Landis and Landis

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANDIS & LANDIS

[2013] FCCA 2413

Catchwords:
FAMILY LAW – Children – Parenting Orders – final orders – parental responsibility – equal shared parental responsibility – residence – spending time with parents – best interests of the child – child aged 4 years – child’s mother originally from (country omitted) – consideration of child’s right to enjoy her (country omitted) culture – Watch List – Family Law Watch List – immunisation – whether child should undergo traditional immunisation – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.11C, 11F, 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 67U, 68L

Cases cited:
Kingsford & Kingsford [2012] FamCA 889
Landis & Landis [2010] FMCAfam 1283
Landis & Landis [2011] FMCAfam 490
Landis & Landis [2012] FMCAfam 1452
Landis & Landis [2013] FMCAfam 213

Applicant:

MS LANDIS

Respondent:

MR LANDIS

File Number:

SYC 4810 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

6-8 March, 30-31 July, 1 August 2013

Date of Last Submission:

1August 2013

Delivered at:

Sydney

Delivered on:

17 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Graves

Solicitors for the Applicant:

David H. Cohen & Co

The Respondent:

In person

Counsel for the Independent Children's Lawyer:	Mr Sperling
Independent Children's Lawyer:	Brian Samuel

ORDERS

All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2009.
The child X is to live with the Father.
From the date of these Orders until 31 December 2014 the child X will spend time with the Mother:
(a)From 8:30am on Monday until 8:30am on Wednesday in each week; and
(b)From 8:30am until 5:30pm each Friday.
From 1 January 2014 until 31 December 2014 the child X is to spend time with the Mother:
(a)From 8:30am on Friday until 5:30pm on Sunday each alternate week;
(b)From 8:30am until 5:30pm each other Friday in the fortnight; and
(c)From 8:30am on Tuesday until 8:30am on Wednesday each week.
From 1 January 2015 until the child X commences school at the beginning of the first school term in January 2015 the child X is to spend time with the Mother:
(a)From 3:00pm on Friday until 9:00am on Monday each alternate weekend; and
(b)From 3:00pm on Tuesday until 9:00am on Wednesday in each week.
From the commencement of the school term in January 2015 and during each school term thereafter the child X is to live with the Mother:
(a)From immediately after school on Friday (or from 3:00pm if the child is not required to attend school on that day) until the commencement of school on Monday (or 9:00am if the child is not required to attend school on that day) each alternate weekend;
(b)From immediately after school on Tuesday until the commencement of school on Wednesday each week.
The times that the child spends or lives with each parent during the school terms are suspended and are to resume in the same sequence at the commencement of the following term.
Commencing at the end of the first school term in 2015 and for each of the Autumn, Winter and Spring school holidays thereafter for one half of each of those school holidays.
For the purposes of the Christmas/January school holiday period commencing at the end of the fourth school term in December 2015 the child will spend time or live with each parent as the case may be as follows:
(a)For the first week of the school holidays commencing on Friday 18 December 2015 with the Mother;
(b)For the second week commencing at 4:00pm on Christmas Day 2015 with the Father;
(c)For the third week commencing at 4:00pm on New Year’s Day 1 January 2016 with the Mother;
(d)For the fourth week commencing at 4:00pm on 8 January 2016 with the Father;
(e)For the fifth week commencing at 4:00pm on 15 January 2016 with the Mother; and
(f)Thereafter with the father commencing at 4:00pm on 22 January 2016 until the commencement of school at the beginning of the first school term.
For the purposes of the Christmas/January school holiday period commencing at the end of the fourth school term in December 2016 and each Christmas/January school holiday period thereafter the child X is to spend time with the Mother for half of the school holidays as the parties agree PROVIDED THAT:
(a)If there is no agreement between the parties then the child X will spend time with the Mother for the first half of the Christmas/January school holidays in December 2016 and January 2017 and each alternate year thereafter and for the second half of the Christmas/January school holidays in December 2017 and January 2018 and each alternate year thereafter; and
(b)When the child X is to be with one parent during the first half of the Christmas/January school holiday period then she is to be with the other parent from 2:00pm on Christmas Day until 5:30pm on Boxing Day.
For the purposes of calculating the halfway point in any school holiday period, the holidays shall be taken to commence immediately after school on the afternoon of the last day that the child is required to attend school at the end of the term and 6:00pm on the evening immediately before the first day that the child is required to attend school at the commencement of the following term and the time is to be calculated by the number of nights that the child spends with each parent.
For the purpose of changeovers between the parents the parents will collect the child X and return her to the other parent:
(a)From pre-school or school at the commencement of the time that the child is to spend or live with them and to the pre-school or school at the end of the time;
(b)Where the child X is not at pre-school or school at the commencement or conclusion of the time then changeovers will take place at the (omitted) Shopping Centre; and
(c)For the purpose of this Order “pre-school” does not include Family Day Care of Mr T.
In the event that Mother’s Day occurs during any period when the child X is otherwise living with the Father in accordance with these Orders then the child will spend time with the Mother:
(a)From 9:30am until 5:30pm in 2014; and
(b)From 2015 onwards, on the weekend on which Mother’s Day falls from immediately after school on the Friday before Mother’s Day until the commencement of school on the following Monday.
In the event that Father’s Day occurs during any period when the child X is otherwise with spending time with the father in accordance with these Orders then the child will spend time with the father:
(a)From 9:30am until 5:30pm in 2014; and
(b)From 2015 onwards, on the weekend on which Father’s Day falls from immediately after school on the Friday before Father’s Day until the commencement of school on the following Monday.
If the child’s birthday falls on a day when the child is in the care of the father in accordance with these Orders then the child is to spend time with the Mother for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or from 3:00pm if the day is not a school day until 7:00pm.
If the child’s birthday falls on a day when the child is in the care of the mother in accordance with these Orders then the child is to spend time with the Father for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or from 3:00pm if the day is not a school day until 7:00pm.
If the Mother’s birthday falls on a day when the child is in the care of the Father in accordance with these Orders then the child is to spend time with the Mother for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or 3:00pm if the day is not a school day until 7:00pm.
If the Father’s birthday falls on a day when the child is in the care of the Mother in accordance with these Orders then the child is to spend time with the Father for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or 3:00pm if the day is not a school day until 7:00pm.
The Mother is to spend time with the child on days that are of special significance to (country omitted) people at such times as the parties shall agree but if there is no agreement from 12 noon until 6:00pm.
Unless the Mother and Father consent in writing or unless otherwise ordered by the Court:
(a)The child X is to attend a day care centre for the balance of 2013 as nominated by the Father;
(b)In 2014 the child X is to attend (omitted) Pre-School at (omitted) on days when she is living with the father PROVIDED THAT in the event that she is unable to attend (omitted) Pre-School in 2014 then the child will attend the (omitted) Day Care Centre on days when she is living with the Father;
(c)Commencing in 2015 the child X is to attend (omitted) Public School PROVIDED THAT in the event that she is unable to attend school at the commencement of the first school term in 2015 the child is to be enrolled in and thereafter attend the local public school closest to the residential address of the Father.
When the child X reaches Year 5 at school the Mother and Father are to consult with each other in writing as to their proposals for high school for X and in the event that there is no agreement between the parties about the high school the child is to attend by the end of Term Three in Year 5 then the Mother and Father must do all such things necessary to arrange to attend on a Family Relationships Centre to attempt to resolve this issue prior to commencing any Court proceedings under the Family Law Act 1975.
Both the Mother and the Father are to authorise any school, pre-school or day care centre that the child X may attend to provide to both the Mother and the Father:
(a)Copies of all of the child’s school reports;
(b)Copies of all newsletters and announcements of all school or pre-school or day care activities or other material pertaining to the child’s education; and
(c)In the event that X should bring home from school with her during any period when she is in the care of either parent, that parent must provide a copy of the note from the school to the other parent within two (2) days of receipt by that parent (which may include forwarding such material by email), together with written information about what that parent being the parent in whose care the child is has done relating to the note, if anything, AND if the material pertaining to X’s education is not available in writing then the parent who has the material must within two (2) days provide written particulars of the relevant reports or activities to the other parent.
Both the Mother and the Father are to authorise the staff members at any school, pre-school or day care centre that the child X may attend to discuss the child’s progress with the other parent AND these Orders are deemed to be the Father’s and the Mother’s authorisations to any school, pre-school or day care centre to discuss the child’s progress with the other parent.
Both the Mother and the Father may attend events to which parents are normally invited to attend such as special days, prize days, school sports carnivals, parent teacher interviews and all extra-curricular activities in which the child may participate.
Both the Father and the mother may provide a copy of these Orders to the school, pre-school or day care centre that the child X attends.

