PABST & DOKIC

[2015] FamCA 577

FAMILY COURT OF AUSTRALIA

PABST & DOKIC [2015] FamCA 577

FAMILY LAW – PARENTING – Where the parties agree that an order for shared parental responsibility be made – Where the child has special needs and requires ongoing speech and occupational therapy – Where the mother has played an important role in that therapy and will continue to do so – Where the mother is to have the final decision relating to the child’s sporting activities in 2015 and 2016 in the event the parents are unable to agree - Where the parties agree that the child live with the father and spend substantial and significant time with the mother – Where the court must decide between proposals for time with the mother which vary by one night – Where the child has a meaningful relationship with both parents – Where the parties have a history of conflict and low level aggression – Where there is a history of conflict during changeover – Where orders are made that the child spend 11 out of 28 nights with the mother in a four week cycle and changeover take place with minimal face to face contact between the parties –Where the father asserts the mother is a flight risk – Where international travel is allowed.

Family Law Act 1975 (Cth)

SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr Pabst

RESPONDENT: Ms Dokic

INDEPENDENT CHILDREN’S LAWYER: Ms Kensell

FILE NUMBER: SYC 3111 of 2012

DATE DELIVERED: 20 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 6 - 10 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Somerville Legal

SOLICITOR FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Giacomo

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

Orders

1. Subject to order 21, all previous parenting orders be discharged.

2. The parties have equal shared parental responsibility for B, born … 2008 (“the child”).

3. The parties shall do all things necessary to cause the child to attend upon Dr C, of Central Paediatrics, for a review of his health and development on 12 November 2015 at 1.00pm and thereafter for further review as recommended by Dr C, or any subsequent paediatrician nominated by Dr C, with the costs of such reviews to be shared equally by the parties.

4. The parties shall follow any written recommendation of Dr C, or any subsequent paediatrician nominated by Dr C, in respect to the child’s health and development, including but not limited to occupational therapy and speech therapy. The parties shall continue to take the child to speech therapy and occupational therapy for as long as is recommended by Dr C, or any subsequent paediatrician nominated by Dr C.

5. The child commence speech therapy with Ms D of Ms D Speech Pathology Services (“Ms D”) upon the following conditions:

   5.1.Therapy take place out of school hours;

   5.2.Therapy take place on a Thursday or Friday afternoon so that the mother would take the child to that therapy on at least two out of four weeks;

   5.3.The parties provide Ms D (or any other therapist the child attends upon) with their contact details and shall advise her of any change to their contact details;

   5.4.The parties instruct Ms D (or any other therapist the child attends upon) to provide written feedback to each of the parties following therapy sessions including details of any homework provided to the child;

   5.5.The parties follow directions of Ms D (or any other therapist the child attends upon) in respect to the duration and the frequency of the child’s speech therapy and shall ensure any homework is completed;

   5.6.Parental attendance at the child’s speech therapy shall be determined by Ms D (or any other therapist the child attends upon);

   5.7.The cost of speech therapy is shared equally by the parties.

6. In the event that the child is no longer able to do speech therapy with Ms D, then the parties shall obtain a recommendation from Dr C for a speech therapist in an area which is proximate to the child’s school on the same conditions as set out in the previous order and the parties shall do all things necessary to engage that speech therapist.

7. The parties shall forthwith obtain a recommendation from Dr C for an occupational therapist (“occupational therapist”) in an area which is proximate to the child’s school and the parties shall do all things necessary to engage that occupational therapist and ensure the child attends upon that occupational therapist until Dr C advises the parties in writing that the child no longer requires occupational therapy. Occupational therapy shall take place on the following conditions:

   7.1.Therapy take place out of school hours;

   7.2.Therapy take place on a Thursday or Friday afternoon so that the mother would take the child to that therapy on at least two out of four weeks;

   7.3.The parties shall provide the occupational therapist (or any other occupational therapist the child attends upon) with their contact details and shall advise her of any change to their contact details;

   7.4.The parties shall instruct the occupational therapist (or any other occupational therapist the child attends upon) to provide written feedback to each of the parties following therapy sessions including details of any homework provided to the child;

   7.5.The parties shall follow directions of the occupational therapist (or any other occupational therapist the child attends upon) in respect to the duration and the frequency of the child’s occupational therapy and shall ensure any homework is completed;

   7.6.Parental attendance at the child’s occupational therapy shall be determined by the occupational therapist (or any other occupational therapist the child attends upon);

   7.7.The cost of occupational therapy is shared equally by the parties.

8. In the event that the child is no longer able to do occupational therapy with the therapist nominated, then the parties shall obtain a recommendation from Dr C for an occupational therapist in an area which is proximate to the child’s school on the same conditions as set out in the previous order and the parties shall do all things necessary to engage that occupational therapist.

9. In 2015 and 2016 the parties are to consult and make a genuine attempt to reach an agreement in relation to the child’s weekend sporting activities from time to time but in the event the parties are ultimately unable to reach a joint decision, the mother is to make the final decision in respect of weekend sporting arrangements for the child for 2015 and 2016.

10. The child live with the father.

11. The child spend time with the mother during New South Wales school terms in a four weekly cycle as follows:

    11.1.In week 1 from after school Thursday until before school Monday;

    11.2.In week 2 from after school Friday until before school Monday;

    11.3.In week 3 from after school Thursday until before school Monday;

    11.4.In week 4, no time.

12. The child is to attend the Suburb I Community School for the duration of his primary schooling.

13. The mother shall use her best endeavours to ensure the child attends school on time and is collected on time when the child is in her care.

14. In the event that changeovers take place on a school day, changeovers will take place at school and when changeovers take place on a non-school day the parent with whom the child currently resides will deliver the child to outside the residence of the other parent who will wait inside their residence to collect the child.

15. The child spend time with his mother during New South Wales school holiday periods as follows:

    15.1.During the September/October 2015 holidays, for three (3) consecutive nights in each week by agreement, and failing agreement from 9.00am Monday until 9.00am Thursday.

    15.2.During the December 2015/January 2016 holidays as follows:

    15.2.1.For one period of four (4) consecutive nights by agreement and failing agreement from 9.00am, 21 December 2015 until 1.00pm, 25 December 2015;

    15.2.2.For one period of five (5) consecutive nights by agreement  and failing agreement from 9.00am, 4 January 2016 to 9.00am, 9 January 2016; and 

    15.2.3.For one period of six (6) consecutive nights by agreement and failing agreement from 9.00am, 18 January 2016 to 9.00am, 24 January 2016.

    15.3.During the April 2016 holidays, for six (6) consecutive nights by agreement and failing agreement from 9.00am, 11 April 2016 to 9.00am 17 April 2016.

