Namvar & Pales
[2023] FedCFamC2F 573
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Namvar & Pales [2023] FedCFamC2F 573
File number(s): SYC 3550 of 2017 Judgment of: JUDGE MORLEY Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – Parenting – Final Hearing – young child with two sets of half siblings – living with Mother – spending time with Father – no risk found – no family violence found – high volumes of parental conflict – history of Mother acting in an uncooperative fashion – Court finds equal shared parental responsibility to be in the child’s best interests – orders for significant and substantial time with each parent, not equal time. Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAA, 65DAB, 65DA, 65Y
Family Law Regulations 1984 (Cth) reg 13
Cases cited: Godfrey & Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
KB & TC [2005] FamCA 458
M & S [2007] FLC 93-313
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
McGregor & McGregor [2012] FamCAFC 69
Tait & Densmore [2007] FamCA 1383
Division: Division 2 Family Law Number of paragraphs: 234 Date of last submission/s: 19 July 2022 Date of hearing: 28-29 June 2022 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Marks Griffiths & Bova Solicitors Solicitor for the Respondent: The litigant appeared in person. Counsel for the Independent Children's Lawyer: Mr Gallimore Solicitor for the Independent Children's Lawyer: Katie Smith Solicitor ORDERS
SYC 3550 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAMVAR
Applicant
AND: MS PALES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
18 May 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.That the parties have equal shared parental responsibility for the child X born in 2016 (‘the child’).
Live with/Spend time with
2.That the child live with her Mother.
3.That the child spend time with her Father as follows:
(a)During school term time:
(i)Until the end of Term 2 in 2023, from the end of school on Friday until the start of school on Monday each alternate weekend, with the first such occasion to occur on the next occasion that time would have occurred between the Father and the child under the interim orders of 4 August 2020, and noting that such time is to occur so as to coincide with the time that the child’s maternal sibling Z spends time with their mother.
(ii)For the duration of Term 3 in 2023, from the end of school (or 3:00PM if not a school attendance day) on Thursday until the start of school (or 9:00AM if not a school attendance day) on Monday each alternate weekend.
(iii)From the commencement of Term 4 in 2023 and thereafter, from the end of school (or 3:00PM if not a school attendance day) on Wednesday until the start of school (or 9:00AM if not a school attendance day) on Monday each alternate weekend.
(b)During school holidays:
(i)For the school holidays at the end of Term 2 in 2023, from 3:00PM on the last Friday of the school term until 4:00PM on the following Wednesday;
(ii)Commencing in the holidays at the end of Term 3 in 2023 and for each of the short school holidays at the end of Terms 1, 2, and 3 thereafter, for one half of the school holidays as follows:
A.For the first half of the school holidays in odd numbered years;
B.For the second half of the school holidays in even numbered years;
(iii)For the school holidays at the end of Term 4 in 2023, on a week-about basis with each of her parents as follows:
A.The Father having the first week of the holidays and each alternate week thereafter; and
B.The Mother having the second week of the holidays and each alternate week thereafter.
(iv)For the school holidays at the end of Term 4 in 2024 and for each long school holidays thereafter, for one half of the school holidays in a block as follows:
A.The Father having the first block of time in 2024 and in each even numbered year thereafter;
B.The Father having the second block of time in 2025 and in each odd year thereafter.
(c)For the purposes of order 3(a) and 3(b), the commencement and conclusion of the school terms and holidays above are determined by the reference to the school calendar of the school the child is enrolled in.
Special Occasions
4.Notwithstanding any other order, the child shall spend time with the mother and father on special occasions as agreed in writing between the parties or, failing agreement, as follows:
(a)At Christmas each year:
(i)From 12:00pm Christmas Eve until 12:00pm Christmas Day with the mother in even numbered years, and with the father in odd numbered years; and
(ii)From 12:00pm Christmas Day until 12:00pm Boxing Day with the mother in odd numbered years, and with the father in even numbered years.
(b)At Easter time each year:
(i)From 11:00am on Good Friday until 11:00am on Easter Sunday with the mother in even numbered years, and with the father in odd numbered years; and
(ii)From 11:00am on Easter Sunday until 11:00am on the first Tuesday after Easter or the commencement of school on that day, with the mother in odd numbered years, and with the father in even numbered years.
(c)If the child is not otherwise spending time with her mother on Mother’s Day, then the child shall spend time with the mother from 9:00am until 6:00pm on Mother’s Day.
(d)If the child is not otherwise spending time with her father on Father’s Day, then the child shall spend time with the father from 9:00am until 6:00pm on Father’s Day.
5.That on the child’s and parent's birthdays, whosoever has care of the child, the other parent on that day shall spend time with the child from 3 pm until 7 pm on a weekday or 12 pm to 5 pm if on a weekend.
Changeover
6.Any changeovers not occurring at the child’s school are to occur at the Suburb R Ferry Wharf, AND THE COURT NOTES THAT both parents and the ICL propose that any changeovers not occurring at the child’s school occur at the Suburb R Ferry Wharf.
International Travel and Passports
7.That within 7 days of the date of these orders the father to provide all documents to the mother who will within a further 7 days sign all documents and provide any other documents necessary and return all documents to the father who will then do all acts and things necessary to cause the child’s Australian and Country G passports to be obtained and kept current at all times.
8.That within 14 days of a request by either parent from the other parent to sign all documents and do all acts and things necessary to renew the child’s Australian and Country G passports, that the requested parent shall so sign and provide all documents to the other parent.
9.That the mother retain the child’s Australian passport and the father retain the Country G passport.
10.That if either party wishes to take the child out of the Commonwealth of Australia to a country that is a signatory to the Hague Convention 1996:
(a)From January 2024 and annually thereafter either party is permitted to travel with the child to the Country G in the December/January school holidays during the period that X is in that parent’s care pursuant to these orders.
(b)Each parent will travel with the child only to countries which are a signatory to the Hague Convention 1996 and with which the Hague Convention is enforced between that country and Australia
(c)The travelling party shall provide to the other party at least (8) weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline with whom the child will be travelling, the intended destination, contact numbers and addresses for the child for the duration of the trip and the intended date and time of return.
(d)That upon written notice being given by a party pursuant to the previous suborder, the other party shall within 14 days from the date of receipt of the said notice, provide written confirmation of their consent to the proposed travel together with the passport or passports which are held by that party.
(e)During the period of travel, the travelling party will facilitate reasonable communication by the child with the other parent including telephone and video calls twice a week.
(f)At the first changeover after return from the period of travel, the travelling parent shall return to the other parent the passport or passports which that parent is to hold pursuant to these orders.
Schooling
11.Unless otherwise agreed between the parents in writing, the child will be enrolled in the public high school that she is zoned for attendance as based on her residence with her mother
Medical and Dental Care
12.That, save for any emergency medical or dental treatment, or any referral to specialist medical treatment, the child shall attend a dentist and general practitioner nominated by the parents in writing or, failing agreement, shall attend:
(a)AB Dental in Suburb C for her dental health; and
(b)AC Medical Centre in Suburb C for her general health.
13.Each parent is at liberty to obtain all relevant medical records and consult the child’s medical and dental practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.
Communication
14.Each of the parents is to keep the other parent advised of their current mobile telephone number, residential address, employment address, and email address for the purposes of communicating in relation to matters affecting the child’s welfare.
15.Both parents are permitted to liaise directly with the child’s school, sporting, co-curricular and extra-curricular bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the child’s progress and these Orders are sufficient authority for that purpose.
16.Each parent is at liberty to obtain all relevant medical records and consult the child’s medical and dental practitioners to obtain any information they require and these orders are sufficient authority for that purpose.
17.The mother and the father will inform the other of any attendance on any treating health practitioner and the identity of the treating health practitioner within 24 hours after the child has received the treatment and advise of the outcome of such attendance including any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.
18.Each parent shall, as soon as practicable, contact the other parent to advise in the event that the child:
(a)Becomes seriously ill;
(b)Is hospitalised;
(c)Is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission to hospital/medical clinic.
19.The mother and the father shall keep each other informed at all times of any change of their residential address, personal email address and personal contact telephone number and advise the other of any such change within 48 hours of such change.
Restraints
20.Each party is restrained from using any form of physical discipline upon X; speaking negatively about the other parent in the presence or hearing of X; and from discussing with X any of the allegations raised in these proceedings in relation to either parent.
21.That for the purpose of these orders, each period of school holidays shall commence at the time school attendance for the child for the term ceases and shall end at the time when school attendance for the child for the new term resumes.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Namvar & Pales has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
INTRODUCTION
These are Reasons for Judgment in relation to parenting proceedings between the Applicant Father, Mr Namvar (‘the Father’), and the Respondent Mother, Ms Pales (‘the Mother’), in relation to parenting arrangements for their daughter, X born in 2016. At the time of the final hearing in June and July 2022, X was 6 years of age.
The parents were in a non-cohabitive relationship from about August 2013 until about August 2015.
The Father has three children from a previous relationship:
(1)O born in 2004;
(2)BB born in 2006; and
(3)CC born in 2008.
BB and CC live in a shared care arrangement between the Father and their mother, Ms U, and O, who is now 18 years of age, has lived solely with the Father since 2019.
The Mother has three children from a previous relationship:
(1)W born in 2007;
(2)Y born in 2008; and
(3)Z born in 2011.
W, Y, and Z live principally with the Mother and spend time with their Father pursuant to final parenting orders made by this Court on 3 March 2023. The Mother and their father have equal shared parental responsibility for them.
An order was made on 6 September 2018 appointing an Independent Children’s Lawyer (‘ICL’) to represent the interests of X. At the time of the final hearing, Ms Smith was ICL for both X and the mother’s children from her previous relationship, in separate proceedings.
The final hearing took place over three days from 27 to 29 June 2022, with judgment being reserved on 20 July 2022 after the filing of written submissions by the Mother and the ICL and Father being given an opportunity to file written submissions in reply.
The Father was represented by Ms Kennedy of counsel. The Mother appeared on her own behalf, assisted by a McKenzie friend. Mr Gallimore of counsel appeared for the ICL.
