Lyon and Kelsey
[2015] FCCA 1246
•2 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LYON & KELSEY | [2015] FCCA 1246 |
| Catchwords: FAMILY LAW – Parenting – child lives in Canberra with mother – spend time arrangements with father – whether child spends overnight with father – whether father requires supervision – whether changeover service is required –parenting courses – costs sought by Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975, ss.4, 10G, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65DA, 65DAA, 117 Federal Circuit Court Rules 2001, reg.21.02 |
| In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 Lyris & Hatziantoniou[1998] FamCA 1311; (1998) 24 Fam LR 391; (1998) FLC 92-840 |
| Applicant: | MR LYON |
| Respondent: | MS KELSEY |
| File Number: | SYC 4379 of 2012 |
| Judgment of: | Judge Monahan |
| Hearing date: | 2 and 3 February 2015 |
| Date of Last Submission: | 3 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr McDonell of McDonell Milne Toltz |
| Counsel for the Respondent: | Mr Karp |
| Solicitors for the Respondent: | Robert Balzola and Associates |
| Counsel for the Independent Children's Lawyer: | Ms Karagiannis |
| Solicitors for the Independent Children's Lawyer: | NSW Legal Aid |
ORDERS
All previous parenting orders in relation to the child of the marriage X born (omitted) 2011 ("X") be discharged.
The parties have equal shared parental responsibility for X.
X live with the mother.
X spend time with the father as agreed or, failing agreement, and unless otherwise stated, in a four-week cycle as follows:
Commencing from the date of these Orders until 26 July 2015:
(a)In week 1, from 10:00am until 5:00pm on Saturday;
(b)In week 2, from 10:00am to 5:00pm on Saturday and from 9:00am until 12 noon on Sunday;
(c)In week 4, from 10:00am until 5:00pm on Saturday and from 9:00am until 11:00am on Sunday;
Commencing on 27 July 2015 until 31 December 2015:
(d)In week 1, from 9:00am until 5:00pm on Saturday;
(e)In week 2, from 10:00am on Saturday until 12 noon on Sunday;
(f)In week 4, from 9:00am on Saturday until 11:00am on Sunday;
Commencing on 1 January 2016 until 31 January 2016:
(g)In week 2, from 10:00am on Saturday, being 9 January 2016, until 12 noon on the following Tuesday;
(h)In week 4, from 10:00am on Saturday, being 23 January 2016, until 12 noon on the following Tuesday;
Commencing on 1 February 2016 until 31 December 2018:
During School Terms:
(i)In week 2, commencing from the second weekend of Term, from 10:00am on Saturday until 12 noon on Sunday;
(j)In week 4, from 9:00am on Saturday until 11:00am on Sunday;
During the School Term Holidays (excluding Term 4) in 2016:
(k)In the event that paragraph 4 (i) and (j) falls within a school holiday period, then that time occur from 10:00am Saturday and conclude at 12 noon on the following Tuesday;
During the Term 4 School Holidays in 2016 and in each of the Term 1, 2 and 3 School Holidays in 2017:
(l)In the event that paragraph 4 (i) and (j) falls within a school holiday period then that time occur from 10:00am Saturday and conclude at 12 noon on the following Thursday;
Commencing on 1 January 2018 until the commencement of the 2018 School Year:
(m)In the event that paragraph 4 (i) and (j) falls within a school holiday period then that time occur from 12 noon Saturday and conclude at 12 noon on the following Saturday;
From the commencement of the 2018 School Year and thereafter:
During the School Term:
(n)Commencing on the first weekend of each term, from 9:00am on Saturday until 11:00am on Sunday (or Monday in the event of a long weekend or a pupil free day) and every four weeks thereafter;
(o)Commencing on the third weekend of each term, and subject to paragraph 6 herein, from 10:00am on Saturday until 12 noon on Sunday (or Monday in the event of a long weekend or a pupil free day) and every four weeks thereafter;
During the School Term Holidays:
(p)For the first half of the Term 1 and Term 3 School Term Holidays, commencing at 12 noon on the day after the conclusion of school and concluding at 12 noon on the mid-point day;
(q)For the whole Term 2 School Term Holidays commencing at 12 noon on the day after the conclusion of school and concluding at 12 noon on the day before the commencement of the next school term;
During the Term 4 School Holidays:
(r)For the Term 4 School Holidays in 2018, on a week-about basis commencing at 12 noon on the first Saturday of the school holidays and concluding at 12 noon on the following Saturday;
(s)For the Term 4 School Holidays in 2019 and in each Term 4 School Holidays thereafter, in odd numbered years for the first half commencing on the first Saturday and in even numbered years for the second half commencing on the mid-point day, with changeovers at 12 noon on the relevant days.
Notwithstanding anything else in these Orders:
(a)In the event that these orders provide for X to spend time with the father on the weekend of Mother's Day, the father's time will take place on the following weekend to enable X to spend the Mother's Day weekend with the mother; and
(b)In the event that Father's Day falls on a weekend when X would be with her mother, X spend time with the father on the weekend of Father's Day in substitution for the following weekend when X would otherwise be spending time with the father;
In relation to paragraph 4(o) herein, in the event the father elects not to spend time with X in Canberra, he is to provide the mother with at least seven (7) days written notice.
Changeover occur as agreed or, failing agreement as follows:
(a)For the purposes of paragraphs 4 (a), (c), (d), (f), (j) and (n), changeovers occur in Sydney at such location, or locations, as nominated by the mother;
(b)For the purposes of paragraphs 4 (b), (e), (i) and (o), changeovers occur in Canberra at such location, or locations, as nominated by the father; and
(c)For the purposes of paragraphs 4 (g), (h), (k), (l), (m), (p), (q), (r) and (s), changeovers at the commencement of such time occur in Sydney at a location as nominated by the mother AND changeovers at the conclusion of such time occur in Canberra at a location as nominated by the father.
Unless otherwise agreed, the father be restrained from allowing non-family members (except for his partner and her children) to stay in his residence overnight when X is staying overnight with him unless a member of his immediate family (or his partner) also stays in the residence overnight.
From 7 August 2015, each party have and facilitate reasonable telephone and/or internet based communication with X when she is not in their respective care on at least two occasions each week as agreed, or failing agreement, on Wednesday and Saturday evenings, and failing agreement as to times between the hours of 6:30pm and 7:00pm AND each party do everything necessary to facilitate that telephone contact.
Each party advise the other as soon as is practicable, in the event of any medical or other emergency relating to X.
Each party keep the other advised of their residential addresses and contact telephone number and email address.
The parties use a communication book for the purposes of exchanging information in relation to X and record any issue relevant to X’s welfare in the communication book to be exchanged between the parties each time X moves from the care of one party to the other, as well as at other times should the need arise, with such communication book to be initially purchased by the mother and replaced by the party with whom X is living or spending time with at the time when the existing communication book is filled.
The parties be restrained from making postings, including posting images, in relation to and of X on social networking websites with the exception of postings which are restricted to friends and family of the parties and X.
Within seven days of the date of these Orders, the mother authorise the (omitted) Child Care Centre, and any subsequent or alternative day care provider or school that X may in the future attend, to:
(a)Provide to the father all information requested by him;
(b)Authorise the inclusion of the father's name, address and contact details on X's records;
(c)Authorise the inclusion of the father's email address on any parent mail-out list; and
(d)Authorise the release to the father of any circulars or any other notifications which are sent to parents in the normal course.
The father be permitted to attend at the (omitted) Child Care Centre, and at any subsequent or alternate day care provider or school that X may attend from time to time, at times at which parents in the normal course, are invited to attend.
Further to paragraph 1 of the Minute attached to the Orders made on 17 December 2014 and paragraph 3 of the Orders made on 3 February 2015, the mother do all acts and things necessary to register and engage with Marymead Children's Service in Canberra and attend a parenting course as may be recommended by that service.
Within 28 days of the date of these Orders the father contact St John Ambulance Australia to enrol in the “Caring for Kids” First Aid Course at the earliest possible date and thereafter, complete the said course and following completion, provide the mother with a copy of the Statement of Attendance as evidence of completion within 7 days of receipt.
The parties participate in family dispute resolution with a person authorised under s.10G of the Family Law Act in the event of a dispute about the interpretation, implementation or enforcement of these orders or before any application is made to a court for a variation of these orders.
The father pay to Legal Aid NSW the sum of $4,145.20 by way of instalments of $172.72 per month payable over 24 months from the date of these Orders provided he makes the first instalment payment to Legal Aid NSW by no later than 4:00pm on 31 July 2015 on account of the costs of the Independent Children's Lawyer.
The appointment of the Independent Children's Lawyer be discharged.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)All references to School Terms and School Holidays herein relate to gazetted periods in the Australian Capital Territory.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lyon & Kelsey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC4379 of 2012
| MR LYON |
Applicant
And
| MS KELSEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant, MR LYON (“the father”) and the Respondent, MS KELSEY (“the mother”).
The relevant child of the marriage is X born (omitted) 2011 (“X” or “the child”).
At the final hearing on 2 and 3 February 2015, both parties were legally represented; the father by his solicitor Mr McDonell and the mother by counsel, Mr Karp. The Independent Children’s Lawyer (“ICL”), Ms Smith of Legal Aid NSW, was represented by Ms Karagiannis of counsel.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”) or the Federal Circuit Court Rules 2001 (“the FCC Rules”).
Background
Relationship history
Both parties and the ICL provided the Court with chronologies of relevant events in their case outlines.
The mother was born on (omitted) 1971 and is 44 years of age. The father was born on (omitted) 1972 and is 43 years of age.
The parties married on (omitted) 2011 and separated some four months later on 22 June 2011. The parties were divorced on 6 September 2012. As stated, the child of their marriage, X was born on (omitted) 2011 and at the time of the final hearing was aged 3 years 6 months.
Despite their marriage it appears that the parties never cohabited. There is evidence to suggest the father was informed of his daughter’s birth by email several days later.
The father commenced a new relationship in (omitted) 2014 with Ms R but they do not live together. The father lives in a three bedroom unit in (omitted) shared with a Mr M who works as a (occupation omitted). The father works full-time as a (occupation omitted).
The mother works full time as an (occupation omitted) in the (employer omitted). The mother has not re-partnered and resides with X in a one bedroom unit in Canberra. X sleeps in a cot in the mother’s room however the mother indicated she intends on buying X a bed and set up a bedroom in the corner of the lounge room.[1]
[1] Transcript, 3 February 2015, p. 95-96.
Procedural history
These proceedings were commenced by the father in the Family Court of Australia (“FCoA”) on 3 August 2012 when X was just 12 months old. The mother filed her Response on 1 September 2012.
On 3 September 2012 the father filed an Amended Initiating Application and the matter was referred to the judicial duty list before Justice Rees. Her Honour made orders for X to spend time with the father on Sundays at (omitted) Play Centre supervised by his mother and/or his aunt for 3 months, and then after 6 months the father no longer needed to be accompanied.
On 17 September 2012, the matter came before Registrar Chayna for a Case Assessment Conference and was listed for a Selective Settlement Meeting. This Meeting occurred with Ms K on 16 October 2012 at which time the parties reached agreement for X to live with the mother (who would move to Canberra in January 2013), and after March 2013 X was to spend time with her father on alternate weekends from 10:00am to 5:00pm on Saturday and from 9:00am to 12 noon on Sunday. It was also noted that X would start to spend overnight time with the father when she turned 3 years of age. There was also an expectation that X will spend at least two nights on alternate weekends with her father by the time she starts school plus time in school holidays.