THE COURT NOTES THAT:

(a)The child X currently attends the Family Day Care of Mr T and it is the intention of the Father that the child will continue to attend this day care centre until the end of 2013.
(b)(omitted) Public School is an out of area public school from both the Father’s and the Mother’s residential addresses.
(c)The Father currently resides in (omitted).

Each parent must advise the other as soon as practicable and in any event within two (2) hours if, whilst the child X is in their care in accordance with these Orders, the child is hospitalised or receives medical attention for serious illness or injury and provide the other parent with details including details of the illness, injury, treating doctor or hospital and the child’s treatment and prognosis.
Each parent must ensure that the other is kept informed as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by X while in their care; and
(b)Any medication that has been prescribed for the child or any over the counter medication given to the child.
The Mother and Father are to consult in relation to the child’s attendance on any specialist, including any specialist medical practitioner, dentist, orthodontist, speech therapist, ophthalmologist, occupational therapist or other therapist PROVIDED THAT:
(a)In the event that the child X is referred to such specialist the parent who made the referral must inform the other parent in writing within 24 hours of such referral being made;
(b)The parent who makes the initial appointment must within 24 hours after the initial appointment is made and prior to the appointment taking place advise the other parent and authorise the specialist to discuss any matters with the other parent;
(c)The parent who obtains the referral must do all acts and things necessary to ensure that the other parent is provided with copies of any test results, letters and referrals that he or she has received from and by any specialist within 24 hours of receipt of that material; and
(d)Each parent is permitted to attend upon the child’s appointments, such attendance or attendances to be at the sole discretion of the specialist concerned and that attendance may be either in person or by telephone.
Within twelve (12) months of the date of these Orders the mother is to do all such acts and things as may be necessary to ensure that the child X receives child vaccinations or inoculations for the following:
(a)Diphtheria;
(b)Tetanus;
(c)Pertussis known as Whooping Cough;
(d)Measles mumps rubella;
(e)Varicella known as chickenpox;
(f)Rotavirus; and
(g)Pneumococcal conjugate
in accordance with the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.
Prior to any overseas travel undertaken by the child X the Mother is to ensure that the child is fully immunised against poliomyelitis.
For the purposes of the vaccinations and inoculations referred to in the preceding Orders the mother:
(a)Must ensure that the vaccinations or inoculations are administered to the child X by a medical practitioner who is not a member of or associated with the Father’s (business omitted); AND
(b)No later than 48 hours after each vaccination or inoculation inform the Father in writing of:
(i)The date of administration of the vaccination or inoculation;
(ii)The name of the medical practitioner who administered the vaccination or inoculation;
(iii)The particular vaccination or inoculation administered; and
(iv)Provide a copy of a medical certificate or letter from the medical practitioner certifying the administration of the vaccination or inoculation.
Once the child’s level of vaccinations or inoculations has been brought up to date as provided by these Orders, the mother is to do all acts and things necessary to ensure that the child X continues to receive all such vaccinations and inoculations as are recommended within the National Immunisation Program or its successor for a child of her age INCLUDING the Human Papillomavirus vaccine (Gardasil) or like treatment for the prevention of cervical cancer.
Both the Mother and Father are to keep the other informed of their residential addresses, landline telephone number (if any) and other contact details including mobile telephone number and an email contact address.
Otherwise than as provided by these Orders for the purposes of the parents communicating with each other about the child X they are to communicate:
(a)By email in the case of non-urgent matters; and
(b)By telephone or text message if it is an urgent matter or a matter requiring an immediate response.
The Mother and the Father are each restrained from physically punishing or chastising the child X.
The Mother and Father are each restrained from criticising or abusing or speaking badly of the other parent or any member of the other’s family in the presence or hearing of the child or from permitting any third party to do so.
Order 11 made on 23 November 2010 directed to the Australian Federal Police placing the name of the child X born (omitted) 2009 on the Airport Watch List otherwise known as the PACE Alert System is discharged.
Each of the mother MS LANDIS born (omitted) 1983 and the Father MR LANDIS born (omitted) 1958 and their servants and agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X (a female) born (omitted) 2009 from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the child X (a female) born (omitted) 2009 on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watch List for a period of two (2) years from the date of this Order or until further Order of the Court.
Upon the expiration of the period of two (2) years referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction the Australian Federal Police are to cause the removal of the name of the child X from the Family Law Watch List.
After the expiration of the period of two (2) years referred to in the immediately preceding Orders each of the mother and the father is entitled to remove the child X from Australia to travel internationally during any period when the child is with them PROVIDED THAT the parent wishing to travel with the child gives the other parent at least four (4) weeks’ prior written notice of the intended travel out of Australia specifying:
(a)The dates and times of departure and return;
(b)The means of transport and all details including details of the airline or shipping company with whom the child will be travelling;
(c)The intended destination;
(d)Contact numbers and addresses for the child for the duration of the period when the child will be out of Australia; and
(e)Flight numbers and times if the proposed travel is by air.
If there is any parenting matter relating to the child X that the Mother and Father are unable to resolve, they must both make all necessary arrangements to attend upon a Family Relationships Centre to seek to resolve such issue prior to commencing any new proceedings under the Family Law Act 1975 in any court.
The Mother and Father are to do all things necessary to enrol and subsequently attend (omitted) Child and Family Counselling Service or such other service as recommended by the Independent Children’s Lawyer in consultation with the Family Consultant for assessment including ensuring the attendance of the child X if and when required.
The Mother and the child X are to attend and participate in counselling and/or group work programs as recommended by the (omitted) Child and Family Counselling Service with a view to repair and improve the attachment relationship between them.
For the purpose of counselling as referred to in the immediately preceding Orders the Mother and Father are permitted to provide to the (omitted) Child and Family Counselling Service copies of the following documents:
(a)these Orders;
(b)the Reasons for Judgment of the Court;
(c)the Family Report released to the parties by the Court on 14 September 2011; and
(d)the Family Report released to the parties by the Court on 14 November 2012.

IT IS NOTED that publication of this judgment under the pseudonym Landis & Landis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4810 of 2010

MS LANDIS

Applicant

And

MR LANDIS

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for parenting orders by the Mother of a little girl called X, who is four years old. The child has been in the primary care of her father since the parties separated in July 2010.
The parties have engaged in litigation over the child for over three years. The final hearing, originally scheduled to take three days, ended up taking twice that amount of time. The proceedings ran from 6^th to 8^th March, and then from 30^th July to 1^st August 2013.

