Pascall & Heath
[2022] FedCFamC1A 28
•28 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pascall & Heath [2022] FedCFamC1A 28
Appeal from: Heath & Pascall (No 4) [2021] FCCA 1494
Pascall & Heath [2021] FedCFamC2F 39
Appeal number(s): NOA 39 of 2021
NAA 17 of 2021File number(s): BRC 8029 of 2018 Judgment of: ALDRIDGE, CAMPTON & CHRISTIE JJ Date of judgment: 28 February 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Relocation – Family violence – Weight challenges – Whether findings were open on the evidence – Order requiring the mother to live within a 30 kilometre radius of the father was not necessary to secure the best interests of the child – Error in not taking into account that changeover time should be minimised when making orders relating to Mother’s Day and Father’s Day – Otherwise no error of fact or law established – Appeal allowed in part – Relevant order set aside – Re-exercise of discretion as to relocation and changeover on Mother’s Day and Father’s Day – Order made for written submissions as to costs.
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against refusal of stay – Change of residence – Child’s schooling – Appeal allowed in part – Order requiring the appellant to move residence stayed until determination of substantive appeal.
Legislation: Family Law Act 1975 (Cth) ss 61DA, 65DAC, 65DAE Cases cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Sampson and Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365
Number of paragraphs: 63 Date of hearing: 9 December 2021 Place: Brisbane (via video link), delivered in Sydney The Appellant: Litigant in person Solicitor for the Respondent: Keyworth, Harris & Lowe Family Lawyers Counsel for the Independent Children’s Lawyer: Mr Waterman Solicitor for the Independent Children’s Lawyer: Legal Aid QLD ORDERS
NOA 39 of 2021 NAA 17 of 2021
BRC 8029 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PASCALL
Appellant
AND: MR HEATH
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, CAMPTON & CHRISTIE JJ
DATE OF ORDER:
28 FEBRUARY 2022
THE COURT ORDERED ON 9 DECEMBER 2021 THAT:
Appeal No. NAA 17 of 2021
1.Appeal No. NAA 17 of 2021 is allowed in part.
2.The operation of Order 13(b) of the orders made on 7 July 2021 is stayed until determination of Appeal No. NOA 39 of 2021.
THE COURT FURTHER ORDERS THAT:
Appeal No. NOA 39 of 2021
1.The Application in an Appeal filed on 8 December 2021 is dismissed.
2.Appeal No. NOA 39 of 2021 is allowed in part.
3.Orders 7(b) and 7(c) made on 7 July 2021 are set aside and replaced with:
7. Notwithstanding any order to the contrary, the child spend time or communicate with each parent as agreed between the parents in writing and failing agreement as follows:
a. …
b. On the Mother’s Day weekend, in the event that the child is not otherwise in the care of the mother on that weekend, then the child spend time with the mother from Friday at 3.00 pm, or after day care/preschool (if applicable) to Monday before day care/preschool or at 9.00 am on non-day care/preschool days.
c. On the Father’s Day weekend, in the event that the child is not otherwise in the care of the father on that weekend, then the child spend time with the father from Friday at 3.00 pm, or after day care/preschool (if applicable) to Monday before day care/preschool or at 9.00 am on non-day care/preschool days.
4.Order 13(b) made on 7 July 2021 is set aside and replaced with:
13. Unless otherwise agreed in writing:
a. …
b.The mother is to live within a 40 kilometre radius of the father’s residence in the Brisbane suburb of Suburb Z and the mother thereafter maintain a residence for herself or the child that is within a 40 kilometre radius of the father’s residence in the Brisbane suburb of Suburb Z, until the child turns 18 years of age, or completes her Year 12 high school studies, whichever occurs first.
5.Order 29 made on 7 July 2021 is set aside.
6.The parties may file written submissions in respect of costs, identifying the orders they seek and the reasons those orders should be made within fourteen (14) days of these orders, with the remaining parties having fourteen (14) days to file written submissions in reply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascall & Heath has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, CAMPTON & CHRISTIE JJ:
APPEAL NO. NOA 39 OF 2021
Introduction
This is an appeal by Ms Pascall (“the mother”) against parenting orders made by a judge of the Federal Circuit Court of Australia (as it was then known) on 7 July 2021. The mother and Mr Heath (“the father”) have one child (“the child”) who was born in 2018.
