LASSETER & LASSETER

FAMILY COURT OF AUSTRALIA

LASSETER & LASSETER

[2011] FamCA 347

FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of the child – Whether the child spending equal time with each of the parents would be in the best interests of the child – The child has a meaningful relationship with both parents – Court orders that parents have equal shared responsibility for the child

Family Law Act 1975 (Cth) s 65DAA, s 65DAA(5), s 60CC, s 60CC(3)

Cowley & Mendoza [2010] FAMCA 597
Goode v Goode [2006] FLC 93 286
MRR v GR [2010] 263 ALR 368

APPLICANT:

Ms Lasseter

RESPONDENT:

Mr Lasseter

FILE NUMBER:

BRC

1331

2010

DATE DELIVERED:

4 April 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

1 and 4 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ehlers of Counsel

SOLICITOR FOR THE APPLICANT:

Colville Johnston Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

By consent

All previous orders be discharged.

Parental Responsibility

That the mother and father have equal shared parental responsibility for the child of the relationship, K, born … October 2006 ("the child") in relation to the major long‑term decisions, including, but not limited to:
(a)       The education of the child ‑ both current and future;
(b)       The religion of the child;
(c)       The health of the child;
(d)Any change to the child's living arrangements, including his residence,   that may make it significantly more difficult for the child to spend time with any parent;
(e)Any future extracurricular activities should those activities occur during times that the child spend with the other parent.
That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)       They shall inform the other parent about the decision to be made;
(b)       They shall consult with each other on terms that they agree;
(c)       They shall make a genuine effort to come to a joint decision.
That each parent has sole parental responsibility for making day‑to‑day decisions, not major long‑term decisions, concerning the child when the child is in the care of that parent.

Parenting Arrangements

That the child K, born … October 2006, live with each parent as may be agreed in writing between them, but failing agreement then as follows by consent:
(a)With the father from the day hereof until 6 pm on Tuesday, 12 April 2011;
(b)With the mother from 6 pm on Tuesday, 12 April 2011 until 6 pm on Wednesday, 27 April 2011;
(c)With the father from 6 pm on Wednesday, 27 April 2011 until the beginning of the child's day care on Thursday, 5 May 2011;
(d)With the mother from after day care on Thursday, 5 May 2011 until the beginning of the child's day care on Monday, 9 May 2011;
(e)With the father from after day care on Monday, 9 May 2011 until 6 pm on Tuesday, 17 May 2011.

BY FURTHER ORDER

Thereafter, within every four‑week cycle commencing Tuesday, 17 May 2011, as follows:
(a)With the mother from 6 pm on Tuesday until 6 pm Wednesday two weeks later, and for the same amount of time and with the same commencement and conclusion times in the first two weeks of every such four‑week cycle thereafter.
(b)With the father from 6 pm Wednesday, 1 June 2011 until the beginning of the child's day care or school on Monday, 6 June 2011, and for the same amount of time and with the same commencement and conclusion times in the third week of every such four‑week cycle thereafter.
(c)With the mother from after the child's day care or school on Monday, 6 June 2011 until the beginning of the child's day care or school on Wednesday, 8 June 2011, and for the same amount of time and with the same commencement and conclusion times in the third week of every such four‑week cycle thereafter.
(d)With the father from after the child's day care or school on Wednesday, 8 June 2011 until 6 pm on Tuesday, 14 June 2011 and for the same amount of time and with the same commencement and conclusion times in the third and fourth week of every such four‑week cycle thereafter.
If and when the father's four‑weekly two weeks on/two weeks off work roster rolls over to different weeks, the child's living arrangements shall reflect exactly the same days with the mother and the father and commencement and conclusion days and times as within the four‑week cycle set out in 6 herein with the mother and the father to discuss and agree upon the living arrangements for the child in any period of transition between those four‑weekly rosters.
Where it is practicable, particularly having regard to the father's working circumstances, notwithstanding the provisions of the last paragraph hereof, the child otherwise shall spend time with and communicate with each of the mother and father as follows:
(a)With the mother on the mother's birthday and the child's birthday each year if the child is otherwise living with the father on those days and for at least five hours on each of those days if such day is a non‑school day and for at least three hours on each of those days if such day is a school day.
(b)With the father on the father's birthday and the child's birthday each year, if the child is otherwise living with the mother on those days, then for at least five hours on each of those days if such day is a non‑school day and for at least three hours on each of those days if such day is a school day.
(c)With the mother from 5 pm the day before Mother's Day each year until 5 pm on Mother's Day if the child is otherwise living with the father on those days.
(d)With the father from 5 pm the day before Father's Day each year until 5 pm on Father's Day if the child is otherwise living with the mother on those days.
Each parent shall keep the other parent informed of their current residential address, home landline telephone number and mobile telephone numbers from time to time and each shall advise the other in writing of any change in any of those within 48 hours of any such change.
The father shall provide to the mother before 14 January each year a copy of a yearly calendar for that calendar year which has clearly marked on it the days on which the child will be living with him and the days on which the child will be living with the mother pursuant to these orders and he shall advise the mother in writing, providing her with a copy of an updated yearly calendar, of any changes to those arrangements that are required to give effect to the rolling over of his two weeks on/two weeks off work rostering arrangements as soon as practicable after he becomes aware of any such changes necessitated by changes made by his employer.
By consent, irrespective of the provisions of the paragraphs above, the child K shall spend time with and communicate with each of the parties as follows:
(a)The parent not spending time with the child shall be at liberty to have telephone communication with the child each Wednesday and Sunday night between 7 and 7.30 pm, and at all reasonable times at the request of the child. The parties will ensure that the child has privacy during such telephone communication.
For the purposes of all times referred to in the paragraphs above, changeover will take place at school or day care or at the Brisbane Suburb 1 McDonald's if a non‑school day or at the Brisbane Suburb 1 McDonald's if not otherwise specified to be at the commencement or conclusion of day care or school.

