Lysons and Lysons
[2018] FCCA 2043
•31 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LYSONS & LYSONS | [2018] FCCA 2043 |
| Catchwords: FAMILY LAW – Parenting orders –child conceived in a same-sex relationship –distrust between parents – best interests of the child – change of residence considered. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAA, 65DAB |
| Cases cited: KML & Rae [2006] FMCAfam 528 |
| Applicant: | MS T LYSONS |
| Respondent: | MS B LYSONS |
| File Number: | BRC 12213 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 19 July 2018 |
| Date of Last Submission: | 27 July 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 31 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pendergast |
| Solicitors for the Applicant: | WP Lawyers |
| Counsel for the Respondent: | Mr Clutterbuck |
| Solicitors for the Respondent: | Turnbull Mylne |
| Counsel for the Independent Children's Lawyer: | Ms Fotheringham |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
That all previous orders be discharged.
That the Respondent mother have sole parental responsibility for decisions relating to the care of the child [X] (“the child”) born … 2016, save for any decisions that conflict with orders made herein.
Notwithstanding the provision of Order 2 herein:
(a)The Applicant mother shall be responsible for the daily care, welfare and development of the child while he is living with or spending time with her; and
(b)The Respondent mother shall be responsible for the daily care, welfare and development of the child while he is living with or spending time with her.
That the child be known as [X] and that the Respondent mother be restrained from commencing or proceeding with any application for a change of name to be recorded against the child’s birth certificate.
Pursuant to s.69VA of the Family Law Act 1975 (Cth), the Court declares MS T LYSONS born … 1988 a mother of the child, [X] born … 2016, for the purposes of all laws of the Commonwealth.
That within fourteen (14) days of the making of this Order, the Respondent mother sign and return the Birth Certificate form to the Applicant mother, so that the Applicant mother’s name can be registered on the child’s birth certificate.
That within fourteen (14) days of the making of this Order, the Respondent mother sign and return the Medicare Care form to the Applicant mother, so that the child’s name can be registered on the Applicant mother’s Medicare card.
That the parties be jointly responsible for the costs of filing the Birth Certificate and Medicare care forms, with the Respondent mother to provide payment of her share of the fees on the return of the signed forms to the Applicant mother.
That the Applicant mother provide the Respondent mother with an original modified Birth Certificate following the issuing of same.
That Dr A of the Region 1 Medical Precinct be the child’s ordinary General Practitioner.
That the child be baptised as a Catholic if it is in the view of the priest, who would conduct such a baptism, that it is appropriate for the baptism to occur.
That the child not be permitted to travel to South Australia until such time as he has reached the age of seven (7).
That the child not be permitted to travel to Country C until he has reached the age of ten (10).
That the parties notify each other immediately by text message if a medical practitioner diagnoses the child (or [Y] in the case of the Applicant mother) with a contagious medical condition, including treatment information and advice of the duration of the contagious period.
That the parties exchange information in relation to all of the child’s medical appointments, including date of doctor’s appointments, presenting issues, diagnosis, treatment plans and an estimate of illness period via “Our Children Australia”, as soon as practicable, provided that such information is exchanged prior to the next changeover and no later than within 48 hours of any appointments having been made.
That the parties notify each other at least 30 minutes prior to changeover should the child require the administration of any prescribed or non-prescribed medication, including the date/time of last dosage, next dosage due time, and dosage amount, and that the parties ensure that the medication travels with the child at changeover.
That this Order act as an authority to the child’s medical and health providers to discuss with either parent the care, welfare and development of the child, and if appropriate, to provide both parents with copies of reports and information relating to the child.
That this Order act as an authority for the Applicant mother to be recorded as a parent, next of kin and emergency contact on all the child’s medical and other like health related records and the Respondent mother do all acts and things to facilitate this Order.
That the child remain at the Care Centre until he commences Kindergarten.
That the child be enrolled in 2021 in the Kindergarten program at … on a full-time basis.
That the child be enrolled at School 1 for commencement of prep in 2022.
That unless otherwise agreed between the parents, the child shall complete his primary school education at School 1 and his high school education at School 2.
That the child spend time with the Applicant mother at all times as agreed between the parties in writing but failing agreement as follows:
(a)From 31 July 2018:
(i)In Week 1:
1. Wednesday from 3.30pm to 7.00pm;
2. Saturday from 9.00am to 2.30pm; and
3. Sunday from 9.00am to 5.00pm.
(ii)In Week 2:
1. Wednesday from 3.30pm to 7.00pm; and
2. Sunday from 9.00am to 5.00pm.
(b)When the child attains the age of 2 ½ years:
(i)In Week 1:
1. Wednesday from 3.30pm to 7.00pm;
2. Saturday from 9.00am to 5.00pm; and
3. Sunday from 9.00am to 5.00pm.
(ii)In Week 2:
1. Wednesday from 3.30pm to 7.00pm; and
2. Sunday from 9.00am to 5.00pm.
(c)When the child attains the age of 3 years:
(i)Each Wednesday from 3.30pm to 7.00pm; and
(ii)Each alternate weekend from 9.00am Saturday to 5.00pm Sunday.
(d)When the child attains the age of 4 years:
(i)Each Wednesday from 3.30pm to 7.00pm; and
(ii)Each alternate weekend from 4.00pm Friday until 5.00pm Sunday.
