MANDIC & BELLAIRE - [2016] FamCA 478

FAMILY COURT OF AUSTRALIA

MANDIC & BELLAIRE

[2016] FamCA 478

FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility is applied – Orders made for the child to live with the mother and spend substantial and significant time with the father – Orders made for changeover to occur at the child’s school.

FAMILY LAW – CHILDREN – CHILDREN – Education – Where the mother seeks to change the child’s school – Where the application is opposed by the father and the ICL – Consideration of section 60CC – Where the Court finds that it is not in the child’s best interests for his school to be changed – Orders made for the child to remain at his current school – Orders made for the parents to attend mediation prior to the child commencing high school.

FAMILY LAW – CHILDREN – CHILDREN – Overseas travel – Where there have been previous interim applications to the Court for the mother to travel overseas with the child – Where the parties primarily disagree as to the appropriate amount of time for child to be absent from school – Orders made for the child to be absent no more than ten days, subject to government guidelines and permission from the child’s school.

FAMILY LAW – CHILDREN – COSTS – Where the Independent Children’s Lawyer sought costs – Where the parties were both self-represented during the final stages of the litigation – Parties to share equally in the costs of the Independent Children’s Lawyer.

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

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Lansa & Clovelly [2010] FamCA 80
MRR & GR (2010) 240 CLR 461
Re G: Children’s Schooling (2000) FLC 93-025

APPLICANT:

Mr Mandic

RESPONDENT:

Ms Bellaire

INDEPENDENT CHILDREN’S LAWYER:

Ms Weate

FILE NUMBER:

SYC

4409

2012

DATE DELIVERED:

14 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

29 - 31 March 2016

REPRESENTATION

FOR THE APPLICANT:

Mr Mandic in person

FOR THE RESPONDENT:

Dr Bellaire in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

Orders

That all previous parenting orders be discharged.

Parental responsibility

That the parents have equal shared parental responsibility for the child B born … 2008 (“the child”).

Live with and spend time with

That the child live with the Mother.
That the child spend time with the Father as follows:
(a)       During the school term, on a two weekly cycle as follows:
(i)Week 1: From the conclusion of school on Thursday to the commencement of school on Friday; and
(ii)Week 2: From the conclusion of school on Friday until the commencement of school on Monday, and that in the event that Monday is a public holiday, pupil free day or a day in which the child does not otherwise attend school the time be extended until the commencement of school on Tuesday.
(b)       During school holidays:
(i)For one half of the school holiday periods following the conclusion of terms 1, 2 and 3, being the first half in 2016 and each alternate year thereafter and the second half in 2017 and each alternate year thereafter;
(ii)That for the purpose of these orders, the holidays following the conclusion of terms 1, 2 and 3 are taken          to commence on the first Saturday after the last day of the school term and conclude on the last Sunday before school recommences;
(iii) During the Christmas school holiday periods in 2016 and each alternate year thereafter:
i.    From 28 December to 4 January;
ii.     From 11 January to 18 January;
iii.   From 24 January until the day before the first day of the new school year.
(iv) During the Christmas school holiday periods in 2017 and each alternate year thereafter:
i.    From 21 December to 28 December;
ii.     From 4 January to 11 January;
iii.   From 18 January to 24 January
(v)     That unless otherwise agreed between the parties, changeover during school holidays is to occur at 10 am.
That the parties be at liberty to vary the above spend time arrangements at any time by written agreement.
That notwithstanding any order to the contrary, the child spend the following special occasions with each parent:
(a) The child’s birthday:
(i)That the child shall spend time with the parent whose care he is not in on his birthday as agreed, but in default of agreement from the conclusion of school until 5.30 pm on a day in which the child is attending school or otherwise from 12 pm to 4 pm on a non-school day.
(b) Mother’s and Father’s Days
(i)That if Mother’s Day falls on a weekend during which the child is due to spend time with the Father, then the child should be returned to the Mother from 9 am to 6 pm that day;
(ii)That if Father’s Day falls on a weekend during which the child is due to spend time with the Mother, then he is to spend time with the Father from 9 am to 6 pm that day.

Changeover

That wherever practicable, changeover is to occur at the child’s school.
In the event that changeover is to occur on a day when the child is not attending school, the Father is to collect the child from the Mother’s residence at the commencement of the child’s time with him and the Mother is to collect the child from the Father’s residence at the conclusion of time.

Communication

That the child is to communicate with the parent in whose care he is not in each Sunday between 9 am and 9.30 am and each Wednesday between 7 pm and 7.30 pm, with the parent whose care the child is in to initiate the call to the other parent.

Specific Issues

That each parent is to provide to the other details of their residential address, email address and mobile telephone number and thereafter provide to the other parent written notification of any change to such details within forty-eight (48) hours of such change being made.
That each parent immediately notify the other of any serious injury or illness suffered by the child whilst in their care.
That each parent notify the other in writing of any general practitioner, specialist or paediatrician who treats the child and provide all consents and authorities as necessary for the other party to communicate with the said medical practitioner.
Unless otherwise agreed between the parents, neither parent is to enrol the child in any further extracurricular activity which occurs during the time that the child is to be in the care of the other parent.

Schooling

That unless otherwise agreed in writing between the parents, the child remain enrolled at and attend D School.
That on or before 1 May 2020 the parents are to attend for mediation with a family dispute resolution practitioner for the purpose of reaching an agreement as to where the child is to attend school.

Overseas travel

That pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), each party be permitted to remove the child the child from the Commonwealth of Australia as agreed between the parties, but in default of agreement for a period not exceeding twenty-one (21) days per year.
That for the purpose of overseas travel as permitted by these Orders the party proposing to travel with the child provide to the other a minimum of twenty-eight (28) days written notice of their intention to remove the child from the Commonwealth of Australia, such notice to include details of any flights, destinations and the means by which the child can be contacted whilst he is overseas.
That each parent is permitted to allow the child to be absent from school for the purpose of overseas travel for a period of up to ten (10) days per year, or such further period as may be agreed between the parties, subject to the following:
a)Compliance with NSW Department of Education policies, requirements and/or guidelines; and
b)Prior permission being obtained from the school where the child attends from time to time.
That the parent holding the child’s passport is to release the said passport to the other parent a minimum of twenty-one (21) days prior to any proposed overseas travel.
That upon the child’s return to Australia, the travelling parent is at liberty to retain the child’s passport until it is required to be provided to the other parent pursuant to Order 19 herein.
That should either of the parents propose to travel with the child outside the Sydney metropolitan area for a period of greater than thirty-six (36) hours, then the parent proposing that travel is to provide the other parent with details, including contact details for the child, in respect to the travel and is to notify the other parent of the child’s arrival and return.

Non-denigration

Each of the parties are restrained by injunction from denigrating the other parent or members of the other parent’s household in the presence and/or hearing of the child ,and shall use their best endeavours to ensure that no other person denigrates members of the other parent’s household in the presence and/or hearing of the child.

