Nash & Reis - [2013] FMCAfam 11

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASH & REIS

[2013] FMCAfam 11

FAMILY LAW – Children – relocation.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAC

RR v VR (2002) FLC 93-099

Applicant:

MS NASH

Respondent:

MS REIS

File Number:

CAC 236 of 2012

Judgment of:

Brewster FM

Hearing dates:

21 & 22 November 2012

Date of Last Submission:

30 November 2012

Delivered at:

Canberra

Delivered on:

15 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Dickson

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Mr Thexton

Solicitors for the Respondent:

Family Legal

ORDERS

That in these orders “contact” means spending time with.
That as and from the commencement of first term 2013 all previous orders in relation to the child [X], born [in] 2006 be discharged and these orders commence operation.
That the parties have equal shared parental responsibility in relation to the child.
That the child live with the respondent Ms Reis.
That the child have contact with the applicant Ms Nash as follows:
(a)On the third and seventh weekend of each school term which, subject to Orders 7 and 9, is to run from Friday to Sunday;
(b)For the first ten days in the mid year school holidays;
(c)For one half of the Christmas school holidays being the first part of holidays commencing in even numbered years and the second part of holidays commencing in odd numbered years.
That each party may communicate with the child on up to two occasions a week when the child is with the other party for periods other than weekend contact. This can be by telephone or, if either party requests, by Skype. In the event that a request is made that it be by Skype the other party is to ensure that she has Skype facilities available.
That one of the contact weekends is to be on the Queen’s Birthday long weekend and contact will end on the Monday.
That notwithstanding Order 5(a) in 2014 and each alternate year thereafter the weekend of Mothers Day is to be one of the contact weekends.
That until the child commences secondary school the applicant may nominate one weekend in first, third and fourth terms to be a weekend including the Monday. She is to give at least 14 days notice.
That either party may vary the contact weekend if there is a significant event involving the child that would indicate that a variation is appropriate. Unless it is impractical at least 14 days notice is to be given.
That one half of the Christmas school holidays will be computed by dividing the number of days the child does not attend school by two. If this is an uneven number of days the applicant is to have the additional day.
That when contact is in the first part of the Christmas holidays it is to commence on the first day after school breaks up. When it is in the second part of the holidays it is to conclude two clear days before school resumes.
That weekend contact shall commence at 5.30pm and conclude at 4.00pm. Holiday contact is to commence at 11am and conclude at 4pm. The changeover is to be at an agreed location in [omitted].
That the respondent is to notify the applicant of the name of any health professional involved with the child and to authorise such person to provide any information to the applicant as she may request.
That each party is to keep the other advised of any significant medical issues that arise when the child is in her care.
That the respondent is to authorise any school the child attends to provide to the applicant copies of reports, school photographs and any other information requested by her and she is to keep the applicant informed of any events at the school which it could be anticipated that the applicant might wish to attend.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 236 of 2012

MS NASH

Applicant

And

MS REIS

Respondent

REASONS FOR JUDGMENT

Introduction

This matter originally involved a dispute between the parties in relation to property division and as to the arrangements that should obtain in relation to their daughter [X]. [X] was born [in] 2006 and is therefore six years of age. The property dispute was resolved on the first day of the hearing and orders were made by consent. This judgment concerns the issues in relation to [X]. Central to those issues is a proposal by the respondent to relocate with the child to Wollongong. The applicant opposes this relocation.

Background

The applicant is aged 62 and the respondent 42. They commenced a relationship in November 1997. They agreed that the respondent should, if possible, have a child and commenced the IVF program in 2002. Ultimately the respondent became pregnant and [X] was born. She is the only child of the relationship. Pursuant to section 60HB of the Family Law Act she is a child of both of the parties.
In 2008 the parties entered into consent orders in relation to [X]. This was not due to any problems in the relationship but, as I understand the situation, to ensure that the applicant would, in the words of the respondent in her affidavit have “equal recognition for the purposes of [X] going to school, hospitals etc and……..have some recognition of her status as a parent and significant person in [X]’s life.” The respondent also said that another purpose was “to protect [X] in the event that either [Ms Nash] or myself were to pass away.” The orders provided, amongst other things, that the parties should have equal shared parental responsibility for the child.
The parties separated in January 2012. The respondent took steps to divide the house in which they were living into two self contained areas and put locks on her part of the house. Shortly afterwards however she left [N] and moved with [X] to [B] in the [I] area. This provoked an application by the applicant and on 16 March 2012 Federal Magistrate Mead ordered that the respondent return the child to [N]. Orders were made that the child live with the parties on a 9/5 arrangement with the respondent having the child for the 9 nights.

