Orage and Rime

[2007] FamCA 1706

FAMILY COURT OF AUSTRALIA

ORAGE & RIME [2007] FamCA 1706

FAMILY LAW – CHILDREN – Parenting orders – Application re: school – Response seeking change of residence – Final orders – Costs

Family Law Act 1975 (Cth)

FATHER: Mr Orage

MOTHER: Ms Rime

FILE NUMBER: MLC 3845 of 2007

DATE DELIVERED: 13 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 13 December 2007

REPRESENTATION

THE FATHER: In person

COUNSEL FOR THE MOTHER: Ms M.E. Agresta

SOLICITOR FOR THE MOTHER: Michael L. Maplestone

Orders

1. That paragraph (2)(a), (b) and (c) of the orders made in the Federal Magistrates’ Court on 7 March, 2002 be discharged.

2. That the child ... born … March, 1995 live with the father at the following times:

   (a)during school terms, on one weekend in each calendar month from 6:00 pm. Friday until 6:00 pm. Sunday or, in the event Monday is a public holiday, until 6:00 pm. on Monday  PROVIDED THAT  :

   (i)if there is a long weekend in the calendar month, the child shall live with the father on that weekend;  and

   (ii)if there is not a long weekend in the calendar month, the child shall live with the father on the second weekend of the calendar month;

   (b)for one week in each school term holiday period and, in default of agreement, the first week commencing at 6:00 pm. on the last day of the school term and concluding at 6:00 pm. on the seventh day thereafter, and to illustrate the operation of this sub-paragraph, if a school term concludes on a Friday, the child shall live with the father from 6:00 pm. on that Friday until 6:00 pm. on the following Friday;

   (c)from 6:00 pm. on 21 December, 2007 until 6:00 pm. on 23 December, 2007;

   (d)from 12:00 noon on 9 January, 2008 until 12:00 noon on 16 January, 2008;

   (e)for two weeks in the long summer school holiday period, commencing in the 2008/2009 holiday period, at times to be agreed and failing agreement :

   (i)from 6:00 pm. on the last day of the school term until 6:00 pm. on the fourteenth day thereafter in 2009/2010 and each alternate year thereafter;  and

   (ii)from 12:00 noon on 10 January until 12:00 noon on 24 January in 2008/2009 and each alternate year thereafter.

3. That the mother be at liberty to maintain the child’s enrolment at G School to commence at the school in first term 2008 PROVIDED THAT she be responsible for the payment of all fees and costs associated with the child’s attendance at the school and without limiting the generality of this order, costs include uniforms, books and excursions, and as soon as practicable she serve a sealed copy of this order on the principal of G School. 

4. That no later than the end of the first week of the first school term in 2008 the mother authorise the principal of G School to provide to the father, at his request and at his expense (if any), copies of the following documents :

   (a)each school report for the child;

   (b)each school photo order form for the child;  and

   (c)newsletters and other documents routinely provided to parents. 

5. That the father be at liberty to attend G School for events, activities and functions routinely attended by parents.

6. That each of the parties advise the other forthwith of any significant illness or accident experienced by the child when in his or her care, and without limiting the generality of this order, advise the other of any admission to hospital as an in-patient of the child, and authorise each relevant treating medical practitioner or like professional to speak with the other party and discuss the child’s symptoms, treatment and prognosis with him or her. 

7. That the father be at liberty to attend any sporting or extra-curricular activity in which the child is engaged.

8. That the last three lines of paragraph (14) of the orders made herein on 19 May, 2000 (commencing with the words “both parties shall make all practical arrangements . . .”) be discharged.

9. That the father pay towards the mother’s costs of these proceedings the sum of $2,969 and such costs be paid within four months hereof. 

10. That all extant applications be otherwise dismissed.

11. That these proceedings be removed from the List of matters awaiting finalisation.

12. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

13. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

14. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. That the effect of orders made herein on 19 May, 2000, 7 March, 2002 and this day is that the child is to live with the mother at all times other than during those periods in which orders provide he is to live with the father.

IT IS NOTED that publication of this judgment under the pseudonym Orage & Rime is approved pursuant to s 121(9)(g) of the Family Law Act1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3845 of 2007

MR ORAGE  

Father

And

MS RIME  

Mother

REASONS FOR JUDGMENT

1. Before the court are applications concerning the parties’ son, the child, born in March 1995. His parents married in 1991 and separated in January 1997.  They were divorced the following year. 

2. There is a long history of litigation, relating to the child.  The court file commenced in 1997 and it is now very large.  When the child was about five, the father filed an application in which he sought residence.  After numerous interim orders, final parenting orders were made on 19 May 2000. 

