PADMORE & MACLEAN

[2020] FCCA 260

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADMORE & MACLEAN [2020] FCCA 260

Catchwords:
FAMILY LAW – Parenting – application for sole responsibility – school holidays – whether order should be made permitting the mother to take the child on school holidays during the school term with the permission of the school.

Legislation:

Education and Training Reform Act 2006 (Vic), ss.2.1.1 - 2.1.5
Family Law Act 1975 (Cth), ss.11F, 60CC(3), 61C, 61DA, 62B, 65DA(2), 65DAE

Cases cited:

Clair v Gall [2011] FMCAfam 294

Applicant: MR PADMORE

Respondent: MS MACLEAN

File Number: MLC 9927 of 2018

Judgment of: Judge McNab

Hearing date: 30 January 2020

Date of Last Submission: 30 January 2020

Delivered at: Melbourne

Delivered on: 31 January 2020

REPRESENTATION

Counsel for the Applicant: Mr Leeton

Solicitors for the Applicant: Culshaw Miller Lawyers

Counsel for the Respondent: Ms Rothschild

Solicitors for the Respondent: Elisa Rothschild Lawyers

ORDERS

1. The father and the mother have equal shared parental responsibility for the child [X] born … 2010 (“[X]”).

2. [X] live with the mother.

3. [X] spend time and communicate with the father as follows:

   (a)each alternate weekend during school terms, from after school Thursday until 7.00pm on Sunday; and

   (b)as agreed between the parties in writing, including by email and/or SMS text message.

4. Changeover take place at [X]’s school and on non-school days, changeover take place at the Service Station A at Location B, Town C or at such other place as agreed between the parties in writing.

5. [X] spend time with the father for one half of all Victorian gazetted school holiday periods being the first half in even numbered years with the father to collect [X] at the conclusion of the last day of school and return [X] on the Sunday at 7.00pm, and in the second half in odd numbered years with the father to collect [X] on the Monday at 10.00am and return [X] on the following Sunday at 7.00pm.

6. [X] spend time with the mother for one half of the Victorian gazetted school holiday periods being the first half of the odd numbered years, and in the second half of the even numbered years.

Special Occasions

1. Notwithstanding the above, the mother’s time with [X] be suspended and [X] spend time with the father as follows:

   (a)from the conclusion of school on Friday before Father’s Day until 7.00pm on Sunday;

   (b)in the event that Easter does not fall during the first term school holidays, from after school on Easter Thursday until 5.00pm on Easter Monday in even numbered years;

   (c)from 3.00pm Christmas Eve until 1.00pm Christmas Day in odd numbered years;

   (d)[X] spend time with the father on [X]’s birthday in each even numbered year from the conclusion of school until the commencement of school the next day, in the event that [X]’s birthday falls on a weekend that is not the father’s weekend, then the weekend be swapped and [X] spend her birthday weekend with the father;

   (e)[X] spend time with the mother on [X]’s birthday in each odd numbered year from the conclusion of school until the commencement of school the next day, in the event that [X]’s birthday falls on a weekend that is not the mother’s weekend, then the weekend be swapped and [X] spend her birthday weekend with the mother; and

   (f)from the conclusion of school on Friday before the Applicant’s and Respondent’s birthday until Sunday at 7.00pm.

2. If any of the following fall during the father’s time with [X], the father’s time with [X] be suspended and [X] spend time with the mother as follows:

   (a)from the conclusion of school on Friday before Mother’s Day until the commencement of school on Monday;

   (b)in the event that Easter does not fall during the first term school holidays, from after school on Easter Thursday until 5.00pm on Easter Monday in odd numbered years; and

   (c)from 3.00pm Christmas Eve until 1.00pm on Christmas Day in even numbered years.

3. In the event either parent’s birthday falls on a weekend that does not occur on a weekend, then [X] spend time with the parent whose birthday it is from after school Thursday (3.30pm) until 7.00pm Sunday. This time is to occur in lieu of [X]’s time with that parent the following weekend.

4. The mother be and is hereby restrained from having the child attend a counsellor or psychologist without the written agreement of the father.

5. All communication between the father and the mother must be civil and child focussed at all times.

6. The parties each notify the other and provide particulars of any changes to their telephone numbers, email addresses or residential addresses within 24 hours of said change.