    15.4.Thereafter, for one half of all school holidays by agreement and failing agreement, for the first half of the school holiday period in odd numbered years and the second half of the school holiday period in even numbered years.

16. The child spend time with his mother on the following occasions of special significance:

    16.1.On Mother’s Day from 9.00am until the commencement of school on the subsequent Monday;

    16.2.On the child’s birthday as agreed and failing agreement from 3.00pm to 7.00pm if the child is in his father’s care on that day.

    16.3.From 2016, on Christmas Day from 1.00pm to 1.00pm Boxing Day in even numbered years and from 6.00pm Christmas Eve until 1.00pm Christmas day in odd numbered years.

17. The child’s time with the mother be suspended on the following occasions of special significance:

    17.1.On Father’s Day from 9.00am until the commencement of school on the subsequent Monday;

    17.2.On the child’s birthday as agreed and failing agreement from 3.00pm to 7.00pm if the child is in the mother’s care on that day.

    17.3.From 2017, on Christmas Day from 1.00pm to 1.00pm Boxing Day in odd numbered years and from 6.00pm Christmas Eve until 1.00pm Christmas day in even numbered years.

18. School holiday periods are defined to commence at the conclusion of school on the last day of term and conclude at the commencement of the first day of the next school term.

19. The mother shall communicate with the child by telephone when he is not otherwise in her care on Monday and Wednesday between 7:00pm and 7:30pm.

20. The father shall communicate by telephone when the child is not otherwise in his care on Saturday between 7:00pm and 7:30pm.

21. The parties ensure that the child’s name remain on the airport watch list up until term 2 2016 but by the end of term 2 2016 the parties are to do all things necessary to remove the child’s name from the airport watch list.

22. From term 2 2016 school holidays, both parties will be able to travel internationally with the child upon conditions that:

    22.1.Three months notice is given;

    22.2.A full itinerary of the planned trip is provided to the other party three months ahead of the due date of departure;

    22.3.The parent travels in accordance with that itinerary unless an emergency requires a change to the itinerary;

    22.4.The other parent has leave on 14 days to apply to the court for orders preventing the specific travelling proposal;

    22.5.If either party requires the other party to give security for the return of the child, they shall give the other party written notice within one month of the date that notice is given pursuant to order 22.1 and the party wishing to travel shall:

    22.5.1.Provide to the other party evidence that there is equity in a piece of real estate (“the real estate”) sufficient to comfortably ensure the realisation of a sum of $30,000 upon a sale of the real estate;

    22.5.2.Deliver to the other party an unregistered mortgage in the sum of $30,000 against the real estate and the party receiving that mortgage will have the ability to lodge a caveat against the real estate.

23. Each party inform the other, in writing, of any change to his or her residential address not less than 24 hours prior to such change occurring and of any change to his or her telephone number within 24 hours of such change occurring.

24. Each party is restrained from physically disciplining the child.

25. Each party is restrained from making critical or derogatory comments about the other party or members of their family in the presence, or hearing of the child and the parties shall use their best endeavours to ensure no other party makes critical or derogatory remarks about the other party or members of the other party’s family in the presence or hearing of the child.

26. Either party be permitted to travel interstate with the child provided the travelling party provides 7 days written notice of such travel arrangements including dates and times of travel and a contact telephone number for the child whilst he is away and such time occurs within times that a party is to spend time with the child in accordance with these orders.

27. The parties shall engage in therapy with Mr E of Relationspace for four sessions to address communication issues between them, and each party shall:

    27.1.Within 7 days contact Mr E to arrange appointment times; and

    27.2.Pay half of Mr E’s fees, including his cost for giving evidence on 9 July 2015.

28. Within 7 days the mother pay to the Trust Account of Hamish Cumming Family Lawyers the sum of $950 (inclusive of GST) being the remaining sum owing to Dr F.

29. Within 28 days, the father pay his share of the costs of the Independent Children’s Lawyer being the sum of $7,720 (inclusive of GST).

30. The Independent Children's Lawyer’s application for costs against the mother be dismissed.

31. 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3111 of 2012

Mr Pabst

Applicant

And

Ms Dokic

Respondent

REASONS FOR JUDGMENT

1. These are final parenting proceedings between Mr Pabst (“the father”) and Ms Dokic (“the mother”) in respect of their child, B who was born on 1 January 2008 and is currently 7 and a half years old (“the child”). Immediately following separation the child was cared for primarily by the mother and spent varying periods of time with the father. On 23 March 2013 the child reported to the father that he had been struck across the face by his mother. The mother denies this incident and asserts the striking was accidental in an attempt to correct the child’s wild behaviour at a birthday party. Since that time, the child has lived with the father and currently spends time with the mother each weekend from 3.00pm Thursday until 6.00pm Saturday. The parents live 45 minutes to 1 hour away from one another. The child is currently attending a school near the father’s home.

2. The child has some serious developmental issues, the subject of medical treatment, including speech and occupational therapy.

3. The child is blessed with two good parents, who have different parenting styles. Despite engaging the assistance to date of an experienced family therapist, the parties still have major problems with their ability to communicate face to face, including in the presence of the child.

4. The hearing before me occupied five long days. Much of the history of the parties’ respective parenting, and interaction with one another and with professionals involved in the child’s life, was explored in detail. At the commencement of the hearing, the parents had proposals which were poles apart. The mother, throughout the hearing, sought an order that the child ordinarily live with her and attend a school that was close to her residence, commencing at the beginning of the 2016 school year. The father, throughout the hearing, sought an order that he have sole parental responsibility in relation to issues in respect of health and education.

5. During final submissions, after the hearing of all the evidence, the mother indicated that she had heard and accepted the opinions and recommendations of the family consultant. She agreed that the child should live with the father most of the time during school term, and continue at his current school, but on the basis that she maintained a real and active involvement in assisting the child to attend occupational therapy and speech therapy.

6. The father abandoned his position in relation to sole parental responsibility during final submissions and agreed to an order for equal shared parental responsibility.

7. By the end of final submissions there was only a small difference between the position of the father and the Independent Children's Lawyer (“ICL”) on the one hand, and the position of the mother on the other hand, regarding how much time the child would spend with the mother in a four weekly cycle during school term. All agreed that the child should spend from after school Thursday to before school Monday in week 1 and week 3 and no time with the mother in week 4. The mother proposed that the child spend from Friday after school to Monday morning in week 2. The father and the ICL proposed that it be from after school Friday to 3pm Sunday in week 2.

8. Because of the communication difficulties between the parties, particularly in relation to the child’s treatment which I refer to below, the parties agreed that the child’s paediatrician, Dr C (and I will order any subsequent paediatrician nominated by Dr C), give the parties direction in relation to issues in relation to speech therapy or occupational therapy in circumstances where the parties are unable to reach agreement in respect of issues relating to that therapy between themselves.