At a procedural hearing before Registrar Chayna in Chambers on 23 November 2012, the matter was referred to the Federal Magistrates Court (as this Court was then named).
The matter first came before me in my duty list on 29 January 2013. On that date, an ICL was appointed and the following parenting orders were made:
“AND THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
3.The parties have equal shared parental responsibility for the child.
4.The child live with the Respondent mother (“the mother”).
5.The mother be permitted to relocate with the child to Canberra on and from 1 February 2013.
6.Until the mother relocates with the child to Canberra, the Orders made by Justice Rees on 3 September 2012 continue in full force and effect.
7.Following the mother’s relocation with the child to Canberra, in the event that the Applicant father (“the father”) continues to live in Sydney, the child spend time with the child [sic] until the child’s 3rd birthday as follows:
a. Commencing from the first weekend after the mother relocates to Canberra, the father spend supervised time with the child in Canberra on the weekends of 2-3 February 2013, 16-17 February 2013 at such times as may be agreed or, failing agreement, from 10:00am until 5:00pm on Saturday and again from 9:00am on the Sunday until 12:00 noon, with such time to occur in Canberra;
b. On the weekend of 9-10 February 2013, 9-10 March 2013 and 6 April 2013 in Sydney for a minimum period of three (3) hours on either the Saturday or Sunday or, failing agreement, from 9:00am until 12:00 noon on Sunday with the mother to be with the child at the maternal grandmother’s residence in (omitted), NSW, at the commencement of the time and the father to return the child to the same address at the conclusion of such time; and
c. The father spend unsupervised time with the child in Canberra as agreed, or failing agreement, on the weekends of 2-3 March 2013, 16-17 March 2013 and 30-31 March 2013 at such times as may be agreed or, failing agreement, from 10:00am until 5:00pm on Saturday and again from 9:00am on the Sunday until 12:00 noon, with such time to occur in Canberra.
8.For the purposes of the supervised time that the child spends with the father pursuant to paragraph 7(a) herein, such time be supervised by the paternal grandmother or paternal aunt or such adult family member person as the father may nominate and/or the parties agree upon.
9.Subject to paragraph 7(b) herein, changeovers occur at such place as may be agreed or, failing agreement, outside the mother’s apartment building in Canberra.
10.The mother be restrained from relocating with the child outside of the Canberra area.
11.By not later than 4:00pm on 12 February 2013 the parties each provide details to the other and to the Independent Children’s Lawyer (once appointed) of all medical practitioners and other health professionals consulted by each of them and by the child from 7 August 2011 until the date of these Orders.
AND THE COURT NOTES THAT:
…
C.The mother intends to relocate to Canberra within 24 hours of the date of these Orders and to return to work from maternity leave in July 2013.
D.Except for paragraph 7(b) herein, which the mother opposed and the requirement for supervision of the time the child spends with the father on 16-17 February 2013, which the father opposed, paragraphs 3-11 herein were made with the consent of the parties.”
Further interim consent orders were made at the mention on 5 April 2013 which provided as follows:
“BY CONSENT PENDING FURTHER ORDER OF THE COURT:
1.That further to the Orders of 3rd September, 2012 the father spend time with the child of the relationship namely X born (omitted) 2011 (hereinafter referred to as “X”) in each four (4) week period as follows:-
(a) In week 1 and each fourth weekend thereafter commencing the weekend of 6th April, 2013 from 10 am to 5 pm Saturday with such time to occur in Sydney.
(b) In week 2 and each fourth weekend thereafter commencing the weekend of 13th April, 2013 from 10 am to 5 pm Saturday and 9 am to 12 noon Sunday with such time to occur in Canberra.
(c) In week 3 and each fourth weekend thereafter commencing the weekend of 20th April, 2013 X shall be with the mother.
(d) In week 4 and each fourth weekend thereafter commencing the weekend of 27th April, 2013 from 10 am to 5 pm Saturday and from 9 am to 12 noon Sunday with such time to occur in Canberra.
2.For the weekends of 6th April, 4th May, 1st June and 29th June, 2103 in addition to the time referred to in Order 1(a) the father shall spend time with X on the Sunday from 9 am to 4 pm in Sydney.
3.For the weekend of the 13th April, 2103 in addition to the time referred to in Order 1(b) the time the father spends with X on the Sunday of 14th April, 2013 shall be from 10 am to 5 pm in Canberra.
NOTED:
A.The parties note that Orders 7 and 8 of the Orders of 29th January, 2013 have now expired and that the remainder of the Orders of 29th January, 2013 so far as they are applicable shall apply.”
The matter returned for mention on 24 October 2013 and further consent notations and orders were reached between the parties and the ICL. The mother also apologised for her absence at the August mention date and a family report was requested to be released by the end of March 2014. The relevant consent notations and orders state as follows:
“NOTATIONS:-
A.The Husband has filed an Application for Contravention on 18th June 2013.
B.The Application alleges that the Mother has breached parenting Orders made in this Court by consent on 5th April 2013.
C.The alleged breaches occurred:-
(a) In Sydney on 4th-5th May 2013;
(b) In Canberra on 11th-12th May 2013.
(c) In Sydney on 1st-2nd June 2013.
D.On each of those occasions the Husband alleges the Wife failed to make the parties’ child X available to spend time with him as required by the Orders of 5th April 2013.
E.The Wife alleges just cause and excuse for the alleged breaches and asserts that X suffers from travel sickness.
F.The Husband claims that the child has not been brought to Sydney since the Orders of 5th April 2013 to spend time with him and that she has missed six occasions when she should have been in Sydney to spend time with him.
ORDERS:-
1.The Wife shall make up the six missed occasions by bringing X to Sydney as follows:-
(a) On the weekend of Saturday 2nd November (as if it were a week in the cycle in 1(a) of Orders of 5/4/13).
(b) During the upcoming December-January holiday period if the Mother is in Sydney by making X available to the Father again from 10am to 5pm on as many days as possible, the Mother is to give the Father at least 14 days notice in writing of those days up to a maximum of 5 days.
(c) If the Father has not had the all or additional five days pursuant to Order (b) above, then the Mother is to bring X to Sydney to spend time with the Father for up to 5 occasions being on the weekends which would otherwise have been week 3 in the cycle set out in Order 1(c) of 5th April 2013 in each alternate month commencing in February 2014 and each alternate month thereafter until the 5 days are made up and X is to be with her Father on the Saturday as if it were week 1 of the cycle.
(d) The Mother will continue to make X available to the Father in Sydney in accordance with week 1 of the cycle and in Canberra in accordance with weeks 2 and 4 of the cycle.
2.The Husband’s Application for contravention is to be adjourned for a period of six months and will be withdrawn and dismissed when the Wife has complied with Orders 1(a), (b) and (c) herein.
3.If the Wife alleges at any time that X is suffering from an illness which prevents X spending time with her Father then she is to:-
(a) Obtain appropriate medical treatment for X.
(b) Advise the Father in writing of the child’s condition, treatment and prognosis.
(c) Within 24 hours email to the Father a medical certificate confirming not only that X has a “medical condition” but the nature of the illness, its severity, the anticipated period of any incapacity or ability to attend upon and spend time with the Father and any other information that the treating doctor considers appropriate.
4.The Wife is to pay to the Husband the sum of $3,500 towards his legal costs of these proceedings but it is noted that if the contravention does proceed the Wife is to be credited with this payment in any costs issue. If the contravention does not proceed then the payment of $3,500 is in satisfaction of the Wife’s obligation for any cost Order in these contravention proceedings.”
The Family Report of Ms M was released, somewhat earlier than expected, on 18 December 2013.
At the mention on 8 May 2014 the matter was listed for a two day final hearing commencing on 2 February 2015 and an updated family report was requested. That updated report was duly released on 10 December 2014 and the father withdrew his Contravention Application with no order as to costs.
On 17 December 2014, the matter returned for mention to ascertain whether the final hearing dates were still required and appropriate. Having been satisfied they were, I made the usual trial directions as well as the following further consent orders:
“1.That within twenty-one (21) days of the date of these orders the mother register and thereafter complete a parenting after separation course.
2.That within seven (7) days of completion of the course referred to in Order 2 [sic] the mother provide to the Independent Children’s Lawyer (“ICL”) a certificate of completion.
3.That within twenty-one (21) days of the date of these Orders the father provide to the ICL and the solicitor for the mother a copy of his certificate of completion of the parenting after separation course and circle of security course attended by him.
4.That within seven (7) days of the date of these Orders the mother authorise the (omitted) Child Care Centre, and any subsequent or alternative day care provider, that the child of the relationship X born (omitted) 2011 (hereinafter referred to as “the child”) may attend from time to time, to:-
(a) Provide to the father all information requested by him.
(b) Authorise the inclusion of the father’s name address and contact details on the child’s records.
(c) Authorise the inclusion of the father’s email address on any parent mail out list
(d) Authorise the release to the father of any circulars or any other notifications which are sent to parents in the normal course.
5.That the father is permitted to attend at the (omitted) Child Care Centre, and any subsequent or alternative day care provider that the child may attend from time to time, at times at which parents in the normal course are invited to attend.”
As stated, the final hearing commenced on 2 February 2015 and concluded the next day. At the conclusion of the final hearing, the parties agreed to the following interim consent orders:
“…
6.That the parties shall:
a. use a communication book for the purposes of exchanging information in relation to X born (omitted) 2011 (“X”); and
b. record any issue relevant to X’s welfare in the communication book and it shall travel between the parties homes with X.
7.Within 48 hours, each party shall contact the Marymead Children’s Service and shall complete all documentation and intake requirements for the purposes of contact changeover and they shall utilise that service for the initial changeover of X to the Father’s care in the morning otherwise X will be returned to the Mother at a mutually agreed location.”
Proposals
The parties and the ICL each provided the Court with a Minute of Proposed Orders that they revised following the conclusion of evidence. The ICL’s Minute provided the focus for the final submissions.
Father’s proposal
The father seeks an outcome whereby both parties have equal shared parental responsibility for X and for the child to spend defined periods with him (as detailed further below) and for the child to telephone communication with him at least once a week (including on X’s birthday). He also seeks an Order that, should he relocate to within an hour’s travel of X’s residence, he have leave to make an application to vary the Orders.
The precise ‘spend time’ orders sought by the father are as follows:
“2.That from 1 June 2015 in week 2 and week 4 of each four week cycle as provided for in Order 1(b) and 1(d) of the Orders of 5 April 2013 shall be varied to provide that time commence from 10.00am Saturday and conclude on 12 noon on Sunday.
3.That if it is thought that it would be more comfortable for X at only week 2 of the cycle being that covered by 1(b) of the Orders of 5 April 2013 be overnight for the first two months and that week 4 of the cycle being that covered by 1(d) of the Orders of 5 April 2013 remain as all day Saturday and Sunday morning but that after the first two months all the time spent in Canberra be overnight time for X with me.
4.That Order 1(a) of the Orders of 5 April 2013 continue.