Exchange of Information

That each parent will keep the other informed of any treating medical practitioner or a health professional that treats the child.
That each party will provide to the other party at the commencement and conclusion of their time with the child any current medication for the child with instructions for use.
That each party will notify the other party (by telephone, and if not able to contact by telephone followed by email):
(a)of all matters concerning the health of the child as soon as practicable;
(b)any illness that the child suffers for a period greater than 24 hours, immediately in the case of serious illness, hospitalisation and/or accident;
(c)any matters requiring attendance upon a doctor, dentist or other treating professional. This order is a sufficient irrevocable authority for the child's educational and health service providers to provide to the parents any information, document or thing in relation to the child that a parent is entitled to receive, including but not limited to reports, letters, photographs and the like and to discuss all matters pertaining to the child's education, health and well‑being and to ensure that all day care and school records include both parents as persons to be notified in case of emergency. The costs, if any, of such information shall be borne by the parent requesting same.

Medical Appointments, School and Extracurricular Activities

That each parent shall take the child to any specialist or other medical appointments, school activities or their extracurricular activities that they currently attend or any future extracurricular activities both parents agree the child participate in, in writing, while the child is in the care of that parent.
That each parent shall be at liberty to attend any extracurricular or school activity involving the child whenever a parent is entitled to attend such activities, including parent/teacher interviews or other special occasions at school, including K's birthday.

Non-denigration and Privacy

That without admission, neither party shall denigrate, assault, harass or intimidate the other party to or in the presence of the child and shall do all such things so as to ensure any third party associated with them does not denigrate, assault, harass or intimidate the other party, and in the event that such behaviour occurs, the party shall take all reasonable steps to remove the child from the presence of that third party.
That during the time the child is with either parent, that parent shall respect the privacy of the other parent and not question the child about the personal life of the other parent and speak of the other parent respectfully.

Schooling

The child will attend S Primary School at Brisbane Suburb 1 commencing prep in 2012 unless otherwise agreed upon between the parties.
That pending the child attending at prep school, the parties will ensure that the child attends day care on Monday and Tuesday each week as a minimum and that he arrives at the day care centre by 9 am.

Overseas Travel

Should either party wish to travel overseas with the child, they will:
(a) Provide the other party with two months notice of their intentions;
(b)Twenty‑eight days in advance of departure provide the other party with a full itinerary of their intended travel plans, including the details of where they will be predominantly staying and contact telephone numbers;
(c)Provide the other party with a copy of return tickets for the child;
(d)Upon receipt of same, the other parent shall forthwith release the passport to the travelling parent;
(e)The travelling parent shall have their mobile telephone on international roaming;
(f)The travelling parent shall arrange for the child to telephone the non‑travelling parent at least once weekly at times appropriate to each time zone.

Personal Possessions

By consent, that the father will deliver up to a computer expert/repairer nominated by the mother within 14 days the father's personal computer hard drive to enable the mother to recover photographs concerning the child, K, born …October 2006, with the mother to provide to the father copies of any such photographs recovered and the mother to return such computer to the father with the costs and expenses of recovering the photographs and copying of same to be equally shared.
That the father will, in good faith, attempt to return to the mother the mother's scrapbook referred to in the final orders sought in this matter in the mother's application, should the father be aware of or become aware of the place the said scrapbook is located.
All other applications dismissed.

Post Separation Parenting Course

That each of the mother and the father shall, within 12 months of the date hereof, attend and complete a post‑separation parenting program conducted by or approved by a Commonwealth Government approved Family Relationship Centre and each party shall provide written proof of such completion to the other party as soon as such program has been completed.

Costs

That the father pay the mother the sum of five thousand dollars ($5,000) by way of contribution towards her costs and outlays incurred in prosecuting this application from the time of the conciliation conference to the conclusion of the trial.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1331 of 2010