The Parties’ Applications

Until the commencement of the hearing the applicant’s position was that she should have the primary residence of [X]. Ultimately however she conceded that the respondent should be her primary carer. The arrangement she seeks is that, on a two week cycle, [X] spend time with her in the first week from after school on Monday until the start of school on Tuesday and from after school on Friday until the commencement of school on the Monday in the following week. In that week she proposes that [X] be with her from after school on Wednesday until the commencement of school on Thursday. This is a 9/5 arrangement. She proposes that school holidays be shared equally. However if the respondent were permitted to relocate she seeks orders giving her 10 days in midyear holidays and four weeks in the Christmas holidays and that weekend time be each third weekend.
The respondent proposes that orders be made that would permit her to relocate to Wollongong. She proposes that in that event [X] should spend time with the applicant each third weekend, for 10 days in each of the midyear holidays and for half of the Christmas holidays. There are a number of other orders sought by each which I will discuss at the end of this judgment.

Discussion

Section 60CA of the Family Law Act requires that in making a decision in this matter I am to treat [X]’s best interests as the paramount consideration. A backdrop to this exercise is found in section 60B of the Act which sets out the objects of the Act insofar as it addresses children’s matters. Of significance is section 60B(1)(a) which recites that one of the objects of the Act is to ensure that the best interests of children are met by their having a meaningful relationship with both their parents to the maximum extent consistent with their best interests.
Section 60CC of the Act sets out a number of matters which I am to consider when assessing what orders would be in [X]’s best interests. I shall discuss each part of this section in turn.
The section divides the considerations into primary considerations and additional considerations. The first of the primary considerations is the benefit to the child of having a meaningful relationship with both her parents. In this case it is the relationship with the applicant that is relevant. I believe it is in [X]’s best interests to have a meaningful relationship with the applicant and I am satisfied that the orders that I have made will permit a meaningful relationship to continue. The orders I have made, which permit the respondent to relocate with the child to Wollongong, will obviously mean that, whilst the relationship may be a meaningful one, it will not be as close as it would be were the parties living in the same area.
The second primary consideration concerns protecting children from violence and neglect. I will refer to issues of violence later in this judgment. I do not believe that [X] is at risk of exposure to violence and will certainly not suffer neglect.
The additional considerations are set out in section 60CC(3) and I shall discuss each paragraph in this sub-section in turn.
Paragraph (a) requires me to consider any views expressed by the child and any factors (such as maturity or level of understanding) that I think relevant to the weight that I should give to any views.
The court has the advantage of a family report prepared by Ms C. When Ms C spoke to [X] she told Ms C that her “mummy” wanted to live in [B] and her “mama” wanted to live in [N]. She said that she wanted to live in both places. In relation to how much time she wanted to spend with each party [X] said that she wanted to see both of her mothers equally.
[X] spoke to Ms C in May 2012 and she was then about five and a half years of age. Whilst I do not ignore what she said I do not place great weight on it.
Paragraph (b) refers to the nature of the relationship of the child with each of the child’s parents and other persons such as grandparents.
I am satisfied both from Ms C’s report and from other evidence that [X] has a close relationship with both her mothers. The respondent has parents who live in the [B] area and the evidence is that [X] has a good relationship with these people.
Paragraph (c) refers to the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
Mr Dickson, who appeared for the applicant, criticised the respondent for lacking this willingness and ability. The main thrust of his submission concerned her moving to [B] without consulting the applicant. I do not condone the move to [B], and I will comment on it later in this judgment, but I am satisfied, after hearing from the respondent and from all the other evidence in the case, that she has a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the applicant.
Paragraph (d) refers to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from his or her parents. This is obviously a significant matter and I will address it later in this judgment.
Paragraph (e) refers to the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
I do not propose to engage in a discussion as to what “substantially” might mean. Suffice it to say that there will be a practical difficulty insofar as [X]’s spending time with the applicant is concerned given that I am permitting the respondent to relocate. I shall discuss this later in this judgment.
Paragraph (f) refers to the capacity of each of the child’s parents and any other persons (including any grandparent) to provide for the needs of the child, including emotional and intellectual needs. I do not criticise either of the parents for lacking this capacity and I see no reason to believe that the respondent’s parents do not also have that capacity.
Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and of any other characteristics of the child that I think relevant. I need not rely on this paragraph.
Paragraph (h) refers to Aboriginal or Torres Strait Islander children and is not relevant.
Paragraph (i) refers to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Mr Dickson, under the rubric of this paragraph, criticised the respondent for moving to [B]. I find those criticisms to be well founded. The respondent did not consult the applicant before the move and, when she settled in [B], simply told the applicant that she was prepared to go to mediation to try to resolve the matter. It was inappropriate for her to move first and offer to mediate later. The move also was in breach of her responsibilities as a joint holder of parental responsibility but I accept that she would not have had in mind the 2008 orders when she took this step.
Paragraph (j) refers to any family violence involving the child or a member of the child’s family. There has been no such violence or at least, no violence of sufficient moment to take this into account. The respondent alleges low level violence at times during the relationship but I need not make a finding on this and do not take it into account.
Paragraph (k) refers to any family violence order that applies to a child or a member of the child’s family that is a final order. There is no such order. The respondent had initiated proceedings in relation to an Apprehended Violence Order and this is awaiting a final hearing. I need not set out the basis of her application. At the hearing I urged the respondent to drop this application. It can serve no purpose other than to put enmity between her and [X]’s other parent. That cannot be in [X]’s best interests. Now that she is able to move to Wollongong the application is even less relevant.
Paragraph (l) requires me to consider 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. I do not think it likely that there will be any further proceedings.
Paragraph (m) requires me to consider any other fact or circumstance I think relevant. Such facts or circumstances will emerge in the balance of this judgment.
Section 60CC(4) requires me to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, her responsibilities as a parent. It sets out a number of matters to be specifically addressed. I have no criticism of either of the parties in this respect.
I now turn to the issue of relocation.
There are a number of cogent reasons why I should refuse to make an order permitting the respondent to relocate to Wollongong. Before dealing with these matters however I will mention one matter which was relied on by Mr Dickson but which to my mind is irrelevant. This was a proposal by the respondent at one stage to relocate, not to the [I] area, but to [T] which is only a short distance from [N]. When the parties were interviewed by Ms C this was the respondent’s proposal. I accept the respondent’s explanation for this which was basically as follows. At the time she put forward this proposal the parties’ legal costs were comparatively modest. She foresaw, correctly, that if the matter were fought out those costs would increase. The result would be that part of [X]’s inheritance would be lost. She said that she was therefore prepared to abandon her proposal to move to the [I] area if all litigation between the parties could be resolved. The property issues could not be resolved. She therefore pursued her application to move to the [I] area.
Mr Dickson criticised her for this and submitted that she should have settled the children’s matters on the basis of the [T] proposal even though property matters would need to be litigated. I disagree. Emphatically. In my view the respondent cannot be criticised, indeed can only be commended, for preparing to put aside her wish to relocate if all litigation and all that goes with it could be avoided. But by the time property issues were settled the bulk of the parties’ legal costs had been incurred and, in my opinion, it was entirely reasonable for the respondent to resile from her offer.
As I have indicated however there are cogent reasons why I should make orders which would preclude a relocation. These are:
a)Perforce it will limit the amount of time [X] spends with the applicant. As I have indicated, I am satisfied that she has a good relationship with the applicant. To date she has spent a good deal of time with her. If the parties were to live in the same area I would not have continued the present 9/5 arrangement and I will explain why presently. But I would have made orders for alternate weekend time and one day a fortnight during the week. Such orders are not practicable with the respondent living in Wollongong.
b)It is not just the limitations on the amount of time that the applicant can spend with the child that is important. The move precludes, or substantially limits, her capacity to be involved in the day to day life of the child. It means that, realistically, she cannot be involved in the child’s schooling. The respondent maintained that even though the child’s school would be in Wollongong the applicant could continue to be significantly involved in the child’s schooling but I do not believe that this is practicable. Also relevant is the limitations that a move would place on the applicant’s capacity to be involved in the child’s sporting and other extra curricular activities.
c)A move would involve the child changing schools. She is happy at the school she attends. It will mean leaving her friends. It will mean a significant change to her life.
The reasons I would not have ordered a 9/5 arrangement concern the relationship between the parties. For such an arrangement to work for the benefit of the child the parties need to be able to communicate and cooperate with each other. I am not satisfied that they are able to do so.
