LEEKS & CARDWELL

[2019] FCCA 2213

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEEKS & CARDWELL [2019] FCCA 2213

Catchwords:
FAMILY LAW – Parenting – where most issues resolved by consent – where limited issues remained for determination – evidence heard – submissions made – orders in best interests of child.

Legislation:

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

Cases cited:

Line & Line (1997) FLC 92-729

MRR v GR [2010] HCA 4

Applicant: MR LEEKS

Respondent: MS CARDWELL

File Number: SYC 7570 of 2016

Judgment of: Judge Altobelli

Hearing dates: 8 - 9 July 2019

Date of Last Submission: 9 July 2019

Delivered at: Wollongong

Delivered on: 10 July 2019

REPRESENTATION

Counsel for the Applicant: Ms Jowett

Solicitors for the Applicant: Aspire Law Group

Counsel for the Respondent: Ms Eldershaw

Solicitors for the Respondent:	Rebecca Bailey & Associates
Counsel for the Independent Children's Lawyer:	Mr White
Solicitors for the Independent Children's Lawyer:	Acorn Lawyers

ORDERS

(1)  In these orders “[X]” means [X] born … 2014.

Parental responsibility

(2)  That parental responsibility for [X] shall be allocated between the parents in the following manner:

(2.1)The parents shall have shared parental responsibility for [X] in relation to major long term issues about:

(2.1.1)[X]’s name;

(2.1.2)Changes to [X]’s living arrangements that make it significantly more difficult for the child to spend time with a parent or attend his school.

(2.2)The mother shall have parental responsibility for [X] in relation to all other major long term issues including [X]’s:

(2.2.1)education;

(2.2.2)health.

(2.3)The mother’s right to exercise parental responsibility pursuant to Order 2.2 is on condition that:

(2.3.1)She gives the father reasonable notice of any such issue for which a decision needs to be made and all reasonable particulars about the circumstances that give rise to the issue, including the name and contact details of any professional person relevant to the issue;

(2.3.2)The mother must genuinely consult with the father about the issue;

(2.3.3)The parties will make a genuine effort to come to a joint decision about any such issue;

(2.3.4)If, after making a genuine effort to come to a joint decision, the parties reach no agreement, then within 14 days of the mother giving the father notice of the issue, the mother may make the decision and inform the father in writing of the decision and all reasonable particulars of it, including the name and contact person of any relevant professional person.

(3)  Each party may introduce and involve [X] to their culture, heritage and language at times that [X] is in their care.

(4)  That [X] shall attend Suburb A Public School for his primary school education commencing 2020 and for this purpose, the mother shall do all acts and things to effect such enrolment.

(5)  That each party shall have parental responsibility for the making of day to day decisions for [X] including his diet at times that he is in their respective care.

Live with

(6)  That [X] shall live with the mother.

Until [X] starts school

(7)  Until [X] commences school in Term 1, 2020, [X] shall spend time with the father based on a two weekly cycle:

(7.1)in Week 1: from 3pm on Thursday to 9am on Friday; and

(7.2)in Week 2: from 5pm on Friday to 9am Monday.

(8)  During periods that correspond with NSW school holidays, [X]’s time with the father in accordance with the previous Order shall be extended by a 24 hour period at the conclusion of the times referred to above. 

(9)  [X] shall spend time with the father from 1pm on Christmas Day to 5pm on Boxing Day.

1. Each party must ensure that [X] arrives at preschool by not later than 9am without reasonable excuse. 

From Term 1, 2020

1. Commencing from Term 1, 2020, [X] shall spend time with the father during school terms:

   (11.1)each alternate weekend from 3pm on Friday to 9am Monday (or 9am Tuesday if the Monday is a public holiday or non-teaching day for [X]); and the applicable of 11.2 and 11.3:

   (11.2)If the father resides more than 30km from [X]’s school, from 3pm on Thursday to 9 am on Friday in the intervening week. 

   (11.3)if the father resides within 30km of [X]’s school, the intervening Wednesday from 3pm until Friday at 9am.