Ms Lasseter

Applicant

And

Mr Lasseter

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The parents of K, born in October 2006, who is now four and a half years of age, have been in dispute about parenting arrangements in respect of K for some time. Initially, they were in dispute about property division between them as well as parenting arrangements.
Both of those matters brought them to the Federal Magistrates Court of Australia here at Brisbane commencing in 2010. The matter was able to be resolved insofar as property division was concerned by the parties at a conciliation conference conducted by a registrar of the court in or around August or September of 2010.
The evidence establishes that that day a minute of terms of an apparent resolution reached between the parties as to the parenting arrangements for K was signed by both parties. However, due to some unforeseen circumstances, an order was unable to be made by consent of the parties that day. When the matter came back before the court on a later date, the father indicated that he did not consent to orders being made in terms of the draft terms of resolution that had been signed or initialled at least by him at the end of the conciliation conference. Not that that matters, because a parent is entitled to resile from a previous agreement and ask the court to make orders different from those that have been reached by agreement between the parties. But the father has indicated that he really never consented in the true sense of that word to orders being made in the terms that were in the draft minute that he signed.
He effectively says he was pushed down a path that he did not really want to go down on a difficult day where he was feeling unwell and had a migraine headache and was not really communicating properly with the solicitor who was representing him. The end result of all that is that the parties remained in dispute over several months about the final terms of the parenting arrangements to be put in place to govern or manage the parenting of K.
The matter came before the Federal Magistrates Court for a final determination, I believe, early this year, but was unable to be finalised or reached by Slack FM, and, when it was ultimately listed for a hearing again, due to the unavailability of Slack FM for health reasons, the matter was transferred to be heard by me in the Family Court of Australia at Brisbane, last Friday, 1 April 2011.
Now, on that day, at the commencement of the trial when it was called early in the day, I was informed by Mr Ehlers, who is representing the applicant mother, and the father, who at the trial has represented himself, that most of the matters pertaining to parenting of the child K had been agreed between the parties, but that only a few matters remained outstanding for hearing and my judicial determination.
Indeed, at the commencement of the hearing I was handed three documents, one a document headed Agreed Orders, which contains minutes of terms that I had been told the parties agree to having made into orders by consent. I was handed two other documents, one called Additional Orders Sought by the Mother and one Additional Orders Sought by the Father in respect of the child. Just before I go into some detail about those, I just set out some basic factual background to set the scene for my discussion of the competing proposals and ultimately my determination.
As I understand the matter, the parties met in or around late 1999 and commenced to live together in or around late 2000 and married sometime in late 2003. They clearly wanted to have a child and after some initial difficulties, the mother was able to conceive and their son K was born in October 2006.
Relevantly, the mother returned to part‑time work in or around late 2007 having worked, of course, before the birth of K. The father, around the same time, took up a new position which he has held ever since where he has been required to work away from Brisbane; namely, in south‑west Queensland (as I understand the location of his place of work) in what I can conveniently describe as the oil and gas industry. He is a tradesman.
Although there is dispute apparent between the parties as to whether or not it was a joint agreed decision for him to go and take up work out there for this employer or whether or not it was simply a unilateral decision made by the father that the mother had to put up with, the determination of which I find I do not need to actually make, the evidence is that since the father took up the position, he has been working on a two weeks on/two weeks off roster system which requires him to start a four‑weekly cycle at or around 11 am on a Wednesday and finish work at or around 11 am on the Wednesday exactly two weeks later. So, as I understand it, the evidence establishes that his work situation is exactly two weeks on and exactly two weeks off.
After he completes work at 11 am on the Wednesday – and he has been doing this for several years now – he returns to Brisbane by motorcar, which is a six or seven‑hour drive, and spends two weeks living in Brisbane in what is the former matrimonial home which is now, I understand, his sole property pursuant to the property division that was reached between the parties. His home is situated in Brisbane Suburb 2. He lives there then on his return to Brisbane on the Wednesday evening until he leaves Brisbane to drive back out to the place of his employment the following Wednesday two weeks thereafter so that he can commence at 11 am on the Wednesday. This requires him to leave Brisbane by car sometime early on the morning of Wednesday if not late in the evening on the Tuesday the night before.
This was apparently the nature of the working and living arrangements in the family household until they separated. The mother was working part time, primarily caring also for their child K, and the father was working two weeks on and two weeks off and, therefore, presenting as able to assist quite significantly in the care of K in the two weeks that he was back in Brisbane.
Their relationship began to experience difficulties and, as I understand it, both, or at least one of them, began acting as if they were separated under the one roof from some time either late 2008 or early 2009, and again I do not really think it matters exactly when it was, but in or around July of 2009 the mother left the family home at Brisbane Suburb 2 and went and found alternative accommodation for herself somewhere on the south-east side of Brisbane. I believe, from recollection of the evidence, somewhere in Brisbane Suburb 3 or, at least, that is where she is living now, if not for the whole time since separation.