9. Both the child’s speech therapist and occupational therapist have indicated that they are no longer in a position to continue providing therapy to the child and new therapists will need to be found. The father and the ICL seek that a specific order be made that Ms D (“Ms D”) be the child’s new speech therapist. The mother agrees to that order on conditions, firstly, that the speech therapy not take place during school hours (so that the child does not miss school time; Ms D has private rooms at Suburb G) and secondly, that it take place either on a Thursday afternoon or a Friday afternoon so that the mother can be involved in taking the child to that therapy (on at least two out of every four weeks).

10. There have historically been some problems in relation to the mother getting the child to occupational therapy on all occasions, and taking the child to school on time on some occasions, over an 18 month period. The mother has indicated that she understands that she needs to prioritise her departure time from Suburb H so that she ensures that she allows for being delayed in traffic.

11. Whilst the mother belatedly conceded that the child should go to the Suburb I Community School, the mother suggested that that order be able to be reviewed after a period of two years without the need for her to show significant change in circumstances. I indicated to the mother that I would not entertain a suggestion that she be able, unless there was a significant change in circumstances, to bring a further application about the child’s primary school within a period of two years. The father agreed that there could be a review in relation to the child’s high school in the event that the parties were unable, at that time, to otherwise mutually agree as to what high school the child should attend. It is the father’s current position that the child should continue at the Suburb I Community School which has classes for kindergarten through to year 12.

12. Because of the way the positions of the parties dramatically changed at the final stage of the hearing, the different positions of the parties in relation to the child’s sporting activities were not fully explored.  The child will be involved in swimming in the summer and either soccer or rugby in the winter. In relation to the child’s football, the father proposes that he be involved in a team in his local area. The mother proposes that the child be involved in a team in her local area.

1. The parties continue to disagree about the mother being able to travel overseas with the child. The father wants the child to remain on the airport watch list and for the mother to be restrained from removing the child from the country. The father has concerns that the mother is a flight risk. Counsel for the father indicated that if overseas travel was allowed, security of up to $30,000 was requested by the father. The mother has indicated that she would be prepared to offer $30,000 security against real estate of her mother, brother or father to secure her return to the country with the child.

2. When the child is not being delivered and picked up from school, the father wishes changeovers to be at a McDonalds Restaurant. The mother wishes changeovers to be at the respective homes of the parties.

3. Unless I otherwise discuss an issue in these reasons, the orders that I make represent a consensual position of the parties by the end of the hearing (even though they may have adopted a different position at the commencement of and throughout the hearing).

DOCUMENTS RELIED UPON

1. The documents relied upon by each of the parties and the ICL are set out in Schedule 1.

SHORT HISTORY

1. The father was born in 1975 and is currently 40 years old.

2. The mother was born in 1975 and is currently 40 years old.

3. The parties were in 2004.

4. The child was born in 2008 and is currently seven and a half years old.

5. The parties separated on 10 July 2009.

CREDIT

1. Neither party made any submission in respect of credit.

2. Both parties gave evidence in a straightforward manner and both made concessions against their interests from time to time. Where the parties had a very different view of a particular event or issue, I accept that it is their genuine memory or belief as opposed to a deliberate attempt to mislead the court.

3. Where the parties’ evidence differed on important matters, on some I preferred the version of the father and on others preferred the version of the mother. Two examples are that I did not accept the mother’s version of how the child sustained the injury that he did to his face on 23 March 2013. I did not accept the father’s version of his involvement in the incident at the disco at the school in 2015, particularly where his version differed from the contemporaneous file note created by the deputy principal in school records.

4. At the end of the day I am no longer being asked to make a determination about whether or not an order for equal shared parental responsibility is made and I am not being asked to make a decision about where the child ordinarily lives or goes to school. It is consequently no longer necessary to examine in detail the many events and issues that were raised throughout five days of the hearing.

THE CHILD’S DISABILITIES

1. The Disability Services Unit (“DSU”) assessed the child on four occasions. A summary of their diagnosis and recommendations on each of those occasions is as follows:

   26.1.Following an assessment on 10 December 2010 the child was diagnosed as having an overall global developmental delay falling within the mild rage, with particular difficulties in language and social communication. It was noted that the child presented at the observation with features keeping with an autism spectrum disorder (language delay, poor eye contact, and tendency to play on his own). It was recommended that the child’s preschool apply for additional funding to increase the child’s support, that the child increase his preschool days, and a follow up observation occur in the following months. It was also recommended that the child continue speech pathology and attend occupational therapy, and have a follow up with Dr C and a Dr J.

   26.2.Following an assessment on 25 August 2011 the child was diagnosed with an autism spectrum disorder. This was based on his level of eye contact, facial expression and gesture to regulate social interaction and compensate for his language delays. It was recommended that the parties access FaHCSIA funding, speech therapy and other early intervention services. The parties were recommended to apply for a carer’s allowance, continue the inclusion of the child’s preschool and to continue consulting with Dr C.

   26.3.The child was again seen on 22 October 2012, 15 November 2012 and 29 November 2012. It was noted that results from testing and observations suggested his intellectual abilities were not within the disability range but that he would still struggle with his same aged peers. The DSU opined that the child’s past social engagement and behaviour might have been influenced by his parents’ separation. It was noted that his current skills suggest strengths in areas that are unexpected for children with autism. It was recommended that the child would be old enough to go to school the following year but that it would be better for him to start in 2014. Speech and language assessment for the child was recommended prior to the child starting school. The DSU also recommended the child commence school in a mainstream class and that there be consistency of routines and discipline strategies across home environments.

   26.4.A fourth assessment was undertaken over August and October 2013. The child was diagnosed with a speech and language disorder . This assessment showed low average nonverbal thinking skills and extremely low verbal thinking skills. The DHS recommended that the child obtain an eye review (due to recent continued rubbing of his eyes), ongoing consultation with Dr C, continued speech and occupational therapy, and ongoing psychological help to assist the child adapt to changes in his family life and develop resilience and confidence at school.

2. There is an inconsistency between the child’s first semester 2014 school report and what the teacher actually thought was recorded in the parent/teacher interview with the mother. The school report, while recording that the child is at a basic level in relation to a large number of achievement scales, concluded as a general comment:

   [The child] has settled well into the class and is beginning to show some progress. He has a positive outlook and attitude in the classroom and is a hard working student who is keen to do his best. He usually follows classroom rules and shows enthusiasm for classroom activities. He is kind and helpful to his peers. He is well prepared each day and is an active participant in all aspects of school. [The child] is a valued member of our class.

