Oshodi and Booth
[2007] FamCA 575
•8 June 2007
FAMILY COURT OF AUSTRALIA
| OSHODI & BOOTH | [2007] FamCA 575 |
| FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child |
| Family Law Act 1975 (Cth) |
Goode and Goode (2006) FLC 93-286
| APPLICANT: | Mr Oshodi |
| RESPONDENT: | Ms Booth |
| FILE NUMBER: | CAF | 1436 | of | 2001 |
| DATE DELIVERED: | 8 June 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 13 and 30 March 2007 |
REPRESENTATION
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Mr Lardner |
Orders
All previous parenting orders be discharged.
Mr Oshodi, the Father and Ms Booth, the Mother have equal shared parental responsibility for the child M born on … November 1999.
The Mother have responsibility for the day to day care, welfare and development of the child while the child resides with her pursuant to these Orders.
The Father have responsibility for the day to day care, welfare and development of the child while the child resides with him pursuant to these Orders.
The child reside with the Father as follows:
5.1During each school term in each alternate week from 7.00 pm on Friday to 5.00 pm on the following Sunday or 5.00 pm on the following Monday if the Monday is a public holiday in the Australian Capital Territory.
5.2For one half of each school holiday period as agreed between the parents and in default of agreement with the Father for the second half of the school holidays in even numbered years and with the Father for the first half of the school holidays in odd numbered years and in the absence of agreement the school holiday periods shall commence at 9.00 am on the day following the last day of school and shall conclude at 5.00 pm on the day prior to the commencement of school whether or not that day is a public holiday.
5.3.It be noted that the child will spend Christmas Day with the Father in each alternate year and in the absence of agreement it will be in each odd numbered year.
5.4In the event that Father’s Day falls on a weekend when the child is not otherwise residing with the Father pursuant to these Orders then on that weekend from 7.00 pm on Friday to 5.00 pm on the following Sunday or 5.00 pm on the following Monday if the Monday is a public holiday in the Australian Capital Territory.
5.5In the event that the Father’s birthday falls on a weekend which is a weekend when the child is not otherwise residing with the Father pursuant to these Orders then that weekend shall be substituted for the next scheduled weekend.
Subject to Order 5 hereof:
6.1The child shall otherwise reside with the Mother; and
6.2Notwithstanding any other order the child reside with the Mother on the weekend which includes Mother’s Day.
The child have telephone communications with the Father each Thursday between 6.00 pm and 7.00 pm and the Mother shall facilitate such telephone communications.
When the child is in the Father’s care, if the child requests telephone communications with the Mother, such communications shall occur and the Father is to assist the child to make such calls and when the child is in the Mother’s care, if the child requests telephone communications with the Father, such communications shall occur and the Mother is to assist the child to make such calls.
Should the Mother cancel any period of time the child is to reside with the Father, the Mother will provide to the Father a medical certificate and the child will reside the following weekend with the Father in substitution for a weekend period, or following day for a holiday period.
For the purposes of implementation of these Orders the changeovers of the child from the care of the Mother to the care of the Father and from the care of the Father to the care of the Mother shall take place at the McDonalds restaurant located on the Hume Highway at S
For the purposes of Order 10 hereof Mr De Vries or someone authorised by him shall collect the child at the commencement of the period of time the child is to reside with the Father and Mr De Vries or someone authorised by him shall deliver the child to the Mother at the commencement of the period of time the child is to reside with the Mother.
For the purposes of Order 10 hereof if the Mother seeks to have a person other than herself or her parents effect the handover of the child at the commencement of the period of time the child is to reside with each parent then the Mother will ensure that the Father is aware of the identity of the person who will be responsible for the handover not less than 48 hours prior to the hand-over.
Neither party will at any time permit the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle in which the child is not restrained in a way appropriate for his age and weight and in accordance with any laws or regulations prevailing in the State or Territory concerned.
Each of the Father and Mother shall:
14.1Inform the other as soon as possible of any serious illness or injury suffered by the child while in their respective care.
14.2Inform the other as soon as possible of any medical treatment being administered to the child or any specialist appointments which the child is to attend.
14.3Provide all authorities and directions necessary for all health professionals consulted by the child to provide to each of the Father and Mother all information and material held in relation to the child.
14.4Provide all authorities and directions necessary for all schools attended by the child to provide to each of the Father and Mother all information and material held in relation to the child.
14.5Inform the other and keep the other informed as to their current residential address and contact telephone number.
Neither parent shall say anything to or in the presence of the child or allow any other person to say anything to or in the presence of the child which is in any way derogatory of the other parent or the other parent’s partner or in relation to proceedings between the parents concerning the child.
Each parent be at liberty to attend any schooling, sporting or religious activity in which the child is involved or participating in and to which parents are also able to attend or participate.
The parents are restrained, without the consent of the other first hand and obtained in writing, to obtain any passport for the child, whether it be a Nigerian passport or an Australian passport.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child, M (male) born on … November 1999, on the airport watch list, also known as the PACE alert system, at all international points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the airport watch list pending further order of the Court.
Each party their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the watch list until the court orders its removal.
The Father will not approach within one kilometre of the Mother’s residential address or place of employment or the Mother’s parent’s residential address or place/s of employment.
The Mother will not approach within one kilometre of the Father’s residential address or place of employment.
In the event either party’s current mobile phone number ceases to be their phone number they will within forty eight hours inform the other party in writing of their new mobile number of if they are not obtaining a new mobile number an alternative telephone number.
The parents will not contact each other via telephone other than if there is an emergency.
Other than in respect of school holiday periods each parent will give to the other not less than 48 hours notice of his or her inability to spend any particular period of time with the child unless his or her inability is created by an emergency in which case he or she will advise the other as soon as practicable.
In the event the child will not be residing predominantly at the residential address of the Father for each period the child resides with the Father then the Father shall inform the Mother in writing of the address at which the child will be residing.
In the event the child will not be residing predominantly at the residential address of the Mother for each period the child resides with the Mother then the Mother shall inform the Father in writing of the address at which the child will be residing.
The Mother shall request that any school attended by the child forward to the Father any school newsletter or school report ordinarily provided to the parents of children enrolled at such school.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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 Fact Sheet attached hereto and these particulars are included in these Orders.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CAF 1436 of 2001
| Mr Oshodi |
Applicant
And
| Ms Booth |
Respondent
REASONS FOR JUDGMENT
Introduction
Before me for hearing are applications for final parenting orders. For reasons which will become apparent, with the consent of all parties I heard two sets of proceedings at the same time. The issues in both cases involve the amount of time the fathers will spend with their child.
On 6 November 2006 an application for final orders was filed on behalf of Ms Booth, the Mother. In the application the Mother sought that parenting orders made on 23 January 2005 be discharged. The Mother sought that the child M reside with her and that she have sole responsibility for the long term care, welfare and development of the child. The Mother sought that the child spend “significant time” with Mr Oshodi, the Father, to include the first half of each short school holiday period and during the December/January school holidays from 26 December of each year until 9 January of each year. The Mother did not propose that the child spend any time with the Father during the school term. She sought other orders which I need not repeat in these reasons.
On 30 November 2006 a response was filed on behalf of the Father. He sought that the child spend time with him during each school term being each alternate weekend from 6.30 pm on Friday to 5.30 pm on the following Sunday and for one half of each school holiday period. He sought other orders which I need not repeat in these reasons.
On 30 March 2007 I received a minute of orders and the Mother now seeks the following:
1. That Orders 1 to 20 inclusive made in this Court at Canberra on 23rd January 2005 be discharged.
2. The child, [M] born […] November 1999 ("the child") live with the applicant mother and that she have sole responsibility for the child's long term care and day to day care, welfare and development.
3. The child spend significant time with the respondent father such time to include the following:
(a)Subject to the next Order, the first half of each short school holiday period from 11.00 am on the day immediately following the cessation of the school term until 11.00 a.m. on the following Saturday;
(b)In the event that the [mother’s birthday] falls within the first week of the September/October school holidays, then and only then shall time commence at 11.00 a.m. on the Saturday most approximate to half the school holiday period until 11.00 a.m. on the following Saturday;
(c)For each December/January school holiday period commencing in December 2007 and yearly thereafter, from 2.00 p.m. on 26th of December until 2.00 p.m. on 9th January
(d)Telephone calls, initiated by the father, each Wednesday between 6.30 p.m. and 7.00 p.m
4. At all times the father shall be on leave during periods of time spent with the child, shall be substantially available personally to supervise the child during such periods and shall not leave the child with other persons other than in an emergency situation. Further, the father will provide, if requested, evidence from his employer that the father was on leave during the period of time spent together.
5. Subject to Order 13 the changeover for contact will occur at the commencement of such time at Centrecare [C] Contact Service at [C] and conclude at the Children's Change-Over and Contact Centre at [R][ in the Australian Capital Territory ([R]).