So, when they separated on the basis of the mother leaving the home, taking K effectively with her, K was just under three years of age. As I understand the evidence, and I do not think there is any dispute about this, from around the time of separation, if not at that time, the parties put in place and have had in place living arrangements for K that effectively have had him living with the father in the former matrimonial home at Brisbane Suburb 2 in the period of time when the father is on his two weeks off in respect of his employment, and when he goes back to work in south‑western Queensland, the child has been going back to the mother for that two‑week period. Now, again, there is some dispute about this.
The father asserts that that was all by consensual arrangement, effectively agreed between the parties. The mother in her evidence has said she never really agreed in the true sense, as I can describe it, like I said earlier with respect to the father’s alleged agreement or non-agreement. The mother says she never in the true sense agreed to the circumstance but felt herself somewhat compelled and with no real other option, and went along with the father's requirement to have the child staying with him for the two weeks that he was off until these proceedings were commenced whereupon she sought to have court orders put in place that changed the situation from that.
Part of the court process resulted in the engagement of Mr S, a psychologist who has been, over the years, employed by the Family Court of Australia counselling section and engaged in that role in writing family reports as an expert for the assistance of the parties and the courts. Since he left the employ of the court he has been working in his own private business as a psychologist, family therapist/counsellor and report writer writing many reports and seeing many families in dispute in this jurisdiction. Mr S saw these parties and their child and prepared a written report that has been put into evidence. That was completed on 6 August 2010.
Now, the real points of significant difference between the parties in the proceedings before me relate to, as I see it, two principal matters, one being far more significant than the other. The first and most significant principal matter upon which the parties differ is that the mother in her application seeks orders from the court that have the child living with her in the two weeks that the father is engaged in employment in south‑western Queensland, returning to the father's care to live with him in the two weeks after he returns from south‑west Queensland to Brisbane for his two weeks off, but that includes a period of two nights within the block of time that the child lives with the father when the father is back in Brisbane upon which the child returns to the mother's care to spend some time living with her again before returning to the father for the rest of the block that he is on leave in Brisbane. The father opposes that and seeks an order from the court that the child lives with the mother for all the two weeks that he is away and with the father, effectively, for all the two weeks that he is back in Brisbane.
Now, the other subsidiary, second point of dispute between the parties is as to whether or not, on the day that the child's time with the father during the block that the father is back in town concludes, the father should return the child to day care or school at the beginning of the day on the Tuesday and then, therefore, end the period of time that the child is living with him at that point, or whether he should be able to pick the child up from day care or school, whatever that might be, and have him in his care until 6 pm on the Tuesday night, the night on which he either leaves for south‑west Queensland or the evening before he leaves early in the morning for south‑west Queensland.
There are some other matters in dispute which I shall return to, but they relate to issues surrounding provision of telephone numbers and the like.
Now, the mother in support of her application for an order that the child, during the block of time the child is with the father, returns to her care for two nights points principally to the recommendations of Mr S, who is the court‑appointed expert, who in his relatively lengthy report made some recommendations. The first of those recommendations was that K lives with his father for the approximate two‑week block that his father is available and off work, but have a reverse period of time for some two to three days/nights with the mother in the middle of that father/son block and live with the mother at other times, thus reducing the extended breaks that occur in the mother and son relationship.
The mother relies on that recommendation effectively, as well as the evidence that supports a conclusion that the mother has been in this child's life the principal or primary carer for the child since he was born by force of circumstance, effectively, given that the father since the child was about one year old, has been working on a two week on/two week off roster that has taken him out to south‑west Queensland. That is not, of course, to downplay the significance of the care that the father has been able to provide to the child, both before separation and since separation in the period of time that he has been back in Brisbane, in the first instance before separation, alongside the mother in that two‑week period when he was off work and at home, and since separation, in that two‑week period when he has been back in Brisbane and solely caring for the child K between separation and now.
The evidence, something that seems to be supported by the expert opinion of Mr S, is that the child K, because of that set of circumstances, has forged a primary or principal attachment with his mother throughout the course of his four and a half years, she being, certainly before separation, the sole constant in his life to that point in time, the boy having grown from about one year of age to about three years of age where he was used to long separations from his father of two weeks at a time.
So Mr S has opined that the constancy of the care that his mother provided has provided the basis for what is the primary attachment between child and parent in this child's life. Of course, that was changed or interfered with at separation when the child was then no longer simply required to endure two weeks of separation from his father but, on the other hand, was also then required to endure about two weeks separation from his mother.
The mother says that the father's parenting style is different from hers. That is, indeed, supported by the opinion of Mr S based on his observations of the parties and the child. The mother also asserts, again supported by the opinion of Mr S, that the routine in the father's household is a little bit different to hers, and Mr S, certainly in his observations, was able to opine based on those observations that the child probably does not have the same sorts of boundaries, same sorts of behavioural constraints, same sorts of behavioural requirements placed upon him by the father when he is in the father's care as he does by the mother when in the mother's care. That is probably not surprising given that the father during the two weeks that he cares for the child is not working and on leave and relaxed and enjoying his time off, whereas the mother is living in her normal routine with the child, going to work several times a week, and now more recently each day of each week, having to place the child in day care for many of those days and is relying on the assistance of her mother, that is the maternal grandmother, to care for the child given that the father is not available during those two weeks when the child is with the mother because he is outside Brisbane working.
Mr S opines in support of his principal recommendation that I have already referred to; that is, the one that the mother adopts and submits I should rely upon in order to make the order she seeks as being in the best interests of the child, that the two‑week period during which the child is with his father in the circumstances already outlined is effectively too long for him at his age to be away from the person who has been the primary carer and with whom he has that primary attachment in his life, and that a return to his mother for that two to three day/night period during the father's block is something that would be in the child's best interests having regard to the nature of his relationship and the need to see his mother more frequently than every two weeks.
Now, I just say this too: the mother also points to the fact that it was a change in the arrangement, the parenting arrangement from the two weeks with dad and two weeks with mum, to a situation that was consistent with the recommendation of Mr S that the father had initially, at the conciliation conference, agreed to. I have already referred to the fact that the father says his consent to that was not a true consent, but I must also add that the change was actually put in place between the parties. The mother says it happened on three occasions during the father's two‑week block; the father says it happened only on one occasion during one of his two‑week blocks. Again, I do not consider it necessary to determine that factual dispute and to determine who was right and who was wrong. Suffice to say that the father asserts to the court that once he and the child had experienced that changed arrangement, he quickly determined that it was not in the child's best interests, as he thought, for the arrangement to be changed to that and then he chose or decided not to continue with it, and it is that, effectively, that has brought us to the court, the mother seeking it to be reinstated or put in place on a permanent basis, the father seeking to resist that.