The parties’ relationship was a short one. The mother asserts that the parties started living together in about May 2015, while the father asserts that it was approximately June 2016. The parties separated on a final basis in May 2018.
The orders subject of the appeal are somewhat complicated, particularly insofar as they concern parental responsibility. The orders provide for the child to live with the mother and to spend time with the father on a two week cycle from Thursday after day care/preschool (or at 3.00 pm) to Saturday at 9.00 am and from Friday at 5.00 pm (or after day care/preschool) to Monday before day care/preschool (or at 9.00 am). Commencing on 9 March 2022, the time was to extend from Wednesday after day care/preschool (or at 5.00 pm) to the following Monday before day care/preschool (or at 9.00 am) each alternate week, until 26 January 2024, when the child would spend week about time with each parent. Similarly, there was a graduated regime for school holiday time leading to the child spending one half of the long school holidays with each parent.
The parents were to have equal shared parental responsibility subject to a number of other orders that constrained that order. First, the father was to have sole parental responsibility for decisions regarding the child’s health and education, but he was obliged, save for in the case of medical emergencies, to consult with the mother in accordance with the procedure set out in the orders. As to the choice of the child’s school, the orders provided for the mother to propose the names of three schools for the child by 1 August 2021, with the father to reply by 1 September 2021 choosing one of those schools or providing his reasons why he did not select one of those. The father was then to provide the mother a list of three schools proposed by him and the mother was to choose one of those. If not, it became the father’s choice.
Further, the parents were each required to nominate a medical centre for the child to attend medical consultations. There was also an order restricting the capacity of the parents to enrol the child in more than two extra-curricular activities.
A further order of significance in the appeal was an order requiring the mother to relocate herself and the child to within a 30 kilometre radius of the father’s residence and to remain there until the child turned 18 or completed high school studies.
The appeal was opposed by the father and by the Independent Children’s Lawyer (“ICL”).
The Appeal
The Notice of Appeal filed on 2 August 2021 raises some 18 grounds and does not challenge all of the orders.
The course that was taken by the mother, who acted for herself, was to address the particular orders in question rather than proceed through the grounds of appeal. That was a convenient course and we shall do the same. However, permeating many of the challenges to the various orders was the mother’s submission that the primary judge inadequately dealt with the issues of family violence. It is convenient to deal with that topic first.
Family Violence
The mother gave extensive evidence of family violence, including physical assaults as well as intimidating behaviour and coercive and controlling behaviour. Much of that evidence was disputed by the father, but some was not in dispute. The primary judge dealt with these allegations as follows:
122.The mother makes allegations of family violence perpetrated by the father during their relationship, including controlling behaviour and verbal and emotional abuse. The father denies these allegations save for his admission during cross examination that on one occasion he had thrown a phone which hit the mother on the cheek. Notwithstanding these allegations made by the mother, I note that she has advised both Dr B and Ms BB that she no longer considers that the father is a risk to the child. Rather, the mother feels that the father and his family do not support her relationship with [the child].
…
142.As stated, the mother alleges a history of family violence perpetrated by the father during their relationship, including controlling behaviour and verbal and emotional abuse. The father denies these allegations save for his admission during cross-examination that on one occasion he had thrown a phone which hit the mother on the cheek.
(Footnotes omitted)
This is not entirely correct, because the father also admitted to slapping the mother across the face. The father admitted he did so on 12 March 2016 (Transcript 2 December 2019, p.27 lines 4–5). The father also accepted that he tossed his phone onto a lounge cushion which rebounded and hit the mother in the mouth, causing her a split and bruised lip. It appears that the primary judge did not find this explanation entirely plausible because his Honour proceeded on the basis that the phone was thrown at the mother, as we have seen.
In addition, the mother referred to instances of violence in her Summary of Argument filed on 1 November 2021, which she said were admitted by the father. That is in fact not the case.
In an effort to demonstrate her position, the mother relied on Exhibit RM-3 and played a video recording of her in the car with the father circling it, causing her, she said, to be terrified. Whilst the mother may have been terrified, the video recording simply shows the father approaching the car waving, walking past and out of the garage.
The mother played an audio recording which also formed part of Exhibit RM-3, where the father can be heard saying that he had thrown a bag at the mother.
Finally, we have read the cross-examination of the mother’s evidence in detail. During the course of that cross-examination, the mother ultimately withdrew some of her claims of violence, or accepted that they could not be correct. It seems clear that his Honour had these varying accounts in mind because his Honour came to this finding in relation to family violence:
221.The presumption of equal shared parental responsibility relating to health and education is rebutted after a consideration of the mother’s family violence allegations and a history of poor communication between the parties.