2. Each party must ensure that [X] arrives at school by not later than 8.50am without reasonable excuse.

3. For the purpose of implementing the preceding Order:

   (13.1)the parties notionally count the weekends through the school holiday periods to recommence the alternate weekend time each school term following the parties’ usual pattern;

   (13.2)the mother shall ensure that [X] is sent to his father with the correct uniform and equipment that [X] will require for school on Monday;

   (13.3)the father shall ensure that all school uniforms and equipment with which [X] arrives on Friday is returned with him on Monday.

School holidays

1. For the purpose of school holiday orders:

   (14.1)in all holiday periods:

   (14.1.1)“the start of the holiday period” means 10am on the Saturday immediately after the end of term;

   (14.1.2)“the end of a holiday period” means 5pm on the last Sunday of the period;

   (14.1.3)“the mid-point” of the holiday period at the end of Terms 1, 2 and 3, is 5pm on the middle Saturday;

2. Commencing from Term 1 of 2020, [X] shall spend half of each school holiday period with each parent during the holidays occurring at the end of Term 1, 2 and 3 as agreed but failing agreement:

   (15.1)in even numbered years, with the father from the start of the holiday period to the mid-point and otherwise with the mother.

   (15.2)in odd numbered years, with the mother from the start of the holiday period to the mid-point and otherwise with the father.

School holidays at the end of Term 4 (commencing 2020)

1. [X] shall spend time with each parent during the school holidays occurring at the end of Term 4 as agreed but failing agreement:

   (16.1)in 2020 and each alternate year after that:

   (16.2)with the father from the start of the holiday period until 12pm on Christmas Eve

   (16.2.1)with the mother from 12pm on Christmas Eve until 12pm on Christmas Day

   (16.2.2)with the father from 12pm on Christmas Day until 12pm on New Year’s Eve;

   (16.2.3)with the mother from 12pm on New Year’s Eve until 5pm on 7 January;

   (16.2.4)with the father from 5pm on 7 January to 5pm on 14 January;

   (16.2.5)with the mother from 5pm on 14 January to 5pm on 21 January;

   (16.2.6)with the father from 5pm on 21 January to 5pm on 28 January; and

   (16.2.7)with the mother from 5pm on 28 January until the start of Term 1.

(16.3)in 2021 and each alternate year after that:

(16.3.1)with the mother from the start of the holiday period until 12pm on Christmas Eve

(16.3.2)with the father from 12pm on Christmas Eve until 12pm on Christmas Day

(16.3.3)with the mother from 12pm on Christmas Day until 12pm on New Year’s Eve;

(16.3.4)with the father from 12pm on New Year’s Eve until 5pm on 7 January;

(16.3.5)with the mother from 5pm on 7 January to 5pm on 14 January;

(16.3.6)with the father from 5pm on 14 January to 5pm on 21 January; and

(16.3.7)with the mother from 5pm on 21 January until the start of Term 1.

Mother’s Day and Father’s Day

1. Despite any other order, [X] shall spend time with:

   (17.1)   the mother from 9am to 5pm on Mother’s Day;

   (17.2)   the father from 9am to 5pm on Father’s Day.

Easter

1. The “Easter Weekend” means from 9am on Good Friday to 5pm on Easter Monday.

2. When the Easter Weekend does not occur in a school holiday period, [X] shall spend time at Easter as follows:

   (19.1)   With the mother if Easter occurs in an even numbered year; and

   (19.2)   With the father if Easter occurs in an odd-numbered year.

[X]’s birthday

1. The parent who is not otherwise caring for [X] on his birthday pursuant to these orders shall spend time with him on the birthday at times to be agreed but failing agreement, from 3pm to 6pm if the birthday falls on a school day and from 10am to 2pm if the birthday falls on a non-school day.

Extracurricular activities

1. Each parent is restrained from enrolling [X] in any extra-curricular activity that occurs during the time that [X] is in the care of the other parent, unless they have first obtained the other parent’s consent in writing.

2. If [X] is enrolled in an extra-curricular activity with the consent of both parties, then each parent shall:

   (22.1)facilitate [X]’s attendance at the activity during the time he is in their care; and

   (22.2)contribute equally to all expenses related to the child participating in such activity including enrolment fees, uniform and supply costs, and shall reimburse the other parent within 14 days of receiving evidence of the payment by the other parent, of that parent’s share of such fees, or shall pay directly to the service provider, their share of such fees, within the time requested or required by the service provider.