Education

1. Each party is at liberty to attend [X]’s school and extracurricular activities that parents are ordinarily permitted to attend including but not limited to parent-teacher interviews, concerts and competitions.

2. The parties each authorise [X]’s school(s) to provide to the other copies of all school notices, information, newsletters and school reports, details of parent/teacher interviews, copies of school photographs and order forms and any information which is relevant to the [X]’s education.

3. The parties each include the other's contact details on any school forms or extra-curricular activity forms related to the [X] where applicable.

4. Each party be permitted to provide a copy of these Orders to any school which the child may attend from time to time.

Health

1. The parties each keep the other informed as soon as practicable and provide details of any significant injury or illness suffered by [X] while she is in their respective care.

2. Save for an emergency, each party inform the other of any appointments arranged for [X], to attend upon any medical specialist or allied health professional prior to the appointment occurring, with the party arranging the appointment to inform the other as to the time and date of that appointment as soon as reasonably possible.

3. The parties each be permitted to liaise directly with [X]’s treating medical practitioner, dental or other health specialist in relation to [X]’s health and welfare and each parent be permitted to attend any medical or allied health appointment or hospital medical facility at which [X] may be being cared for.

4. Where a party is unable to attend any medical or allied health appointment with respect to [X], the attending party is to inform the other as to any diagnosis and / or treatment plan recommended.

Overseas travel

1. Each party be permitted to travel with [X] either interstate or internationally (to Hague Convention countries only) with such holidays to coincide with the school holidays in the State of Victoria, subject to the travelling party complying with paragraph 22 of these Orders.

2. The party intending to take [X] overseas shall provide the other party with not less than 28 days prior written notice and particulars of the proposed date of departure and their intended travel destination(s) including copies of the following:

   (a)departure and return air tickets for [X];

   (b)itineraries for the proposed travel including contact telephone numbers and addresses for each destination; and

   (c)a copy of the traveling party's travel insurance cover for [X].

3. The party intending to take [X] overseas shall ensure the following and provide the necessary documentation (if any) evidencing same to the other parent upon request:

   (a)[X] has received all necessary immunisations and medications required for travel to the nominated destination as advised by their General Practitioner with the costs of same to be borne by the travelling parent; and

   (b)the travelling party ensures that [X] be able to, and facilitate, contact with the other parent either by phone, skype, text or email at all reasonable times during overseas travel.

General

1. The father, his servants and agents be and are hereby restrained by injunction from:

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and

   (b)discussing these proceedings,

   to or in the presence or hearing of [X] and from permitting any other person so to do.

2. The mother, her servants and agents be and are hereby restrained by injunction from

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and

   (b)discussing these proceedings,

   to or in the presence or hearing of [X] and from permitting any other person so to do.

3. 60 days immediately prior to the commencement of any time spent with [X] (including any period during which the [X] live with the father/the mother), and during all such time spent, the father and the mother be restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of alcohol or any legal or illegal drug or substance (or having a BAC above 0.05), save and except for:

   (a)any legal medication prescribed for the relevant party by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and

   (b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

4. Leave be granted for the following documents to be available for production at the Court D Appeal (Padmore v Maclean Case)

   (a)the affidavit of Ms Maclean sworn 10 January 2020; and

   (b)the Child Inclusive Conference Memorandum dated 24 January 2019.

5. All extant applications be otherwise dismissed. 

6. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9927 of 2018

MR PADMORE

Applicant

And

MS MACLEAN

Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

1. This matter concerns parenting arrangements for [X] born … 2010 (“[X]”), aged nine. The parties commenced cohabiting in 2003 and ceased cohabiting in 2008, but continued to see one another. [X] was conceived in 2010. In July 2010, the father communicated via email to the mother, amongst other things, “I want to be there to help with the pregnancy and birth but I don’t know how much I will be involved after that.” The child was born on … 2010 with the father in attendance. The father’s mother assisted the mother in the home for about a week after the birth.

2. The father commenced making child support payments in about June 2011 and weekly contact with [X] commenced in late August 2011. Matters proceeded until an incident on Christmas Day in 2017 when an argument ensued as to where the father was to spend Christmas Day with [X]. This led to angry shouting in front of the child and an application for an Intervention Order was filed and subsequently issued on 15 January 2018.