Costs of the Independent Children’s Lawyer

The parties are to share equally in the costs of the Independent Children’s Lawyer.

AND THE COURT NOTES

A. That there is no specific order concerning the time that the child is to spend with each parent on Christmas Day as this day is to be alternated between the parents pursuant to Order 4(b) above.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mandic & Bellaire has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4409 of 2012

Mr Mandic

Applicant

And

Ms Bellaire

Respondent

REASONS FOR JUDGMENT

Introduction

B (“the child”) is a well-adjusted seven year old who is fluent in the language of Country F, interested in sport and is already showing promise as a piano player. His parents, Ms Bellaire (“the mother”) and Mr Mandic (“the father”), are to be commended that their protracted and, at times, bitter disputation does not at this stage appear to have adversely impacted upon the child.
The parents have agreed that it is appropriate for the child to continue living with the mother, who has been his primary carer since birth. The main issues the Court is required to consider concern the amount of time that the child spends with the father and which school he should attend.

Competing proposals

The interests of the child were represented by the Independent Children’s Lawyer (“the ICL”). The parties were self-represented.
At the commencement of the hearing on 29 March 2016, and with the benefit of discussions between the parties, the ICL helpfully provided the Court and the parties with a Minute of Proposed Orders which was in part agreed to by the mother and father. The ICL indicated to the Court on behalf of the parties that Orders 1, 2, 3, 5(b), 8, 9, 10, 11 and 12 were agreed to.
This Minute was subsequently amended on two further occasions throughout the proceedings primarily in respect to Christmas and school holiday time, (being Orders 4 and 5(a) of that Minute). In final form, the orders proposed by the ICL were as follows:
1.That all previous parenting orders be discharged.
Parental responsibility
2.That the parents have equal shared parental responsibility for the child [B] born … 2008 (“[the child]”).
Live with and spend time orders
3.That [the child] live with the Mother.
4.That [the child] spend time with the Father as follows:
a.During the school term, on a two weekly cycle as follows:
i.Week 1: From the conclusion of school on Thursday to the commencement of school on Friday; and
ii.Week 2: From the conclusion of school on Friday until the commencement of school on Monday, and that in the event that Monday is a public holiday, pupil free day or a day in which [the child] does not otherwise attend school the time be extended until the commencement of school on Tuesday
b.
During school holidays:

i.For one half of the school holiday periods following the conclusion of terms 1, 2 and 3, being the first half in 2016 and each alternate year thereafter and the second half in 2017 and each alternate year thereafter;
ii.That for the purpose of these orders, the holidays following the conclusion of terms 1, 2 and 3 are taken to commence on the first Saturday after the last day of the school term and conclude on the last Sunday before school recommences;
iii.During the Christmas school holiday periods in 2016 and each alternate year thereafter:
1.       From 28 December to 4 January;
2.       From 11 January to 18 January;
3.From 24 January until the day before the first day of the new school year.
iv.During the Christmas school holiday periods in 2017 and each alternate year thereafter:
1.       From 21 December to 28 December;
2.       From 4 January to 11 January;
3.       From 18 January to 24 January

v.That unless otherwise agreed between the parties, changeover during school holidays is to occur at 10 am.

5.That the parties be at liberty to vary the above spend time arrangements at any time by written agreement.
6.That notwithstanding any order to the contrary, [the child] spend the following special occasions with each parent:
a.[The child’s] birthday
i.That [the child] shall spend time with the parent whose care he is no in on his birthday as agreed, but in default of agreement from the conclusion of school until 5.30 pm on a day in which [the child] is attending school or otherwise from 12 pm to 4 pm on a non-school day.

b.Mother’s and Father’s Days
i.That if Mother’s Day falls on a weekend during which the child is due to spend time with the Father, then the child should be returned to the Mother from 9 am to 6 pm that day;
ii.That if Father’s Day falls on a weekend during which [the child] is due to spend time with the Mother, then he is to spend time with the Father from 9 am to 6 pm that day.

Changeover
7.That wherever practicable, changeover is to be facilitated at [the child’s] school.
8.In the event that changeover is to occur on a day when [the child] is not attending school, the Father is to collect [the child] from the Mother’s residence at the commencement of [the child’s] time with him and the Mother is to collect [the child] from the Father’s residence at the conclusion of time.

Communication
9.That [the child] is to communicate with the parent in whose care he is not in each Sunday between 9 am and 9.30 am and each Wednesday between 7 pm and 7.30 pm, with the parent whose care [the child] is in to initiate the call to the other parent.

Specific issues

10.That each parent is to provide to the other details of their residential address, email address and mobile telephone number and thereafter provide to the other parent written notification of any change to such details within 48 hours of such change being made.
11.That each parent immediately notify the other of any serious injury or illness suffered by [the child] whilst in their care.
12.That each parent notify the other in writing of any general practitioner, specialist or paediatrician who treats [the child] and provide all consents and authorities as necessary for the other party to communicate with the said medical practitioner.
13.That neither party is to enrol [the child] in any further extra curricular activity which occurs during the time that [the child] is to be in the care of the other parent without prior consent.

Schooling
14.That on or before 1 May 2020 the parents are to attend for mediation with a family dispute resolution practitioner for the purpose of reaching an agreement as to where [the] child is to attend high school.

Overseas travel
15.That pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth):
a.The Mother be permitted to remove the child [B] from the Commonwealth of Australia for the purpose of travelling to [the US] between 16 April 2016 and 29 April 2016.
b.That each party otherwise be permitted to remove the child [B] from the Commonwealth of Australia as agreed between the parties, but in default of agreement for a period not exceeding 21 days per year.

16.That for the purpose of overseas travel as permitted by these Orders the party proposing to travel with the child provide to the other a minimum of 28 days written notice of their intention to remove [the child] from the Commonwealth of Australia, such notice to include details of any flights, destinations and the means by which [the child] can be contacted whilst he is overseas.
17.That each parent is permitted to allow [the child] to be absent from school for the purpose of overseas travel for a period of up to 5 days per year, or such further period as may be agreed between the parties, subject to the following:
a.Compliance with NSW Department of Education policies, requirements and/or guidelines; and
b.Prior permission being obtained from the school where [the child] attends from time to time.

18.That the Registrar of the Family Court of Australia forthwith release [the child’s] passport to the Mother.
19.That the parent holding [the child’s] passport is to release the said passport to the other parent a minimum of 21 days prior to any proposed overseas travel.
20.That upon [the child’s] return to Australia, the travelling parent is at liberty to retain [the child’s] passport until it is required to be provided to the other parent pursuant to order 19 herein.

AND THE COURT NOTES

That there is no specific order concerning the time that [the child] is to spend with each parent on Christmas Day as this day is to be alternated between the parents pursuant to order 4(b) above.