6. If either party seeks to have another person to effect the handover, then he will:
(a)to the extent necessary comply with the change-over centres' requirements as to the registration of such persons but that in addition such person or persons shall be well known to the child;
(b)that the person at the time of transporting the child be appropriately licensed to transport the child
7. Neither party will allow the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle that fails to provide restraints for the child that are appropriate for his age and weight; nor to be in a vehicle in which any person is smoking.
8. Neither party will allow any person to smoke in the presence of the child whilst in their control but in particular in the residence where the child is then residing
9. The parties shall keep each other informed of their current mobile phone number and should such phone number be changed, then to provide that changed number within 48 hours of that said change.
10. The parties will not and will not allow third parties to physically and/or verbally abuse the child or to use abusive language in the presence of the child or to denegrate [sic] the other party or the other party's family in the presence or hearing of the child
11. Subject to these Orders, the parties will not unnecessarily contact each other via telephone except to have contact with the child or to confirm contact times or any emergency of and concerning the child
12. For the school holiday period commencing the 22nd December 2006, the child shall spend time with the father from 2.00 p.m. on Tuesday 26th December 2006 concluding at 2.00 p.m. on Sunday 7th January 2007; and from 2.00 p.m. on Saturday 20th January 2007 until 2.00 p.m. on 27th January 2007.
13. For the purpose of the time spent by the child with the father as referred to in the previous Order, change over shall occur at the commencement of each period at [R] and conclude at [C]. In the event that for the change over on 26th December 2006 [R] is closed, then the mother shall organise for the engagement of a private handover person whose identity and the place of hand over in Canberra shall be advised to the father as soon as possible after the mother being informed that [R] will not be open on that day
14. Each party shall keep the other informed of their usual residential address and should either party change their residential address, then that person shall advise the other party of that change within seven days of such change. Notice shall be provided by SMS. In the event that for periods of contact the child is not to be ordinarily residing at the father's residence, then the father shall inform the mother by SMS of the address at which the child shall be at that time ordinarily residing.
15. The mother shall at all time ensure that the father is informed of the school that the child is then attending and the father shall be at liberty to register his name with the school for the purpose of obtaining all literature published by the school including the child's school reports.
16. If either party obtains any medical treatment for [M], involving attendance upon a medical practitioner then he or she shall will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
17. Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care
18. The father will not approach within 1 kilometre of the mother’s address.
19. The mother will not approach within 1 kilometre of the father’s address.
20. The father shall not arrange or permit the child to have a haircut.
21. The parties shall be restrained, without the consent of the other first had and obtained in writing, to obtain any passport for the child, whether it be a Nigerian or an Australian passport.
22.(a) Each of the parties is hereby restrained from removing, or causing or allowing any other person to remove the child [M] born on […] November, 1999 from the Commonwealth of Australia;
(b)I direct that the name of [M] born on […] November 1999 be placed on the PASS list in relation to ports in Australia.
23. That all times the mother be permitted to register the child whether at schools or other places where registration is necessary as [M] where the name [the mother’s surname] is to be used as the surname with the name [M Booth Oshodi]
24. That the hearing of these proceedings be consolidated with the proceedings between the mother hearing and [Mr De Vries] which proceedings concern the child [L] born the […] December 2002.
25. Should the mother cancel any time period, the mother will provide to the father a medical certificate and time will occur on the following day for holiday time.
26. When the child is spending time with the father during school holiday periods, then the mother shall ring, and the father shall facilitate a telephone call to the child between the hours of 6.30 p.m. and 7.00 p.m. each Wednesday.
27. Such further Order or Orders as the Court thinks appropriate.
I assume the dates in paragraph 12 are wrong and should be 2007 and 2008. I found some of the orders confusing and difficult to understand.
The Father opposes the orders sought by the Mother and continues to seek that he spend time with the child each alternate weekend during the school term. The Father proposes that for the purpose of changeover for the child between the care of the Mother and the care of the Father it occur at the McDonalds restaurant in S in the southern highlands of New South Wales.
The other proceedings are between the Mother and Mr De Vries. In the Booth and De Vries proceedings referred to in Order 24 of the minute of orders sought by the Mother she seeks the following:
1. That Orders made in the Federal Magistrates Court at Canberra on 11th February 2005 be discharged.
2. The child, [L] born […] December 2002 ("the child") live with the applicant mother and that she have sole responsibility for the child's long term care and day to day care, welfare and development.
3. The child spend significant time with the respondent father such time to include the following:
(a)Subject to the next Order, the first half of each short school holiday period from 11.15 am on the day immediately following the cessation of the school term until 11.15 a.m. on the following Saturday;
(b)In the event that the [the mother’s birthday] falls within the first week of the September/October school holidays, then and only then shall time commence at 11.15 a.m. on the Saturday most approximate to half the school holiday period until 11.15 a.m. on the following Saturday;
(c)For each December/January school holiday period commencing in December 2007 and yearly thereafter, from 2.15 p.m. on 26th of December until 2.15 p.m. on 16th January
(d)Telephone calls, initiated by the father, each Wednesday between 6.00 p.m. and 6.300 p.m
(e)The first weekend of each calendar month during each ACT school term commencing at 5.00 p.m. on the Friday and concluding at 5.00 p.m. on the following Monday or Tuesday should the Monday be a public holiday. For the purposes of changeover in respect of this Order, changeover shall occur at the McDonalds carpark [S];
(f)In the event that the father's birthday falls on a weekend which is a weekend when the father shall not spend time with the child then that weekend shall be substituted for the next scheduled weekend.
(g)In the event that the child's brother, [M’s], birthday falls on a weekend when the child shall be spending time with the father then that weekend shall be postponed until the next weekend;
(h)In the event that Mother's Day falls on a weekend when the child shall be spending time with the father, then that time with the father shall be postponed until the next weekend;
(i)In the event that Father's Day falls on a weekend when the child is not spending time with the father, then that weekend will be substituted for the next scheduled weekend;
(j)In respect of implementation of the four previous paragraphs, the mother shall be responsible for conveying to the father by 31st January in each year a schedule as to the manner in which all or any of the matters referred to in the previous four paragraphs impact upon the father's weekends. Further the mother, at the same time as advising the father shall inform him as to which week of the school holidays he shall enjoy time with the child for the September/October school holiday period.
4. At all times the father shall be on leave during periods of time spent with the child, shall be substantially available personally to supervise the child during such periods and shall not leave the child with other persons other than in an emergency situation. Further, the father will provide, if requested, evidence from his employer that the father was on leave during the period of time spent together.
5. Subject to Order the changeover for contact will occur at the commencement of such time at Centrecare [C] Contact Service at [C] and conclude at the Children's Change-Over and Contact Centre at [R] in the Australian Capital Territory ([R]).
6. If either party seeks to have another person to effect the handover, then he will:
(a)to the extent necessary comply with the change-over centres' requirements as to the registration of such persons but that in addition such person or persons shall be well known to the child;
(b)that the person at the time of transporting the child be appropriately licensed to transport the child.
7. Neither party will allow the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle that fails to provide restraints for the child that are appropriate for his age and weight; nor to be in a vehicle in which any person is smoking.
8. Neither party will allow any person to smoke in the presence of the child whilst in their control but in particular in the residence where the child is then residing.
9. The parties shall keep each other informed of their current mobile phone number and should such phone number be changed, then to provide that changed number within 48 hours of that said change.
10. The parties will not and will not allow third parties to physically and/or verbally abuse the child or to use abusive language in the presence of the child or to denegrate the other party or the other parity’s family in the presence or hearing of the child.
11. Subject to these Orders, the parties will not unnecessarily contact each other via telephone except to have contact with the child or to confirm contact times or any emergency of and concerning the child.
12. For the school holiday period commencing the 22nd December 2006, the child shall spend time with the father from 2.15 p.m. on Tuesday 26th December 2006 concluding at 2.15 p.m. on Monday 1st January 2007 ; and from 2.15 p.m. on Saturday 20th January 2007 until 2.15 p.m. on 27th January 2007. For the purpose of change over on Sunday 1st January 2007, this change over shall occur at the McDonald's carpark, [S]
13. For the purpose of the time spent by the child with the father as referred to in the previous Order, change over shall occur at the commencement of each period at [R] and conclude at [C]. In the event that for the change over on 26th December 2006 [R] is closed, then the mother shall organise for the engagement of a private handover person whose identity and the place of hand over in Canberra shall be advised to the father as soon as possible after the mother being informed that [R] will not be open on that day.
14. Each party shall keep the other informed of their usual residential address and should either party change their residential address, then that person shall advise the other party of that change within seven days of such change. Notice shall be provided by SMS. In the event that for periods of contact the child is not to be ordinarily residing at the father's residence, then the father shall inform the mother by SMS of the address at which the child shall be at that time ordinarily residing.
