Patton & Argy
[2023] FedCFamC1F 856
•11 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Patton & Argy [2023] FedCFamC1F 856
File number: SYC 59 of 2017 Judgment of: BRASCH J Date of judgment: 11 October 2023 Catchwords: FAMILY LAW – PARENTING - Where father says mother is an unacceptable risk to the child but seeks orders the child spend four nights a fortnight with mother and half holidays – Where child caught in parents’ conflict – Where parties in conflict since marriage - Where father seeks equal share parental responsibility but does not trust a thing the mother says – Where mother demonstrated some capacity to appropriately communicate with father – Where mother and Independent Children’s Lawyer propose mother have sole parental responsibility and alternate weekends between the child and father – Where father will not travel to the child’s school even though that would see the child have an extra night with him - Orders for sole parental responsibility, for the child to live with the mother and spend alternate weekends and half holidays with the father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 60CA, s 60CC, s 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60B, 65D(1), 61DA, s 61DA(4), 65DAB
Education Act1990 (NSW) s 23
Cases cited: Adamson v Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232
Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
G & C [2006] FamCA 994
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Loddington & Derringford (No 2) [2008] FamCA 925
M v M[1998] FamCA 42
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 240 Date of hearing: 4 – 7 July 2023 and 11 – 12 July 2023 Place: Sydney Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Fox & Staniland Lawyers Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Sarah Bevan Family Lawyers Counsel for the Independent Children's Lawyer: Ms Conte-Mills Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 59 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PATTON
ApplicantAND: MS PATTON
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
Sole Parental responsibility with consultation
1.Subject to Order 2 below, the mother, Ms Patton, have sole parental responsibility for all major long-term decisions for the child X (born in 2014).
2.In her exercise of parental responsibility, the mother shall:
(a)Notify the father in writing 28 days prior to any decision she intends to make in her exercise of parental responsibility;
(b)The father may respond in writing to the mother’s notification within 14 days; and
(c)The mother shall consider any input the father may have before making a final decision.
Live with the mother
3.The child shall live with the mother.
Time with the father
4.The child spend time with the father at all times as agreed, but failing agreement:
(a)During school terms and subject to the notice provisions in Order 5, each alternate weekend:
(i)From after school Friday being 5.00 pm if the father is unable to collect the child from school, or from the conclusion of school if the father is able to collect the child from school;
(ii)Until 5.00 pm Sunday, or before school commences on Monday if the father is able to deliver the child to school:
(b)If the father is delivering the child to school on a Monday, the father is to ensure the child takes medication if prescribed;
(c)The child’s term time with the father is suspended during the following holiday arrangements;
(d)For the three school holiday periods following the making of this order:
(i)In the 2023 Summer School holiday period, every second week for four (4) consecutive nights to be calculated from the second Saturday of these holidays at 5.00 pm until the following Wednesday at 5.00 pm and each alternate week thereafter;
(ii)For the short holiday period after Term 1 2024, for five (5) consecutive nights from Friday 5.00 pm in the first week until the following Wednesday at 5.00 pm; and
(iii)For the short holiday period after Term 2, for six (6) consecutive nights from Friday 5.00 pm in the first week until the following Thursday at 5.00 pm;
(e)Thereafter and subject to the notice provisions in Order 5:
(i)For one half of the short holiday periods in even years from 5.00 pm on the final day of the school term, or from the conclusion of school if the father is able to collect the child from school, until 5.00 pm on the middle Saturday of the holidays; and
(ii)For one half of the short holiday periods in odd years from 5.00 pm on the middle Saturday to 5.00 pm on the final Sunday of the holiday period, or before school commences on the first day of term if the father is able to deliver the child to school;
(f)For the 2024 Summer School holiday period and thereafter, every second week to be calculated from the second Saturday of these holidays at 5.00 pm until the following Saturday at 5.00 pm and each alternate week thereafter.
Notice provisions for changeovers
5.If the father is able to collect the child from school at the commencement of his time and/or deliver the child to school at the conclusion of his time, then the father shall notify the mother in writing at least 24 hours in advance of his ability to collect from and/or return the child directly to his school.
Changeovers
6.For the purposes of changeovers that do not occur at school, changeovers shall be as agreed and failing agreement, the father shall collect the child from the mother at McDonalds Suburb B at the commencement of his time and the mother shall collect the child from the father at McDonalds Suburb B at the conclusion of the father’s time with the child time and both parents shall ensure that during changeovers:
(a)Each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
(b)Each parent will conduct themselves in a civil and child-focussed manner;
(c)Each parent will limit their conversation to greetings, polite conversation and matters that specifically pertain to immediate issues relating to the child passing from one parent’s care to the other; and
(d)Neither parent will discuss issues of any controversy between them in the presence or hearing of the child, nor shall they permit any other person to do so.
Eid
7.For Eid-al-Fitr, the child shall spend time with the parties as follows:
(a)In even Hijri years with the father; and
(b)In odd Hijri years with the mother.
8.For Eid-al-Adha the child shall spend time with the parties as follows
(a)In even Hijri years with the mother; and
(b)In odd Hijri years with the father
9.For the purposes of Orders 7 and 8, the child shall be delivered to the parent with whom they will celebrate the following occasion at times as agreed between the parties, and failing agreement:
(a)From 5.00 pm the day immediately prior to Eid al-Adha until 12.00 pm on Eid al-Adha in 2023 and each alternate year thereafter;
(b)On the day immediately prior to Eid al-Fitr at 5.00 pm until 12.00 pm on Eid al‑Fitr in 2024 and each alternate year thereafter; and
(c)the calendar and dates for the Hijri year are to be verified using the website .…
School Absences and Medication
10.Both parents are to:
(a)Notify each other when the child does not attend school, leaves school early, or arrives at school late (“late” being more than 30 minutes from the time the school says school starts);
(b)Notify the other parent by 6.00 pm that day of the absence and the reasons provided to the school; and
(c)No further requests for information about the reasons for the absence by the other parent need to be engaged with.
11.That each party will inform the other of any prescribed medication for the child, and provide the medication and appropriate instruction for its administration at the time of changeover.
Extra-curricular activities
12.Both parents are restrained from enrolling or registering the child into an extra‑curricular activity that will occur during the other parent’s time with the child without the prior written agreement of the other parent.
13.The mother is to keep the father informed in writing as to activities that will occur during the father’s time with the child, including but not limited to birthday parties of the child’s friends, sporting, school, cultural and other activities in which the child has been invited or selected to participate, and the father shall use his best endeavours to ensure the child attends upon those activities when the child is spending time with the father.
Passports
14.Despite her exercise of sole parental responsibility, the mother is restrained from obtaining or renewing a passport for the child without the consent of the father.
BY CONSENT, THE COURT ORDERS THAT:
Discharge of prior orders:
15.All prior parenting orders are discharged.
Special days
16.For Mother’s Day, if the child is not otherwise in the mother’s care, the child spend time with the mother on the weekend of Mother’s Day from after school on Friday (or 3.00 pm) until before school on Monday (or 9.00 am) for the weekend of Mother’s Day.
17.For Father’s Day, if the child is not otherwise in the father’s care and subject to the notice provisions in Order 5, the child spend time with the father on the weekend of Father’s Day:
(a)From 5.00 pm on Friday, or, from the conclusion of school if the father is able to collect the child from school);
(b)Until 5.00 pm Sunday, or, at the commencement of school on Monday if the father is able to deliver the child to school.
Communication
18.Each parent shall be permitted to communicate directly with the child’s school/s, and medical practitioners and allied health professionals to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
19.Both parents shall keep the other advised of health issues arising while the child is in their respective care including any serious illness, medication or hospitalisation as soon as possible, and in any event, within 12 hours.
20.Both parents shall keep the other advised of the names and contact details of all the child’s treating medical practitioners, dentists and allied health professionals.
21.Both parents shall keep the other informed as to telephone contact details, email address and residential address and shall advise the other parent within 48 hours of any change to these details.
22.Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with both parents by electronic means at any reasonable time when he is in the other parent’s care and each parent shall do all things necessary to facilitate the child communicating with the other parent by electronic means should the child wish to do so.