3. Each party and their partner is at liberty to attend such extracurricular and school activities involving [X] to which parents are normally invited.

Changeover

1. Except where changeover occurs through school or day-care, or as otherwise agreed, changeover shall occur at Suburb B McDonalds.

2. That each parent shall ensure that [X] is returned to the other parent’s care with all items, clothes and belongings with which he came into that parent’s care.

Access to information about [X]

1. By this order, each party is permitted to obtain from any school, extra-curricular activity organiser or teacher, counsellor or medical practitioner who treats [X], (collectively, the “Professionals”) such information as they reasonably request of the Professional(s) to the extent the Professional(s) is permitted to provide that information by law and in accordance with their governing body. 

2. That the mother shall do all acts and things to authorise and direct any day care centre, school, medical practitioner, and allied health practitioner to include the father’s mobile telephone number and email address in student and patient records for [X] that are maintained by that organisation or professional service.

Communication between the parents

1. Except in the case of emergency, the parents shall communicate with each other about [X] via the “Our Family Wizard” website ( or such other application or website as they agree in writing.

2. Each party will do all acts and things to establish an account on the website including the payment of relevant subscription fees.

Notifications

1. Each party shall keep each other informed of:

   (30.1)any medical problems or illness suffered by [X] whilst they are in their respective care including the details of any hospital or medical centre to which he has been taken and the contact details of the treating medical practitioner, with such notification to be made as soon as reasonably practicable;

   (30.2)any medications or other treatments that have been prescribed for [X];

   (30.3)any specialist medical appointments with any medical doctors, psychologists, counsellors or allied health professionals regarding [X];

   (30.4)their telephone number, email address, and residential address and the phone number of any adult person with whom [X] lives; and

   (30.5)Any other matter relating to the care and welfare of [X].

Injunctions

1. That parties be restrained from causing or permitting [X] from calling any person other than a parent “mum”, “mummy”, “dad”, “daddy”.

2. Each party be restrained by injunction from:

   a.Making any negative, critical, or derogatory remarks about the other parent or member of the other parent’s household in the presence or hearing of [X];

   b.Discussing these proceedings with [X] or with any other person in the presence or hearing of him, or showing [X] any document created for these proceedings; and

   c.Interfering in any way whatsoever with the implementation of these orders.

Telephone communication

1. Each party shall facilitate [X] having telephone contact with the other parent at reasonable times that he is in their respective care. 

International Travel

1. The Court declares that [X] is a habitual resident of Australia.

2. That the child, [X] born … 2014, be removed from the Airport Watch List AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the name of the said child from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia. 

3. That within 14 days of a written request from the other party the Respondent Mother or Applicant Father will do all things and sign all documents necessary for the provision of an Australian Passport to be issued or renewed to the child [X] born … 2014 and the parties shall share this cost equally.

4. That both parties be restrained from applying for a Passport for any other country (including Country G and Country H) without the express written consent of the other parent.

5. That the Mother shall provide the child's Country G Passport and Australian Passport to the Registry of the Federal Circuit Court of Australia at Wollongong within 14 days.

6. Any Australian Passport issued to the child shall be held by the Registry of the Federal Circuit Court of Australia at Wollongong when not in use, and the Mother shall return the child's Australian Passport to the Registry of the Federal Circuit Court of Australia at Wollongong within 72 hours of the child's arrival in the Commonwealth of Australia

7. In the event that [X] travels outside the Commonwealth of Australia, the parent with whom [X] is travelling must ensure that he exits and re-enters Australia on his Australian Passport.

8. The Mother shall notify the Father of the decision/outcome of her partner's de-facto partner visa to Australia within 14 days of the decision.