15. The mother shall at time ensure that the father is informed of the school that the child is then attending and the father shall be at liberty to register his name with the school for the purpose of obtaining all literature published by the school including the child's school reports.
16. If either party obtains any medical treatment for [L], involving attendance upon a medical practitioner then he or she shall will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
17. Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care.
18. The father will not approach within 1 kilometre of the mother’s address.
19. The mother will not approach within 1 kilometre of the father’s address.
20. The father shall not arrange or permit the child to have his hair trimmed or cut in any way.
21. The parties shall be restrained, without the consent of the other first had and obtained in writing, to obtain any passport for the child, whether it be a European, Dutch, [Pacific Island] or an Australian passport.
22.(a) Each of the parties is hereby restrained from removing, or causing or allowing any other person to remove the child [L] born on […] December, 2002 from the Commonwealth of Australia;
(b)That the name of [L] born on […] December 2002 be placed on the PASS list in relation to ports in Australia.
23. That all times the mother be permitted to register the child whether at schools or other places where registration is necessary as “[…]” where the name [Booth] is to be used as the surname with the name [De Vries]
24. That the hearing of these proceedings be consolidated with the proceedings between the mother and [Mr Oshodi] which proceedings concern the child [M] born the […] November 1999 and bearing proceedings number (P)CAF1436 of 2001.
25. Should the mother cancel any time period, the mother will provide to the father a medical certificate and time will occur the following weekend in substitution for weekend time or following day for holiday time.
26. When the child is spending time with the father during school holiday periods, then the mother shall ring, and the father shall facilitate a telephone call to, the child between the hours of 6.00 p.m. and 6.30 p.m. each Wednesday. In the event that the mother is unable to get through to speak to the child then she is at liberty to continue to ring until such time as she is able to speak to the child.
27. Such further Order or Orders as the Court thinks appropriate Orders.
Again, I assume the dates in paragraph 12 are wrong and should be 2007 and 2008. Again, I also found some of the orders confusing and difficult to understand.
The Father appeared before me without legal representation and the Mother was legally represented. In the [Booth] and [De Vries] proceedings, [Mr De Vries] appeared without legal representation.
I had the benefit of an answer to questionnaire (Exhibit A) from the Mother and an answer to questionnaire (Exhibit B) from the Father. In addition to the answer to questionnaire and oral evidence, the Mother swore an affidavit on 3 November 2006 and I allowed this to be read in the proceedings. It was filed in support of an application in a case. The Father also swore an affidavit on 30 November 2006 and I allowed this material to be placed before me. The Father swore a further affidavit on 5 March 2007.
The Father was born in Nigeria on … September 1973. The Mother was born in Australia on … October 1975. The Father emigrated to Australia in 1989.
The parties commenced to live together in July 1999 and separated in May 2000. They resumed cohabitation in January 2001 and separated in March 2001. They resumed cohabitation in April 2001 and finally separated in July 2001. The parties lived in Sydney. In July 2001 the Mother moved to Canberra to live with her parents.
There is one child of the relationship, M born on … November 1999. The child ordinarily lives with the Mother. The parties separated when the child was very young.
Mr De Vries was born on 27 October 1975 in a Pacific Island country. The Mother and Mr De Vries first met in October 2001 and commenced to live together in December 2001. They were married on 15 March 2002 and lived in Canberra. The Mother and Mr De Vries separated in April 2003 and were divorced in November 2004. The Mother and Mr De Vries have a child, L who was born on … December 2002. The Mother and Mr De Vries also separated when the child L was very young. Mr De Vries commenced to live in Sydney in May 2003.
On the second day of the hearing I received a summary document from counsel for the Mother in which the following was stated:
1. That [L] born […] December 2003 (“[L]”) live with the mother.
2. That [M] born […] November 1999 (“[M]”) live with the mother.
3. That [L] spend time with his father as follows:
(a)In the mid year school holidays, subject to order 3(b) from 11:15 am the day after school concludes to 11:15 am on the middle Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(b)In the Sept/Oct school holidays if [the mother’s birthday] falls in the first week then from 11:15am on the middle Saturday to 11:15 am the following Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(c)In the Dec/Jan school holidays from 2:15 pm on 26 December to 2:15 pm on 16 January each year, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(d)During term time on the first weekend of each calendar month from 5pm Friday to 5pm Sunday or Monday (if a public holiday) with changeover at McDonalds [S]
4. That [L] communicate with his father by telephone calls initiated by the father between 6pm and 6:30 pm each Wednesday.
5. The father shall see [L] on the weekend of the father’s birthday or father’s day in lieu of his next time under order 3(d).
6. The father’s time with [L] is suspended should it fall on a weekend containing [M’s] birthday or the Mother’s Birthday but shall occur on the following weekend.
7. [L’s] father shall be personally available to spend time with him during those periods set out in order 3 and 5.
8. That [M] spend time with his father as follows:
(a)In the mid year school holidays, subject to order 3(b) from 11:00 am the day after school concludes to 11:00 am on the middle Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(b)In the Sept/Oct school holidays if [the mother’s birthday] falls in the first week than from 11:00am on the middle Saturday to 11:00 am the following Saturday, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
(c)In the Dec/Jan school holidays from 2.00 pm on 26 December to 2:00 pm on 9 January each year, with changeover at the commencement at Centrecare, [C] and the conclusion at [R], ACT;
9. That [M] communicate with his father by telephone calls initiated by his father each Wednesday between 6:30 pm and 7pm.
10. [M’s] father shall be personally available to spend time with him during those periods set out in order 8.
The Mother said that she is seeking to “marry up” the orders as much as possible for the boys to spend as much time together as possible and to alleviate transportation difficulties.
Parenting - relevant principles
General
For a discussion of the relevant provisions of Pt VII of the Family Law Act1975 (Cth) see Goode and Goode (2006) FLC 93-286.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Family Law Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Goode and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Family Law Act. There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met and they are: first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) which underlie the objects. They are, except when it is or would be contrary to the best interests of a child: first, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Family Law Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Family Law Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60B and s 60CC.
If I am satisfied that the presumption of equal shared parental responsibility does apply then, by virtue of s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether this is reasonably practicable. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether this is reasonably practicable. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60CC and s 60B.
Background
The Mother contended, and I accept, that there have been numerous proceedings between the parents in relation to the parenting of the child. The proceedings have been initiated by both the Father and the Mother. The Mother said, and I accept, that in both cases there have been numerous difficulties involving time spent by the boys with their fathers.
I have looked at the court files for the purpose of ascertaining the history of the litigation and I have no doubt that it has been very extensive both in the proceedings between the parties and in the proceedings between the Mother and Mr De Vries. I will identify some of the history although I accept that what I say may not be exhaustive of what has transpired. There have been proceedings in the Local Court of New South Wales, the Federal Magistrates Court, the Family Court and the Full Court of the Family Court. There have also been child support proceedings. From time to time there has probably been what I describe as a correspondence war between the parties and their lawyers given the amount of correspondence that I read. It may appear that the issues I have to decide fall within a narrow compass however, what I am concerned about is that the current proceedings are just another episode in a long and protracted history of parental conflict.
The Mother resides in Canberra and is employed by the Australian Public Service. She contended that she works between 9.00 am and 5.00 pm on Monday to Friday.
The Father resides in Sydney and is employed as a health worker at a Sydney Hospital. He works eight hours a day on what he called a seven day rotating roster. There were difficulties in obtaining evidence about the Father’s hours of work. The Father resides in rented accommodation and has re-partnered. The Father pays child support and has done so for some time. According to his evidence he pays $590 per calendar month.
The Father was born in September 1973. The Mother was born in October 1975. Mr De Vries was born in October 1975.
The parties commenced to live together in July 1999.
The child M was born in November 1999.
The parties separated in May 2000. They resumed cohabitation in January 2001 and separated in March 2001. They resumed cohabitation in April 2001 and finally separated in July 2001. The parties lived in Sydney.
In July 2001 the Mother moved to Canberra to live with her parents. The child ordinarily lives with the Mother. The parties separated when the child was very young.
Proceedings were commenced in October 2001 when an application was filed by the Father in the Local Court at … in Sydney. On 26 October 2001 an order was made that the proceedings be transferred to the Family Court, Canberra Registry. An order was also made that the Father have contact with the child from 9.00 am to 12 noon on Saturday 3 November 2001 and each alternate Saturday thereafter and that the Father collect the child from the Mother at the car park of McDonalds restaurant in D at the commencement of contact and return the child to the Mother at that restaurant at the conclusion of contact.
The Mother and Mr De Vries first met in October 2001 and commenced to live together in December 2001.