23.The parents are to communicate in writing (save for any emergency) and such communication shall be only in relation to issues pertaining to the child.
Authorities
24.The father may attend any school activity in which the child is participating and to which parents are ordinarily invited to attend.
25.These orders are authority for any school attended by the children and any medical or treating practitioner to provide information about the child to the father at his expense if he so requests.
26.The father is entitled to receive from any school attended by the child, information to which parents are ordinarily entitled to receive including reports, photograph order forms, access to any school ‘app’ or parent portal.
Restraints
27.Without admissions, both parents are restrained from physically disciplining or physical chastisement of the child.
28.Despite her exercise of sole parental responsibility, the mother is restrained from changing the name of the child.
29.Without admissions, when the child is spending time with each parent (including by electronic means) that parent is restrained from:
(a)Questioning or interrogating the child about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child;
(b)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship, with the parent’s knowledge or in their presence;
(c)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(d)Permitting the child to access to any of the documents filed in these proceedings; and
(e)Communicating any information intended for the other parent through the child.
Therapeutic Intervention
30.Within 14 days of the date of these orders, the mother is to do all acts and things necessary, including providing a copy of these orders to the organisation, to enrol the child into the C Program through D Service and ensure the child participates in this program for as long as deemed necessary by program staff.
31.AND IT IS REQUESTED that the child be counselled by a child psychologist, skilled in issues for children where parents have separated, and assessed, if that psychologist thought required.
32.The parents are each at liberty to provide the treating practitioner with the Family Reports dated 21 November 2022 and 13 November 2019.
33.Both parents are to equally share the any costs associated with the child’s participation in the C Program.
34.Within the next 12 months, both parents are to participate in and complete the E Program through D Service and upon completion shall send the other parent evidence of such completion.
THE COURT NOTES THAT:
A.The ICL will explain the orders to the child and shall thereafter be discharged from the matter.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
These are final parenting proceedings. The parties resolved their property dispute on day three of the trial. I made those proposed orders by consent on 6 July 2023.
Mr Patton, born in 1980 (“the father”) commenced these proceedings on 6 January 2017 by filing an Initiating Application in the Federal Circuit Court of Australia (as it was then).
Ms Patton, born in 1984 (“the mother”), filed her Response on 4 July 2017.
X, was born in 2014 (“the child”). He was under a year old at the parties’ separation eight and a half years ago. He is plainly a much-loved child yet innocently finds himself at the centre of conflict-ridden parental dynamic. Indeed, the child has known nothing but parental conflict in his life.
The applicant father proposes the parties equally share parental responsibility. The mother seeks sole parental responsibility in her favour. The father seeks a change of residence for the child to live with him and spend time four nights a fortnight with the mother during the school term on a rotating two-week cycle (three nights one week, and one in the other, hereafter summarised as four nights a fortnight), and half school holidays.
The mother proposes the child remain living with her and spends time with the father on alternate weekends during term time and proposed a gradual increase in the child’s time with the father during holidays, culminating in half school holidays.
The Independent Children’s Lawyer’s (“the ICL”) Minute of Order handed up on 12 July 2023, the last day of trial, proposed the mother have sole parental responsibility for the child, the child live with the mother and spend time with the father each alternate weekend as well as a graduated regime culminating in half school holidays. By the time of submissions, the mother adopted the ICL’s proposal almost in its entirety.
BACKGROUND
The mother’s name is listed in the court’s file as Ms Argy. However, the mother has changed her last name to Ms Patton to be the same as the child. At trial, the mother indicated she preferred to be called Ms Patton as opposed to the court file listing. Thereafter, the mother was referred to as Ms Patton during the hearing.
The parties commenced cohabitation upon their arranged marriage on 1 September 2013. The parties had no relationship prior to marriage. Upon marriage they lived with the father’s parents at Suburb F, but the mother often returned to her family’s home in Suburb H. In cross‑examination, the father estimated they only shared the former matrimonial home for perhaps seven months. The parties separated on 23 April 2015.
The parties attempted to agree to time between the child and father after separation but that was unsuccessful. The mother unilaterally ceased time on a number of occasions. Ultimately the father commenced these proceedings in January 2017.
On the first return in court on 27 March 2017, the parties entered into consent orders that the child spend supervised time with the father each Saturday for two hours. The supervised time commenced on 22 July 2017. The delay in commencing supervised time was due to the parties’ inability to agree whether the father’s parents could attend or not. Thereafter, several visits did not occur when, for example, the father was not in Sydney, when he was working, or when the supervision service could not provide a supervisor. There were some occasions when the service was closed. On one occasion the mother did not agree to make up time when the service was closed and on another occasion the mother was unable to attend due to health reasons.
The last supervised visit was 24 February 2018. The day prior, orders were made for the child to spend time with the father every Saturday, without supervision. The first unsupervised visit took place on 3 March 2018. The father–child time then progressed to a longer period of daytime time from 8 September 2018.
It was the father’s case that the mother contravened the 23 February 2018 order by not making the child available to spend time with the father on six occasions between the end of April 2018 and 16 June 2018, and then another nine times between 23 June 2018 and 18 August 2018.
The father filed a Contravention Application on 1 June 2018.
An interim hearing was held on 20 August 2018 wherein the mother applied to reinstate supervision. That application was dismissed. Nevertheless, the father said the mother again contravened the 23 February 2018 orders by not making the child available for 13 occasions between the start of December 2018 and 23 February 2019.
The Contravention Application was heard and judgment delivered on 24 May 2019. Charge 1 was dismissed and Charge 3 was not pressed. Charges 2 and 4 were proven and without reasonable excuse. The mother was placed on a good behaviour bond with security of $750 to operate for a period of two years. The mother was also required to pay the father’s costs of the contravention in the sum of $1,000 plus GST. Make up time on two separate days was ordered.
On the same day as the judgment was delivered on the Contravention, further interim orders were made, such that the child would spend Saturday daytime, 9.30 am to 6.00 pm with the father and from 1 July 2019 he would commence overnight time with the father as well. That one night a week is the current parenting arrangement.
The father deposed that the mother contravened the 24 May 2019 order by not making the child available on three specific weekends. However, it transpired in cross-examination of the father before me that the mother and/or the child had Covid on two of those occasions (which he did not mention in his affidavit) and on the third, she did not have anyone to facilitate the changeover (which he also did not mention in his affidavit). The mother offered make up time to the father on each occasion, but he did not depose to that either.
EVIDENCE AND WITNESSES
All parties filed Case Outlines. The mother and father both had Tender Bundles, but I indicated at the start of the trial that I would not receive the bundles in toto, rather, counsel could tender documents in the traditional way. They did.
The applicant father relied upon the documents listed below, as well as the Child Inclusive Memorandums and Family Reports, but I have listed those documents in the ICL’s list:
·Amended Initiating Application filed 4 January 2023;
·Financial Statement filed 27 June 2023;
·Affidavit of Mr Patton filed 4 January 2023;
·Affidavit of Ms J filed 27 June 2023;
·Affidavit of Mr L filed 27 June 2023;
·Affidavit of Mr K filed 5 October 2017; and
·Affidavit of Mr M filed 7 December 2017.
The respondent mother relied upon the following documents:
·Further Amended Response to Initiating Application filed 20 December 2022; and
·Affidavit of Ms Patton filed 28 June 2023.
The ICL relied upon the following documents:
·Child Inclusive Conference Memorandum dated 4 October 2018;
·Child Inclusive Conference Memorandum dated 22 January 2019;
·Family Report of Ms O dated 13 November 2019; and
·Family Report of Ms O dated 21 November 2022.
In total, 17 Exhibits came into evidence.
Both parents were cross-examined. The paternal grandfather was also cross-examined but part way through that the parties came to terms on the property aspect of their dispute. The paternal grandfather did not return to the witness box and the father’s remaining witnesses were, appropriately, not required for cross-examination. No one made any submissions about any of these witnesses’ affidavits. Nevertheless, I observe they are (unsurprisingly) supportive of the father and critical of the mother. They are also largely historical in nature. It is plain that the child has a positive relationship with the paternal grandparents.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
ISSUES
At the start of trial, the legal representatives identified the following issues required determination. I have not included the issues related to property as that resolved.