In final submissions the father indicated to the Court that he agreed with the final form of the ICL’s amended minute of proposed orders subject to amending Order 4(b)(iii) and Order 4(b)(iv), as set out below, in respect to school holiday time. The document which contained the father’s proposed amendments was Exhibit F in the proceedings.
4(b)…
(iii). During the Christmas school holiday periods in 2016 and each alternate year thereafter:
1.From the conclusion of the last day of the school term until 23 December;
2.From 30 December to 6 January;
3.From 13 January to 20 January;
4.From 24 January until the day prior to the new school year.
(iv). During the Christmas school holiday periods in 2017 and each alternate year thereafter:
1.From 23 December to 30 December;
2.From 6 January to 13 January;
3.From 20 January to 24 January
Following the conclusion of the hearing, the ICL provided two Minutes of Proposed Orders. The first Minute being the ICL’s Amended Proposed Minute of Order which set out the Orders sought by the ICL at the conclusion of the hearing and which was Exhibit D in the proceedings, and a Minute of Order (“the Incorporated Minute”) which incorporated the ICL’s Amended Proposed Minute of Order (Exhibit D) and the amendments to Orders 4(b)(ii) and 4(b)(iv) as sought by the father (Exhibit F). The Incorporated Minute essentially set out the father’s position in the proceedings.
The mother indicated that she was in agreement with orders 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, 15 and 16 set out in the ICL’s Amended Proposed Minute of Order. At the conclusion of the hearing the mother provided the Court with a Minute of Order which set out her proposal in respect those orders sought by the ICL and the father to which she did not agree. That Minute was Exhibit “G” in the proceedings. The mother subsequently amended her proposed Minute of Order on three further occasions following the conclusion of the hearing. The final draft of the mother’s Minute which was circulated by the mother to all parties in the proceedings is set out below:
4. That [the child] spend time with the father as follows:
(a)
i. Week 1: from 6pm Friday to 6pm Sunday and provided that week one commence Monday, 28 March 2016: and when [the child] is no longer in the care of sitters (Tuesday morning) from 6pm Friday to before school Monday.
ii. Week 2: from after school Thursday to before school Friday; and when [the child] [is] in the care of babysitters (on Tuesday morning) from 6pm Monday to before school Tuesday.
(b)
i. For one half the school holiday periods following the conclusion of terms 1, 2, 3 and being the second half of each school holiday period in 2016 and each alternative year thereafter and the first half in 2017 and each alternative year thereafter; and exception be made to this order to allow for the Mother’s travel to [the US] (16-29 April 2016) so that the child spend time with the father in the first half of term 1 holidays in 2016.
ii. That for the purpose of these orders, the holidays following the conclusion of terms 1, 2 and 3 are taken to commence on the first Sunday after the last day of the term and conclude on the last Saturday before school commences.
Additional order for Christmas holidays, that I communicated to the ICL at Court on 31/3/16
vi. That for the purpose of these orders, the Christmas holidays are taken to commence on the second day after the last day of the term and conclude on the day before school commences.
6.
(a) Christmas
In the event that [the father] is in Melbourne for Christmas:
i. That the child spend time with the mother from 6 pm Christmas Eve until 10 am Boxing Day in 2016 and each alternative year thereafter; and
ii. That [the child] spend time with the father from 6 pm Christmas Eve until 10 am Boxing Day in 2017 and each alternative year thereafter; and
iii. That this occur in two consecutive years;
In the event that [the father] is in Sydney for Christmas:
iv. That [the child] spend time with the father from 4 pm Christmas Eve until 10 a.m Christmas Day in 2016 and each alternative year thereafter;
v. That [the child] spend time with the mother from 10 am Christmas Day until 10 am Boxing Day in 2016 and each alternative year thereafter;
vi. That this occur in two consecutive years.
14. That [the child] attend the [Foreign Language School] ([FLS]) to commence in the first available term or as advised by the [FLS].
17. That each parent be permitted to allow the child to be absent from school subject to the following:
(a) compliance with New South Wales Department of Education Policies, requirements and/or guidelines;
(b) prior permissions being obtained from the school where the child attends from time to time.

The mother also proposed a further order in respect to travel with the child outside the Sydney metropolitan area. This order was included in Exhibit G, but did not appear in the final draft of the mother’s proposed Minute of Orders. It was not clear to the Court whether this was an intentional omission or an inadvertent oversight by the mother. Despite this, I have set out the order below:
18. Travel outside of Sydney metropolitan area for > 36 hours
That the parent taking [the child] provide the other parent with contact details and notify them of the [sic] [the child’s] arrival and return.

Background

The mother was born in 1968 and is currently 48 years of age. The father was born in 1976 and is currently 39 years of age.
The parties commenced their relationship in March 2007. In 2008, their son, B, was born.
In January 2009 the parties moved into rental accommodation at H Street, Suburb I. The mother continues to live at that residence with the child.
The parties’ relationship deteriorated during the later stages of 2010, but they continued to live together until September 2011 when the father moved to Melbourne.
During the period from September to December 2011, the father travelled from Melbourne to Sydney on most weekends to visit the child. On those occasions he would stay at the mother’s home. On 27 December 2011, the child travelled to Melbourne to spend time with his father and remained with his father until 8 January 2012. In the period from February until April 2012, the child spent every alternate weekend with his father in Melbourne.
The mother asserts that the father did not see the child in the period from April 2012 until September 2012. This is confirmed in the Reasons for Judgment of Federal Magistrate Monahan (as his Honour then was) delivered on 11 February 2013.[1]
[1] [2013] FMCAfam 155.
In the period from September 2012 until January 2014 it appears that, in accordance with Order 5 made by FM Monahan on 11 February 2013, the child spent approximately four to five nights per month with his father in Melbourne. The mother, whose recollection was supported by contemporaneous diary notes, asserted that the father also visited the child in Sydney on four occasions during the period from September 2012 until September 2014.
The parties are in disagreement as to whether the father moved from Melbourne to Sydney in August or September 2014.
On 8 September 2014 interim parenting orders were made by consent. Those orders provided that, during the school term, the child spend time with father as follows:
(a) each alternate weekend from 6.00 pm Friday until 6.00 pm the following Sunday;
(b) every second Monday from 5.30 pm until 7.30 pm that evening.
There was also an agreement for the child to spend additional time with his father during school holidays. It appears that both parties have complied with those consent orders.
The mother is a health care professional who works approximately eight hours on each alternate week. The days the mother works are usually Tuesdays and Thursdays.
The father is a consultant who, in recent years, has provided his services to private and government institutions on a contract for services basis.
The child is currently in Year 1 at D School.
Orders have been made in these proceedings by FM Monahan on 11 February 2013, and by myself on 21 August 2015 and on 20 November 2015. Those orders have, on an interim basis, addressed a number of areas of dispute between the parties. Those areas of dispute have included the arrangements for the child to spend time with father, the child’s schooling, the mother undertaking overseas travel with the child and the school that the child should now attend.