THE MATERIALS RELIED UPON BY THE PARTIES AND THE ICL
The Father relied upon the following documents:
(1)Outline of Case Document filed 20 June 2022;
(2)Further Amended Initiating Application filed 21 February 2022;
(3)Affidavit of the Father sworn and filed 28 April 2022 and all of the documents composing Exhibit – 5 referred to therein; and
(4)Minute of the orders sought by the Father (Exhibit A5).
The Father also relied upon the following exhibits:
(1)Exhibit A1 – the Father’s Minute of Orders sought tendered on the first day of the hearing, and subsequently replaced by Exhibit A5;
(2)Exhibit A2 – two supervision reports on the letterhead of D Families dated 26 April 2020 and 3 May 2020;
(3)Exhibit A3 – one page document entitled “Drop off and Pick up Agreement 6 November 2018” with four signatures, including the those of the Mother and the Father;
(4)Exhibit A4 – 46 pages of email correspondence between the Father and the Mother, paginated as page 70 of 116 to page 114 of 116 inclusive.
The Mother relied upon the following documents:
(1)Outline of Case Document filed 20 June 2022;
(2)Response to Initiating Application filed 25 October 2021;
(3)Affidavit of the Mother sworn or affirmed 5 April 2022 and filed 6 April 2022;
(4)Affidavit of Ms J (the Mother’s sister) sworn for April 2018 and filed 5 April 2018;
(5)Affidavit of Ms AD (the maternal grandmother) sworn or affirmed 8 February 2022 and filed 20 February 2022;
(6)Affidavit of Ms U (the Father’s former wife) sworn or affirmed 19 February 2022 and filed 21 February 2022;
(7)Affidavit of Ms T (former Director of the child’s pre-school) sworn or affirmed and filed 20 February 2022;
(8)Affidavit of Ms K (a friend of the Mother’s) affirmed 3 April 2022 and filed 6 April 2022;
(9)Affidavit of Ms AE (a friend of the Mother’s) sworn or affirmed and filed 21 February 2022;
(10)Minute of Orders sought by the Mother – Exhibit R1; and
(11)Written Submissions of the Mother filed 1 July 2022.
The Mother also relied upon the following exhibits:
(1)Exhibit R2 – one page document being screenshot of two emails from Mother to the Father regarding the child’s dental care, dated 31 March 2021 and 4 February 2022;
(2)Exhibit R3 – one page document being screenshots of two emails from the Mother to the Father in relation to an early treatment orthodontic plan for the child dated 23 June 2022;
(3)Exhibit R4 – one page document being a screenshot entitled “To Do” but not including the description following the top of the page after “-8”;
(4)Exhibit R5 – three page document being the child’s reading log paginated as page 14 of 36 to page 16 of 36 inclusive;
(5)Exhibit R6 –two page document entitled “Exhibit – 10” being the child’s reading awards paginated as page 17 of 36 to 18 of 36 inclusive;
(6)Exhibit R7 – one page document entitled “-11 – X w/AF“ being two photographs of the child holding school awards paginated as page 19 of 36;
(7)Exhibit R8 – three page document being a record of the child’s attendance at Q Early Learning Centre Suburb C from 8 January 2019 to 27 December 2018 with handwritten page numbers 12 to 14 inclusive;
(8)Exhibit R9 – two page document containing four screenshots of lunch orders from the Internet with the child’s and the Mother’s name on them paginated as page 25 of 36 to 26 of 36 inclusive;
(9)Exhibit R10 – a medical record of the Father dated 25 August 2016 with description “Clinical Notes: To check immunity to chickenpox”;
(10)Exhibit R11 – three page handwritten document from the documents produced on subpoena by Ms EE and dated 12 October 2017, together with a copy of the subpoena issued 7 December 2018;
(11)Exhibit R12 – two bundles of documents on the Q Early Learning Centre Suburb AG letterhead being the child’s attendance records between 1 January 2016 and 1 July 2018, paginated as page 1 of 16 to 16 of 16 inclusive and paginated as page 1 of 55 to page 55 of 55 inclusive;
(12)Exhibit R13 – one page document being a print of an email with the subject “X – Covid-19 status” dated 7 April 2022; and
(13)Exhibit R14 – one page photograph of a handwritten document from the parents’ communication Journal dated 29 November 2018.
The ICL relied upon the following documents:
(1)Outline of Case Document filed 21 June 2022; and
(2)Minute of Orders setting out the final orders sought by the ICL (Exhibit ICL5).
The ICL also relied upon the following exhibits:
(1)Exhibit ICL1 – Minute of Orders sought by the ICL at the commencement of the final hearing, replaced by Exhibit ICL5 at the end of the final hearing;
(2)Exhibit ICL2 – Family Report prepared by Ms AH dated 3 September 2020;
(3)Exhibit ICL3 – Suburb AJ School 2022 – Semester 1 report for the child in Year 1; and
(4)Exhibit ICL4 – NSW Police COPS entry in relation to the Mother and the Father dated 5 May 2017.
The Father was cross examined by the Mother and by counsel for the ICL.
The Mother was cross examined by counsel for the Father and by counsel for the ICL.
The Family Report writer, Ms AH, was cross examined by counsel for the ICL, by counsel for the Father, and was not cross examined by the Mother.
None of the Mother’s supporting witnesses were required for cross examination by either the Father or the ICL.
THE COMPETING PROPOSALS OF THE PARTIES AND THE ICL
The Father sought the following orders as set out in his Minute of Orders (Exhibit A5):
UPON APPLICATION TO THE COURT IT IS ORDERED:
1.That all previous Orders are discharged.
2.That the parties have equal shared parental responsibility for the child, [X] (“[X]”) born [in] 2016.
3.That the child shall live with the mother and the father during school terms and during Term 1, 2 and 3 short school holidays on an equal time basis as follows:
3.1.with the mother from 3pm Friday or the conclusion of school until 9am or commencement of school on the following Friday each alternate week;
and in the intervening weeks,
3.2.with the father from 3pm Friday or the conclusion of school until 9am or commencement of school on the following Friday each alternate week;
In the alternative:
3.3.In each week;
i.With the father from Monday after school (or 3pm if the child is not attending school until before school on Wednesday (or 9am if the child is not attending school).
3.4.In each alternate week;
i.With the father after school Friday or 3pm until before school the following Wednesday or 9am.
4.That during the child’s December/January Term 4 school holiday periods, when Order 3 shall be suspended as follows:
4.1.In even numbered years, with the mother for the first half of the child’s school holiday periods; and
4.2.In odd numbered years, with the mother for the second half of the child’s school holiday periods.
4.3.In odd numbered years, with the father for the first half of the child’s school holiday periods; and
4.4.In even numbered years, with the father for the second half of the child’s school holiday periods.
5.That the commencement and conclusion of the school terms and holidays in relation to Order 3 and 4 above are determined by the reference to the school calendar of the school the child is enrolled in.
6.That the child shall spend time with the mother and the father at Christmas each year as the parties may agree from time to time and in default of agreement as follows:
6.1.From 12 pm on Christmas Eve until 12 pm on Christmas Day, with the mother in years ending in an even number, and with the father in years ending in an odd number; and
6.2.from 12 pm on Christmas Day until 12 pm on Boxing Day, with the mother in years ending in an odd number, and with the father in years ending in an even number.
7.If [X] is not otherwise with the mother, the child will be with the mother from 5 pm Saturday to 5 pm on Mother’s Day each year.
8.If [X] is not otherwise with the father, the child will be with the father from 5 pm Saturday to 5 pm on Father’s Day each year.
9.That on the child’s and parent's birthdays, whosoever care the child is in, the other parent on that day shall spend time with the child from 3 pm until 7 pm on a weekday or 12 pm to 5 pm if on a weekend.
9.1.That each parent to facilitate [X] having telephone/mobile/skype communication with the other parent;
9.2.That each parent facilitate [X] having liberal communication with all siblings.
International Travel
10.That the parties are each restrained from removing the child from Australia without prior written consent of the other parent.
11.That within 7 days of the date of these orders the father to provide all documents to the mother who will within a further 7 days sign all documents and provide any other documents necessary and return all documents to the father who will then do all acts and things necessary to cause the child’s Australian and [Country G] passports to be obtained and kept current at all times.
12.That within 14 days of a request by either parent from the other parent to sign all documents and do all acts and things necessary to renew the childs Australian and [Country G] passports.
13.That the mother retains the child Australian passport and the father to retain the [Country G] passport.
14.That if either party wishes to take the child out of Australia:
14.1.The father be permitted to travel with the child to the [Country G] from 2023 and annually thereafter in the June/July school holidays for 14 nights.
14.2.The mother be permitted to travel with the child to the [Country G] from 2023 and annually thereafter in the September/October holidays for 14 nights.
14.3.From January 2024 and annually thereafter either party be permitted to travel with the child to the [Country G] in the December/January school holidays for 21 nights.
14.4.Each parent will travel with the child only to countries which are a signatory to the Hague Convention 1996.
14.5.The travelling party shall provide to the other party at least (8) weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline with whom the child will be travelling, the intended destination, contact numbers and addresses for the child for the duration of the trip and the intended date and time of return.
14.6.That upon written notice being given by a party pursuant to the previous order, the other party shall within 14 days from the date of receipt of the said notice, provide written confirmation of their consent to the proposed travel together with the passport or passports which are held by that party.
14.7.During the period of travel, the travelling party will facilitate reasonable communication by the child with the other parent including telephone and video calls twice a week.
14.8.At the first changeover after return from the period of travel, the travelling parent shall return to the other parent the passport or passports which that parent is to hold pursuant to these orders.
15.The place of changeover of the child at the start and finish of spending time with the father, when not occurring at the child’s school, will be at [Suburb R] Ferry Wharf.
16.That [X] remain enrolled in [Suburb AJ] School and attend there until the conclusion of year 6.
17.That each parent facilitate [X] undertaking the selective schools test in Year 6 by signing all consent or other documentation necessary and if [X] is accepted into [AK School] the parties to enrol [X] at that school.
18.That if [X] is not accepted for enrolment at [AK School] that she be enrolled in [AL School] or [AM School] to commence in Year 7.
19.That [X] attend one dental practice and the following medical practices, [AB Dental] in [Suburb C], [AC Medical] in [Suburb C] and each party be authorised to communicate and receive any documents or prescriptions from all treatment providers.