(e)When the child commences Prep:
(i)Each alternate weekend from after school Friday to before school Monday or before school Tuesday morning should the Monday be a public holiday or pupil free day.
That notwithstanding any other provision of these orders, the child spend time with the Applicant mother on the following occasions:
(a)That upon the child commencing year 1:
(i)For half of each March/April, June/July and August/September school holiday period, on a week about basis, with holiday time to commence at the conclusion of school on the last Friday of the school term, in the first week in even numbered years, and in odd numbered years, from 12.00pm the following Saturday for the second week to before school Monday or Tuesday if the Monday is a public holiday;
(ii)Each December/January Christmas New year school holiday period, on a two week cycle, with the holiday time to commence at the conclusion of school on the last Friday of the school term, with the first two week block in even numbered years and each alternate two week block thereafter, and in odd numbered years commencing from 3.00pm Friday two weeks after the commencement of school holidays and each alternate two week block thereafter;
(iii)That school holiday time be suspended for special day provisions accounted for in these orders, including the child’s birthday, [Y]’s birthday, the Applicant mother’s birthday, the Respondent mother’s birthday, Easter, Christmas and Mother’s Day.
(b)On the child’s birthday, Thursday … 2019, from 3.30pm to 7.00pm. From 2020, from 3.30pm … to before kindergarten/school … in even numbered years and from after school … to before school … in odd numbered years. Should the birthday occur on the weekend from 3.30pm … to 2.00pm … in even numbered years and from 2.00pm … to 9.00am … in odd numbered years;
(c)On [Y]’s birthday, … 2018, from 9.00am to 5.00pm;
(d)On [Y]’s birthday, from … 2019 and each alternate year thereafter, 5.00pm … to 9.00am … each year;
(e)On the Applicant mother’s birthday, … 2018 from 9.00am to 5.00pm;
(f)On the Applicant mother’s birthday, … 2019 and each alternate year thereafter, from 5.00pm to … to 9.00am … each year;
(g)From 12.00pm Christmas Eve to 10.00am Christmas Day in odd numbered years, and from 10.00am Christmas Day to 5.00pm Boxing Day in even numbered years;
(h)From 12.00pm New Years’ Eve to 5.00pm New Years’ Day in even numbered years;
(i)For Easter 2019, from 1.00pm to 5.00pm on Good Friday and from 2.00pm to 6.00pm on Easter Sunday. From 2020, after school Easter Thursday to 12.00pm Easter Sunday and in every even numbered year and from 12.00pm Easter Sunday to 5.00pm Easter Monday in every odd numbered year thereafter;
(j)In 2019, from 3.00pm to 7.00pm on Mothers’ Day. From 2020, 9.00am on the Saturday before Mother’s Day to 10.00am Mother’s Day in even numbered years, and from 10.00am Mother’s Day to 9.00am the following day in odd numbered years;
(k)On 25 April 2019 from 9.00am to 5.00pm for Anzac Day, and every even year thereafter; and
(l)On 26 January 2019 from 9.00am to 5.00pm for Australia Day, and every odd year thereafter.
That any changeovers that otherwise do not occur at the child’s day care centre or school, occur outside of the shop of the Caltex Petrol Station at Town B Town Centre, mid-way between the parties’ cars.
That the parties ensure no adult third parties are in attendance at changeover, save for occasions in which the parties have agreed in writing.
That the parties exchange information in relation to all of the child’s education appointments and information, including application paperwork, enrolments, newsletters, school reports, etc, via “Our Children Australia”, as soon as practicable.
That each parent be at liberty to attend at the child’s school for events, presentations, sporting activities, concerts, fairs, fundraisers etc.
That this Order act as an authority for the child’s education providers to discuss with either parent the care, welfare and development of the child, and if appropriate, to provide both parents with copies of the reports and information relating to the child.
That this Order act as an authority for the Applicant mother to be recorded as a parent, next of kin and emergency contact on all the child’s educational and other like related records and the Respondent mother do all act and things to facilitate this order.
That the parties keep each other advised at all times of their suburb of residence, current postal address, email address and mobile telephone number, and provide 48 hours prior to notice of any change.
That each parent is restrained from denigrating the other parent or any member of the other parent’s family to, or in the presence of, or within the hearing of the child, and each parent shall ensure that the child is not exposed to any such denigration by third parties.
That the parties be restrained from approaching or discussing the Court proceedings with the other party’s family and acquaintances.
That neither party be affected by alcohol whilst the child is in their care.
That neither party be affected by illicit substances whilst the child is in their care, and ensure that the child does not come into contact with any person using illicit substances.
That an injunction issue in relation to either parent applying for a Passport for the child, prior to the child reaching the age of 10.
That the parties maintain use of the online communication portal “Our Children Australia” for the purpose of communicating about the child’s medical appointments, educational information, any other appointments, special events, changes to time arrangements etc.
That each parent be responsible for the payment of their respective subscriptions.
That the Independent Children’s Lawyer be discharged.
NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act1975 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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
B.It is noted that in the event there is no improvement in the communication between the parents, the Court may consider changing the residence of the child from the Respondent to the Applicant. The considerations in Rice & Asplund will not apply.