3. The father is re-partnered with his now-fiancée, Ms F. She has three children aged 16, 14 and 10. The father lives with Ms F in Town G, which is about an hour and a half outside of Melbourne towards Town H. The mother has not re-partnered and she resides in Suburb I.

4. Proceedings were issued in the Court on 27 August 2018 and returned to the Court on 22 October 2018. Orders were made which provided for the father to undertake a hair follicle drug test, which subsequently tested negative, and to spend time (one night per week on a Thursday) with [X]. A section 11F Child Inclusive Conference (“CIC”) was ordered to take place on 24 January 2019. The matter was set down for final hearing on 30 January 2020. The matter has returned to court on occasion since then, but those orders are not necessarily relevant to the determination of this matter.

5. The issues that the Court must determine are:

   a)whether the mother have sole parental responsibility or whether there should be shared parental responsibility for [X];

   b)whether the time that the father spends with [X] each fortnight is from:

   i)after school Thursday to before school Monday, which is the father’s proposal; or

   ii)after school Thursday to 7 pm on Sunday night, which is the mother’s proposal;

   c)whether the Court should make orders that overseas travel is permitted during the school term with the approval of the child’s teacher or whether it should be limited to school holidays; and

   d)the length of the time that [X] spends during school holidays with each parent.

6. The parties each relied on each of the affidavits they had filed in the proceedings. In the mother’s case, it was affidavits of 19 October 2018, 5 March 2019, 19 August 2019 and 10 January 2020. The father relied upon affidavits sworn on 27 August 2018 and 4 March 2019, affidavits of Ms J sworn 18 September 2018 and 2 December 2019, a trial affidavit of 2 December 2019 and an affidavit of Ms F sworn 3 December 2019. There was also an affidavit of a psychologist in relation to this which was filed very shortly prior to the proceeding and not referred to in the father’s submissions.

7. The trial was conducted over one day with each of the parents giving evidence. The other witnesses who had filed affidavits were not required for cross-examination. In my view, not to require them for such was a sensible approach, given the relatively narrow issues that had to be dealt with.

8. At the outset of giving consideration to these questions, the evidence strongly suggests that [X] is a happy, intelligent girl who is loved by both her parents and by their wider families. Her school reports, which were in evidence, show that she is progressing very well at school. She has a strong relationship with her paternal grandmother and she gets on well with Ms F and her children. In the mother’s words, she seems to “like her stepsiblings greatly”. There is no evidence that she suffers from any medical or psychological condition.

9. The mother gave evidence that “the father is a significant person in [X]’s life”, and that [X] “gets a benefit” from having a close relationship with the father. There is no evidence that the child is noncompliant with either of the parents.

Sole parental responsibility

1. The mother seeks sole parental responsibility on the grounds that:

   a)she has been the primary carer of [X] for the whole of [X]’s life and that she has done the heavy lifting as a parent throughout that time in circumstances where the father ended the relationship when she was four months pregnant;

   b)she has made all the major parenting decisions in the absence of the father;

   c)all parenting decisions have been in [X]’s interests;

   d)there is a high level of conflict between the parents, which makes joint decision making very difficult; and

   e)some of the father’s behaviour, such as past drug use, irresponsible behaviour and what she regards as poor decision-making (for example, giving a mobile phone with data access to a primary school child) militate against there being shared parental responsibility.

2. The father submits that notwithstanding difficulties that have occurred, particularly around the incidents of Christmas 2017, the parties have settled into a pattern where most matters are agreed and there is a reasonable degree of cooperation. For instance, the Family Report at [38] makes reference to the father upholding and supporting the mother’s disciplinary decisions in relation to [X]. He sees much of the tension arising between the parents as arising from the mother’s desire to control his involvement with [X] and to make major decisions regarding education, particularly in relation to a period of home-schooling.