3. The orders provided for the child to live primarily with his mother.  He was to live with his father on alternate weekends, and half of school holidays.  A number of other parenting orders were made.  Changeovers were to be at B Community Centre. 

4. The father is a farmer and lives on a farm, about half an hour out of Ballarat.  The marriage between the parties was his second.  He and his first wife have two children, being a daughter, C, now 28 and a son, G, now 30. 

5. After the divorce in 1998 the father married Ms N who had four children from an earlier relationship.  By May 2003, they were separated.  He is again in a relationship;  I gather he does not live with his partner, but spends time with her.  The mother, in her own evidence, spoke of someone else being at the farm with the father on occasions, in the context of the child being more comfortable when that occurred.  That is probably the father’s current partner. 

6. This relationship was adverted to by the father for the first time in final submissions when, out of the blue, he referred to the potential for his current partner to live in a house in the Ballarat area with him and the child during the school term. The father appears for himself and he may not have seen that as an important piece of evidence.  The court would normally hear from an adult who was going to be in the position of a de-facto step-parent to a child, but nothing turns on the omission in this case.

7. The mother is a teacher at a Correction Centre and lives in N in north east Victoria.  She, too, has a child from a previous relationship; W, aged 21.  He completed his secondary schooling in 2004 and is now studying at university.  In October 1998, she married Mr R.  The mother, her husband and the child live in N in north east Victoria.  The child has lived in the N area for 11 years.  As he told Mr L, he was only two when his mother began spending time with Mr R, so that is a long-established relationship.

8. In the course of these proceedings, the father alleged that in 2005 he became aware that his son, G, had been molested by the mother in 1993, when G was 16. G swore an affidavit, which was filed in these proceedings.  In that affidavit, and in the evidence of the husband, one can glean nothing more about the alleged abuse than that it was "sexual in nature, degrading, shocking and totally unexpected".  There is reference to two incidents. 

9. It was made clear to the father that G would have to be available for cross-examination if the father were to rely on his evidence.  The father has given an explanation as to why G could not be here, which is not very helpful.  In the absence of medical evidence, I might accept that a witness was in hospital but there would need to be a lot more evidence before I would be satisfied as to a diagnosis, prognosis or treatment.  In any event, I am not satisfied that any injustice has resulted from the father finding himself in that position.  No adjournment was sought. 

10. The mother relied on her application filed on 5 May 2007, on affidavits filed by her on 5 April 2007 and 20 November 2007, and an affidavit of her husband, Mr R, filed on 13 December 2007.

11. The mother was cross-examined after I excised a paragraph which, in my view, was inadmissible as being opinion.  The father advised he did not seek to cross‑examine Mr R. 

12. The father relied on his form 1A filed 27 April 2007, an affidavit by him filed that day, and another filed on 29 November 2007, and the affidavit of his son, G, to which I have adverted but on which, in the long run, no weight was given.

13. The court also has before it a report of Mr L, a psychologist, dated 24 August 2007.  At the commencement of the trial the father confirmed that he would like to cross-examine Mr L about a number of matters.  Inquiries were made as to Mr L's availability, and the cost of his attendance.  He could have been available but the cost of his attendance was just over $800, a significant sum.  The father did not see that as an expense he was prepared to meet.

14. The father was given an opportunity to express some of his concerns about that report.  Asked about the report, the father referred to bias of an unspecified nature.  He referred to the fact that a number of statements in the report are in quotation marks, presumably to denote a direct quotation, which is not unusual.  The father moved from that observation to a conclusion that Mr. L had been secretly tape recording the meeting; he said he might not have been so candid had he known that to be the case.  That is not a complaint which raises a legitimate concern. 

15. First, many people who do what Mr L does for a living develop the professional skill of remembering words verbatim and are experienced note-takers.  Second, in the context of a reportable meeting with a psychologist designed to provide evidence to assist in determining where a child's best interests lie, does not assist a party’s credit to say he would not have been as candid if he knew that what he said would be recorded and reported.

16. I did give the father an opportunity to specify any particular comments attributed to him by Mr. L which he had not made, or which had been misconstrued.  He did not take up that opportunity.  He simply asserted that he came away, after reading the report, believing that Mr L was biased, lacked insight into him in particular, and lacked credibility.

17. It was put to the father that he told Mr L, as reported, that he knew the child wanted to go to school in north east Victoria and that he wanted the child to know that there were other options, because he had been “fed so much by his mother”, and that he then said words to the effect:

    It may end up that he goes to school in [N], and I'm supportive of his choral stuff . . . but it goes too far . . . the compromise has to be that if he goes to school in [N], he goes to the state school . . . he'll have mates going to [G School], but he'll have mates going to the high school as well.