The father's primary submission seems to be one based on the old colloquial "if it ain't broke, don't fix it" type scenario; ie, he says the mother has not really put any evidence before the court that suggests the child is suffering from the current arrangement and, therefore, unless she can point to some suffering with the current arrangement, it is not in the child's interests to change it. Interestingly, if I can just say, the father when he was in the witness box was asked some questions by me about his experience on those few days that he allowed the boy to go back to the mother on that one occasion, and I asked him about that in the context of him telling the court how he perceived that the child suffered in that scenario. He told me that the boy was really upset and troubled on the day that he returned him to child care, I think it was, on the morning of the first of those two days, that he was to go back to his mother's care, and then he told me that he was, at the end of it, excited and somewhat ‑ well, a bit out of sorts after he came back into the father's care two days later.
Interestingly, when the matter was explored a bit with the father, he accepted that it seemed to be the case that each time the child left his care, whether it be at a handover that took place at McDonald's, which is where the parties have agreed and always have had handovers outside the day care centre, or whenever he left the child at childcare, that there was some separation anxiety and that the child was struggling to cope with separating from him. However, earlier today, interestingly, he said, the child has significantly improved in that regard and has grown a bit older and a little bit more mature since October last year and since the time that Mr S saw them in August or July, he does not seem to separate with the same degree of difficulty or anxiety now as he was then.
That, I find, is a positive and a good thing, suggestive of the fact that the child is now growing a little bit older and he is able to cope more now with separation from each of the parents knowing that the parent he is separating from is not going to disappear from his life, knowing that he is going to get to see that parent again at some stage in the not too distant future. Further, it also suggests to me that the father is probably now also dealing with the separation from his son from the parental perspective a lot more easily than he previously was and that the two factors combined are making the separations a far more tolerable experience for the child to be able to cope with.
So I find that notwithstanding what the father says about what he experienced during that time last year when he actually handed the child over to the mother for a couple of days, that is not likely to be a problem now in any event having heard what the father said today, certainly not on a regular basis. Indeed, I find that the fact that the father said it happened on that singular occasion of handing the child back during the block of time that he otherwise spent with his father was not in itself suggestive of a bad thing because the father said that it was happening every time the child was leaving his care in any event. So, notwithstanding the father pointing to that as evidence of the fact that the child had suffered, I do not find it as a fact that would weigh heavily now in the determination of whether or not this little boy ought to go back and spend some time with his mother during the long two‑week block that he is with his father when his father is back in town.
I expect that the same sort of increase in maturity experienced by the child by growing a little bit older and knowing that he is going to see his father again when he leaves him and knowing that he is going to see his mother again when he leaves her after he has spent time with her, is probably likely to lead to the boy coping better with the transition in circumstances where the conflict between these parties begins to reduce, as I expect it will. There is evidence to give me confidence that that is likely to be the case. I expect that if the boy is to come back to his father after spending some time with his mother, be it a two‑week block or even a two‑day block during the longer block, he is going to be able to cope with that and not suffer any detriment that would indicate it was not in his best interests to go and actually spend time with his mother for those few short days.
The second significant matter is that the mother wants an order that the child just simply be delivered by the father back to the child care centre at the start of Tuesday morning. Principally, as I understand the position, that is so that she is not put in a position later that evening where she has to come face‑to‑face with the father at a handover. Her counsel points to evidence that there is some conflict between the parties, but principally he points to and makes a submission that the father really has not accepted the finality of the relationship or the end of the relationship and may seek to use opportunities when he comes back into face‑to‑face contact with the mother to try and get some sort of reconciliation or at least say things to her that are unwelcomed by her.
On the other hand, the father effectively submits that they already have a handover at the McDonald's on the Wednesday night when he comes back to town from out west and collects the child from the mother. The father says that if he is not leaving Brisbane until the Wednesday morning, there is really no need for him to hand the child over at the delivery of the child to day care on the Tuesday morning. He says that by doing so he is really deprived of further time with the child that he could otherwise have after day care up until 6 pm on the Tuesday evening. The father says that he accepts the finality of the end of the relationship with the mother. He gave that evidence under oath in the witness box, and he says that the court can have every confidence that he is not going to harass or intimidate or continue with unwelcomed discussion with the mother if she makes it clear to him that she does not want him to continue discussing things.
As I said before, there is some evidence that the parties’ communication is improving. Although there is reference to conflict in this case, and it seems apparent that the mother does not really want to have face‑to‑face contact and communication with the father, I do not see this case as one where there is an enormous amount of conflict present. It seems that they have been able to at least relate to each other in a way that generally has spared K from being exposed to conflict between the two of them. There is evidence that they have sent a notebook that one might describe as a communication book backwards and forwards to each other. Although there is evidence that the communication level between them is fairly minimal, I did hear today, and it seemed accepted by the mother's counsel, that there was some communication last night between the parties over the phone when the mother rang to speak to K, and there was some communication that ended in them reaching an agreement to change things in respect of the living arrangements for K to suit a change of roster situation that is coming into place in the very near future with the father. This in itself is a very positive indicator that they can, where necessary, have some discussions and put the best interests of K first and foremost, and that communication problems between them are not really that bad.
I turn to the law now. Notwithstanding that the dispute is one of very narrow compass, nevertheless there is a statutory pathway that is prescribed in part VII of the Family Law Act that I, as a judge determining whether to make parenting orders in respect of a child in a disputed matter, must follow. If I can just refer to the decision of Murphy J of this court in the case called Cowley & Mendoza [2010] FAMCA 597 that was delivered on 16 July 2010 where Murphy J very eloquently and conveniently summarises the principles that are to be followed effectively summarising that statutory pathway. He did this by reference to the legislative requirements set out in part VII, also by reference to the Full Court's decision in the case of Goode v Goode [2006] FLC 93 286, and the High Court's decision in the case of MRR v GR [2010] 263 ALR 368.
A court contemplating the making of parenting orders must do this in this order:
First, apply a presumption that it is in the best interests of the subject child for that child's parents to have equal shared parental responsibilities in respect of them;
Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
Further or alternatively, then make findings by reference to section 60CC(3) about such matters pertaining to the best interests relevant to the issue of whether parental responsibility should be shared equally;
Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances;
If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must then proceed to:
Make findings as to whether the subject children's best interests are best met by an order for equal time; and
Make findings as to the matters prescribed in section 65DAA(5), and, as a result:
Make findings about whether an equal time order is reasonably practicable … and
If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order … should be made;
If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children's best interests.