Issues

The issues to be determined are therefore as follows:
·    Should the time the child spends with the father on each alternate weekend be varied to include overnight time on Sunday?
·    Which school should the child attend?
·    What arrangements should be in place for the child to spend time with the father during school holiday periods?
·    What arrangements should be in place to facilitate overseas and domestic travel by the parents with the child?
·    Is a non-denigration order required?
·    Should the parties be required to pay the costs of the ICL?

Approach

In parenting proceedings, the paramount consideration of the Court in deciding whether to make a particular parenting order is the best interests of the child. Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) sets out the matters to which the Court must have regard to in determining what is in the child’s best interests.
It is appropriate to analyse and determine each of the issues in dispute between the parents in this matter in the context of the considerations set out in 60CC of the Act.

Parental responsibility

Section 61DA(1) provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Pursuant to section 65DA(2), that presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child (or another child) or family violence. The presumption may also be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The parties are in agreement that there should be an order for equal shared parental responsibility. The Court notes, however, that in the Family Report dated 3 March 2016, the family report writer, Ms J, expressed concern as to whether such an order would be practicable in circumstances where the parents have been involved in protracted disputation concerning parenting arrangements for the child.
Both parents were self-represented in these proceedings and the hearing involved the unsatisfactory situation of the parents’ cross-examining each other. While the artificiality of that situation needs to be recognised, it nonetheless revealed the extent of the conflict that has occurred between the parents, including the fact that both parents have, at times, adopted dogmatic and intractable positions in respect to their parenting of the child.
Nevertheless, during the course of the final hearing, it was evident that both parents genuinely seek outcomes that they believe are in the best interests of the child. The parties’ final submissions also reflected at least some appreciation of the other party’s point of view.
All things considered, including most specifically that the parents agree to an order for equal shared parental responsibility and, having regard to the decision of Murphy J in Lansa & Clovelly [2010] FamCA 80, I determine that it is appropriate for an order to be made for equal shared parental responsibility despite the history of disputation that has existed between the parties. In that respect, at [155], Murphy J said:
Here, the pervasive, and apparently intractable, conflict is not in doubt. There are consequent concerns about the Act’s requirements if the presumption is to apply. But, these are two intelligent people. There has in the past been significant co-operation between them (and, if the earlier affidavit evidence of the wife is accepted, some goodwill). The children love their parents dearly and, dare it be said, equally. [The children] – or at least Y, and probably C – recognize the polarized nature of their parent’s parenting and their different attitudes, standards and styles. Ms V is hopeful that a decision about parenting (and, specifically, “relocation”) will see an abatement of the conflict. It seems to me that these children should have the benefit of having each of their polarized parents having input into the major long-term issues affecting them.
In this matter both parents and the ICL sought an order for equal shared parental responsibility. Despite the concerns raised by the family report writer as to the practicality of an order for equal shared parental responsibility, I am satisfied, on the evidence, that this is a matter where the presumption would apply. I therefore propose to make an order for the parents to have equal shared parental responsibility for the child.
Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode (2006) FLC 93-286, the Court is then required to consider the provisions of section 65DAA(1):
Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the child to spend equal time with each parent, then the Court must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and is reasonably practicable.
Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) sets out what the Court must have regard to in considering what is reasonably practicable:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The High Court in MRR & GR (2010) 240 CLR 461 has confirmed that the Court must consider each of these questions, that is, is it in the child’s best interests and is it reasonably practicable before an order can be made for equal time or for substantial and significant time.

Consideration

Should the child spend equal time, or substantial and significant time, with each of his parents?

Both parents and the ICL are in agreement that the child should live with the mother and spend substantial and significant time with the father. The question is then whether this is in the child’s best interests and if so, how should that time be arranged.
The mother acknowledged the benefit of the child continuing to have a meaningful relationship with the father and I am satisfied that should occur. The mother argued, however, that the length of time that the child spends with the father should not be increased because of the following:
a)In the period prior to August 2014 when the father lived in Melbourne and the mother lived with the child in Sydney, the father failed to avail himself of all opportunities to spend time with the child including a period of several months between April and September 2012.
b)During the time the child has spent time with his father since the father’s relocation to Sydney, the father has failed to take the child to events that would be of interest and benefit to the child including:
i)soccer training;
ii)community Christmas functions;
iii)other children’s birthday parties; and
iv)most significantly, a father and son event at the child’s school.
The mother also expressed concern that, when the child was in the company of the father, he permitted the child to play an online computer game with his cousin that was rated M15+.
Finally, the mother expressed concern that, following several visits with his father, the child has complained about staying indoors for too long.
The concerns of the mother regarding the father’s failure to take the child to a number of events of interest and benefit to the child are of substance. Those concerns are a relevant consideration under section 60CC(3)(f) which requires the Court to consider the capacity of each of the child’s parents to provide for the needs of the child including their emotional and intellectual needs.
Of greatest concern was the father’s failure to attend a father and son event arranged at the child’s school. When questioned by the mother as to his reasons for non-attendance, the father explained that he was unable to make the necessary arrangements in circumstances where he had received inadequate notice of the event. When pressed, however, as to why the father could not vary his arrangements, the father failed, in my view, to provide a satisfactory explanation as to why he could not have given priority to the school event. When questioned by the ICL, the father acknowledged that his non-attendance at the event may have caused hurt and even distress to the child.
The father’s non-attendance at that particular event, and perhaps the other events listed by the mother, was inconsistent with the weight of the father’s evidence that he is entirely devoted to the child.
Despite the reservations I have regarding the father’s preparedness to accompany the child to social events, my concern is not such that it impedes me from determining that the child should spend substantial and significant time with his father.
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and to communicate with the child.
In the context of that provision, I have had regard to the mother’s concerns that, particularly in the period between January and September 2014, the father failed to take all reasonable opportunities to spend time with the child and did not see him for a period of five months. In response, the father explained his position as being the result of the absence of appropriate orders.
In respect to this issue, the ICL submitted that, while there has been an undesirable situation that has arisen in the past regarding the father availing himself of all reasonable opportunities to spend time with and communicate with the child, the focus should be the father’s more recent interaction with the child. I agree with the ICL that this more positive recent experience, which is in accordance with orders that are now in place, is a more compelling factor in looking towards appropriate arrangements in the future.
The mother also raised valid concerns regarding the father permitting the child to play a M15+ rated video game. Her legitimate concerns are a relevant consideration pursuant to section 60CC(3)(f).While the family report writer indicated that the evidence is unclear as to whether a seven year old, playing such a game had the potential for harmful consequences, the mother was, in my view, entitled to voice her concerns and the father should have recognised her concerns. During the course of the hearing the father recognised that and I am satisfied that he will adopt a more reasonable approach in the future and, specifically, have regard to any concerns raised by the mother regarding the child having access to material that is not age appropriate.
In moving beyond matters that concerned the mother, I have had regard to all section 60CC considerations. Those considerations which are of greatest relevance are as follows:
a)In terms of section 60CC(3)(ca), both parents have fulfilled their obligations to maintain the child with the father continuing to meet his child support obligations.
b)In terms of section 60CC(3)(d), I note that the parents live in close proximity to one another. The child spending substantial and significant time with his father will not result in a significant change in his circumstances, nor, pursuant to section 60CC(3)(e), will there be any practical difficulty or expense in that occurring.
c)In terms of section 60CC(3)(g), I note that the child’s paternal grandparents are European and it is appropriate that he retains a connection to their culture and traditions. The mother was fully supportive of the child being exposed to a range of cultures including that of his European heritage.
For all of these reasons I am satisfied that it is in the child’s best interests for an order to be made providing for him for to spend substantial and significant time with his father. The question is now how those orders should be structured.
The child currently lives with the mother and spends time with the father each alternate Monday evening from 5.30 pm until 7.30 pm and each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday.
Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Both parents agree that there should be an order for equal shared parental responsibility and I propose to make that order. Both parents are also in agreement that the child should live with the mother and spend overnight time with the father. Both the ICL and the father argued that on those alternate weekends that the child spends time with the father, the father should collect the child from school on Friday and return him to school on the following Monday morning. It was similarly argued that, on the alternate weeks where the child spends an evening with his father, that the time should be increased such that the father collects the child from school in the afternoon and following the child spending that night at the father’s home, the father returns the child to school the following morning.
The mother argued, on the other hand, that on those weekends when the child spends time with the father, the child should continue to be collected from her home on Friday evening and returned to her home on Sunday evening. The mother indicated, however, that she is prepared for the child to stay with his father on those mid-week nights when she works late and in those circumstances, it would be appropriate for the father to collect the child from school and return him to school the following morning.
The ICL relied on the evidence of Ms J who, during the course of the hearing, expanded upon the recommendations set out in her Report dated 3 March 2016. It was the view of Ms J that, at those times when the child is to spend time with his father, it would be preferable for the father to collect the child from school and return him to school. In so far as that meant increasing the time the child spent with his father to include an overnight stay on Sunday, Ms J submitted that was an appropriate outcome.