There are however cogent reasons why I should make orders which would permit a relocation. These are:
a)The respondent gave evidence that there would be economic benefits in a move and that she could more conveniently be involved in the business she runs. The respondent runs a [omitted] business called [omitted]. This requires her to travel and sometimes spend time away from her home base overnight. I set out the transcript of the evidence she gave in relation to this:
HIS HONOUR: Can I just interrupt you. I may have missed this in your affidavit. You do certainly refer to it in your affidavit. But why, economically, is a move to Wollongong indicated? Why – what’s the problem with your remaining in [N] so far as your job is concerned?‑‑‑Yes.
You never quite come to grips with this in your affidavit?‑‑‑Your Honour, my – firstly, there’s my business.
Yes, but why – that’s precisely what I’m getting at?‑‑‑Yes.
Why is it going to be more profitable to you to run it from Wollongong than [N]? What’s the problem with [N]?‑‑‑There’s a much larger client base in Wollongong and Sydney for the type of work that I do. There’s also a number of potential employers that I can seek full-time work with if I choose to go down there. That’s a possibility. There isn’t that option in [N]. The other major difference is that I’m closer to an airport, and therefore I
Yes. Well, I thought of that myself. I don’t know that you specifically refer to it. Tell me a bit about air travel. [N] is about midway, if my geography is correct, between [N] ?‑‑‑Yes, [N] is
 between [omitted] and [omitted] ?‑‑‑Yes.
 both of which have airports?‑‑‑To get – [N] is 40 minutes from [omitted] airport.
And how many flights a day are there from that airport?‑‑‑There’s only one flight a day to Sydney in the morning. That requires me to leave [N] at 5.30 in the morning, and I get back at 9 o’clock at night. But we have a saying, which is very true: you risk it with Rex. My experience with the airline Rex is that it’s incredibly unreliable. So last year, when I was doing some travel, I basically gave up on Rex and used to travel to Canberra to fly. So – and that was having an impact. I mean, I have raised the issue of needing to move many times well before the separation because of these issues, and so this is kind of also an issue that I was pursuing irrespective of the separation anyway.
It has been a while since I have done this. I have never specifically driven from Wollongong to Sydney airport. How long does it take?‑‑‑It’s an hour and a quarter, an hour and a half, depending on the traffic. The other – so that’s the main – I have worked – I worked in Wollongong for nine years, so I already have – and the other major colleagues that I work with in – so the leading sort of community engagement – other leading community engagement company is also based in Wollongong, so I have even explored, you know, the thought of – if I get my relocation, exploring more of a collaboration with them as well. But the work opportunities for me in Wollongong and Sydney, I mean, are vast, and also the proximity of travel. So I could potentially go to Brisbane and back for the day or Melbourne and back for the day. The other difference in that respect, your Honour, is previously, before the separation, [X] wasn’t at school, so often [Ms Nash] and [X] or [X] would travel with me or I would take [X] up to my family in [B] for them to care for [X] if [Ms Nash] was unwell. That’s not possible if I’m in [N], and I don’t have that kind of support to rely on in [N]. [X] will only sleep overnight – aside from with [Ms Nash], of course, [X] will only sleep overnight with my family. She’s not comfortable to sleep overnight with anybody else. I do have employment with [P]. I have worked about
Well, that might come to an end?‑‑‑And that might come to an end, and that is very legitimate. My major project work with them is just finishing, and – so my job was to [omitted], and I have done them all. They’re all done. So I’m a very – in a restructure where they have to lose 350 positions, I’m a very obvious target. My substantive position is full-time. I haven’t worked full-time since 2004, so, what, eight years.
With [P], do you need to travel?‑‑‑Yes, my – sorry? Do I need to travel?
Do you need to travel if you keep that job?‑‑‑There was travel. I used to do [omitted]. I stopped that a couple of years before [X] was born because I didn’t want to travel. So there is a requirement for travel, but I don’t do it, which possibly compromises my job a little bit with them as well. But, yes, I can’t – under the current arrangements, I can’t travel with them for either.
Is this the logistical problems of [N] or some other reason?‑‑‑Yes. Well, no, it’s the – and that’s a choice I have made also, to not be involved in [omitted] and that, because you’re away for long periods of time, and with the – you know, the erraticness of the [omitted], the lupus that [Ms Nash] has, sometimes she might be well enough to look after [X] for those extended periods, and sometimes she may not, and we’re in a situation in [N] where the only overnight care options for [X] are with myself or [Ms Nash].
I accept the evidence that the respondent gave in relation to these matters. I accept that it is likely that there would be economic benefits to the respondent (and therefore the child) were she to relocate.
b)If she were to live in the [I] area the respondent would have the benefit of family support. Her parents and her brother and sister-in-law live in [B]. She says she has other extended family in the [I] area. I do not underrate the importance of having family support when one is a single parent.
c)
The respondent has formed a new relationship with a woman