IT IS NOTED that publication of this judgment under the pseudonym Lysons & Lysons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12213 of 2016
| MS T LYSONS |
Applicant
And
| MS B LYSONS |
Respondent
REASONS FOR JUDGMENT
Introduction & Background
[X] was very much a wanted child. His parents Ms B Lysons (DOB … 1980) and Ms T Lysons (DOB … 1988) began a same-sex relationship in … 2014. Ms T Lysons already had a child, [Y], who was born on … 2010.
At the commencement of the relationship, Ms B Lysons expressed to Ms T Lysons that she (Ms B Lysons) had always wanted to have a child. The couple consulted with Queensland fertility group (“QFG”) and underwent counselling so that they both knew their responsibilities. Ms B Lysons then received a course of intrauterine insemination. Both parents paid for the procedure. [X] was conceived almost immediately in … 2015.
Ms T Lysons originally had the surname of … . She formally changed her surname to Lysons upon the successful conception. Ms B Lysons and Ms T Lysons then became engaged. Ms B Lysons had the surname of … but she, too, formally changed her surname to Lysons upon the engagement.
Ms T Lysons and Ms B Lysons had planned out many things for [X], including his schooling. The grand plan was for them to be a family with one surname living happily ever after.
Ms T Lysons was extremely involved in the pregnancy and supported Ms B Lysons fully during the gestation. [X] was born on … 2016 after a very long labour. Ms T Lysons cut the umbilical cord. Ms T Lysons was not recorded as a parent on the birth certificate for [X]. Ms T Lysons explains the reason for this was because she believed that [X] may face discrimination when he was enrolled in school because he is the child of same-sex parents.
After the birth, Ms B Lysons cared for [X] full-time and Ms T Lysons reduced her working hours to part-time, so that she could assist as much as possible. Both Ms B Lysons and Ms T Lysons were very dedicated parents.
Fissures then started to appear in the relationship. Each started to criticise the other and find fault in what the other did. There was domestic violence in the form of emotional abuse, psychological abuse and verbal abuse. This culminated in Ms T Lysons and Ms B Lysons agreeing to separate after a physical altercation that left Ms T Lysons with injuries. The police applied for, and were given, a domestic violence order naming Ms T Lysons as the aggrieved and Ms B Lysons as the respondent.
These incidents occurred on 30 November 2016 and 1 December 2016. Ms B Lysons then refused to allow Ms T Lysons to spend time with [X]. On 7 December 2016, Ms T Lysons filed the present application seeking parenting orders. The parties were able to agree, before going to Court, that Ms T Lysons could spend time with [X] at Contact Centre under supervision.
The matter came before me, on an urgent basis on 20 December 2016. By this stage, Ms T Lysons had seen [X] on two occasions under supervision. I made orders, after hearing submissions, that [X] live with Ms B Lysons and that he spend time with Ms T Lysons for a period of at least two hours, three times per week, on days as agreed between the parties. I did not see any need for such time to be supervised.
I also made orders for a child inclusive conference to occur and I adjourned the matter until 18 April 2017.
The matter came back before me on that date and I had the benefit of a memorandum from family consultant, Ms C. Ms C recommended that [X] spend more time with Ms T Lysons. Ms C also noted that both parties were experiencing mental health issues, which they both attributed to the relationship breakdown.
However, Ms C did not recommend that the Court obtain any new psychological reports, but rather receive reports from the parties’ current, or former, treating psychologists, to see if there were any mental health conditions that may be impacting upon either Ms B Lysons or Ms T Lysons with respect to their parenting capacity and co-parenting relationship.
Very pertinently, Ms C wrote:
“The complexity in this matter is [X]’s young age and the need for the parties to be flexible in making arrangements for [X] to spend time with them in a manner that is appropriate to his needs and development. It is unlikely that mediation will assist in the interim, as the Respondent mother’s position is that the Applicant mother should not play a role in [X]’s life, and she is therefore unlikely to voluntarily support the development of this relationship.”
After hearing submissions, I ordered that [X] spend time with Ms T Lysons on each Wednesday, between 3:00pm and 6:00pm; on each Sunday between 9:00am and 12:00pm; and on each second Saturday between 9:00am and 12:00pm. I also ordered that [X] spend time with Ms T Lysons on his birthday and on [Y]’s birthday. I ordered that an Independent Children’s Lawyer be appointed to represent [X], and also ordered that the memorandum of the Ms C be given to the mental health practitioners of both Ms B Lysons and Ms T Lysons. I adjourned the matter for mention on 27 July 2017.
Notwithstanding the strained relationship between Ms T Lysons and Ms B Lysons, once Ms Fotheringham, the Independent Children’s Lawyer (“the ICL”), was appointed, the parties were able to progress the matter somewhat more orderly.
On 27 July 2017, I ordered, by consent, that [X] spend time with Ms T Lysons each Wednesday between 3:00pm and 6:30pm; on each second Saturday between 9:00am and 1:30 pm; and on each Sunday between 9:00am and 1:30 pm. I also enlarged the order regarding time on [Y]’s birthday.
I ordered, by consent that the parties communicate via the Our Children Australia (“OCA”) website. I was informed that the Independent Children’s Lawyer would be obtaining a family report and adjourned the matter until 16 November 2017.
The family report from Ms D was filed on 13 November 2017. The recommendations of the report were for a gradual increase in time when certain developmental milestones had been reached. The report also advocated that the parties have equal shared parental responsibility.