20.That each parent is permitted to enrol the child in any extra-curricular activities during the time that the child spend time with them pursuant to these orders and must inform the other party of the time and event of that activity and list the other parents name, address, email and telephone number on the enrolment documents.
21.That each parent is hereby authorised to communicate directly with any school attended by the child, to receive copies of any documents including reports and newsletters that are generally provided to parents, and to attend and school event or activity to which parents are generally invited, and each parent is to cooperate with the reasonable requests of the staff of the school in this regard.
22.That the parties are each to notify the other by SMS as soon as possible and within 24 hours of any significant illness or injury affecting any of the child while in their care, including advising all medical practitioners attended upon by the child and any treatment prescribed for the child or prescription medication prescribed, and to provide a copy of the treatment or medication to the other parent at changeover and the parties are each hereby authorised to speak directly with any health care provider who has been consulted in relation to any of the child to obtain information about the health and treatment of the child.
23.That the parties are to provide the other within 7 days of these orders with an SMS to be used for communication regarding urgent matters in relation to the child.
24.That without admitting the necessity for such an Order, each parent is restrained from:
24.1.Denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
24.2.Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
24.3.Permitting the child having access to any of the documents filed in these proceedings;
24.4.Communicating any information intended for the other parent through the child;
24.5.Causing the child to be a medium in any way to adult matters between the mother and father or between the mother and father and any other person;
24.6.Discussing major long term matters with the child including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parties to those matters being discussed with the child or the parties agree to the matter being raised and discussed with the child.
25.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
26.That pursuant to s.65DA(2) of the Family Law Act, 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
27.That all outstanding applications are dismissed.
The Father seeks alternate orders in relation to the day-to-day care of the child. His first proposal is that the parents share care of the child on a week about basis during school term time and during the school holidays at the end of Terms 1, 2 and 3, with changeovers occurring at 3:00PM on Friday and at 9:00AM on the following Friday. Read literally, the proposal leaves the child at liberty from 9:00AM or the start of school until 3:00PM of the end of school each Friday, but the intent is week-about time, with changeover at either the start (or 9:00AM) or the end (or 3:00PM) of school on Fridays.
Under this proposal, each parent would have care of the child overnight for seven nights of each fortnight except during the school holidays at the end of Term 4.
The Father’s alternative proposal is that during school term time and during the school holidays at the end of Terms 1, 2, and 3, the child live with her Father each week from the end of school (or 3:00PM) on Monday until the start of school (or 9:00AM) on Wednesday, and in each alternate week from the end of school (or 3:00PM) on Friday until the start of school (or 9:00AM) on Wednesday.
The proposal does not make sense, as the Monday to Wednesday would be incorporated in the Friday to Wednesday in the alternate week. I will approach the matter on the basis that the Father’s Minute of Orders is wrongly worded, and that the words at order 3.3 “In each week” should be “In each alternate week”.
The Mother sought the following orders as set out in her Minute of Orders (Exhibit R1):
Respondent Mother’s Minute of Order:
The Court notes that the following spend time orders with the Father align to those of the Mother’s other children [W], [Y], and [Z] ([X]’s maternal siblings).
THE COURT ORDERS THAT:
1.That all previous parenting orders are discharged.
2.That the Mother has sole parental responsibility for the [X] born 2016.
3.That [X] lives with her mother.
4.That [X] spend time with the father during school terms per the Interim Orders dated 4 August 2020 as follows:
a.Each Tuesday from after school (or 3 pm if not a school day) until the start of school on Wednesday (or 9 am if not a school day)
b.Each alternate weekend from 5:30 pm on Friday to 4 pm Sunday
c.At any other time as may be agreed between the parties.
School Holidays
5.That [X] spend time with the father during school holidays during Year 1 until the commencement of School Term 1, 2023 as follows:
a.Each Tuesday from after school (or 3 pm if not a school day) until the start of school on Wednesday (or 9 am if not a school day)
b.Each alternate weekend from 5:30 pm on Friday to 4 pm Sunday
c.At any other time as may be agreed between the parties.
***Please note: If more time than the current arrangement above during the school holidays is court ordered, the following is proposed to ensure [X] can cope with the new arrangement and that the transition to longer periods of time away from her primary carer is smooth for her:
6.That [X] spend time with the father during school holidays during Year 3 until the commencement of School Term 1, 2025 as follows:
a.Each alternate week, from Thursday at 4 pm to Sunday at 4 pm.
b.At any other time as may be agreed between the parties.
7.That [X] spend time with the father during school holidays during Year 4 and thereafter until the commencement of School Term 1, 2028 as follows:
a.Each alternate week, from Tuesday at 3 pm to Sunday at 4 pm.
b.At any other time as may be agreed between the parties.
8.From the commencement of School Term 1, 2028 and thereafter as follows:
a.For the first week of the holidays in odd-numbered years and the second week of the holidays in even-numbered years, on an alternating week about arrangement for the long summer school holidays.
b.At any other time as may be agreed between the parties.
9.That notwithstanding other orders, [X] will spend time with both parents on special occasions as follows:
a.If [X] is not otherwise with the mother, [X] will be with the mother from 9 am to 5 pm on Mother’s Day each year;
b.If [X] is not otherwise with the father, [X] will be with the father to 5 pm on Father’s Day each year;
c.[X] will be with the father from 12 pm on Christmas Eve until midday on Christmas Day in 2022 and in each alternate year thereafter.
d.[X] will be with the mother from 12 pm on Christmas Eve until midday on Christmas Day in 2021 and in each alternate year thereafter.
10.The place of changeover of [X] at the start and finish of spending time with the father, when not occurring at [X]’s school, will be the [Suburb R] Ferry Wharf, (and the Court notes that the precise start and finish times are dependent upon the realities of the [Suburb R] ferry timetable.)
11.That on any occasion a parent is unable to care for [X] overnight when [X] is in their care, they are to give the other parent first option to care for [X] overnight on that occasion.
12.That each parent be permitted to enrol [X] in any extra-curricular activities during the time that [X] spends with them pursuant to these orders.
13.That each parent is hereby authorised to communicate directly with any school attended by [X], to receive copies of any documents including reports and newsletters that are generally provided to parents, and to attend and school event or activity to which parents are generally invited, and each parent is to cooperate with the reasonable requests of the staff of the school in this regard.
14.That the parties are each to notify the other as as soon as possible and within 24 hours of any significant illness or injury affecting [X] while in their care, including advising of any medical practitioner attended upon by X and any treatment prescribed for [X], and the parties are each hereby authorised to speak directly with any health care provider who has been consulted in relation to [X] to obtain information about the health and treatment of [X].
15.The parties are to provide the other within 7 days of these orders with an email address to be used for communication regarding non-urgent matters in relation to the [X].
16.Each party is restrained from the following: using any form of physical discipline upon [X]; speaking negatively about the other parent in the presence or hearing of [X]; discussing with [X] any of the allegations raised in these proceedings in relation to either parent.
The Court notes that the following orders were recommended by the Family Report (2020):
17.That [X] remains enrolled in her local primary school [Suburb AJ] School until Year 7.
18.That [X] is enrolled in her local high school for Year 7-12, currently [AL] School.
19.That [X] attend one dental practice and one GP, and the Court notes that [X] currently attends [AB Dental] in [Suburb C] and [AC] Medical Centre in [Suburb C], and [Region N] Orthodontics.
20.That the alternate weekends [X] is with the mother will be aligned to the weekends that [X]’s siblings [W], [Y], and [Z] are also in the mother’s care.
International Travel
21.That the parties are each restrained from removing [X] from Australia without the written consent of the other parent.
22.That the Australian Federal Police place [X] born 2016 on the Airport Watch List.
23.That no International travel be permitted for [X] until she has reached the age of 12 years old and has expressed in writing to the ICL the desire to travel.
24.That the Mother will sign all documents and do all acts and things necessary to cause [X]’s [Country G] and Australian passports to be obtained when she is 12 years old and thereafter kept current at all times.
25.That the Mother retains [X]’s passports for safekeeping.
26.That if either party wishes to take [X] out of Australia after she is 12 years old:
a.Each party will travel with [X] only during the periods which [X] ordinarily spends with that parent pursuant to these orders.
b.Each parent will travel with [X] only to countries which are a signatory to the Hague Convention 1996.
c.The travelling party shall provide to the other party at least (8) weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline with whom [X] will be travelling, the intended destination, contact numbers and addresses for X for the duration of the trip and the intended date and time of return.
d.That upon written notice being given by a party pursuant to the previous order, the other party shall within 14 days from the date of receipt of the said notice, provide written confirmation of their consent to the proposed travel together with the passport or passports which are held by that party.
e.During the period of travel, the travelling party will facilitate reasonable communication by [X] with the other parent including telephone and video calls where appropriate and not less than twice per week.
f.At the first changeover after return from the period of travel, the travelling parent shall return to the other parent the passport or passports which that parent is to hold pursuant to these orders.
If International travel is ordered by the Court prior to [X] being 12 years of age and her giving her written consent to travel, the following orders are proposed to ensure her safe return to Australia:
g.The Father is to pay (prior to departure from Australia), a bond in the amount of $50,000 to be held in a trust account, specifically set up for this purpose.
h.In the event [X] is not returned to Australia pursuant to these Orders, these orders give the Mother access to the trust account and the $50,000 to engage a lawyer to start proceedings to have [X] located and returned to Australia under the Hague Convention 1996.
i.Within 7 days after the safe return of [X]to Australia, the father’s bond of $50,000 shall be returned to him.
Safety
27.That the Father be and is hereby restrained from doing the following:
a.Attending any property where the mother may reside from time to time.
b.Coming within 200m of any property where the Mother may reside from time to time.
c.Approaching the mother or [X] except pursuant to these Orders.
Costs
28.That the father shall pay the Mother’s costs of and incidental to this and all Applications in this case SYC3550 / 2017.
The Mother proposes in her orders that the child spend time with her Father as provided for in the interim orders made in August 2020 (having commenced when X started school in 2021) and continuing until the beginning of the school year in 2028, when the child would be about to turn 12 years of age and start high school. Her time during school holidays until then increases through three steps, but never achieves half of school holidays before that time.
The ICL sought the following orders as set out in the ICL’s Minute of Orders (Exhibit ICL5):
1.All previous parenting orders are discharged.