9. Unless the parties agree otherwise, the Mother is at liberty to travel overseas with [X] in each alternate year commencing 2020, on the following conditions:

   (42.1)The overseas destination country/ies must be a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;

   (42.2)The overseas travel shall occur on no more than one occasion in that calendar year;

   (42.3)The overseas travel shall be for no longer than 21 consecutive days until [X] is aged 7 years of age and thereafter for no longer than 28 consecutive days;

   (42.4)The Mother will travel with [X] for the entire period of travel;

   (42.5)The child shall not be removed from school for more than 5 days;

   (42.6)The Mother shall:

   (42.6.1)Provide to the father not less than 10 weeks prior to the intended departure, a detailed itinerary for [X], including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation (including private residences) for the entire period of travel;

   (42.6.2)Provide to the father not less than 5 weeks prior to the intended departure, a copy of booked flights in the mother and [X]'s names (either hard copy or a written confirmation of the tickets from a travel agent or airline) for the departure and return flights;

   (42.6.3)Not less than 3 weeks prior to the intended departure, the Mother shall lodge the sum of $15,000 to the Sydney Registry of the Federal Circuit Court of Australia and provide evidence of such lodgement to the father.

   (42.6.4)Not less than 2 weeks prior to the intended departure, provide to the father an email address and telephone/Skype number at which [X] can be contacted during the trip;

   (42.7)Upon the Mother's compliance with Order 42.6 and no less than 1 week prior to the intended departure, the Wollongong Registry shall provide the Mother with [X]’s Australian Passport.

   (42.8)The Mother shall cause [X] to speak to the father at least once each week while he is overseas at times to be agreed but failing agreement at 9am Greenwich Mean Time each Sunday, with the Mother to initiate the call.

10. In the event that the Mother remains out of Australia with the child for more than 14 days, after the date the child is to return to Australia, the Father is at liberty to apply to the Court for the release of the sum of $15,000 held pursuant to Order 42.6.3, for the purposes of the Father taking all necessary steps to bring about the return of the child to Australia.

11. Unless the parties agree otherwise, the Father is at liberty to travel overseas with [X] in each alternate year commencing 2021, on the following conditions:

    (44.1)The overseas destination country/ies must be a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;

    (44.2)The overseas travel shall occur on no more than one occasion in that calendar year;

    (44.3)The overseas travel shall be for no longer than 14 consecutive days until [X] is aged 8 years of age and for no longer than 21 consecutive days until [X] is aged 10 years of age and thereafter for no longer than 28 consecutive days;

    (44.4)The Father will travel with [X] for the entire period of travel;

    (44.5)The child shall not be removed from school for more than 5 days;

    (44.6)The Father shall:

    (44.6.1)Provide to the mother not less than 10 weeks prior to the intended departure, a detailed itinerary for [X], including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation (including private residences) for the entire period of travel;

    (44.6.2)Provide to the mother not less than 5 weeks prior to the intended departure, a copy of booked flights in the father and [X]'s names (either hard copy or a written confirmation of the tickets from a travel agent or airline) for the departure and return flights;

    (44.6.3)Not less than 3 weeks prior to the intended departure, the Father shall lodge the sum of $15,000 to the Sydney Registry of the Federal Circuit Court of Australia and provide evidence of such lodgement to the Mother.

    (44.6.4)Not less than 2 weeks prior to the intended departure, provide to the Mother an email address and telephone/Skype number at which [X] can be contacted during the trip;

(44.7)Upon the Father’s compliance with Order 44.6 and no less than 1 week prior to the intended departure, the Wollongong Registry shall provide the Father with [X]’s Australian Passport.

(44.8)The Father shall cause [X] to speak to the Mother at least once each week while he is overseas at times to be agreed but failing agreement at 9am Greenwich Mean Time each Sunday, with the Father to initiate the call.

1. In the event that the Father remains out of Australia with the child for more than 14 days, after the date the child is to return to Australia, the Mother is at liberty to apply to the Court for the release of the sum of $15,000 held pursuant to Order 44.6.3, for the purposes of the Mother taking all necessary steps to bring about the return of the child to Australia.

2. Within 24 hours of [X]’s arrival home the travelling parent shall cause [X] to speak to the other parent by telephone.

Other

1. Pursuant to s 106A of the Family Law Act, in the event that any party refuses or neglects to comply with any provision of these orders, the Registrar of the Federal Circuit Court of Australia at Wollongong is appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders AND the defaulting party pay all reasonable costs incurred by the other party for the purpose of exercising this order on a party-party basis.