At paragraph 44 of her Report Ms J said:
Unless the parents are able to formulate appropriate communication strategies and demonstrate respect for their different approaches to [the child’s] education and development, it is very possible that, as [the child] matures, he might be significantly negatively impacted in many areas of his development by the parental conflict. He might, in the future, experience significant difficulty in moving between his parents’ homes. One way in which older children, particularly adolescents, cope with this tension is to cut off the relationship with one parent. This would not be in [the child’s] best interest… [H]e is feeling somewhat caught in the middle of the parental conflict.
During the course of her evidence Ms J also said that:
If a child is continually exposed to [their parents’ conflict] as they move into adolescence you sometimes find children self-harming, engaging in early sexual experimentation, experimentation with drugs and alcohol.
Ms J also noted that the child said, in respect to his parents arguing, that “[i]t goes on and on and I feel like shutting the door and leaving them outside.”
Having witnessed the parents cross-examining each other during the course of the hearing, I am entirely sympathetic to the child’s point of view.
The mother, on the other hand, argued that it was unnecessary to avoid the parents meeting with each other at changeover. The mother indicated that, other than on one instance which she regretted, she has maintained civility in her dealings with the father. The mother also asserted that, while the father has indicated to the child that he does not think fondly of the mother and that there are tensions in the relationship between them, the mother believes it is important for the child to see his two parents cooperating in respect to his welfare.
The mother notes that the child was uplifted on one occasion when the parents met and they all attended a local playground together. The mother submitted that there would be more opportunities for this to occur if there was face to face contact between the parents at changeover.
Ms J, however, noted that even without the parties arguing, the child would be exposed to potential situational stress at changeover in circumstances where there is poor communication between the parents. At paragraph 24 of her Report Ms J noted the mother reported that the father does not speak to the mother nor look at her during changeovers.
Ms J doubted that the parents had the capacity to change their mode of communication in the immediate future.
Determining how changeover should occur is significant because it leads into the issue as to whether the father should collect the child from school and return him to school, or alternatively, continue under the current arrangements where he collects and returns the child to the mother’s home. In considering this issue I have had regard to the provisions of section 60CC(2)(b) which I have referred to above. Specifically I have had regard to the need to protect the child from potential psychological harm. I am satisfied that the child would be exposed to a potentially stressful situation in witnessing the tension between his parents at changeover and, on that basis, I accept the recommendation of Ms J that the changeovers should occur at school whenever that is possible.
Having made that determination I repeat the point that I made during the course of the hearing that these orders will not preclude the parents from developing a more cooperative approach to parenting, including making arrangements for them to spend combined time with the child if they so choose, provided that can occur without the child being exposed to the stress and tension arising from the conflictual nature of their relationship.
In forming the view that the changeovers should occur at school, I have also had regard to the mother’s concerns that she believes the child would be too tired to properly function at school on the Monday following those weekends that he stays with his father. In that respect she noted that after being with his father for the weekend, the child returns on Sunday evening in an unsettled state.
On the other hand, based on her experience, Ms J expressed the view that having the father drop the child back to school may actually result in the child being more settled. In responding to a question from the mother, Ms J said:
Well, that means that dad will have to get them up [on Monday morning], and maybe they won’t cram quite so many activities into the weekend, because dad knows that he has to get them to school on time on Monday morning, and the other issue would be school uniforms and the response to that is “well dad picks them up with the uniforms, so dad has to do the uniforms over the weekend and send them back to school”.
Ms J also said that, in her experience, rather than coming back on a Sunday evening being a bit emotional and perhaps unsettled as a result of leaving one parent and reconnecting with the other, children are more likely to remain in a routine of getting to bed on time on Sunday night if they stay with the parent they have spent the weekend with. Ms J acknowledged that every family situation was different, however in her experience, children were more likely to return to the parent they lived with on Monday afternoon and resume their relationship with the other parent “as though they’ve just had a day at school”.
In determining that it is appropriate for changeover to occur at school, I also agree with the submission of the ICL that the extension of time that the child will spend with his father, on the alternative weekends, from conclusion of school on Friday to the commencement of school on Monday, will better enable the father to be exposed to and participate in the child’s daily routine. That will present an opportunity for the father to have greater involvement with the child, including picking him up and dropping him off at school which is entirely consistent with the provisions of section 60CC(2)(a).
At the same time, changeover occurring at the child’s school will avoid the child being exposed to the tension between his parents which otherwise occurs at face to face changeover. This minimises the potential for the child to be exposed to the conflict between his parents which may cause him distress and, potentially, psychological harm. This is a relevant consideration pursuant to section 60CC(2)(b).
Accordingly, I will make orders that on school days, the child is to be collected from school and returned to school at the commencement and conclusion of the time he spends with his father.