Ms A. When this litigation commenced Ms A was living in Melbourne but she has more recently moved to Sydney. It is obvious that the respondent would be able to spend more time with Ms A if she lived in Wollongong. This is part of the issue of the respondent’s happiness and contentment that I shall deal with presently.

Overreaching all the matters that I have set out above is the impact on the respondent were she required to remain in the [N] area. I infer that were she required to do so she would be very unhappy and resentful. I draw this inference not just on the basis of common sense but on the basis of my impressions of the respondent. Even if the respondent is wrong about the economic benefits that would accrue from a relocation I have no doubt that she believes there would be economic benefits and the denial of those perceived benefits would exacerbate her unhappiness. This will obviously impact on her as a parent. It is inevitable that the child will pick up on these matters.
A relevant matter is freedom of movement. Unless the best interests of a child indicate that freedom of movement should be circumscribed a parent has a right to move on after a separation and to live where he or she wishes. This is not an absolute right however and if the best interests of a child indicate otherwise a parent will not be permitted to exercise this freedom.
On balance I find that [X]’s best interests would be met by my making orders which will permit the respondent to relocate to Wollongong. Even if I am wrong in this I do not accept that her best interests require an order that the respondent live in the [N] area. At best the matter would be evenly balanced in which case I would rely on principles of freedom of movement. However as it turns out I need not do so.
I turn now to the orders that I propose to make.
I propose to make orders that [X] spend time with the applicant on two weekends a term. More frequent travel might result in the child regarding spending time with the applicant as a chore. This was recognised by the applicant who, as I have indicated, sought to have the child each third weekend. Whilst [X] is in primary school I do not regard it as vital that she not miss any days of school. I propose that on one weekend each school term she spend time with the applicant from Friday afternoon through to Monday afternoon. I will have one of these weekends coincide with the Queen’s birthday long weekend and create additional long weekends in the remaining three terms. This will cease when [X] commences secondary school. I believe that, on balance, the benefits of the child spending more time with the applicant over a weekend outweigh the detriments of missing a few days of school. In so far as the Christmas holidays are concerned I adopt the respondent’s position that it should be shared equally. It is, in my opinion, in the child’s best interests to spend a long period with the respondent each year to enable them to go on an extended holiday.
I have made an order in relation to telephone or Skype contact.
There was a dispute as to Mothers Day. The respondent sought that she have the child each Mothers Day. She said that the applicant could nominate a “Mama’s Day’ and that she would facilitate the child being with her on that day. The applicant sought that no order be made in relation to Mothers Day and that it be random as to who the child was with on that day. As I understand it this was in the context of both parties being in the [N] area so I do not hold her to this.
I do not propose to dilate on this unimportant detail. Both parties are the child’s mother. I have made orders that will have the child with each party each alternate Mothers Day.
I have not made orders in relation to the child’s birthday. If the child were attending a government school I would have done so as normally the birthday would be during the school term. But she will be attending a non government school and my experience with such schools is that they usually have a longer Christmas holiday and break up prior to [date omitted]. In such an event each party would be with the child on her birthday one year in two. If I am wrong in my assumption I would make orders basically to the effect that if the applicant is prepared to travel to Wollongong on the child’s birthday she could have the child from the conclusion of school until 6pm. If the birthday was on the last day of term in years when the applicant was to have the child from the following day I would order that her time with the child could, if the applicant travels to Wollongong, commence at 4pm on the last day of term. I will make such orders if requested and if advised of the dates the child’s school will break up in this and future years.