Orders Sought

The Mother, in a Minute of Orders handed up by her counsel on 30^th July 2013, and amended by a further Minute handed up the following day, seeks orders that:
a)The parties should have equal shared parental responsibility for the child;
b)The child should live with the mother;
c)The child would spend time with the Father in a graduated program, increasing at three-monthly intervals, including school holiday times;
d)The child would spend from 9:00am to 6:00pm each Mother’s Day with the Mother and the same amount of time each Father’s Day with the Father;
e)The parties would share the child’s birthday;
f)The parties would have the child for alternating periods over the Christmas and Easter periods;
g)The parties would be restrained from having the child attend family day care with Mr T and would enrol the child at (omitted) Day Care;
h)The Mother would choose the schools that the child would attend;
i)The Mother would arrange for a General Practitioner to immunize the child;
j)The parties would obtain an Australian passport for the child;
k)The parties would be permitted to travel overseas with the child and remove the child’s name from the Airport Watch List; and
l)Other ancillary orders.
In her further Minute the Mother sought that changeover between the parties should be at the Salvation Army offices in (omitted) and enrol for counselling as recommended in the Family Report.
The Father sought Orders that:
a)the child should live with him;
b)he should have sole parental responsibility for her;
c)changeovers should be at the (omitted) Shopping Centre;
d)the child should spend time with the Mother in a steadily increasing regime;
e)the Father should be permitted to take the child for holidays within Australia for up to a week;
f)the Mother should be restrained from removing the child from Australia; and
g)other ancillary orders.
The Independent Children’s Lawyer, in a Minute of Proposed Orders handed up in Court on 1 August 2013, proposed that the Court should make orders that:
a)The parties should have equal shared parental responsibility for the child;
b)That unless the parties consented:
i)The father would nominate which day care centre the children should attend;
ii)The child should a preschool called (omitted) Pre-School at (omitted) or, in the alternative, (omitted) Day Care Centre; and
iii)Commencing in 2015, the child would attend (omitted) Public School.
c)The parties should consult about a High School for the child;
d)The Mother should arrange a series of vaccinations and inoculations for the child;
e)The child’s name should remain on the Family Law Watch List until 13 December 2015;
f)From after 13 December 2015 both parents would be entitled to remove the child from Australia to travel overseas upon giving at least 4 weeks’ prior written notice;
g)The child should live with the Father and spend time with the Mother; and
h)Other ancillary orders.