   (page 261 of the annexures to the mother’s affidavit)

3. However, the child’s school teacher in a note she made arising from a parent/teacher interview with the mother shortly after records the following:

   Recommend [the child] continues with OT and speech therapy. He needs as much support in all aspects of school that he can be provided. He finds the classwork difficult. Does not contribute. When he does, completely off topic. Cannot do tasks independently. Copies from board etc. cannot continue without teacher’s input. Struggles with friendships – ok in class – playground wanders around by himself. Will stay around teacher on duty.

   (page 93 of the ICL’s tender bundle)

4. In general terms, the father accepted in cross examination that firstly the recommendations made in the various DSU reports were implemented and that secondly, the mother was the person primarily responsible for organising the implementation of those recommendations. The first assessment took place on 10 December 2010. This was after the separation in 2009 at a time when the child ordinarily lived with the mother. The second assessment took place on 25 August 2011 and again the child was ordinarily with the mother. The third assessment took place in October and November 2012 and again the child was still ordinarily living with the mother. After the incident in March 2013 the child went to live with the father and the final assessment in August and October 2013 was done when the child was with the father. Notwithstanding that, the mother still took on the role of being the person primarily responsible for implementing recommendations in respect of an eye review, ongoing follow-up with a paediatrician to monitor developments and constipation, continuing speech therapy, continuing occupational therapy, and ongoing psychological support to have the child adapt to the changes in his family life and develop resilience and confidence at school. In relation to the last recommendation, the mother organised for the child to go to K Group.

5. Overall, the father conceded that there was a reasonable degree of cooperation even after the child came into his care in relation to general implementation of recommendations by the disability services unit.

6. When the father signed the enrolment form for the child to enter primary school, he left blank the question which asked whether or not the child had any special needs. At that time the father had in his possession three reports from the DSU detailing diagnosis and recommendations which would point to the child having significant special disabilities in terms of speech and learning. The child was at that time accessing speech therapy; occupational therapy and psychological help. The father however said he did not recognise those as being special needs.

7. In early 2014 when the child started school, he had a conversation with the principal and generally described to the principal the difficulties the child had and the school principal indicated that it would be a matter for the class teacher to make recommendations from time to time as to what interventions the school should contemplate to deal with the child’s needs. The father took the view that the child’s therapy should be suspended at that time.

8. The father also initially refused to take the child to family therapy with Mr E. The father indicated that he believed there was no court order requiring him to do so. Ultimately both the parties and the child have had extensive family therapy with Mr E. Mr E gave evidence that no order should be made for the continuation of that family therapy apart from a specific order which I refer to elsewhere in the reasons.

9. During the hearing, it was the mother’s position that the father had not been diligent in attending to the child’s speech therapy and occupational therapy homework. The father in response said that the mother had not kept him fully informed at all times as to the identity of the child’s therapists.

10. There have been a surprising number of speech therapists for the child over the period of the last few years. Some have given reasonable explanations for concluding their services but for others, I am less sure as to why a particular therapist ceased to provide therapy.

11. I find that the mother has been more intensely focused on ensuring that the child undertakes the work that has been requested by a therapist. The father has a far more relaxed parenting style and although it is clear that he does put time into the child doing his exercises and homework, he has been less diligent than the mother has been (which is not to say that what he has done has been inadequate). The father for example took the view that the child would benefit from not doing his speech exercises during school holidays and there have been periods when the child was in his care where the child has gone weeks without doing exercises.

THE TIMELINESS OF THE MOTHER GETTING THE CHILD TO SCHOOL

1. An issue was raised during the hearing as to the timeliness of the mother getting the child to school. The school records are in evidence. Over a period of about 18 months, there have been 11 occasions where the mother has not managed to get the child to the school gate before the commencement bell sounded. The mother accepted in the context of her evidence that the child is teased at school. Arriving at school late is an additional embarrassment for the child that should be avoided if at all possible. The mother explained that on occasion she was late because she was doing the child’s speech therapy and occupational therapy homework/exercises with him in the morning prior to making the journey through Sydney traffic to the child’s school (which has on occasions delayed her getting the child to school on time). She appreciated that all but one incident of lateness would have been eliminated had she left home half an hour earlier. She indicated that she had taken that lesson on board and it should be anticipated that the child’s lateness to school will be eliminated. Similarly, there have been occasions where the mother has not got to school on time to pick the child up from after school. She has had conversations with her brother for whom she works and again has organised to leave work half an hour earlier so she can ensure that she is there on time when school finishes.

STATUTORY CONSIDERATIONS

1. Given that I propose to make an order for equal shared parental responsibility, the provisions of s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) are triggered and there is a mandatory requirement for me to consider equal time and if not ordered, then substantial and significant time.

2. Neither party proposes equal time and I consequently do not need to further consider it (SCVG & KLD (2014) FLC 93-582 at [79]-[81]). The mother’s proposal in relation to the time the child spends with her during school term is marginally closer to an equal time arrangement than is the father’s (11 out of 28 nights).

3. Both parties propose that the child spend what would respectively be defined by s 65DAA(3) of the Act as significant and substantial time with the mother. The question to be determined is whether or not the time in the second week of the four week cycle to be spent with the mother should conclude at 3.00pm on Sunday, or Monday morning before school.

4. The differences in the parties proposals for substantial and significant time need to be resolved pursuant to s 65DAA(2)(c) and (d) of the Act, namely, whether one proposal as opposed to the other would be in the best interests of the child and whether or not one proposal or the other would be reasonably practicable having regard to the considerations in s 65DAA(5) of the Act.

5. Section 65DAA(5) of the Act says that in determining whether it is reasonably practicable for a child to spend substantial or significant time with each of the child’s parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

6. Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

7. Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests. These considerations are informed by the objects and principles set out in Part VII of the Act.

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a))

1. The child will benefit from having a meaningful relationship with both the child’s parents. Up until March 2013 the mother was unquestionably the primary carer of the child and the person with whom the child had a primary attachment. As at the date of separation, the child had a significant attachment to the father and from March 2013 that attachment to the father has developed further. The family consultant indicates that the attachment between the child and the father is slightly superior to that with the mother but the child’s relationship with both parents is very meaningful and important to him.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

1. The main risk to the child is of psychological harm arising from the current level of conflict between the parents, which on a number of occasions in the past has been displayed openly in front of the child. Both parents have on occasions demonstrated an inability to restrain themselves, notwithstanding the therapeutic assistance the parties have had available to them.