3. The Family Report dated 27 November 2019 was prepared by family consultant K. It provides a very helpful narrative of the background of the dispute between the parties and is a clear expression of the parties’ views as expressed to him. No issue was taken that the Family Report did not reflect what was conveyed to the Family Report writer. At [59] and following of the Family Report, the consultant stated:

   Ms Maclean has taken the primary role of parenting [X] from birth, with Mr Padmore initially not desiring involvement and becoming increasingly involved over the past several year, withstanding her view that he has continued to be inconsistent in attending spend time arrangements. She reported a desire to maintain sole parental responsibility and be granted provision to determine what spend time arrangements would best suit [X], with her view that every third weekend would meet [X]’s needs. In this regard, Ms Maclean was self-assured, as [X]’s longstanding live with parent, that she was able to negotiate what arrangements were in [X]’s interests. She appeared to resent Mr Padmore increasing involvement and her account seemed to include a possessiveness of [X].

   At [60]:

   It was clear from the accounts provided that [X] will benefit from structured parenting orders that remove the necessity for parental consensus decisions and her parents participating in a post separation intervention to ensure that they can appropriately navigate parenting without exposing [X] to their conflict. It is noted that neither parent partook in a Parenting Orders Program nor any form of post separation education and the conflict has continued, with ongoing risk of acrimony in the short-term. The current status of the parental conflict further reduces either parent’s inclination towards flexibility and interferes with cooperative executive decisions focused on [X]’s best interests. Whilst the current level of acrimony persists, it necessitates a parenting in parallel approach given the risk of communication escalating the dispute.

4. The mother has been clear that she has made major decisions without prior consultation with the father. For instance, the decision to have [X] home-schooled for a period was notified to the father after the decision was made. The orders proposed by the mother contemplate cooperative decision-making in relation to matters of health, and I note that the parents have since made joint decisions about schooling. Given that [X] will be spending substantial and meaningful time with the father on either of the proposals put and that the father is competent to make decisions, there should be an order that there be joint parental responsibility. For the reason I explain below including where I discuss the factors that I must consider pursuant to s.60CC(3) of the Act.

5. I note that there have been issues with the father’s past drug use. He admitted that he was using cocaine recreationally and occasionally up to 2017, when he was aged 45 with family responsibilities and entering into a serious relationship with a woman to whom he did not reveal his drug taking. I also note that he has said that the drug taking has stopped and he has supplied two clean drug screens. He gave evidence that prior to [X]’s birth the mother engaged in illicit drug taking in the company of the father. I accept the father’s evidence that he no longer uses illicit drugs.

6. The father is self-employed as a tradesman and has maintained that business for some time. He seemed to give sensible evidence and made concessions where appropriate.

7. As to family violence, while in 2010 and 2011 the father sent very rude and derogatory messages (as exhibited to the mother’s first affidavit), and there were hostile exchanges between the parents, things seem to have settled significantly since December 2017 and the making of the Intervention Order.

8. I agree with the Family Consultant that concerns regarding the safety of the child or the mother are not a significant feature in this case: section 60CC(3)(j) of the Family Law Act1975 (Cth) (“the Act”).

1. An issue was raised by the mother as to the father’s capacity to exercise joint parental responsibility because of the provision by the father of a mobile phone with data access to a nine year old girl without consultation. In my view:

   a)that should not have happened without consultation with the mother;

   b)mobile phones and devices are a major issue for most parents, whether they are before the courts or otherwise;

   c)parents, whether in intact families or separated, must set guidelines as to the use of phones and internet access and there are plenty of resources to assist parents to do that; and

   d)rules such as ‘no phones at meals’ or ‘no mobile phone in a room after bedtime’ are matters that have to be discussed, and I presume that both these parents have set such rules about the use of these devices in relation to [X] and her stepsiblings.

2. I do not regard the father’s decision to provide the child with the phone as a reason not to order shared responsibility. It is something that must now be managed by the parents.

3. This is not a case where the presumption of parental responsibility created by section 61C of the Act is displaced or that the presumption that there be shared parental responsibility when making parenting orders does not apply: section 61DA of the Act. An order for shared parental responsibility requires parents to make decisions jointly and to consult regarding decisions about long-term issues. It does not require consultation about every issue that arises, for instance, food choices, music choices or clothing choices. Section 65DAE of the Act provides:

   (1)  If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

   (a)  has parental responsibility for the child; or

(b)  shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major-long term issues.

Not every issue that arises as between a parent and a child has to be the subject of consultation, and that is simply a statutory embodiment of pure common sense, in my view.