(a)Whether the parties can communicate and consult sufficiently in order for equal shared parenting to operate?
(b)What time should the parties spend with X and in what circumstances?
(c)What steps if any can be taken to improve X’s education?
(d)Whether the parties should engage with any service or services either on their own or involving X?
(e)What illnesses and conditions X currently suffers from and what steps were taken to involve the husband in their diagnosis and treatment?
(f)Whether injunctions should be ordered, for example, concerning X’s hair being cut.
(g)Family Violence and presumption rebuttal.
(h)Credit.
As the trial developed, it really became a battle about each parent’s views of the other’s parental failings in bolstering or defending matters relating to Issues (a) and (b). For Issue (c), it seems the father implicitly said that living with him will improve the child’s education. The parties dealt with Issue (d) by a consent order about therapy. No other submissions were made.
Appropriately, in submissions, no one asked me to determine what illnesses and conditions currently suffers from (first part of Issue (e)). There was considerable attention to the second part of Issue (e), concerning the father’s involvement in medical diagnoses and treatment, which will be discussed later. No one proposed an injunction about the child’s haircuts, which is issue (f) and I will take that issue no further.
As for (g), the mother submitted the presumption was rebutted, but the focus on family violence fell away when the property settled.
Issue (h): Credit
It was the father’s case that the mother lacked credit. He told her in many emails that she was deceitful and dishonest. He said several times in cross-examination that the mother made “malicious fabrications” about him. He also agreed that when the mother bought the child a puppet the day before Family Report interviews that was malicious too. The father’s impugning of the mother’s credit is in circumstances where he seeks an order for equal shared parental responsibility.
Whilst both parties initially sought credit findings against the other, in submissions the mother referred to the cautious approach that ought be taken to credit findings in parenting matters.
At times, appropriate concessions were beyond the father’s grasp. For example, the father did not assist himself in maintaining in cross-examination that he did not know about the W School option for the child until he read about it in the Family Report after its publication (Father’s affidavit filed 4 January 2023, paragraph 495). However, it was plain from the Report itself that the father spoke to the report writer about it in the interviews. The father also signed the enrolment form on 25 October 2019 before the report was released in November 2019. Yet, he maintained what he said in his trial affidavit that the first he knew of the school was when he read about it in the Report – after he signed the enrolment form. The father would not, or could not, concede that his affidavit was incorrect about when he knew about W School.
Similarly, the father gave what I find to be absurd evidence that even though he saw the child’s paediatrician about the child, he did not have to pay the invoice as it was issued in the child’s name.
However, the father was not a solo passenger on a trip to stubborn maintenance of the unmaintainable. The mother embarked on that journey too. For example, it was the mother’s evidence that on a particular Friday she dressed the child in a new pair of underpants. The child then went and spent time with the father on the Saturday, Saturday night and Sunday. It was the mother’s case that the father had fed the child so much sugary, sweet food that the new underpants did not fit the child anymore when he returned to her home on the Sunday. The mother was not assisted by any expert evidence about such dramatic weight gain in two days and one night. Her evidence was absurd and her refusal to concede just as stubborn as the father’s.
All of that said, the Court must exercise caution in making credit findings in parenting cases; see for example, Adamson v Adamson (2014) 51 Fam LR 626 at [168]:
168. These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
I do not consider findings of credit (or a lack thereof) to be necessary or helpful in this case. Rather, whilst I find each parent maintained the un-maintainable at times, I consider the examples of the incredulous evidence is more a symptomatic of each parent viewing the other parent through a prism of complete mistrust.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to ss 61DA (equal shared parental responsibility) and 65DAB (re parenting plans and thus irrelevant here). Section 60B of the Act sets out the objects and principles of Part VII as follows:
The objects are to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “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”.
The presumption of equal shared parental responsibility - Parties’ Issues (a) & (g)
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or, family violence.
Further, if the presumption does apply, then it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The father seeks an order for equal shared parental responsibility. The mother and the ICL propose the mother have sole parental responsibility in her favour.
Having watched the parties give evidence and having read their material, I conclude it would be a triumph of hope over expectation to think these two people could come to a meeting of minds for major long-term decision making for the child.
The parties are in conflict about whether the child has Attention Deficit Hyperactivity Disorder (“ADHD”). The parties do not agree on the child's high school. In cross-examination, the father (who seeks equal shared parental responsibility) was unable to articulate how he and the mother would solve their dispute about high schooling. In March 2023, the mother proposed the child see a paediatric dietician as recommended by the paediatrician. The father did not agree. The mother proposed the child see psychologists. The father did not agree in November 2019 or September 2022.
Further, the father had a penchant for argument and pedantry, none of which bodes well for the compromise that is required for equally sharing decision making, as he seeks. I have already referred to the father’s evidence about his knowledge of W School, and his evidence about the paediatrician’s bill not requiring his payment because it was issued in the child’s name, even though it was the father who had the consultation about the child. That had the knock-on effect that the doctor saying on 6 January 2023 that she would stop seeing the child if it was not paid. The specialist threatened legal action. The mother made payment in full.
Thus, I conclude the father was prepared to jeopardise the child’s access to health care over the name on an invoice for an appointment he attended.
Similarly, the father took a dogmatic and dictatorial approach to the child living with him, telling the mother post separation (when the child was two) that they needed to discuss “when” (not if) the child would live with him. That does not evince the art of compromise or negotiation required for equal shared parental responsibility to be of benefit to a child.
Further, the father could not or would not accept that in the short period of time in which the parties cohabited after the birth of the child when he was at work full-time, it was the mother who was the carer of the child. At trial, he also argued about whether the mother went into labour at the Suburb H property or in the hospital. He also complained that: the mother had not implemented a routine for the child in his early years; she did not answer or engage in communication with him as he wanted; she purchased expensive school shoes for the child; and, many issues about clothing, including not sending the child with underwear. They even argued about sock sizes. He also gave evidence about conflict over the wedding date, conflict about getting married, conflict about when the mother left the hospital with the child after birth. The mother’s knowledge of the source of a “vile and putrid odour” at the paternal home in 2015 was also raised, as was whether the mother can “calculate the difference between two weeks and three weeks”.
The mother’s evidence too highlights a relationship marred by conflict, mistrust and looking to the negatives in the other from the very start. For example, the mother said the father gave her Panamax when she wanted Panadol post-birth. She complained about fans and heaters or a lack thereof in the former matrimonial home. She complained that the father delayed in securing a breast pump post-birth. The mother said she was only allowed two squares of toilet paper at time. She complained the father could not “multi-task” when with the baby. She complained the father slept in his “childhood bed”. She said the paternal family were awful to her referring to her time in their house as being “held captive” and “modern slavery”. She complained in her trial affidavit that the child’s hair had been unevenly cut, and “suspected that [Mr Patton] or his parents cut 's hair while he was asleep” (Mother’s affidavit filed 28 June 2023, paragraph 225). The mother complained about the child being put in nappies when toilet trained, and that the child was returned to her in the same clothes.
It is not necessary for me to delve into the pages and pages of complaints each makes about the other during their short-lived relationship because what is common ground, and I find, is the relationship was conflicted from the start and that continues now. Consistently, each looked for fault in and blamed the other from the start and continuing now.
I do however have a raft of emails before me from August 2022 to December 2022 (Exhibit 15, p.50-62) where, I find for the reasons that follow, the mother went to great lengths to explain what she was considering for health care for the child and asking the father’s views. The background to this is the mother said she received the child’s Semester 1 2022 report and was concerned about the child’s lack of progress. She met with the school and they recommended she take the child to a paediatrician for assessment. The mother saw the paediatrician in mid-2022 and consistent with the 2019 orders, advised the father three days later (Exhibit 15, p.59-60).
What followed were thoughtful and child focused emails from the mother. For example, on 13 September 2022 the mother asked if the father consented to the mother booking an appointment with the paediatrician, optometrist and for a hearing test; she asked the father if he would like to attend the testing. The mother again emailed the father on 23 September 2022 to follow up on the questions in her earlier email of 13 September 2022. Further emails were sent by the mother thereafter providing the father with information and asking for his views. The father eventually replied on 13 October 2022 saying:
[Ms Patton],
Again you are fundamentally deceitful and dishonest in your communication.