18. The father conceded that the quoted portion represented his thoughts, albeit not his exact words, but he said he told Mr L that he was making these remarks “on the side”, and “off the record”, and they should never have been included in the report.  Again, that is not an argument that could cut ice in a court which is charged with making the best interests of a child paramount. 

19. For these reasons, I am not satisfied that any injustice is likely to have been caused by Mr L not being available for cross-examination.  I bear in mind the father's evidence of things he said and did not say and his dissatisfaction with the report, which can be weighed in the balance.

20. I have referred to the orders that were made in 2000.  Further orders were made, by consent, in the Federal Magistrates' Court in chambers, on 7 March 2002, which varied the then existing parenting orders.  A number of paragraphs were discharged, including the paragraphs relating to changeover arrangements.  Different arrangements were made for the alternate weekends and holiday time.  Orders provided for changeovers to occur at the McDonald's Family Restaurant …, save on specified occasions, when they were to be at a local Park, in the mother’s residential area. 

21. It is those orders which have governed the child’s living arrangements since that time. 

22. On 17 November 2006, O'Dwyer FM made findings in respect of four contraventions alleged in a contravention application filed by the father.  He found contraventions proven on 15 December 2004, 21 July 2006 and 15 September 2006.  The fourth alleged contravention was dismissed.  The mother was ordered to pay the father's costs, and to undertake a post-separation parenting program.

23. The child is in grade six at N Primary School.  He has lived in that area for 11 years.  He is due to start secondary school next year.  His mother seeks that he attend G School in N, a preference supported by the child, according to her evidence and the evidence of Mr L. Her son, W, attended that school, as will some of the child’s present class mates.  The child is involved in the Choir.  His stepfather is the director of the choir at G School.  It is clear the divide between the Anglicans and Catholics is not as pronounced as it once was. 

24. The evidence suggests the child is a delightful child, which is a credit to both his parents, and his step-father.  He takes music lessons; he plays tennis; he likes being with his father on the farm and doing things with him.  He is an intelligent and mature boy, and is thriving.

25. Although the father saw Mr L's report as biased, it strikes me as a very balanced report.  It is not uncritical of both parties;  it makes reference to difficulties each of them has experienced.  It appears to be a balanced assessment, by an experienced psychologist.

26. Mr L described the father as a direct, frank man, entirely sincere in his assertion of wanting to play a significant role in the child’s life.  He said that he showed some depth of understanding of how the child managed his relationship with his parents.

27. Mr L reported that the father left him with the sense that he was a little over-focused on what he saw, rightly, to some extent, as the mother's unpreparedness to involve him actively in decision-making about their son's future.  The criticism Mr L offered was that in his view this was at the expense of the father being able to respond directly to the child’s hopes and aspirations.

28. Of the mother, Mr L spoke of an affable woman who spoke candidly about her wishes for the child’s future.  He said he had little doubt that her focus was on the child and his best interests, but her focus was also on a belief that she thought his care was something in which she could not genuinely collaborate with the father, whose behaviour remained, in her estimate, eccentric and unpredictable.   

29. When the case commenced, I confirmed the father's proposals with him.  The matters he wanted determined then grew in the course of the hearing,  after I made it clear that if there were other matters, it was best to tell the court about them now, so they could all be determined.

30. When the parties saw Mr L, the dispute related to school but, indirectly, it also related to residence.  The father sought that the child go to school in Ballarat.  If he were to go to school in Ballarat, he would have to live somewhere near Ballarat, as the father did not suggest he board.  Thus a change of residence was foreshadowed in the father's application, but not spelt out.

31. Today the father advised he seeks other variations to the orders.  If he were not successful in the child moving to live with him, and going to school in Ballarat, he would seek to vary the times the child lives with him.  His submission was that it would be much better if there was general flexibility, rather than fixed orders.  He said the current regime is very onerous, having regard to travel.  It is expensive, it is frustrating, it is difficult;  he said it is not conducive to furthering good relationships, and he would like there to be much more flexibility.

32. After some discussion of the disadvantages of open ended orders, and the usefulness of a default structure, the father agreed that it would be consistent with his views for the child to stay in N in Victoria’s north east, and for him to see the child on one weekend a month, for one week in school term holidays and for a couple of weeks in the summer school holiday period. 

33. When the evidence concluded, and I was hearing final submissions, I raised with the father the fact that this year, pursuant to the existing orders, the child would live with him for the whole of the first half of the school holiday period, which commences in about three weeks' time.  His response made clear what he meant by flexibility.