On 16 January 2002 Faulks J made orders in accordance with a minute of orders which provided as follows:
1. That the child [M] (born 5 November 1999) live with the mother.
2. That [M] have contact with the father as follows:
2.1Each alternate Saturday from 10.00 am to 5.00 pm, the first such contact period being on the 26th January 2002.
2.2From 6 April each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday.
2.3On Fathers’ Day from 10.00 am to 5.00 pm.
3. That the father exercise contact in accordance with order 2.1 in Canberra and Sydney on each alternate contact period with the first contact period being 26th January 2002, being in Canberra.
4. That to facilitate contact in order 2.1 if the father is exercising contact in Canberra contact changeover to be at [D] McDonalds Restaurant.
5. That to facilitate contact in Sydney order 2.1, 2.2 and orders 2.3 contact changeover be at [U].
6. That notwithstanding any other orders [M] live with his mother on Mothers’ Day.
7. That either party can at any time request an appointment with a counsellor of the Family Court in Canberra regarding [M] and the other party agrees to attend at a time convenient for both parties.
8. That when exercising contact with [M] in accordance with order 2 the father not remove [M] from the Australian Capital Territory or New South Wales.
9. That each parent advise the other of any change of telephone number at least 48 hours prior to the change taking place.
10. That each parent advise the other of any medical or other emergency concerning [M] and details of any hospital, medical practitioner or specialist who treats [M] whilst [M] is in that party’s care.
11. That the father or any other person acting on his behalf, be restrained from taking [M] within a 1 km radius of any international airport and/or seaport and/or any other place from which aircrafts or ships depart to international destinations.
12. That both parties not contact the other except in relation to matters concerning [M].
13. That both parties not discuss any aspect of these proceedings, or the level of the father’s contact with [M] or cause any other person to do so, in front of [M].
14. That neither parent say unkind or uncomplimentary things about the other to or in [M’s] presence, nor cause or allow anybody else to do so.
In addition to the orders set out in the minute Faulks J made the following orders:
2. From the 3rd May 2002 contact on alternate weekends will commence at 4.00 pm on Friday and end at 4.00 pm on Sunday with the handover being in each case Hungry Jacks at [U] unless the parties otherwise agree.
3. [M] will spend Christmas Day 2002 with his mother but will spend New Year’s Day 2003 with his father and those arrangements will be alternated from year to year unless the parties otherwise agree.
4. [M] will spend from 10.00 am until 4.00 pm on Easter Sunday 2002 with his father in Sydney.
5. [M’s] father may have contact with him in Canberra on [M’s] birthday between the hours of 9.00 am and 2.00 pm.
6. If either party obtains any medical treatment for [M], involving attendance upon a medical practitioner than (sic) he or she will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
7. Each of the parties be and is hereby restrained from applying for any passport for [M] either an Australian passport or a Nigerian or for that matter any other nationality until further order.
8. [The father] will give not less than 24 hours notice of his inability to exercise any particular period of contact unless his inability is created by an emergency in which case he will advise [Ms Booth] as soon as practicable.
9. The matter is otherwise remitted to the Pre Hearing Conference list for the allocation of a hearing date in due course.
As seen, the Mother and Mr De Vries were married in March 2002. They lived in Canberra. Mr De Vries’ father is employed with an overseas Commission.
On 4 June 2002 Judicial Registrar Loughnan made an order that Mr De Vries who was then married to the Mother, deliver the child to the Father at Hungry Jacks restaurant on the Hume Highway at U in southern New South Wales. My understanding is that U is approximately 179 kilometres from E in Sydney and approximately 137 kilometres from N in the Australian Capital Territory. The McDonalds restaurant at S is also located on the Hume Highway in southern New South Wales and is approximately 147 kilometres from E and approximately 155 kilometres from N. I note that W is approximately 139 kilometres from U and approximately 107 kilometres from S.
In October 2002 there were contravention proceedings between the parties in the Local Court at B.
On 29 November 2002 Faulks J made an order that orders made on 16 January 2002 continue until further order however, commencing with the contact period scheduled to commence on 29 November 2002 the Father collect the child from Canberra at the commencement of each period of contact and return the child to Canberra at the conclusion of each period of contact until the first period of contact in February 2003. He also made an order that each party be restrained from removing or causing or allowing any other person to remove the child from the Commonwealth of Australia and directed that the child’s name be placed on the PASS Alert List. He made other orders which I will not repeat in these reasons.
On 18 December 2002 Coleman J made an order that the Father’s contact provided by Order 3 of the orders of 16 January 2002 commence at 10.00 am on 1 January 2003 and conclude at 4.00 pm on 1 January 2003. Further, he made an order that collection and delivery occur at the McDonalds restaurant at D.
The child L was born in December 2002.
In February 2003 there were further contravention proceedings between the parties in the Local Court at B. The proceedings were resolved by the parties giving mutual undertakings.
The Mother and Mr De Vries separated in April 2003. At this time the child L was very young.
During 2003 there were various procedural orders made in relation to the pending proceedings between the Mother and the Father.
Mr De Vries commenced to live in Sydney in May 2003.
Litigation about parenting issues then commenced between the Mother and Mr De Vries. On 10 November 2003 in the Federal Magistrates Court at Canberra an order was made that until further order Mr De Vries have contact with the child L from 9.00 am until 12.30 pm each Saturday and for the purpose of collection and delivery the changeover occur at a McDonalds restaurant at D. An order was also made that neither party remove or attempt to remove the child from the Commonwealth of Australia and for the purposes of this the child be placed on the PASS Alert List by the Australian Federal Police.
On 1 December 2003 an order was made in the Federal Magistrates Court that Mr De Vries have contact with the child L from 9.30 am until 1.30 pm on Christmas Day and thereafter each Saturday for certain specified hours over a period of seven weekends and then from 10.00 am until 5.00 pm.
On 22 December 2003 Faulks J made an order that the Father have contact with the child from 8.00 pm “Christmas Night until the completion of weekend contact on Sunday” and that the Father be responsible for the collection of the child from the McDonalds restaurant at D.
In a judgment of the Full Court delivered on 27 July 2006 reference was made to a Family Report dated 31 March 2004 prepared by Ms W, who said: “The parents have a hostile relationship and do not communicate with each other. Both complain that the changeover of [M] is an upsetting ordeal for everyone concerned. They both accuse the other parent of acting inappropriately and provocatively.” The Full Court said that Ms W set out the allegations made by each parent against the other and that the only common ground was that changeover “rarely occurs without an unpleasant incident of various magnitudes and the child being distressed”. The Full Court said that despite the allegations made by the Mother about the child’s relationship with the Father when observed with him the report writer said, “He was smiling and relaxed throughout the time”. The Full Court remarked that the child’s behaviour while with the Father was in marked contrast to what was observed when with the Mother. The child’s behaviour was more relaxed however when observed with his Mother in her own home. The Full Court said that in relation to the question of the changeover for contact the counsellor said: “For [M] the transition from his mother’s care to his father’s company was observed to be very difficult. He shows a high level of insecurity at leaving and returning to his mother’s care.” Further, that under the heading “Recommendations” it was said “That changeovers occur at a professional contact centre with a third person facilitating the changeover. [R] in Canberra or the contact centre in [C], Sydney would be two options.” The Full Court said that in her oral evidence Ms W confirmed her opinion in relation the changeover arrangements.
In the Booth and De Vries proceedings, on 16 August 2004 in the Federal Magistrates Court an order was made that until further order Mr De Vries have contact with the child L from 10.00 am Saturday until 4.00 pm Sunday each alternate weekend commencing on 21 August 2004 and that the changeover occur at McDonalds restaurant at D at the commencement of contact and at U at the conclusion of contact. On 16 August 2004 an order was also made that Mr De Vries have contact with the child in Canberra on Christmas Day from 9.00 am until 1.00 pm. Other orders were made which I need not repeat in these reasons.
In the Booth and De Vries proceedings, the Mother then appealed against the orders made on 16 August 2004 in relation to the child L and the appeal was heard by Coleman J on 3 September 2004. Coleman J allowed the appeal and set aside Orders 1, 2 and 3 to the orders made on 16 August 2004. He made an order that the competing applications for “interim contact” be remitted to the Federal Magistrates Court.
In the Booth and De Vries proceedings, on 3 September 2004 interim orders were made in the proceedings between the Mother and Mr De Vries.
On 8 November 2004 Faulks J made a number of orders by consent and adjourned the hearing of a number of other issues. On 9 November 2004 Faulks J made a number of orders which were “not by consent”.
On 6 December 2004 a notice of appeal was filed on behalf of the Father. He sought to appeal against paragraphs 2 and 11 of the supplementary orders which were not made by consent on 9 November 2004. In the notice of appeal the Father sought that changeover should occur at the Shell service station at S and in the alternative occur at Centrecare C Contact Service at C with the Sunday changeover to occur at the Children’s Changeover and Contact Centre at R in the Australian Capital Territory.