What I am about to say is predicated on the assumption that the school the child is to attend has the same midyear holidays as government schools. If so then a consequence of the orders giving the applicant the first ten days of midyear holidays is that, as I understand it, the child would more often than not be with her over Easter. This year Easter falls outside school holidays and the child would be with the respondent. But in most years it falls on the first or second weekend of the holidays. I will, if requested, make orders which would enable the respondent to vary the date the child’s time with the applicant will commence so as to, as much as possible, cause her on average over time to be with her one Easter in two or as near to that as possible. That is, if Easter falls in the first weekend of the holidays, she may cause the applicant’s time with the child to commence after Easter. If she wishes to pursue this she will need to do the necessary research.
The previous two paragraphs contemplate the parties writing to the court. If they do so directly (that is not via their lawyers) they are advised of the requirement that any letter sent to the court must be copied to the other party.
The applicant sought an order that, in the event that either party was unable to care for the child, the other party be given the first opportunity to care for her.
I do not propose to make such an order. I can foresee difficulties arising in relation to its implementation given the distance between the parties. Also I am clearly of the view that when a child is in the care of one parent it is for that parent to make decisions as to who the child should be cared for if that parent is unable to care for her. In addition, as I will later discuss, I try to avoid making orders of this type.
The respondent sought the following orders:
24. That the parties are to speak respectfully of one another with or in the presence or hearing distance of the child and to encourage and foster her relationship with the other party and remind the child that both parents love and care for her.
25. That the parties, their servants and agents be and are hereby restrained by injunction from abusing, belittling, insulting, rebuking or otherwise denigrating the other party or the other party’s extended family or associates and from discussing these proceedings to, with or in the presence or hearing distance of the child and from permitting any other person to do so.
I pass over technical issues such as the power of the court to bind the parties’ servants (whoever they might be - I have no idea) and agents (ditto) and I do not intend to spend time trying to work out what could be encompassed by the phrase “otherwise denigrating” that would not be covered by the preceding words. I decline to make such an order for other reasons. These types of orders are really nothing more than the court directing a parent to be a good and responsible parent. There are other orders sought by the respondent (and some which were sought by the applicant) that I decline to make. They would involve the court making orders micromanaging how each party cares for the child. An example is an order sought by the respondent that each party provide time for the child to complete her homework. I note that a document submitted by the respondent titled “Minutes of Proposed Orders” had paragraphs 10 to 49 deal with issues other than parental responsibility, who the child should live with and the time and details of the child’s spending time with her. In my view a court should be minimalist in the orders it makes in relation to parents. It is not the task of the court, nor in my opinion is it appropriate, to make orders which, in effect, micromanage how parents bring up their children.* Further it would be demeaning for the parties and demeaning for a court established under Chapter III of the Constitution to exercise the judicial power of the Commonwealth. In my opinion such orders should very rarely, if ever, be made.
* In this respect I note the discussion by the Full Court of the Family Court in RR v VR (2002) FLC 93-099 on the extent to which the court should involve itself in parental decision making. I believe that my approach is consistent with the views of the Full Court.
I acknowledge that orders 14, 15 and 16 to a degree fall into the category of the type of orders I deprecate but at least they are easy to enforce (imagine trying to enforce an order that a party speak respectfully of the other) and, sadly, I have found that such orders are sometimes necessary.
I will comment on one of the orders sought by each party which I have not made. It concerns giving the parties the right to be involved in the child’s schooling. I decline to make such orders for two reasons. First it is unnecessary. In the absence of an order to the contrary each party is entitled to be involved with the child’s school. Secondly I have come across at least one case where a parent told the school that such an order prevented the school from placing restrictions on their attendance at the school.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Brewster FM

Date: 15 January 2013