The Child’s education

The question as to which school the child should attend has been an issue of intense disputation between the parents. The child currently attends D School where he commenced in 2015. He is now in Year 1.
At the commencement of the hearing, I was concerned that each party had retreated to unreasonably stubborn and dogmatic positions. To the parties’ credit, however, after considering each of the other’s evidence and submissions, both appeared to show a greater appreciation of the other parent’s point of view.
The mother is quite determined to see the child enrolled in the Foreign Language School (“the FLS”) which is located at Suburb K. The father has been equally as determined to prevent this occurring. As noted in the Family Report, dated 3 March 2016, the father compared the mother’s focus on Country F language and culture with those of a person who has fundamentalist religious views.[2] He repeated that point of view during the course of his oral evidence stating that the mother was “fanatical” about the child being enrolled in the FLS.
[2] Family Report dated 3 March 2016 at paragraph 16.
In her oral evidence and submissions, the mother detailed the research she had undertaken in respect to the child’s education generally and specifically the opportunities that the FLS would provide to the child. One of the factors that the mother initially considered was that, in Kindergarten and also during a portion of Year 1, the child had been having difficulty in forming relationships at school and was reluctant to go to school. It was recognised by both parties, however, that the child is now far more settled in school and he has formed a small friendship group.
The mother presented detailed arguments as to why the child would benefit from attending the FLS. By way of summary those arguments were:
·    The child is proud of his ability to speak a foreign language and he would have further opportunity to develop that skill which may open opportunities for him in the future.
·    The FLS has age based classes whereas D School has composite classes in circumstances where there are insufficient children of a particular age to justify forming an age based class.
·    The child shows great interest in maths and science and the FLS encourages students to develop their skills in those areas.
·    The child is showing promise as a pianist and he would have the opportunity of developing that musical skill at the FLS whereas at D School he would be required to learn a new instrument if he wished to participate in that school’s brass band.
·    The child is already participating in a drama program run by the FLS after school on one day each week. The mother believes he would have the opportunity of further developing that interest if he actually attended the FLS. This would provide an opportunity for the child to form a closer association with other students who are involved in the drama program.
·    The FLS offers students a range of sporting opportunities, including surfing.
·    The NAPLAN results achieved by the FLS are comparable to those achieved at D School with both schools achieving better outcomes than the New South Wales average. Those results include a slightly higher ranking in English language proficiency in Year 5 at the FLS.
·    While classes are taught in a foreign language, in the earlier years, the school devotes ten hours per week, or approximately one third of the school week, to English study.
·    If enrolled at the FLS, the child would not have to change schools when he transitions into high school. This, it was submitted, would be less traumatic for him.
·    In high school at the FLS there is a greater emphasis on English and students sit the International Baccalaureate in Year 12, which is undertaken in English. The mother argued that, as result of being internationally recognised, the International Baccalaureate would open up opportunities for the child to attend university overseas.
·    The mother submitted that she has some familiarity with the teaching staff at D School as a result of volunteering there. The mother favourably compared the teaching staff of the FLS, who she believes paid closer attention to the child’s needs when he attended a three day pre-enrolment assessment at the FLS.
·    While recognising that the FLS was further away from where both parents live, the mother submitted that travelling to the school would not present a great inconvenience to the parties or to the child as it involved a twenty minute bus trip. The mother also noted that she and the child have met with several other children who reside in the Suburb D area and who also attend the FLS. The mother expressed some optimism about the possibility of pooling arrangements with the parents of those children.
·    The mother also argued that the child would have the opportunity of forming friendships with children from a number of different nationalities who attend the FLS.
As noted, while initially maintaining the view that the mother’s desire for the child to be educated at the FLS was as a result of the mother’s obsession with Country F language and culture, the father appeared to moderate his views during the course of the final hearing. The father, nonetheless, argued against the child attending the FLS for the following reasons:
·    The child would benefit from attending school with children from his local area. This would enable him to form stronger bonds with his school mates and have greater opportunities for socialisation after school and on weekends. The father indicated that he experienced some difficulty during his own childhood when he was placed in a private school some distance away from where he lived and he does not want the child to be subjected to the same difficulty.
·    Educating the child at the FLS would impact upon him identifying as an Australian, and instead identifying as being European. This was in circumstances where the child had no specific heritage to the particular country to which the school specialised.
·    The father saw great strength in the child having an education where he would relate to people from a range of different social and cultural backgrounds. He believed this was best achieved with the child continuing with his current schooling arrangements within the public education system.
·    The father would like to become more involved in the child’s education and foresaw substantial difficulties if the child attended the FLS. In particular, the father believes that the parents or a number of parents of children at the FLS do not speak English when they communicate and socialise with other parents. The father also expressed concern about his ability to help the child with his homework if it is in a language to which he is unfamiliar..
·    The father saw some risk that if the child attended the FLS he would see himself as different from other children and/or they would see him as being different from them. This, the father believed, had the potential to impact upon the child’s ability to form friendships with other children.
As noted, to the father’s credit, after hearing the mother’s evidence and submissions, he indicated that he was prepared to keep an open mind on the question of the child’s schooling. The father indicated that if future financial circumstances permitted he would consider agreeing to the child being enrolled in a private school. Without committing himself, the father also indicated that he would be influenced by the child’s opinion when he had become a little more mature. The father indicated, in that respect, he would be more inclined to have regard to the child’s views expressed as a ten year old rather than a seven year old. Without committing himself, the father indicated that he would even be prepared to consider the child’s wishes at that time if those wishes were to attend the FLS.
Counsel for the ICL, in her submissions, noted that the issue in respect to which school the child attends has been a significant issue of conflict between the parents. She noted that while the Court should have regard to all the relevant section 60CC factors, the most important factor was the likely effect that any change will have on the child. It was further submitted that while both the FLS and D School appear to be appropriate schools in meeting the child’s needs, the ICL’s position was that she did not support a change in the child’s school at this point in time. This was on the following basis:
a)While it appears that the child had initial difficulty in settling into school, it was certainly in the assessment of the family report writer that the child now appears happy at D School. He has reported making friends and there was no evidence before the Court to suggest that D School was not meeting his academic needs. Further counsel submitted that the Court did not have the benefit of any expert evidence or school counsellor report that would lead the Court to make a finding that D School was not meeting the child’s needs. In respect to the NAPLAN results tendered by the mother in the proceedings, counsel for the ICL submitted that there was little that could be taken from those results in terms of differentiating between the FLS and D School.
b)There are issues in terms of change of additional travelling distance, cost of travel and separation from pre-existing peer relationships should the child school be changed to the FLS.
c)Further, the ICL held some concerns that the FLS is a bilingual school and how that would impact on the father’s ability to engage fully in the child’s education, particularly in circumstances where the father is opposed to the child attending the FLS.
While the ICL did not support a change in the child’s school at this time, it was noted that it appeared that both parents seemed to agree that, if the opportunity presented itself in the future, a private school might meet the child’s needs. However, it was noted that there were some practical difficulties with this option such as costs and entrance exams.
In respect to the child’s future schooling, and in particular his transition to high school, the ICL submitted that it was difficult to predict the parties’ future circumstances, particularly their future financial positions, and what opportunities might present for the child’s schooling in the future. In this respect it was submitted that the child’s future schooling and what options present in respect to this should be left to the parents in the exercise of their equal shared parental responsibility. However, it was further submitted that there should not be a situation where at the conclusion of the child’s primary schooling the parents had not agreed on a high school for the child and were again deadlocked. It was on this basis that the ICL proposed that the parents attend mediation in the first half of the year in which the child is in Year 6 so that they may “turn their minds” to the issue of which high school the child should attend.