NOTATIONS

(A)The above Orders were made by consent on 8 July 2019, except for Orders 11(b), 31 and 34 – 46 inclusive which are Orders made by the Court today.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 7570 of 2016

MR LEEKS

Applicant

And

MS CARDWELL

Respondent

ORAL REASONS FOR JUDGMENT

1. This matter was listed before me on Monday for Hearing over three days, but yesterday I made Consent Orders in terms of a document that I marked “A”, initialled and dated that date.  Those Orders provide for [X] to live with his mother, for parental responsibility to be allocated in a particular fashion, and to spend time with his father.  There remained a number of discrete issues in respect of which the Court’s adjudication was required.  The issues in dispute were summarised in a document entitled ‘Competing Proposals’ which is reproduced in the First Schedule to these Reasons for Judgment.  I will refer to the contents of this document in a moment.  In addition, there was a dispute about travel.  The Independent Children’s Lawyer provided a minute, the Mother through her Counsel provided an amended minute, and the Father’s proposal was contained in his Application.  In effect, he was opposing any order for international travel. 

2. When one has regard to the competing proposals document, it is clear that the issues in this Court were narrow, but nonetheless very important issues.  Yesterday, I heard short evidence from the Mother, the Father and the Family Consultant, Ms C.  I will discuss the evidence given in due course.  I then heard submissions about the discrete issues and reserved my Judgment until today.  I have had overnight to consider the matter, and to revisit the evidence that has been filed by the parties, and, of course, to take into account documents that have been produced on subpoena. 

3. The competing proposals are summarised in the documents that I have just referred to, namely, the competing proposals document, and the different minutes of order.  The evidence before the Court is neatly summarised in the case outline documents that were filed on behalf of each of the parties.  In addition, I note there was a joint chronology.  Rather than itemise the various Affidavits relied on, I will simply incorporate into these my oral reasons, the lists of the documents referred to, as well as the documents tendered. 

4. In the Father’s case, he relied on the following documents:

   a)Amended Initiating Application filed 27 April 2019;

   b)Affidavit of Mr Leeks sworn on 26 April 2019 and filed on 27 April 2019;

   c)Affidavit of Ms D sworn on 26 April 2019 and filed on 27 April 2019; and

   d)Notice of Risk filed on 18 April 2017.

5. In the Mother’s case, she relied on the following documents:

   a)Amended Response filed on 17 May 2019;

   b)Affidavit of Ms Cardwell sworn on 16 May 2019 and filed on 17 May 2019;

   c)Affidavit of Mr E sworn on 17 May 2019 and filed on 17 May 2019; and

   d)Notice of Risk filed on 9 February 2017.

6. The following document were tendered as evidence during the course of the proceedings:

   a)Material produced pursuant to subpoena on Suburb F Preschool; and

   b)Certificate of completion of the ‘Keeping Kids in Mind’ course dated 23 August 2018.

7. Significantly, the evidence includes the Report of Family Consultant Ms C which is dated 28 March 2018. 

The applicable law

1. The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     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; and

   (c) 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

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

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

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

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

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

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

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

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

   (i)  either of his or her parents; or

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

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

   (f)  the capacity of:

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

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

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

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

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

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

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

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

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

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

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

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

6. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

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

7. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

8. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

Discussion

1. The parents were represented by Solicitor and Counsel, the Independent Children’s Lawyer also briefed Counsel.  I am satisfied that everything that could possibly have been said on behalf of either parent or on behalf of the Child, [X], was in fact said, and that is a credit to those representing [X], and indeed, his parents.  Ultimately, even discrete issues such as the ones before the Court, which are very important to the parents, need to be determined by reference to the evidence and by reference to the applicable law. 