222.Apart from the mother’s capacity to be less than honest, her evidence concerning family violence was inconsistent. Throughout cross-examination she was adamant that family violence was still occurring, however there was a lack of any evidence to support her assertion. …
Thus, the primary judge has accepted that the family violence is of a sufficient degree so as to warrant the rebuttal of the presumption in favour of equal shared parental responsibility for the purposes of s 61DA of the Family Law Act 1975 (Cth) (“the Act”). However, his Honour also concluded that that violence was not as extensive as was claimed by the mother. Having regard to the matters raised by the mother, which we have set out above, it is difficult to see any error in that approach.
The orders for parental responsibility (Orders 4 and 5)
The submissions were that the primary judge erred because:
(1)Whoever had the primary care of the child should have sole parental responsibility for her; and
(2)The family violence spoke against the father having sole parental responsibility.
There was no dispute in the proceedings that the parties had great difficulties communicating with each other about decisions as to the care of the child. That was recognised by both the single expert psychiatrist and by the Family Consultant, who each provided reports in the matter and was emphasised by the mother in support of her written submissions.
Orders for parental responsibility provide for the person with that responsibility to make the decisions about major long-term issues in relation to the child (s 65DAC and s 65DAE of the Act). Major long-term issues are defined in s 4 of the Act as issues “about the care, welfare and development of the child of a long-term nature” and include education, religious and cultural upbringing, health, name and changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent. In the present case, there was no suggestion of any issues arising relating to the child’s cultural upbringing or religion. Specific orders were made by the primary judge in relation to the child’s name and as we shall see, the orders provided where the mother, child and father were to live.
Thus, the only major long-term decisions remaining were those regarding education and health. Parental responsibility for both of those matters was expressly given to the father. Although there is an order otherwise for equal shared parental responsibility, it is in effect, a catch all to provide for any circumstance that might arise that are not specifically covered by the orders or fall within health or education. Such an issue arising seems unlikely. In those prescriptive circumstances we do not see that it was an error on the part of the primary judge to make an order in that extremely limited circumstance for equal shared parental responsibility.
Turning to the questions of health and education, it is true, as the mother submits, that in effect the father is given sole parental responsibility. However, as we have already seen, that responsibility is tempered, in respect of schooling by the mechanism put in place by the primary judge and in respect of health by the orders in relation to selection of medical centres.
At first blush, there is some force in the submission that it is somewhat counterintuitive that the person who has the primary care of the child should not have the ability to make decisions in relation to major long-term issues. However, the structure of the orders is such that from 9 March 2022 the child will be spending six days a fortnight during school terms and half the holidays with the father and from 26 January 2024, there will be an equal time arrangement. It therefore cannot be said that the primary carer of the child will not have the sole parental responsibility, because essentially the primary care will be shared or very close to being shared from March this year.
The question then comes down to whether the mother or the father should have been granted sole parental responsibility. There was no dispute that the mother had appropriately cared for the child and had appropriately engaged medical care when required. When the child was young she was diagnosed with a medical condition which required extensive surgery while the child was still very young. However, the difficulty for the mother having sole parental responsibility is that she did not inform the father of the impending operation, that it occurred or permit him to attend at the hospital when he found out that what had occurred. The primary judge was ordering that the task of decision making should fall not just to the parent who would make the child focused decision but also to the parent he was satisfied would communicate the decision to the other parent.
A prime example, but by no means the sole example of the mother’s approach, related to the issue of changeover. For reasons that are not readily disclosed, changeovers were taking place at a supervised contact centre at Suburb C in the Suburb YY region. As was agreed by both of the parties during the appeal, Suburb C is some 30 minutes drive north of where the mother lives at Suburb D. The father lives at Suburb Z which is about an hour drive south of Suburb C. Thus, for the child to transition from one party’s care to the other, the child was spending about an hour and 45 minutes travelling. Yet, the distance between the mother’s home and the father’s home was only about 30–40 minutes. The evidence of the Family Consultant was that the arrangement was not desirable and that a shorter travelling time would be in the child’s best interests. To that end, the father proposed that changeovers take place at a supervised contact centre halfway between the parties. The mother declined this proposal. There is no apparent reason that justifies such a course.