34. He proposed that he have the child from 6:00 pm. on Friday, 21 December to, say, 6:00 pm. on 23 December.  The child would thus spend the weekend before Christmas with his father, and enjoy pre-Christmas activities with the father and members of his family.  He would then return the child to his mother; the child could sing at the cathedral on Christmas Day.  To that point the father, entitled to half the holiday period, would have spent two nights with his son. 

35. The father then sought one week's time with the child in January.  He asked it not be the weekend of 5 and 6 January 2008;  it would be preferable to start a few days later, as he had a commitment on the weekend of 5 and 6 January.

36. I suggested to him the week between 9 and 16 January, which seemed acceptable.  Thus, the child would live with him for one week, and one weekend, instead of half the holiday period. 

37. The father then expressed a desire to change the changeover point to D.  He said that Melbourne traffic is horrendous;  it would be easier for him, and it would be easier for the mother (he asserted).  It is further from N to D than it is from Ballarat to D, but he did not see that as an issue, particularly as the mother does more of the driving now. 

38. The father then raised the potential for the child to use public transport to get to his farm, a proposal that caused me some concern.  The child will get to the point that he can use public transport, but to travel from one home in N in Victoria’s north-east, to another in Ballarat, is not straightforward.  He would have to be driven to N, then travel from N to Melbourne by train.  From Melbourne, he would take a train to Ballarat.  That is a long journey and one which imposes the stress on the child travelling, rather than on the adults.  In the car, he is not alone;  the parent with him can chat with him and enjoy the time. 

39. The father then sought what he called a personal undertaking from the mother to “keep him informed of all school, sport, choir, health, welfare events or occasions involving [the child], so he could attend, participate and respond”.  I had some discussion with the father about this when he was in the witness box and about the usefulness of orders which could make clear his capacity to be involved at the child's school and at other organisations that the child is involved with.  No orders preclude this now.  In due course I will make orders aimed at this aspect. 

1. In terms of day-to-day proposals the proposals, the father made none in his application or affidavit.  It emerged in court today that he proposed that the child attend S School, about 32 or so kilometres from the farm.  The father said the child could use a school bus from the farm, but then raised the potential for him to obtain some rented accommodation in Ballarat, being full-time accommodation which could be used by him and the child, and, it emerged late in his submission, his female partner, during the school week.

2. The father acknowledged that such an arrangement would involve significant expense. According to him, the cost of driving for changeovers is crippling, and running a separate residence would obviously cost more than the petrol for one additional exchange a month.  Nevertheless, he said he could rearrange his finances, or reorganise them, to achieve that goal.

3. The father said the child would spend the balance of time with him at the farm, and would have regular time with his mother and her family in north east Victoria.

4. Such an arrangement would mean, were the child to move to Ballarat, that he would be in a completely new environment during the school week.  He would not live at the farm, where he has spent a lot of time, but in Ballarat, in accommodation as yet unseen.   The father said that he saw it as important that, for the next couple of years, the child live with him; he saw it as important to their relationship. 

5. The father said the arrangement could change after two years. When challenged about that, he said he had not thought it through, but that he did not mean that the change (after two years) would involves the child going back to live with his mother.  He said the change could be a change of school for the child, in the Ballarat area.  I have no idea what he proposed, or why that would be a good idea. 

6. In terms of contact, the father said that the child could have as much time as he needed with his mother.  He volunteered there would need to be a transition period, when the child spent a lot of time with her, and proposed every second weekend.  After it settled down it could equate with the time he proposed he spend with the child if the child were to continue living in N.

LEGAL PRINCIPLES

1. The provisions in the Family Law Act1975 relating to children rest on twin pillars.  The first is the importance to children of having a meaningful relationship with both parents;  the second is the need to protect children from physical and psychological harm.  These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). 

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

PRIMARY CONSIDERATIONS

1. When determining what is in a child’s best interests the primary considerations are :

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   These are consistent with the objects set out in s.60B(1).

2. The father said a number of times that he believes the child has been damaged by the adverse effects of his mother's undermining of their relationship.  He referred to the mother as controlling, and a great actor.  He alleged the child has been harmed by being over-immersed in religion.  On the other hand, he submitted (in the context of the effect on the child were he to make a move from the N area to the Ballarat area) that the child is a resilient child, who is capable and competent and would be able to cope.

3. Mr L spent time with the child, who he described as a friendly and articulate boy.  Mr L concluded his analysis of the child by saying he had the sense of a young lad, confident in his relationship with both his parents and not yet greatly impacted by their dispute about his secondary schooling.  He was aware of the dispute, but had not aligned himself to any great extent.

