PASLEY & BAUDIN
[2015] FCCA 367
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PASLEY & BAUDIN | [2015] FCCA 367 |
| Catchwords: FAMILY LAW – Children – order for equal shared parental responsibility in place – failure of parents to decide on school for child – failure of parents to communicate. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60I, 61C, 61DA, 65DAA(3), 65DAA(5), 65DAC, 117 Federal Circuit Court Rules 2001 |
| Re G: Children’s Schooling (2000) FLC 93-025 Aldridge & Keaton (2009) FLC 93-421 Burton & Churchin and Anor [2013] FamCAFC 180 Peake & Benedict (Costs) [2014] FCCA 2723 Aon Risk Services and ANU [2009] HCA 27 |
| Applicant: | MS PASLEY |
| Respondent: | MR BAUDIN |
| File Number: | AYC 469 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 6 February 2015 |
| Date of Last Submission: | 6 February 2015 |
| Delivered at: | Parramatta |
| Orders Delivered on: | 6 February 2015 |
| Reasons Delivered on: | 20 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Garwell of Pogson Cronin |
| Solicitors for the Respondent: | Mr Huggins of Skinner & Associates |
ORDERS
By consent the child [X] born [omitted] 2009 shall forthwith be enrolled in [M] Primary School and shall thereafter attend that school unless otherwise agreed in writing between the parents.
Pursuant to s.65DA(2) and s.62B, 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.
Dismiss all outstanding Applications.
Remove all issues from the list of matters awaiting hearing.
Reserve my Reasons with respect to the above determination.
IT IS NOTED that publication of this judgment under the pseudonym Pasley & Baudin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
AYC 469 of 2013
| MS PASLEY |
Applicant
And
| MR BAUDIN |
Respondent
REASONS FOR JUDGMENT
The proceedings
This matter falls into a category of proceedings that have no place before the Court.
There are a number of bases upon which that assertion is made, including:
a)These parties have not attended Family Dispute Resolution prior to commencing these proceedings. A certificate was issued by Family Dispute Resolution Practitioner evidencing the non-attendance of these parties at Family Dispute Resolution. The certificate was issued on the basis that the Respondent had failed or refused to attend. I will deal with that issue separately.
b)The parties have existing final parenting orders in force. Those orders provide for the parents to have equal shared parental responsibility. This application is confined to a singular issue and is brought following the first occasion upon which, it would appear, the parties have been required to consult and attempt to reach agreement as to a “major issue” decision. On the basis that the parties have, as it were, fallen at the first hurdle, it would appear that the order for equal shared parental responsibility has little, if any, utility. Again, I will deal with that issue separately.
c)The singular issue which the Court is called upon to determine is the selection of the specific school that the child of these parties will attend. The parties agree that their child must commence school in 2015. The parties agree that their child will attend a Catholic school. The parties have identified three schools in the general area in which they live. The mother has nominated one or other of two of the three schools and the father insists upon the third.
The dispute between these parents is trivial and focused upon considerations other than the best interests of their child. It is tempting to suggest that a dispute of this nature should not come before the Court in light of the Court’s present workload and lack of resources. However, that would ignore the fundamental difficulties that underscore this dispute and its placement before the Court, being:
a)The manifest inability of these parents to communicate with each other;
b)The father’s refusal to engage in communication directly with the mother (and his strident assertions, in this application and in prior proceedings, that the mother will not negotiate with him or agree to anything that he proposes, that assertion being maintained notwithstanding that the evidence would suggest the contrary); and
c)The apparent desire by the father to have a triumvirate of decision making with respect to the child, comprising the child’s parents and the father’s partner (to whom the father would appear to delegate his responsibility as a parent, practising equal shared parental responsibility, to engage with the child’s mother).
Subject matter of the proceedings
On its face these proceedings concern future parenting arrangements for a young child [X] born [omitted] 2009 (aged five years).
I have described the subject matter of the proceedings in the above terms, as I have some concern that the basis upon which the proceedings are “necessitated” (although, as would be apparent from the above, I am not at all satisfied that these proceedings are “necessary”) is disconnected from the child’s welfare or from any significant consideration thereof.
The only relief that is sought in the proceedings is in the following terms:
That the child [X] attend [M] Primary School or [A] Primary School;
That within 24 hours of these orders being made the parties do all such acts and sign all such documents necessary to enrol the child in one of the above schools.
The relief sought by Ms Pasley is opposed by Mr Baudin.
Mr Baudin proposes that [X] attend school, not in [omitted] where the mother lives, but in [B] where he and his partner Ms P live. It would appear from the evidence that:
a)Ms P’s two school aged children (being her children from a prior relationship) attend [F], the third school proposed, located at [B];
b)[M] Primary School is approximately 3km from the mother’s home;
c)[A] Primary School is approximately 5km from the mother’s home;
d)[F] is approximately 11km from the mother’s home;
e)The parties live approximately 12km (a trip by car of approximately 15 minutes) apart from each other.
Material considered
In dealing with these proceedings today I have read and considered each of the following documents:
a)Initiating Application filed 2 February 2015;
b)Affidavit of Ms Pasley sworn 29 January 2015 and filed 2 February 2015;
c)Financial Statement affirmed by Ms Pasley 29 January 2015;
d)Notice of Risk filed 2 February 2015. The Notice of Risk is filed in accordance with the Federal Circuit Court Rules 2001 which make the filing of such notice compulsory. The Notice filed does not raise any allegation of abuse or risk. A Notice of Risk was filed by Ms Pasley in the prior proceedings. I have read and considered that Notice also, as its contents would appear to have some relevance as regards the aetiology of present communication difficulties between the parties. On that basis I have also read and considered the Response which had been filed by Ms Pasley in the previous proceedings and which had sought an order for sole parental responsibility;
e)A Family Report dated 2 April 2014 and prepared in the prior proceedings;
f)The present parenting orders relating to the child [X] and being orders made by consent 8 May 2014; and
g)A section 60I Certificate under the hand of a Family Dispute Resolution Practitioner employed by the Wodonga Family Relationship Centre.
In dealing with these proceedings I have not received any written material from the Respondent. When the matter was first called I was advised by the Respondent’s attorney that a Response and Affidavit had been prepared and were ready to be filed. Those documents were not, however, filed or placed before me prior to the matter being dealt with as the last matter in a duty list.