2. An example of the mother not being able to restrain herself was an incident on 23 January 2014. The father and the child had been at the beach all day. When the mother arrived at changeover, there was a discussion between the parties about why the father had forgotten to bring a book that the child had brought with him from his mother’s house, so that it could be given back to the mother on changeover. A heated argument quickly developed. The father’s version is that he was totally calm during the whole argument. I have some difficulty in accepting that. There is no doubt that the child was significantly affected by the argument between the parties. There is also no doubt that the mother became quite upset with the father. This all happened when the parties were out of their cars. The child was so affected that it is agreed that he went back and sat in his father’s car. In fact, all of the parties ended back in the father’s car. The father alleges that the mother was still agitated and was yelling at him whilst she was in the car. The father called the police for assistance. The father says the police arrived 10 minutes later. The mother says it was a period of about three quarters of an hour to one hour later. The police record indicates the father’s memory is to be preferred. By the time the police arrived the mother was clearly quite agitated. The following is an extract from the COPS entry in relation to the incident:

   While at the location the mother has allegedly been quite aggressive towards the father causing the child to be scared and start crying. The child has then ran back to the father’s motor vehicle and hid inside. The mother and father have began to have an argument. Whilst the father was comforting the child the mother began to start yelling and abusing the father in front of the child causing the child to cry (clearly that is the father’s version of events to the police). The father has then contacted the police who arrived a short time later (this confirms the father’s 10 minutes as opposed to the far longer period as alleged by the mother). On arrival the police spoke with both parties. The father stated that the mother was acting quite aggressive as stated above. Whilst at the location the police spoke with the mother who was quite loud and irritatingly yelling at police and the father. The police stated ‘Mam you need to calm down and stop yelling, you have to think what your child is going through at this time he does not want to listen to his parents aggressively arguing at each other every time they meet’. The mother immediately started talking over the police saying ‘I’m not yelling this is how I usually talk, why should I change who I am he started this’. The police informed the mother again that she would need to try and be respectful with the father whilst the child is around for his sake.

3. This is objective evidence of the mother’s inability in January 2014 to control her anger when highly stressed and in particular to control her anger in the presence of the child.

4. An example of both parties being unable to restrain themselves from conflict in relation to the child is the incident that happened on the first day of the child’s schooling which ended in the father being told to leave by the deputy principal and told that the school did not want either of the parents at the school together again when it was not their time under the orders.

1. The parties have made a spectacle of themselves at both the school discos in 2014 and 2015. The father was aggressive to the mother in 2015 and I accept as objective evidence the note made by the deputy principal:

   Last night at the … disco, [the mother], [the child’s] mother approached me near side gate near hall, very upset. She began talking about [the father], [the child’s] dad and next minute [the father] was standing next to me. He commented that [the mother’s] tears were all an act. He had an orange, bronze? camera with him and held it up, talking about photos?

   I asked why he was there as Thursdays are [the mother’s] day. He said [the child] wanted him to come. I explained that parents are not invited and he should leave as [the child] is [the mother’s] responsibility tonight. He was aggressive towards [the mother]. [The mother] kept saying it was ok for him to be there, but as she was so distressed and [the father] appeared “cross” with [the mother] I believed in the best interests for them both, for [the child], who was already inside the hall, and other parents and students in the surrounding area, for [the father] to leave. I asked him to leave and said again that [the mother] was responsible for [the child] on those days. [The father] was reluctant to leave and kept talking to [the mother] – not sure what about. I said I would have to call police if he did not go.

   [The father] did leave and [the mother] went and sat in her car.

2. The mother tendered in evidence a series of text messages from the father, some of which indicated a lack of respect and courtesy to the mother. The parties need to learn to be respectful of one another’s views and acknowledge that the two of them have very different parenting styles, both of which offer considerable advantages to the child.

3. The parties have agreed to have four concentrated sessions with the family therapist with whom they have been involved with over the last few years, to develop some business like rules which they both say they intend to attempt to live by in the future to minimise the psychological risks to the child that would flow from their continuing high level of conflict, particularly in front of the child.

The additional considerations

Child’s views (s 60CC(3)(a))

1. Given the age of the child, I do not place any significant weight on any expressed view of the child.

Relationships of the child with the parents and other persons (s 60CC(3)(b))

1. The child has a close and loving relationship with each of his parents.

2. Since separation the father has resided with the paternal grandmother and paternal aunt.

3. I got the general impression from the paternal aunt that she does not have a great involvement with the child and leaves all matters of parenting to the father in the household. Similarly the paternal grandmother seems to leave most of the parenting to the father. The paternal grandmother had adequate but not fluent English and had the view that the child should ordinarily be with his mother but circumstances in this case had intervened to mean that that was not best for the child.

Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child,  and to spend time with and communicate with the child (s 60CC(3)(c))

1. The father conceded that the mother was primarily responsible for making decisions about major long term issues in respect of the child’s disabilities during the period of time that the parties lived together. That situation continued up until March 2013 and the mother continued to be the person primarily responsible for taking decisions about therapies and treatments for the child and the father simply went along with those decisions (sometimes being fully informed about them and sometimes not). Since March 2013 both parties have taken some unilateral decisions without proper consultation with the other.

Extent to which each parent has fulfilled their obligation to maintain the child (s 60CC(3)(ca))

1. No issue in relation to financial support for the child was raised during the hearing.

Likely effect of any change in the child’s circumstances (s 60CC(3)(d))

1. Whilst this was a major issue throughout the hearing, the position taken by the mother in final submissions substantially eliminated it as being one. It was agreed the child would continue to mostly live with the father during the school term week and continue at his current school. This has the advantage of eliminating any possible effect of change on the child arising from a need to settle into a new environment and new school, and to leave old friends and attempt to make new ones. The change that the mother had proposed would have been a challenge for the child given his disabilities. The mother says that the child is bullied or teased as a result of his height and the way he speaks. Whilst he has made friends at school, it has been a challenge for him. He will not now need to re-establish those networks at a new school.

Practical difficulties and expense of the child spending time and communicating with a parent (s 60CC(3)(e))

1. The main difficulty arises from the fact that the parties reside 45 minutes to an hour (depending on traffic) apart. Apart from the occasional lateness and some angst over the location of changeover when the mother moved from Suburb L to Suburb H, the parties have been able to manage the difficulty posed by the distance they are apart. The orders sought by the mother, if made, would substantially eliminate face to face contact between the parents which has, on occasions, led to difficulties. As indicated, the parties have also agreed to a further round of family therapy to facilitate, amongst other things, their face to face contact at changeovers when that is necessary.

The capacity of each of the parents (and any other person) to provide for the needs of the child, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s 60CC(3)(i))

1. Each of the parents have a strong capacity to provide for the needs of the child including emotional and intellectual needs. Both parents have a commendable attitude to the child and the responsibilities of parenthood.

2. The main area where the parties fall down arises from their inability to control their behaviour, particularly in front of the child when the current level of conflict and bitterness bubbles to the surface.

3. The father found it difficult to describe positive features of the mother’s parenting capacity. The mother was more generous saying that the child loved the father and the father loved the child. She also said that the child was enthusiastic about various outings that he went on with the father, and that she had no issue with the father’s capacity to cater for the child’s physical needs. The mother however thought that the father’s attention to the child’s education needs was poor and to the child’s health/medical needs was below average.