4. The next part of Mr L's opinion is, in my view, telling.  Mr L reported that he believed that the child had not aligned himself to any great extent one way or the other because he believed both his parents would ultimately attach the most importance to his wishes.  Those who drafted the legislation could not wish for a better result than that a child whose parents have been separated for many years is confident that, in the last resort, they will co-operate and consider his wishes. not their own.

5. I am not satisfied that anything in the evidence supports a finding that the child has been damaged in an emotional or psychological way by his mother’s attitude to his father. 

6. I will deal very briefly with the allegation of sexual abuse.  It was put squarely to the mother and squarely denied, as it has been ever since she learnt of it.  There is no detail.  This Court is not under an obligation to resolve, in a definitive way, a disputed allegation of sexual abuse. It is not a criminal court.  It does not sit to determine, beyond reasonable doubt, whether a criminal offence has been committed.  The High Court has made it clear that disputes between parties in relation to children are not disputes of the usual civil type;  their focus is always the best interests of the children.  Even where an allegation of sexual or physical abuse is made against a parent, a decision about that is subservient and ancillary to the court's determination of where the child’s best interests lie.

7. The test remains, that a court will not order a child to spend time with a parent, or with another person, if that would expose the child to an unacceptable risk of sexual abuse.  Findings about an allegation of this sort cannot be made on the basis of indirect testimony, slight inference or supposition. There must be concrete evidence which renders it more probable than not that the behaviour alleged occurred. 

8. I have regard to the mother’s denial, to the absence of any evidence from the alleged target of the abuse, and to the letter the father annexed to his affidavit, which an objective reader would read as a threat.  In it the father wrote to the mother that if she “chose not to act to settle the matter appropriately by your actions," (the matter allegedly being between her and G, as well as C to some extent), "then the matter is likely to become one involving both the police and the courts."

9. The threat was made was in April 2007.  The alleged offences occurred many years ago.  There is no evidence that any complaint has been made to anyone in authority.  The allegations reek of scuttlebutt and innuendo.  On the evidence I could not find it more probable than not that anything inappropriate occurred and I place no weight on the allegations in these proceedings. 

ADDITIONAL CONSIDERATIONS

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The child made it clear to Mr L that he is keen to go to G School; Mr L described his reasons as complex and relatively mature.  The child said he wanted to go to G School for family and social reasons and to follow academic interests.  They are rational and age-appropriate reasons.

2. The child gave Mr L the sense that he thought both parents would ultimately attach utmost weight to his wishes.  He made it clear that he wants to go to G School.  That is not determinative of the matter;  the child's views are only one factor to be taken into account.  However, as Mr L said in his final recommendations :

   Respect for [the child’s] growing autonomy, which is vital at his stage of development, involves giving major weight to those decisions in coming to a determination.

3. The father is skeptical about the genuine basis of the child’s views.  He views them as the product of the environment in which he lives.  The mother’s husband is a teacher at G School. The father did agree that, a long time ago, he spoke about the child going to his own former school; that is not something he now supports.  He agreed both his other children went to a private school;  he said that was for “family reasons” as he and his father attended it. 

4. The evidence supports a finding that the child supports his mother's preference for his schooling; that he himself would like to attend G School; that he saw his brother as being happy and successful at that school; that some of his friends are going there; and that he is keen to continue his interests, particularly musical and sporting interests, which can be fostered there.

   (b)       The nature of the relationship of the child with:

   (i)       each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child);

5. The evidence supports a finding that the child and W get on very well.  W routinely comes home about once a fortnight and at other times.  W and the father have no contact now save civil exchanges if W is present at changeovers.  W has not been to the father's farm since 1998 and does not have an ongoing relationship with his stepfather. 

6. Whatever W did or did not say, the proof is in the pudding; W and the father have had no dealings for a long time, save those which arise as a result of their respective involvement with the child. Were the child to move to live with his father most of the time, that would clearly impact on the easy and familiar, albeit intermittent, contact he has with W in his mother's home.  That is a matter to be considered. 

7. The child apparently also has some contact with Ms N's other children, who are the father’s step-children.  This occurs in both his homes, which is to the parties' credit.  There was an 18-month hiatus at the father's end when he and his third wife experienced some post-separation difficulties but it appears those difficulties are not now impacting on the child. 

   (c)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

   (f)the capacity of :

   (i)each of the child’s parents;  and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

8. The parties have differed about the practicality of flexible and imprecise arrangements.  There is little capacity to communicate.  The father has been keen to go to mediation; I note the 2000 orders provided that if the parties could not agree, they could attend counselling at this court.  The court no longer has any such confidential counselling capacity, so that aspect of that order cannot be put into effect.