5.That from 1 February 2016 the Orders of 5 April 2013 are discharged.
6.That from 1 February 2016 the Father shall spend time with X in each four week period as follows:-
(a)In week 2 and each fourth weekend thereafter from 10.00am Saturday to 12 noon Sunday with such time to occur in Canberra.
(b)In week 4 and each fourth weekend thereafter from 10.00am Saturday to 12 noon Sunday with such time to occur in Sydney.
7.That the time which the Father spends with X pursuant to Order 6(b) during January 2016 be extended to conclude at 12 noon on the following Tuesday.
8.That during the school term holidays in 2016 the weekend which the Father will spend time with X pursuant to Order 6 which occurs on the first or second weekend of the school holidays be extended to conclude at 12 noon on the following Tuesday with such time permitted to occur in Sydney.
9.That the time which the Father spend with X pursuant to Order 6(b) during January 2017 be extended to conclude at 12 noon on the following Thursday.
10.That during school term holidays in 2017 the weekend which the Father will spend time with X pursuant to Order 6 which occurs on the first or second weekend of the school holidays be extended to conclude at 12 noon on the following Thursday with such time permitted to occur in Sydney.
11.That the time which the Father spends with X pursuant to Order 6(b) during January 2018 be extended to conclude at 12 noon on the following Saturday.
12.That from the commencement of school term in 2018 during school term holidays and Christmas school holidays Order 6 shall be suspended and the Father shall spend time with X during school term and Christmas school holidays as follows:-
(a)For one half of the school term holidays as agreed between the parties but failing agreement the first half in even numbered years and the second half in odd numbered years with the first day of the school holidays being the day after X finishes school and the last day shall be the day before X returns to school.
(b)For one half of the Christmas school vacation as agreed between the parties but failing agreement the first half in even numbered years and the second half in odd numbered years.
13.In 2015 Mother's Day falls on weekend 1(b) in the cycle established pursuant to Orders of 5 April 2013. An Order should provide that instead of the Mother's Day weekend in 2015 X the following weekend which is the weekend of Saturday, 16 May and Sunday 17 May in Canberra.
14.That the Orders provide that if the Mother's Day from 2016 onward falls on a weekend when X would be with her Father, then she not spend time with him on that weekend but that she spend time with him on the following weekend in lieu and that the Orders be amended to provide that if Father's Day occurs on a weekend when X would not be with her Father that she spend the Father's Day weekend with him in substitution for the following weekend when X would, pursuant to the Orders, be with her Mother.
15.For Christmas 2015 pursuant to the proposed Orders X would be with me on Saturday, 26 December 2015. I seek an Order X spend time with me from 3.00pm on Christmas Day until 6.00pm on 27 December 2015 (this is herein enclosed) in Sydney. This assumes that Ms Kelsey will be in Sydney with her family Christmas Day.
16.For Christmas in December 2016 if X is not with her Father pursuant to the Orders that she be with him from 10.00am on 24 December which is a Saturday until 3.00pm on Christmas Day.
17.That irrespective of any other Order in December 2017 X spend time with the Applicant Father from 3.00pm on Christmas Day until 6.00pm on 26 December.
18.That from the commencement of Order 23.12 (b) that irrespective of with whom X is spending the first half of the school holidays that she spend a period from Christmas afternoon at 3.30 pm until 6.00 pm on 26 December with the other parent.
19.That the alternate weekend pattern X to spend time with her Father resume on the first weekend after the conclusion of the Christmas school holidays she has spent the first half of those holidays with the Father. That on the second weekend after the conclusion of the Christmas school holidays if she has been with her Father for the second half of the school holidays.
20.For mid-year school holidays the alternate weekend contact will resume so that X spends the weekend with the Father on the first weekend after the conclusion of the holidays she with Father for the first weekend of the proceeding holidays and on the second weekend after the conclusion of the holiday if she was with him for the second half of those school holidays.
21.In the event that in any year Easter does not fall within a school holiday period for a State or Territory X is attending school then the parties are to each have one half of the school holiday as agreed and in default of agreement in accordance with the formula provided in Order 23.12 (a).
…
25.In the event that the Father is able to collect X Friday evening in Canberra prior to the time that she spends with me on Saturday that there be Orders that I be permitted to do so provided that I have given at least 72 hours' notice by text or email to the Respondent Mother.”
Mother’s proposal
Although the mother had sought to have sole parental responsibility for X, by the conclusion of the final hearing, she indicated her consent to an order for equal shared parental responsibility. In addition, the mother agreed to inform the father of events or functions in which X is involved (with the father permitted to attend), and for both parties to be restrained from posting images or videos or writing about X on Facebook or other social media sites.
Apart from seeking an Order that X live with her (which was not in dispute), the balance of the precise parenting orders sought by the mother are as follows:
“4.That the father have contact, supervised by a member of his family, on a fortnightly basis as follows;
a)On every second weekend, in Canberra from 10.00am on Saturday until 5.00pm on Saturday, and from 9.00am until midday on Sunday.
b)On every fourth weekend in Sydney, from 9.00am to 4.00pm.
5.That the father have contact with X on public holidays and other times, at times to be agreed between the parents.”
ICL’s proposal
At the commencement of the final hearing the ICL provided the Court with a preliminary view and proposal. As stated, following the conclusion of evidence, the ICL provided a comprehensive Minute of Final Orders that is referred to below. As the parties were able to consent to a number of the following proposed orders, those orders which are opposed have been marked in bold where appropriate.
“1.That the parties have equal shared parental responsibility for the child of the marriage X born (omitted) 2011 (hereafter "X").
2.That X shall live with the Mother.
3.That X shall spend time with the Father in a four-week cycle as follows:
(a)In week 1, from 10 AM until 5 PM on Saturday with such time to occur in Sydney and commencing on the first Saturday following the date of these orders;
(b)In week 2, from 10 AM to 5 PM on Saturday and from 9 AM until 12 noon on Sunday with such time to occur in Canberra;
(c)In week 4, from 10 AM until 5 PM on Saturday and from 9 AM until 12 noon on Sunday with such time to occur in Canberra;[2]
[2] Sub-paragraphs (c) to (q) inclusive are opposed by the Mother who seeks that all the time to be spent be supervised and that there be no further progression (until a review occurs in 2017).
Commencing on 1 June 2015:
(d)In week 1, from 10 AM until 5 PM on Saturday, with such time to occur in Sydney;
(e)In week 2, from 10 AM on Saturday until 12 noon on Sunday, with such time to occur in Canberra;
(f)In week 4, from 10 AM on Saturday until 11am on Sunday, with such time to occur in Sydney;
During January 2016:
(g)The Father's time with X in accordance with paragraphs 3 (e) and (f) herein shall conclude at 12 noon on the Tuesday of that week;
Commencing on 1 February 2016:
(h)In week 2, from 10 AM on Saturday until 12 noon on Sunday, with such time to occur in Canberra;
(i)In week 4, from 10 AM on Saturday until 12 noon on Sunday, with such time to occur in Sydney;
During the End of Term 1, 2 and 3 School Holidays in 2016:
(j)The Father's time with X in accordance with paragraphs 3 (h) and (i) herein shall conclude at 12 noon on the Tuesday of that week with such time to occur in Sydney;
During January 2017:
(k)The Father's time with X in accordance with paragraphs 3 (h) and (i) herein shall conclude at 12 noon on the Thursday of that week with such time to occur in Sydney;
During the Term 1, 2 and 3 School Holidays in 2017:
(l)The Father's time with X in accordance with paragraphs 3 (h) and (i) herein shall conclude on the Thursday of that week and such time shall occur in Sydney;
In January 2018:
(m)The Father's time with X in accordance with paragraphs 3 (h) and (i) herein shall conclude at 12 noon on the following Saturday;
From the commencement of 2018 School Year:
During School Term
(n)Commencing on the first weekend of each term, on alternate weekends from 10 am on Saturday until 6 pm on Sunday or Monday in the event of a long weekend or a pupil free day; the first weekend shall occur in Sydney, the 2nd weekend in Canberra
During School Holidays
(o)For the first half of the Term 1,Term 2 and Term 3 school holidays or as agreed, commencing at 10 am on the day after the conclusion of school and in Sydney;
(p)For the term 4 school holidays, on a week-about basis commencing at 10 am on the first Saturday of the school holidays and concluding at 10 am on the following Saturday;
Commencing in the December 2019 school holidays
(q)For the first half of the December - January school holidays.
Mother's Day and Father's Day
(r)In the event that these orders provide for X to spend time with the Father on the weekend of Mother's Day, the Father's time will take place on the following weekend and X shall spend the Mother's day weekend with the mother;
(s)In the event that Father's Day falls on a weekend when X would be with her Mother, X shall spend time with the Father on Father's Day in substitution for the following weekend when X would otherwise be spending time with the father;
(t)At such other times as may be agreed between the parties.
4.(a) Within 7 days of the date of the orders, the parties do all acts and things necessary to register and engage with Marymead Children's Service in Canberra and shall attend any course which may be recommended by that service:;[3]
[3] The father agrees in principle however raises a practical difficulty in that he would need to go through an intake to use the Marymead Children’s Service in Canberra and he lives in Sydney. See Transcript, 3 February 2015, p.104.
(b)The Parties shall use this service to effect changeovers in Canberra for a period of 12 months.[4]
[4] The father agreed in principle though notes again the practical difficulty in that the time that X would be returned on Sunday in Canberra is not within the hours that Marymead operates on Sundays, which is 3pm to 6pm and X would be returned at 12 noon. He has no issue with the 12 noon changeover time as he needs to get back to Sydney as well, but rather acknowledges that this changeover would need to be arranged directly between the parties without service assistance. See Transcript, 3 February 2015, p.104. The mother also agrees in principle to the use of the Marymead Centre for changeover but for only 12 months and that should the parties agree that it is no longer necessary that they have the right to discontinue use of the service. See Transcript, 3 February 2015, p.106.
5.Within seven (7) days of the date of these Orders, the mother shall authorise the (omitted) Child Care Centre, and any subsequent or alternative day care provider or school that X may in the future attend, to:-
(a)Provide to the father with all information requested by him;
(b)Authorise the inclusion of the father's name address and contact details on X's records;
(c)Authorise the inclusion of the father's email address on any parent mail-out list;
(d)Authorise the release to the father of any circulars or any other notifications which are sent to parents in the normal course.[5]
6.That the father is permitted to attend at the (omitted) Child Care Centre, and at any subsequent or alternate day care provider or school that X may attend from time to time, at times at which parents in the normal course, are invited to attend.
7.Each party shall advise the other as soon as is practicable, in the event of any medical or other emergency relating to X.
8.The parties shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act in the event of a dispute about the interpretation, implementation or enforcement of these orders or before any application is made to a court for a variation of these orders.
9.Order that each of the parties pay to Legal Aid NSW the sum of $4,145.20 within 3 months from the date of these orders on account of the costs of the Independent Children's Lawyer”[6]
[5] The mother asserts that she has already been providing the father with this type of information.
[6] The father opposes the costs order sought by the ICL. The mother consented to an Order in similar terms on 3 February 2015 that allowed the relevant costs to be paid by instalments.