In your previous e-mail communications, I have not received any request from you to pay for half the cost of [X]'s hearing test. Furthermore, you have been previously advised that I am not liable for any bills or costs that you incur in relation to decisions that you have taken unilaterally, arbitrarily, and without consulting me. This includes waiting for my consent before proceeding with an appointment.
If you wish to proceed with any appointments without my consent as you have done, then as you have been previously advised, you are liable for the financial cost of the decisions that you make.
…
(Exhibit 15, p.51)
The father deposed:
377.I have no issues communicating politely and effectively with [Ms Patton], but am frequently met with communication that is either circular in nature, a non sequitur, or none at all from [Ms Patton].
(Father’s affidavit filed 4 January 2023, paragraph 377)
There is nothing polite or effective about telling the mother she is “fundamentally deceitful and dishonest” (Exhibit 15, p.51). The father’s email went on, and concluded with this:
…[X] needs a calm and loving environment where he benefits from spending more equal periods of time with both parents.
Regards
[Mr Patton]
(Exhibit 15, p.52)
It is hard to see how “more equal” time with both parents would unearth any underlying, aetiological health/medical issues for the child. The father was concerned with his views and conflict rather than focussing on the child and seeing if there were any health or medical reasons for his educational difficulties.
The mother then sent more informative emails about health issues. The father replied on 30 November 2022, saying:
[Ms Patton],
Again your deceptive and deceitful style of communication is unacceptable and continues to show your inability to work in [X]'s best interests, or to work in a cooperative parenting style.
From this e-mail trail you have deleted my e-mails of 9 September 2022, 11 October 2022, my second e-mail of 13 October 2022 which were all present in this same e-mail thread. It is evident that you have altered the e-mail thread, deleting at least three of my pertinent e-mails, if not more. You have falsified the e-mail trail to present a fundamentally fraudulent record of our correspondence.
…
You have not engaged with me regarding nor provided your agreement for a comprehensive review to be undertaken regarding the decisions that have been made regarding this situation, nor about investigating alternate learning strategies or arrangements. As part of this process I would like to obtain a second opinion on this matter.
I am troubled by your lack of concern about [X] being prescribed [medication]. As a concerned parent, by now you should be aware that [this medication] is a psychotropic drug.
Please let me know when you are ready to positively engage with me to further investigate options for [X].
(Emphasis in original)
(Exhibit 15, p.65)
The father said the email chains in Exhibit 15 were not complete and provided me with the removed emails in Exhibit 6, being the annexures to the father’s affidavit filed 4 January 2023, under ‘MP29’ at pages 164 to 173. I conclude that all emails before me show the mother trying to get the father’s agreement to and views about a range of medical/health assessments for the child as recommended by the paediatrician. The father was more interested in holding the mother to account. The mother was inclusive and child focused. The father was not.
Similarly, on 4 June 2023, the mother asked the father about a cut on the child’s thumb and whether the father had checked if the child needed a tetanus injection. Her email is matter of a fact and appropriate. The father replied on 21 June 2023, including:
…Yet again you are deceitful and dishonest in your communication, showing a hostile and argumentative attitude, which displays an inability for cooperative parenting on your part…
(Exhibit 12, p.3)
In another example of communications over decisions about the child, the mother asked the father about the child attending after-school care to learn to socialise. The father responded telling the mother that her reasons were “feeble”. Included in those emails between both parents was a dispute between the parties about extra-curricular activities and what kind of icing was on a cupcake.
In 2023, the mother also included the father in her concerns about the child’s ears, the prospects of an ENT appointment, and investigations of a possible injury (Exhibit 7, p.121-127). The father referred to the injury as the mother’s “false assertions” (Exhibit 17). The mother’s emails were inclusive. The father’s were not.
The father has called the mother deceitful and dishonest many times. Before me he said she was a malicious liar. Thus, on the father’s own case, he could not trust a single thing the mother said if they were equally sharing parental responsibility. When asked by the ICL whether he had any role in the entrenched conflict between the parties he answered at least twice that the conflict was due to the mother’s irrational hostility to him.
The ICL engaged with the father about his communications to the mother such as calling her dishonest and deceitful, and asked if he had examples of any positive communications with her. He said he thought so, and a call was made for any examples. He was given the night to find any such positive communications. The call was not answered.
The father was also of the view that the mother may not have been telling the truth when she said she had COVID-19 in February 2022. The mother’s emails on this topic (see for example, Exhibit 15 pages 45-49) were child focused and appropriate albeit understandably frustrated at times. The father however was unable to respond in kind. He demanded at least three times that the mother produce evidence of having COVID-19 in similar terms to this:
•Please provide photographic evidence of your positive COVID-19 RAT result.
•Please advise the date and time you took the RAT test.
•Please confirm you have registered this positive RAT result with Service NSW and forward to me a copy of the letter from Service NSW advising your isolation period.
•Please prove results for [X] from the RAT test which will be conducted on day 6.
•Please advise the day on which you believe you contracted COVID-19.
•Have you contacted [P School] regarding your RAT result? Did you ask for [X]’s class to be tested?
(Exhibit 15, p.48)
The father acknowledged in cross-examination that he did not believe the mother.
The Family Report writer confirmed in her cross-examination that her recommendation for equal shared parental responsibility was reliant on the mother and father attending and completing the D Service E Program. Neither did so, despite recommendations in both Family Report. As said by the Family Report writer:
…without the parents actually seeking some help in how to discuss issues, and how- then it would be very, very difficult to make decisions.
(Transcript 11 July 2023, p.41 lines 3-5)
The Family Report writer added it was a “great concern because their communication really struggles on both sides” (Transcript 11 July 2023, p.4 lines 20-21). The Family Report writer also opined that sole parental responsibility “may be the only outcome in this case” (Transcript July 2023, p.5 lines 33-34), and in favour of the parent with whom the child lives.
I accept the Report writer’s observation during cross examination that, “having read their affidavits, I could see that they were both still deeply looking for negatives in the other” (Transcript 11 July 2023, p.18 lines 16-17).
The father submitted sole parental responsibility was “disproportionate”. I do not agree. I am well and truly satisfied that for the conflict I have just described, including the inability to come to a meeting of minds over the child’s health and education, it is not in the child’s best interests that the parents equally share parental responsibility. Given the parties have been unable to let go of their mistrust of each other, equal shared parental responsibility will not work and will not be beneficial to the child. For example, the father has demonstrated he will jeopardise the child’s medical care because his name was not on an invoice, or his rebuking of the mother when she saw the paediatrician without getting his consent, even though she was entitled to do so. Thus, I also make the order for sole parental responsibility so decisions for the child can be made and his care is not jeopardised due to a parental impasse.
Accordingly, as the presumption is rebutted (s 61DA(4)), it is not necessary for me to consider the mother’s position that equal shared parental responsibility ought not apply because of family violence.
I will therefore make an order that the mother have sole parental responsibility. I do so because first, (for the reasons developed later), the child will primarily live with the mother. Second, the mother’s engagement with the paediatrician and allied health providers demonstrates the mother is able to follow advice and access what the child needs.
However, I will make the order proposed by the ICL that the mother consult with the father. The father ought not be shut out from giving input; he will have views to add. For the same reason, I will also make orders that permit the father to engage with the child’s health and educational providers. It is important the treaters know what goes on with the child in both households.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
The primary considerations set out in s 60CC(2) of the Act are, as follows:
•the benefit to the child of having a meaningful relationship with both of the child’s parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
169. There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
122. … No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
Both parties proposed the child spend significant and substantial time with the other parent and (ultimately) half holidays. Both are therefore saying they propose the child have a meaningful relationship with the other parent, although the father also maintains the mother poses as unacceptable risk of harm to the child. I will consider that later.
In the meantime, save for the conflict, the child will benefit from having a meaningful relationship with both parents.
Section 60CC(2)(b): protection from harm
The second primary consideration in determining a child’s best interests is set out in s 60CC(2)(b) of the Act. It loudly speaks to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother did not argue that the father was an unacceptable risk to the child. That makes sense when the mother proposed the child spend alternate weekends with the father and holiday time graduating to half holidays.