On 16 November 2017, the parties told me that they could not reach any agreement, notwithstanding what they had both read in the family report. I set the matter down for a one-day trial on 19 July 2018.
Surname
Ms B Lysons has said that she will very soon be reverting back to her former surname of … . Once she does that, she wants [X] to have the same surname as she does. Ms T Lysons wants [X] to keep his surname as, at the time the pregnancy and birth, it was the desire of both parents for him to have the surname of Lysons.
Schooling
Both Ms B Lysons and Ms T Lysons acknowledge that, before conception, during the pregnancy, and after the birth, they had agreed that [X] would attend day care and kindergarten at Day Care. [X] would then attend School 1 and then School 2 for high school. Ms T Lysons wants to keep this arrangement, while Ms B Lysons has not made any plans for [X]’s schooling as yet. [X] is currently attending day care at a … facility and not the … facility. Ms T Lysons was not consulted before Ms B Lysons made this decision.
Suburb E
Ms B Lysons wishes to purchase land and then build a house with her mother in Suburb E. Ms B Lysons has put a $1,000.00 deposit on a $250,000.00 block of land and envisages moving there within the next 18 months or so. Ms T Lysons does not object to such a move, however, if [X] were living with Ms B Lysons, it would make schooling at School 1 totally impractical.
Travel
Ms B Lysons has family in Adelaide and extended family in Country C. Ms B Lysons wants the freedom to visit her family and to take [X] with her. Ms T Lysons is worried that Ms B Lysons will keep [X] in either of those places and not return with him.
Department of Child Safety, Youth and Women
Ms B Lysons has accused Ms T Lysons of reporting her to the Department of Child Safety, Youth and Women (“DOCS”). Ms T Lysons has denied this allegation but does admit that she did speak to DOCS when they contacted her and that she was forthright in her criticisms of Ms B Lysons. The ICL has subpoenaed the records of DOCS. It is obvious that there have been two persons who have reported matters to DOCS, but the reports are about both Ms T Lysons and Ms B Lysons.
The relevant summary from DOCS states as follows:
“Assessment of concerns
The Departmental threshold for recording a notification requires that there is an allegation of harm or unacceptable risk of harm to a child and there is a reasonable suspicion that the child is in need of protection (Child Protection Act 1999, section 14). Harm, in this context, refers to any detrimental effect of a significant nature on the child’s physical, psychologist [sic], or emotional well-being (Child Protection Act 1999, section 9(1)(3)). The above information has been assessed as not meeting this threshold based on the following assessment:
· Two reports have alleged that both parents, Ms T Lysons and Ms B Lysons have place [sic] [X] at risk of harm as a result of parental actions.
· The first report inidciate [sic] that Ms T Lysons has not got the patience to handle [X] due to her pre-existing anxiety and PTSD; it was reported that Ms T Lysons has yelled at [X], swore at him; and has not secured him correctly while travelling in the car. It was further alleged that she did not change his nappy on numerous days. The reporter has indicated that Ms T Lysons, on two occasions, has indicated a desire to ‘groom’ [X] to have sex with him when he is old enough. Please note, that no further context was provided surrounding this comment.
· The second reporter alleges that Ms B Lysons has on several occasions forcefully dropped [X] onto the bed in anger; that she has left [X] unsupervised while sleeping; that she has ceased contact between [X] and his half-brother [Y], and she verbally abuses Ms T Lysons in the presence of [X].
· There is no child protection history recorded on ICMS for the family and as such the current information does not indicate a pattern of harm identified for this family that is escalating in severity or frequency that is likely to cause harm to the children in the future.
· A pre-notification check conducted with QPS failed to provide any significant history for either parent, with one incident recorded on 01/12/2016 and on recorded on 06/12/2016. This incident appears to revolve around custody/access issues with regards to [X], and both parents have claimed the other parent had physically assaulted the other parent. A protection order was granted by the police.
· In relation to allegations that Ms T Lysons has a desire to ‘groom’ [X] there is insufficient information provided to indicate that these statements made indicate a probable risk to [X]. However, given the nature of the statements made, a referral has been provided to QPS for their assessment and/or action.
· At this time, there is insufficient information provide to indicate that [X] or [Y] have been harmed, or are at significant risk of future harm as a result of parental action. The allegations made appear to be made in context of family law court proceedings and while it is evident the parents have engaged in minor incidences of domestic violence, the impact of these incidences on [X] is not considered at this time to be significant. Should further incidences occur and should it be advised that the children are present or demonstrating any distress as a result of their expose to the incidences, then further assessments may be made.
· A Child Concern Report will be recorded.”
Evidence of Ms T Lysons
Ms T Lysons filed a number of affidavits and also gave evidence before me. Even though she was represented by Counsel, Ms T Lysons was the author of the case outline. Ms T Lysons sought an order for equal shared parental responsibility and for a graduated increase in her time with [X], so that there would be a week about arrangement soon after [X] had begun schooling. Ms T Lysons also wanted specific orders as to the schooling of [X] and the General Practitioner practice at which [X] would attend.
Ms T Lysons explained that she wanted those specific orders because that arrangement was what she and Ms B Lysons had agreed to during the conception and pregnancy stage. Ms T Lysons explained that she had sent money to Ms B Lysons for child support but that Ms B Lysons had returned it. Ms T Lysons said that she contacted the Child Support Agency for an assessment to be made, however, Ms B Lysons did not want an assessment. Ms T Lysons said this is the only reason she does not pay any child support for [X].