2.The parents have equal shared parental responsibility for the child [X] born 2016 (the child).
3.The child shall live with the mother.
4.The child shall spend time with the father as agreed in writing between the parties or, failing agreement, on the following basis:
a.Until the child commences year 3 or equivalent education:
i.During school term:
1.On each alternate weekend, from after school on Friday (or 3:30pm if the child does not attend school) until the commencement of school on Monday (or 9:30am if the child does not attend school); and
2.Each alternate week from after school on Tuesday until the start of school on Wednesday; and
ii.During school holidays:
1.Half of each of the school holidays on an alternating week-about arrangement.
b.Upon the child commencing year 3 or equivalent education:
i.During school term:
1.On each alternate week from after school on Wednesday (or 3:30pm if the child does not attend school) to the commencement of school on Monday (or 9:30am if the child does not attend school); and
ii.During school holidays:
1.Half of each of the terms 1, 2 and 3 school holidays on an alternating week-about arrangement; and
2.Half of the term 4 school holidays, with the mother having the first half of the holidays in even numbered years, and the father having the first half of the school holidays in odd numbered years.
5.All changeovers that do not occur by the collection or delivery of the child by the father to or from school shall occur at the [Suburb R] Ferry Wharf .
6.Notwithstanding any other order, the child shall spend time with the mother and father on special occasions as agreed in writing between the parties or, failing agreement, as follows:
a.At Christmas each year:
i.From 12:00pm Christmas Eve until 12:00pm Christmas Day with the mother in even numbered years, and with the father in odd numbered years; and
ii.From 12:00pm Christmas Day until 12:00pm Boxing Day with the mother in odd numbered years, and with the father in even numbered years.
b.At Easter time each year:
i.From 11:00am on Good Friday until 11:00am on Easter Sunday with the mother in even numbered years, and with the father in odd numbered years; and
ii.From 11:00am on Easter Sunday until 11:00am on the first Tuesday after Easter or the commencement of school on that day, with the mother in odd numbered years, and with the father in even numbered years.
c.If the child is not otherwise spending time with her mother on Mother’s Day, then the child shall spend time with the mother from 9:00am until 6:00pm on Mother’s Day.
d.If the child is not otherwise spending time with her father on Father’s Day, then the child shall spend time with the father from 9:00am until 6:00pm on Father’s Day.
7.Both parents are permitted to liaise directly with the child’s school, sporting, co-curricular and extra-curricular bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the child’s progress and these Orders are sufficient authority for that purpose.
8.The child shall remain enrolled at [Suburb AJ] School until conclusion of her primary school education.
9.Unless otherwise agreed between the parents in writing, the child will be enrolled in the public high school that she is zoned for attendance at based on her residence.
10.That, save for any emergency medical or dental treatment, or any referral to specialist medical treatment, the child shall attend a dentist and general practitioner nominated by the parents in writing or, failing agreement, shall attend:
a.[AB] Dental in [Suburb C] for her dental health; and
b.[AC] Medical Centre in [Suburb C] for her general health.
11.The mother and the father will inform the other of any attendance on any treating health practitioner and the identity of the treating health practitioner within 24 hours after the child has received the treatment and advise of the outcome of such attendance including any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.
12.Each parent shall, as soon as practicable, contact the other parent to advise in the event that the child:
a.Becomes seriously ill;
b.Is hospitalised;
c.Is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission to hospital/medical clinic.
13.Each parent is at liberty to obtain all relevant medical records and consult the child’s medical and dental practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.
14.The mother and the father shall keep each other informed at all times of their residential address, personal email address and personal contact telephone number and advise the other of any change to these details within 48 hours of such change.
15.Communication between the parties in relation to the child’s welfare shall be by email.
16.The parents are restrained from:
a.Denigrating the other parent or a person with whom the other parent is in a relationship with in the presence or hearing of the child, and shall remove the child from the presence of any other person doing so;
b.Discussing the proceedings or any allegations raised in the proceedings with the child, and shall remove the child from the presence of any person doing so;
c.Permitting or causing the child to have access to any documents filed in these proceedings, and shall remove any such documents from the possession of the child;
d.Communicating any information intended for the other parent through the child;
e.Discussing any major long term issues with the child until such issues have been discussed with the other parent and a decision made in the exercise of the parents’ equal shared parental responsibility.
17.The parents are restrained from removing the child from Australia without the prior written consent of the other parent, save for in accordance with order 18.
18.From the child commencing year 3 or equivalent education, each parent is permitted to travel with the child internationally during the time the child is in the care of that parent in any school holiday period, provided that such travel may only be to countries which are a signatory to the Hague Convention 1996.
19.The parents shall do all things necessary to cause the child’s Australian and [Country G] passports to be kept current at all times after she commences year 3 or equivalent education.
The proposal of the ICL as to what time the child spends with the Father sits between the proposals of the parents in relation school term time and is with that of the Father in relation school holidays.
The Father and the ICL seek an order that the parents have equal shared parental responsibility for the child, whilst the Mother seeks an order that she have sole parental responsibility.
Both parents and the ICL propose that any changeovers not occurring at the child’s school occur at the Suburb R Ferry Wharf.
Both parents and the ICL are also an agreement that an order should be made that the child attend one dental practice and one general practitioner. In particular, the parties nominate AB Dental at Suburb C and AC Medical Centre at Suburb C, with the Father putting those practices in his proposed order, the Mother naming them in a notation, and the ICL naming them as the default practices if the parents fail to agree in writing on a dentist and general practitioner.
The Mother opposes the child travelling outside the Commonwealth of Australia before she reaches the age of 12 years. The Father seeks orders that would enable the child to travel outside the Commonwealth of Australia with the “prior written consent of the other parent” on certain terms, and in particular with each parent to the Country G annually.
Both parties seek an order:
That the parties are each restrained from removing the child from Australia without prior written consent of the other parent.
Such consent is required to be authenticated, in accordance with regulation 13 of the Family Law Regulations 1984 (Cth), and such an order would take the matter outside the ambit of section 65Y of the Act, and the penalties for breach of that section.
The ICL seeks an order that the child be permitted to travel outside the comment of Australia with the parent once she has commenced Year 3 (currently on track for 2024).
The issues for determination by the court are:
(1)Parental responsibility;
(2)The time the child should spend with her Father;
(3)Whether the child can travel outside the Commonwealth of Australia with the consent of the other parent and on certain conditions immediately upon orders being made (as proposed by the Father), or not until she commences Year 3 (as proposed by the ICL), or not until she attains the age of 12 years (as proposed by the Mother), and who should retain the child’s Australian passport and Country G passport;
(4)Which high school the child will attend;
(5)If a parent is unable to care for the child overnight, whether the other parent should have first option to care (as sought by the Mother, and about which the Father and ICL are silent);
(6)How the parents are to communicate in relation to urgent and non-urgent matters concerning the child’s welfare;
(7)Whether the parents should be restrained from using any form of physical discipline upon the child (as sought by the Mother); and
(8)Whether an order should be made as sought by the Mother restraining the Father from attending any property where the Mother may reside from time to time, coming within 200 metres of any property where the Mother may reside from time to time and from approaching the Mother or X, except pursuant to final orders.
THE PROCEEDINGS
The proceedings were commenced by the Father filing his Initiating Application on 8 June 2017, to which the Mother responded by filing her Response on 13 September 2017.
At the first return date before the court, an order was made for the parties to attend a Child Dispute Conference and orders were made by consent for the child to live with her Mother and spend time with her Father supervised by a commercial supervision agency each Sunday from 3:00PM until 5:00PM and each Tuesday from 2:00PM until 5:00PM, at the Father’s expense, and for both parents to attend a post-separation parenting course within six months.
An interim hearing was conducted by Judge Harper (as his Honour then was) on 6 April 2018 and interim orders were made on 6 September 2018 providing for the child to spend time with her Father as agreed between the parents in writing and failing agreement:
(1)From 9:00AM to 1:00PM each Sunday for a period of four weeks;
(2)From 9:00AM to 1:00PM each Sunday and 8:30AM to 5:30PM each Tuesday for a period of four weeks;
(3)Thereafter, from 9:00AM to 6:00PM each Sunday, each Tuesday, and each Thursday.
Changeovers were to occur at the B Playground Suburb C and were to be supervised by D Families.
An order was made appointing an ICL to represent the child’s interests in the proceedings.
On 21 November 2018, orders were made by consent by Judge Henderson (as her Honour then was) providing for a regime of orders between 22 November 2018 and 7 January 2019, and that from 7 January 2019 the child spend time with her Father:
(1)Each Tuesday and Thursday from 8:30AM until 5:30PM with changeovers at the Q Early Learning Centre, Suburb C; and
(2)Each Sunday from 9:00AM until 6:00PM with changeovers at the B Playground Suburb C, with that changeovers to be supervised by D Families.
On 24 May 2019, an order was made under section 62G of the Family Law Act 1975 (Cth) (‘the Act’) for a Family Report to be prepared.
On 23 August 2019, a further interim hearing took place, and on 4 August 2020 orders were made providing for:
(1)The child live with her Mother;
(2)The child to spend time with her Father through graduated time, with the fourth graduation being from the first occasion of time in December 2020 until the child commences school:
(a)Each alternate weekend from 5:30PM on Friday until 6:00PM on Sunday;
(b)From 8:45AM on each Tuesday until 8:45AM on Wednesday;
(3)The fifth graduation once X commences school:
(a)Each alternate weekend from 5:30PM on Friday until 4:00PM on Sunday;
(b)Each week from after school on Tuesday until the start of school on Wednesday.
(4)Changeovers not occurring at the child’s pre-school or school were to occur at the Suburb R Ferry Wharf;
(5)Orders were also made for the child to spend time with each of her parents for particular times at Christmas, Easter, Mother’s Day, Father’s Day and on the child’s and each of her parents birthdays.
On 4 September 2020, an order was made releasing the Family Report prepared by regulation 7 family consultant Ms AH dated 3 September 2020.
On 25 February 2020, the matter was set down for final hearing from 14 to 16 June 2022 and trial directions were made, with the hearing dates later vacated and matters set down for final hearing on 27 to 29 June 2022.