9. In March this year the father wrote to the mother, seeking more mediation. They had counselling in February 2006, through Relationships Australia in Ballarat, in an endeavour to sort out difficulties with the child’s regular attendance.  The mother's evidence was that it was their third attempt at mediation or counselling, and that it was “highjacked” by the father producing five pages of material. 

10. Whatever happened in 2006, the court must be realistic.  Mediation and counselling are useful initiatives, if likely to be productive.  If they are not, they can become another hurdle in the steeplechase and involve more stress on parents and on children.  The court’s role is to make a decision when parties cannot agree.

11. The father’s submission is that arrangements should be fluid; he would like to sort them out with the child and the child’s mother, on an ad hoc basis.  From the mother’s perspective, that is neither wise nor likely to be productive.  First, it does not signal to the child the existence of a structured regime pursuant to which he will see his father and with which he can be encouraged to comply.  Second, the history between the parties supports a finding they cannot communicate well or resolve relatively minor impasses.  For example, I have read the competing accounts about telephone calls between the child and the father.  Very importantly, the child should not be placed in a situation of being responsible for sorting out problems which his parents cannot resolve. 

12. For those reasons I am not at all confident that a flexible arrangement, in which decisions are theoretically left to the child and the father, would be in the child’s best interests. 

13. The father suggested that the mother acted in an arrogant way by enrolling the child at G School, pending this decision.  I do not find that to be the case.  The court often deals with applications of this sort.  If she is successful in her application, the child might have missed out on the place the court determines he should have, because he was not enrolled.  If she is unsuccessful in her application, the child can be unenrolled.  She would no doubt lose an enrolment fee but would have to live with that.

14. I must find that the father's evidence that he did not think it to be appropriate to raise the change of residence or school with the child in any substantial way until the issue was decided by the court to be astonishing.  He seemed to be content for the child to learn – out of the blue, this evening (assuming the father to be successful) that a court had ordered that he move to live in rented accommodation in Ballarat, with his father and his father's partner, either immediately or at the beginning of the school year;  that he would be spending his school life at S School;  that he would live on the farm with his father at weekends;  and that he would not be able to pursue the interests he now has in the N area. 

15. The father gave no impression he had considered the potentially adverse affect on the child, and on his relationship with the child, if that were to occur.   

    (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :

    (i)       either of his or her parents;  or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. This is an important consideration, as foreshadowed in the previous paragraph.  A move to Ballarat would be a very significant change for the child.  He has lived in the N area for 11 years.  His relationship with W would be disrupted.  He would be taken from friends and family in that area.  While children are resilient, and make new friends, the court must be mindful that a move would do more than take the child from the home environment in which he has lived most of his life; it would take him from the community in which he has lived most of his life. 

2. The child has always been in the primary care of his mother.  While he lives at times with both parents, the substantial majority of his time is in his mother's home. The father’s Christmas proposal reinforces this reality, he electing not to spend as much time with the child as he could, pursuant to the existing orders.  His evidence is that he has made that decision with the child’s best interests in mind.  If that is right, it illustrates the child’s connection with his primary home.  If it is a rationalisation, designed to suit the father’s convenience, it illustrates a lack of focus on the child.  The reality is that the child is to spend most of the summer school holidays with his mother and stepfather, when he could spend half of that time with his father. 

3. I take into account the potential impact on the child’s relationship with both parents were he to be moved, arbitrarily in his eyes, to live in Ballarat.  There is force in the argument that it is likely to damage the relationship he now has with his father, rather than strengthen it.  The child has spoken at times about a sense of isolation, and the lack of things to do, at the farm.  That is not surprising in a boy of his age, even if he loves aspects of farm life.

4. The mother said there is much love between the father and his son, and she said it with conviction.  She also said that the relationship is not altogether happy.  It is clear she has found it hard to persuade the child to spend time at the farm, if there are to be no other people there, save the child and the father. 

5. The child is involved in the cathedral choir.  I accept as true the mother's evidence that the child never complains about the services, or the practice.  He is a very capable boy, with a good voice.  It will break soon;  whether he will be a tenor or a bass is not yet known.  He wants to be a tenor;  in the age of Pavarotti, that is probably not surprising.  Whatever his register, he may well be a boy who is able to use the great gift of a good voice, to the benefit of others, as well as himself.

6. The proposed move would also impact on the child’s relationship with his mother.  Her assessment was insightful; she thought he would be angry that she had not been able to defend his choice, and had not been able to intervene to gain the outcome he wants. 

7. It must be said that there is a lack of congruence between the father's rhetoric of potential co-operation, mediation and agreement, and his emphasis on the manifest defects of the child's mother.  He referred to her as controlling, and as a great actor.  In his last submission, there was little respect for her, in either words or tone. 