4. There was some objective evidence that would indicate that the mother was far more focused on the child’s education needs than the father who took a more relaxed approach to these matters. That evidence included the fact that although the mother had a parent teacher interview on 5 June 2014, the father did not organise one until 21 July 2014. The father’s explanation as to why it had taken him almost two months to organise a parent teacher interview in circumstances where the child was at that time having difficulties at the school, was not satisfactorily explained by the father. The mother tendered in evidence the reading diary which indicated that the mother read to the child on a far higher percentage of occasions than did the father. The paternal grandmother and the paternal aunt gave evidence that the father read to the child every night. If that is so, the father is very tardy in recording what he has done. The father indicated he understood the need to keep a proper record so that the therapist and the mother new what homework was being done. When questioned about no entries being in the reading diary for the father in June 2015 (apart from 1 and 2 June 2015), the father said that he may have missed reading with the child one or two nights.

5. The father received Dr F’s second report in August 2014. He knew that report recommended a gradual increase in school holiday time to the mother. Four sets of holidays have now gone past since that time and the father has not offered any block time during school holidays at all but has maintained the current order in relation to weekend time during school holidays. The father’s explanation that he was “simply following orders” is less than satisfactory.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

1. Not applicable.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

1. Not applicable.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

1. There is currently no risk of any continuing family violence in this matter.

2. There have been incidents of family violence by both the parties in the past.

The mother

1. The seminal and dramatic incident in the history between the parents took place on 23 March 2013. It has had profound consequences in respect of the caregiving of the child. 

2. The mother says that she took the child to his friend M’s birthday party on 23 March 2013. While at the party the child started pushing the birthday boy. The mother asked the child to stop. The child refused and kept pushing him. The birthday boy remonstrated with the child, asking him to stop pushing him. The mother again asked the child to stop but he would not. The child started throwing things that were around him.

3. This behaviour by the child was consistent with behaviour that N preschool had observed in the child for a couple of months prior to this incident.

4. The mother agrees that she was embarrassed and upset by the child’s behaviour. She told the child that they were going to go home because he was not listening to her and because he was not wanting to play nicely. The mother says at that point the child started to act wilder. As the mother was walking towards the house to get her bag from the inside, the child started running towards her yelling and screaming saying “I don’t want to go home”. The mother got her bag and said goodbye to everybody at the party. In order to leave the backyard the mother and child needed to go through a laundry. When going through the laundry, the child threw himself on the floor on his back. The child started kicking and throwing his arms around, twisting and turning and screaming. The mother tried to ask him to stop but was unsuccessful. The mother tried to encourage the child to get up. The mother says that the child kept kicking and screaming. She says she bent down to grab the child’s arm so that they could leave. The mother said she was afraid that the child was going to hurt himself and he was continuing to behave wildly, twisting, turning and kicking with his back on the floor. The mother says “Because of his wide and swift movements, my hand landed on [the child’s] face, instead of his arm. [The child] stopped briefly”. The mother says as soon as she hit the child on the face she apologised to him. She says that the child did not say anything. The mother said she then turned to start walking towards the front door; the child got up off the floor and followed her out but was still screaming and pulling at her. The mother denies that she intended to smack the child on the face. The mother says that the child was on the floor throwing a tantrum for about 5 or 10 minutes before the contact with his face took place. The mother asserts that once they got into the car the child was calm. The mother then says that she telephoned the father and asked where he was and because she had left the party with the child, was not sure whether to go home prior to changeover. She told him that the child had been misbehaving significantly and that they would need to talk to make sure it did not happen again in the future. The mother said she saw two reddish patches on the side of his face and was not sure if they were a result of him throwing himself on the floor or whether they were a result of the mother hitting him (she says accidently).

5. The father says that when he took the child home his face felt very hot and the markings were “angry and inflamed looking”. He became concerned about welt marks that were appearing and took the child to Suburb O Medical Centre to be examined by a doctor. The child told a GP at the medical centre that “mummy smacked me in the face”. The paternal aunt took the child out of the room and the doctor informed the father than he had mandatory reporting obligations. The doctor then telephoned Suburb P Hospital emergency department and told them “I have a suspected child abuse case…I am sending them now”. The doctor directed the father to go to Suburb P Hospital emergency department with the child and the father was given a letter for the triage department. The father and paternal aunt took the child to the emergency department. The child again told the triage nurse “mummy smacked me in the face”. The nurse told the father she had to report this to DoCS. A female doctor observed the child at the hospital and found marks on his forearm and his shoulder. The doctor told the father the marks on the child’s face looked like a hand print. DoCS arrived at the hospital at 11.30pm and interviewed the father separately from the child. The child was also interviewed. The father does not indicate whether anything arose from those interviews or whether DoCS took the matter any further. I conclude they did not.

6. The mother when she was in the witness box demonstrated how the contact took place. The mother is right handed. She attempted to, she says, make contact with the child’s arm with her left hand. Her left hand came into contact with the right side of the child’s heads. 

7. Although I do not have any expert evidence, given the description of the marks on the child’s face by the doctor at Suburb P Hospital, it is inherently unlikely that the injury took place in the way the mother has said. In order to leave a mark of that nature on the child I infer that a reasonable degree of force was used in the slap to the child’s face. I do not find that the mother is telling the truth in relation to the force she used.  

8. The mother conceded that she was embarrassed and upset during the birthday party. She also conceded that she was ‘stressed out’.  The mother conceded that on occasions she lost her temper when stressed. On this occasion, the mother had become angry and lost control when hitting the child. The mother has never acknowledged that is what happened.   

9. I am relatively confident that that type of behaviour will not repeat itself. There have been no reported incidents since this time and the mother has indicated that she has had counselling and involved herself in meditation to attempt to deal with her anger when put under high stress.

10. Another example in 2013 of the mother losing control was when she made a telephone call to the father during which, amongst other things, she threatened that she would take her own life and also threatened that she would kill the paternal grandmother. When the police contacted her about these threats, the mother readily admitted to the police that she had made them but said they were said in anger and she did not actually have any thought of suicide or intention to harm the maternal grandmother.

The father

1. The mother talks of an incident that she recalls happening on 25 July 2008 where she was in the kitchen putting dishes away. She asserts that on that occasion the father pushed her hard and she slid on the marble tiles and hit her rib cage against the dishwasher door. She said she was in a lot of pain for around 10 days and found it very difficult to breath. She went to her doctor to check whether or not her ribs were broken and undertook an x-ray. She did not tell her doctor the cause of her injury because she was embarrassed. The father agrees that the mother fell. His explanation was that she was wearing thongs and she tripped over her feet. I am unable to say whether the mother’s injuries were as a result of family violence by the father.