The final hearing proceeded on those dates, and at the end of the evidence and oral submissions, a direction was made for the Mother to file written submissions and provision was made for the Father and the ICL to reply to those submissions if they chose to do so.
Judgment was reserved in the matter on 20 July 2022.
THE EVIDENCE
At the time of the final hearing, the Father was 56 years of age and the Mother was 49 years of age. Both were born in the Country G. The Father is now a dual Australian/ Country G citizen.
At the time of the final hearing, X was 6 years and 2 months of age and was in year 1 at Suburb AJ School, having commenced there in kindergarten the year before.
The Father lives in Suburb M on the Region N of Sydney and is employed full-time by Employer P as a professional and works from home.
Pursuant to final orders made on 24 September 2013, he has equal shared care of his children from his marriage to Ms U, and this continues for BB and CC. O has lived with the Father full-time since 2019. O was in Year 12 at AN School at the time of the final hearing. BB was in year 10 at AO School, and CC was in year 8 at AK School.
The Mother lives on Suburb F in Suburb AL in the Region N area of Sydney and is employed as a professional.
Pursuant to final orders made on 3 March 2023, the children of her previous relationship live with her, W and Y spend time with their Father in accordance with their wishes and Z spends each alternate weekend from Friday until Monday during school term, each Tuesday night during school term, and half of the school holidays with her father.
Of particular note, those orders include an order that the Mother and Mr AP are to endeavour to ensure that the alternate weekend time with their Mother aligns with the time that X is in her Mother’s care.
W, Y, and Z attend AL School.
The parents met through an online dating site in 2013. The Father asserts that they formed a relationship in 2013 and ended their relationship on a final basis in August or September 2015 (the Father’s evidence varies between paragraphs 6 and 25 of his trial affidavit) and never lived together.
The Mother asserts that the parties dated briefly during 2014 and that she permanently ended any relationship between them on 7 February 2015 and never resumed a relationship thereafter. She deposes in paragraph 28 of her trial affidavit that:
[X] was conceived in 2015 after a one-time encounter with [Mr Namvar]. [Mr Namvar] and I were not in a relationship at the time, nor after.
The parties’ squabbles about when they were and were not in a relationship have no effect on my determination of what parenting orders are proper to be made in X’s best interests, with those interests as the paramount consideration.
In December 2014, the Father purchased the unit downstairs from the Mother’s unit in L Street, Suburb M.
On 7 February 2015, the parents ceased their relationship at the insistence of the Mother, and the Father asserts that they then reconciled their relationship in May 2015, which the Mother denies.
In about 2015 Mother fell pregnant with X and the Father asserts that in August or September 2015 the relationship ended on a final basis, again at the request of the Mother.
At the Mother’s insistence, and much to his disappointment, the Father was not present at X’s birth at the AQ Hospital at Suburb AR. The Father and his children visited X at the hospital the day after her birth in 2016.
In 2016, the Father drove the Mother and X home from the hospital.
The amount of time the Father was able to spend with X was limited to brief periods by the Mother even though they lived in units in the same unit block. Eventually, the Mother limited the Father to one hour every few days with X, and in August/September 2016 the Mother refused to allow the Father to see X for a period of between two and three weeks, and during September/October 2016 only allowed the Father to spend one hour a week with X.
When the Mother returned to her employment in Suburb AG, X was placed in the Q Early Learning Centre at Suburb AG while the Mother attended her employment.
In October 2016, the Mother moved out of the unit in L Street and did not advise the Father where she and X together with the Mother’s other three children were living until moving back into the unit complex in March 2017. In June 2017, the Mother, X, and the Mother’s other children moved to a property purchased by the Mother on Suburb F, where they remained living up to the final hearing.
The Mother says in paragraph 31 of her trial affidavit:
There was never a period of time when [Mr Namvar] was not spending time with [X] regularly, but in 2017, [Mr Namvar] filed court proceedings despite there was no reason to do so as I was following our original verbal agreement, and the subsequent ones reached by mediation.
The Mother does not give details of the asserted “original verbal agreement, and the subsequent ones reached by mediation”, nor does the Mother give any evidence of what constituted the Father spending time with X “regularly”.
I accept the Father’s evidence of the amount of time he was allowed by the Mother to spend with X up until the first interim orders in these proceedings.
Further, I have read and carefully considered all of the Mother’s evidence that she asserts establishes family violence and/or a reason why she was and is in fear of the Father, particularly in paragraphs 39 and 50 of her trial affidavit (noting that the Father categorically denied the Mother’s assertions as to his actions in paragraph 39e during his cross examination and gives his version of the occasion referred to in the Mothers paragraph 50a in paragraph 52 of his trial affidavit).
While it is a concept that tends to attract a generalised or discursive meaning, ‘family violence’ for the purposes of these proceedings is specifically defined in section 4AB of the Act.
I find that there was no occasion of family violence perpetrated by the Father towards the Mother or any of the children.
I have read and carefully considered the material in paragraph 40 of the Mother’s trial affidavit and I find that none of the material deposed to by the Mother there in establishes any risk to X in the care of the Father.
As the Father’s time with X was being restricted by the Mother to one hour per week, he commenced these proceedings by filing his Initiating Application on 8 June 2017. At the first return date on 3 October 2017, an order was made by consent pending an interim hearing for the Father to spend time with X supervised by a commercial supervision agency from 3:00PM until 5:00PM each Sunday and from 2:00PM and 5:00PM each Tuesday.
On 6 April 2018 the matter went to interim hearing and resulting interim orders were made on 6 September 2018 providing for the Father to spend time with X as explicated earlier in these Reasons. Notably, changeovers between the parties were to be supervised by a commercial supervision agency at the equal expense of the parents.
Despite those orders, the Mother did not pay any of the costs for supervision of the changeovers by D Families, and at her insistence, the changeovers did not occur at the nominated park at Suburb C, but at the Q Early Learning Centre at Suburb AG, nearby to the Mother’s then-place of employment.
On 21 November 2018, further orders were made by consent by her Honour Judge Henderson as explicated above. The orders made 6 September 2018 requiring both parties to share equally the costs of supervision of changeovers by D Families was not discharged, but the Mother still on occasion refused contribute to the cost.
From the time of X’s birth, the Mother established a consistent history of failing to communicate with the Father or to consult with him in relation to any short or long term medical issues for X. She did not reply to the Father’s direct inquiries about health issues for X written in their communication Journal exchanged at changeovers.
The Mother made the decision that the terms of the interim orders relating to X spending time with the Father overnight from Tuesday to Wednesday were suspended during school holiday periods, even though X was some years away from school attendance and no such qualification was contained in any of the sets of interim orders. This resulted in the Father not spending that time with X pursuant to the orders during the school holidays at the end of Terms 1 and 2 in 2021. The Mother asserted during her cross examination that such was her ‘honest’ interpretation of the meaning of the orders.
It became obvious during the cross-examination of the Mother about the occasion that she took X on a trip with her other children, despite it running across time X was to spend time with her Father under the orders, that she considered that any extra time the Father may request he had with X outside that provided by the orders should be refused because it was not pursuant to the orders, but that any time she wished to keep X with her contrary to the orders was simply a matter of her choice and right as long as she offered make-up time. For the Father’s requests she refused, her response was “I’m following court orders”, and for her extraordinary disregard of the orders when she wished to have X with her across times when the orders had X spending time with the Father response was “I offered make-up time, but couldn’t agree.”
Prior to the birth of X, the Father was a regular traveller back to the Country G to visit relatives, and to date, his mother and grandmother (X’s paternal grandmother and paternal great-grandmother) and many other paternal family relatives who reside in the Country G have not met X.
At the time of hearing, the only evidence in relation to child support was that it was assessed in the sum of $543 per month, a total of $6516 per year.
X is up-to-date with all her immunisations. The Father conceded during his cross examination by counsel for the ICL that X is generally a healthy child and that all her up-to-date immunisations had been arranged by her Mother.
Suburb F is in the catchment zone for AL High School.
The Mother deposes in paragraph 148 of her trial affidavit:
I am also concerned that there is a risk that [Mr Namvar] would not return to Australia if he took [X] to another country
citing that the Father does not own property in Australia, works for a Country G based company, owns property in the Country G, has his whole family in the Country G, that his son O is 18 years of age and that:
… there are only a few years left before [O’s] siblings are free to move with [Mr Namvar], is a [Country G] citizen and has access to substantial funds.
In relation to that last comment, during his cross examination the Father said that the $650,000 he obtained from the sale of his property recently was now only $600,000, though no doubt still a substantial amount.
The Mother acknowledges that each state of the Country G is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The convention is in force between each state of the Country G and Australia.
The Father clarified during his cross examination by the Mother that he works for an Australian-based subsidiary of a Country G company.
The Father admitted during cross examination that he has a motorhome in storage in City AS and that O would like to live in the Country G, but he denied that either BB or CC want to live in the Country G.
X is eligible to become a citizen of the Country G, but on the evidence she is not currently a citizen of the Country G.
During her cross examination by counsel for the Father the Mother conceded that X loves her Father, that there was no evidence at all of X ever refusing to go to spend time with her Father, no evidence of X raising any complaints about the time she spend with her Father, that X has a good time when she is with her Father and that she has a positive relationship with her paternal siblings.
During her cross examination, the Mother was referred to in paragraph 168 of the Family Report and the opinion of Ms AH that:
Whilst the concerns they each raise have been taken seriously and to identify areas of concern, each parent would be considered ‘good enough’ and no one better than the other
She specifically accepted that opinion in relation to the Father.
The affidavit evidence of Ms J, the Mother’s elder sister, does not assist as it was sworn in April 2018, is largely an answer to an affidavit by the Father not read at the hearing, and deals largely with former assertions by the Father about the state of the Mother’s household that are not repeated in the hearing. Given the final orders the Father proposes as being in the best interests of the child, those concerns cannot be.
Ms AD, X’s maternal grandmother, provided evidence by affidavit almost entirely in praise of the Mother’s achievements and personality.
Ms T, the former director of the Q Early Learning Centre at Suburb AG provided affidavit evidence for the Mother, the admissible parts being confined to her observation of when X attended the centre and observation of W, Y, and Z.