   (e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

8. The father complains that the travelling is expensive and onerous.  The mother’s evidence is that the child is accustomed to it.  They work out strategies to fill the time and it passes pretty quickly.  I could not find it is the travelling itself which has impacted on the child’s enthusiasm for visiting his father.

   (g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

9. It is convenient to consider here the secular/religious education debate.  I accept the mother's evidence that the first time she heard of the father's alleged resistance to private schooling was when she read it in Mr L's report.  The father’s other children went to a Uniting Church school.  The father is not a man of religious practice.  The mother attends church, with her husband and the child.

10. The father explained that his views about education have changed.  He said he is now a supporter of State education; he thinks it gives access to a wider cross‑section of society and to more resilient children.  He is not alone in that view.  The debate has raged for decades.  The connections and discourse between religions now are illustrated by the fact that the master of music at the Cathedral is also the director of music at a Catholic school.

1. I make it clear it is not a question of the court preferring one religion over another, or preferring a religious education over a secular education.  The court must focus on best interests of the child, in this particular case.  The mother is prepared to be responsible for all costs of his education and by that I take her to mean not only fees but also uniforms and books and excursions and the numerous other expenses parents face. 

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

2. Litigation is stressful to the parties, and to the child.  It is also expensive, consuming funds the mother could otherwise spend on her family.  It is for these reasons I am content to deal with all aspects raised by the parties today. 

   (m)any other fact or circumstances that the court thinks is relevant;

3. The mother's evidence was the father has visited the child’s primary school infrequently.  She is content for him to be fully involved in the child’s schooling and nothing in the existing orders precludes that.  The father has not sought that involvement. 

4. In his final submission, the father said, frankly, that it is unlikely the child will be disadvantaged, whatever school he attends, a concession for which he should be given some credit.  It is not part of his case that the child will suffer an educational disadvantage by going to G School or another school of the wife's preference.  It is simply that he would prefer S School.  It must be said that the court knows nothing of S School.  It does not even know whether the child could be enrolled there next year but I proceed on the basis that he could. 

5. There has been reference to problems that occur if weekends foregone by the father (that is, weekends when the child would live (pursuant to existing orders with his father during school terms, which his father does not take) are added arbitrarily onto school holiday contact periods.  Orders made by me will make it clear that that is not to occur.  The child needs stability and consistency;  this is not an accounting exercise. 

6. The father sought an undertaking from the mother that she will keep him informed of various things and she have the responsibility for passing on information.  I am not satisfied that is either practical or child‑focused.  He has the capacity to ascertain these matters himself.  He can have as much involvement with the child’s school life as he wants.  The father can be involved with the child’s sporting clubs; he can come and listen to the choir.  If he has the good relationship with the child which he asserts, he will hear about the child's day-to-day activities.  It is not the mother’s role to spoon feed him this information. 

7. The father has no firm proposals for housing in the Ballarat area.  Again, I proceed on the basis he would sort something out. 

8. In relation to the father's emphasis on flexibility, it should be said that flexibility is very useful if it has the potential to foster a meaningful relationship between a parent and a child.  It is not useful if it is designed for a parent's convenience, or it is likely to result in less, rather than more, time. 

9. In my judgment, there is force in the mother's submission that a fixed regime will send a signal to the child that he needs to see his father regularly, a goal which she can lead and encourage him towards. 

10. Considering all factors I am not satisfied it would be in the child's interests to move to Ballarat to live with his father, or to move to Ballarat to go to the father’s preferred school.

11. I am satisfied that the mother’s proposals for the child’s education, which are supported by the child, are in his best interests;  she will be at liberty to enrol him in G School provided she pays the expenses to which I have referred.  Orders will provide for the father to obtain copies of school reports and he may attend all activities, events and functions routinely attended by parents.  The mother will be required to serve a copy of that order on the principal.

12. Similarly, orders will provide that the father can attend all sporting, choral and other events in which the child is involved; the father can make inquiries of those who conduct those events.  I appreciate that the mother’s husband is the director of the choir and that may give rise to tension.  But the child is an articulate boy.  His father knows about his choral activities.  I can infer that from the first paragraph of the letter the father sent, in which he referred to the lead up to Easter.

13. I do not propose to change the changeover point to D, as sought by the father.  It has been the McDonald’s Family Restaurant at … for some time.  There will be fewer changeovers in the future, so less impact on those involved in them.  There is no evidence that the child, himself, finds the travelling onerous. 

14. I will order that if the child suffers any significant illness or accident, the parent with whom he is must notify the other parent forthwith and authorise all treating medical practitioners to speak with the other parent. 