Ms T Lysons was asked about her communication with Ms B Lysons and she said that it had become better since they used the OCA website but there are still some problems with derogatory comments that are made during changeovers. However, she has not wanted to take those matters any further. She said that as far as she was concerned, things have improved.
Evidence of Ms B Lysons
Ms B Lysons gave evidence that she takes photographs of [X] before every visit with Ms T Lysons. Ms B Lysons said that she feels that she has to do this, because Ms T Lysons will make complaints about how Ms B Lysons is parenting [X]. Ms B Lysons said that she believes Ms T Lysons is dishonest, and that she would conspire with others to make false complaints about her. Ms B Lysons believes that Ms T Lysons is fixated on destroying her and, whilst Ms T Lysons may think she actually loves [X], Ms T Lysons is only using [X] as a tool to get back at Ms B Lysons. Ms B Lysons believes that Ms T Lysons has her under surveillance.
Ms B Lysons said that she did not believe that Ms T Lysons was a good parent, and that she does not think that Ms T Lysons should have a say in [X]’s life. She said that she does not want Ms T Lysons to be on the birth certificate of [X] because that would “give her more power”.
Issues with Evidence
Neither Ms T Lysons, nor Ms B Lysons covered themselves in glory during their evidence before me, though they were both brutally honest about their feelings towards each other. This litigation is akin to open warfare between the two. They both have a desire to win and have little regard for the collateral damage that is left lying in their wake.
Some of the behaviours of Ms T Lysons have been appalling. The communication with Ms B Lysons is confrontational and there is a sense of believing that she (Ms T Lysons) is right. There has not even been the slightest hint of wanting to have open discussion or dialogue.
On 21 December 2017, Ms T Lysons used the OCA website to tell Ms B Lysons that she was going to file an application in a case seeking more time with [X]. She was going to be relying upon the recommendations in the family report. She threatened Ms B Lysons with an application for costs, if Ms B Lysons did not agree to Ms T Lyson’s request. Ms T Lysons was nothing short of a bully in this conversation.
Despite what Ms B Lysons has said in her testimony, Ms T Lysons has presented as a parent who has genuine concern for the welfare of [X]. As any concerned parent would desire, Ms T Lysons is constantly wanting information on all aspects of [X] is life, especially health concerns. Whilst this may be somewhat unrelenting as far as Ms B Lysons is concerned, it seems to me that the requests originate from a true concern for the welfare of [X]. On instructions from Ms B Lysons, Ms T Lysons was asked “why do you want so much information?” It would seem to me that the answer is actually quite obvious.
While she has been openly critical of Ms B Lysons, Ms T Lysons has had opportunities to cause trouble for Ms B Lysons and has not done so. I note in the subpoenaed material, the police asked Ms T Lysons if she wished to “press charges” against Ms B Lysons for assault. Ms T Lysons declined that offer and left it to the police. It was the police who applied for the DVO and not Ms T Lysons.
Ms T Lysons was asked whether there had been trouble with Ms B Lysons since the making of the final DVO order in November 2017. Ms T Lysons replied that there had been derogatory remarks made to her which were in violation of the DVO but that she did not want to take the matters further.
These two examples demonstrate to me that Ms T Lysons is not “fixated on destroying” Ms B Lysons.
Ms B Lysons is adamant that Ms T Lysons constantly lies. While most of these incidents were not discussed during testimony, it does seem, prima facie, that Ms T Lysons has not always been totally honest in material that is in her affidavit. However, Ms B Lysons has gone too far in her claims. It seems to me that if Ms T Lysons says anything to which Ms B Lysons disagrees, the only conclusion that Ms B Lysons comes to is that Ms T Lysons is lying.
There are two very clear examples of this. At paragraph 50 of her affidavit Ms B Lysons says:
“50. Ms T Lysons’ lies seem to be ongoing. Ms T Lysons regularly stated in the communication book that [X] ate steamed broccoli [X] doesn’t like broccoli at all and will not eat it. Ms T Lysons usually claims that [X] naps while in her care but often when he returns to my care appears to be incredibly overtired.”
Ms B Lysons cannot contemplate that [X] might eat broccoli when he was with Ms T Lysons but not eat it when he was with her. Similarly, Ms B Lysons can’t comprehend that a child may have a nap and yet still be overtired. But to get to a point where she can only accept her own experiences as being “the truth” and therefore conclude that Ms T Lysons is therefore lying, illustrates a very serious character flaw in Ms B Lysons.
The Family Report
While I have already summarised the recommendations of this report, the report itself has been an extremely helpful document. Ms D conducted extensive interviews with both Ms B Lysons and Ms T Lysons, as well as [Y]. She observed both parents interacting with [X].
Ms D ultimately concluded that she could find nothing in the information provided to her that would enable her to conclude that either parent posed a risk of violence or abuse to [X]. Similarly, she could not find any evidence that any mental health issues would be a risk to the safety or well-being of [X] in the care of either parent. A similar finding was made regarding alcohol or other substance misuse.
“105. In my opinion, the recency of their separation is likely to be adding to the level of mistrust and lack of cooperation between the parents at present. However, the attendance of both women upon psychologist at present is likely to assist them to dealt with, and adjust to, the changes in their lives and relationship
…
109. Overall, it is my opinion that both parents have the capacity to moderate their own behaviour, and to comply with Orders of the Court. I further believe that their high levels of motivation to provide [X] with the best childhood opportunities, and parenting schedule they can offer, will see them manage to establish a more effective co-parenting relationship in the future.”