On 23 January 2005 Faulks J made the following orders:
IT IS ORDERED THAT:
1. * The child, [M] born […] November 1999 (“the child”), live with the respondent mother and that she have sole responsibility for the child’s long term care and day to day care, welfare and development.
2. * The child have contact with the applicant father such contact to be as agreed but to include the following:
(a)* When the child commences full-time primary schooling, subject to Order 3, up to one half of each of the short school holiday periods except Sept/Oct being the second half in all odd-numbered years and the first half in all even-numbered years.
(b)If the father is not able to exercise holiday contact for some or all of the time provided in these orders, he provide the mother with one month’s prior notice in writing.
(c)* When the child commences full time primary schooling, subject to order 3, for one half of the September/October school holidays not to be the half which contains [the mother’s birthday].
(d)* That the school holiday period be to commence at 5.15 p.m. on the last day of school and to conclude at 5.15 pm on the Sunday prior to the commencement of school.
(e)* Telephone calls as and when [M] requests such contact. The mother will assist [M] to make such calls.
(f)* When [M] is in the father’s care, if [M] requests telephone contact with his mother, such contact shall occur and the father is to assist [M] to make such calls.
3. During term time [M] will have contact with his father on each fortnight, such fortnight to coincide with the fortnightly contact that [L] has with his father, such contact will commence at 5:15pm on the Friday of the weekend and conclude at 5:15pm on the Sunday of the weekend unless the parents otherwise agree.
4. * The father shall be substantially available personally to supervise the child during contact periods and shall not leave the child with other persons other than in an emergency situation.
5.(a) The change-over for contact will occur during term time at the Children’s Change-Over and Contact Centre at [R] in the Australian Capital Territory.
(b)The contact during school holiday periods will commence if [M] is to be with his father for the first half of the school holidays at [R] but other change-overs for school holiday periods will occur at Centrecare [C] Contact Service at [C] in the New South Wales.
(c)* If the father seeks to have another person to effect the handover of [M] for contact, he will ensure that the mother is aware of the identity of the person who will be responsible for the hand-over not less than 48 hours prior to the hand-over.
(d)* If the mother seeks to have a person other than herself or [her parents] to effect the handover of [M] for contact the mother will ensure that the father is aware of the identity of the person who will be responsible for the hand-over not less than 48 hours prior to the hand-over.
(e)Each of the parents will undertake as soon as practicable such intake procedures as either of the two contact services requires.
(f)If either parent should fail promptly to comply with the intake procedures of either of the contact services then there is liberty to apply for orders either by way of compensatory contact or for other orders about contact.
6. * Other than in respect of school holiday contact the father will give not less than 24 hours notice of his inability to exercise any particular period of contact unless his inability is created by an emergency in which case he will advise the mother as soon as practicable.
7. If [M’s] father’s birthday falls on a weekend which is not a contact weekend or if Father’s Day falls on a weekend which is not a contact weekend then the weekend on which either of those two events occurs will be a contact weekend in substitution for the next scheduled weekend contact period. This is provided that the father gives to the other notice in writing of not less than one month of his intention to exercise the contact during the weekends referred to.
8. * If the mother’s birthday ([…] October) or Mother’s Day falls on a contact weekend then the scheduled weekend contact shall occur in the weekend preceding and the mother shall inform the father with one month’s notice in writing of her intention to have [M] with her on those weekends.
9. * If the child will not be residing predominantly at the address of the father for the contact period the father shall inform the mother in writing of the address at which the child will be staying.
10. * The mother request that any school attended by the child forward to the father any school newsletter or school report ordinarily provided to the parents of children enrolled at such school.
11. * Neither party will at any point hereafter permit [M] to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle in which he, that is [M], is not restrained in a way appropriate for his age and weight.
12. * If either party obtains any medical treatment for [M], involving attendance upon a medical practitioner then he or she will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed.
13. * Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care.
14. * The father will not approach within 1 kilometre of the mother’s address.
15. * The mother will not approach within 1 kilometre of the father’s address.
16. * If either party’s current mobile phone number ceases to be his or her phone number he or she will with in forty-eight hours inform the other party in writing of the new mobile number or, if they are not obtaining a new mobile number, an alternate telephone number.
17. * The parties shall be restrained, without the consent of the other first had and obtained in writing, to obtain any passport for the child, whether it be a Nigerian passport or an Australian passport.
18.(a) * Each of the parties is hereby restrained from removing, or causing or allowing any other person to remove the child [M] born on the […] November, 1999 from the Commonwealth of Australia.
(b)I direct that the name of [M] born on […] November, 1999 be placed on the PASS list in relation to ports in Australia.
19. * The parties will not and will not allow third parties to physically abuse other persons or the child or use abusive language or denigrate the other party or the other party’s family in the presence or hearing of the child.
20. * The parties will not contact each other via telephone except if there is an emergency.
21.(a) The mother have leave to make application about the costs reserved by Judicial Registrar Loughan on the 4th June 2002.
(b)The application for leave is granted but the application for costs is refused.
22.(a) The father will pay the mother’s costs of and incidental to these proceedings from the adjourned date previously set for the hearing in November 2004 until noon on the 8th November 2004.
(b)Such costs will be agreed or taxed.
(c)I certify that it was reasonable for senior counsel to be retained in this matter.
23. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
24. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
25. I direct that the matter be removed from the pending cases list.
26. For the sake of clarity the long or Christmas school holidays are regarded for the purposes of these orders as school holidays.
Items marked with an * are orders made by consent on the 8th November 2004
The orders were described as a compilation of the orders made by consent on 8 November 2004 and the orders made “not by consent” on 9 November 2004.
The Father appealed against orders 5(a) and 22(a) and (b). The Father sought that the weekend time he spends with the child commence and conclude at S. As the Full Court said that Father was seeking that the changeover place be the same for both children.
The Mother contended, and it was agreed, that the child has not spent time with the Father on a weekend during the school term since February 2005. As well, there have been occasions when the child did not spend time with the Father during the school holidays which included January 2006. The Father said that he has not been exercising the fortnight weekend school term time with the child because of safety and fatigue reasons involved in travelling from after work and driving to Canberra to collect the child. He said that this would be an eight hour drive. The Father contended that in spite of not spending time with the child during the school term he continues to enjoy a close relationship with the child and spends time with the child during the school holidays.
The applications for final orders in the proceedings between the Mother and Mr De Vries were listed for final hearing before a Federal Magistrate on 2 February 2005. The parties however, reached agreement on all matters except the location of “our changeovers”.
In the Booth and De Vries proceedings, on 11 February 2005 a Federal Magistrate made the following orders:
1. That the child [L] born […] December 2002 reside with his mother.
2. That both parents have joint responsibility for his long term care, welfare and development.
3. That the parent with whom the child is residing with shall have responsibility for the child’s day to day care, welfare and development.
4. The mother shall advise the father of all schools/preschools/day care centres that [L] attends.
5. The child have weekend contact with his father as follows:
a)each alternate weekend from 9.15am Saturday until 3.00pm Sunday from 12 February 2005 until 1 March 2005.
b)each alternate weekend from 9.15am Saturday until 3.00pm Sunday from 1 March 2005 until 30 June 2005.
c)thereafter each alternate weekend from 7pm Friday until 3pm Sunday or Monday if it is a long weekend.
6. The child have holiday contact with his father as follows:
a)during the first week of the July and September/October school holidays in 2005 from 4pm on Wednesday 4pm the following Sunday.
b)during the second week of the April, July and September October school holiday’s in 2006 from 4pm on the Tuesday until 5.15pm the following Sunday, thereafter for one half of all school holidays.
7. The child have telephone contact with his father from the age of 3 years each Wednesday between 6 and 7pm. The mother shall facilitate such contact.
8. Should the mother cancel any contact period, the mother will provide to the father a medical certificate and contact will occur the following weekend in substitution for weekend contact, or following day for holiday contact.
9.a) the child will have contact with his father from 4pm 26 December 2005 until 4pm 28 December 2005 and each alternate year thereafter.
b)the child will have contact with his father from 4pm 24 December 2006 until 4pm 26 December 2006 and each alternate year thereafter.
10. The changeovers for contact shall be as follows:
(a)On a Friday at McDonalds [S]
(b)On a Saturday at McDonalds [D]
(c)On a Sunday or Monday at McDonalds [S]
(d)At Christmas at McDonalds [S]
(e)For holiday contact
(i)At the [C] Centacare Children’s Contact Centre when it coincides with the changeover for the mother’s child [M].
(ii)At McDonalds [S] at other times.