The Application was, on filing, subject to an application for abridgment of time. That application was dealt with by me in Chambers. An abridgment of time was granted on the basis that it was apparent that the child was required to commence school (indeed the child had been required to commence school in the days immediately preceding the filing of the Application) and the child’s enrolment at school was not possible as the parents had not agreed upon the school the child would attend.
I have had the benefit of submissions by the attorneys for each party and, in particular, submissions by the father’s attorney relating, evidence from the bar table as it as were, the father’s position and allegations.
These proceedings were given brief consideration by the Court. I have no doubt that the father would consider that his position had been given “short shrift”. It must be made clear, however, that the matter is dealt with in circumstances of “urgency” created by the parties and their failure to act or agree, rather, than any objective circumstance. Further, the matter, subject to the artificial creation of such “urgency” required determination as the last matter in a week of busy duty work on a regional circuit.
The prior proceedings between the parties had occupied significant resources. The matter had come before the Court on not less than four occasions and had required the preparation of a Family Report. Both parties were, throughout those past proceedings and, again, in this round of proceedings, legally represented.
Prior to commencing the past proceedings the parties had attended Family Dispute Resolution on at least two occasions and each had legal representation attend with them on at least one of those occasions.
The primary order, that made 8 May 2014, provides that these parents have equal shared parental responsibility for the child. It is an order made by consent. It is not an order which would appear to be supported by the present inability of these parents to recognise or comply with their obligations as parents with equal shared parental responsibility and as defined by section 65DAC of the Act.
The Albury/Wagga Wagga Circuit in which these proceedings are filed has a significant workload. This case was the 111th matter dealt with during the one-week sitting. The circuit comprises 10 weeks of sittings per year in Albury. The workload of the circuit and the number of matters filed would dictate a full-time judicial presence on the circuit rather than a full-time workload being dealt with, or attempted to be dealt with, in 10 weeks per year. However, the Court’s resources simply do not permit that allocation of judicial time. In those circumstances the fact that this matter required any judicial time at all is scandalous.
When the matter was first called I had made clear to the parties, in the most blunt and direct of language, that I considered their dispute to be “pathetic” and suggestive of both an inadequacy in their ability to parent a child and counterintuitive as regards the continuation of an order for equal shared parental responsibility.
Upon further consideration of the material that has been placed before the Court (whether in written form as regards the mother or through submissions in the case of the father) I am concerned that my criticism of the parents equally has been somewhat harsh. The criticism that flows should be seen as directed far more substantially towards the father and for reasons that will be explored herein.
I also make clear that I can readily envisage circumstances in which parties with equal shared parental responsibility might be unable to agree with each other and seek assistance to address their dispute. This case is not, however, within that category of cases where application to the Court might be appropriately foreseeable. This is a dispute that arises from nothing more than an inability of parents to cooperate and communicate and, in the case of the father, a failure to communicate at all.
After the matter was first called the proceedings were stood in the list to enable the parties to discuss, with the assistance of their legal representatives, the one simple issue in dispute between them.
I had raised with the parties and each of them the above concerns and views and had made clear that in the absence of resolution the matter would be dealt with by the Court, on the basis of the material as filed, and with the real possibility that the order for equal shared parental responsibility to which the parties had consented might be discharged.
The Court then sat from 9:30am until 3:30pm without adjournment to deal with the other 15 interim hearings listed on the day. Each of those matters was dealt with to conclusion, some by consensus, others determined by the Court. When this matter was recalled it was made clear that the parties had agreed on nothing. That was so notwithstanding that:
a)These parents have in their favour an order for equal shared parental responsibility which they wish to continue, notwithstanding, that it would appear to be a fiction:
b)The parents agree that the child must commence school in 2015 (and notwithstanding that the school year had already commenced and the child has not commenced school as the parents could not agree on the school that he would attend);
c)The parents agree that the child should attend a Catholic school (there being two such schools available in [omitted], where the mother lives, and one available in [B], where the father lives); and
d)Each has the assistance of a legal representative.
History of proceedings
This is the second set of litigation involving these parties. The first round of litigation was commenced by the father by Application filed 27 November 2013. That Application was, consistent with this round of litigation, commenced on short notice and the subject of an application for abridgment of time. That application arose in the context of the mother’s relocation with the child from the Albury Wodonga area to Townsville.
On the first return date of the father’s Application a significant number of orders were made including, most importantly, an order that [X] be returned to the Albury Wodonga area. Interestingly and of some relevance an order was also made, pending further order, that the parents would, pursuant to section 61C of the Act, have joint and several parental responsibility rather than joint and equal parental responsibility. Orders were also made regulating [X]’s time with his father, being each alternate weekend from Friday to Monday together with a period from Wednesday to Thursday each week (a total of five nights per fortnight). The order which presently operates to regulate [X]’s time with the father is, in essence and with the addition of school holiday time, in the same terms.
Apprehending that communication between the parties was less than ideal orders were made on 4 December 2013 (the first return date of the prior proceedings) for both parties to attend Family Counselling Services (through Upper Murray Family Care) and complete an online program. The parties would appear to have participated in those services but with no impact or benefit as regards parental communication and cooperation.
Following release of a Family Report, which Report I have also considered in these proceedings, final parenting orders were made by consent 8 May 2014.
The evidence
The parties agree that they separated from each other in or about September 2010. At that time [X] was approximately 10 months of age. At the time of separation the parents were both living in Canberra and Ms Pasley, with [X] in her care, returned to the Albury Wodonga area where the parties had both grown up and where both had been living at the time that they met and commenced their relationship with each other.