Background

The parties commenced their relationship in October 2007 and were married in (country omitted) on (omitted) 2008.
The Father is an Australian citizen who was born on (omitted) 1958. He is a (occupation omitted) by profession. He has a daughter by a previous relationship. The Mother was born in (country omitted) on (omitted) 1983.
There is one child of the parties’ marriage, a girl called X who was born on (omitted) 2009.
There were disagreements between the parties during the relationship.
The Mother was admitted to hospital on 22^nd December 2009 for psychiatric evaluation.
The parties commenced living separately under the one roof on 17^th March 2010. Their disagreements continued.
On 26^th June 2010 the mother returned to (country omitted), leaving the child in the care of the Father. She returned to Australia on 17^th July 2010.
On 30^th July 2010 the Mother commenced proceedings by filing an Application for parenting orders. She sought an order that the Father return the child X to her care within 7 days and that the child should then live with her. If the Father did not return the child to her within 7 days, she sought that a recovery order should issue under the provisions of s.67U of the Family Law Act 1975 (Cth).
The Application was returnable on 13^th September 2010. On that date, the parties were directed to attend a Child Dispute Conference under the provisions of s.11F of the Family Law Act. The conference was reportable under s.11C of the Act. The Family Consultant noted in her Memorandum to the Court that since June 2010 the child had been in the primary care of the Father and had spent “minimal” time with the Mother since the Mother had returned to Australia.
The Family Consultant noted that:
At this critical developmental stage, constancy and consistency of attachment figures is important. Irrespective of the reasons, at least in recent months, such constancy and consistency appears to have been provided by the father and, possibly, also the family day carer.[1]
[1] Family Consultant Memorandum to Court 14.9.2010 page 2
The Family Consultant recommended that:
a)a family report should be prepared;
b)possibly a Child and Family Assessment should be undertaken; and
c)an independent children’s lawyer should be appointed.
On 16^th September 2010, Mead FM[2] ordered that:
a)The child’s interests should be independently represented by a lawyer under s.68L of the Family Law Act;
b)The child should continue to live with the Father;
c)The child should spend time with the Mother, initially supervised by a Salvation Army worker and then unsupervised; and
d)The Application was to be adjourned to 28^th October 2010 for interim hearing.
[2] As her Honour then was
The hearing was not reached on 28^th October and adjourned to 3^rd November 2010. The decision was handed down on 23^rd November 2010 (Landis & Landis[3]).
[3] [2010] FMCAfam 1283
On 23^rd November 2010 Orders were made until further providing that:
a)the child would live with the Father;
b)the child would spend time with the Mother;
c)changeover would take place in the foyer of the (omitted) Police Station;
d)the parties were restrained from removing the child from Australia and the child’s name was to be placed on the Airport Watch List maintained by the Australian Federal Police; and
e)the Application was listed for final hearing on 18^th, 19^th and 20^th May 2011.
The Application did not proceed to a final hearing on 18^th May 2011, due to the unavailability of the Family Report. There was an interim hearing on that day which led to an interim decision on 20^th May 2011 (Landis & Landis[4]). Interim Orders were made providing that:
a)the Father was to have sole parental responsibility for the child;
b)the Mother was to spend time with the child from Monday morning until Tuesday evening and during the day on Friday each week;
c)changeover would be at the (omitted) Police Station; and
d)a Family Report was to be ordered under s.62G of the Family Law Act.
[4] [2011] FMCAfam 490
The parties were divorced on the Application of the Father on 2^nd June 2011.
The Family Report by Ms A, a Family Consultant, was released to the parties on 14^th September 2011. In the Report, the Family Consultant made the following recommendations:
47. It is recommended that parental responsibility be shared.
48. It is recommended that X live with her father.
49.It is recommended that X spend time with her mother. Any increase in the frequency and amount of time would best be determined by a reflective process of both parents based on X’s prevailing presentation and adjustment. Based on the current interviews and observations X does not appear to be overly distressed with the current arrangements. If the Court has other evidence to suggest that X is showing signs of significant distress then the amount of time that X spends with her mother, particularly overnights, should be reduced.[5]
[5] Family Report 7.9.2011 page 21, paragraphs [47]-[49]
On 22^nd November 2011 the Application was listed for final hearing from 18^th to 20^th December 2012. Due to the length of time before the hearing could take place, an updated Family Report was ordered.
The updated Family report was released to the parties on 14^th November 2012. In that Report, the Family Consultant made these recommendations:
34.It is recommended that parental responsibility be held solely by whomever X is primarily living with.
35. It is recommended that X live with her father.