2. The father agreed that notwithstanding the fact that he has access to motor vehicles through his employment, he did restrict the mother’s use of a motor vehicle but only after he found out that her licence had been cancelled. This happened close to the date of separation.

3. On 10 July 2009 an incident took place between the mother and the father which ultimately led to the separation of the parties. There is no dispute that the police were called to that incident. The father had left the home prior to the police attending. The police took a statement from the mother. As a result of that statement the police charged the father with common assault and commenced proceedings for an apprehended violence order. There is no dispute that ultimately the mother wrote a letter to the police saying that she did not wish the charge against the father to proceed. That letter did not have the effect of terminating the court proceedings against the father. The police proceeded; the mother gave evidence in the witness box; she cannot remember the evidence that she gave but the charge against the father was dismissed and the AVO proceedings were dismissed (which is what her intention was).

4. The mother was cross examined about inconsistencies between statements that she made to the police on the night and then in the letter which became Exhibit 8, and the evidence the mother gave in her affidavit in these proceedings.

5. The signed police statement that was given by the mother on the night was not tendered into evidence but the COPS entry in relation to this incident is in the ICL’s tender bundle (exhibit 4, pages 21 and 22). The version contained in the ICL’s tender bundle is in the following terms:

   The mother was putting [the child], who was then 18 months old, to bed. The father was sitting on the bed at the time. The mother said to the father, ‘Stop being lazy’, due to him not helping with the child. The father replied, calling the mother several names. The mother could not remember what they were when she was talking to the police. The mother retaliated and called the father several names (again she couldn’t recall what they were). There were no threats made at that stage. The father became more aggressive and said to the mother ‘I will smash your head in if you don’t stop it’. The mother replied, ‘Look don’t threaten me’. The father then stood up off the bed. He said to the mother ‘Leave, go to your parents’. The mother replied, ‘I am not leaving, you started this, you started threatening me’. The father then pushed the mother in the chest with his finger in a poking motion, then pushed her with his open hand. The father is a large person, so the push felt like a ‘punch’ to the mother. whilst he did this he said ‘Get out of here, I’ll look after him’. The father’s face then became more aggressive and intense looking. He said to the mother ‘I will make you a paraplegic’. The mother then left the room and called the police. The baby was screaming during the argument. The father started throwing unknown items around the home at this time. The police arrived soon after and took a statement from the mother. The father had already left. The mother was not injured. The police report that she appeared in shock however was not crying. The police applied for an urgent AVO which was granted by a magistrate.

6. The mother’s version in her affidavit (at [73] – [75]) is in somewhat different terms to the statement that the police have summarised in the COPS entry from the night. The COPS entry does not record that when the father pushed the mother she was against a wall. The mother was asked questions about that apparent inconsistency between her affidavit and what she told the police on the night. I do not place any weight on the fact that the COPS entry does not record the words “against a wall”. The mother was also asked questions about what was in the letter that she wrote in order to have the proceedings stopped (Exhibit 8). In that letter she said her husband had not physically hurt her; that it was just a husband and wife argument and that she had not intended for her husband to be arrested (which he subsequently was). The mother does confirm in that letter however that the father did threaten to put her into a wheelchair during the argument. She also confirmed that that upset her. She said however that she knew he would not do that and she had absolutely no fear whatsoever that he would. The letter said that she believed the police had gone too far and that she wished to have the matter withdrawn. That letter was written on 4 December 2009 (the incident happened on 10 July 2009).

1. The father denies that he actually came into physical contact with the mother at all on this occasion. Counsel for the father said that given the evidence about what happened in the subsequent criminal proceedings, it would be unsafe to make any finding in relation to what happened on that night. In terms of a physical assault, I accept that is so. I do find however that whatever happened on that night, the father frightened the mother by the aggressive manner in which he behaved.

2. There is evidence that I accept which indicates that the father acted in an aggressive way on three other occasions.

3. Firstly, at [109] of the mother’s affidavit, she relates an event that took place on 5 October 2013 at a changeover where the parties had an argument. The mother asserts that because the child was under the impression after changeover that his father was going to take him to Luna Park, when he found out that his father was not going to take him to Luna Park he started to cry and threw a tantrum. The mother alleges that the father approached her and blamed her for creating a situation where the child had become upset. The father indicated in his oral evidence that he did not say it was the mother’s fault but he did ask her what she had said to the child. I accept the mother’s version is probably what happened. That is, the father was confronted with the child who was throwing a tantrum and blamed the mother for delivering the child to him with expectations that he might be going to Luna Park. The father also conceded that on this occasion as the mother was trying to leave in her motor vehicle, he knocked on the window. The mother’s version is that he hit the window with his fist. I accept the mother’s version that the father did more than knock on the window of her motor vehicle as she attempted to leave.

4. Secondly, the mother says that in June 2013 there was an argument at McDonalds Suburb Q at a changeover. The father agrees. The mother says that the father positioned his car when she was trying to reverse from the parking lot to block her car. The father agrees that he did that. Again, that is an aggressive act by the father. The father cannot remember what the argument was about. The mother says the father became angry because she was late to changeover. I accept the mother’s version about that.

5. Thirdly, as set out above, the father acted in an aggressive manner towards the mother on the night of the 2015 school disco where the deputy principal threatened to call the police if the father did not leave the school premises.

6. Given the incidents to which I have referred, I find that on occasions both parties have had a capacity to lose control over their emotions and behave badly. This history of low level aggression by both parties underpins and fuels the intensity of the conflict between them.

7. Most of the conflict has happened against the backdrop of this continuing litigation and it is possible that the finalisation of these proceedings might create an opportunity for the parties, with the assistance of some further family therapy, to enter a new era of respectfulness to one another as the parents of the child.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

1. The mother’s application to revisit the issue of where the child goes to school after two years has the capacity to lead to unwarranted further proceedings and I indicated that I would not be prepared to make that order. The father withdrew his application that I determine which high school the child should attend. Whilst doing so risks further future proceedings, on balance, it is in the best interests of the child to allow the parties to exercise the responsibilities given to them by the order for equal shared parental responsibility.

Any other relevant fact or circumstance (s 60CC(3)(m))

1. Not applicable.

CONCLUSION ABOUT BEST INTERESTS AND PROPOSED ORDERS

Time

1. It is agreed an order be made for the child to have substantial and significant time with the mother. I am asked to choose between an order, in a four week cycle during school term, in week 2 either from after school Friday to Sunday 3.00pm, or from after school Friday to the start of school Monday. The former is proposed by the father and the ICL and the latter by the mother. The father’s proposal would see the child being with the mother for ten nights out of 28 (which is exactly what is proposed by the family consultant). The mother seeks one extra night (11 out of 28). The difference is almost non-judiciable. The father’s proposal would involve a face to face changeover. The mother’s proposal means she has to negotiate Monday morning traffic. As I have said above, the mother’s proposal is marginally closer to equal time than is the father’s. I find it is in the best interests of the child and it is reasonably practicable for the mother to deliver the child to school on Monday morning in the second week.