As regards the history of the relationship between the parents, especially from separation until the last set of proceedings were commenced, I propose to refer to the Family Report. The Report makes the following clear:
a)One of the significant issues in dispute or which precipitated dispute between these parents was that “… They have little or no communication – any communication is only between Ms Pasley and Ms P (the father’s partner)” (paragraph 12).
b)The father, Mr Baudin, expressed a desire “… That he wants them all to get along and have flexibility so that [X] can be more involved with each family and does not miss out on what happens”. The subsequent evidence, as filed in these proceedings, would suggest that such intent, if expressed, has lacked any praxis to take it beyond mere rhetoric (paragraph 19).
c)The father was clear, in regards to communication stating that he:
… and Ms Pasley do not talk. Ms P and Ms Pasley are able to talk to each other in regard to [X]. Mr Baudin said that every time he asked Ms Pasley to do something she says no” (paragraph 18).
d)When asked for an example of an occasion when he had made a request of Ms Pasley and she had “said no,” Mr Baudin referred to a request that he had made of Ms Pasley to allow [X] to attend a 10 day cruise with Mr Baudin and Ms P and her family. However, Mr Baudin made clear that “the day prior to these interviews Ms Pasley said that she agreed [X] could go” (paragraph 22). Ms Pasley, when questioned with respect to the cruise, had indicated:
… [X] is going on a ten day cruise and there will also be two days of travel with Mr Baudin and his family and she has agreed to this. Ms Pasley acknowledged that Mr Baudin has his family and she is not going to let [X] be disadvantaged (paragraph 34).
e)When Ms Pasley was asked about communication between she and Mr Baudin she responded that she:
… and Ms P (the father’s partner) communicate with each other about [X]. Ms Pasley said that since she has returned to Wodonga (having been ordered to do so December 2013) there has been a huge improvement in communication but prior to that there was no communication (paragraph 28).
It must be noted that whilst a “huge improvement in communication” was opined by Ms Pasley the improvement was between her and Mr Baudin’s partner, [X]’s stepmother, rather than between she and Mr Baudin being the person seized with parental responsibility for [X].
f)Ms Pasley also commented “[X] is not allowed to talk about her at Mr Baudin’s house and she saw [X] being hurt. Ms Pasley was unable to talk to Mr Baudin and she could not see a solution” (paragraph 30).
g)When asked her views of Mr Baudin as a parent, Ms Pasley said:
… That he is a good dad in one aspect. He is a lot of fun but she does not think [X]’s emotional needs are being met. Mr Baudin has a very narrow way of looking at things. She and Mr Baudin are very different but neither is wrong (paragraph 31).
Ms Pasley added:
Prior to the relocation [late 2013] there was a high level of conflict and no communication at all. Now it is with Ms P but she would prefer to talk to Mr Baudin.
h)
As regards Ms P there was little or no criticism by Ms Pasley.
Ms Pasley did comment, however, that:
… while she appreciates what Ms P does for [X] she believed that Ms P needs to keep in mind that she, Ms Pasley, is still [X]’s mother (paragraph 37).
i)The Family Consultant, commenting upon [X], observed that he was “…a bright child who would more than likely be quietly learning from others with a greater capacity to retain knowledge.” And:
It is my view that Ms Pasley and Mr Baudin have the capacity to meet [X]’s intellectual and day to day emotional needs (they need to resolve their conflict to ensure they are able to meet [X]’s overall emotional needs) (paragraph 49).
j)The Family Consultant also addressed conflict and communication stating:
Conflict between Mr Baudin and Ms Pasley still remains an issue which on the surface is managed as a result of Ms Pasley and
Ms P communicating about [X] but Mr Baudin needs to be the parent taking this responsibility” (paragraph 50).The Family Consultant concluded:
In regard to the conflict between Mr Baudin and Ms Pasley they need to be mindful that unless this conflict is reduced at the least then [X]’s long-term emotional well-being and development remains in jeopardy as they are not meeting his overall emotional needs (paragraph 53).
The mother’s evidence suggests as follows:
a)There is a present administrative assessment of child support requiring payments of child support by Mr Baudin to Ms Pasley of $64 per week. Those payments are not presently being made. There are accrued arrears of child support of $2083.
b)The parties had previously agreed that they would each pay one half of [X]’s preschool fees. The mother alleges that those fees were $90 per week and that since the making of orders on a final basis (or shortly thereafter) Mr Baudin ceased all payments.
c)[X] is a boy who is demonstrating some “social issues” both at preschool and more broadly. This would appear to have included (and text messages between the parties annexed to Ms Pasley’s material would suggest agreement between the parents that it is so) shyness, social awkwardness and reluctance to interact with other children in unfamiliar environments as well as biting other children. A referral for [X] to attend for some form of assessment (recommended by his preschool) was refused by Mr Baudin whom, it is suggested by Ms Pasley, intervened to cancel the appointment that had been made. Those matters are dealt with in some detail at paragraphs 5 – 9 inclusive of Ms Pasley’s Affidavit.
d)Discussion between the parents as to [X]’s school has occurred by text message and correspondence between the attorneys for the parties. Ms Pasley suggested a face-to-face meeting to discuss arrangements. Mr Baudin had responded, by text, to indicate that the only face-to-face meeting he would attend would be mediation and that he would arrange mediation.
e)Mr Baudin did not arrange mediation. Ms Pasley did. Mr Baudin failed or refused to attend mediation and as a consequence a non-attendance certificate was issued by a Family Dispute Resolution Practitioner. Through his attorney, Mr Baudin suggests that he contacted the Family Dispute Resolution Practitioner and had, upon speaking with them, made clear his desire to attend Family Dispute Resolution. I do not accept that is so. A Family Dispute Resolution Practitioner, I have every confidence, would not issue a certificate to a party asserting that a party had failed or refused to attend if that party, Mr Baudin, had, as he suggests, indicated his clear willingness to attend.
f)In each of May and June, text message communications between the parties occurred regarding both [X]’s readiness to commence school and the school that he would attend. What is clear from that material is that:
i)Ms Pasley had some real concerns that [X] was not ready for school;
ii)Ms Pasley arranged and attended information days at each of the three schools the subject of this controversy including the school which Mr Baudin has indicated as his preference. It would appear that Mr Baudin ultimately attended an appointment with the school of his choosing, (though not the other two) in late January 2015;
iii)Ms Pasley made clear her desire to meet with Mr Baudin and discuss the matter. Further, it is clear that Mr Baudin did not take up that offer nor follow through, as he indicated he would, with arranging and attending mediation to discuss the issue. It must be observed that the inability of parents to engage in any form of direct discussion other than facilitated negotiation through Family Dispute Resolution would contraindicate the appropriateness or sustainability of an order for equal shared parental responsibility;
g)On the second occasion (June 2014) when Ms Pasley raised the proposal for a face-to-face meeting Mr Baudin responded “talk to [Ms P] and find a day that would suit us and let you know”. It would not appear that any suitable date was then communicated.