2. I propose to commence these Oral Reasons by discussing the evidence that the Court heard, and then to discuss the issues and to make determinations on those issues based on the evidence.  I start with the evidence of the Family Consultant, Ms C.  Ms C’s evidence-in-chief was basically her Family Report.  She was cross-examined.  On reflection of what Ms C told the Court, and indeed, the parents, it is clear that even in the context of very discrete, specific issues that were in dispute, it was Ms C’s view that a relentless child focus needed to be maintained.  That is, we must seek to understand what the orders proposed by the Mother and Father actually mean for [X], given his age and developmental stage.  Ms C referred, for example, to the challenging times ahead for [X], as he transitions to school, and the desirability of not adding too much else to his life at around this time.  She emphasised the difficulty of making orders about [X] when he is in Year 3, at a time when he has not yet even commenced kindergarten.  Ms C alluded to the many variables that could change between now and then, relating not just to [X], but to his parents and to their respective partners, and indeed, other members of their respective households, both present and future.  Ms C’s evidence about issues such as how his father is referred to in each household is a sobering reminder that children do not experience these issues in the same way as adults do, and that for as long as he has a clear idea of who is his biological father, it matters not to him what he calls the father figure in his life, provided, Ms C emphasised, that the terminology maintains the distinction between biological father and non-biological father. 

3. Given his age and developmental stage, Ms C doubted the importance to [X] of the concept of makeup time if he does in fact travel overseas.  She suggested, for example, that what might be more important to [X] is the continuation, as much as possible, of a pre-existing pattern of seeing his parents.  Ms C raised concerns about [X]’s present capacity to tolerate extended periods away from either parent.  Ms C seemed to appreciate the envious position that [X] is in, at having a broad cultural and linguistic background and the preference, if possible, of maintaining the connection to the cultural backgrounds of both his parents, and if possible, his extended families.  The Court found Ms C’s evidence extremely useful.  The Court accepts her evidence.  It is both expert and independent.  Ms C’s evidence informs the orders that the Court will make. 

4. I turn now to consider the Father’s evidence.  The Father loves his son very much.  Each of his proposals was very much premised on genuinely held concerns about [X]’s welfare.  But genuinely held concerns do not always have an objective basis, and the Court’s role is to assess concerns objectively.  The Father’s strident views about his concerns were palpable throughout his evidence.  He presented as the concerned father who saw risk issues in black and white, rather than in the endless shades of grey that they really are.  Whilst the Father at all times meant well, he at times gave the impression of being more focused on his needs rather than that of his son.  For example, I think he failed to understand a few things about his son.  For example, the benefits to [X] of being able to travel internationally with both his parents, the potential impact on [X] of extended periods of time in a car, the importance to [X] of a routine, including for example getting to pre-school at a consistent time, and lastly, for example, what it would be like for [X] to be corrected, perhaps frequently so, about what he calls the Mother’s partner, or indeed, conceivably, the Father’s partner.  In all of this, there was an unfortunate insensitivity to [X]’s needs.  It was an adult perspective he provided, but not a child’s one. 

1. I was concerned about the absence of any detail in the Father’s case about his new job in Suburb J.  The impression formed is that this is potentially relevant in terms of his own proposal for extra time, but as with so many issues relating to children, the detail matters, and the detail was unfortunately absent. 

2. Having regard to all the evidence, I find that the Father’s subjective concerns about two major issues in this case have no objective basis.  The first of these concerns was that the Mother was seeking to alienate, and I note that this is his word, but in effect that she was seeking to undermine [X]’s relationship with him.  With respect, it is palpably inconsistent with the Mother’s case.  The Father seemed unfortunately willing to interpret most things that the Mother said and did through a negative lens, in which all the alternative hypotheses for the Mother’s actions that were available were selectively ignored. 

3. The second issue in respect of which the Father had a subjective concern, in respect of which there is no objective basis, was in relation to his belief that the Mother would travel overseas with [X] and not return, despite the legal and the practical assurances that were offered in the proposals of both the Mother and the Independent Children’s Lawyer.  Both of these concerns are built upon a foundation of mistrust of the Mother, no doubt exacerbated by the litigation.  The lack of trust is mutual.  The parents would do well to work on this lack of trust for their son’s sake, perhaps time will assist to heal. 