Issues
The following issues are raised in this case:
·whether X’s time with the father should be supervised or, at least, occur in the presence of a family member;
·the frequency and circumstances of X spending time and communicating with the father, and in this respect, whether orders should be made on a final basis or interim basis with mechanism for review in 2017 when X starts school (noting that the mother consented to the father’s proposed orders in relation to telephone communication provided that such orders facilitating telephone time be mutual)[7];
·how changeovers should occur, and in particular, whether a changeover service should be used in Canberra and/or Sydney and if so, for how long; and
·whether the father should pay the ICL’s costs fixed in the sum of $4,145.20.
[7] Transcript, 3 February 2015, p.121-122.
Evidence of the parties
Both parties provided the Court with affidavit and oral evidence and were cross-examined.
In addition to the parties, the family consultant, Ms M was required for cross-examination at the final hearing. Neither of the parties’ additional witnesses, being the father’s partner and the maternal grandmother, was required for cross-examination.
The following documents were also tendered and have been considered as part of this decision:
·two pages of photos printed from the Father’s Facebook profile (Exhibit “ICL1”); and
·email exchange between parties dated 3 March 2014 (Exhibit “ICL2”).
Father
The following documents were relied upon by the Father:
·Amended Initiating Application filed on 3 September 2012;
·Father’s affidavit sworn and filed on 12 January 2015;
·Father’s affidavit in reply sworn and filed on 23 January 2015; and
·Affidavit of Ms R sworn on 8 January 2015 and filed 12 January 2015.
Generally, the father presented as relaxed and softly spoken. Overall, while he answered the questions that were put to him, the father was, at times, defensive. That said, he was also quite candid in his evidence. For example, he readily admitted that the respondent mother was a “good mother” and that she was “quite considerate about what she feels is in X’s best interest”.[8] Unless a proposition was denied, the father generally made concessions when required. For example, the father admitted that his behaviour at times could have escalated the level of the mother’s anxiety.[9]
[8] Transcript, 2 February 2015, page 57.
[9] Ibid, p.44.
Mother
The Mother relied upon the following at the final hearing:
·Response filed on 1 September 2012;
·Mother’s affidavit sworn on 17 January 2015 and filed 21 January 2015; and
·Affidavit of X (the maternal grandmother) sworn on 17 January 2015 and filed 21 January 2015.
The mother presented as well-spoken but emotionally stern. She had some difficulty answering the questions that were put to her and at times refused to make concessions to reasonable propositions. For example, the mother’s evidence about the Medicare card name was difficult for the Court to accept in light of the child’s full name being on the father’s Medicare card.[10] In addition:
·the mother’s evidence about the father’s alleged mental state was weak at best and naïve in pointing to a circumstance where the father allegedly cried following a relationship breakdown; [11]
·the mother’s evidence about the child not having travelled by bus for more than two years was later contradicted;[12]
·the mother’s evidence as to her financial inability to afford a car was difficult to believe;[13] and
·the mother’s failure to be able to indicate any positive attributes of the father as to his parenting of the child was also disappointing.[14]
Overall, the mother came across as very focussed on what she wanted and what she believed was best for X.
Family Consultant
[10]Transcript, 3 February 2015, page 72.
[11] Transcript, 3 February 2015, p.78.
[12] Ibid, p.67.
[13] Ibid.
[14] Ibid, p.78.
The Family Reports
Ms M prepared two family reports in this matter:
·the Family Report dated 16 December 2013 (“the 2013 Report”)[15]; and
·the Updated Family Report dated 5 December 2014 (“the 2014 Report”)[16].
[15] The 2013 Report was tendered into evidence by consent and marked as Exhibit “A”.
[16] The 2014 Report was also tendered into evidence by consent and marked as Exhibit “B”.
In the 2013 Report, Ms M sets out the background in paragraphs 1 to 2; the current parenting arrangements in paragraph 3 to 4; the proposals and issues at paragraphs 5 to 7; her assessment of the parties from paragraphs 9 to 27 and of X at paragraphs 28 to 36; and her evaluation is at paragraphs 37 to 47. Ms M thereafter recommended that:[17]
·the parties have equal shared parental responsibility for X; and
·the parenting arrangements (at that time) stay in place until such time as X commences school, or the parties can agree to further changes, with the addition of a further two hours on the day that X is in Sydney.
Ms M also recommended that the father undertake either the ‘Circle of Security’ or ‘Triple P’ parent program.
[17] 2013 Report, paragraphs 48 to 50.
In the 2014 Report, Ms M sets out the background in paragraphs 1 to 3; the current parenting arrangements in paragraph 4 to 5; the proposals and issues at paragraphs 6 to 9; and her assessment of the parties from paragraphs 10 to 18 and of X at paragraphs 19 to 25. I note that Ms M also spoke to Ms H, the director of (omitted) Child Care Centre where X attends five days a week. Ms H confirmed that the Centre does not have the father’s details and that a Court order would be required for him to be able to access information or visit.[18] Ms H also commented that X is “on par” with her peers on a social and emotional level.[19]
[18] 2014 Report, paragraph 26.
[19] Ibid, paragraph 27.
Ms M thereafter provides her evaluation in paragraphs 28 to 44. In summary she states:
·The parties did not know each other well before becoming parents and “have not developed a mutually trusting or positive parenting relationship”; [20]
[20] Ibid, paragraph 28.
·The mother is X’s primary carer and it is likely that X is more secure with her than with any other person, including the father;[21]
[21] Ibid, paragraph 29.
·At this stage, X does not appear to have developed a strong enough relationship with the father to be comfortable enough to spend extended time away from the mother. This is likely due to exposure to the parties’ poor relationship, inconsistency of time with the father and X’s own development, and the parties’ different parenting styles;[22]
[22] Ibid.
·Caution is needed in introducing overnight time for X with the father “but should not be put off for any longer than six months”[23] and “developmentally, X does not appear to be ready to spend extended periods away from Ms Kelsey, the introduction of overnight time is not recommended straight away”;[24]
[23] 2014 Report, paragraph 30.
[24] Ibid, paragraph 36.
·Immediate changes are required to promote X’s relationship with her father so overnight time can be a positive experience;[25]
[25] Ibid, paragraph 31.
·The mother’s support is essential and resistance on behalf of the mother may cause X harm in the long term;[26]
[26] Ibid.
·It may be helpful for the mother to complete a post separation parenting course to better understand how conflict impacts upon children;[27]
[27] Ibid.
·It is important for X to have consistent time with her father and that she is not exposed to the conflict between her parents (changeovers through an independent third party may assist, such as Marymead Centre in Canberra);[28]
[28] Ibid, paragraph 33 and 34.
·X attends child care five days a week;[29]
[29] Ibid, paragraph 35.
·It may be beneficial for X to see her father engaged with the child care centre and, by default, her life in Canberra noting that the centre closes at 6:00pm on Fridays;[30]
[30] Ibid.
·Ms M provided some options regarding changeover in Sydney and Canberra;[31]
[31] Ibid, paragraphs 34 to 39.
·Discussions were had with the parents about the importance of having consistency in X’s care in her younger years;[32]
[32] Ibid, paragraph 40.
·The mother should explain her approach to things like discipline and routine to the father so he can respect and emulate her approach as much as possible and the older X gets the easier she will find coping with differences between the parents;[33]
[33] 2014 Report, paragraph 40.
·The father has no plans to relocate;[34]
[34] Ibid, paragraph 41.
·In relation to the father’s proposal of X spending time with him for three out of every four weekends:
osuch is “not reasonable on in the long term as X will need to develop relationships outside of her parents and this generally entails spending recreational time with peers”;
othe mother is likely to want to spend more weekend time with X;
othe current arrangement should only be a short term strategy “for the purposes of developing his relationship with X”; and
oit would be helpful to X if the current arrangement remain in place for further six months and then introduce overnight time on Saturdays with one weekend per month in Sydney and one weekend per month in Canberra – provided the Court is satisfied X is safe;[35]
·There are difficulties in determining X’s best interests in the long term however “at some point the parents will need to take responsibility for this” and engaging with services such as Marymead or Relationships Australia for advice and support in the years ahead may assist;[36]
·Concerns regarding the father being actively involved in X’s life, as raised in the 2013 Report;[37]
·Ms M reiterated her comment from the 2013 Report that “there is a real possibility that X will lose her relationship with Mr Lyon if Ms Kelsey is able to unilaterally make decisions for her”;[38] and
·An order for equal shared parental responsibility will enable the father to remain involved in X’s life and orders will likely be needed to allow the father access to information regarding X (such as for school and sporting events).[39]
[35] Ibid.
[36] Ibid, paragraph 42.
[37]Ibid, paragraph 43 and 2013 Report, paragraph 46.
[38] 2013 Report, paragraph 47.
[39] 2014 Report, paragraph 44.
Ms M thereafter provides the following recommendations at paragraphs 45 to 50:
“45.It is recommended that the parents share parental responsibility for X.
46.It is recommended that X live with her mother and continue to spend three weekends out of four with her father until she is three years and ten months old, and that as many changeover’s as possible occur with the support of the Marymead Centre and the Sydney Children’s Contact Centre.
47.It is recommended that once X reaches three years and ten months, she begin to spend time with Mr Lyon overnight every second weekend from Saturday morning until Sunday afternoon, and that all changeovers occur at a contact centre.
48.It is recommended that Ms Kelsey be ordered to complete a post separation course.
49.It is recommended that both parents be ordered to contact the Marymead Centre and the Sydney Children’s Contact Centre to arrange assessment for using the changeover service (omitted).
50.It is recommended that orders clearly state that Mr Lyon is able to access information about X and attend school/pre-school and sporting events in the future.”
Ms M’s oral evidence
As stated, Ms M was required for cross-examination and by consent she gave her evidence at the commencement of the final hearing.
Although Ms M did not change the recommendations she made in the 2014 Report, she did provide some additional detail as to the suggested progression of holiday time. Overall, Ms M was very confident in her assessment and recommendations for the parties.
Ms M confirmed that she has no concerns at all about the father’s mental health.[40] She stated that despite the absence of any diagnosis, the issue had been raised by the mother because the father had allegedly told her that he had experienced two episodes of depression in his past in the early 2000’s and that the mother had observed the father crying for no reason.[41] While Ms M agreed with the proposition put to her by Ms Karagiannis that a parent crying in the presence of the child (and for no reason) could be quite confusing for the child, she confirmed that there was nothing in what the father had told her that caused her any concern about his mental health.[42]
[40] Transcript, 2 February 2015, p.5 and 6.
[41] Ibid, p.6.
[42] Ibid.
Ms M did, however, raise concern about the level of the mother’s anxiety in relation to X spending time with the father.[43] In particular, she opined that any such anxiety is likely to be felt by X and could promote anxiety in the child; and how that manifests over time could not be predicted but could be detrimental.[44] For example, if the mother is anxious about X going to school, it may affect X (or if the mother is not anxious about this, it would be less likely unless the child develops an anxious personality herself).[45]
[43] Ibid, p.7.
[44] Ibid.
[45] Ibid, p.8.
In response to a question from Ms Karagiannis regarding the long term effect on a child who is exposed to parental conflict, such as in this case:
“…we can already see an impact on X and that is in the – the lack of – well, the depth of relationship that she has been able to form with her family. You know, the time has been inconsistent due to a number of reasons. Her mother is anxious and, from the description by both parents, it would appear that that anxiety is having an impact on X, at least initially when she sees her father and when she returns to her mother on her own behaviour.”[46]
[46] Transcript, 2 February 2015, p.8.