Section 60CC Factors relevant to schooling

Section 60CA requires the Court to consider the best interests of a child when deciding whether to make a particular parenting order, this includes orders relating to which school a child should attend.
In Re G: Children’s Schooling (2000) FLC 93-025 at [66] the Full Court held that the object and principles in section 60B “are to be taken into account in the course of considering the relevant matters in s68F(2) which provide a check list to meeting the essential enquiry required by s65E.” Under the current Act the relevant matters which were previously set out in section 68F(2) are now contained in section 60CC. Section 60CA now replaces section 65E.
In addition, the Full Court noted at [65] that “the reality of the children residing predominantly with one parent” may be a relevant consideration. A further relevant consideration is which school is closer to the children’s residence (at [92]).
I have again considered all of the matters referred to in section 60CC when considering the appropriate orders to make in respect to the child’s schooling. Consistent with Banks & Banks,[3] I have focused primarily on those considerations that are most relevant including those referred to in Re G (supra).
[3] (2015) FLC 93-637 at 80,116.
In this case a relevant consideration is that set out in section 60CC(2)(a) which, as noted, requires the Court to have regard to the benefit to the child of having a meaningful relationship with both of the child's parents. Clearly, it would be desirable for both parents to have an involvement in the child’s education. The father indicated that he does not speak Country F and was concerned that he would not be able to assist the child with reading Country F or completing his homework if it was in Country F. The father also expressed concern as to his ability to engage with other parents whose children attended the FLS in circumstances where he perceived that many of them spoke Country F at social and school functions. The father’s concerns are understandable.
Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child's views. I note that the child has expressed to the family report writer a desire to attend the FLS. The family report writer indicated, however, that the child’s views are likely to have been heavily influenced by the mother’s enthusiasm. In those circumstances, I have not made a determination based on the child’s views.

As previously noted, section 60CC(3)(c) requires the Court to consider the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and also to spend time with the child and communicate with the child. While I have previously noted the mother’s concerns that the father did not utilise the opportunities he had to spend time with the child in the period between January and September 2014, the father has clearly maintained a close interest in decisions concerning the child’s education. I also accept that the father is genuine in his desire to play a greater role in the child’s education.
As previously noted, a concern I do have is the father’s failure to attend a father and son event at the child’s school. I have noted that the father failed to provide a convincing explanation regarding his failure to attend that event. In contrast, I note that the mother has been actively involved in the child’s education including attending at the school to present lectures in ethics.
Both parents are intelligent and well educated and I am satisfied that both genuinely desire what they perceive to be in the child’s best interests. I conclude, however, that the mother has shown a greater interest in the child’s education. This is a relevant consideration pursuant to section 60CC(3)(c). The mother’s greater involvement in the child’s education is perhaps necessarily the case as a result of the child living with the mother and the mother having more time available to engage with the child in completing his homework and with the activities the child engages in at school.
Section 60CC(3)(d) requires the Court to have regard to the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person. Clearly, changing schools would be a major change for the child. In that respect, Ms J indicated that children are best able to cope with such change when the change is supported by both of their parents. In this case, Ms J expressed the view that the father would not be committed to supporting the change and, indeed, would oppose it.
In fairness to the father he indicated that while he opposed the child attending the FLS, if that was the outcome of the proceedings, he would do everything within his power to ensure that the child had a smooth transition between schools. The father nonetheless expressed those concerns which I have previously set out regarding a reduced ability for him to participate in the child’s education as a result of the fact that he does not speak Country F. These are also legitimate concerns, that I have had regard to as required by section 60CC(2)(a), as they may impact upon the father’s ability to have as meaningful a relationship with the child as he may otherwise have if the child attended an English speaking school.
Section 60CC(3)(e) requires the Court to have regard to 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. D School is very close to where both parents live. This makes it easy for either parent to take the child to or from school. It will also make it quite easy for the father to collect the child from school and return him to school on those occasions when the child is to spend time with the father.
In circumstances where neither parent has a motor vehicle, requiring the father to travel to and from Suburb K to collect the child from and return him to school would require the father him to spend additional travelling time and some additional expense, although the public transport fee would be relatively minor. This additional practical difficulty is nonetheless one that I am required to consider pursuant to section 60CC(3)(e).
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant. As noted by the father, while the mother has an intense interest in the Country F language and culture, the child does not in fact have Country F heritage. The mother indicated, however, that while she wanted the child to develop his language skills by attending the FLS, she fully supported the child learning Country L and learning more about his Country M ancestry, including participating in relevant cultural events.
I sense a substantial degree of commonality between the parents on that issue and perhaps it is an issue they could explore in the future in terms of moving forward to develop a more cooperative relationship. I do not believe that the child attending the FLS would prevent the child having the opportunity to learn Country L or to learn more about his Country M heritage.
Section 60CC(3)(i) requires the Court to have regard to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents. As previously noted, in respect to the issue of education, I am concerned that the father failed to attend a father and son event at the child’s current school. During cross examination the mother also questioned the father as to whether he had been as diligent as he could have been in assisting the child with homework and reading assignments.
The mother argued, on the other hand, that she has maintained a close interest in the child’s progress at school including assisting him with all aspects of his homework. The mother submitted that her involvement would continue to assist the child’s transition to the FLS and would benefit his ongoing education at that school.
I accept that the mother has been more closely involved in the child’s education and I have no doubt would be of great assistance to him at whatever school he attends. Her encouragement would also be of great assistance to the child in developing his Country F language skills.
On the other hand, I accept that, in circumstances where the father has spent less time with the child, it has been more difficult for the father to keep up to date with the child’s homework tasks. I also accept that it would be more difficult for the father to assist the child in circumstances where those tasks required Country F language skills.
Section 60CC(3)(m) requires the Court to have regard to any other fact or circumstance that the Court thinks is relevant. In that context, both parties relied upon a comparison of NAPLAN results for the D School and the FLS. That comparison indicated that each school had superior outcomes in certain areas but that both schools performed above the New South Wales average. In these proceedings the Court is not in a position to make a determination as to which school achieves superior educational outcomes. In any event, there would necessarily be any number of variables that would determine how a child would succeed in both environments.
In so far as it is potentially a relevant consideration, I am of the view that it is inevitable that each school would have strengths and weaknesses, both in terms of achieving educational outcomes and in terms of providing for the broader pastoral care and development of the child. In that context the comparison of NAPLAN results has not been of assistance to the Court in determining the issue of the child’s schooling.
I agree with the conclusion of the family report writer, Ms J, that each parent had valid reasons for the position they were articulating in respect to the child’s schooling. There are clearly advantages and disadvantages to each school. I note that during the course of the proceedings there was some moderation of each of the parties’ views in respect to the child’s schooling and with expert assistance and, a degree of goodwill, this issue may be capable of resolution. The strong impression is that if the parties are able to reach an agreement regarding the child’s schooling then a major source of tension in their parenting relationship will be removed. However, I agree with the submissions of counsel for the ICL, that while it is hopeful that there may be a warming of relationship between the parents, I am unable, at this stage, to rely on this as evidence of a probability that the parents can resolve their current conflict in respect to whether the child should attend the FLS.
In this respect, I agree with the submissions of the ICL in respect to the child’s schooling, and I propose to make an order that unless the parents otherwise agree in writing, the child is to remain enrolled at D School. That is not to say, that should the parents engage in mediation following the conclusion of the proceedings or later mutually agree to a change the child’s school, that they cannot do so.
However, in respect to the child’s future schooling I am satisfied that, as a result of the change in attitude of the parties during the course of the final hearing, that they will, in good faith, attempt to achieve an agreement as to the child’s schooling that is in the child’s long term best interests.
I agree with the ICL that it would be appropriate for the parties to attend mediation not later than the first half of the year when the child is in Year 6 in respect to the issue of schooling. This will ensure that a decision is made prior to the child attending high school. I will therefore make the order in accordance with the proposal of the ICL.