However, I return to that in respect of the matters that are before me. Firstly, in this particular case the parties themselves agree that I should make by consent an order that the mother and the father have equal shared parental responsibility for the child of the relationship, K. In that regard, I do not consider it then necessary for me to really consider the presumption or whether it is rebutted, or whether if it is rebutted, there is otherwise good reason to make an order for equal shared parental responsibility or not. The parties themselves have determined that it is in the best interests of the child for them to have equal shared responsibility and I have no reason to consider that they have got that wrong or to not make an order in accordance with their consensual wishes in that regard.
I note that they have set out in paragraphs 2, 3 and 4 matters that they say are to be considered or dealt with within the notion of “equal shared parental responsibility” and how that is to be exercised, and as I said during the course of the trial on Friday, really what they are setting out there is nothing more than is already stated within the statutory provisions of the Act that deal with equal shared parental responsibility. Nevertheless, that said, I do not consider it inappropriate for parties, where they choose to or are advised to, to set those things out, to do so in orders that they ask the court to make by consent.
Now, as I have already indicated during the course of the hearing, and having determined that an equal shared parental responsibility order as consented to by the parties is not inappropriate to be made in this particular case, I then have to turn to the provisions of section 65DAA which mandatorily then require me to consider when the parties agree to an equal shared parental responsibility order, whether or not equal time is in the child's best interests. Section 65DAA of the Family Law Act says that:
If a parenting order provides that a child's parents are to have equal shared parental responsibility for the child –
and that is what this is now going to do because the parties agree to it –
the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and consider whether the child spending equal time with each of the parents is reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each of the parents.
Now, as I understand the law, particularly as set out in Murphy J’s summary just referred to, and also the High Court's decision in MRR already referred to, there is no priority granted here to those considerations. So it is not a case of necessarily having to consider the first one, that is whether it is in the best interests of the child to have equal time with the parents, first. The other consideration could be considered first. Just for a moment I will do that for the purposes of this case.
Section 65DAA(5) sets out what has to be considered in determining “reasonable practicability”. It says things such as how far apart the parents live from each other, the parents' current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents, the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, and the impact that an arrangement of that kind would have on the child and such other matters as the court considers relevant.
Although, as I said before, their current capacity to communicate leaves one to have some doubt about just how well they will be able to communicate or they would be able to communicate to resolve matters, important matters that have to be resolved between parents in an equal shared care arrangement, I would not find that their current capacity is such that it would not be reasonably practicable to expect them to have equal shared care. Certainly they live close enough to each other when one takes into account the father's Brisbane home base and the mother's Brisbane home. They certainly have really demonstrated a capacity in the past to be able to practicably implement equal time arrangements, and the impacts of such an arrangement on the child are considered. I do not find that it is not reasonably practicable or that it would not be reasonably practicable for the child to spend equal time with each of his parents.
So I then turn to the other consideration that I must be satisfied of before I would make an equal time order, and that is whether the child spending equal time with each of the parents would be in the best interests of the child. Now, although the father said at the end of his submissions that even if he moved back to Brisbane he would think that a 14‑day/14‑day equal shared arrangement would be better for the child, that seemed somewhat incongruous to me with the position that he had taken, especially in discussion between me and him during his submissions earlier, but also during the rest of the hearing. I got the impression that both of the parties presented a case to this court that an equal shared care arrangement would probably be in the best interests of the child if the father lived in Brisbane and it could be implemented on the basis of seven days with the mother and seven days with the father, and that that would be something that could be reasonably practicable and more likely to be in the best interests of the child having regard to the reduced length of time that he would be away from each of his parents in the circumstances.
I got the impression initially that the father agreed with that position. However, later he said to me that he thought that he would prefer a 14 days/14 arrangement. I must say, I felt a little discomfort with that submission having regard to what I thought was his earlier position, effectively expressed throughout the hearing, and was a little bit concerned that it might have just been conveniently adopted by the father at that point in time to effectively argue that, no, he considered equal shared care on a longer‑term basis more in the child's interests having regard to the issues that he is facing in the case. I must say I have already discussed some of the matters effectively presented by the mother or submitted by the mother on behalf of the mother as to why orders along the lines that she seeks are in the best interests of K, and I have already discussed what the father has said about that.
In respect of whether or not an equal shared caring arrangement is in the child's best interests, as I acknowledged earlier, I then have to revert to a consideration of the matters set out in section 60CC as to how I determine what is in the child's best interests. Of course, listed as primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents, and the second point there is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Now, those are said to be primary considerations, but the listing of all the others in section 60CC(3) as additional considerations and number of decisions of the Full Court in recent years causes me to have to recognise that just by calling those considerations primary considerations does not mean that they get any significant priority or have to be considered as more important than the additional considerations and the evidence that relate to those.
The child K has a meaningful relationship with both of his parents and, on either of those proposals, there is no likelihood that that meaningful relationship, I find, with his parents is going to be impacted upon in any way that is detrimental to K. The father submits in support of his position that having the child return to his mother for two nights is somehow going to impact upon the nature of his relationship with him, but there really was not anything more concrete said about that, with all due respect to the father, that causes me to find that the meaningful relationship that the child currently has with the father would be in any way detrimentally impacted upon if I was to order in accordance with the mother's proposal as recommended by the expert, Mr S.
I do not see that the other one, the other primary consideration about protecting the child is in any way really applicable. The child really, notwithstanding what the father would have me accept, has not really expressed any views that I can give any weight to in this particular case. Certainly Mr S was not able to advance any reporting of any evidence that the child said anything to him particularly that caused him to think that the child had a view or that if he did, that it should be given any particular weight in the case. It must be remembered that when the child saw Mr S he was only three going on four and a child of such delicate age is hardly, in my finding, likely to be able to significantly understand or appreciate or likely to be able to understand or appreciate the significance of any particular proposed arrangements on his well‑being.
He has got a good relationship, as I said, a good and meaningful relationship with each of his parents. There is no doubting the love and commitment that each of these parents have for this child and there is no doubting the love and feelings that the child has for each of his parents. I also have no cause to find that 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 is in any way inhibited. I do not find that the father is in any way trying to prevent the child having a relationship with the mother and, likewise, I do not find that by the mother's proposal that she is in any way trying to inhibit or discourage the child from continuing to have a developing and meaningful relationship with his father.