Ms K provided affidavit evidence for the Mother. She met the Mother when they were both at the University AT in the Country G in 1996 studying for a degree, and has been a friend of the Mother for over 25 years. Ms K has visited the Mother and children at their home on Suburb F on a number of occasions. Her affidavit is mainly in praise of the Mother’s parenting ability and personality.
Ms AE is a friend of the Mother. She met the Mother when the Mother and children moved to reside at Suburb F. Her affidavit is also evidence in praise of the Mother’s parenting ability and personality.
Finally, the Mother has affidavit evidence in her case from Ms U, the Father’s former wife and the mother of O, BB, and CC. She has known the Father since 1988.
In 2011 there was what she refers to as a “temporary AVO” for her protection from the Father, but she does not give specific detail of what led to that AVO and it is in the Father’s evidence that the AVO was coupled with a charge that was dismissed upon hearing in the Local Court.
The Father describes it as an occasion on which he threw a piece of fruit at Ms U. Despite assertions, without detail, of domestic violence perpetrated by the Father against her, Ms U and the Father entered into consent orders in 2013 providing that they had shared care of the children at a time when O was 9 years of age, BB was 7 years of age and CC was 5 years of age.
Those orders speak loudly against Ms U having considered the Father to be in any manner a risk or lacking in appropriate caring capacity or appropriate attitude to the responsibilities of parenthood at the time those orders were made. Her complaints about the Father revolve mainly around financial matters and alleged coercive and controlling behaviour through financial matters.
THE FAMILY REPORT AND THE EVIDENCE OF MS AH
The interviews for the family report occurred in August 2020, when X was 4 years of age and had not started school.
When asked about her family, X told Ms AH that she has two sisters and four brothers and has grandmas and cousins. In paragraph 158 of her report, Ms AH wrote:
As the youngest of seven children, [X] has a unique place in her family. She is much younger than her siblings which means that her interests and abilities will be markedly different to theirs over the next 10 to 15 years. That is not to say that she will not have interests in common with her siblings, but, for example, when her siblings are entering the later stages of childhood and begin to have more self-focus or focus outside the family unit open bracket adolescence), she may not have the opportunity to spend as much time with them and so building those relationships now will be important.
In paragraph 160, Ms AH noted:
[X] presented as a confident child and confident in her relationships with her siblings. The sibling relationship can form a lifelong support network if supported during the early years. … The proposed additional time that [X] will spend with [O], [BB] and [CC] will help to develop those relationships further.
In paragraph 177, Ms AH cautioned:
If [Mr Namvar] and [Ms Pales] do not alter their current approach to one another [X]’s experience will be confusing. She will be aware of her parents’ feelings towards one another and that is likely to make her feel uncomfortable and/or sad. This may lead to poor mental health. Children exposed to ongoing parental conflict are highly represented in mental health services and experience conditions like anxiety and depression. It may be helpful for both parents to complete a post separation program or research information that explores the impact of parental conflict on children.
In paragraph 179:
[An] issue that could arise is what school [X] attendance. [Mr Namvar] and [Ms Pales] have not discussed this, but [Mr Namvar] had assumed that she will attend [Suburb AJ] School in 2021. [Ms Pales] has in fact enrolled [X] in [Suburb AJ] school already. If [X] lives predominantly with [Ms Pales], she should attend that school. Orders that stipulate that she remain at that school unless both parents agree in writing further to change schools may avoid future litigation. Orders that stipulate that [X] attend a high school agreed to by both parents, but failing agreement, the high school that she lives in the catchment area for I also avoid further litigation.
Ms AH recommended in the Family Report, inter alia, that:
(1)The parents share parental responsibility for X;
(2)The parents identify a dentist and a medical practitioner for X to attend in the future;
(3)Once X is in school, she spent half of the school holidays with each of the parents and that, until she is in Year 3, she spends the long Christmas holidays in a week-about arrangement, coinciding with those of her maternal half-siblings so that she spends half of the school holidays with them;
(4)Once X starts Year 3, she spends time with her Father from after school on Wednesday to before school on Monday every second week during school term; and
(5)Once she is in Year 3 she be able to travel overseas with each parent.
X started school in 2021 and should now be in Year 2.
During her cross examination, Ms AH said that the evidence of inter-parental conflict did not alter her view that an appropriate order was that the parents have equal shared parental responsibility. She was of the view that parental responsibility being either solely with one parent or shared equally by the parents would not stop parental conflict, but nor would it exacerbate conflict.
She was of the view that an order for equal shared parental responsibility was very important to show X that both her Mother and her Father were important and involved in her life. She said that there was no Court order that would make the Mother feel that the Father was as important a parent in X’s life as she is, and it was for that reason that an order providing for both parents to have equal shared parental responsibility was strongly recommended.
In relation to her recommendations that important steps increasing X’s time with the Father occur when she commences Year 3 at school, Ms AH said the children at that age are expected to be more independent and self-reliant, such as being able to toilet themselves and prepare for school each day, with the move from infant school to primary school being a marker.
She said that the same reasoning applied to her recommendation in relation to international travel by X. Ms AH said that in her interview and observations, X presented as a competent, strong-willed child and as not at all anxious. This led her to concede during her cross examination that X may be able to cope with changes earlier than Year 3.
Ms AH was very much of the view that avoiding the parents meeting at changeovers, such as at the Suburb R Ferry Wharf or elsewhere, was preferable and that changeovers occurring by collection from and delivery to school would be the best option, opining that a move to X spending time with her Father from the end of school on Friday until the start of school on Monday would be preferable to maintaining mid-week changeovers.
In cross-examination, Ms AH was not prepared to recommend that a shared care arrangement was in X’s best interests, given the parent’s attitude toward each other, and particularly the Mother’s attitude to the Father. However, she expressed the opinion that if the Court’s view was that equal time to X with each of her parents was in her best interest, then a Friday-to-Friday arrangement would be better for X than a split week shared care arrangement as proposed in the Father’s alternate orders.
SUBMISSIONS
Mr Gallimore for the ICL submitted that, on the evidence, it was clear that both parents could adequately meet all of X’s needs and that whilst the relationship between the parents is very poor, the evidence established an ability to communicate when needed. He submitted that particularly on the evidence of Ms AH, an order for equal shared parental responsibility was in X’s best interests.
He submitted that on all of the evidence, he could not press a finding that there had been family violence.
The ICL did not support the Father’s shared care proposal. The ICL submitted that a meaningful relationship between X and her Father had already developed under the existing orders, and would only be improved by the step-up in time proposed in the ICL’s minute of orders (as contained in Exhibit ICL5). Mr Gallimore submitted that a shared care arrangement was neither justified nor supported by the evidence.
In relation to international travel for X, the ICL submitted that there was clear benefit to X in being able to visit members her extended family, both paternal and maternal, overseas, particularly in the Country G and that any fetter on such international travel to Hague Convention countries was not justified. The ICL submitted that there was no evidence of risk of flight by the Father, despite the Mother’s express fears, given that he had travelled previously overseas with his other children and always returned them, and that to not make orders allowing X to travel internationally would invite further conflict between the parents.
Mr Gallimore submitted that an order providing for a three-week block of time for X with each parent during the Christmas school holidays would provide adequate time for overseas travel.
The Mother provided written submissions and made only very brief oral submissions at the hearing in which she emphasised the importance of the time the X spends with her maternal siblings W, Y, and Z, that they each play important role in her life, and that the four siblings are very close.
She noted that under the interim orders prevailing at the time of the interim hearing, X and her maternal siblings had nine nights per fortnight together and that the orders sought by the Father would reduce that time. She also submitted that she appreciated the need for X to spend time with her paternal siblings and the importance of X having a meaningful relationship with her Father.
The Mother incorporated her Case Outline document and the submissions contained therein into her final written submissions. Much of the direction of the Mother’s written submissions was toward answering a case where the Father sought to be the primary carer for X, rather than for a shared care arrangement. She made submissions of the benefit to X in going on from Suburb AJ School to AL School with her classmates in due course rather than the Father’s proposal for undertaking the selective schools test when in Year 6 and attending AK School if successful.
In relation to parental responsibility, the Mother submitted that:
… in order to prevent further litigation and the need to return to Court for future medical, dental, and education decisions, I am seeking sole parental responsibility for [X]’s medical, dental and education decisions for continuity of her care.
Equal shared parental responsibility is no bar to X’s continuity of care, particularly given the agreement between the parties and the ICL in relation to an order as to the dental and general practitioner practices X should attend.
The Mother submitted that:
It is important that [X] returns to my care at 4PM on alternating Sundays in order to provide more stability during the school week for her. This has worked very well for [X].
The Mother made extensive written submissions in relation to the issue of international travel, all of which I have considered carefully.
In summary, the Mother’s written submissions are to the effect that the interim orders in place at the time of the final hearing should continue to cover the time the Father spends with X, with orders be made for gradual increase in school holiday time up to a sharing of the school holidays on equal basis only when X commences high school in 2028.
The Father’s counsel made oral submissions at the end of the final hearing and submitted that, on all of the evidence, there is no need to delay a step up to school holiday time being shared equally between the parents, referring in particular to the evidence of Ms AH about X’s ability to cope and the Mother’s concessions that X loves the Father, has a good time with the Father, and has a good relationship and enjoys a good time with her paternal siblings.
The Father’s counsel made carefully reasoned submissions in relation to findings she submitted the Court should make in relation to the credit of the parties. However, I find that in this matter there is no need to make credit findings in considering all of the evidence in determining what parenting orders are proper to be made in X’s best interest with X’s best interests as the paramount consideration.
The focus of submissions on behalf of the Father were that on the evidence, the best interests of X were for orders to be made for equal shared parental responsibility, and for X to spend equal time with each of her parents, despite the Mother’s attitude to the Father and the state of the co-parenting relationship.
THE LAW
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders. That section also contains the principles behind those objects.
In this matter I have considered those objects and the principles behind those objects.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper. The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[1]
[1] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings.
Section 61DA provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[2]
[2] Family Law Act 1975 (Cth) s 61DA(4).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DA, the Court must consider:
(a)Whether the child spending equal time with each parent would be in the best interest of the child;[3] and
(b)Whether the child spending equal time with each of the parents is reasonably practicable.[4]
[3] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[4] Family Law Act 1975 (Cth) s 65DAA(1)(b).
