on issues of parental responsibility and that has had the capacity to impact upon the wellbeing of the child, and I will go back and address this in the reasons shortly.  The first decision that I wanted to make was that the father was served with the documentations yesterday.  He was not given procedural fairness in relation to that. 

7. Accordingly, the order I propose to make in relation to parental responsibility, having regard to some comments that I have previously made and some comments I will make, will be an interim order and I will provide a period of time for the father to apply to this Court to argue the question of parental responsibility.  Going back to that question of parental responsibility, it is clear from the evidence that the father does not take the question of counselling seriously.  It is also clear that this child needs some medical intervention in that regard.  That is clear from the Family Report and clear from the material which was provided by Ms F.

8. The only way that this can effectively happen is if the mother puts that into place. The mother, in evidence today, said that the child is still reluctant to go, but she is able to cajole and persuade him to go when the child is in her care. I accept that evidence and I will put in place an order that the mother have sole parental responsibility. In making that determination I have regard to the broad range of section 60CC factors which I need to have regard to.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.

2. The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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.

1. The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Act. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to section 61DA.

   [1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

3. If the presumption is not rebutted and it is in the child’s best interests, a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under s 61DA(2), but a Court determines that it is in a child’s best interests for an order for equal shared parental responsibility, it should be made.

4. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.

5. The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with other persons is determined (see s 64B(2)).  This is because, where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal or substantial and significant time pursuant to s 65DAA.  In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.

6. Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-

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

7. The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:

   Primary considerations

   (2)        The primary considerations are:-

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:-

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

8. A court must consider the s 60CC(2) considerations as “primary considerations”.  This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face-to-face time and communication.

9. In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider:-

   Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[2]

   [2] MRR v GR [2010] HCA 4.

10. The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.

11. The first matter I need to turn my mind to is the question of the benefit of the child having a meaningful relationship with each parent.  In this case there is no issue that there is a benefit in this child having such a meaningful relationship.  It is the conflict that exists between the parents and their different parenting styles which causes issues between the parties and in many levels the father’s determination, it seems, that there be equal time.  I often wonder about such determinations because I wonder whether that reflects the needs of the parent rather than the needs of a child.

12. In this case the child will spend equal time with his parents during school holidays, but has five nights per fortnight with the father and nine nights per fortnight with the mother during the school term.  Having regard to all of the material and not withstanding some commends made by the Family Consultant I am satisfied that that arrangement should remain in place.  To that end, I am satisfied that the father no longer seeks equal time as it was the basis of his application for equal time and that is the very application he abandoned when he filed a notice of discontinuance on 27 September 2011.

13. In term of the second aspect, which is the risk of psychological/physical harm, violence or neglect, I am not satisfied that there is any evidence that the child is at risk of physical harm, neglect or abuse.  I am concerned that the psychological wellbeing of the child is at risk because of the conflict that exists between the parents and because of the father’s prior determination for equal time.  The father has not or had not undertaken the orders or had not arranged the counselling as was ordered by the Federal Magistrate.  An example of the poor ability for the parties to negotiate, and particularly the father, were the events in respect of the mother wanting to travel to the United Kingdom which was the subject of the Reasons of Her Honour and the determination of Her Honour.

14. I note the intensity of the communications between the parties as set out in that affidavit of the Independent Children’s Lawyer.  I might add that from that material I have some concerns that the expert may have crossed the boundaries of being an expert to provide evidence to the Court and providing therapeutic assistance to the child.  It is a boundary which ought not to be crossed, and accordingly, I have made an order preventing her from further involvement in this matter.  From the material before me, it appears that the child wants a relationship with both of his parents and finds the stress of this litigation burdensome upon him.  From time to time, he adopts the views of his father, and from time to time, he adopts the views of his mother.  It is clear in the material before me that he needs counselling and that his father is not encouraging that counselling, and that from time to time, the child view’s reflect that view of the world.  However, he is still young enough that he can be persuaded by his mother to undertake that counselling.  From time to time, the child seeks equal time with his father, and from the evidence before me, it is clear that the father has fixed and determined view that equal time will meet the best interest of this child, which I have discussed earlier. 

15. The child has a close and loving relationship with each of his parents and the broader families.  Interestingly, each parent is willing to facilitate and encourage a relationship between the child and the other parent.  However, their views in relation to the extent of that time differ and their ability to find a solution has not worked particularly well in recent times.  The orders that I propose to make will not change the real circumstances, except in terms of parental responsibility and counselling.  The counselling, and I make no apologies about the order I am putting in place, because I am satisfied that this is something that the child needs, as to the broader concept of parental responsibility, I have made orders which are on an interim basis.  There are no practical difficulties and expense in the child spending time with either parent, and each parent has the capacity to meet the emotional and intellectual needs of the child, save and except the matters of counselling, which I have alluded to earlier.

16. There are no matters of maturity, sex or life style which are relevant, except to note that the child is now 11 and a half and I am concerned that if this conflict, the determination of each party and the poor communication continue, that it will make the parenting of this child very difficult into his teenage years and may make that passage more difficult than it otherwise would be if these parents could communicate in a sound and sensible way.  The mother provides a good strong attitude to her responsibilities of parenting, as, in most instances, does the father.  There are no issues of family violence of which I am aware of.

17. I was troubled about making the interim order for parental responsibility because I was concerned that it would lead to further litigation, and I am not sure that that concern has been properly addressed, but the procedural fairness issues must be that the father is entitled if he wants to argue that to argue that. I have had regard to the extent to which each parent has fulfilled or failed to have fulfilled their duties and responsibilities in separation. As set out in section 60CC(4) and section 60CC(4A).

18. Having regard to all of those factors, I am not satisfied that equal shared parental responsibility would meet the needs of this child in these particular circumstances, and accordingly, I do not make an order for equal shared parental responsibility.  I make an order for sole parental responsibility but for the reasons articulated earlier, they will be on an interim basis, although; if no application is made within 12 months, there will be a self-executing order to convert the interim orders into to a final order. 

19. In terms of the living arrangements, for school term and school holidays, they reflect the same living arrangements as have been in place for some time, with the exception of arrangements so that the child can be encouraged to attend the counselling.  The special days simply reflect that the child will be with his mother on Mother’s Day, father on Father’s Day, and see both of his parents on his birthday.  The changeover remains substantially the same, with the exception that instead of the mother’s home, there will be changeover at the child’s school from time to time.  The orders make it clear that both parents can attend at school and extracurricular activities and that each parent should facilitate the child having contact with the other parent by using the vast range of electronic means that are now available in the modern community.  The orders also to provide that if one parent is unable to care for the child for overnight periods or longer, they will give the other parent first option to take on that responsibility and that care.  That seems to me to be sound in the circumstance of this case. 

20. The parties’ communication will be dealt with in an electronic way, and each party must keep the other informed of their address and telephone numbers so that the wellbeing the child can be a matter for each of them. 

21. The mother seeks a non-denigration order, and I see no reason why such an order ought not to be put in place, and it would seem to me that it makes sense.  The mother also seeks an order that there be no discussion of adult issues.  She seeks particular orders in relation to the child’s ongoing emotional wellbeing, and having regard to the traumatic events for the child earlier this year, these orders seem sound.  The child is 11 and a half.  I see no reason why the child ought to be physically disciplined, and as such, the order for non-physical discipline makes sense, similarly, as do the orders sought by the mother in respect of the travel arrangements.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 October 2011.

Associate:

Date:              6 October 2011