1. The mother’s desire to control her daughter’s responses in this case have not been helpful to her and/or her daughter. Notwithstanding the mother’s evidence that [X] had a meaningful and loving relationship with her father, she claimed that [X] had lied to the Consultant at the CIC, which resulted in the Consultant stating in the CIC Memorandum dated 24 January 2019:

   […] She [[X]] seemed to place priority on spending time with her father over and above being involved in additional activities with her mother, such as attending parties or her mother’s place of work. Contradictorily to Ms Maclean’s statement that [X] is frightened of her father, [X] expressed no fear of her father (or her mother).

2. The mother discussed this with [X] and told [X] that she was lying. That conversation caused [X] to cry. Then after consulting with her solicitor, who incredibly did not advise against this course and, in fact, apparently encouraged it, the mother then consulted with another psychologist to seek to obtain what she regarded as a suitable professional response. That consultation did not proceed as the psychologist was not suitably qualified. A planned consultation with another psychologist did not proceed.

3. Prior to the consultation between [X] and the Family Consultant for the purposes of preparing the Family Report, the mother spoke to [X] and told her that she had to tell the truth. This is in the context of having told [X] previously that she had not told the truth in the CIC. Notwithstanding these efforts to involve [X] in the proceeding, [X]’s main focus, as exposed to the Family Consultant, is to have regular organised time with her father and for the parents to stop these proceedings. [X] mentioned that each of the parents is affected by the results at various court events.

4. Shared parental responsibility is likely to lead to less conflict rather than more because it will mean that the mother is not in a position to control major decisions, including, for example, the time spent and length and timing of international holidays. I think that once proceedings are finished, the pressure and stress and cost of litigation will be removed and the pattern of [X] moving between households will be established. These parents should have sufficient insight into [X]’s best interests to parent on a shared basis.

Spend-time with the father

1. The second issue that I must determine is the period of time that [X] spends with the father. The proposals advanced at trial were different from those set out in the case outlines filed by the parties. There was some modification of the positions and, to the mother’s credit, she compromised significantly. That compromise was rather than the father spending every third weekend with [X], from Thursday to Sunday, that [X] spend every second weekend from Thursday after school until Sunday night. The father’s proposal as advanced at trial was that he would spend every second weekend with [X] from Thursday after school until Monday before school with the child being delivered to school in Suburb I by the father.

2. [X]’s best interests are the paramount consideration in making this decision. Considering that the father lives in Town G, a trip to start school at 9.00am in Suburb I driving from Town G must necessarily involve an early start. I think the time that is proposed by the mother provides for a meaningful and significant time without the stresses of having to get up very early in the morning and get to school on time. The father gave evidence that he had occasionally been late. I think it is notorious that the traffic on that stretch of road across the West Gate Bridge on weekday mornings, whichever direction you are travelling, is often in complete deadlock for significant periods of time. The stresses arising from having to get up by at least 6.00am, get ready and leave the house by at least 7.00am is not in [X]’s best interest.

3. The mother gave evidence that [X] had told her she was getting out of bed at 5.30am when spending time with the father, in order to get to school on time. I accept that this may have been the case.

4. The father made reference to [X] having a family dinner with her stepsiblings on the Sunday night, with the timing of the visits of each of the sets of children to coincide on the same weekend. That can be achieved by a Sunday lunch or an earlier dinner. It is also important for [X] to return to her mother’s home on the Sunday night before the start of the school week to get settled and ready for school.

Spend-time during school holidays

1. In relation to the length of school holidays, the father proposed [X] spend half of the school holidays with him, whereas the mother proposed about a third of the school holidays be spent with the father. In my view, no adequate reason has been put forward why [X] should not spend half the school holidays with each parent. There is no evidence that [X] will not be able to handle that length of time, as was asserted by the mother. The time when [X] is with her father can give the mother an opportunity to travel herself, if she is able, given that she cares for her invalid mother. As [X] gets older, that period will allow a sufficient time for a trip to be undertaken with each of the parents and also may afford her the opportunity to go and visit her grandmother in Perth. I can see no reason why the holidays should not be shared equally and do not accept that would not be in the best interests of the child.

Holidays during the school term

1. In relation to holidays in school terms, the mother explained that she seeks an order that:

   d. The travelling parent must get approval from the child’s teacher if holidays are to fall during school term and ensure the child completes any and all learning tasks as set by the child’s teacher for the period the child is away from school.