h)Ms Pasley then instructed attorneys, as early as October 2014, to seek to resolve the issue through a form of lawyer assisted negotiation. Nothing was achieved. When [F] was proposed by Mr Baudin’s attorney Ms Pasley, through her attorney, responded:
My client cannot facilitate [X] attending [F]. [F] is situated about 12km from her home, her workplace and [omitted] where she will be studying this year. My client would not be able to facilitate the drop-off and collection at [F] due to work and study commitments. My client is also unable to afford the cost of the additional petrol to travel to and from [F].
i)This was ultimately responded to by Mr Baudin, directly by text message, raising a number of issues, none of which were responsive to the matters raised by Ms Pasley and, it must be noted, raised in the context of a significantly heated dispute between the parents as to return of [X] to the mother’s care at the conclusion of the school holiday period, and which opined “I don’t want him to feel disconnected to his family coz (sic) we try so hard for our kids to feel as one family”.
Through submissions by his attorney Mr Baudin suggested that Ms Pasley was “incapable of making decisions focused on [X]’s best interests and her proposals are purely focused on her convenience”. It was offered that Mr Baudin’s partner, Ms P, was content to undertake all travel transporting [X] to and from [F] (being the school that her two elder children of a prior relationship attend) and thus obviating the need for Ms Pasley to engage in any travel to transport [X] to and from school. It was also made clear that Mr Baudin could not attend to any transport himself (including on the mornings and afternoons when [X] was in his care) as he commences work at 6:30am each morning and did not finish work until after school hours.
Equal shared parental responsibility
Before turning to the legislative pathway I propose to briefly address the nature and meaning of “equal shared parental responsibility” and its relevance to this application.
The obligations imposed upon parents with equal shared parental responsibility are set out in section 65DAC of the Family Law Act 1975 as follows:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Importantly, the section makes clear that parents must make joint decisions regarding “major long-term issues”. “Major long-term issues” is a phrase defined in section 4 of the Act as follows:
Major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
In the context of this case, where there is no dispute that there was little if any direct communication between these parents other than by text message, it is difficult to understand how the obligations created by the operation of an order for equal shared parental responsibility could be given any real life and meaning. Indeed, they could not.
Importantly, the evidence in this case suggests that the extent to which these parents can consult each other is ineffective and largely indirect communication of their position by text message. There is no direct communication between the parents by any other means and clearly little, if anything, has changed over the last 12 months or so as to both the level and effectiveness of communication between these parents.
To the extent that communication occurs between these parents it is:
a)Largely indirect. Mr Baudin would appear to delegate to his partner Ms P his responsibility to consult with Ms Pasley. Such delegation is entirely inappropriate;
b)Ineffective. The parties would appear to be unable to agree on even minor issues;
c)Impolite particularly as regards Mr Baudin’s communication by text message with Ms Pasley;
d)Non-respectful and non-principled negotiation. Particularly in the case of Mr Baudin, contrary to his allegation as regards Ms Pasley, communication is largely focused upon an attempt to convince or persuade the other to their point of view. The negotiation is “non-principled” in that it would appear to be driven by if not solely based upon a consideration of that which the parent desires without regard to the child’s best interests let alone the impact of the arrangement upon that child or upon the child’s relationship with the other parent. It is not respectful in that Mr Baudin does not acknowledge or respond to that which Ms Pasley expresses.
An order for equal shared parental responsibility, if it is to have any genuine meaning or validity in its operation, requires a mutual commitment by parents to joint and consensual decision-making and, at least, some modicum of commonality in their views and their perception of the child’s best interests. This would not appear to exist as between Mr Baudin and Ms Pasley.
It is on the above basis that I had suggested to these parties that the resolution of this application could occur by the discharge of the existing order for equal shared parental responsibility and the allocation of parental responsibility to one parent alone (whether across-the-board with respect to all major issues decisions or with respect to education and schooling solely).
I am conscious that a body of jurisprudence exists regarding determinations by the Court of schooling issues. Principal amongst these is Re G: Children’s Schooling (2000) FLC 93-025. Leaving aside that jurisprudence for one moment (and I do not propose to disregard it in determining this matter and do not do so), it is clear, in this case, that the Court has no evidence available to it as to the child’s educational needs or how those educational needs might be better met by one proposal than the other. Absent one reference to the desirability of [X] attending “a small school” (contained in a text message sent by Mr Baudin) there is no suggestion, on the evidence of either parent, that such considerations have entered their mind. Each advocates in favour of the school or schools they propose based upon logistical considerations and, in the case of Mr Baudin, his desire for [X] to attend the same school as Ms P’s children and, one would envisage, the child of Mr Baudin’s relationship with Ms P once that child reaches school age in some years hence.
This is a parenting case which must be dealt with by reference to the legislative pathway in part VII of the Family Law Act 1975 and not otherwise. However, the case must be dealt with by reference to the evidence before the Court which evidence, I am conscious, makes nonsense of any suggestion that these parents are capable of appropriately exercising equal shared parental responsibility. No doubt these parents will quickly find some other or additional issue that brings that matter to a head and will do so expeditiously bearing in mind that the first joint decision they were called upon to make has led to this application.
Legislative pathway
The Court is reminded by section 60CA that the child’s best interests are the paramount consideration in all that is done.
I must then turn to the objects and principles set out in section 60B and which I incorporate herein:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles do not form part of the substantive law to be applied to the facts and circumstances of the case. They do, however, guide the interpretation and application of the substantive provisions and provide a general philosophical overview of the purpose to be served by orders made by the Court.
Neither party asserts in these proceedings that there is a risk of harm to the child, nor any need to protect the child from physical or psychological harm through exposure to abuse, neglect or family violence. There is certainly some concern as to the impact of parental conflict and dysfunction in parental communication upon this child’s emotional and intellectual development. However, that falls short of the test which the objects and primary considerations (see section 60CC(2)) requires.
Importantly, I am required by the first object to “ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child”. This outcome could not, I am satisfied, be achieved on Mr Baudin’s proposal.