The father said the mother posed an unacceptable risk to the child, even though he proposed the child spend four nights a fortnight with the mother and half holidays. It was hard to identify with any precision what the risk was said to be in submissions, other than a largely unparticularised psychological/emotional risk.
I will do my best to work through the complaints of the father that might yield to an overall conclusion of unacceptable risk.
In Isles & Nelissen (2022) FLC 94-092 (“Isles”), the Appeal Division of this court summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Court said that only the relevant historical facts need be proven on the balance of probabilities. However, assessing risk into the future is a predictive exercise about possibilities. Or, as Austin J far more eloquently explained in Fitzwater & Fitzwater (2019) 60 Fam LR 212 and accepted by the Isles Court as being the correct statement of the law:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93‑326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
If I conclude the mother poses an unacceptable risk to the child, then I must consider what conditions may ameliorate that risk.
It is plain the father thinks the mother’s parenting is poor and perhaps that is part of the risk as he sees it too. But there is no evidence before me that the child’s basic needs are not met when the child is with her. To the contrary, the father is highly critical of the mother seeing a paediatrician and other health providers without his consent (which was not required by the May 2019 consent order).
The mother’s videoing/recording of the child in 2018 was appalling behaviour on her part, but there is no evidence before me that she has continued that behaviour. Accordingly, I accept the mother’s evidence in cross-examination that it was inappropriate, and she regretted doing so.
It may be the father includes the child’s absences from school as part of the wider risk factor. The father said this:
537. In [X]'s yearly report card for Year 2 2022, it shows that [X] had 9 full day absences and 14 partial day absences. I have not been informed of all of these absences by [Ms Patton].
(Father’s affidavit filed 4 January 2023, paragraph 537)
The child’s school reports and attendance records are before me. The records indicate if the child is sick, but I do not know what “Unjustified”, “PU”, or “Flexible” means. With respect to the nine full day absences referred to by the father above, the mother emailed the father that the child had been ill for a full week (Exhibit 6, p.230). That happens. It also seems that many of the child’s partial absences were arrivals not that late.
For Semester 1 2022, the child was away over 20 whole days and eight partial absences. The mother explained to the father that most of the whole day absences related to Covid isolation requirements, as well as the child being unwell. One absence occurred for Eid al-Adha and the other because of a teachers’ strike. The mother also explained to the father that the partial absences were the child arriving as the bell rings, some for traffic and severe weather (Exhibit 7, p.60). It is impossible for me to discern how many of the whole absences were related to the phenomena and requirements of Covid regulations/rules last year. In those circumstances, I am not troubled by the child having childhood illnesses and cannot be troubled by the impacts of Covid requirements. It would be better if the child arrived on time for school, but I do not consider the child’s school attendance, alone or in combination with other factors, constitutes an unacceptable risk to the child.
The father spent many paragraphs in his affidavit complaining about changeovers: that the mother was late 47 times in a specific period of time; that she does not stand outside McDonalds as per the order; and, that she does not facilitate a smooth changeover. It was submitted that her lateness goes to (1) her executive functioning, and (2) sends a bad message to the child. That said, on the father’s case there will still be change overs which then does not cure the father’s complaints. I cannot determine the lateness is solely a matter of executive functioning, as opposed to say traffic problems.
I accept the mother has been late on many occasions, but this did not prejudice the child’s time with his father, because the father adds on the time she was late to his time at the end. In other words, even though there is a discourtesy in her being late, it does not come at a cost to father-child time. For example the father texted:
Yesterday you dropped off [X] at 5:10pm therefore insha Allah changeover will occur at 6:10pm.
…
As you facilitated changeover 34 minutes late yesterday morning changeover will occur 34 minutes later today.
(Emphasis in original)
(Exhibit 15, p.40-41)
More fundamentally, the father was implacably opposed to traveling to the child’s school at the start and end of the child’s time with him which would avoid almost all changeovers between the parties. So, on one hand he complains about the mother and messages she sends the child. But on the other hand, he will not travel a little further from the current McDonald’s change over location to the child’s school to (a) avoid parental changeovers, (b) not have the child in the middle of the conflict to which he deposes and (c) have an extra night a fortnight with the child.
The father’s steadfast stance about travel is in circumstances where he impressed upon the Court how child focused he was by travelling by public transport and then by car from Suburb F to Suburb H many, many Saturdays and Sundays from mid-2014 to October 2016 to see the child (Father’s affidavit filed 4 January 2023, paragraphs 31-33, 87, 92, 104 and 113). Indeed, this is an impressive effort on his part and one where he has demonstrated capacity to get to Suburb H and by car. It beggars belief then that he would not collect and return the child to and from school to avoid the in-person changeovers about which he so bitterly complains – and have an extra night a fortnight with the child as a result.
The child is not academically gifted. The father certainly latched on to his teacher saying the child had made “zero progress” with his learning. Reliably, he blamed the mother. As part of the “zero progress” the father relied upon a Year 2 2022 report and deposed the child “rarely completes home reading”. The father continued, “[t]his is consistent with [X's] poor ability to read and shows that [Ms Patton] is not able to assist [X] with his reading” (Father’s affidavit filed 4 January 2023, paragraph 527). However, in the most recent Family Report at paragraph 53, the Report writer said that the child’s teacher confirmed the child’s homework is always completed, and the mother helps the child with his homework. I prefer the evidence of the Report writer over that of the father, as I consider the Report writer to be more reliable in this regard.
However, other than the father’s assertion, there is no evidence before me that the “zero progress” is solely the mother’s fault. For example, the child just may not be academically inclined. He might be underperforming due to the tension he suffers being caught in the parent’s conflict. There are other possible factors from the paediatrician which may also have an impact:
329. On 21 October 2022, the paediatrician, [Dr Q], based on her clinical assessment and accompanying independent assessments, [X] was diagnosed with the following:
a. Complex social issues.
b. Weight above the healthy range.
c. Mild speech delay and speech sound disorder.
d. Learning difficulties (reading, writing, and mathematics).
e. Attention deficit hyperactivity disorder (inattentive subtype).
f. Anxiety disorder.
330. [Dr Q] recommended the following:
a. [Medication] for ADHD.
b. Occupational therapy to assist with the strategies at home and school
c. Psychologist to assist with anxiety at school and home.
d. Speech therapy to assist with speech and communication.
e. Dietician to assist with weight management.
f. Exercise for 3-4 days a week for 45-60 minutes.
(Emphasis in original)
(Mother’s affidavit filed 28 June 2023, paragraphs 329 and 330)
The father does not accept these diagnoses and wants a second opinion. However, there is no reliable evidence before me that calls the specialist’s diagnoses into question. Further, the Family Report writer was clear in saying that learning difficulties often become clearer at the end of Year 1 and Year 2, when:
[FAMILY REPORT WRITER]: …children’s cognitive development starts to grow, and if there are problems, then that’s when it starts getting picked up. There may have been – even though the earlier reports are more positive, there may have been things that were still not quite right for [X]and – but weren’t sort of particularised until year 2, when it becomes more obvious with their learning, what they have to learn, what they have to put together.
(Transcript 11 July 2023, p.9 lines 31-36)
The Family Report writer was also clear in saying the continued conflict between the parents could cause educational ramifications, as well as the emotional ramifications which the child is experiencing. Neither the expert’s evidence about a child’s cognitive development nor the fact of parental conflict support the father’s case that the “zero progress” in the child’s learning is all the mother’s fault.
Whilst the father blames the mother for the child’s “zero progress” it is the father who has objected to the assessments and care and castigated the mother for doing so. It is the mother who engaged with the school upon receiving his Semester 1 2022 report and then a paediatrician as recommended by the school.
Ironically, whilst the father complained about the mother telling him of the paediatric appointment after the fact (as provided for in the 2019 orders), he seeks the same order in his favour that the father tell the mother about appointments seven days thereafter.