Ms M gave some information regarding the Marymead Centre:
“That’s in Canberra. They offer a wide range of services from family support through to facilitation of drop-off and pick-ups so Family Court-type work is not their only focus, and the service that I feel – I mean, you know, with any service, you – you – you’ve got to get a rapport, but I think that – that the staff at the – at the Marymead Centre would be sympathetic to the mother’s anxiety about the child spending time with the father and could give her some time, you know, to talk through some concerns and maybe give her some advice on how to manage things.”[47]
[47] Ibid, p.7.
Ms M strongly supported the mother completing a parenting course (given that she had not already done one).[48]
[48] Ibid, p.8.
Ms M confirmed her comment in the 2014 Report that she remained of the view that changes are needed to promote X’s relationship with the father so that overnight time with him is positive.[49]
[49] Ibid, p.7.
As to the proposed orders, Ms M confirmed her recommendation that X live with the mother and the current arrangements remain until about June 2015 then move to every second weekend, overnight from Saturday morning to Sunday evening and each alternate overnight period be in Sydney then in Canberra.[50]
[50] Ibid, p.9.
As to the father’s proposal for ‘school term holiday’ time, Ms M responded as follows:
“… if in the future X is to spend time during the school holidays with her father that it always be in the first half, not the second half, and the reason that I say that is because I don’t think it’s disputed by either party that the mother will be the primary carer, and it – the – the way that it was put forward about the first day and the last day of the holidays is likely to be confusing over time. Secondly, as those people who are parents might understand, those couple of days or week leading up to going back to school after the holidays is an important time for the person who has got the primary care of a child to get their books, to get their shoes, to … make sure the uniform still fits. So for that reason I would suggest that if X is to spend time with her father during the holidays it always be in the first part of the holidays. [51]
[51] Transcript, 2 February 2015, p.9.
In respect of the ‘long summer holidays’ time, Ms M suggested much the same approach, with arrangements made for Christmas Day to be shared. That said, Ms M would not suggest large blocks of time (i.e. three to four week blocks) in this case until X was “much, much older”.[52] Rather, Ms M would suggest “something like a week about arrangement through the longer school holiday period” until X is about eight or ten before moving to longer blocks of time.[53] This suggestion was later clarified by the family consultant to not earlier than eight years but no later than ten years of age.[54] Ms M stated:
“I’m not going to say that this is going to be easy for everybody, but I think that’s, you know – it – it’s not unreasonable that she spend up to – if the court is satisfied that she’s not at risk of harm in his care, it is not unreasonable that she be able to spend up to a week with him by the time she’s about five or six.”[55]
[52] Ibid, p.10.
[53] Ibid.
[54] Ibid, p.18.
[55] Ibid, p.10.
In relation to the commencement of overnight time Ms M reiterated that:
“…the overnight should start in about mid-this year. It could have been earlier, but…made that recommendation in the hope that the mother would get some assistance between now and then to manage that…for both herself and for the child.”[56]
Ms M went on to comment that care needs to be taken by the parties in how such time is introduced and how it is managed and that her concerns “specifically related to the mother getting some assistance in managing it for herself and for X”.[57]
[56] Ibid, p.11.
[57] Transcript, 2 February 2015, p.12.
In response to a question about her recommendation that starting overnight time should not be put off for any longer than six months (that is by June 2015)[58], Ms M stated:
“…because the longer that it’s put off the more anxious X is likely to become about spending time with her father. So she’s – you know, the description of what’s happening at changeover at the moment shows there’s a child who is confused and who is starting to make this a game, and in the long-term who she interprets that is – you know, I can’t say, but the likelihood is that she will – she will associate going to her father as a negative experience.”[59]
[58] Ibid, p. 20.
[59] Ibid, p.12 - 13.
I note that Ms M provided the following further comment on the progression of time with the father:
“I don’t think that the father necessarily wants it to be longer. I mean, I spoke to him about potentially picking up from – from the long day care or from school at a later date on a Friday and he seemed quite happy to just leave it as Saturday pick-up, and that’s about his circumstances as well. You know, he works full-time, and he has to get from Sydney to Canberra, which I just did this last weekend and it’s a long drive, and to be expected to do that regularly, it’s a – it’s a big ask. So I think if the father doesn’t want it to extend beyond what he has suggested then I think we need to accept that, and – and as, again, it’s what I come back to with the difference between this matter and many others we might deal with, the father acknowledges his role as – you know, he’s not trying to steadily increase time. Therefore, leading to, you know, equal time or something like that. He acknowledges and seems to understand from – unless I’m reading it incorrectly – that he’s going to be every second weekend and time on holidays.”[60]
…one of the main reasons that I would want to introduce overnight time prior to starting school is just that: because it is a very tiring – particularly the first year of school is – there’s so much change in the child’s life. It might not be as difficult for X as some other children, because she attends…child care, you know, quite regularly, but still there will be different structures, there will be relationships, there will be a – a bit less supervision and so those things are all very tiring as well as, you know, getting onto the academic developmental tasks, and so therefore you don’t want to introduce overnight time whilst all of that change is happening, and I don’t think it’s fair to X to extend it further past that date, because, as I said before, the longer it takes the more anxious she’s likely to be about it. I think now is the right time. Now: I mean this year is the right time. Other things are going to change and that’s – I think I made that – I – I mentioned the – her own developmental needs and her needs – her need to develop relationships. The geography concerns me with that. I don’t know, and I’m sure the parents don’t know at – at this stage what sorts of things their daughter is going to be involved in in the future, and they’re going to need to agree to it. So, for example, if she plays a team sport she can’t be missing every second week, because that will be letting the team down, and she’s likely not to like that. If she’s involved in any kind of competitive event like dance competitions or, you know, athletics or any of those sorts of things, the – the between Sydney and Canberra issue will become more difficult for the parents as time goes on. What could happen is that she could missout on a lot of opportunities if the parents can’t talk with one another and agree on what the focus is going to be for her. So, for example, if – now, the mother being the primary carer is more likely to be involved with that sort of thing so will know the other children’s parents more or have closer relationships, be on more of a day-to-day – have the ability to know, you know, all the girls in this group are joining this netball team, for example, and she needs to be able to speak to the father and say, “Well, look, you know, X wants to play netball. That’s going to mean every Saturday morning in Canberra. Can we work around that?” Those are – that’s just – you know, that’s just a very small tip of the iceberg of many issues that they’re going to need to discuss over time, and they really need to get on with it and – and find a way of improving their communication, and they can’t do it on their own at this point. They need support of a third party like Marymead…”[61]
[60] Transcript, 2 February 2015, p. 19.
[61] Transcript, 2 February 2015, p. 20-21.
In response to some questions from the Court, Ms M confirmed she did not recommend supervision of X’s time with the father.[62] That said, Ms M agreed that there may be some advantages in the father having his partner or mother present, if available, to assist him in the overnight care of X.[63] In this respect, Ms M saw benefit in the mother meeting the father’s partner, and, should the mother re-partner, vice versa.[64]
[62] Ibid, p.19.
[63] Ibid.
[64] Ibid.
Ms M confirmed she does not have any concerns about X’s safety with the caveat that she is not aware of any medical records regarding mental health issues for either party, though she is aware that concerns have been raised. She stated:
“I’m not concerned about the safety issues that the mother raised with regard to the father’s parenting, and the reason for that is that my assessment is that parents have different parenting styles. Now, whilst I’m concerned about the impact of that on X’s emotional development, I’m not concerned that the difference in the parenting styles promotes physical risk to the child.”[65]
[65] Ibid, p.13.
In particular, Ms M did not find it unusual that X may return to the mother’s care with bruises as:
“…small children get bruises often, because they run around and they trip, and I think that, as I’ve suggested before, the – the parenting approach of each of these parents is very different, and I’m sure that the mother is a far more – or has been in the past, at least – a far more conscientious and I will use the word anxious parent than the father who would be more likely to allow the child to explore which – and – and have different experiences, which means tripping over and bumping yourself.”[66]
However, Ms M also stated that appropriate levels of supervision that a parent provides to a child of X’s age are important.[67]
[66] Ibid, p.14 -15.
[67] Ibid, p.15.
As to changeover, Ms M reiterated her concerns over the reported issues at changeover which is why she recommended changeover involve a third party to avoid contact between the parties.
“…changeover in a supervised environment, number one, assists the child in reducing the opportunity for her to be exposed to conflict, but also provides each parent with some insurance that there’s somebody watching what’s happening and able to – you know, they – they keep records so it’s a bit of insurance for both parents as well. And then there’s the added one with – with a place like Marymead – and I’m not saying – I’m not suggesting Sydney Contact Centre is the same, because at the Sydney Contact Centre they will be in and out and there’s not that opportunity, but the Marymead Centre, when I’ve spoken to them, and they would provide some more therapeutic support to both parents.”[68]
[68] Ibid, p.18.
Lastly, Ms M gave some general feedback and advice which is worth repeating here for the benefit of the parties:
“I think, to be quite honest, probably the saving grace in this matter is that the father doesn’t want to push for more than he is asking for, and that he completely recognises that – that Ms Kelsey will be always the primary carer… And I’m hoping that’s of some – some comfort to the mother, because it could be a very different situation, and – and I’ve always had that in the back of my mind when approaching this matter. There are all sorts of issues that we could focus on, but the fact remains we’ve just got two people who didn’t know each other very well who have created a child who they’re finding it very difficult to manage around and that’s why they’re at a court, because they just need this – they need somebody to tell them how it has got to be…. And I think that they will manage it as best they can once they live – because they’re, you know, both nice people who really love this child and want the best for her. Unfortunately, I don’t think that they can see the negative impact of what they’re doing now on – on X in the future, and that’s really why I, in particular – I mean, I know that the father has completed a couple of courses, but, in particular, wanted the mother to be engaged with somewhere like Marymead so she – because I do think that she does take on information, absolutely. I think she’s open to new information, and I think I’ve had a discussion with her around, you know, when she’s talking to her friends and her family and they only hear her perspective, she’s going to hear that everything that she’s thinking is, you know, okay and there’s no other way to look at things, but if she has somebody who has no vested interest and who really just has, you know, like most practitioners, the best interests of the child at heart, I think that there’s a good chance for her to actually get some sort of peace at least. She’s a practical person. She knows that overnight time is going to happen – said that to me earlier today – but it’s about getting over that hurdle, and getting it started and, you know, experiencing it. And, you know, the father can do a lot to help her. You know? And I will say I was – I was aware of an exchange outside to do with Facebook. You know? And I have talked to him very clearly about, “Okay. Most parents, you know, put their kids’ pictures up, but his situation is different.” And as adults who have gotten themselves in the situation that they’re in – you know, having a child without knowing one another well – in order for that child to grow up, you know, in any kind of reasonable environment they have to be able to accept that they need to make some changes themselves and take into consideration the other person a lot more.”[69]
[69] Transcript, 2 February 2015, p.16.