Notwithstanding what the father has said, I do not find that there is likely to be any detrimental effect on the child K caused by a return to his mother for two nights as she proposes in the block period that the child spends with the father. Indeed, to the contrary, and it is my finding to the contrary, principally, that causes me to determine that it is more in K's best interests to have him returned to his mother for those two nights during the long block of 13/14 days that he is spending in his father's care when his father returns to Brisbane. There is no practical difficulty and expense in the mother's proposal. I do consider the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs as a relevant factor.
I certainly gleaned from the expert witness, Mr S's evidence, that there is a critical or important difference in parenting style between the two parents, and the difference is certainly relevant to my determination. As already discussed, the father when he is back in Brisbane is effectively on downtime or leave, like having a two‑week long weekend or even being on holidays, and as such it seems, certainly on Mr S's opinions based on his observations, that the child has developed a different sort of relationship with the father based around that more relaxed approach to life and the rigors and responsibilities of parenting that the father has, no doubt, had and demonstrated during those two weeks that he has had the child in his care over the last couple of years when he is on his two weeks leave back in Brisbane.
One of the most influential aspects of the evidence that has caused me to determine that it is in the child's best interests is the opinion of Mr S that such a long period of separation from the parent with whom the child is principally or primarily attached still at this young age is somewhat concerning in respect of the ongoing emotional development of this child, particularly as he approaches the commencement of school. It is that that causes me to find that, indeed, the best interests of the child require or demand that the period of time over which he is separated by force of order from that adult or that parent with whom he has that primary emotional attachment ought not be as long as is otherwise proposed by the father.
It is for all those foregoing reasons that I am going to order that the child is returned effectively into the care of the mother for the two nights that she seeks during the block period that the child spends with the father. I know that that decision is going to disappoint the father, but as I said to him during the course of his submissions and during the course of the hearing, my job is not one where I am charged with responsibility for handing out a decision that is designed to try and make sure that each parent ends up with exactly the same set of factual circumstances as the other parent. My job is ultimately guided by the paramount consideration of the child's best interests, and right through the process I am statutorily enjoined to never lose sight of the best interests of the child as being the paramount consideration and the most important factor when I am considering the making of my decisions. Indeed, in that regard I am guided significantly by the expert opinion of the experienced family report writer, Mr S, in arriving at the determination that I do.
In respect of the other matter, I am, though, minded that the father's proposal is one that nevertheless meets the best interests of the child in the limited circumstances of the dispute about it. Having heard the submissions of counsel for the mother, I am not convinced on all the evidence that doing everything that is possible at law to prevent these parties coming into contact with each other is necessary on the facts of this case. As I understand it, the child can be returned to childcare on the Tuesday morning at anything up to 9 o'clock pursuant to the orders that the parties ask me to make by consent, but also that the father can still collect the child any time between 3, 4 or 5 o'clock in the afternoon from the day care and then still spend some time with him that afternoon before he hands him over to his mother and before he says goodbye to him and leaves to prepare for leaving for south‑western Queensland again.
I am satisfied that the parties meeting once a fortnight at Brisbane Suburb 1 is already happening and I am satisfied that the parties meeting again on another occasion in the fortnight at Brisbane Suburb 1 is not going to be significantly or, indeed, even marginally detrimental to the child's well‑being, and I am satisfied that the parties in this case, particularly the father, are now resigned to the end of their relationship and are moving on looking to the future and the best interests of their child and the need to cooperate and communicate with each other on an ongoing basis.
I am also satisfied, I must say, that the mother has reached a point where she is going to be able to do that. There is another order that Mr S recommends, or something like he recommends that I am also going to put in place that I believe will assist in that regard, and that is with respect to a post‑separation parenting course that I am going to order both parties undertake, separately, of course. So I am going to make an order that when the father has the child at the end of his block, it ends at 6 pm on the Tuesday night and, of course, the handovers will be at McDonald's on that occasion.
I do not consider in the circumstances, particularly the evidence given by the father, that the mother requires an order that the father provide her with an emergency landline number at his place of work. As I understand the evidence, and even as it fell today during the father's submissions, the mother has the father's work landline number which can be contacted during the course of a working day from early in the morning until in the evening, but he prefers her to contact him on his mobile telephone number. I do not consider it necessary in the best interests of the child in all the circumstances for the father to have to, by order, provide the mother with a landline number otherwise.
I also do not consider it necessary or appropriate to grant an injunction as applied for by the father restraining the mother from communicating directly with the father's immediate family. I was not satisfied on the evidence that it is something that the mother has been abusing or that it is something that the father's family members are not otherwise tolerating and/or able to deal with themselves in the circumstances. There was no evidence directly from any of them that they support the father in seeking such an order or that same is necessary.
Additionally, the father sought an order that if the parties could not agree on the secondary school that the child is to go to, that the mother is to provide the father with a choice of three schools, including private, Catholic and state schools and that he would then choose the school that the parties send the child to. As indicated during the course of the hearing, I am not satisfied that it is in the child's best interests to ultimately give the father the sole right of choice of schools in circumstances where the parties have determined to consent to an order that grants equal shared parental responsibility. They have to discuss and make a genuine effort to agree on the schools.
If they cannot ultimately agree on the secondary school that the child goes to, then sadly the matter will have to come back before this court. There are dispute resolution processes that would need to be gone through before they can list the parenting matter back before this court, but I do not consider it appropriate in the circumstances of the case to give, ultimately, the father the sole unilateral right to determine the secondary school that the child goes to, especially when he has not yet even started primary school.
In this matter counsel for the mother makes application that the father pay the mother’s costs of and incidental to bringing the matter to its final hearing subsequent to the conciliation conference last year. He puts before me a schedule that does not include fees for his preparation or attendance today, which is $17,982. One would expect another several thousand dollars more than that if you include today, which when calculated in accordance with the schedule totals $11,095, which is probably half of what the mother has totally spent.
Mr Ehlers for the mother acknowledges s.117(1) and the statutory statement contained therein that each party to proceedings under this Act shall bear his or her own costs, which, of course, is subject to sections 117AA, 117AB, 117AC, 117(2) and 118. Section 117(2) says that if in proceedings under this Act the Court is of the opinion that there are circumstances that justify it in so doing, the Court may, subject to sub-sections (2A), (4) and (5) and the applicable rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
Section 117(2A) says:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.