2. As already indicated, the child is to go to the Suburb I Community School until he completes his primary education. I note the father wishes the child to continue at that school for his secondary education but the mother does not want that confirmed by any order as she wishes to retain the flexibility of proposing a different high school at that time. The father agrees that that flexibility should be maintained and that they will, in exercising equal shared parental responsibility, reach a joint decision about the child’s high school at the relevant time, and if they are unable to reach a joint decision, they will need to seek a further order.

3. The father originally wished that changeovers that involved the parties coming into face to face contact with one another happen at McDonalds. The father conceded in evidence that a workable arrangement would be that the parent with whom the child was living at the time deliver the child to the residential address of the other parent. There is some evidence that this has happened on occasions. Delivery back to the residence of a parent has the virtue of people not having to wait around in neutral locations. It is agreed that delivery be to the outside of the property and that the parent who is receiving the child will wait inside the boundary of their property.

4. The father asks that the current airport watch list order not be changed and asserts that it is his view that the mother is a potential flight risk. The father asserts that the mother has substantial connections with persons in Europe, particularly in Country R and Country S (both of which are members of the Hague Convention). The father asserts that if the mother permanently relocates with the child to one of those countries, it may be difficult to retrieve the child.

5. The mother has no substantial property in Australia. However, her mother, brother and father do. Although her father lives overseas, her mother and brother live in Australia. The mother has lived in Australia all her life except for two years between the ages of four and six years old. She is employed by her brother in Australia and lives rent free in her father’s property in Australia. The mother has indicated she would be prepared to offer real estate to secure the child’s return to Australia. Counsel for the father indicated that security in the sum of $30,000 would be appropriate if an order was going to be made which allowed the mother to travel internationally with the child.

6. The evidence and submissions in relation to the mother being a flight risk were not of any strength. I do not judge the mother’s current concern about the father’s parenting as something that would motivate the mother to give up her Australian residence. Any feeling of injustice that the mother had arising from the circumstances around what happened after March 2013 in respect of the change in the primary caregiving for the child has abated and that is not the current focus of the mother. The mother is aware of the current support services available in this country for the child who has a need for them and has accepted during this hearing that removing him from his settled routine at his current school could be detrimental to the child’s wellbeing. I do not believe that the mother would put the child at risk in that way. The maternal grandmother supported the mother by being present throughout almost all of the hearing. There is no indication that the maternal grandmother intends to relocate and a permanent relocation by the mother overseas would mean that she would lose the current contact that she has with her mother.

7. There are benefits that would flow from the child being able to travel internationally with both parents. The mother does not oppose the father travelling internationally with the child.

8. From term 2 2016 school holidays, both parties will be able to travel internationally with the child upon conditions that:

   102.1.Three months notice is given;

   102.2.A full itinerary of the planned trip is provided to the other party three months ahead of the due date of departure;

   102.3.The parent travel in accordance with that itinerary unless an emergency requires a change to the itinerary;

   102.4.The other parent have leave on 14 days to apply to the court for orders preventing a specific travelling proposal;

   102.5.If either party requires the other party to give security for the return of the child, they shall give the other party written notice within one month of the date when notice is given in accordance with paragraph 102.1 and the party wishing to travel shall:

   102.5.1.Provide to the other party evidence that there is equity in a piece of real estate sufficient to comfortably ensure the realisation of a sum of $30,000 upon a sale of the real estate;

   102.5.2.Lodge an unregistered mortgage in the sum of $30,000 against that real estate and ensure that the party receiving that mortgage have the ability to lodge a caveat against the real estate.

9. It is appropriate that both parents inform the other, seven days ahead of time, if they intend to take the child out of the State.

10. The mother has proposed that the child commence soccer with the Team T or rugby with the Team U. Both parties agree that the child is eager to commence one of those sports (probably not this season however). The mother has made inquiries about these two teams without any consultation with the father. The father’s position is that he would prefer the child to be involved in a sporting team that is based closer to his residence if the child was going to reside with him. He has also made inquiries unilaterally.

11. There are advantages and disadvantages to each proposal. The child is going to be with the mother on three weekends out of four and if sport happens on Saturdays, there is an argument that the child should be involved in a sporting team closer to where the mother lives to avoid two hours of travel on three Saturdays out of four. There are two disadvantages. Firstly, it is less likely that the child will know the other members of his sporting team ahead of time (who might be otherwise members of his class or go to his school) and secondly, training may take place on a weekday afternoon and the mother may have difficulty getting the child to training in her area. The mother says that the child knows children who are in sporting teams who play soccer at the park that she takes him to when the child is with her. The mother also asserts that she has information about teams that train prior to the game.

12. Balancing the advantages and disadvantages, I find that it is probably best for the child that the parties first make a genuine attempt to reach a consensus position in relation to sport, but if they are unable to reach a joint decision, the mother be able to make a final decision about sporting arrangements for the child. This order should not however be open ended and I will limit it to 2015 and 2016, after which time the order for equal shared parental responsibility will apply.  

13. The Independent Children's Lawyer made a costs application in respect of both parties. The mother consented to arrange for the payment of the sum outstanding to the single expert in the sum of $950.

14. The father consented to the application for costs made by the Independent Children's Lawyer.

15. The mother opposed the application. The mother is a woman of virtually no financial means. She receives financial assistance from time to time from her brother. Whilst the Independent Children's Lawyer is to be treated as being unfunded, the mother’s financial circumstances means that it is not just to make the order as sought by the Independent Children's Lawyer and I will accordingly dismiss that application.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 July 2015

Associate:

Date:  20.7.2015

SCHEDULE 1

The applicant father relies on the following:

1. Amended Initiating Application filed 5 June 2014

2. Affidavit of the father filed 22 June 2015

3. Affidavit of the father filed 19 August 2014

4. Affidavit of the paternal grandmother filed 19 August 2014

5. Affidavit of the paternal aunt filed 19 August 2014

6. Minute of Order sought by the father (Exhibit 2)

The respondent mother relies on the following:

1. Amended Response filed 3 June 2013

2. Affidavit of the mother filed 2 July 2015

3. Orders sought by the mother (Exhibit 3)

The Independent Children’s Lawyer relies on the following:

1. Single Expert Report of Dr F dated 11 July 2013

2. Since Expert Updated Report of Dr F dated 27 August 2014

3. Tender Bundle (Exhibit 4)