In terms of other possible risks, the father also deposed, “I believe there is a real and unacceptable risk that [Ms Patton's] attitude will continue and the contraventions will resume once these proceedings have concluded” (Father’s affidavit filed 4 January 2023, paragraph 630). The father spent many pages listing the mother’s many alleged historical contraventions of orders. The mother was found to have contravened orders without reasonable excuse on two specific occasions. I accept that to be so.
The father then referred to the “contraventions” in his affidavit at paragraph 212 since the orders of 24 May 2019. But it turned out that was where the mother/child had Covid for two of them and no one to facilitate a changeover for the other. Little turns on three “contraventions” as the father called them in more than four years since the May 2019 orders were made.
With respect to the prospects of the mother’s future non-compliance, I prefer the evidence of the Report writer that the court orders have contained the mother’s earlier stopping of time, even if she still runs late. But as said, that could be cured by using school for most changeovers. Further, the child suffered no reduction in time with the father because he extends the time out to compensate. Two discrete contraventions have been made out in this matter, with costs, a security and make-up time. The mother must therefore understand that breaches, if made out, come with a cost both in money and make-up time.
As another possible aspect of risk, the father deposed, “I fear that if [X] continues to live with [Ms Patton], [her] attitude towards me and my family will unduly influence [X] in his attitude and behaviours towards his father and paternal family” (Father’s affidavit filed 4 January 2023, paragraph 634).
Yet, the father also deposed, “[f]ortunately I have a strong bond with [X] and we have a loving and affectionate relationship” (Father’s affidavit filed 4 January 2023, paragraph 632) and “[X] had (and continues to have) a very strong and loving relationship with me and paternal family” (Father’s affidavit filed 4 January 2023, paragraph 157). The father gives the mother no credit for this. If the mother was as poisonous of the father to the child as the father deposed, then it is more likely than not that the child’s relationship would not be so positively strong.
Ultimately, it is incongruent for the father to say the mother poses an unacceptable risk to the child, yet, on the father’s case, the child spend significant and substantial time with the mother during term time plus half holidays. In submissions, the father said his proposal reduced the opportunity for the child’s exposure to that risk he said the mother posed. I do not accept that. It is hard to see how the mother’s purported unacceptable risk to the child is contained in the four nights a fortnight proposed by the father (three nights one week, one night the other), but tips over the edge on the fifth day. It is hard to see how the father can say the mother is an unacceptable risk, but propose half holidays. For example, the mother could easily video the child in four days a fortnight and half holidays – not that the father seeks a restraint about videoing/recording in any event. The father’s proposal also sees changeovers every week, so it is hard to see how changeovers could be part of the father’s overall risk profile posed by the mother.
On the orders sought by the father, I cannot accept the mother is an unacceptable risk to the child. To the contrary, the father’s position that the mother is an unacceptable risk to the child is just another demonstration of his very poor view and mistrust of her.
However, this child needs to be protected from the harm that springs from the parents’ conflict, which has run unabated since at least the birth of the child nine and a half years ago.
I accept that the mother sent appropriate emails to the father about health issues, but that is against a backdrop I have already described with respect to the mother’s view of the father. I have also described the father’s view of the mother. The conflict between them is evident in what I have already described.
The parties tried Family Therapy in 2018 but that was not successful. The conflict continued despite the very clear concerns of the Family Report writer about the child’s well-being as a result of that mistrust and toxic conflict in the 2019 report. The conflict has also not ceased despite the observations and recommendations in the 2022 Family Report.
The mother would have me accept the father is to blame for the conflict. The father would have me accept that the conflict was all due to the mother’s “malicious lies” about him, her “irrational hostility” to and about him, along with her “feeble”, “deceitful, dishonest and uninformed” words and views. Respectfully, both parents miss the point because irrespective of who is to blame for the conflict, the child is stuck in the middle of what was called the “parents’ warzone” during the trial:
[ICL’S COUNSEL]: the internal tension is there irrespective of who might be more to blame, or not, or whatever. The tension is still there for the child, isn’t it?-
[FAMILY REPORT WRITER]: Absolutely. Child can’t make sense of what’s happening either, so that becomes even more difficult, because this boy has difficulty with his self-regulation and his emotional self-regulation. So if he can’t make sense of it, as he grows and develops into a teenager, this is going to be enormously difficult for him to solve problems that he comes across or to work out in his mind, without having learnt about blame. So this little boy has learnt about blame, and that’s a pretty sad thing for a young boy.
(Transcript 11 July 2023, p.12 lines 21-27)
That is the harm from which the child needs protection. I do not accept only one parent is causative of conflict. Clearly, on all I have described, both parents have engaged in conflict and neither trusts the other. Both parents have placed the child on the battlefield of the parents’ “warzone”.
Balancing the primary considerations
The child plainly needs a meaningful relationship with both parents. I accept the Report writer’s evidence that each have much to offer the child. I have accepted the mother appropriately communicated with the father over health issues in 2022 and 2023, which at least demonstrates a capacity to do so, but that is against mutual mistrust and conflict predating the child’s birth and continuing thereon in. The child needs to be protected from this.
It is difficult to see how the child’s residence - be it the mother’s or father’s home - will change a long history of engrained, mutual loathing and blame.
The evidence of the Report writer in cross-examination was profoundly sad. She spoke about the child’s internal tensions from the parents’ conflict. The evidence of each parent, the Family Reports of 2019 and 2022 and cross-examination of the Family Report writer leave me in no doubt whatsoever that this child is well aware of each parent’s views of the other. I accept the Family Report writer’s evidence about the child’s internal tensions from the adult conflict. The Family Report writer was not shaken in cross-examination on that opinion.
The task then is to craft orders that will see the child having a meaningful relationship with each parent, but quarantine the child as much as can be possible from the toxicity that exudes from each parent with respect to the other. In the circumstances of the case, and on the orders sought by all, the decision about parental responsibility is about all I can do to try and alleviate some of the conflict in which the child innocently finds himself. Similarly, crafting orders to use school as a changeover ought alleviate much about which the father complained. But the father made it very clear that he will not do changeovers at the school. It can only be hoped that in time he will reflect on the benefits that would bring to the child if he did.
Additional considerations
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
X expressed views to the Family Report writer that were quite critical of the father, and how he feels about the time he spends with the father. He mentioned that “at [dad’s], I barely play” (Exhibit 5, paragraph 44), and that he “has friends near mum's house, but no friends near Dad’s” (Exhibit 5, paragraph 44).
The Family Report writer also described “his way of expressing things was more immature [for the second report], more limited than a child of eight when I saw him” (Transcript 11 July 2023, p.10 lines 48–50). She also commented on the child’s presentation of being “conflicted, muddled, and saying things that were just said”. (Transcript 11 July 2023, p.31 lines 26-27).
The Family Report writer used the word “rote” to describe some of the things the child was telling her about the father during the interviews. “Rote” was described as:
[FAMILY REPORT WRITER]: …meaning that he was just saying things without a clear understanding of what he was saying. He was repeating things that he had heard or been told about. Who know [sic], but he was repeating thigs, and some of them were very strange.
(Transcript 11 July 2023, p.25 lines 18-21)
The Family Report writer expressed the opinion during cross-examination that the child has learnt how to identify what upsets each parent, and that his parents do not like each other and say things about the other.
Videos and a recording came into evidence (Exhibit 16), one of which arose after the mother said the child told her, "I was sleeping. [Dad] pinched my ears. I didn't do anything wrong”. The mother subsequently interrogated the child about this and videoed it. Instead, she might have asked herself if the child was asleep, how did the child know what had happened. The video was close to three minutes in length. I accept the Family Report writer’s evidence that the videoing was “not acceptable under any circumstances”. I accept the submission of the mother’s counsel that that was a “low point” in her parenting. There is no evidence that mother has recorded the child since 2018.
The child also told the Report writer in the first Family Report that the father puts the child in the toilet and pees on him. The Family Report writer observed the child appeared to be uncomfortable and agitated when talking about this. When the Report writer encouraged the child to say more about this, the child said “my Mumma said to tell you” (Exhibit 4, paragraph 67). The mother agreed this was improbable. The child also reported the father hits and punches him. The mother denied she had encouraged the child to tell the Report writer any of this.