Ms D opined that [X] and [Y] share a close relationship with one another. Ms D said that sibling relationships are very important as they provide a unique and important contribution to a child’s development, and are often the longest surviving family relationships. Such relationships are an important source of comfort and support throughout life.
Ms D said that, in the interactions and camaraderie between [X] and [Y], she saw evidence of a good relationship between them and that this sibling relationship must be encouraged.
When Ms D gave evidence, it had been around eight months since she had compiled her family report. She expressed that she thought that the pain of the separation between the parents was still quite raw at the time of her interviews. She expected that over time this level of antagonism would slowly diminish.
Ms D was quite concerned that the conflict between the parents had not dissipated over the past eight months. When I recounted to her a summary of the evidence given by both parents, she was concerned that the level of conflict may never diminish and that these parents will always find something to argue about.
Ms D quite plainly said that parents must be able to put the interests of the child ahead of their own interests. She was concerned that Ms B Lysons may undermine any relationship [X] has with Ms T Lysons, given the statements that she made during her evidence.
I asked Ms D about the dangers of a change of residence. Ms D pointed to the general principles. Primarily, because [X] is only two years of age, he would benefit from the stability of one primary place of residence for the foreseeable future. The high levels of conflict, and the mistrust between these two parents means that [X] would be at risk of emotional harm if he was living between both parents in any form of shared care arrangement.
Ms D reiterated that the primary attachment relationship which develops in the first few years of child’s life is critical for the child’s later development, and ability to form and maintain close relationships. The primary attachment relationship provides a foundation on which the child will develop expectations about future relationships, an ability to trust others, and an ability to develop appropriate skills of independence and self-reliance. A disruption to this relationship at a young age, may result in a compromised or disorganised attachment style, which has the potential to impact the child’s development and future relationships throughout his life.
I questioned Ms D as to whether Ms B Lysons had “poisoned the well”. By this I meant that because Ms B Lysons is the primary attachment, and it would be harmful for there to be a disruption to that attachment, Ms B Lysons may undermine the relationship between [X] and Ms T Lysons to a point where it would be hard to resurrect. Ms D was unable to answer such a proposition.
Whilst obviously not desirable, Ms D did say that if there were a change of residence, [X] could cope with this but it would take time. She said that [X] would feel an acute sense of loss which would be difficult to overcome for some time.
Application of the Act
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of law to the circumstances of the case
I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made in these Reasons and how they apply in determining what parenting orders are most likely to promote the best interests of [X].
Primary considerations – section 60B
Turning firstly to the application of the primary considerations namely;
a) the benefit to the children of having a meaningful relationship with both parents
b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are in summary:-
a) It is important to [X] that he has a meaningful relationship with both his parents, and
b) There is no need to protect [X] from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are as follows:
a) Both parents to their credit have a committed involvement as parents in the child’s life, notwithstanding that they have not acknowledged the role the other parent has played.
b) Even though both parents have treated each other with contempt, there is no evidence of either parent treating [X] with anything other than the utmost love and consideration.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of [X]. Having made the finding in paragraph 64(b) above, s.60CC(2A) does not have relevance here.
Additional considerations – section 60CC(3)
Going through the considerations seriatim, I find as follows:-
a)In my view, [X] is far too young to be able to form any firm and considered view about this subject.
b)I have already discussed the relationship that [X] has with both his parents. I have also considered the relationship [X] has with [Y] and the importance of the sibling relationship.
c)It seems to me that Ms B Lysons jealously guards her time with [X] and is totally oblivious to the need that [X] has to have a relationship with Ms T Lysons. Ms T Lysons has jumped at any opportunity she has had to spend time with [X]. She has made numerous attempts to try and spend more time with [X]. I do acknowledge the inappropriate nature of some of those communications though it does indicate the desire of Ms T Lysons to become more involved with [X]. Since separation Ms B Lysons has continued to provide the primary care of [X].
ca)I am of the view that Ms T Lysons has fulfilled her obligations to maintain [X], but consistent with Ms B Lyson’s view that [X] does not need Ms T Lysons in his life, Ms B Lysons has refused to accept that Ms T Lysons has an obligation to [X].
d)This consideration has given me the most consternation. Because these two parents cannot co-parent, and one of the parents does not accept that the other parent has any role in the child’s life, the court has to consider whether a change of residence is in the best interests of [X]. I am extremely reluctant to interfere with the development of the primary attachment. That attachment is still being formed because [X] is only two years of age. However, Ms B Lysons will do nothing to facilitate the relationship with Ms T Lysons. The Court has to consider whether the disruption of the attachment that [X] has with Ms B Lysons is better than a situation where Ms B Lysons will continue to slowly alienate [X] from Ms T Lysons.
e)Even if Ms B Lysons goes ahead and relocates to Suburb E, the distance between Ms B Lysons and Ms T Lysons would not be such as to cause a practical difficulty with the child spending time with either parent. The only issue with such a move will be that of schooling
f)I am quite concerned about the capacity of Ms B Lysons to provide for the needs, especially the emotional needs, of [X]. The emotional needs of [X] are not met when Ms B Lysons is of the view that [X] is better off without Ms T Lysons in his life. This is tantamount to a denial of who [X] truly is. I do not have the same degree of trepidation with respect to Ms T Lysons. Notwithstanding her poor behaviour, she does still understand that Ms B Lysons has an equally important role in [X]’s life as Ms T Lysons does. Ms T Lysons has parented [Y] very well and has ensured that [Y] has a proper relationship with his father.