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[5]
[5] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of their parents, then the Court must consider whether the child spending substantial and significant time with each of their parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the decision of Grella & Jamieson [2017] FamCAFC 21:
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[6]
[6] Grella & Jamieson [2017] FamCAFC 21, [18].
Where there is contested evidence, the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In Mazorski & Albright[2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, at paragraph 121 the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders [2007] FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s judgment in M & S [2007] FLC 93-313 and said at paragraph 33:
[33] The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later, at paragraph 36 said:
[36] It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
In Tait & Densmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
[170] … To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. …
Strictly speaking, it is necessary to examine as a matter of evidence what benefits do accrue to the child in having a meaningful relationship with both parents. At first blush one might think that the concept that there is a benefit to a child in having a meaningful relationship with both of the child’s parents, may be self-evident, that it is common knowledge or not reasonably open to question and therefore can be accepted under section 144 of the Evidence Act 1995 (Cth).
However, that is not the case. In KB & TC [2005] FamCA 458 at paragraph [87] the Full Court of the Family Court of Australia held that:
the benefit to be derived by child from sibling relationships is not a matter which could be the subject of judicial notice within section 144 of the Evidence Act 1995 (Cth)
a concept that I find sufficiently closely analogous to the benefit to be derived by child from having a meaningful relationship with both parents.
In McGregor & McGregor [2012] FamCAFC 69 at paragraph [74] the Full Court held that:
It is not open to a judge to use section 144 of the Evidence Act to “inform” him or herself of matters in respect of which reasonable minds might differ.
Might reasonable minds differ as to whether there is benefit to a child of having a meaningful relationship with both parents? This is not the place.
SECTION 60CC – THE PRIMARY CONSIDERATIONS
The primary considerations are the benefit to X of having a meaningful relationship with both of her parents and any need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is mandated to give greater weight to any need to protect X over consideration of the benefit to X of having a meaningful relationship with both her parents.
This is not a risk case. The orders sought by both parents express a view that this is not a risk case. There is no threat of physical or psychological harm to X from being subjected to, or exposed to, abuse, neglect or family violence.
X has meaningful relationship with both of her parents and it is patent in the evaluation of Ms AH in the Family Report, in her oral evidence, and in all of the rest of the evidence in the hearing, that there is significant benefit to X and having a meaningful relationship with both her parents. To enable a meaningful relationship between X and her parents to further grow and develop, X needs to be able to spend an adequate amount of time with each of her parents.
The time that X spends with her Father (and her paternal siblings) under the interim orders prevailing at the time of the interim hearing, which the Mother proposes continue during school term time indefinitely, enables X to maintain some sort of a meaningful relationship with her Father.
However, that time is only barely adequate for that purpose, and is not adequate to enable that meaningful relationship to grow and develop as it would if the Father had more involvement in X’s life by being involved X’s school and social life by spending time with her on whole days that do not fall on weekends or holidays, being able to be involved in her daily routine, and events of particular significance to X.
I find that the primary consideration of the benefit to X of having a meaningful relationship with both her parents is in favour of an increase in the time spent by X with her Father and her paternal siblings during school term time and on school holidays, with X’s best interests being the paramount consideration.
SECTION 60CC – THE ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as X’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to X’s views
At the time of her interview for the Family Report, X was four years and three months of age. There is no direct evidence as to X’s expressed views, but her views in relation to spending time with her Father can be ascertained from the evidence of the Mother in cross-examination where she conceded that X loves her Father, has a good time with her Father, and has a good relationship with her paternal siblings.
The nature of the relationship of X with each of the parents and with other persons (including any grandparents or other relative of X)
X has a very close and loving relationship with her Mother and each her maternal siblings.
X has a close and loving relationship with her Father and each of her paternal siblings.
The extent to which each of X’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation X; to spend time with X; and to communicate with X
Each of the parents has taken every available opportunity to be involved in spending time with X and communicating with X, though the Father’s opportunities had been limited to very sparse opportunities prior to the making of interim orders, and limited to the time allowed under the interim orders up until the final hearing.
The Father has sought opportunities to participate in making decisions about major long-term issues for X, including as to medical, dental, and education matters. He has not always been given the opportunity to do so by the Mother, who, to her discredit, did not regard his participation or his input as either necessary or important X’s interest.
The making of an order that the parents have equal shared parental responsibility for X will impose a legislative obligation on the parents – both of them – to consult together in relation to any major long-term issues affecting X’s welfare and to make their best effort to reach agreement in her interests.
The extent to which each of X’s parents has fulfilled or failed to fulfil, the parent’s obligations to maintain X
The Mother complains that she has borne the greater burden of the financial support of X and that the Father has not contributed as much as she considers would have been appropriate.
There is a dichotomy in the Mother’s attitude to the Father’s contribution to X’s financial upkeep and her attitude to the amount of participation the Father should have in X’s life by being involved in decision-making on long-term issues and in spending time with X.
On the evidence, I find that each of the parents has fulfilled their obligation to maintain X.
The likely effect of any change in X’s circumstances, including the likely effect on X of any separation from either of her parents or from any of her half siblings with whom she has been living
The orders proposed by the Father, and to a lesser extent the orders proposed by the ICL, effect a change in X’s circumstances on a weekly basis during school term time by increasing the amount of time she spends with her Father and paternal siblings and consequently decreasing the amount of time she spends with her Mother and her maternal siblings.
I find that the strength of X’s relationship with her Mother and with her maternal siblings is such that a decrease in their time together by increasing her time with the Father and paternal siblings will have no detrimental effect on her maternal family relationships, but will have a beneficial effect on her meaningful relationship with her Father and her relationships with her paternal siblings.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
The only consideration of a practical difficulty or expense in relation to X spending time with her Father is the Mother’s place of residence being on Suburb F in AL and the distance from the Father’s home at Suburb M to the Suburb R Ferry Wharf from where the ferry runs to and from Suburb F.
I take judicial notice pursuant to section 144 of the Evidence Act 1995 (Cth) that, as a matter on which reasonable minds would not differ, the distance from Suburb M to the Suburb R Ferry Wharf is moderate, being mainly along Suburb AL Road on Sydney’s Region N area.
Both parents and the ICL seek an order that any changeovers that do not occur at X’s school occur at the Suburb R Ferry Wharf.
I find that there are no matters of practical difficulty or expense that would substantially affect X’s right to maintain personal relations and direct contact with both her parents on a regular basis.
The capacity of each of X’s parents to provide for the needs of X, including her emotional and intellectual needs
Both parents are eminently capable of providing for all of X’s needs, including her emotional and intellectual needs. In saying this, in no way does the Court ignore the Mother’s unacceptable tendency in the past to disregard the importance of X’s emotional need to have an appropriate level of contact with her Father to enable her to maintain and continue to develop her meaningful relationship with her Father.
However, precise orders in relation to the time that X is to spend with each of their parents and compliance with those orders will address that detriment to X’s best interests.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of X’s parents, and any other characteristics of X that the court thinks are relevant
At the time of the final hearing, X was six years and two months of age and she is now seven years of age. Both of the parents were born in the Country G and X’s cultural heritage is a combination of Australian and Country G culture.
I find that X having an opportunity to experience the culture of her parents’ place of birth and understand their origins and the place of that culture in her life is very important for her, and I find that it is appropriate that orders be made enabling X to do so without waiting until she turns 12 years of age in 2028 as the Mother proposes.
I find that there is nothing else in relation to X’s maturity, sex, lifestyle, or background that needs to be examined in determining what orders are proper to be made in X’s best interest with that interest as the paramount consideration.
The attitude to X, and the responsibilities of parenthood, demonstrated by each of X’s parents
The only finding that Court needs to make on this additional consideration, on all of the evidence, is that the Mother’s attitude to X in relation to her relationship with their Father has been inadequate in the past and must improve.
The Mother has certainly been X’s primary carer and by far her most significant attachment figure from the time of her birth, but her Father is also a primary importance in the life and his importance will increase from now on.
The warning has been sounded clearly and loudly by Ms AH in the Family Report, particularly in paragraph 177, that if the parents’ attitude toward one another – and particularly the Mother’s attitude to the Father as an important figure in X’s life – does not improve, then this poses a risk to X’s mental health.
That is not to say that there has been evidence of bad faith on the part of the Mother. I find that her attitudes and actions have been in line with what she honestly believed to be in X’s best interest at the relevant times. However, I also find that, in reality, her attitudes and actions in minimising the Father’s role in X’s life have been in error and detriment to X’s welfare, and it is heavily incumbent upon the Mother to learn from these proceedings, as her comments at the very conclusion of the hearing when making submissions began to indicate she has.
I find that this is not a matter where there has been family violence by either parent.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
To avoid the likelihood of further proceedings in the life of a child who has had proceedings current since she was 14 months of age, and is now seven years of age, I find that orders setting out a precise pathway for the time that X is to spend with each of her parents, for parental responsibility and for issues relating to X’s high school, are essential.
PARENTAL RESPONSIBILITY
There is no finding of family violence in this matter and so the presumption set out in section 61DA that it is in X’s best interests for her parents have equal shared parental responsibility for her does apply.
There is nothing in the evidence that rebuts the presumption. To the contrary, I rely heavily on the evidence in cross-examination and in the recommendation in the Family Report by Ms AH that it is essential in X’s best interests that an order be made that her parents have equal shared parental responsibility for her so as to ensure the Father’s involvement in her long-term welfare and to make apparent to X (and to the Mother) that the Father is the other most important figure with the Mother in X’s life.
The Mother sought that she have sole parental responsibility for matters relating to X’s medical, dental and education matters. The difficulty surrounding medical and dental matters are to a great extent alleviated by the order agreed to by both parents and the ICL in relation to identification of the AB Dental in Suburb C and the AC Medical Centre in Suburb C as X’s normal dental practice and general practitioner.
X already attends Suburb AJ School and there is no proposal that should be moved from there. The Father seeks specific orders in relation to X sitting the selective schools test in Year 6 and if successful seeking acceptance into AK School in Year 2.
As school and decisions in relation to X’s high school do not need to be made until she is in Year 6 in 2027, that issue can be addressed at that time based upon her school progress, not upon competing parental aspirations on her behalf as they stood in 2022.