In cross examination, the Family Report writer indicated that she did not know why the child would say such things and listed other possibilities such as hearing it from his school friends, or from somebody else. I do not find the father did any of these things. The mother accepted what the child said was not reality based. I cannot positively find the mother told the child to say this because of the conflict in which the child finds himself and an immaturity to say what he thinks he needs to.
I am not prepared to put any weight on any views expressed by the child. It would be impossible to ascertain what might be a genuine view and what has been coloured by the parents’ conflict. I am fortified in reaching that conclusion by reference to what the Family Report writer said:
45. Throughout this interview, [X] presented a somewhat negative, but also highly conflicted, picture of his feelings about his father, including saying such things as “I like playing Lego at Mum’s home, but not at Dad’s” and that he has “friends near Mum’s house, but no friends near Dad’s”.
(Exhibit 5, paragraph 45)
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The child is much loved by his mother, father, maternal and parental grandparents and extended family. All have much to offer him, but their conflict and mistrust colours the child’s experiences of his life.
The child told the Report writer that he enjoyed living with the mother and the maternal grandparents in their house. He was, however, critical that the mother “doesn’t do that much” and that he plays by himself, and occasionally with his cousins (Exhibit 5, paragraph 43).
The child described a positive relationship with his paternal family to the Report writer.
With respect to the child’s relationship with the father, the child told the Report writer that “at [dad’s], I barely play”, and he “has a ‘kinda nice time’ with his father and then added, ‘don’t really like it that much’ with his speech increasing in speed.” (Exhibit 5, paragraph 44). I have already determined to not put any weight on the child’s views, and in that I include what he said of his relationship with the father.
All parties propose significant and substantial time for the child with the non-residential parent. That means they both must accept that the child benefits from the relationship he has the other parent, as well as the maternal and paternal families.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
The father made many trips from Suburb F to Suburb H to see the child when younger, but will not do so now even if that meant (1) the child would spend an extra night with him, and, (2) would largely address the mother’s lateness to changeovers. The father also said he has been thwarted in spending time by the mother’s unilateral stopping of time. I accept that was a problem from separation to the making of orders. The mother has been found by a court to have contravened orders two specific times. That is not a positive factor in the mother’s favour. That judgment was May 2019. No court has found a contravention of orders since. Neither the child nor father suffer any reduction in time when the mother is late to changeovers, other than the mother’s discourtesy.
The father has also wanted to be involved in decision making for the child, especially for health and education but Order 16 (health) and Order 7 (choice of primary school) of the May 2019 consent orders allows the mother to make those decisions. I have already referred to the father’s nonsense stance over the paediatrician’s invoice, which threatened the child’s continuity of care. The father also declined to attend a follow up with the paediatrician and also declined to attend the child’s ultrasound because both were “[far] away”.
In the meantime, the mother has taken on the child’s poor educational development by making appropriate decisions for assessments and care.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
It did not speak well of the father to refuse to even contemplate a contribution to the costs of the child’s medical care when he determined (wrongly) that the mother had unilaterally made appointments. The mother did what the consent orders of May 2019 allowed her to do.
That father also gave convoluted and unsatisfactory evidence that he was happy to pay child support, but only if the mother applied. He also emailed the mother that because she had not applied it was “impossible” for him to pay child support and therefore her lawyers had “misled” the court by saying child support was not being paid. Despite saying he was happy to pay if the mother applied, he has been in arrears and had his pay garnished. That said, for reasons I do not understand, the mother did not make an application for a considerable period of time. It seems the father is currently assessed to pay $164.25 per month (Exhibit 15, p.10-12).
I contrast this to the mother’s answer when asked about the father’s qualities as a father. The mother responded the father was “affectionate and loving” to the child, he wants to “spend time” with him, he “cares” about the child and is “involved” in his extra-curricular activities. She added the father “cares very much” about the child’s academics, and “wants to be in the child’s life” which she said was “most appreciated”.
I do not accept the father’s case for a change of residence. Both parents have engaged in long-running conflict. Both parents mistrust the other. Both have behaved poorly. Both have allowed the child to be caught in the conflict to the point the child has internal tension trying to resolve the position in which his parents both place him.
I accept the Report writer’s evidence that the child will suffer confusion, grief and loss if I remove him from his primary carer and his school and supports therein. That stands to reason. There is no demonstrated counterbalancing benefit to the child if I did change residence.
In short, I do not see any likely benefit to the child in changing residence when assessing the tensions the child currently fells, but then adding that to the grief, confusion and loss he will likely suffer if removed from the mother, his school and friends, and placed with the father. I accept the Report writer’s opinion that I would only change residence if the father’s household would be markedly different. I do not accept the father would facilitate the child’s relationship with the mother. The father’s poor view of the mother was writ large in his evidence before me. In other words, I would be changing residence for the sake of doing so and with no demonstrable evidence that this would improve the child’s lived experience.
The father was clear in his cross-examination that if the child did not live with him, then he sought alternate weekends 5.00 pm Friday to 5.00 pm Sunday using McDonalds Suburb B as the changer over location.
I will make the hybrid proposed by the ICL which was the 5.00 pm to 5.00 pm alternate weekends but augment that with the option for the father to, on notice, collect the child from school on a Friday and return the child to school on a Monday morning. I do so because it is in the child’s best interest to have significant and substantial time with his father, but also the option to use school to avoid some of the changeover problems about which the father loudly complained. That would also give the father the opportunity to be at the child’s schools and meet and mix with those in the child’s educational orbit. I will also make the notice provision in the ICL’s proposal, as the mother and child need to know the arrangements.
The mother was opposed to the Monday morning return if the child was prescribed medication, fearing the father would not administer it given his opposition to the child’s diagnoses. However, the father seeks an order that:
31. That each party will inform the other of any prescribed medication for the child, and provide the medication and appropriate instruction for is administration at the time of changeover.
(Amended Initiating Application filed 4 January 2023, p.5)
Implicit in that order is the parent is to ensure the child takes the prescribed medication; the order would have little point otherwise. I will provide for the Monday morning return and will make the order proposed by the father about medications, and add the parents are to ensure the child takes the medication/s as prescribed.
Changeovers
Where change overs do not occur at school, the father proposed they use McDonald’s Suburb B. The mother proposed change overs occur at McDonald’s Suburb H as this was close to the mother; she deposed, “[g]iven the current amount of driving, I seek that changeover occur in a location in proximity to [X's] residence” (Mother’s affidavit filed 28 June 2023, paragraph 352). The distance between parents though remains the same for the child.
The parties failed to produce agreed evidence to the Court about the distance between where the parties are living and where the proposed changeovers would occur. That was yet another dispute between them.
I will order they continue using McDonald’s Suburb B as proposed by the ICL. That is the changeover location the parties agreed to in the 2019 consent orders. It would be far better if the father did change overs at school so the lateness issues and the parents’ demeanour became a non-event for the child. It would also have the advantage of the father having some involvement with the child’s school environment.
The father proposed a range of change over times, including 5.00 pm, 7.30 am, noon and 6.00 pm. I will use 5.00 pm as the change over time (unless specified otherwise in the orders) as that will be far easier for the parties to remember. Using the same time as often as possible also reduces the chance of errors if the parties had a plethora of different changeover times for different events.
Graduating to half holidays
The Family Report writer proposed holidays graduate as follows:
72. That the parents share the school holidays on a week about basis with exchange occurring at the current venue. That this be a graduated arrangement beginning with from Friday until Monday each alternate week during school holidays and increasing each consecutive holiday by one extra overnight until the parents are sharing the school holidays.
(Exhibit 5, paragraph 72)
The mother and ICL proposed a graduating regime that the child would have four nights with the father in the first short holidays following this order, five nights in the next short holidays and six in the next short holidays. They also proposed the child spend five nights a fortnight in the 2023 Summer holidays. There is now a problem with the timing of this. The next holiday after this order will be the Summer 2023 holidays. If I literally followed the ICL’s proposal, then the child would jump straight to five nights a fortnight for the forthcoming Summer holidays, then reduce to four nights at the end of Term 1 holidays next year, then back to five nights for the end of Term 2 holidays and six nights for the end of Term 3 holidays.