In addition, the mother has sent the father a huge number of emails. The judge described them in the following passage, which was not challenged by the mother on the appeal:
223.There is little doubt that the sheer volume of messages sent by the mother to the father during May 2018 to 28 September 2018, being over 1,000 emails and 450 text messages between September 2018 and January 2019, clearly present an individual who struggles with communicating appropriately and adhering to reasonable boundaries. Not only were the volume of messages unreasonable but the content was controlling and threating in nature, particularly during a time where there was a temporary domestic violence order in place for the protection of the mother. Similarly, deliberately failing to inform the father of the child’s significant medical condition in 2018 was not in any way child-focused.
This led the primary judge to conclude:
224.The Court is not satisfied that the mother’s previous actions and communication style are those of a parent who is attempting to successfully co-parent, rather it could be argued that she is encouraging an avenue for further acrimony between the parties.
These findings amply justify awarding sole parental responsibility to the father.
As we have seen the allegations of violence required the presumption in favour of equal shared parental responsibility to be rebutted. However, once that step was taken, the primary judge was entitled to make such orders in respect of parental responsibility as his Honour considered was in the best interests of the child. In doing so, as we have already explained in the passages we have set out, his Honour took into account the violence.
The decision appealed is a discretionary one and accordingly the provisions of House v The King (1936) 55 CLR 499 apply (at 504–505):
The manner in which the appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In these circumstances, it can be seen that the primary judge did not take into account an erroneous matter, or fail to take into account a relevant matter. The decision was open to his Honour on the evidence and the result cannot be said to be plainly wrong. The challenge to the orders for parental responsibility therefore do not succeed.
Orders for child to spend time with the father (Orders 6(a)(i), 6(b)(i) and 6(c)(i))
The mother submitted that these orders should not have been made because:
(1)The orders do not allow the child to spend time with the maternal family on weekends;
(2)The child’s father works 40 hours a week, so the child will spend much of the time when she is supposed to be with him in day care; and
(3)Dr B, the single expert, recommended against equal time.
The first two matters are considerations to be taken into account, but there is no reason to suggest that the primary judge did not have those matters in mind and that they were not taken into account. As to the last point, the mother referred to the following evidence of the Family Consultant:
[FAMILY CONSULTANT]: …The reason that I’ve suggested that there be the three nights – the five nights, rather, and separated over two weeks, moving to the five nights in a block, I suppose, is a – a preparation for those longer periods of separation from one parent or the other. So I suppose it’s a very conservative progression but my thinking was just purely this is – this is quite a young child.
(Transcript 5 November 2020, p.160 lines 39–44)
However, the Family Consultant then made it quite clear that the plan would be “immediately [to] go to equal time in [the child’s] first full year of school” (Transcript 5 November 2020, p.161 lines 40–41). The primary judge was entitled to rely on and give weight to that evidence. The fact that a different order might have been made does not identify error.
The orders for Mother’s Day and Father’s Day (Orders 7(b) and 7(c))
The primary judge made orders that notwithstanding the other orders, the child, if not in the care of that parent, should spend Mother’s Day with the mother and Father’s Day with the father from 5.00 pm on Saturday to 5.00 pm on Sunday. Although the proposals of the parties and the ICL differed slightly, each of them proposed the whole weekend with the relevant parent. The effect of such an order is to remove a set of changeovers that would otherwise would have to occur if the time was only for one day on each occasion. All the parties and the expert witnesses were agreed that face-to-face changeovers between the parents should be minimised where possible and this was in fact reflected in the other orders made by the primary judge. Wherever possible, changeover was to take place at school or day care, or at a supervised contact centre.
The primary judge did not take this consideration into account, nor did he take into account that no one had proposed the particular order that was made. In this respect therefore, we consider that his Honour erred. No submissions were put to us by the ICL or the father to challenge these propositions and accordingly, this order will be set aside and replaced by the order proposed by the mother.
Informing the other party of their contact details (Order 10)
Order 10 requires each party to keep the other informed of their residential address, email address and mobile phone number, as well as inform the other of any change. The mother accepts the provision of the email address and mobile phone number. However, in her evidence, the mother said that she was happy to provide her residential address to the father (as evidenced at Transcript 6 November 2020, p.214 lines 12–30) and, as his Honour acted on the evidence, no error can be identified.