11. The father is permitted to take the child on overseas holidays upon the child reaching five (5) years of age, and the PASS order will remain in force until […] December 2007 and thereafter be discharged.
12. The mother will sign all documents necessary to obtain an Australian passport for the child within (21) days of a request to do so by the father.
13. That if either party fails to sign any necessary document pursuant to these orders then the Deputy Registrar, Canberra Registry shall be appointed to execute all such documents and to do such things as are necessary to give effect to the Orders made by the Court.
14. Neither party will at any point hereafter permit the child to be driven in a vehicle which is unregistered or in any vehicle which is in the control of a driver who is not appropriately licensed or in a vehicle in which the child is not restrained in a way appropriate for his age and weight and in accordance with any laws or regulations prevailing in the state or territory concerned.
15. If either party obtains any medical treatment for the child, involving attendance upon a medical practitioner then he or she will notify the other parent as soon as practicable thereafter about the consultation and the treatment prescribed, and will provide any relevant medications or prescriptions.
16. Each party will immediately notify the other if the child is seriously ill or is to be admitted into hospital when the child is in their care.
17. The father will not approach within 1 kilometre of the mother’s address, the mother’s parent’s address or place/s of employment.
18. The mother will not approach within 1 kilometre of the father’s address or place of employment.
19. In the event either party’s current mobile phone number ceases to be their phone number they will with in forty eight hours inform the other party in writing of their new mobile number of if they are not obtaining a new mobile number an alternative telephone number.
20. When the child is in the father’s care, if the child requests telephone with his mother, such contact shall occur and the father is to assist the child to make such calls.
21. The parties will not and will not allow third parties to physically abuse other persons or the child, use abusive language in the presence of the child, denigrate the other party or other party’s family in the presence or hearing of the child.
22. The parties will not contact each other via telephone other than if there is an emergency.
23. Other than in respect of school holiday contact each party will give to the other not less than 48 hours notice of his or her inability to exercise any particular period of contact unless his or her inability is created by an emergency in which case he or she will advise the other as soon as practicable.
24. That in the event the child will not be residing predominantly at the address of the father for each contact period the father shall inform the mother in writing of the address at which the child will be staying.
25. That the mother request that any school attended by the child forwarded to the father any school newsletter or school report ordinarily provided to the parents of children enrolled at such school.
26. The first weekend contact for [L] to commence Saturday 12 February 2005 and each fortnight thereafter in accordance with order 5 herein.
27. The father shall not arrange or permit the child to have a haircut.
In the Booth and De Vries proceedings, on 28 February 2005 the Mother filed a notice of appeal in which she sought to appeal against orders made by the Federal Magistrate.
In February 2005 the child commenced to attend kindergarten at G School at N in Canberra.
In the Booth and De Vries proceedings, on 2 June 2005 the Mother and Mr De Vries participated in a Judicial Settlement Conference in relation to the Mother’s appeal against the orders made by a Federal Magistrate on 21 February 2005.
In the Booth and De Vries proceedings, in his affidavit in support of a response to an application in a case Mr De Vries gave evidence of how the time he spends with his son, L has increased gradually over time. I will not set out all of what he said. However, he contends that from 30 June 2005 he spent time with the child each alternate weekend from 7.00 pm on Friday until 3.00 pm on the following Sunday or 3.00 pm on the following Monday if the Monday was a public holiday. He contends that his present wife has a very close and loving relationship with the child and the child is comfortable in her care. Mr De Vries also gave evidence about holiday time he has spent with the child since July 2005 which he said has also gradually increased over time.
The Father contended, and I accept, that in July 2005 in the Local Court at B the Mother was found to have contravened certain parenting orders and was fined $100.
In the Booth and De Vries proceedings, on 21 July 2005 a contravention application was filed on behalf of Mr De Vries and he contended that on 6 July 2005 the Mother had contravened the orders of 11 February 2006 by refusing to allow him to spend time with the child.
In the Booth and De Vries proceedings, on 30 August 2005 the Mother filed an application in which she sought that her appeal be reinstated. The appeal had lapsed by reason of her failure to file appeal books as provided for in orders made on 2 June 2005.
On 12 September 2005 a Judicial Registrar made an order that a contravention application filed on behalf of the Father on 11 July 2005 be dismissed. The Judicial Registrar also dismissed an application by the Mother for costs.
In the Booth and De Vries proceedings, in a judgment delivered on 5 February 2007 Boland J said that on 15 September 2005 at the request of the parties the application by the Mother to reinstate her appeal be listed immediately after a further Judicial Settlement Conference in the “related appeal” in the Booth and Oshodi proceedings on 25 October 2005.
In the Booth and De Vries proceedings, on 25 October 2005 the Mother and Mr De Vries participated in another Judicial Settlement Conference. I gather that the parties may also have participated in a judicial settlement conference.
In the Booth and De Vries proceedings, on 19 January 2006 the Mother withdrew her application to reinstate her appeal against the order made on 21 February 2005.
In March 2006 Mr De Vries married his current Wife. The Father has also re-partnered.
On 3 April 2006 a contravention application was filed on behalf of the Father in which he contended that the Mother had contravened Order 10 made by Faulks J.
The Father contended that on 13 April 2006 he travelled to Canberra to collect the child for the purpose of spending time with the child during the school holidays being an even numbered year. At 5.15 pm he arrived at R Contact Centre and upon arrival was informed by the contact officer that the child was unavailable for the school holidays contact changeover. The Father then attended Canberra City Police Station and requested assistance. A police officer contacted the Mother and the Father was then informed that the Mother refused to allow any time and stated that she had made family arrangements for the weekend and would not deliver the child for the school holiday period.
I note that the distance between W and K in the Australian Capital Territory is about 267 kilometres. The distance between W and B in the Australian Capital Territory is about 270 kilometres.
On 18 April 2006 an application in a case was filed on behalf of the Father in which he sought that the child be delivered by the Mother to a McDonalds restaurant at W on that day for the purpose of the Father spending time with the child during the holiday period.
On 18 April 2006 a contravention application was filed on behalf of the Father. The Father referred to the orders made on 23 January 2005 and contended that since those orders the Mother has engaged in what he described as deliberate and calculated methods of disrupting his relationship with the child. He contended that in the July 2005 school holidays and April Easter 2006 school holidays he travelled to Canberra to collect the child and the Mother, without reasonable justification, refused to allow the child to go with him.
On 2 May 2006 Judicial Registrar Johnston made a finding that the Mother had contravened the order which required that she request G School to forward to the Father any school newsletters or school reports ordinarily provided to parents of children. The Mother denied that she had contravened the order, however the finding was made that the Mother had contravened the order without reasonable excuse. The Judicial Registrar made the following orders:
1. That the father’s Contravention Application filed on 18 April 2006 is dismissed on the basis that the Court is unable to interpret paragraph 2(a) as imposing on the mother an obligation to make the child available at 5:15 pm on 13 April 2006.
2. That the Court finds the mother to have breached paragraph 10 of the orders engrossed on 23 January 2005 as a compilation of orders made on 8 and 9 November 2004.
3. That not later than 19 May 2006 the mother shall forward to [A] Primary School a copy of paragraph 10 of the said orders together with a written request that the Principal of the School arrange for the material described in order 10 thereof to be forwarded to the father from time to time.
4. That by consent the words “up to one” in paragraph 2(a) of the compilation of orders dated 23 January 2005 are deleted.
5. That by consent paragraph 10 of the said compilation is amended by inserting the words “in writing” after the word “request” therein.
6. That the parties attend confidential counselling / mediation pursuant to s.62F of the Family Law Act 1975 by arrangement with the Manager of Mediation in Canberra as soon as possible noting that the mother will attend counselling in Canberra and the father is permitted to attend by telephone.
On 15 May 2006 proceedings were before Judicial Registrar Johnston and there was no appearance by or on behalf of either party. In the circumstances, the Judicial Registrar ordered that the contravention application filed on behalf of the Father on 3 April 2006 be removed from the list of active cases.
On 27 July 2006 the Full Court heard the Father’s appeal. In their subsequent judgment the Full Court said:
The trial Judge commenced his reasons in relation to this topic by dealing with the facts relating to the long history of difficulties about contact. He referred to submissions made by counsel on the mother’s behalf:
11.‘…the mother had been obliged to move to Canberra where she could enlist the support of her family, both physically and for accommodation and financially because of the fact that [M’s] father had failed adequately to support her and [M] and that she was unable, at that point, to obtain employment except in the Canberra context.
12.The consequence is that the parties now live, on the evidence before me (latterly in the proceedings) about three hours and 56 minutes apart from each other. This obviously complicates the parties’ having an adequate relationship with [M]. Further complicating the process to some extent is that subsequent to the relationship of the parties the mother married [Mr De Vries] and they also have a child, [L]. Following upon their subsequent separation, there is a need to take account of the inter-relationship of the arrangements about contact for both [L] and [M].