Mr Ehlers submits that the financial circumstances of the parties are such that the father is in receipt of a greater annual income than the mother. On the evidence I can find that is somewhere around $60,000 per annum for the father. For the mother, although there is a dispute about this, it is somewhere around $40,000 to $48,000. In any event, if it is $48,000, as the father asserts, it is still somewhat less than his annual income. There is no evidence otherwise in relation to the asset and liability position of the parties that assists me greatly in this regard, save for the fact that I know they went through a property division in recent times, sanctioned by the Court where the father effectively retained, by payment to the wife of some amount, the former matrimonial home at Brisbane Suburb 2.
Mr Ehlers also submits that I should have regard to the fact that at the conciliation conference that took place on 25 August 2010, the parties signed off on minutes of order in respect of the parenting dispute between them in all of its aspects with the intention of having those made into consent orders.
On the evidence that I read on the mother’s side, it was only because the Registrar did not make the order and was to send the parties back before a Federal Magistrate that it did not get made at that time. For some reason, when it went before the Federal Magistrate it was not made into orders. Subsequent to that happening, the father, as I have said earlier in my reasons, resiled from the agreement. As I have said, he is entitled to do that, but, as I alluded to in my questions to him, not necessarily with absolute impunity in respect of the issue of costs, if at the end of the day he is unable to convince the Court that the agreement that he resiled from was not the appropriate resolution of matters in dispute between the parties having regard to the best interests of the child.
Having looked at the agreement that the parties signed off on on the 25^th of August, whilst it cannot be said that every single aspect of that agreement was better for the father than the orders I made today, a close examination of the minutes that were signed by both parties reveals that some aspects of that order were in fact better for the father than orders I made today. Some of them were also slightly better for the mother than orders I made today.
However, the significant aspect that was in dispute between the parties that has really taken up the time of this Court over the last two days and in the day that it was before Federal Magistrate Slack, was the issue arising from Mr S’s expert report, that is that the father’s block of time with the child or the child’s block of time with the father, that was two weeks, was needed, in the best interests of the child, to be interrupted by the child going back to spend some time with his mother. The father had agreed to that initially and then resiled from that. Notwithstanding many other matters being resolved, that is the issue that took a lot of this Court’s time and brought the parties back to this Court.
The father discharged his original solicitors and acted for himself. The mother maintained her position as that which was recommended by Mr S and as that previously agreed by the father, as evidenced by his signature to the document, right to the point of trial. On that issue I found in accordance with the position advanced by the mother, essentially on the expert’s evidence, and Mr Ehlers rightly says that is a matter I ought take into account: the father’s change of his position; his opposition to moving back to that position; and the mother spending all of that money as previously set out, in coming here and getting that result.
It cannot truly be said that the father has been wholly unsuccessful in the proceedings because he got something he asked for. For example, he was successful in convincing me that the order should be amended so his return of the child should be on a Tuesday at 6.00 pm rather than in the morning that same day. But as I said when making my decision and giving my reasons, that was really a secondary issue having regard to the principal dispute that was between the parties.
I am mindful that this is a parenting dispute and I am mindful of the fact that the parties need to move on into the future with a spirit of cooperation and communication. Bearing that in mind though, it is difficult to say that if I did not make an order in the mother’s favour and the mother went away from here with a bill of some $22,000 in legal costs, much of which was spent in an attempt to vindicate the position which she previously adopted and which ultimately was vindicated, that she would be too enamoured with cooperating and communicating with the father in the best interests of the child in the future. Similarly, on the other hand, the father asserts from the bar table that if I order him to make costs it would make things financially difficult for him and he would not be able to retain his house.
In all the circumstances, I do consider that as difficult and problematic as parenting cases can be between parties, parents who are in dispute about their children in this court should not go on litigating with the view that they can do so with impunity and complete disregard for the sort of costs consequences that generally follow outcomes in litigation, particularly in the civil courts of this nation. Indeed, imposing costs orders in this court is not something that should be done lightly and indeed the legislature instructs us in that regard by way of s.117(1) being worded as it is. Nevertheless the Act gives the Court the discretion under s.117(2) and s.117(2A) to make orders that it otherwise considers just. Just because it is a parenting case, at least in my mind, does not mandate that costs order should not be made.
In all the circumstances outlined, I intend to make an order that the father contribute to the mother’s costs, not by ordering that he pay all of her costs as asked for by counsel for the mother, but by making an order that he contribute some sum towards assisting her in meeting her costs of proceedings that would not have otherwise been spent by her if the original agreement had been honoured. I determine that such contribution should be in the sum of $5,000 and will order that the father pay that.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 April 2011.

Associate:

Date: 17 May 2011

[2011] FamCA 347

4 April 2011

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Costs

Procedural Fairness