2. She explained that she had taken [X] on holidays during the school term previously because she has to care for her invalid mother. The mother is afforded 63 days respite per year, where her mother goes into respite care, and that affords her the opportunity to organise holidays at those times. The mother gave evidence that she tried to organise holidays during those periods and at times when airfares were cheaper. There have been, as the mother said, occasions when that occurred during school times. The clear impression given by the mother’s evidence is that she wishes to continue this arrangement.

3. The attendance of children at school is subject to the provisions of the Education and Training Reform Act 2006 (Vic). In particular, section 2.1.1 provides:

   It is the duty of the parent of a child of not less than 6 nor more than 16 years of age—

   (a) to enrol the child at a registered school and to ensure the child attends the school at all times when the school is open for the child's instruction; or

   (b) to register the child for home schooling in accordance with the regulations and to ensure that the child receives instruction in accordance with the registration.

4. Pursuant to section 2.1.2, a parent must comply with the duty in section 2.1.1. Section 2.1.3 provides for a reasonable excuse:

   Without limiting section 2.1.2, it is a reasonable excuse for the purposes of that section, in relation to a child if—

   (a) the child has been prevented from attending school or receiving instruction because of—

   (i) illness, accident, an unforeseen event or an unavoidable cause; or

   (ii) a requirement to comply with another law; or

   (iii) the child's absence from Victoria;

   (b) there is no Government school within a prescribed distance of the child's residence and the child is receiving a distance education program through a registered school;

   (c) the child is undertaking an educational program provided by a registered education and training organisation;

   (d) the child has been suspended or expelled from a registered school and is undertaking other educational programs provided by the Department or another registered school;

   (e) the absence from school or instruction was because of the child's disobedience and was not due to any fault of the parent;

   (f) the child is attending or observing a religious event or obligation as a result of a genuinely held belief of the child or a parent of the child;

   (g) the child is exempted from attendance at school by the Minister under section 2.1.5.

5. I went through the process of reading each of those subsections to give the parties a flavour of what the law requires and the question of what is considered a reasonable excuse. I note that an excuse provided by a parent of the child for failure to attend has to be read in the light of the rest of the section. The notion that was put to the Court by the mother’s legal representative that it is a regular occurrence and community standards dictate that it is perfectly acceptable for parents to take their children out of school during term for holidays, particularly overseas holidays. This does not fit within the scheme of the Education and Training Reform Act 2006 (Vic) and I do not accept that that is the case.

6. Whether a reasonable excuse is given by a parent has to be read in light of the subsections of 2.1.3. A reason given by a parent for travelling overseas might be, for instance, that the child has received a prize or scholarship, or there is an important sporting or musical event participation in which would be in the child’s interests. However, the notion that a parent can simply negotiate the time that the child goes to school around school holidays does not fit within the scheme of the Education and Training Reform Act 2006 (Vic).

7. If I was in any doubt about this, in a decision of Clair v Gall [2011] FMCAfam 294, in considering an application for orders that the child be removed during school term Reithmuller J set out the legislative provisions referred to above. At [10], he said:

   It is clear on the law in Victoria that children are required to attend school each day during the school year. It is difficult to conclude that holiday arrangements by parents during the school year could be regarded as a “reasonable excuse”. There may some cases where events unfold that make the question more difficult. For example, situations where children might become the recipients of a gift or prize that involve travelling to a foreign country during the school term, and have real education value in a more general sense.

   At [11]:

   Clearly, travel arrangements that have an educational value or component may fall within the meaning of “reasonable excuse”. However, as a general proposition, it is not within the law for children to simply go on holiday during the school year even if it is only for a week. It may be that the strictures of this law are not rigidly imposed. One would hope that in terms of specific schools and arrangements, matters would proceed by way of discussion with the teachers. 

   And at [12]:

   As a matter of principle, the court could not generally sanction children being taken on holiday whilst the school term is running. It would require specific circumstances to show such an order was in the child’s best interests.

8. I am cognisant of the circumstances that the mother is in.  I accept the reasons that she has provided for seeking these orders are not simply self-interested and they do arise from her particular circumstances. Having regard to the legal framework, however, it is not appropriate to make orders of the kind sought by the mother and the orders proposed by the father in relation to holiday time are the orders that should prevail.