Whilst there may be some discussion as to the differential application of certain portions of the legislative pathway to “parents” and “non-parents” I am satisfied, consistent with the Full Court’s decision in Aldridge & Keaton (2009) FLC 93-421 that the objects and principles should be applied broadly. However, what is clear from Mr Baudin’s proposal is that young [X] attending the school Mr Baudin prefers and nominates will:
a)Minimise if not significantly curtail or obviate against Ms Pasley’s “meaningful involvement” in [X]’s life as principally reflected through his school attendance. This child commencing school and attending school is a significant event in his life and Ms Pasley’s and will be an important part of his life for the next 13 or more years. Ms Pasley makes clear that she wishes to be actively involved in that schooling and education. Ms Pasley makes clear that she will make arrangements within her life, by reference to employment and study, to maximise her participation, including her desire to be able to deliver young [X] to school and collect him from school on each day that he is in her care.
b)Under the existing parenting orders Ms Pasley will be responsible for 14 of the 20 trips to or from school to be undertaken in a fortnight. The mathematizing exercise is not undertaken for any purpose other than to highlight the degree to which Ms Pasley’s active and meaningful involvement in the child’s life would be curtailed if she were unable to transport the child to and from school. Ms Pasley asserts this would be a consequence of the child’s enrolment at the school preferred by Mr Baudin.
c)Set against the above is the concession, accompanying Mr Baudin’s position, that he will have no involvement let alone meaningful involvement in transporting [X] to and from school. That duty, just like communication with Ms Pasley, will be delegated to Ms P. On Mr Baudin’s proposal it is Ms P who will attend to all transport of [X]. That is Mr Baudin’s alternate proposal expressed as alleviating Ms Pasley of the logistical and financial concerns she raises regarding [X]’s transport to and from [F]. The proposal would see the responsibility for all transport fall upon the shoulders of Ms P.
d)Mr Baudin’s proposal ignores the importance of and relevance to [X] of Ms Pasley being involved in [X]’s education and taking him and collecting him from school. It treats his transport as nothing more than a functional arrangement to solve a logistical problem. That is explicable.
e)Ms P is a person of great importance to [X]. Ms P lives as part of the household of [X]’s father. She is the mother of [X]’s sibling as well as the mother of [X]’s two step siblings. There is no specific evidence regarding the relationship between [X] and those siblings and step siblings, although I am prepared to accept that they, no doubt, have a very good relationship with each other. Ms P, however, is not [X]’s mother. Nor is she a “parent”. She is a person of great significance who plays a significant role in parenting [X] at least in the father’s household. She plays a role of far greater significance than many “step parents” in that she is the principal means by which information is communicated between the two households between which [X] passes, with respect to [X] and his welfare.
The balance of the objects cannot be meaningfully addressed in this determination requiring, as they do, that the Court’s orders ensure that children receive adequate and proper parenting and that parents fulfil their duties and responsibilities. On one hand there is no need for the Court to become involved in those issues as these parents will clearly meet [X]’s needs without any order of the Court. To the extent that concerns are raised, however, of possible impediments to parental capacity they arise in the context of conflict and dysfunctional parental communication. The Court has already done what it can to address those concerns through referring the parties to Family Counselling Services. Attendance upon those services would not appear to have developed or deepened the insight of these parents, jointly or individually, as to the need for them to co-operatively parent and resolve difficulties of this nature.
I am conscious that the greatest predictor of detriment to [X] is, in all probability, the presence of his parents before this Court dealing with this issue, an issue which could and should have been addressed consensually between the parents. That the issue has not been resolved consensually demonstrates, that the concerns raised by the Family Consultant only eight months ago, commenting clearly upon the disadvantage to [X] of poor parental communication and conflict, is ongoing.
The principles in section 60B(2) of the Act create certain rights for [X]. Those rights are, by and large, met by both parents and within their respective households. The right which is not met, and the existence of these proceedings suggest will not realistically be met in the future, is [X]’s right to have his parents agree about his parenting. That is a right which can only be fully achieved or achieved at all, by these parents developing a far greater depth of communication and effective communication. That includes means of and avenues for communication between the parents directly, rather than via Ms P – for these parents to directly discuss and resolve matters between them. The right also imports and implies that each parent makes a genuine effort to resolve disputes as and when they arise, including through compromise, self-reflection and child focus.
Before leaving the objects and principles, I wish to be clear in my rejection of the submission put by Mr Baudin that Ms Pasley’s proposal, for [X] to attend a school proximate to her home, is a proposal which lack’s child focus and which is focused on Ms Pasley’s needs and interests. Ms Pasley’s proposal would appear to be abundantly reflective of and responsive to present facts and circumstances including her legitimate interests as a parent with a primacy of parenting responsibilities for [X] (which responsibilities require that she be available to her employment and study as an important concomitant of meeting her duties and responsibilities as a parent). Ms Pasley must be practically and physically available to discharge her responsibilities and obligations and financially able to do so. Ms Pasley’s proposal reflects her deep consideration of the various issues that arise in relation to [X]’s schooling, (including in consultation with those who know [X] well), of his preparedness for school, a preparedness not only academically but also socially together with a consideration of [X]’s need to establish friendships, peer groups and general arrangements proximate to his principal place of residence.
I must then turn to the presumption of equal shared parental responsibility contained in section 61DA of the Act. In this case an order on a final basis and made by consent operates to provide these parents with equal shared parental responsibility. Absent an application by either party interference therewith is not necessary. I am satisfied that the presumption of equal shared parental responsibility applies.
I again make clear that disputes such as that presented in this case would ordinarily obviate against the continuation of equal shared parental responsibility. If nothing else such an order is demonstrated to be impracticable, indeed unworkable, when such a simple decision cannot be addressed other than through litigious intervention.
I am concerned that these parents have had the benefit of legal advice and representation in seeking to deal with and address this issue and yet have not. I make clear that this criticism focuses upon the parents and, in particular, Mr Baudin rather than upon the legal advisors for either. It is a matter for parties to accept legal advice that is provided to them.
Ms Pasley’s application for court intervention in this dispute is appropriate in the circumstances. Ms Pasley has had little if any choice. As a parent she, jointly with Mr Baudin, has an obligation, pursuant to state law, to ensure the enrolment of this child in school. Mr Baudin is clearly aware of that obligation having attached to correspondence forwarded by his attorney, material produced by the Victorian Department of Education and having highlighted the relevant portion for Ms Pasley’s edification.