4. I turn now to the Mother’s evidence.  It is clear that the Mother does not trust the Father, and struggles to communicate effectively with him.  The issue of communication is, the Court observes, very much a mutual one.  But she seemed to be able to maintain a child focus more effectively than the Father.  She showed insight that the Father did not.  Interestingly, it is not as if the Father was not given opportunities to show insight in cross-examination; he was.  But, for example, the Mother showed insight in a number of things.  She sought no restriction on the Father travelling overseas, other than appropriate time limitations, thus recognising the benefit to [X] of the Father’s culture, and what his extended family could offer him.  She could see the benefits of extended travel with the Father, in terms of quality extended time between the Father and his son.  The Mother, for example, gave evidence that her partner was called by [X] a name that differentiated between the biological father and an alternative.  In each of these things, she showed an insight into [X]’s needs that the Father did not. 

5. Importantly, the Mother made a number of significant concessions in cross-examination that indicate to the Court not just her genuineness, but her reliability.  For example, she gave evidence that she had no intention to obtain a Country H passport for [X], even though this was a possibility given his dual citizenship.  She was completely candid about her lack of friends and family in Australia.  She was clear that even if her partner’s application for permanent residence was not granted, rather than returning with him to Country H, she would simply wait for him to come back.  She spoke of having future children here in Australia.  She was transparent about her property interest in Country H.  She seemed genuine when she acknowledged what it must be like for the Father to believe that [X] was not identifying with him as such at home. 

6. Overall, the Court was impressed with the Mother’s evidence, despite being challenged, at times rigorously, about her evidence and for example, the Father’s assertions about what she has said to create his belief that she is a flight risk.  She was at all times calm, clear, and consistent.  There is no basis for the Court not to accept her evidence unequivocally.

7. I turn now to consider the issues before the Court. The first issue is whether the Court should make order 1 proposed by the Father in the competing proposals document, or order 4 proposed by the Mother. The Court will make order 4. The effect of this is that [X] will spend time with his father on alternate weeks, from 3:00pm Thursday to 9:00am Friday, thus taking his time to 4 nights out of 14. It is basically common ground between the parents. The Court declines to make order 1 proposed by the Father, because it asks the Court to prognosticate about the circumstances of this family well into the future. It is interesting to observe that the Court does not even know where the father will be living in the next few months, let alone in the next few years. The Court does not know the impact of the Father’s employment in Suburb J on the current and proposed parenting arrangements, let alone where anyone will be living in a few years. The Family Consultant warned against these types of predictions. True it is that in an ideal world the Court should aspire to minimise the prospects of further litigation between the parents, but that consideration under section 60CC(3) does not become license to engage in prognostic exercises that could be detrimental to the wellbeing of the Child.

8. The second issue is whether the Court should make order 2 proposed by the Father or order 5 proposed by the Mother.  The Court will make order 5.  This means that both parents are restrained from causing or permitting [X] to call anyone ‘mum’, ‘mummy’, ‘dad’ or ‘daddy’ who is not a parent.  The Court declines to make order 2 proposed by the Father, which would extend this order to foreign language equivalents.  [X]’s multicultural background is a benefit, not a burden.  The Father’s order seeks to encroach into a practice reflected in the Mother’s evidence that simply does not have the effect – or even the risk – that the Father put forward.  That is, that somehow [X] becomes confused about who his biological father is.  It is a subjective belief without an objective basis, albeit genuinely held.  Moreover, to now make the order would probably confuse [X] more and serve to create a problem that does not exist, that is, confusion over who his real dad is. 

9. The next issue is whether the Court should make order 3 proposed by the Father, the effect of which would be to implement a broad ranging makeup time provision, whether the spends time with is missed because of travel, illness or other reason.  I note that in the minutes of order proposed for travel by both the Mother and the Independent Children’s Lawyer, there are other versions of makeup time provisions.  The Court declines to make the order proposed by the Father, and indeed, declines to make the orders for makeup time proposed by both the Independent Children’s Lawyer and the Mother herself.  Firstly, the Family Consultant expressed concerns about this.  In any event, the strong impression from the evidence is that both parents would be incapable of implementing such an order anyway, given the struggles that they have in trusting each other and communicating with each other.  The orders proposed are, in any event, and I say this respectfully, orders that could not be implemented or enforced in their present terms.  Quite frankly, making the order proposed creates greater problems than the one it seeks to resolve.  The most likely application of a makeup time provision is in the context of overseas travel, should the Court allow it.  Indeed, the Court intends to allow that travel.  But, you see, the travel applies both ways, to both the Mother and the Father, so there is an equalisation of potential impacts.  On balance, making this order would create more problems than it would solve, and hence the Court declines to make it.