36.It is recommended that X continue to spend time with her mother as she is currently – Monday morning to Tuesday afternoon and Friday morning to Friday afternoon each week.
37.It is recommended that the family attend upon (omitted) Child and Family Counselling Service (soon to be known as (omitted) Child and Adolescent Mental Health Service), phone: (omitted) for assessment with the view to Ms Landis and X participating in counselling and/or group work programs as recommended by the service to repair and improve their attachment relationship.[6]
[6] Family report 14.11.2012 pages 14 & 15, paragraphs [34]-[37]
Regrettably, the hearing scheduled to commence on 18^th December was not able to proceed due to the unavailability of an interpreter in the (country omitted) language, required by the Mother.
On 20^th December 2012 the parties made cross applications to vary the interim parenting orders then in force. The parties consented to an Order being made discharging an earlier order restraining the parties from removing the child from the Sydney Metropolitan area except between 24^th and 27^th December 2010. However, the other applications by the parties to vary the existing orders were dismissed.[7]
[7] Landis & Landis [2012] FMCAfam 1452
The matter was adjourned for final hearing on 6^th March 2013 and allocated three days. Regrettably, the parties’ lawyers’ calculations of the time required for hearing the matter proved to be inaccurate, as the cross-examination of the Father by Counsel for the Mother was unfinished at the close of the third day. The Court allocated a further three days, 30^th July to 1^st August 2013.
However, each party brought applications for interim orders to be made pending the completion of final hearing. The application and cross application were dismissed. However, noting that Mother’s Day would fall before the matter came back to Court, I made orders that the mother should spend time with the child:
a)On Sunday 10^th March 2013; and
b)On Mother’s Day 12^th May 2013.[8]
[8] Landis & Landis [2013] FMCAfam 213
The matter proceeded to conclusion on 1^st August 2013.

Evidence

The Mother relied on her affidavits of:
a)30^th July 2010;
b)25^th August 2010;
c)9^th September 2010;
d)15^th September 2010;
e)26^th October 2010;
f)13^th May 2011; and
g)12^th December 2012.
The Mother also relied on the affidavits of the following people:
a)Ms L of 12^th May 2011;
b)Ms M of 12^th May 2011;
c)Ms D of 13^th May 2011; and
d)Ms D of 13^th May 2011.
The Mother gave oral evidence, with the assistance of an interpreter in the (country omitted) language. She was cross-examined by Mr Sperling of counsel, who appeared for the Independent Children’s Lawyer, and by the Father, who appeared without legal representation.
The Mother’s other witnesses were not required for cross-examination. The affidavits of Ms L, a Salvation Army officer, Ms M and Ms D are all relatively brief and go to the witnesses’ impressions of the Mother as a person who had a deep love for her daughter.
The affidavit of Ms D was more extensive. She described supervising the Mother on a contact visit with the child in October 2010. She was somewhat critical of Ms H at the Family Day Care Centre, whom she considered to be less than impartial and almost hostile towards the Mother. Later in her affidavit, Ms D described various incidents in early 2011, including several incidents in March when she accompanied the mother to the (omitted) Police Station for the purpose of changeover between the parents. Ms D described the Father’s attitude as “aggressive”.
The Father relied on his affidavits of:
a)26^th August 2010;
b)3^rd September 2010;
c)21^st October 2010;
d)29^th April 2011;
e)12^th May 2011;
f)29^th November 2012; and
g)20^th February 2013.
He also relied on the affidavits of Ms S of:
a)28^th April 2011; and
b)20^th February 2013.
Ms S was not required for cross-examination. Her affidavits were brief. She deposed that she is the (occupation omitted) at the Father’s (business omitted). In her affidavits Ms S set out the Father’s working hours during the week, noting that he does not work on weekends.
The Father was cross-examined by counsel for the Mother and counsel for the Independent Children’s Lawyer.
The proceedings did not conclude in the three days allocated and needed to be adjourned for a further three days’ hearing time, on 30^th and 31^st July and 1^st August. The cross-examination of the Father by counsel for the Mother, which had commenced on 8^th March, was incomplete and continued on 30^th July. The Father’s cross-examination by Mr Sperling, counsel for the Independent Children’s Lawyer, was not completed until 31^st July.
Over the intervening period, the parties took the opportunity to file further affidavits:
a)an affidavit by the Mother of 22^nd July 2013;
b)an affidavit by the Father of 24^th June 2013; and
c)an affidavit by Mr T of 29^th June 2013, filed on behalf of the Father.
Ms H was required for cross-examination by counsel for the Mother. Her evidence was that she operates a family day care centre where the child X attends on Wednesdays and Thursdays. She described the father as “a great father” and expressed concern about the Mother’s ability to care for the child. She stated that she was “very worried about X’s welfare and safety when she is in her mother’s care”.[9] She made a report to the Department of Family and Community Services but no action was taken.
[9] Affidavit of Mr T 29.6.2013 at [9]