Having attempted to arrange Family Dispute Resolution without the successful engagement of Mr Baudin and having attempted to achieve a resolution through lawyer assisted negotiation Ms Pasley was faced with the stark choice of doing nothing (and thus failing to comply with her legal obligations and failing to meet the child’s need for education) or commence these proceedings to bring the matter to a head.
It is inexplicable that the matter has not resolved today let alone prior to the first Court event. It is all the more inexplicable that the matter is not resolved today when the parents agree that the child must attend school and, further, agree that their child will attend a Catholic School. For this child, described as bright albeit with some social impediments, to be held back from commencing school on the first day of school by parents who cannot agree on something so simple is tragic.
Ms Pasley has not sought any order from this Court (nor would it be appropriate to do so) seeking to impose financial responsibility for the child’s school fees upon Mr Baudin. One would hope that the parents will each contribute one half of the costs. However, if there is any dispute between the parents regarding those fees then the matter should be properly dealt with by the Child Support Agency rather than the Court. There is no great optimism that the matter would be consensually resolved in light of the allegation that Mr Baudin has, since June 2014, withdrawn from his agreement to meet one half of the child’s preschool fees and has, during the same period and to date, failed to make payments with respect to a very modest assessment of child support. Presumably, Mr Baudin does not believe that any cost is incurred in providing for this child.
Notwithstanding the significant reservations the Court holds as to the utility or meaningful operation of the present order for equal shared parental responsibility, I am not urged by Ms Pasley’s attorneys to discharge that order and, accordingly, do not do so.
Section 60CC
I must commence with the primary considerations being:
a)The benefit to the child of a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm as a consequence of exposure to abuse to neglect or family violence.
As has already been noted there is no allegation raised in these proceedings which would enliven the Court’s need to make orders for this child’s protection (notwithstanding that there is an ongoing concern as to the extent to which the child’s intellectual and educational needs might or might not be met having regard to the conflict and communication dysfunction between these parents).
The benefit to [X] of a meaningful relationship with both parents is, superficially, not impacted by this determination dealing purely, as it does, with the school that [X] will attend. To the extent that I am urged to take account of [X]’s relationship with his step siblings, who attend the school preferred by the father, I am conscious that the Full Court’s decision in Burton & Churchin and Anor [2013] FamCAFC 180 would preclude a consideration of that fact as a primary consideration (although it would be wholly appropriate to consider those relationships as part of the additional considerations).
[X]’s meaningful relationship with his mother supports the relief which Ms Pasley seeks. Ms Pasley desires active involvement in [X]’s schooling – taking him to and from school each morning as well as being involved with his school and all other arrangements in his life.
Ms Pasley is clear in her evidence that there will be significant barriers, practical and financial, to her having a significant level of involvement and thus furthering, deepening and practising a meaningful relationship with [X], if he were to attend the school Mr Baudin proposes. Sadly, Mr Baudin would not appear to recognise these barriers particularly to the extent that he proposes that his partner Ms P would “offer assistance” by transporting the child to and from school in place of
Ms Pasley. Through such proposal Mr Baudin, who concedes he is not in a position to personally attend to such transport at any time, appears to misapprehend the importance of that involvement in developing, maintaining and practising a meaningful relationship with the child.
A meaningful relationship with a child is developed by “parenting” the child. That involves attending to his daily care and being engaged with and participating in his daily routine. That is, perhaps, all the more pertinent for this child who is suggested to be somewhat anxious regarding school attendance and suffering some degree of social awkwardness whether impacted by the arrangements for his care, past or present, or by the level of parental conflict.
This consideration is perhaps also best addressed by reference to that contained within section 65DAA(3) containing the definition of “substantial and significant time”. In this case each parent enjoys “substantial and significant time” with [X].
The section 65DAA(3) definition is as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Ms Pasley wishes to spend time with [X]. That will allow her to be involved in [X]’s daily routine and occasions and events that are of particular significance to him and principally his schooling and his delivery and collection therefrom. I am not satisfied that it would be appropriate to interfere in the desire of a competent parent to be so involved. As Ms Pasley can be involved in such arrangements and
Mr Baudin cannot there is further compulsion to ensure that [X] has the benefit of at least one of his parents being involved in his routine and making daily arrangements for his care and education.
Additional considerations
Views
There is no evidence led as to [X]’s views on the school that he will attend. Nor, at [X]’s age, would such evidence be dispositive.
Nature of the child’s relationship with each parent and other persons
There is no real evidence which speaks to [X]’s relationship with any person. I am perfectly content to accept and assume that [X] has a meaningful relationship with each of his parents, Ms P, his sibling (in the father’s household) and his step siblings.
The father urges that [X] should attend the same school as his step siblings so as to further those relationships and, as the father expresses in a text message, so that [X] does not “feel different to his siblings coz (sic) he goes to a different school”. In the absence of evidence as to this being a ready, predictable reaction by [X] I would not be prepared to place any significant weight upon the submission. Further, any weight that was given to the submission would be outweighed by the requirement, by reference to the primary considerations, to consider [X]’s meaningful relationship with each parent.
I am satisfied that [X] has a meaningful relationship with his mother, Ms Pasley and that the relationship would be made more meaningful through [X] attending a school with which Ms Pasley can engage and to which Ms Pasley can assist in transporting [X] and engaging with him thereat.
I am satisfied that [X]’s meaningful relationship with his mother would be impacted disadvantageously through his attendance at a school which his mother could not readily transport him to and from, or engage with him at.
The school that [X] attends will not impact in any way upon [X]’s meaningful relationship with his father and particularly in light of that put by the father’s attorney, on the father’s instructions, that the father’s work commitments preclude his transporting [X] to or from school or engaging with him thereat. That is not to say that a working parent cannot make appropriate arrangements nor have a say in school selection. But Mr Baudin wishes to go further, to dictate, practically and effectively, the arrangement that will apply to and bind [X]’s time with his mother and disadvantageously so.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making
I am satisfied that Ms Pasley has not, at any time, failed to take the opportunity to participate in decision-making regarding this issue or any other.