g)Because [X] is so young, it is important that he understands how it is that he came into this life. As I will speak later, his identity is extremely important.
h)This circumstance does not apply
i)The attitude of Ms B Lysons towards [X] and her responsibility to parenthood leaves a lot to be desired. She has treated [X] as if he were a piece of property to which she has sole rights. It seems to me that Ms T Lysons has treated [X] in a way that is respectful of the fact that he is an individual in his own right.
j)I am of the view that the family violence that has been occasioned in the relationship between Ms B Lysons and Ms T Lysons is situational; that is, violence arises because of poor problem-solving techniques by both parents. On the evidence before me, there is no danger to [X] because of these flaws in his parents.
k)Because of the previous circumstance, I do not think that there are any other matters that need to be taken into account because of the existence of the domestic violence orders that each have against the other.
l)Because [X] is so young, and because both parents are somewhat resolute in what they believe is in the best interests of [X], it is very difficult for the Court to make orders that will prevent further proceedings in relation to [X]. Nevertheless, it seems to me that the orders that I do make are the most appropriate at this point in time.
m)I have detailed, in these reasons, all matters that I consider relevant.
Parental responsibility
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence. This presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In this case, having regard to the findings I have made about the relationship between the parents, I am of the view that the presumption has been rebutted. I am of the view that it will not be in the best interests of [X] for the parents to be compelled to discuss the important issues relating to [X] and to come to a mutual agreement with which they can both live.
Having made that decision I am not required by s.65DAA(1) and (2) to consider whether to make orders that the child spend equal time. However, I should still consider whether I should order that [X] spend substantial or significant time with each parent. The section provides:
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the Court must:
(a)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending substantial and significant time with each of the parents is reasonable practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Substantial and Significant time
As to whether I should order [X] substantial and significant time with each parent, there is no dispute that this arrangement is not reasonably practicable, the issue is whether it would be in the [X]’s best interests to do so.
For a parenting order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times.
It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
FM Halligan as he was then known in the decision of KML & Rae [2006] FMCAfam 528 when considering s.65DAA(3) said:
“…these dual minimum requirements of when the time is to occur and what the time is to achieve by way of a mutual involvement of parent and child in each other’s lives relates to the dual aspects of the time being both substantial and significant respectively. A parenting arrangement will fail to meet the requirements of substantial and significant time unless it provides for time of a duration and frequency and occurring times, that enable the parent to be involved in the child’s daily routine.
What time arrangement is necessary to achieve this is a matter of fact to be determined in each individual case. That for a parenting arrangement to involve substantial and significant time, one would normally expect to see the amount of mid-week time, when taken with weekend, holiday and special occasion time, providing an opportunity for the child to be assisted by the parent with homework, to have the parent take the child to and from sports training and games in which the child is involved, to have the parent take the child to practice for, and to attend performances relating to, the child’s other extra curricula activities such scouts or guides, music and dance, and to experience life as a member of the parent’s household with all the mundane reality that entails, including the parent cooking, washing and cleaning for the child, and the child as may be age appropriate and in accordance with the reasonable wishes of the parent, assuming some household responsibility in that parent’s households.
That is not to suggest that a parenting arrangement in favour of the parent will not amount to substantial and significant time unless that parent has an opportunity to be involved in every facet of the child’s life, or to be so involved in a weekly basis. What is required is an opportunity for an involvement in the child’s daily routine which is significant, through spending time with the child that falls on weekends, mid-week and during holidays. What is required is a common sense approach based on the facts of the particular case, and not a formulae, one size fits all approach.”
In coming to my final conclusions, I have also been guided by the objects and principles set out in s.60B, quoted earlier.
Conclusions on Parenting
Notwithstanding that I am not inclined to order that the parents have equal shared parental responsibility, it seems to me that it is appropriate in this case that the Court make orders as to the primary health provider for [X], the education of [X] and the religion of [X].
In my view, it is very important for [X] to have an identity. [X] must understand why it was that he was called into this world. He was called into this world because his parents made a decision, out of love, that he should exist and be raised by them together.
[X] was born to be the child of both Ms T Lysons and Ms B Lysons and to be part of the unique Lysons family. [X] was born so that he could be educated in the Catholic tradition that both Ms T Lysons and Ms B Lysons had experienced. Both Ms B Lysons and Ms T Lysons had agreed that [X] would have both his primary and secondary schooling at School 1 schools.
Both Ms B Lysons and Ms T Lysons had agreed that [X] would be a patient of this the Region 1 medical precinct. They both agreed that [X] would be under the main care of Dr A or other doctors at that practice.
Those agreements, in my view, were integral to who [X] is and how both parents agreed that he would live his life. These aspects were integral to why he was called into this world.
I am not convinced that simply because the parents have ended their relationship this means that all of what [X] was to become can now simply be erased. For that to happen, in my view, paints [X] is been simply a commodity, and he is far more than that.