At this point of my reasons I note and take into account the decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713. In this case, the Full Court provided an authoritative statement about how family reports should be treated in proceedings such as this case.[70]
[70] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Overall, given that Ms M is an independent party and a joint single expert witness in these proceedings, the 2013 and 2014 Reports and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given considerable evidentiary weight by the Court.
Legislative requirements and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case, as different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations in s.60CC of the Act. These will be considered in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[71] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[71] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life.”[72]
[72] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
When making a parenting order, s.61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child – again, taking into account the considerations set out in s.60CC of the Act.
I note that in the 2014 Family Report, Ms M stated:
“43. Again, as described in the previous report, “part of supporting and developing X’s relationship with her father is to have him actively involved in her life. This means his being involved in both the major long term, and the day to day decision making. Ms Kelsey [sic] said that she would like X to have a relationship with her father but her actions indicate that she may have some ambivalence about this. She is used to making most of the decisions regarding X’s care and it is likely to be difficult for her to truly accept Mr Lyon’s role in this aspect of X’s care.”
44. The previous report suggested that, “there is a real possibility that X will lose her relationship with Mr Lyon if Ms Kelsey is able to unilaterally make decisions for her.” This continues to be the case and sharing parental responsibility is one way that Mr Lyon can be assured of remaining involved in X’s life. He is likely to require orders so that he can gain access to information about X and attend events such as school concerts, presentation days and sporting events.[73]
[73] 2014 Report, paragraphs 43, 44.
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. Given the circumstances of this case, I am satisfied that such an outcome would not be in the best interests of X.
I note that by the conclusion of the final hearing, the mother ultimately agreed to the ICL’s proposal that there should be an outcome that the parties have equal shared parental responsibility.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time,[74] or alternatively substantial and significant time,[75] with each parent.
[74] Section 65DAA(1) of the Act.
[75] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
I note that neither party in this case is seeking an equal time parenting arrangement.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent 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.”
That said, s.65DAA(4) of the Act stipulates that:
“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.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to 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.”
The parties in this case are, as stated, in disagreement about the frequency and circumstances as to the spend time arrangements between the child and the father.
Best interests of the children
As previously stated, the Court is under an obligation to make parenting orders that it determines is in the child’s best interests. For this purpose, the Court will now turn to consideration of the factors in s.60CC of the Act in the context of this case.
Primary considerations: s.60CC(2) of the Act
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear from the evidence that, despite their entrenched and on-going difficulties in communicating with one another, both parties accept the need for X to have a meaningful relationship with the other party. That said, the parties differ on how this can best be achieved.
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[76] In summary, what the Court is required to do is consider and weigh the available evidence (as at the date of the hearing) and determine (assuming the Court is satisfied that it is in X’s best interests) how and what orders can be framed in order to ensure that X has a meaningful relationship with both her parents.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[76] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
I note that the mother raised concerns that X is at risk of harm while in the father’s care and that the risk justifies the child’s time with the father being supervised. This risk is disputed by the ICL and rejected by the father. The evidence does not support the mother’s submission and I find accordingly.
I also note the following concerns raised by Ms M in the 2014 Family Report:
“32. The concerns raised by Ms Kelsey regarding Mr Lyon’s care of X do not appear to suggest that X is at risk of physical harm. The Family Consultant is concerned about the risk of further concerns of a sexual nature being raised. Mr Lyon needs to be aware of this and Ms Kelsey needs to be aware of the potential long term harm caused to children when spurious concerns of a sexual nature are raised.”[77]
[77] 2014 Report, paragraph 32.
At this stage I note that the Court is required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a).
Additional considerations: section 60CC(3) of the Act
Section 60CC(3)(a): any views expressed by the child and any other 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
Given her young age, Ms M did not interview X as part of the Reports. That said, as stated, Ms M conducted observations of the child with each of the parties.
In paragraphs 28 to 36 of the 2013 Report Ms M comments:
·X appeared well and happy and settled easily into the child care room, separating from the mother and maternal grandmother without fuss;
·As would be expected for a child of X’s age, she separated easily from the mother but appeared relieved when the mother returned to take her home;
·On seeing the father, X walked away and when approached by the father, became upset and asked for her mother. This reaction could be because, for X, seeing the father means not seeing her mother for some time. The father and X were observed through a one-way screen and X cried for her mother for about 30 minutes however the father “responded appropriately to her distress and was able to distract her for short periods of time”[78] and when settled played with the father; and
·The father’s “proactive care during the observation was adequate. There were some things that other parents might do differently…”.
[78] 2103 Report, paragraph 32.
In paragraphs 19 to 25 of the 2014 Report Ms M comments:
·After arrival, X settled and appeared happy for the mother to leave though the child care worker advised she asked for the mother several times;
·“Ms Kelsey appeared somewhat anxious about X’s apparent anxiety”;[79]
·X seemed relaxed when talking to the father and engaged in painting, though she asked where the mother was, and when the father told her the mother was outside and she could see her later, X seemed to accept this. When in the smaller assessment room, X again asked for the mother several times but was distracted by new toys and resumed playing with the father;
·“Mr Lyon appeared calm when X was asking after her mother and managed her anxiety well. X appeared distracted about her mother’s whereabouts when she was with her father.”[80]
·When reunited with the mother, X appeared excited and ran and hugged her.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons
[79] Ibid, paragraph 20.
[80] Ibid, paragraph 23.
It is clear from the evidence that X enjoys a close relationship with the mother and has a good and developing relationship with the father. The child has not, as yet, had the opportunity to develop a relationship with the father’s extended family.[81]
[81] Father’s affidavit filed 12 January 2015, p.12.
I note that Ms M acknowledges, as does the Court, that both parties are committed to the best interests of X, however they differ as how this can best be achieved.[82] During her cross-examination Ms M stated:
“I might have more faith in these – in these people than – than others, because, you know, they are reasonable people who actually really genuinely want the best for the child, and they have really tried hard, and, given their backgrounds, I think they’ve done a pretty good job, but they still need some help…I think that the mother is open to new information. I think the father is as well. And he does concede a lot of things so I think there’s a good chance that if, you know, X, her base is – is Canberra; if it remains her base and Mum wants her to – or X wants to play a sport, for example, on a Saturday morning, I actually think he would accommodate that, whether it be that they both attend. I think that they would – these are the sorts of people who could manage that...they’re not at that extreme of conflict that we often see… although the level of conflict is still enough to be damaging for their daughter.”[83]
Section 60CC(3)(c): the extent to which each of the parents provide an opportunity to participate
[82] 2014 Report, paragraph 28.
[83] Transcript, 2 February 2015, p. 20-21.
This is also a live issue in this matter.
The father clearly feels that he needed to commence and prosecute these parenting proceedings in order to spend time with X.[84]
[84] Father’s affidavit filed 12 January 2015, p.12.
I note that in the 2014 Family Report Ms M opines:
“31. … If Ms Kelsey is resistant to X developing a positive relationship with her father, her resistance may cause X harm in the long term. For example, X is likely to experience her mother’s resistance to her spending time with Mr Lyon as uncomfortable, and that is likely to promote anxiety in her. Children exposed to ongoing parental conflict can develop a range of mental health problems, not least, anxiety disorders. It may be helpful for Ms Kelsey to complete a post separation course in order to better understand how conflict impacts upon children.
32. The concerns raised by Ms Kelsey regarding Mr Lyon’s care of X do not appear to suggest that X is at risk of physical harm. The Family Consultant is concerned about the risk of further concerns of a sexual nature being raised. Mr Lyon needs to be aware of this and Ms Kelsey needs to be aware of the potential long term harm caused to children when spurious concerns of a sexual nature are raised.
33. It is important that X is not exposed to the conflict between her parents and that there is consistency in the time that she spends with her father.”
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled their obligations to maintain the child
The parties make criticisms of the other.
I note that the father is paying child support, though he concedes that he is in arrears. He submits that he has, and will continue to, incur considerable expenses for the travel and accommodation involved in spending time with X in Canberra. He also asserts that the wife’s decision to reduce her working hours has increased his child support liability.[85]
[85] Father’s affidavit filed 12 January 2015, p.12.
There is no evidence to suggest that the child is not well cared for in the mother’s care.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation
There will be a change to X’s circumstances if, and when she commences to spend overnight time with the father. Despite the mother’s reservations, Ms M was of the view that the child will cope well with that transition.
That said, the mother raised a concern about X staying overnight with the father in premises that he shares with a flatmate. I note that the father indicated that he has had three flatmates and that should it be an issue, he would be willing to look at his expenses and re-evaluate his need to have a flatmate to share those expenses.[86]In her oral evidence, Ms M made the following comment on this issue:
“…I would have concerns about the father having somebody renting the place and living there with him. He did indicate to me during interview that if need be he would ask the person to move… he doesn’t even know him very well so you place your child at risk if you have somebody who you don’t know very well living in your home and you have your child there. That – that poses a risk.”[87]
Section 60CC(3)(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
[86] Transcript, 2 February 2015, p.38.
[87] Transcript, 2 February 2015, p.38.
The introduction of overnight time will not increase the obligations that either party has presently in respect of travel to and from Sydney and Canberra. I note that the mother’s extended family reside in Sydney.
The Court acknowledges that the parties may incur some modest expenses in the use of any contact centre for changeover.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
The Court remains satisfied that both parties have the capacity to provide for X’s needs.
The Court agrees with Ms M’s recommendation that the parties’ capacity to co-parent X can only benefit from their completion of a parenting course or program. In this respect I note that the father completed a Circle of Security parenting course on 8 April 2014, and pursuant to the Orders made 17 December 2014 (as extended by the Orders made on 3 February 2015), the mother is to complete a parenting course.
I note that the mother raises concerns about X’s safety in the father’s care and questions his capacity to care for a young child. Having considered the evidence, in particular the Family Reports and Ms M further comments on this issue in cross-examination as discussed above, I find that the father has the capacity to provide for X’s needs, including her emotional and intellectual needs. However, I agreed with Ms M assessment that:
“I think the most important thing here is to do what we can to make any kind of transition more comfortable for the child, and in this case that means making it more comfortable for Mum.”[88]
To that end, I see benefit in the father completing a first aid course specifically related to children.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
[88] Transcript, 2 February 2015, p. 20.
I note that, despite her young age, X is bilingual and is developing her ability to both speak and understand English and (language omitted).
Otherwise, there are no specific additional matters here that assist the Court that have not already been discussed in this decision.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
As stated, both parties have issues with the other’s parenting ability or rather, the parenting style adopted by the other.
The father submits that he has demonstrated his intention to have and maintain a relationship with X, notwithstanding the difficulties caused by the mother.[89]
[89] Father’s affidavit filed 12 January 2015, p.13.
I otherwise refer to the applicable comments made earlier in this decision.
Section 60CC(3)(j) and (k): family violence and family violence order provisions
These considerations are not relevant in this dispute.
Section 60CC(3)(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
While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits X, it is clear that the parties will continue to require specific orders to assist them in their future parenting.
In relation to the issue as to whether final (or interim) Orders should be made in this matter, I note the following comments from Ms M in her 2014 Report:
“42. It remains difficult to determine what sort of parenting plan might be in X’s best interests in the long term, but at some point the parents will need to take responsibility for this. The same issues described in the previous report may impact upon future parenting plans, such as, how X’s relationships with each of her parents will progress and what her routine might be when she begins school. As suggested in the previous report, Mr Lyon and Ms Kelsey should engage with a service such as Marymead or Relationships Australia for advice and support over the next few years.”