I am satisfied that Mr Baudin has failed to participate in decision-making regarding the school attended by [X] and particularly through:
a)Rejection of Ms Pasley’s entreaties to meet and discuss the issue directly with her;
b)
Delegation to his partner Ms P of all communication with
Ms Pasley;
c)Failure or refusal to arrange or attend Family Dispute Resolution;
d)
Failure to consider any proposal put by Ms Pasley or any proposal or position other than that which he had clearly determined in his own mind being [X]’s attendance at school commencing 2015 and attendance at the school preferred by
Mr Baudin, being that attended by the children of Ms P.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Clearly, Mr Baudin has failed in his obligation to maintain [X].
Mr Baudin discontinued payment of or contribution towards pre-school fees within some weeks of final orders being made between these parents by consent and which incorporated, whether as part of the order or as an ancillary agreement, agreement for equal payment of such fees.
Mr Baudin has, for reasons that are entirely unexplained, failed to make payments of child support in accordance with a modest assessment and has failed to do so for an extended period accruing substantial arrears.
The failure by Mr Baudin to provide financial support for his child reflects poorly upon his approach towards and his attitude with respect to parenting. It does not reflect well upon his level of commitment to his child. It casts the burden for this child’s support upon Ms Pasley. Importantly, in the context of this determination, it makes all the more compelling the matters that are raised by Ms Pasley as to her inability to transport the child to the school proposed by the father even though it is within a relatively short distance of the mother’s home.
Likely effect of change including separation from either parent or other child or person
The orders that are proposed by Mr Baudin would have the effect of separating [X] from his mother each morning and afternoon. [X] enjoys a meaningful relationship with his mother. Further, Mr Baudin’s proposal would affect [X]’s separation from his mother for important and meaningful times and purposes (i.e. impacting the mother’s ability to transport [X] to and from school and interact with him regarding his education). Such disadvantage would have no corresponding advantage.
Whilst I accept that there may be some advantage to [X] attending the same school as his step siblings and, perhaps, even spending more time with his stepmother Ms P, it would be at the expense of important and meaningful involvement with his mother who not only has a meaningful relationship with him but has had a primacy of care for him since his birth.
Mr Baudin seeks, as is noted in the final orders, to renegotiate care arrangements for [X] once he has commenced school and made some progress thereat. It is clear that Mr Baudin seeks to move towards an equal shared care arrangement. This dispute would suggest that such an arrangement is unlikely to provide significant benefit to [X]. It may in fact create some further difficulty or distress for [X] (particularly without address of the present difficulties in the parental relationship and their absence of communication). It renders the present orders, as regards decision making, impracticable.
Difficulties with shared care arise by reference to not only the difficulties in operation of equal shared parental responsibility (which this dispute highlights) but also by reference to the various considerations of practical difficulty and expense which the Court must have regard to and which, to the extent that such matters are particularised in section 65DAA(5), are expected to be present to establish the potential benefit to a child of such shared care arrangements.
Practical difficulty and expense
I incorporate herein section 65DAA(5) as follows:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and 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.
These parents do not live any significant geographical distance apart. Their homes are approximately 12 km or a 15 minute drive apart.
These parents do not live any significant geographical distance apart. Their homes are approximately 12km or a 15 minute drive apart. However, the parents operate their households very differently and, as is apparent from the evidence available, young [X] transitions between two households which have little if any effective communication between them nor consideration for each other. The evidence, at least as at the time of Family Report interviews in April 2014, suggests that [X] is not able to speak of or about his mother whilst in his father’s household. Concern is also raised as to [X]’s exposure to negative comments regarding his mother whilst in his father’s household.
These are matters of some significance in relation to any future consideration of living arrangements or allocation of parental responsibility. They would also obviate against the relief sought by the father as further increasing the child’s exposure or potential exposure to such disadvantageous if not injurious behaviours will not benefit [X].
The ability of these parents to implement an arrangement whereby this child would attend the school preferred by the father is rejected by the mother. I accept her evidence and particularly in the context of the non-payment of child support by Mr Baudin and the reality that he is proposing to address difficulties which the mother raises by ignoring the impact that his proposal (and the proposed solution) would have upon the mother’s relationship with the child and which would not involve the father.
It is entirely acceptable that a parent in the position of Mr Baudin, having re-partnered and having children living within that household, would seek to involve his partner in decision-making which will impact upon her (particularly to the extent that he proposes she would undertake all transport of [X] to and from school) or which will impact upon the household. However, to delegate all communication to her and to seek to elevate her position beyond that of his partner is inappropriate.
It is unclear why Mr Baudin does not wish to communicate with
Ms Pasley, the mother of his child. Whatever basis may be asserted by Mr Baudin he should seriously consider and address with a view to he and Ms Pasley building some degree of parental alliance and cooperation. Effective communication is presently, sadly, lacking. It is important that Mr Baudin takes on the role of inter parent communication and that this is not delegated to a third party (albeit that communication between Ms Pasley and Ms P is better than no communication all). It is for the parents to deal with the issues (personally and collectively) for the benefit of their children. It is what good parents do.
I am satisfied that the impact of the proposal by each party is addressed above. This would support a positive impact to [X] of attending school proximate to the mother’s home from which he will depart and to which he will return to the vast majority of occasions. This will also allow [X] to establish friendships and peer groups proximate to his primary place of residence.
I am satisfied that the impact of the father’s proposal upon [X] would, for the reasons discussed above, be negative.
Capacity of parents and others to meet the child’s needs
The Family Consultant had, only some eight months ago, commented upon this factor. The Consultant raised some real concern that, absent significant change in parental attitude, focus and practice, particularly as regards communication, there would be a significant incapacity demonstrated by one or other of the parents and a significant impact, disadvantageously so, upon [X].
To the extent that Ms Pasley has demonstrated a willingness and desire to engage with Mr Baudin in discussing and attempting to resolve issues relative to this child’s education, I am satisfied that she has a more positive attitude and a greater capacity to recognise and meet the child’s emotional and intellectual needs.
Maturity, sex, lifestyle and background of the child
Ms Pasley’s evidence raises serious concerns as to [X]’s readiness for school. Those concerns would not appear to be shared by Mr Baudin although he would also appear to be significantly less involved in any discussion of or address of those concerns with [X]’s preschool.
Ms Pasley gives clear evidence that the “social awkwardness” of [X] extends beyond his preschool and has included his attendance at extracurricular activities such as soccer and swimming. The extent to which Mr Baudin has been involved with those activities is unclear.