15. That order will specifically include hospitalisation.  By that, I mean admitted as an inpatient, not taken to an outpatient facility, which is common, particularly in country areas where there may not be ready access to as many general practitioners as parents would like. 

16. In relation to school holidays, the child will live with the father this year from 6:00 pm. on 21 December to 6:00 pm. on 23 December and from 12:00 noon on 9 January to 12:00 noon on 16 January.  If the parents want to change the noon starting time, they can do so by agreement. 

17. In relation to the other residence orders, and they will remain residence orders, I will discharge the whole of paragraph 2 of the orders of 7 March 2002, which set out the child’s living arrangements with the father.  Instead, orders will provide for time on one weekend a month, from 6:00 pm. Friday to 6:00 pm. Sunday.  That weekend will be a long weekend, if there is such a weekend in the month.  Otherwise, it will be the second weekend in each month. 

18. Orders will provide for the child to spend one week in each of the school term holidays, and two weeks at Christmas, with his father.  I will include default provision, to operate if the parties cannot agree.  I will discharge the paragraph in the order of 19 May, 2000 that requires the parties to attend counselling at this court, as no such counselling is presently available.

19. The parties have not sought any change to the order, made in 2002, which provides that they retain equal responsibility for the long-term welfare and development of the child.  The Family Law Act1975 provides that I must consider whether the presumption of equal-shared parental responsibility applies.  It does.  No-one has asked the court to revisit the wording of the 2002 order and I see no point in doing so.   

20. As the presumption applies, I have considered whether an order should be made for the child to spend equal time with both parents.  In the circumstances of this case, that would not be in his best interests, nor would it be reasonably practicable.  Neither parent has submitted that such an arrangement would be in his best interests.

21. The court then needs to consider whether spending substantial and significant time with both parents is in his interests.  The father has told me what would suit him.  The court should respect his views and place weight on them.  It is not the court’s role to impose orders for him to spend time with his son that he sees as counter-productive, and likely to impact adversely on their relationship.  The orders will provide for additional time, as agreed.  As the child gets older, he will be more involved in making these decisions, with his parents.

22. I make it clear to the father, as he is unrepresented, that if he wishes to appeal against an order made this day, he has a month in which to file an appeal.  All extant applications will be otherwise dismissed and removed from the list of cases.  

23. The mother has made an application for costs.  The general rule in this court and in all courts which exercise jurisdiction under the Family Law Act1975 is that the parties to litigation carries their own costs.  That said, s.117(2) provides that the court has a discretion to make costs orders where it considers it would be proper to do so;  in considering an application, it must take into account the matters set out in s.117(2A) of the Act.

24. One factor is the financial circumstances of the parties.  There is little evidence of that before me.  The mother is a teacher, earning some $56,000 per annum.  The father pays minimal child support.  He is a farmer and no doubt has a small taxable income. 

25. I did raise with the father how he envisaged supporting the child, were he to move to live with him, and how he would acquire a second residence in the Ballarat area.  Nevertheless, I proceed on the basis his financial position is not good. 

26. The court can consider whether a party has been entirely unsuccessful.  The application brought by the mother sought that she be at liberty to enrol the child in a particular school.  That was it.  Nothing else.  No variation of any existing order.  A respondent has the right to make what the father has referred to as a counterclaim.  It is a matter for a respondent to consider.  In this case, he could simply have agreed to the order sought.   

27. The father made a big ambit counterclaim; effectively he said:  “Change residence if we can't agree, and send the child to school with me in Ballarat.”  In those circumstances, it is hardly surprising that the mother chose to be represented by counsel in the trial.  The father has been unsuccessful in respect of the original order sought by the mother and has not succeeded in changing the child’s residence.   

28. I have made a number of variations to the existing orders, all of which minimise rather than maximise the father's time with the child.  These were not variations sought by the child’s mother.  When they were raised by the father, she responded to them, at my request, through her counsel. 

29. The father has said that he did not know a party could have costs ordered against him or her.  However, I note he was represented in proceedings in November 2006 and obtained a costs order against the mother in those proceedings.  Perhaps he thought that to be a power only exercised by the Federal Magistrates' Court.  In any event, ignorance is not a relevant consideration. 

30. From my perspective, and after many years of hearing these cases, the claim made by the mother is relatively modest.  I would not have been surprised to have heard an application that the father pay the whole of her costs of the proceedings.  What she is seeking are the costs of the day; counsel's fees of $2,200 and solicitor's fees, at scale, of $769.60.  Forgetting the 60 cents, that is a total of $2,969.  I am satisfied that those costs should be paid by the father.  I will grant a stay of four months.

I certify that the preceding 113 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

13 December 2007