The Court finds that the benefit to the child of the Court making final Orders in this matter outweighs the benefit of the Court imposing further interim Orders and a further final hearing upon the parties and child.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
There are a number of other facts or circumstances that are relevant.
Firstly, I note that due to cancellation of visits by the mother, the father filed a Contravention Application which was later withdrawn.
Secondly, I note that the mother seeks an order restraining both parties from posting information, images or videos of or about X on Facebook or other social media sites. The father did not indicate his position on this issue either way. That said, the ICL did ask him several questions in cross-examination in respect to his Facebook account.
Although the father conceded that he had posted a photograph of himself and X on Facebook which the mother strongly objected to and he did not remove it as he didn’t think it was ‘relevant’ and simply ‘decided not to’ notwithstanding that it made the mother anxious.[90] Ms Karagiannis asked the father about the privacy settings on his Facebook account as some searches on the ICL’s behalf had allowed them to print several pictures from the father’s account to which the father said ‘I was quite surprised that he [referring to the ICL] could actually find my profile’.[91]
[90] Transcript 2 February 2015, p.44.
[91] Ibid, p.45.
The following exchange between Ms Karagiannis and the father sheds further light on the father’s approach and attitude to this issue:
“But do you think that sort of behaviour makes the mother more anxious?‑‑‑Yes, I could see it would.
And do you think that that makes you appear careless?‑‑‑Yes, I can see that it would.
Now, sir, you’re a (occupation omitted)?‑‑‑Yes.
So you’re certainly aware about concerns in the community about – how can I put this – about unsavoury types of people having access to pictures of children?‑‑‑Yes.
And going along with that, people object to their children being photographed on school websites and on Facebook and - - -?‑‑‑Yes.
And in social media. So given the mother’s objection, why did you continue to leave the photograph on Facebook?‑‑‑Because I was confident that the security was such that it wasn’t accessible to anyone but the people on my friends list.
Okay. And you accept now that you’ve been wrong about that for quite some time?‑‑‑I possibly could’ve been. I don’t – I don’t know what photos you – I could’ve seen through your profile.
Well - - -?‑‑‑Whether – how far back in the – in my timeline that went.
…[copies of the photographs tendered as “ICL1”]
And you’re very surprised to have those handed to you in court today, aren’t you?‑‑‑Yes.
So you’ve been, I suggest to you, quite careless about this Facebook issue?‑‑‑No.”[92]
[92] Transcript, 2 February 2015, p.45-46.
I would also note that Ms M was asked a question in relation to the mother’s restraint on social media to which she responded as follows:
“I think that the father needs to be acutely aware of the anxiety that that provokes in the mother, and that any – it might be frustrating for him, but he still needs to accept that he married and had a child with a person who has different views to him, and, for the sake of the child that they had together, he needs to change some of his practices. Is it fair? Well, maybe not. Is it reasonable in another relationship? Maybe not. But it’s – that’s not what this is about. This is about giving this child the best possible environment, and if it promotes anxiety in the mother for her child to be – have, you know, pictures of her to be accessible to people who she doesn’t know then this is not the only parent who might feel like that.”[93]
[93] Ibid, p.17.
The power of the Court to grant injunctive relief in areas relevant to children arises from s.68B of the Act. This section is directed to a child but includes adults in the situation associated with the child. There is an overlap between s.68B(1) and s.68B(2) of the Act in that similar orders may be made under either provision. That said, s.68B(1) of the Act is a stand-alone or independent power meaning there is no necessity for the existence of proceedings in contrast. Section 68B(2) of the Act is ancillary and only operates in the context of existing proceedings and would be an aid to those proceedings.
It appears that in the exercise of these injunctive powers, the best interests of the child or children are an important, but not the paramount, consideration unless the order or injunction is a parenting order. That said, it is clear that an order requiring a child or children to live in a particular area and consequently restraining a parent from relocating a child or children away from that area, is indeed a parenting order.
In the circumstances, given the mother’s anxiety on this issue and the potential impact of this anxiety on X, as well as the father’s somewhat cavalier attitude to both the effect of his behaviour in this regard on the mother and his daughter as well as his misconceptions as to how Facebook privacy settings work, I find it appropriate to make a conditional restraint on this issue. There will be an order to the effect that both parties are permitted to make postings, including posting images, in relation to and of X on social networking websites provided that such postings are only available privately to friends and family of the parties and X (acknowledging that the child is getting older and information technology is becoming more and more an integral part of day to day life) and the parties are restrained from making postings, including posting images, in relation to and of X on social networking websites where such postings would be made available to any person other than friends or family of the parties and X on the public domain.
I note again that at the conclusion of the final hearing the parties were able to agree, albeit on an interim basis, for the use of a communication book. It is essential that the parties improve their communication with each other and minimise conflict for X’s benefit and the Court is of the view that the continued use of a communication book will assist.
Otherwise, there are no other additional facts or circumstances that the Court thinks are relevant to the present dispute.
Costs of the Independent Children’s Lawyer
I note that at the conclusion of the final hearing the ICL sought the following Order:
“The Father pay to Legal Aid NSW the sum of $4,145.20 within 3 months from the date of these orders on account of the costs of the Independent Children's Lawyer.”
The father seeks that the ICL’s application for costs be dismissed.
For completeness, I further note that the mother consented to a similar Order for her share of the ICL’s costs on the condition that she could pay it over 12 months in roughly equal monthly instalments.
Law
Power of the Court to make a costs order
Pursuant to reg.21.02 of the FCC Rules, this Court has the power to make an order for costs at any stage in a proceeding.
In family law matters, the Court also needs to consider s.117(1) of the Act, which states the principle that each party shall pay their own costs. The exception to that rule is contained in s.117(2) of the Act, which relates to circumstances where the Court finds there is justification for departing from the principle. This exception is subject to the matters referred to in s.117(2A) of the Act.
Section 117(2A) of the Act states:
“In considering what order, if any, should be made under subsection (2), the Court will 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 the pleadings, particulars, discovery, inspection, directions to answer questions, admission of the facts, production of documents and similar matters;
(d) Whether the proceedings were necessitated by a failure of a party to the proceedings to comply with the 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) Any such other matters as the Court considers relevant.”
Pursuant to s.117(2) of the Act, the Court has the power to make a costs order in favour, or against, an ICL. That said, s.117(3), (4) and (5) of the Act are of particular relevance to the issue of costs involving an ICL. The provisions state:
“(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(4A) [omitted][94]
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.”
[94] Section 117(4A) is not germane to this dispute as it relates to a situation where a relevant officer intervenes in proceedings pursuant to s.91B of the Act.
The exercise of the Court’s power has been considered in a number of cases.
In Separate Representative v JHE and GAW (1993) 16 Fam LR 485; (1993) FLC 92-376,[95] the Full Court held that a person appointed to separately represent a child in proceedings under the Act is empowered to seek orders in proceedings under the Act and, if necessary, to appeal.[96] In respect of the issue of costs, the Full Court stated, by way of obiter, that the ICL (formerly called the ‘separate representative’) should be treated as, or as analogous to, a ‘party’ for the purpose of s.117 of the Act.[97]
[95] Reported by CCH Australia Ltd as Re P (a child); Separate Representative (1993) FLC 92-376.
[96] (1993) 16 Fam LR 485 at 497 (per Nicholson CJ and Fogarty J).
[97] Ibid, at 508.
In Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376 (“Telfer”), an ICL sought a costs order against the parties after the matter settled on the first day of the final hearing. The trial judge, Lindenmayer J, in awarding costs to the ‘child representative’, found that the financial resources of the relevant Legal Aid Office can be taken into account pursuant to s.117(2A)(a). His Honour stated:
“As indicated, the funds of the Legal Aid Office are finite; they are subject to very heavy demands in all areas, not the least of which is the area of legal aid for separate representatives for children in proceedings before this court. I think it is relevant for the court to consider, in the exercise of discretion as to costs, that the funds of such a body ought not to be exhausted in proceedings where there are other available means of providing the funds for the representation of the relevant children, and particularly where the necessity for that representation arises essentially out of conflict between the parties, rather than out of any deep-seated issues relating to the welfare of the children.”[98]
[98] (1996) 20 Fam LR 619 at 623-624; (1996) FLC 92-376 at 83,141.
Telfer was applied and approved by the Full Court in Re David (No.2) (Costs) (1998) 23 Fam LR 139; (1998) FLC 92-809. It was also considered and applied by Steele J in Lyris & Hatziantoniou[1998] FamCA 1311; (1998) 24 Fam LR 391; (1998) FLC 92-840; (“Lyris”). In Lyris, the Court stated that the quantum of the costs reflecting the relevant Legal Aid provider’s services should be calculated by allowing costs on the professional scale.[99]
[99] (1998) 24 Fam LR 391 at 395.
While the applicable wording of s.117(3), quoted above, now makes it clear that an ICL’s costs can be the subject of a costs order, s.117(5) stipulates the Court is required to disregard the fact that the ICL is funded under a Legal Aid scheme. This revised provision was considered by Dawe J in Kest & Olsson [2012] FamCA 148 (“Kest”). The consequence is that, the reasoning discussed in Telfer and subsequent cases no longer appears to be appropriate.
In addition, in NSW, the Legal Aid ICL guidelines oblige ICLs to seek an order for costs unless Legal Aid has waived a party’s liability to contribute to the ICL’s costs.[100]
[100] NSW Legal Aid, ‘Information for Independent Children’s Lawyers’, available at accessed on 16 June 2015.
Therefore, the question for the Court to decide is, using the words of Dawe J in Kest:
“… in relation to both the mother and the father in these proceedings, whether, considering the provisions of subs (2A), an order for the Independent Children’s Lawyer’s costs to be paid by the father or the mother or both the father and the mother should be considered just.”[101]
[101] Kest & Olsson [2012] FamCA 148 at [7].
Quantum of costs
In the event that the Court decides that the making of a costs order is just, then, unless the Court specifies otherwise, such costs are to be paid on a “party/party” basis. “Party/party” costs are costs necessarily incurred, paid at a reasonable rate. I note that the FCC Rules incorporates a schedule of costs as a guide to party/party costs in family law proceedings. Party/party costs would not ordinarily cover all the legal costs incurred by a party.
“Solicitor/client” costs or “indemnity” costs are ordered when the Court intends the costs order to cover all the legal costs reasonably incurred by that party. When a costs agreement is involved, the charges to be imposed on the other party are subject to the requirement of reasonableness.
In NSW, Legal Aid publishes a scale of costs for costs recovery.[102] These costs are relatively modest and NSW Legal Aid reserves the right to claim costs “sought on taxation according to the provisions of the Family Law Rules”. Regulation 21.02 of the FCC Rules allows the Court to refer the costs for assessment via Chapter 19 of the Family Law Rules 2004. Regulation 21.02 of the FCC Rules states:
[102] NSW Legal Aid, ‘Independent Children's Lawyer scale of fees (costs recovery)’, available at accessed on 16 June 2015.
“(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.”
In this case I note that the husband is not disputing the quantum of costs sought by the ICL being $4,145.20.[103] Rather, he disputes any liability to contribute to the ICL’s costs and, in particular, raises his capacity to pay such a costs order.