Mr Baudin’s address of these concerns is demonstrated by the text messages between the parents and which would appear, to paraphrase his position, to suggest that starting school will “be good for him” and will force him to address the concerns. Whether that is so or not is yet to be seen.
It is also concerning that Ms Pasley has made clear that an application for exemption to allow [X] to commence school in 2016 could have been a possibility but as the parents were unable to agree on making such an application it has not occurred. Thus, [X] will be left to commence school (albeit having missed the first week of the term as his parents could not agree on even an interim “good enough” enrolment strategy) and do the best that he can.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander and thus nor does [X].
The attitude to the child and responsibilities of parenthood
I am satisfied that this factor is addressed in the above discussion. It supports the relief sought by Ms Pasley who has demonstrated the superior attitude towards and discharge of parental responsibilities.
Family violence
There are no allegations raised in these proceedings.
Family violence orders
There are none.
Whether it is preferable to make an order that would least likely lead to the institution of future proceedings
Ultimately an order is made by consent, albeit begrudgingly in the case of Mr Baudin when faced with the prospect of an order for sole parental responsibility in Ms Pasley’s favour, that this child will be enrolled at and attend [M] Primary School.
It would be disastrous for these parents to be engaged in further litigation regarding this issue. The order that is sought by Ms Pasley is that which is most practical and most likely to achieve benefit for the child, the child’s meaningful relationship with each parent (as well as others but placing some level of primacy upon the child’s relationship with parents as opposed to others) and an end which will best avoid future proceedings. It is, on the evidence of either party, the most workable and sustainable arrangement and the arrangement that will best maximise the prospect for this child to successfully commence with and integrate into a school community and develop peer and friendship networks that will assist him and sustain him.
If the matter had required final hearing and being heard, as it is, on a busy regional circuit, it would not reach a hearing before 2016 thus leaving this child in a state of limbo for over one year. I am not satisfied that either parent could possibly apprehend that this would be advantageous to him. Certainly, from the Court’s perspective such a possibility is not contemplated as providing any benefit whatsoever to the child and thus the matter is brought to a conclusion today and in the circumstances described.
Family Dispute Resolution
As noted above these parents did not, prior to the proceedings being commenced by Ms Pasley, attend Family Dispute Resolution.
Section 60I(7) of the Act makes clear that, subject to exemption based upon reasonable grounds to believe that family violence or abuse has occurred, parties must attend or attempt to attend Family Dispute Resolution before making application to the Court. The section is prefaced in mandatory terms to provide “… The court… must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given… by a Family Dispute Resolution Practitioner”.
A certificate is filed in this case. However, the certificate that is provided in this case is a “non-attendance” certificate.
The discussion of evidence above would make clear that:
a)Ms Pasley had sought to discuss matters with Mr Baudin in person;
b)
Mr Baudin had declined to meet with Ms Pasley save through attending “mediation” or Family Dispute Resolution which
Mr Baudin indicated, by text message, he proposed to arrange immediately;
c)Mr Baudin did not arrange Family Dispute Resolution. That was left to Ms Pasley who took prompt action to arrange Family Dispute Resolution; and
d)Ms Pasley did all that was required of her to participate in Family Dispute Resolution through the Wodonga Family Relationship Centre. The certificate makes clear that Ms Pasley did not attend solely because of the “… Refusal or the failure of…” Mr Baudin to attend.
Mr Baudin advances, through his attorneys, the suggestion that he had contacted the Family Relationship Centre and indicated his willingness and desire to attend Family Dispute Resolution. It is suggested that notwithstanding that action by him and his clear communication of his desire and intent to attend that the Family Dispute Resolution Practitioner issued the “non-attendance” certificate. Again, I simply do not accept that.
At the conclusion of the matter costs were not sought by Ms Pasley. That may well be as Ms Pasley is anxious to avoid any future controversy or dispute between her and Mr Baudin and was content to have the matter concluded. That is consistent with my assessment of her from her evidence (notwithstanding the absence of cross-examination) that she simply desired that which was best for the child being his enrolment at school and a school proximate to her home so as to enable her to continue a meaningful involvement in his day to day life and activities and to engage with him so as to maintain her meaningful relationship with him.
But for the absence of application by Ms Pasley an order for costs for the entirety of the proceedings and, in all probability, on an indemnity basis, would have been made against Mr Baudin. Litigants such as
Mr Baudin should not labour under any delusion that costs will not be a matter at large in proceedings of this nature when Family Dispute Resolution is not attended.
Whilst section 117 of the Family Law Act commences with the “general rule” that each party to proceedings shall bear his or her own costs it could not be a reasonable expectation of any litigant that a justifying circumstance, let alone justice and equity, would not be established in support of a significant and substantial order for costs in circumstances such as this case.
As I commented upon commencing these reasons, this is a matter which simply should never have come to the Court or have even been contemplated as requiring litigious intervention. If parents cannot make a simple, child focused decision (let alone one they are required by state law to make and implement) determining the school that their child will attend then the Court’s intervention will come at significant cost not only to the operation of parental responsibility but the financial circumstances of the parties. Mr Baudin owes a great debt to
Ms Pasley and her attorneys in not seeking to press an order for costs as it would appear, from that which was before the Court, inevitable that an order for costs would have been made.
As is abundantly clear from a body of state and territory jurisprudence regarding costs under the civil procedure codes (for a discussion of same see Peake & Benedict (Costs) [2014] FCCA 2723) busy courts, in this day and age and with their modest resources ever diminishing, simply do not have time to deal with disputes of such trivial nature as this.
There are proceedings before the Court (in the case of the Albury Wagga Wagga Circuit a Registry, attempting to deal with a full-time caseload through circuit sittings of 10 weeks per year with 500 plus matters per year filed) which include cases in which children’s welfare is endangered, children are not seeing a parent or where there are significant factors of family violence or other compelling evidence requiring the Court’s attention are raised.
By reference to the discussion of such issues by the High Court in authorities such as Aon Risk Services and ANU [2009] HCA 27 gone are the days when litigants can expect that “access to justice” allows them to litigate matters which should never require court attention or attendance and to do so without impunity and without significant cost to them.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 20 February 2015
Key Legal Topics
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Family Law
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Consent
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