The presumption applies and I find that it is in X’s best interest with that interest as the paramount consideration that an order be made that her parents have equal shared parental responsibility for her.
SECTION 65DAA – CONSIDERATION OF X SPENDING EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME WITH EACH OF HER PARENTS
This is the crux of this matter.
The Mother does not seek orders that amount to X spending substantial and significant time with her Father.
The ICL does not seek orders that amount to X spending substantial and significant time with each of her parents. This is because those orders do not provide for X to spend a whole school day in her Father’s care; that is getting up in the morning, going to school, coming home, and going to bed in the care of her Father. That is what I interpret as the clear meaning of the wording of subsection 65DAA(3), as that subsection refers to spending time with a parent on days that fall on weekends and holidays and days that do not fall on weekends or holidays, and time that allows the parent to be involved in the child’s daily routine.
The Father’s proposed orders are for equal time between the parents during school term time and during school holidays. The Father proposes that immediately upon the making of final orders, X be living between her parents on a shared care basis.
I have examined carefully the evidence given by Ms AH during her cross-examination about when it would be appropriate to progress X’s time with her Father, and to what extent her time with her Father should progress.
In following the legislative pathway set out in section 65DAA, as I must, I must consider if X spending equal time with each of their parents would be in her best interests, and then consider whether X spending equal time with each of the parents is reasonably practicable, and if I consider the answer to both to be in the affirmative, I must go on to consider making an order to provide for X to spend equal time with each of her parents.
I do not consider that orders providing for X to move immediately to spending equal time with each of her parents are in her best interests, as it is a leap too far in one go. Any increase in the time X spends with her Father must be done in an age-appropriate manner so as to give X the opportunity to acclimatise to the changes in her routine and her increasing absences from her Mother and maternal siblings.
I find that it is not in X’s best interest for the progression of her time with her Father to increase to the point where she spends equal time with each of her parents. The route to that finding is found in the whole of the evidence as it reflects upon the state of the co-parenting relationship between his parents.
I find that even with their best efforts, and even if they remain mindful of the serious caution expressed by Ms AH in paragraph 177 of the Family Report, these parents will never be in a position to co-parent and communicate in X’s best interests so as to make a shared care arrangement work with harmony and a lack of parental conflict. I am mindful here that the consideration of such an arrangement is more concerned, on the state of the evidence, with the possibility of a detrimental effect upon X, rather than whether such an arrangement would have a beneficial impact on X.
In relation to whether X spending equal time with each of the parents is reasonably practicable, I must have regard to the matters set out at section 65DAA(5)(a) to (e). As the Father is the one who has proposed that X spend equal time with each of her parents then, though it was not expressed in the evidence, he must have a plan that involves getting X to and from school from Monday to Friday each school week that she is in his care.
Therefore, I find that the distance the parents live apart from each other does not render an equal care arrangement impractical.
As I have already found, the parents’ future capacity to implement an arrangement for X spending equal time with each of them does render such an arrangement not reasonably practicable. I make the same finding in relation to the parents’ future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement of that kind.
I find that the impact of an arrangement whereby X spends equal time with each of her parents, even if that were to be in some years down the track, would have a detrimental impact upon X due to my findings about the parents’ future capacity to implement that arrangement and their future capacity to communicate with each other and resolve difficulties that might arise.
I also find that the effect of such an arrangement would upon the Mother would almost certainly cause concern or anxieties which would almost certainly impact upon her parenting of X to X’s detriment.
I find that X spending equal time with each of her parents is not reasonably practicable, both now and for the future.
I find that X spending substantial and significant time with each of her parents is very much in her best interests. My pathway reasoning to that finding is found in all of the evidence and in particular in:
(1)The importance of the Father in X’s life and the tendency of the Mother to minimise the Father’s importance in X’s life if given opportunity to do so;
(2)The ease, very much so, with which X is able to pass between her parents without there being any evidence of behavioural difficulties, unhappiness or anxiety on X’s part; and
(3)The necessity for her to have the opportunity to deepen and further develop her meaningful relationship with the Father and also with her paternal siblings.
As I have already found, the distance between the parents’ place of residence, even given the Mother’s residence on Suburb F in AL, does not prevent an arrangement of X spending substantial and significant time with each of the parents from being reasonably practicable.
The parents to have the capacity to implement and arrangements substantial and significant time and to communicate with each other and resolve difficulties that might arise in implementing that arrangement on the basis of the performance by the parties of the interim orders up to the time of hearing.
That finding is strengthened by the fact that increasing X’s time with her Father, to an age-appropriate step, to substantial and significant time will have the effect of eliminating most of the parent-to-parent changeovers at Suburb R Ferry Wharf by making changeovers (except during school holiday periods) unnecessary.
I have already found that moving to such an arrangement would not have a detrimental of impact upon X. With the Mother retaining her role as X’s primary carer (in that during the school term, X is in her care for more of the time than she is with her Father), that would not lead the Mother to the kind of reactions that are almost certainly to come about if an order for X spending equal time with each of the parents is made and the Mother sees herself as downgraded from primary carer.
As I find that it is in X’s best interest to spend substantial and significant time with each of her parents and that such an arrangement is reasonably practicable, it only remains to consider what orders providing for X to spends time with each of her parents are property be made in her best interest with those interests as the paramount consideration, and resolve the other issues in the matter by orders addressing international travel, high school, the Mother’s proposed order for right of first refusal of the other parent is unable to care for X overnight, how the parents should communicate in urgent and non-urgent matters, and whether there should be an injunction addressing physical discipline.
CONCLUSION
I find that the optimal arrangement for X spending substantial and significant time with each of her parents is for her to be in her Father’s care during school term from the end of school on Wednesday until the start of school the following Monday each alternate week and for half of the school holidays, being a week-about during the long school holiday at the end of Term 4 for the holiday starting at the end of the school year in 2023, but then moving to a block halves from the holiday starting at the end of school year in 2024.
However, I consider that the proper orders in X’s best interests involve two steps to arrive at that optimal arrangement, each step being for the duration of the school term – the first step being for X to be in her Father’s care from the end of school on Friday until start of school on Monday each alternate weekend for the balance of the 2023 school Term 2, to be in her Father’s care from the end of school on Thursday until start of school on Monday each alternate weekend for the 2023 school Term 3, and then to be in her Father’s care from the end of school on Wednesday until the start of school on Monday each alternate weekend during school term time from the start of Term 4 and 2023 onwards.
I consider that it is in X’s best interest that orders be made that she spend time with her Father for one half of the school holidays at the end of Terms 1, 2 and 3 starting with school holidays at the end of Term 3 in 2023, with her time with the Father being from her breakup from school until 4:00PM on the following Wednesday during the school holiday at the end of Term 2 in 2023.
As indicated, I will make an order that X spend equal time with each of her parents during the long school holidays at the end of Term 4 each year, being on a week-about basis for that holiday starting in 2023, and thereafter for a block period of one half of that holiday.
In relation to passports for X and international travel, I will make orders 11, 12, 13, and 14 as sought by the Father with the exception of sub orders 14.1 and 14.2 and confining the time referred to in 14.3 to the time X is in that parent’s care pursuant to the orders, rather than “21 nights” and I will amend the opening words of the Father’s proposed order 14 to make it clear that the order applies to travel generally by X to countries that are signatories to the Hague Convention 1996 and not just to the Country G.
I will not make any order specifying X undertaking selective school tests or in relation to what high school she will attend in particular, other than to make an order that unless the parents otherwise agree, X is to attend the high school that she lives in the catchment area for with her Mother.
I will not make the order sought by the Mother that if a parent is unable to care for X overnight, the other parent is to have first option to care for X. I find that it is an order that is likely to lead to further parental conflict and I consider that it is in X’s best interest if her carer parent makes appropriate arrangements for her in those circumstances.
I will not make the order sought by the Mother restraining the Father from coming to her property or coming within 200 metres of her or X. Though not expressed as an injunction under section 68B, such an order has the flavour of a personal protection injunction, and I do not consider that such is warranted on the state of the evidence before the Court.
I will make an order that each of the parents keep the other advised of their current mobile telephone number, residential address, employment address (if applicable), and an email address for communications affecting X’s welfare.
I will also make order 7, 11, 12, 13, and 14 of the ICL’s minute in relation to communication between the parties and by the parties with persons concerned with X’s medical needs and schooling. I will not make order 15 as sought by the ICL, as I do not consider that a fetter by way of Court order on the form of communication between the parties is appropriate in the circumstances. Of the orders relating to communications between the parties in relation to matters affecting X, including her health and schooling progress, I consider those to be in X’s best interests with that being the paramount consideration.
In relation to special occasions, I find that it is most appropriate to make the orders as sought by the ICL and the Father’s order in relation to time on birthdays (about which the ICL is silent).
In relation to telephone communication between X and her parents, I decline to make any particular order in relation to X communicating with her parents or her siblings. It will be up to the parents to facilitate any wishes that X may express from time to time, operating with her interests as their paramount consideration.
For an abundance of clarity, it is the Court’s clear and express view that X having easy access to communicate with her siblings, facilitated by her parents, is in X’s best interests.
In relation to the enrolment of X in primary school, I decline to make any specific order. X is enrolled in a primary school and there is no application before me that she change primary school. Should any decision to change her primary schooling need to be made, the parties will exercise each of their responsibilities, both having equal shared parental responsibility for X.
I will make an order in terms of the one sought by the Mother in her order 16 restraining each of the parents from using any form of physical discipline upon X as it is even-handed between the parents and is an order in X’s best interests, but it is not made on the basis of any finding that either parent has a propensity to use excessive physical discipline or physical discipline at all.
I will make the other orders sought by each of the parents and the ICL that are not in issue between the parties and the ICL.
The Mother and the Father would do well to reflect on these Reasons for Judgment and to remember that X does not love either parent more or less based on where she sleeps most of the time. X is fortunate to have siblings on both sides of her family, and it would be wise of the parents to ensure that X gets the maximum benefit of those sibling relationships.
In the exercise of their equal shared parental responsibility, both of these parents should do all that they can to ensure that they both parent X with her best interests as the paramount consideration.
I made the orders set out at the start of these Reasons.
I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 18 May 2023
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