Issues between the parents

It was the Mother’s evidence that she wanted an order that the child should live with her and she should have sole parental responsibility for her. She wishes to have the child brought up in the (religion omitted) faith, which she herself follows. She claims that the Father has no interest in her (country omitted) culture and does not with the child to have any knowledge of (country omitted) culture.
The Mother claims she cannot communicate with the Father at all. She is working as a (occupation omitted) at a (employer omitted) four days a week.
The Mother expressed concern that the Father had not had the child immunised against various childhood diseases. She wishes to have the child immunised and seeks orders to that effect.
She denied that she had ever agreed to hand the care of the child over to the Father. She claimed to have been coerced by the Father in signing an agreement.
The Mother accused the Father of being coercive and manipulative towards her.
I found the Mother’s evidence in cross-examination to be less than satisfactory. I have taken account of the fact that she was giving evidence through an interpreter, as English is not her first language, and that it would have been difficult for her in being cross-examined directly by her former husband. It would have been far preferable for the Father to have obtained legal representation rather than undertake the proceedings himself.
Nevertheless, after making those allowances I still found that the Mother’s answers to questions to be obstructive on occasions and I doubted her credibility on a variety of occasions.
It is the Father’s evidence that the Mother is, and has been, mentally unstable which has led to violence towards him. He claims that the mother lacks the ability to care adequately for the child and at times hits her. He has had a fear that she would attempt to take the child to (country omitted) and not return her to Australia.

The Family Reports

The first Family Report was released to the parties on 14^th September 2011. The second, updated report was released on 14^th November 2012. Each of the Reports was prepared by Ms A, a Family consultant at the Sydney Registry of the Court.
In her first Report completed on 7^th September 2011, Ms A identified the issues in dispute between the parties as:
a)parental responsibility;
b)with whom X should live; and
c)how X should spend time with the non-residential parent.[10]
[10] Family Report 7.9.2011 page 5 at [6]
In the second Report, completed on 14^th November 2012, Ms A added a further issue – overseas travel.
In the first Report, Ms A identified a number of issues during the assessment:
a)The parents’ allegations of violence against each other;
b)The Mother’s alleged mental health issues;
c)The child’s young age;
d)The disruption to the child’s attachment relationship with her mother;
e)The child’s level of adjustment to the current arrangements; and
f)The lack of communication and hostility between the parents.[11]
[11] Ibid pages 5 and 6 at [7]
In the second Report, Ms A identified a further issue – the parents’ allegations that the other parent is physically abusing the child.[12]
[12] Family Report 14.11.2012 page 4 at [7]
In the later Report, Ms A formed the view that the child has a secure attachment relationship with her father, based on her observations of the child with her father and the Father’s descriptions of the child at home. Ms A considered that the Father had the capacity to meet the child’s needs.
However, Ms A expressed a less positive view about the child’s attachment to her mother:
…it appears that X experiences some insecurity in her attachment to her mother involving both rejection and neediness. The separations from her mother that X has endured during developmentally significant periods are likely to have contributed to her insecurity. The apparent stress and tension at changeovers are also likely to contribute…[13]
[13] Family Report 14.11.2012 page 12 at [28]
In each Report Ms A recommended that the child should continue to live with her father and spend time with her mother. She recommended that the child should continue to spend time with her mother but, in each case, she was cautious about recommending any significant increase in the time, at least in the near future.
The Family Consultant had originally recommended shared parental responsibility but, in the later Report, she recommended that:
…parental responsibility be held solely by whomever X is primarily living with.[14]
[14] Ibid page 14 at [34]
The reason for the Family Consultant’s change of approach about family responsibility are set out in some detail in paragraph [32] of the second Family Report:
There are several indications that Mr Landis and Ms Landis equally sharing parental responsibility may not be viable. It is apparent from these interviews that the parents have different opinions regarding which school X should attend in 2015 and, if parental responsibility were to be shared, this issue may lead to further litigation. The lack of communication between the parents, their ongoing allegations of violence and abuse and the apparent lack of any improvement over the past year in their co-parenting relationship all suggest that X’s best interests may be served by one parent having sole parental responsibility so as to avoid exposure to conflict and uncertainty.[15]
[15] Family Report 14.11.2012 page 14 at [32]