Notwithstanding that I will make an order for sole parental responsibility, it seems to me that I should make specific orders regarding health, education and religion. Making the orders for those matters necessarily indicates that the child must continue to live in a particular region.
It may be said that in making such orders, the sole parental responsibility is somewhat nugatory. There may be some merit in such an observation however, the only concern of the Court is to ensure that the orders made are in the best interests of [X]. In my view, such orders are definitely in the child’s best interests.
Residency
I have seriously considered whether it was in the best interests of [X] to change his residence though I would have had to be convinced of the absolute necessity of taking such a drastic step. I did raise the idea with the family report writer, and having done so, I was always going to be interested in the reaction of the parties.
The analogy to the problem that confronted King Solomon is apparent. Whilst it would have been extremely attractive to Ms T Lysons that [X] live with her, her reaction would have pointed to whether she was thinking with the best interests of [X] at heart. In short, if Ms T Lysons was only thinking of her own benefit, or was simply engaging in this litigation to “destroy” Ms B Lysons, Ms T Lysons would have grabbed the opportunity to ask for a change of residence notwithstanding that the disruption to [X] at such a young age could not be justified.
But the reaction of Ms T Lysons was that she thought that such a radical change would have an adverse effect on [X] which could not be easily remedied and may have a long-term consequences.
Such a submission reinforces the view that I have had that Ms T Lysons is solely focused on the welfare of [X] and is not in any way seeking to destroy Ms B Lysons.
On the evidence before me, I could never justify a change of residence while [X] is of such a tender age. Therefore, I will order that [X] remain living with Ms B Lysons.
Time to be spent with Ms T Lysons
Consistent with my view that [X] should not spend overnight time with anyone who is not his primary attachment until the age of three, I consider that a regime that gradually increases the time between Ms T Lysons and [X] should be implemented.
However, I am of the view that the lack of communication between the parents is not conducive to a shared care arrangement. It will not be in the best interests of [X] for a shared care arrangement to be made because that will force the parents to communicate with each other. Given the level of animosity that exists between the parents, I am not of the view that such communication would be successful and ultimately it is [X] that would suffer.
I will make orders in terms of the applicants outline paragraphs 5 (a) and (b). When [X] reaches the age of three, I am of the view that he should continue to spend every Wednesday from 3 PM to 7 PM with Ms T Lysons and spend each alternative Saturday from 9 AM until Sunday 5 PM with Ms T Lysons.
When [X] reaches the age of four, he continue to spend the Wednesday afternoons with Ms T Lysons and spend from 4 PM each alternative Friday until 5 PM the following Sunday with Ms T Lysons.
When [X] begins school, he will spend each alternative Friday after school until the beginning of school on Monday (or if the Monday is a holiday/pupil free day, then the beginning of school on Tuesday).
Until [X] begins school, I will not make any other arrangement for time during school holiday periods. Once [X] has begun school, I will make orders that reflect Ms T Lysons’ proposed orders.
Surname
Consistent with my earlier findings, I order that [X] remain known as [X] Lysons and that neither parent is permitted to change that name.
Birth certificate
Also consistent with what I have found, I order that Ms T Lysons be declared a mother of the child [X]. I order that this fact be reflected in the birth certificate. I also order that [X] be registered on Ms T Lysons’ Medicare card.
Schooling
I order that [X] remain at the … facility until he begins kindergarten. Whilst this was not the agreed day care centre for [X], I am of the view that it would be detrimental to [X] for him to be taken out of this educational centre.
I order that [X] be enrolled in the kindergarten program at Day Care Centre in 2021. I order that [X] be enrolled at School 1 primary school for the commencement of Prep in 2022. I order that [X] complete his high school education at School 2.
Medical issues
I order that the Region 1 medical precinct the ordinary general practice for [X] and that he be under the main care of Dr A. I note that in her evidence, Ms B Lysons did not object to such an order.
Religion
I order that [X] be baptised as a Catholic if it is in the view of the priest, who would conduct such a baptism, that it is appropriate for the baptism to occur.
Travel
I am of the view that [X] should be allowed to visit his family in South Australia and in Country C. However, this travel should not occur until [X] is much older. I order that [X] not travel on any holiday to South Australia with Ms B Lysons until he has reached the age of seven.
I also order that [X] not travel to Country C, or obtain a passport, until he has reached the age of 10.
The Future
Whilst I have not made any provisions for the time that [X] spends with both parents after he begins Prep, except for school holidays and special days, I would expect that the time with Ms T Lysons gradually increases to a point where [X] is living in a week about arrangement by the time he has finished grade 1.
However, such an arrangement will only be possible if the parents improve their communication. This will take a great effort from both of them, but especially from Ms B Lysons. If the communication level remains as it is, then I cannot see a situation where a shared care arrangement would ever be able to work.
The ball is in Ms B Lyson’s court. Either she improves her communication and acknowledges that [X] has a right to have a relationship with Ms T Lysons and actively promotes that relationship or Ms T Lysons will be entitled to come back to the Court in term four of year one (presently October 2023).
If the evidence presented to me at that time indicates that there has been no improvement in the communication between the parents and the attitude of Ms B Lysons, as is apparent from these reasons, I will seriously consider changing the residence of [X] from Ms B Lysons to Ms T Lysons. The considerations in Rice & Asplund will not apply.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 31 July 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Costs
-
Injunction
-
Procedural Fairness
0