School holidays

There was a marginal difference between the parties in respect to their competing proposals for school holidays. The father indicated that his support for the orders proposed by the ICL which included his proposed arrangements for the Christmas school holidays (Exhibit F) which he believed addressed his earlier concerns that the orders as originally proposed by the ICL did not reflect the actual school year.
The mother’s two concerns were essentially that the school holidays should be deemed to commence on the first Sunday of the school holidays rather than the Saturday. This, the mother believed, would enable the child to have some time to adjust to the holiday period and organise himself for a longer period away from the mother. The mother also proposed orders which she believed would facilitate the child spending a part of Christmas day with each parent on those occasions when the father remains in Sydney.
While recognising the mother’s genuine desire to achieve an outcome that would be to the benefit of all parties, on balance, I am of the view that the orders as proposed by the ICL are appropriate and would be less likely to create future uncertainty in arrangements with the potential for further disputation.
As noted, during the course of the proceedings, the orders will enable the parties to reach agreement regarding alternative arrangements where that is appropriate. This includes reaching an agreement for the child to spend time with both parents on Christmas Day when the father spends that time in Sydney.

Overseas travel

Another source of tension between the parties has been in respect to the question of overseas travel. This has resulted in the parties approaching the Court on two prior occasions to obtain orders imposing conditions on the mother travelling overseas with the child. Those conditions have included the mother submitting a bond prior to undertaking travel. On each occasion the mother has complied with the conditions set by the Court.
The mother argued that she does not present a flight risk. She noted that her employment as a health professional was in Australia, that she has six siblings in Australia and that the child, on his maternal side, has twelve cousins.
The ICL submitted that the legislative restrictions set out in section 65Y which prevents a child who is the subject of an order of this Court, being removed from Australia without the consent of the other parent, is a sufficient safeguard. Further, the ICL noted the potential penalty set out in that section.
The father acknowledged that the legislative provisions to which the ICL referred were sufficient safeguards to address his concerns regarding the mother removing the child from Australia without his consent.
I note that, despite having significant income earning potential, neither parent has acquired property in Australia. However, I am satisfied that each parent has a strong connection and commitment to Australia. Further, based on the mother’s previous conduct, I have no reason to assume that she presents a flight risk.
The major point of difference between the parties was in respect to the amount of time that overseas travel would take the child out of school. The father submitted that that time should be in accordance with relevant education department guidelines, approved by the school and be no more than five days in duration. The father’s position was reflected in the orders proposed by the ICL.
The mother acknowledged that regular school attendance was important but that overseas travel had other potential benefits for a child including immersing the child in other cultures and experiences. The mother reiterated her commitment to the child’s education. She suggested that a more appropriate response would be one that permitted greater flexibility, particularly in the child’s early school years.
I acknowledge the father’s concerns, however, having considered the mother’s evidence and submissions, I am satisfied that she is extremely committed to the child’s education and is unlikely to engage in a course of action that would be detrimental to his educational achievement. On the other hand, the father has voiced a justifiable concern and has argued that a period of five days off school in conjunction with school holiday breaks would facilitate ample opportunity for overseas travel. In light of the father’s concerns, I determine that, in the absence of an agreement between the parties, an outer limit on the amount of time that the mother takes the child out of school for the purpose of overseas travel should be restricted to a period of ten school days. Such a period, in conjunction with school holidays, should present sufficient opportunity for overseas travel without detrimentally impacting upon the child’s education.
Finally, in respect to the question of travel, the mother submitted that, in circumstances where either parents takes the child on a trip out of Sydney, the parent with the child should notify the other of their safe arrival with the child. That proposition is reasonable and goes no further than requiring each parent to be courteous and respectful to the other and mindful of the other parent’s concerns for the child’s welfare. The proposal was not opposed by the ICL or the father and accordingly, I will make orders in those terms.

Non-denigration

In her Family Report dated 3 March 2016, Ms J expressed concern that, whilst interviewing the father, the father acknowledged that he had communicated his dislike of the mother to the child.
During the course of evidence and submissions the father indicated that he intended his discussion with the child in respect to those matters was to reassure the child that, despite difficulties that the parents had in their relationship, they both loved him and were committed to his welfare. He acknowledged, however, that it would be inappropriate for either parent to denigrate the other in the child’s presence.
The ICL indicated that such a non-denigration order would be appropriate. The mother questioned the extent to which an order of the Court would be effective in determining the nature of communication between the parents and the child. However, the mother expressed no real opposition to a non-denigration order being made.
In the circumstances, I am of the view that it would be appropriate to include a non-denigration order.

Costs of the ICL

At the conclusion of the proceedings the ICL applied for costs. The father did not oppose the application but he indicated he would require some time to pay. The mother argued that she should not be responsible for the costs of the ICL because she has not been the applicant in the proceedings.
The ICL was appointed in these proceedings by FM Monahan on 11 December 2012. The parties have been self-represented during the concluding stages of the litigation and the ICL has provided vital assistance to the Court in determining orders that are in the child’s best interests. This has, at times, been a challenging task in circumstances where the parties have adopted intransigent positions as a result of the history of their conflict and attitude towards each other.
I note that there has also been a tendency on the part of both parties to effectively delegate decision making in respect to the child to the Court which has necessarily required the interests of the child to be represented through the ICL.
In those circumstances it is appropriate for the parties to share equally in the costs of the ICL.
I note that the ICL has appropriately indicated that she is prepared to provide a reasonable period of time for each of the parties to pay the costs of the ICL.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 14 June 2016.

Associate:

Date: 14 June 2016