10. The Court then has to decide whether it should make the travel order proposed by the Mother or Independent Children’s Lawyer, or prevent travel as the Father proposes, or, indeed, whether the Court should make any other order that it considers appropriate in relation to travel.  The Court declines to make the order proposed by the Father.  That order is not in [X]’s best interests.  It is a prohibition against a risk that can be managed in other ways.  The Court was, quite properly, referred to existing authorities on overseas travel, including, for example, the decision in Line & Line (1997) FLC 92-729. This case, together with many others, seeks to identify a number of factors by which the risk inherent in allowing international travel can be assessed. But the question for the Court is whether such an order is in the best interests of [X]. It is a holistic exercise not a compartmentalised one. It is an exercise undertaken having regard to all the evidence, especially the evidence of the parents. In this regard, the Court prefers the Mother’s evidence to the Father’s evidence about the threats allegedly made to abscond with the Child. At a time when the relationship was, on any objective basis, on its last legs so to speak, the Father did allow the Mother to travel with [X], and they returned. The Mother’s evidence about international travel was clear and credible. The evidence of the Father’s concerns are noted and assessed, but are found not to have any objective basis. There are so many protections in the orders proposed by the Mother and Independent Children’s Lawyer that the Court rates the risk of absconding as very low indeed.

11. The focus then turns to the form of the order.  [X]’s multicultural background must be acknowledged.  He is a trilingual child.  He has extended family in Country G and Country H.  The orders are protective of that.  For example, the orders provide for passports to be held by the Court.  That [X] is only to use his Australian passport in travelling, that notice of travel must be given, that the details of the itinerary and travel must be given, the travel must be limited to Hague convention countries, and there is a provision for a surety or a security deposit.  The Court considers these to be adequately protective in the circumstances, particularly where the Court accepts, as it does, the Mother’s evidence over that of the Father on this issue.  The ambit of the differences between the Independent Children’s Lawyer’s minute and the Mother’s minute are relatively narrow.  The Court prefers the Independent Children’s Lawyer’s minute except as follows.  Firstly, once a passport is obtained, it must be held by the Federal Circuit Court of Australia, not by either the Mother or Father, except when required for travel.  Hence, orders 5 and 6 will need to be amended. I decline to make orders 9.5 and 11.5 of the respective minutes for the reasons stated above, and these are the makeup time provisions.  The surety provision, or the security deposit provision, should be $15,000, not $10,000.  The Mother seems to have accepted this in cross-examination.  Lastly, the differences in the orders as they relate to the Mother and Father’s travel.  That is, in terms of how long they can travel with [X] are the Court finds justified by reference to the same developmental considerations that inform the other orders, including the consent orders.  Accordingly, the Court will make Orders to reflect the matters that it has found in these Reasons for Judgment.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 23 August 2019

Schedule One

Competing Proposals

COMPETING PROPOSALS ABOUT ORDER 11.2

ON APPLICATION OF THE FATHER:

1. If the father resides more than 30km from [X]’s school:

   1.1Until the child completes Year 2 at school, from 3pm on Thursday to 9 am on Friday in the intervening week;

   1.2Once [X] starts Year 3 at school, from 3pm on Wednesday to 9am on Friday in the intervening week. 

2. That parties be restrained from causing or permitting [X] from calling any person other than a parent “mum”, “mummy”, “dad”, “daddy” or any foreign language equivalent, including “…”.

3. That the parties hereby agree and are ordered that any time that the child has not spent with the other parent as a result of travel, illness or for any other reason is to be made up to the extent of whatever time that parent would have had with the child had the child not travelled, fallen ill or for any other reason.

ON APPLICATION OF THE MOTHER:

1. If the father resides more than 30km from [X]’s school, from 3pm on Thursday to 9 am on Friday in the intervening week. 

2. That parties be restrained from causing or permitting [X] from calling any person other than a parent “mum”, “mummy”, “dad”, “daddy”.