[103] Transcript, 3 February 2015, p.124.
Pursuant to an Order made at the conclusion of the final hearing on 3 February 2015, the father filed a Financial Statement on 24 February 2015. I have read and considered this document in addition to the father’s written application to NSW Legal Aid for the waiver of the ICL’s fees. The document was handed up to the Court during submissions without objection from the ICL.[104] In the circumstances I will allow the father to tender the document and it can be admitted into evidence and marked as an Exhibit (see Exhibit “AF1”).
[104] Ibid, p.125.
Submissions
Mr McDonell submitted the following on behalf of the father:
·Firstly, the father should not be required to meet an costs order sought by the ICL due to a lack of financial capacity to meet such an order; for example, as shown in cross-examination, it was submitted that the father would ‘struggle’ to make rental payments without the assistance of a flatmate:
“Mr Karp went through with him his various outgoings under oath. $300 per fortnight I think it was to go to Canberra; $120 for a cabin; 70 for petrol; child support; car repayments – he doesn't own his motor vehicle; child support arrears – I think it was 410 currently and 240 for arrears; credit card debts of $90 per fortnight.”[105]
·Secondly, the father owes his lawyers from $18,000 in legal fees;
·Thirdly, the father did make an application for a waiver of the costs however it was declined by NSW Legal Aid;[106]
·Fourthly, while the father and two of his brothers own property on the (omitted) of New South Wales, being the family farm his parents operate, it was submitted that:
“There's no capacity in the family for anybody to buy anybody else out and my client doesn't wish to become involved in litigation to dispossess his parents to make funds available. He simply doesn't have the money to meet the costs order sought;”[107] and
·Lastly, while it was conceded that the father may be able to pay the initial contribution request of $1650.00, he would be unable to pay the full costs sought.
[105] Ibid, p.126.
[106] Transcript, 3 February 2015, p.125 (that application was tendered and is marked as Exhibit “AF1”).
[107] Transcript, 3 February 2015, p.126.
Mr McDonell otherwise asked the Court to read and consider the father’s Financial Statement to be filed to support his argument for lack of financial capacity.
While the ICL acknowledged that the father had been required to commence these substantive proceedings and was generally supportive of the ICL’s final position, it was appropriate to make a costs order and the father had the necessary financial capacity to meet such an order.
Discussion
The Court will now consider the submissions in light of the relevant legislative provisions.
In respect of s.117(2A)(a), the financial circumstances of the parties, it is, strictly speaking, necessary for the Court to look at the final financial position of the father after the other Orders have been made in order to properly determine this issue.[108] However, I further note this is generally in the context of property proceedings which is not the situation in this case.
[108] See In the Marriage ofWhite (1982) FLC 91-246; (1982) 8 Fam LR 512 and In the Marriage ofMarinko (1983) FLC 91-307; (1983) 8 Fam LR 849.
As stated, the father filed a Financial Statement on 24 February 2015 which I have read and considered in addition to Exhibit “AF1”.
Despite the considerable financial burden that the father has met in prosecuting these proceedings, I am satisfied that there is evidence before the Court that the father has the capacity to meet the costs order sought by the ICL. I find accordingly.
Under s.117(2A)(b), I must consider whether the parties are in receipt of legal aid. In this case, the father has not been in receipt of legal aid during these proceedings. Of course, had the father received legal aid in respect of the proceedings then s.117(4) of the Act would appear to prevent the Court making the costs order sought by the ICL.
In relation to s.117(2A)(c), the conduct of the parties in relation to the proceedings, I note that the type of conduct that is usually considered relevant under this sub-paragraph includes actions or issues relating to:
·delay;
·the raising of extraneous issues;
·failure to comply with the requirements of the Court’s Rules; and
·failure to disclose (and so on).
This was not the subject of any submissions by the father or the ICL and does not appear to be relevant to the facts before me.
Under s.117(2A)(d), I must consider whether the proceedings were necessitated by failure of party to comply with previous Court orders. As between the ICL and the father that is not relevant issue.
In relation to s.117(2A)(e), I must consider whether any party to the proceedings has been wholly unsuccessful in these proceedings. Again, as between the ICL and the father, that is not relevant issue.
There is no evidence before the Court that would suggest that the consideration of s.117(2A)(f), namely whether either party has made an offer in writing, is relevant to this discrete dispute.
As to s.117(2A)(g), there are no other matters which I find to be relevant to the application for costs before me.
For the purpose of s.117(5), I note again that the Court must disregard the fact that the ICL is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Conclusion
After considering the evidence and submissions in light of the structured discretion contained in the relevant Acts, the Court finds as follows.
Parenting dispute
The Court is satisfied that the final orders sought by the ICL, with some modification and additions discussed further below, are appropriate and in X’s best interests.
The Court acknowledges that there has been a delay in the delivery of this decision. While this delay has been partly due to the demands of other matters, it has also been due to the complexity and time involved in drafting well-defined progressive orders. The Court acknowledges the level of complexity (and length) involved in such orders, and especially those which increase time with a party gradually, however, the alternative is to allow vague orders to be put in place which may be likely to lead to conflict and potential contraventions by the parties.
In summary, the orders will allow for X to spend gradually increased time with the father building to a situation where in several years’ time, and once X is settled at school, she is spending longer periods of time with the father including time during all school holiday periods. To reflect this, and to reflect the obvious cost of accommodation, I have given the father the option, as from the commencement of the 2018 school year, of electing to forgo one or more of the school term weekends occurring in Canberra conditional upon him giving the mother seven days’ notice.
I note that the father requested that the school holiday orders be drafted so that the NSW school holidays be used which would better match the times that the father would be available (as he is a (occupation omitted) himself). I agree with this submission to a point, however upon reflection this would add an unnecessary further layer of complexity to the orders. It is more appropriate that the ACT gazetted school holidays be used as X will be starting school in 2017 in the ACT. While X will ultimately spend one half of the Term 1, 3 and 4 school holidays with each party, I find it appropriate that she ultimately spend the majority of the Term 2 school holiday periods with the father. This will enable X to spend some quality time with the father twice yearly and also reflects the reality that the father is a (occupation omitted) and has the advantage of being able to take leave during school holiday periods. In addition, from 2019 when X is spending half of the Term 4 longer summer school holidays with each party, I have varied the order sought by the ICL so that the father has the first half in odd-numbered years and the second half in even-numbered years.
I find that X is not at risk in the father’s care and there is no need for the father’s time to be supervised. However, given the relative uncertainty around the father’s living arrangements, I find it appropriate that the father be restrained from having non-family members i.e. flatmates stay overnight in the residence when X is staying overnight with him. The ‘non-family member’ categorisation will not include his partner and her children. The restraint will not apply in the event the father arranges for a member of his immediate family (or his partner) to also stay overnight in the residence or the mother consents. Other arrangements of course can be agreed upon between the parties. The father should also ensure if possible that X has her own bedroom to sleep in when she is at his house. I note the father gave evidence that he was willing to involve his family in X’s transition to overnight time though I agree with the ICL that this is not a requirement that should be underpinned by an order.
As to changeover, I again find it appropriate to make quite specific changeover orders as the ICL’s proposed orders are somewhat deficient and do not provide for the eventualities that will arise over the coming years, in particular for X spending longer periods of time with the father in Sydney. That said, the orders will be drafted so that the parties can always come to an alternate agreement in writing.
Common sense dictates that changeover will occur in the city of the parent that X is going into the care of and I am confident that, in due course, the parties can work out the logistics of the changeover arrangements. Nevertheless, in accordance with the interim consent orders of 3 February 2015, the parties will have been using the Marymead Children's Service to affect the initial changeover in the mornings in Canberra. Given that the parties have presumably been using this Service for some six months now I will not continue this order however the orders will allow for the father to nominate the changeover location in Canberra and he may very well nominate that the Service continue to be used if indeed it has been working well and assisting the parties. That said, it will no longer be underpinned by a Court Order.
On those occasions that X is spending two nights or less with the father (whether in Sydney or Canberra) one party will commute to the city where such time is to be spent. On those occasions that X is spending three or more nights with the father, the parties will share the changeovers given that the mother works full-time and cannot be expected to stay in Sydney for the duration of the time that X will come to spend with the father, especially during school holidays. That is to say, when X is coming into the father’s care, the mother deliver X to the father at an agreed location or, failing agreement, at a location as nominated by the mother in Sydney; and when X is returning to the mother’s care, the father deliver X to the mother at an agreed location or, failing agreement, at a location as nominated by the father in Canberra.
The commencement of time in Sydney will be at 9:00am given that the mother travels to Sydney from Canberra the night before and presumably stays at her mother’ house and this changeover time is able to be facilitated. The slightly earlier start will also maximise X’s time with the father but allow the return changeover to be brought forward also by one hour to accommodate the mother should she travel back to Canberra by train.
I am satisfied that the telephone communication orders sought by the father are appropriate, and note that the mother agreed to those orders on the basis that the father facilitate X communicating with her as well.[109] That said, despite the father seeking that this order commence from when X starts school in 2017, I see benefit in such an order commencing from X’s fourth birthday. As raised at the final hearing, this order should be read to include other forms of electronic communication (i.e. Skype and Facetime) which are becoming increasingly common and with the video functions, very useful for young children in particular in communicating with family members who are not in geographical proximity.
[109] Transcript, 3 February 2015, p.121.
I note the parties agreed to an order regarding the use of a communication book to be used for exchanging information about X. One of the benefits of using such a mechanism is that it may assist the parties in further developing their parenting capacities in addition to dealing with the responsibilities of parenthood. I find a communication book order will assist the parties and it will be reflected in the final orders to be made.
The parties will also be under an obligation to keep the other informed of their residential and contact details to facilitate these orders.
As stated, the mother will be required to enrol, participate and complete an appropriate parenting course through Marymead Children’s Services. I note that there has been an order for the mother to do a parenting course in place for some time and the Court expects compliance with this.
The father has already completed a parenting course however, as discussed above, the father will be required to complete a first aid course focussing on children. For example, St John Ambulance Australia offer a course which is specifically designed to meet the first aid needs of parents, grandparents and carers of children and babies. The completion of such a course will increase the father’s skills base and give the mother further comfort that X will be safe in the father’s care. As discussed, the Court does not have concerns regarding X being in the father’s care but rather is of the view that completion of such a course can only assist the father and hopefully go some way to allaying the mother’s anxiety in respect of X spending time with the father.
As stated, the Court is satisfied that the above outcomes are in X’s best interests.
Costs dispute
As to the ICL’s costs, having regard to the relevant paragraphs of s.117 of the Act and in light of the submissions and available evidence, the Court finds it appropriate in the circumstances to make an order for costs in favour of the ICL and against the father. Accordingly, the father will be required to pay Legal Aid NSW the sum of $4,145.20.
Given the circumstances I will allow the father to pay that sum by way of instalments of $172.72 per month payable over 24 months provided he makes the first instalment payment to Legal Aid NSW by no later than 4.00pm on 31 July 2015.
The ICL will otherwise be discharged with the appreciation of the Court for their assistance in this matter.
There will be Orders and Notations of the Court to reflect these reasons.
I certify that the preceding one-hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 2 July 2015
0
2
3