Requirement for the mother to live within 30 kilometres of the father and upon the mother’s relocation to discuss day care options with the father (Orders 13(b) and 29)
This order was the subject of much of the focus of the appeal. It is worth stating the order in full:
13. Unless otherwise agreed in writing:
a. The father be restrained from relocating his residence from the Brisbane suburb of Suburb Z until the child turns 18 years of age, or completes her Year 12 high school studies, whichever occurs first; and
b. By no later than 7 January 2022 the mother relocate herself with the child to live within a 30km radius of the father’s residence in the Brisbane suburb of Suburb Z and the mother thereafter maintain a residence for herself or the child that is within a 30km radius of the father’s residence in the Brisbane suburb of Suburb Z, until the child turns 18 years of age, or completes her Year 12 high school studies, whichever occurs first.
(Emphasis removed)
In Sampson and Hartnett (No. 10) (2007) FLC 93-350, the Full Court considered both the power of the Court to make an order requiring an adult to live in a particular place and in the circumstances in which such an order should be made. The Court said:
57.If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go some where [sic] and therefore the order is much more of an imposition on that person’s freedom.
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
Thus, at first blush, the primary judge’s order seems somewhat surprising, but firstly, it must be seen in the light of the proposals that the parties themselves put before the Court. The ICL proposed an order along the lines made by the primary judge. The father initially proposed an order requiring the mother to move to reside within 10 kilometres of his house, but later changed his mind and supported the order proposed by the ICL.
For her part, the mother proposed an order that the parties live not more than 70 kilometres from each other (at [32]). That order is not quite so prescriptive in that it does not require any party to move, but is none the less a restriction on both parties’ movement.
The primary judge said of these orders:
235.Given that the child will eventually transition to an equal time arrangement, the Court finds that the father should be restrained from relocating his residence from the Brisbane suburb of Suburb Z and the mother by the start of next year will be ordered to relocate herself within a 30km radius of the father’s residence until the child turns 18 years of age. This outcome will promote stability for the child particularly as she is soon to enter school and will reduce travel time between the parties. The Court has allowed the mother a further six months in which to cause her relocation noting that she has been on notice since the close of submissions in November 2020 that this outcome was a possibility.
236.The Court is satisfied that such an outcome would be in [the child’s] best interests and, where applicable, balances the benefits of the restraint being made against the detriments caused by the imposition.
It emerges from those paragraphs that the purpose of the order is to promote stability and to reduce travel time. It is not immediately apparent how the order would promote stability. As to travel time, his Honour did not explain what was meant by that.
The mother explained that where she currently resides falls outside of the 30 kilometre radius of the father’s home required by the orders, but within a 40 kilometre radius. Therefore, the mother submitted that although there might be a slight increase in travel time that would be set off against the requirement for her to relocate. When the Court asked to be taken to the evidence of the travel time, both counsel for the ICL and the father took us to evidence of travel which has already been discussed; which is the evidence of the travel time between the parties’ homes and the changeover location at the Suburb C contact centre.
However, by Order 8, the primary judge moved the changeover location, when it was not to occur at day care or school, from the Suburb C contact centre to the G Contact Centre, which is located approximately halfway between the parties. Therefore, the order that has had the effect of reducing the travel time from 1 hour 45 minutes described in the evidence, is that order and not the order requiring the mother to live within a 30 kilometre radius of the father.
When pressed to identify why the order imposing the 30 kilometre radius was necessary to secure the best interests of the child, neither counsel for the ICL nor the father could advance any reason, nor any reason as to why the distance limit should not be the one currently sought by the mother.
We consider that his Honour erred by not taking these matters into account.
That being so, all of the parties asked us to re-exercise this aspect of the discretion ourselves and whilst we have disquiet about making any order that is prescriptive as to where an adult must live, we consider that the order sought by the mother balances her entitlement to live where she chooses (as she will not be required to move) with the evident purpose of the order which is to facilitate the child spending substantial (and eventually equal) time with the father. Accordingly, we will make that order.
Further, Order 29 will also be set aside as it is only upon the mother’s relocation under Order 13(b) that required the parties to discuss any new day care arrangements for the child.
Attendance at day care and preschool (Order 16)
Order 16 permits each party to attend the child’s day care or school from time to time for regular events such as parent teacher interviews, school sport days, cultural days and concerts.