In cross-examination by Mr Sperling, Ms A said that she would be hesitant to make a major change in the amount of time the child spent with the Mother at the same time she is starting school, but she would also be hesitant to reduce the amount of time. She said that, for the child, 11 days without her mother is too long to maintain the relationship. She needs to have her mother involved in her school life. She suggested that in 2014 there should be an increase in the amount of nights the child spends with her mother; there should be a two night block and then a three night block.
Ms A was cautious about acceding to the parties’ wishes to take the child out of Australia for a holiday because of the child’s young age and vulnerability to disruptions to her attachment relationships. She suggested that overseas travel with either parent may not be in the child’s best interests “until she is at least of school age”.[16]
[16] Ibid at [33]
Ms A adhered to those views in cross-examination.

The Mother’s Case in Reply

The Mother’s counsel sought to bring a case in reply to the material in the Father’s affidavit of 24^th June 2013, expressing the view that there would be prejudice and disadvantage to the Mother if this evidence were not to be responded to.
In her affidavit of 22^nd July 2013, the Mother deposed that:
a)the Father continued to behave belligerently towards her at changeovers;
b)she fears that the Father is placing the child at risk by not having her vaccinated;
c)she wished to transfer the child’s day care to a Long Day Care Centre operated by (omitted) Council;
d)she would like the child to attend (omitted) Public School in 2015;
e)she takes the child to learn (country omitted) culture at a (country omitted) and would like her to attend a (country omitted) language class at (omitted) Public School every Sunday;
f)she denies that she has hit the child or has otherwise mistreated her.
Counsel for the Independent Children’s Lawyer declined to cross-examine the Mother, but the Father cross-examined her on a variety of issues. He asked her whether she had consulted her own doctor about the pros and cons of vaccination for the child. He also put to her that he had taken her to various (country omitted) festivals in Sydney during their marriage, to which she partly agreed.

Submissions

Counsel for the Independent Children’s Lawyer submitted that the child should continue to live with her father and spend time with her mother. He submitted a Minute containing some 44 proposed orders, which included proposals for the child to be immunised.
Mr Sperling referred the Court to the decision of Bennett J in the matter of Kingsford & Kingsford[17] where her Honour had found it was in the best interests of the child concerned for her to receive traditional immunisation rather than a program of homeopathic immunisation.
[17] [2012] FamCA 889
The Father submitted that the child should continue to live with him in his household, where he lives with his daughter from a previous marriage, the child’s half-sister. He also sought that he should have sole parental responsibility for the child. He submitted that the Mother’s time with the child should not be increased at this time, noting that the Family Consultant did not recommend an increase in the Mother’s time.
The Father wishes to take the child out of Australia to see members of his extended family who live in the (country omitted). His father, who lives there, is 87 years of age.
However, he has serious concerns about any order that would permit the mother to take the child to (country omitted). He fears that she would not return the child to Australia. On the other hand, he has no reason not to return to live in Australia.
The Father was critical of the way that the Mother’s legal advisers conducted her case, saying that the proceedings were “somewhat lengthened” by her lawyers in that there were several hearing days wasted.
His view was that the child’s interests would best be served by providing her with stability in his household.
Counsel for the Mother, Ms Graves, submitted that the Mother had been living in a relationship characterised by domestic violence; when the parties separated the mother was escaping serious domestic violence.
It was submitted that, despite the Father’s claims, there has been no finding or diagnosis of a mental illness of the Mother.
The Court should be mindful of the risks associated with the child’s continued attendance at the Family Day Care Centre run by Mr H, which the Family Consultant considered would be damaging to the child.
It was submitted that it is in the child’s best interests to be vaccinated.

Parenting Applications

The objects of Part VII of the Family Law Act are contained in s.60B(1) and the principles underlying those objects are set out in s.60B(2).
Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by considering the matters set out in subsections (2) (the primary considerations) and (3) (the secondary considerations).
Section 61DA of the Act requires the Court to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.
Section 65DAA provides that the Court must consider whether, in a case where equal shared parental responsibility has been ordered, it would be both in the child’s best interests and reasonably practicable for the child concerned to spend equal time with each parent or, in the alternative, to spend substantial and significant time with each parent.
All of those matters have been considered, where they are relevant.