13.The practical questions associated with contact might be summarised in this way. First, with young children and with adults for that matter, travelling frequently and for long distances is generally regarded as being undesirable if it could reasonably be avoided. The second matter is that the relationship between [the father] and [the mother] remains significantly hostile and the arrangements for more frequent contact, theoretically at least, may suggest that there is likely to be more frequent hostility.
14.The third question of course is the matter of cost associated with the travel of [M] from one place to another.’
The Full Court referred to the what the trial Judge said in accepting the opinion of the Court Counsellor that the handover should occur at a professional centre namely:
25 However, recognising that parents who spent as much time, money and emotion on Court proceedings as these, are unlikely to be able to do that in the short term, it seems that the desirable outcome, as the counsellor recommends, is the removal of the source of conflict by the application of professional assistance in the changeover.’
…
26 …while attractive in one sense, particularly on a financial basis, particularly on a flexibility basis, particularly on the fact that it would ultimately suggest to [M] that this was a good thing and that his parents both recognise the legitimacy of the contact and relationship that he had with the other parent is unachievable. Notwithstanding all of those reasons, in my opinion, at this point, the only viable option for the parents is either [R] or [C]. For the reasons that I have expressed above, [C] is not a viable option during school term and accordingly, on that basis, in my opinion, the initial handover should occur at [R] in the ACT.’
In the Booth and De Vries proceedings, in 2006 Mr De Vries filed three contravention applications which came before a Federal Magistrate on 1 November 2006. At the conclusion of the hearing the Federal Magistrate made an order that the Father’s allegation that the Mother without reasonable excuse breached Order 6(a) of the orders made on 11 February 2005 with respect to school holidays in July 2005 was established, but the Federal Magistrate took no action “on this occasion” with respect to that breach. The Federal Magistrate made a finding that the remaining “alleged breaches are not made out”.
On 18 September 2006 the Full Court dismissed the Father’s appeal. The Full Court said that the essence of the appeal seemed to be subsequent circumstances, being orders made on 2 February 2005 in relation to the child L which provided that Mr De Vries have alternate weekend contact and depending on the day of commencement of contact, it be on a Friday at McDonalds S, on a Saturday at McDonalds D and on a Sunday or Monday and for most holidays at McDonalds S. The only exception to this being at the C Children’s Contact Centre when it coincides with the changeover for the child M.
In the Booth and De Vries proceedings, on 1 November 2006 Mr De Vries filed in court a minute of orders in which he sought to clarify the arrangements for the forthcoming Christmas school holidays. The Federal Magistrate made an order that the minute could be treated as an application for variation of the orders made on 11 February 2005 and made directions with respect to the Mother filing a response together with any affidavits and adjourned the proceedings to 12 December 2006.
On 6 November 2006 an number of applications were filed by the Mother. On 6 November 2006 an application for final orders was filed on behalf of the Mother and she sought that parenting orders made on 23 January 2005 be discharged. On 6 November 2006 an application in a case was filed on behalf of the Mother in which she sought that by way of clarification of the orders made on 23 January 2005 the Father spend time with the child from 2.00 pm on 26 December 2006 until 2.00 pm on 7 January 2007 and from 2.00 pm on 20 January 2007 until 2.00 pm on 27 January 2007. In support of this application in a case the Mother swore an affidavit on 3 November 2006. In her affidavit the significant matter which the Mother gave evidence about was the importance of the children being together on Christmas Day. The Mother gave no evidence which, in my opinion, demonstrated why it would be in the best interests of the child that he not spend time with the Father during the school term.
In the Booth and De Vries proceedings, on 27 November 2006 an application for final orders was filed on behalf of the Mother in which she sought that parenting orders made on 11 February 2005 be discharged. In the Booth and De Vries proceedings on 27 November 2006 an application in a case was filed on behalf of the Mother in which she sought that by way of clarification of the orders made on 11 February 2005 the Father spend time with the child L from 2.15 pm on 26 December 2006 until 2.15 pm on 1 January 2007 and from 2.15 pm on 20 January 2007 until 2.15 pm on 27 January 2007. In support of this application in a case the Mother swore an affidavit on 11 November 2006.
On 30 November 2006 a response was filed on behalf of the Father. He proposed that the child spend time with him during each school term, each alternate weekend from 6.30 pm on Friday to 5.30 pm on the following Sunday and for one half of each school holiday period. On 30 November 2006 a response to an application in a case was filed on behalf of the Father. He sought that the Mother’s application be dismissed and that he be entitled to spend time with the child during the forthcoming Christmas holiday period which would include Christmas Day. On 30 November 2006 the Father swore an affidavit in support of his response to an application in a case.
On 5 December 2006 Judicial Registrar Johnston made an order that the parenting proceedings be listed for hearing on 21 December 2006 in the Judicial Registrar’s duty list. As well, he made an order that the Mother deliver the child into the care of the Manager of the Child Dispute Services not later than 10.00 am on 21 December 2006 and that the child remain in the care of the said Manager pending further order.
In the Booth and De Vries proceedings, in December 2006 a response to the Mother’s application for final orders was filed on behalf of Mr De Vries. Mr De Vries sought that the Mother’s application filed on 27 November 2006 be dismissed. In December 2006 a response to an application in a case was filed on behalf of Mr De Vries. In support of his response to an application in a case Mr De Vries swore an affidavit on 20 December 2006.
On 21 December 2006 the following orders and notations were made by Judicial Registrar Johnston:
1. That the Court notes that the child [M] born on […] November 1999 will be collected by [the father] following this hearing today from the child minding room.
2. That the Court notes that [Mr De Vries] will collect the child [L] born on […] December 2002 from McDonalds [D] at 12:00 noon on 22 December 2006 to commence spending time with [Mr De Vries] for Christmas school holidays.
3. That the Court notes that the child [M] will be delivered to the mother at the carpark at [C] Centacare at 12:00 noon on 13 January 2007.
4. That the Court notes that the child [L] will be delivered to the mother at the car park of [C] Centacare at 12:15 pm on 13 January 2007.
5. That by consent the mother is permitted to telephone [M] between 9:30 am and 10:00 am on Christmas Day and [L] between 9:00 am and 9:30 am on the same day and each Tuesday and Friday of the said holiday period for [M] between 5:30 pm and 6:00 pm and for [L] between 5:00 pm and 5:30 pm.
6. That by consent both fathers may telephone their sons each Tuesday and Friday during January 2007 school holidays with the mother between 5:00 pm and 6:00 pm.
7. That all parties are given leave to approach the List Manager and request appointment of the first date in the Less Adversarial Trial system on the basis that the same first date will be available for both proceedings.
8. That all costs are reserved.
9. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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 Fact Sheet attached hereto and these particulars are included in these orders.
By letter dated 17 January 2007 the Father wrote to the solicitors for the Mother and, amongst other things, complained about an incident which occurred on 16 January 2007 when he attempted to have a telephone conversation with the child.
In the Booth and De Vries proceedings, on 5 February 2007 Boland J made an order that the Mother’s solicitor pay Mr De Vries’ costs in respect of the application for reinstatement of the Mother’s appeal. Further, her Honour made an order that the Mother pay Mr De Vries’ costs of the appeal excluding any costs of and incidental to the Judicial Settlement Conferences held on 2 June 2005 and 25 October 2005.
On 13 March 2007 at the conclusion of the first day of the hearing I made the following orders:
1. The further hearing be fixed for 10.00 am on 30 March 2007.
2. The Mother be granted liberty to issue a subpoena directed to [the father’s] employer, [S Service] such subpoena to be made returnable before a Registrar on 23 March 2007.
3. The Father, [Mr De Vries], spend time with the child [L] born on […] December 2002 from 5.00 pm on 21 April 2007 to 5.15 pm on 29 April 2007, the Mother to deliver the child to the Father at the carpark of the [C] Centrecare at the commencement of the period and the Father to return the child to the Mother at the carpark of the [C] Centrecare at the conclusion of the period.
4. The Father, […] spend time with the child [M] born on […] November 1999 from 5.00 pm on 21 April 2007 to 5.15 pm on 29 April 2007, the Mother to deliver the child to the Father at [C] Centrecare at the commencement of the period and the Father to return the child to the Mother at the [C] Centrecare at the conclusion of the period.
Statutory considerations
At the outset, I note that I received very few, if any, submissions from counsel for the Mother and from the Fathers as to how I should apply the legislation to the facts of each case. However, I am not critical of this approach given the narrowness of the issues.
The Mother said, and I accept, that both children have lived with her since she separated from the boy’s respective fathers. The Mother said, and I also accept, that the children are extremely close.