Whilst it is true that this order provides an exception to the orders that restrain the parties from approaching within 100 metres of their home or place of work, that injunction (Order 12) is expressly not to apply when the parties are effecting changeover, attending day care or preschool, a school function or extracurricular activities. Indeed given that each of the parties will have the child in their care for a substantial time, it is difficult to see how attendance at school could be avoided.
The only restraint that the mother sought was that in relation to the parties approaching within 100 metres of their home and place of work. In those circumstances and in the absence of submissions to the primary judge directed towards Order 16, which the mother conceded to be the position, no error can be identified.
Engagement in extracurricular activities (Order 17)
Order 17 prevents the parties from enrolling the child in more than two extracurricular activities or sports per school term, after the child commences Prep at primary school. The mother did not take us to any material that indicates that this order was erroneously made.
Notice regarding overseas travel (Order 21)
There were no submissions made in respect of this order.
Communication regarding primary school enrolment and high school enrolment (Orders 27 and 28)
These orders provide for a mechanism in which the parties could try to arrive at a mutual decision about the child’s primary school and high school enrolment and absent agreement, the final decision would be made by the father, consistent with Order 5.
The mother submitted that these orders were inappropriate given that the parties could not agree on any decisions relating to the child, would only cause further conflict between the parties and that decisions about school enrolment should lie solely with the father.
If the mother does not wish to be involved in this decision due to potential conflict, then Orders 27(d) and 28 provide for the father to make the final decision.
We see no error in the making of these orders.
The child’s medical centre (Order 30)
This order requires each of the parties to nominate a medical centre for the child to attend and to endeavour to ensure that the child only attends that medical centre. The mother submitted that this order was erroneously made because the Family Consultant recommended that it would be in the best interests of the child to have the same medical centre. That may be so and readily accords with common sense, but the fact that a different order, which is not obviously inappropriate or unreasonable in the circumstances was made does not identify error.
The mother’s continued attendance with her psychotherapist (Order 32)
Order 32 requires the mother to continue to attend her current psychologist for psychotherapy, or if she is not available, another appropriate clinical psychologist. As part of that order the mother is required to inform the father of the name and contact details of any new treating psychologist. Although, there was no evidence that the mother was about to change her treating psychologist his Honour said that the basis of this order was:
254.… Given the mother’s mental health history, information about any new psychologists or any information that such therapy will cease should be made available to the father and will overcome the issues of the mother’s non-disclosure which has been prevalent in the past.
The mother was unable to say what error there was in this reasoning and we are of the view that no error has been shown.
Should the ICL be entitled to provide documents to the mother’s general practitioner and psychologist? (Order 33)
Order 33 empowers the ICL to provide the psychiatric assessments of the mother provided by Dr B, the Family Report and a copy of the orders and reasons for judgment to the mother’s general practitioner and psychologist. The mother suggested that this order was erroneously made because it applied only to her. Given that the evident purpose of this order is to enable the mother’s general practitioner and psychologist to provide more informed assistance to her, it is difficult to identify any error.
The dismissal of all outstanding applications (Order 36)
There were no outstanding applications and the mother agrees that this aspect of the appeal is pointless.
APPEAL NO. NAA 17 OF 2021
On 10 September 2021, the primary judge refused to stay the orders subject of the appeal pending its determination. The mother appealed against that decision. Save for two matters raised by the mother, that appeal is now futile given that the appeal has been heard.
The two matters raised by the mother were that the orders require her to move residence by no later than 7 January 2022. The second matter is that the order for schooling will start to apply from the beginning of 2022 because the child will commence kindergarten.
As to the first, we consider that there is force in the mother’s position and that there was also strength in her appeal against the order requiring her to live within 30 kilometres of the father’s home. It would be most unfair if she was required to move by that order, which was then subsequently set aside on appeal. We were therefore satisfied that that aspect of the order should be stayed pending determination of the appeal and at the conclusion of the hearing on 9 December 2021 we made orders to that effect. We declined to make any further orders. The child is due to commence school at some time in 2022 and as the parties cannot agree on a school, some mechanism will need to be put in place for that to occur.
COSTS
The parties asked us to make directions for the provision of submissions as to costs after the outcome of the appeal was known. Our preliminary view is that after having arrived at the outcome, there should be no orders as to costs on the appeal.
However, if any of the parties seeks a different order, they may file written submissions identifying the orders they seek and the reasons those orders should be made within 14 days, with the remaining parties having 14 days to file submissions in reply.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Campton & Christie.
Associate:
Dated: 28 February 2022
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