Conclusions

The best interests of the child remain the paramount consideration.
The question of immunisation is an issue between the parents and the Court must determine whether or not it is in the child’s best interests to undergo the program of vaccination and immunisation that is sought by the mother and the Independent Children’s Lawyer.
The issue was recently considered by Bennett J in Kingsford[18] where her Honour found that it was in the child’s best interests to undergo a program of traditional vaccination rather than a course of homeopathic vaccination. In that case, her Honour had the benefit of hearing expert evidence in support of traditional vaccination and homeopathic vaccination. That has not been the case here.
[18] supra
The father, who is a (occupation omitted) in (business omitted), takes the view that there are some risks involved in the conventional immunisation system, although he is not opposed to all forms of immunisation. He deposed in his affidavit of 24^th June 2013:
The applicant mother has claimed that I am a ‘conscientious objector’ to vaccination. This is not true. Vaccination is not compulsory in Australia, and parents have the right to make an informed choice about whether to vaccinate their child. Having researched the literature, I am concerned that adequate vaccine studies are lacking; the complete vaccine schedule has not been studied for safety nor have all the possible combinations of vaccines that might be administered on a single day. Research evidence shows increased concerns about current vaccination practices, particularly in regards to the cumulative effects of aluminium (an adjuvant in vaccines), a known neurotoxin, linked with autoimmune diseases, reduced neurodevelopmental attainment, speech disorders, cognitive impairment, autism, dementia and other neurological disorders. As a consequence, my informed decision has been to delay X’s vaccinations until at least 3 years of age, and then consider selective vaccination (as with my other daughter, A).[19]
[19] Affidavit of Mr Landis 24.6.2013 at [41]
The child X is now four years of age. She was born on (omitted) 2009.
The Mother takes the view that the traditional immunisation arrangements are desirable, presumably because they are recommended by government health authorities.
There was evidence before the Family Court in Kingsford from a Dr identified only as “J”, a principal specialist, a consultant in the Emergency Department and a senior paediatrician in the Child Behaviour Clinic at the (omitted) Hospital in (omitted).[20] Bennett J accepted his credentials as an expert and accepted his evidence.
[20] Kingsford at [58]
Her Honour found that the likelihood of the child “being exposed to infectious diseases for which the traditional immunisations are available is not zero. This is particularly so if, in the future, she travels overseas to countries where some of these diseases are more prevalent in the community”.[21]
[21] Ibid at [118]
Her Honour went to find that both forms of immunisation carry risks, but the risks are relatively low and said at [120]:
In these circumstances, I find that not immunising (the child) by way of conventional immunisation would expose her to a risk of harm through infection with a preventable disease which risk is unacceptable in the context of traditional immunisation practices. The risk of harm as a result of traditional vaccination is not so high as to outweigh the risk of infection.
In the circumstances, I consider that I should follow her Honour’s decision. I am satisfied that it is in this child’s best interests to undergo the normal program of immunisation. I consider that the mother should be entrusted with this task.
I am not satisfied that this is a case where the parties should have equal shared parental responsibility for the child. The parent with whom the child primarily resides should have sole parental responsibility, as the parents have no ability to communicate, other than acrimoniously.
Section 60CC provides at subsection (2) that the primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
I am satisfied that the child has a meaningful relationship with her father and that she does not need protection from physical or psychological harm in his care.
There was some concern expressed by the Family Consultant about the fact that the child experiences some insecurity in her attachment to her mother, to which the child’s various separations from her mother have contributed.
The Father makes allegations about abuse of the child in the hands of the Mother. I am not satisfied that those claims have been substantiated.
The child, at the age of four, is too young for her views to be taken or given any weight.
The child does have a relationship with each parent, although the relationship with her father is stronger. She also has a half-sister, A, who lives with her and her father. The Family Consultant considered that the child would have a meaningful relationship with her that is facilitated with their both living with their father.[22]
[22] Family Report 14.11.2012 page 12 at [27]
There are two other matters that appear to be relevant. First, this child has a (country omitted) heritage on her mother’s side. It would appear to be in her best interests that this (country omitted) heritage should be recognised and encouraged. This can be done by involving her in (country omitted) cultural activities and encouraging her to learn the (country omitted) language. It would appear that the Mother would be the most appropriate person to undertake this role.
I am not persuaded at this stage that the Mother should be permitted to take the child out of Australia to visit extended family members in (country omitted). Not only is there a fear that the Mother may not return the child to Australia, but the Family consultant has advised against overseas travel until the child is at least of school age, as it would involve a relatively lengthy separation from one or other parent, which would be disruptive to the child’s attachment relationships.
This means, of course, that the Father should not take the child out of Australia to visit family members in the (country omitted) at this stage. There is no evidence that the Father would be unlikely not to return to Australia with the child. His ties with Australia are too strong.
I propose to vacate the earlier Family Law Watch List Order and put in place an order placing the child’s name on the Watch List for a period of two years. She will then be six years of age and should be in a position to travel internationally with either of her parents.
The Independent Children’s Lawyer has recommended that the child should live with the Father, and this view is supported by clear and consistent recommendations from the Family Consultant.
I am satisfied that it is in this child’s best interests to reside with her father and spend gradually increasing time with her mother. Due to the inability of the parents to communicate in any meaningful way about the child, I am satisfied that the Father should have sole parental responsibility.
It is high time that changeover between the parents stops taking place at a Police Station. Such arrangements should seldom, if ever, be seen as permanent. It can hardly be in the child’s long-term best interests for her to go from the care of one parent to that of the other at a Police Station until she is well into her teens.
I will order accordingly.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 3 April 2014

[2013] FCCA 2413

17 December 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Consent