The Mother would like changeover to be synchronised with both boys. The Mother seeks that the boys have time with their Fathers at the same time so that they can then have some weekends together.
In these proceedings, the Mother would prefer that changeover take place at a contact centre. The Mother contends that the child M has not seen his father during school term for about two years. The Mother contends that she has had a lot of confrontation with the Father. The Father contends that he cannot get to Canberra for changeover during the school term. However, he would like to spend time with his son every second weekend.
The Father is content that the changeover occur at the same time as for Mr De Vries and that it be at S. Mr De Vries is prepared to facilitate the changeover of the child M between the Mother and the Father. Mr De Vries is content to synchronise with the Father as long as changeover takes place at S.
I propose to first deal with each of the two primary considerations in s 60CC and then the 13 additional considerations in that section, having regard to the object and principles of Pt VII. I will then consider whether the presumption of equal shared parental responsibility does not apply having regard to the matters in s 61DA(2) or is rebutted having regard to s 61DA(4). If the presumption does apply and has not been rebutted then pursuant to s 65DAA I will consider whether each child is to spend equal time or substantial and significant time with each parent.
I should also add that in a number of respects I reached the same conclusions in both proceedings.
Primary considerations
I am required to consider the benefits to the child of having a meaningful relationship with both of their parents. This is an important matter.
In my opinion, it is important that the child have a meaningful relationship with both parents. However, I am concerned that this is not adequately recognised by the Mother.
I am required to consider the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. This matter is not relevant.
Additional considerations
I am required to consider any views expressed by the child and any factors, such as the maturity or level of understanding of the child, that I think are relevant to the weight I should give to the views of the child. Section 60CD sets out how I may inform myself of views expressed by a child. However, I am not permitted to require a child to express views in relation to any matter: see s 60CE.
There was no evidence about this matter. However, I infer that the child does seek to spend time with the Father given the history and what the Mother seeks.
I am required to consider the nature of the relationship of the child with each of the parents and other persons including any grandparent or other relative of the child.
I am satisfied that the child has a close relationship with both parents and other significant adults including the Father’s current partner.
I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
I have some doubts that the Mother has the willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the Father. For my part, I am of the view that the importance of a meaningful relationship with the Father, for the time being, has priority over the activities the Mother gave evidence about. It is important to bear in mind the objects of the relevant statutory provisions.
As to the Father, what the evidence clearly establishes is that even if his approach with contravention applications was misconceived he has sought to be involved in the welfare of the child.
I am required to consider the likely effect of any changes in the circumstances of the child including the likely effect on the child of any separation from either parent or any other child or other person including any grandparent or other relative of the child, with whom the child has been living. This is important.
I would be concerned about the effects on this boy if the amount of time he spends with the Father is not regular and consistent.
The Mother contends, and I accept, that there is a very close relationship between the two children. The Mother contends that the children should always be with her on Christmas Day because this is the birthday of the child L and that it is important that the boys are together on each others birthdays. However I am also of the view that it is important for the child to spend time with the Father on days that are of significance to the child and the Father and such days include birthdays and Christmas Day. I am concerned that this is not recognised by the Mother.
I am required to consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the right of the child to maintain personal relations and direct contact with both parents on a regular basis. This is an important matter.
I am of the view that there has to be a point of changeover of the child from the care of the parents for all occasions which is certain, consistent and is reasonably accessible by both parents. I accept the Father’s contentions in relation to the difficulties in relation to point of changeover during the school term.
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parents have the capacity to provide for the needs of the child, including emotional and intellectual needs during the periods they each seek to spend with the child.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant.
This is a very important matter. The Father gave evidence about the involvement of the child in the various Nigerian cultural activities. I have no doubt that it is important that involvement of the child has to be fostered and maintained. I also accept that this can only happen when the child spends time with the Father.
I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
I am satisfied that the Father has an appropriate attitude to the child and to the responsibilities of parenthood. Amongst other things, he has persisted in his concern to spend time with his son and has done so in a concerned and not vexatious manner.
As to the Mother, I have some concerns about her attitude to the child and to the responsibilities of parenthood. I am concerned about how she has facilitated or failed to facilitate the Father participating in making decisions about issues in relation to the child and spending time with the child and communicating with the child. My overall impression is that the Mother perceives the Father’s relationship with the child to be less important that her relationship with the child and that she has some sort of priority role over the Father in relation to the child.
I am required to consider any family violence involving the child or a member of the child's family. I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to each child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2). These matters are not relevant.
I am required 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. This is an important matter. It is sufficient to reflect on the history that I have outlined above. My impression is that the Mother may seek to agitate other issues to achieve what she wants and that unless all parties have professional assistance, there is a chance of more litigation whatever I do.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing I want to say about this consideration beyond what I have said elsewhere.
Conclusion
When the evidence is considered there are really only three matters raised. The first is that the child has now become involved in activities such as playing rugby football and that time spent with the Father would prevent this from happening every weekend. The second matter is that is that the Mother and the Father have a conflicting relationship and that they should not meet face to face and thus changeovers are difficult. The third matter is that given that the child L was born in late December it is more important that the two boys spend that day together than it is that they spend a Christmas Day with their fathers and members of the paternal families.
As to the first matter I am satisfied that it is more important that the child spend regular time with his father than be involved in sporting and extra-curricular activities. As the child grows older this will change and the parents will have to accommodate the desires and aspirations of the child. However, at this stage of the child’s life given, amongst other things, the history of what has happened, the priority is his relationship with his father.
As to the changeovers, in my view, as it transpires it was unrealistic that the changeover occur at 5.15 pm on Friday in Canberra given the Father lives in Sydney, the Father’s employment and the amount of travel. The changeover should occur at a realistic and fair point. In my view an appropriate point of changeover be at S. This will also be the point of changeover in the Booth and De Vries proceedings.
As to Christmas Day, there is no doubt that the boys should have the opportunity from time to time to spend that day together but it is also important that they have the opportunity to spend that day with their parents and members of the paternal and maternal families.
When making a parenting order I must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. However the presumption does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In this case I am not satisfied that there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Thus, I must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
Next, notwithstanding the extent of the previous litigation and parental conflict, I am not satisfied that the presumption has been rebutted.
In the result, I am satisfied that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
As I am satisfied that the presumption of equal shared parental responsibility does apply I then have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent.
In the circumstances of this matter, I could not be satisfied that it would be in the best interests of the child to spend equal time with each parent. However, in any event, I am satisfied that it is not reasonably practicable for the child to spend equal time with each parent. Amongst other things, this is because of the self evident consequences of the Mother living in Canberra and the Father living in Sydney. Because both conditions are not satisfied then I do not have to consider making an order for the child to spend equal time with each parent.
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent.
Section 65DAA(3) sets out what is meant by substantial and significant time. It provides that for the purposes of s 65DAA(2) a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both (emphasis mine) days that fall on weekends and holidays and time allows the parent to be involved in the child’s daily routine and occasions and events that are of special significance to the child and occasions and events that are of special significance to the parent.
In this case I am satisfied that it would be in the best interests of the child to spend substantial and significant time with each parent. However again the distance that the parents live apart from each other does not make it reasonably practical. With the exception of school holiday periods the Father is unable to spend time with the child during the school week and be involved in the child’s daily routine.
The child is only eight years of age and I accept that he has a close relationship with his father. In my opinion, he is at an age where it is in his best interests to spend regular and significant time with both parents. In my view, with the exception of some matters that I will deal with, nothing has been put to me that demonstrates why the regime established by the orders of January 2005 being each second weekend and half the school holidays is not in the best interests of the child. Put another way, subject to some matters, I am satisfied that the regime established by the orders of January 2005 is in the best interests of the child.
I am satisfied that it is in the best interests of the child that he spend regular and significant time with his father both during the school terms and also the school holidays.
I am going to discharge all existing orders even though there are some in respect of which nothing has been put to establish why they should be discharged or varied. It is intended that the orders I will make, will be, so far as is possible, a comprehensive regime.
The child will spend time with the Father during the school term each second weekend and for half of the school holiday periods. The child will spend Christmas Day with the Father each alternate year.
I am going to make orders that are synchronised with the orders I will make in the Booth and De Vries proceedings. I accept that this is important.
Given what Mr De Vries said he is prepared to do to assist with the changeovers of the child from the care of each party such that the parties do not have to meet face to face I am going to make an order that Mr De Vries or someone authorised by him will collect and deliver the child from and to the care of each parent. Obviously I would hope that in time this may not be necessary and that the parties can meet face to face even for a short time without there being any upset or confrontation.
I am going to make the orders sought in relation to the PASS Alert List and passport as nothing has been put to me that establishes why the orders made in January 2005 about such issues should not continue.
I certify that the preceding 154 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan
………………………………………………………..
Associate:
Date: 8 June 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as OSHODI & BOOTH
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