Section 60CC(3) considerations

1. Notwithstanding that orders were made that they must be provided, no submissions were made by either party in their respective outlines of case on section 60CC(3) of the Act. I am required to consider each subsection of that section.

2. The primary considerations that I must have regard to are:

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

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

3. In my view, the scheme of orders that I have outlined in relation to the spend-time arrangements and the question of parental responsibility give effect to the benefit of [X] having a meaningful relationship with both of her parents. As I said earlier, I do not regard the child as at any serious or significant risk of physical or psychological harm in the company or care of either of the parents as a result of abuse, neglect or family violence.

4. With regards to subparagraphs (a) and (b), [X] has expressed views to the Family Consultant which are outlined in the Family Report. There is no sense from that report that [X] does not love either of her parents or that she does not wish to spend time with either of her parents, in particular her father. As I said earlier, [X]’s only reported worries were at [52] in relation to her parents being unhappy with the outcome of court proceedings. She reported having previously noted differences in her parents’ moods based on the outcome of past court hearings.

5. Subparagraph (c) pertains to the extent to which each of [X]’s parents has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues in relation to [X], to spend time with [X] and communicate with [X]. To some extent, the father’s capacity to make long-term decisions has been limited by the very major role that the mother has taken in her care of [X] and her, in some respects, unilateral decision to make those long-term decisions. Since the father has spent more time with [X], it seems that he has been involved in making long-term decisions and there have been joint decisions about schooling. He has taken the opportunity to spend time and communicate with [X] since arrangements were put in place in 2011.

6. In relation to subparagraph (d), [X] is not going to be adversely affected by the arrangements that are proposed by either of the parents, and there is no suggestion of separation anxiety or failure to comply with either parent’s instruction.

7. In terms of subparagraph (e), these orders do not interfere with the capacity of [X] to communicate or maintain personal relationships and contact with both parents on a regular basis. There are some practical difficulties associated with the father living in Town G, but it sounds like it is a particularly pleasant environment for [X]. She spends time in a happy family there, and those practical difficulties are outweighed by the benefits that follow from that arrangement. The mother has worked hard to support and provide for her child’s needs. She was employed as a manager. She is now involved in the full time care of her invalid mother.

8. In relation to subparagraph (f), each of the parents have capacity to provide for the [X]’s needs. Hopefully, as a result of these proceedings, the parents (in particular the father) are mindful of the need to refrain from illicit drug taking completely to look after [X]. On the evidence that I have before me, there is no lack of capacity on the part of either parent to parent properly and provide for [X]’s emotional needs. I accept that the father is not now using drugs recreationally or otherwise.

9. In terms of the maturity of the child and either of the child’s parents (subparagraph (g)), it seems that [X] is a very mature young person and remarkably has seemed to have coped with the parents’ conflict. There are no medical or psychological issues which impede either parent from caring for [X].

10. Subparagraph (h) in relation to Aboriginal and/or Torres Strait Islander children is not relevant.

11. In terms of subparagraph (i), each parent now appears to be a committed parent. Certainly, the mother has given very powerful evidence of her strong commitment as primary carer parent. The father more lately has been involved with the child.

12. In terms of subparagraph (k), a Family Violence order is in place. It is for a period of five years and it applies to both the mother and [X]. That order is the subject of appeal. The circumstances to the order being made were outlined earlier and they arise largely from the circumstances of the incident in December 2017. The mother has given evidence that since the order was made, things have settled down, and she in fact stated to the Family Consultant she does not fear the father.

13. Subparagraph (l) relates to 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 [X]. I have not been given any submissions about that by either of the parties as to whether there is some other way forward (other than the proposals that have been put). The institution of future proceedings is entirely in the hands of the parties. I would have thought that having regard to their experience thus far, the best place to resolve the day-to-day issues involving parenting is outside of the courtroom. Most people do that and parents do not ordinarily need to resort to court proceedings. I do not regard the orders made as ones that will promote further litigation. The arrangements put in place should be fit for purpose as [X] grows older and goes to high school.

14. There was a recommendation that [X] will benefit from her parents completing a Parenting Orders Program to work on re-establishing a child-focussed co-parenting relationship and communication. I think that would be sensible. I suggest this be undertaken within the next six months.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  11 February 2020