Obviously, the ICL could not foresee when I would deliver these reasons. I will work on the basis the ICL and mother proposed a graduation of four, then five, then six nights prior to introducing half holidays.
The father sought orders for half-holidays at the end of Terms 1, 2 and 3, and that the Summer holidays move immediately to week about, submitting the child was nine and the graduation did not need to be so slow as the ICL proposed.
The child has only spent one night a week with the father since 1 July 2019, when the child turned five. There was some indication from counsel at trial that the parties were looking to agree a form of holiday time for the holiday’s following the hearing. Counsel indicated I did not need to make orders about that.
I prefer the four, five, six, then half holiday timing proposed by the ICL and mother (albeit with the timing issue identified above). I accept the ICL’s submission that “there is no magic in the progression, it’s just that the child has not had [long] holidays yet”. I agree there is no magic in the proposed progression but adding one night each holiday period allows the child to get used to longer time with the father. Whilst the child is nine, he has not spent block periods with the father.
Authorities
The mother agrees with the ICL’s proposal (Orders 17 and 18) enabling the father to obtain copies of any information from schools that parents are ordinarily entitled to, and for the father to receive information from schools or medical practitioners if he requests so, at his expense.
The father did not agree, as he sought residence and they were therefore unnecessary on his case. However, he appropriately agreed to these orders if I was against him on the live with arrangements. I will therefore make these orders.
The father also orally proposed that he would pay for medical appointments if he takes the child to a doctor, and the mother would pay if she takes the child. I will not make an order about this. That may well be the practical reality of taking the child to a doctor, but I will not venture into matters that are more properly matters of child support. Further, no order other than the oral request in submissions were sought by the father.
Extra-Curricular Activities
The mother and ICL proposed a restraint against the parents enrolling the child in extra‑curricular activities in the other parent’s time, without the other parent’s consent. They also proposed the mother advise the father of matters such as birthday parties or sports events to which the child had been invited. The father was to use his best endeavours to ensure the child attends.
The father proposed this:
19. Both parties are to notify each other of all extra-curricular activities, including days, times, and locations, in which the child is enrolled.
(Amended Initiating Application filed 4 January 2023, p.4)
That would allow each parent to load the child with extra-curricular activities every single day. The father’s order however does not require attendance. I prefer the structure the child will have under the ICL’s proposed Order 21. The parties can do whatever they like in the child’s time with them, but not encroach on the child’s time with the other parent unless agreed. I will however tidy up the ICL’s proposed Order 20, to make it clear it refers to activities like birthday parties or sports events to which the chid has been invited or selected.
The father also wished for the child to be involved in a social club each weekend. That was another oral request in submissions. The father deposed the social club was at Suburb F and would occur every Saturday. That would mean the child would not have a full weekend with each parent going forward. I will not make that request; the child ought have weekend time with each parent. It would also see the child travelling from the mother’s to the social club and back again every second Saturday when with the mother, in addition to the Friday and Sunday/Monday morning travels when with the father.
Eid
Both parties sought time on these important celebrations but could not come to terms on timings. I was not assisted with much by way of submissions on this issue. The mother’s orders concerned her, and I infer by default, the father for the times the child was not otherwise with the mother. The father’s orders made provision for the child to spend time with both parents. In submissions the parties agreed 5.00 pm the day before the Eid al-Adha celebrations as the start time. No submissions of substance were made about the mother’s proposed time of 8.00 pm the day before the celebrations of Eid Al-Fitr. The father did not propose an end time for either celebration, but the mother nominated 12.00 pm.
I will make most of the order proposed by the father as it clearly covers both parents. I will use 5.00 pm as the start time as that was ultimately agreed for Eid al-Adha, and for consistency, I will make an order for 5.00 pm the day before the celebration of Eid al-Fitr. The mother has submitted 8pm, but made no meaningful submissions why that would be so. I will tidy up the wording (for example, delete “no later than” which could cause conflict). I will make 12.00 pm the conclusion time as that was the only end time specified by either party.
Child’s birthday
The ICL’s and mother’s Minute was silent on this topic. The father sought orders that birthdays turn on an odd and even regime. He also proposed start times but no end times. For example, on school days, the child was to be collected from school, stay overnight with the parent, but that was it. Similarly, on non-school days, the child was to be delivered to the other parent by 10.00 am, but that was it.
I will not make specific orders about the child’s birthday. I am not prepared to divine end times. I will also not make birthday orders taking account of the father’s strident criticism of the mother on anything to do with changeovers. The child needs his birthday to be joyous and not be caught in the middle of parental tensions over changeovers.
Unless the parties agree otherwise, the child’s birthday will fall as it falls. In the event the parties cannot agree to share the day in some way, then the child will be fortunate to have two different birthday celebrations at two different times.
New Years Eve
The father sought orders for sharing New Years Eve. The mother and ICL were silent on this. I will not make an order about this. The parents will be sharing the Summer holidays hence New Years Eve will fall as it falls. I will also not make orders about that as changeovers have been a bone of contention for the father so I will not add another set of changeovers which may give rise to further conflict and complaint.
Passport and overseas travel
The mother wanted to be able to secure a passport for the child without the father’s consent. The father and ICL opposed this and sought a restraint enjoining her from doing so.
The mother also sought orders to facilitate overseas travel. For example, she would like the opportunity to be able to travel with the child to the United States at some point in the future, “however financially this does not seem possible at the moment” (Mother’s affidavit filed 28 June 2023, paragraph 355). She would also:
356. … like the opportunity to travel with [X] to [Country Y] to visit [City Z] and [City G], for [a religious festival]. The visa for [the religious festival] requires a special visa with limits to short time, arrive and travel within these two cities only.
(Mother’s affidavit filed 28 June 2023, paragraph 356)
I will not allow the mother to secure a passport without the consent of the father. A passport is a critical, identification document about an individual. The father ought be involved.
Similarly, I will not make international travel orders. Whilst there is no credible evidence before me that the mother is a flight risk, there is also no evidence before me of anything other than a wish to travel in the future. If times change and the mother or father have actual plans to travel, they can ask the other to sign the passport application and agree to travel with the child. If the other parent will not do either or both, then the parents have options available to them, but that will be an application that has focus on actual travel rather than a general wish.
School absences
The father seeks an order that each party notify the other if the child is absent from school or arrives late. The mother and ICL’s minute is silent on this.
I will make a variation of the order sought by the father (his Order 18). I do not consider notifications to be necessary if the child is just a couple of minutes late. I will define “late” to be more than 30 minutes from the time the school says school starts. More than 30 minutes is venturing into possible, problematic lateness, as opposed to say, 10 minutes late due to traffic. If the child is absent due to illness, then other orders provide for the sharing of information.
I will also amend the requirement for reasons (“the reasons email/text”) to reflect the reasons to be those provided by the parent to the school and that no further requests for information by the other parent need be engaged with. The parties have proven themselves adept at long to‑and-fro emails about school absences (see for example Exhibit 7, p.53-54 and 60). That will not be required. The reasons email/text is not to become an interrogation by one parent of the other.
Ultimately, it will be a matter for the school if it forms the view absences are too many and reasons inadequate (see for example, s 23 of the Education Act1990 (NSW)).
Father’s order about a different school
The father’s Order 22 is to the effect that he may change the child’s school if the child obtains a place in an Opportunity Class in Year 5. No submissions were made about this. In any event, I am making an order for sole parental responsibility in the mother’s favour but in exercising that, she must consult with the father. Further, I have no concrete evidence where such a school might be and what that might mean for changeovers and parenting arrangements.
Father’s Medical issues
The father’s Order 29 is for each parent to tell the other their Medicare number. In his affidavit, the father said:
590. In June 2022, I came to know that [Ms Patton] had removed herself from the family Medicare card. I asked that [Ms Patton] provide me with [X]'s new Medicare card number, if she has transferred [X] to a new Medicare card.
591. In over six months, [Ms Patton] has not responded to my correspondence. Exhibited hereto and marked "[MP]50" are copies of such emails.
(Father’s affidavit filed 4 January 2023, paragraphs 590-591)
The father retained the former family card (Exhibit 6, p.210). In submissions the mother’s counsel submitted that both parents should be able to obtain a Medicare card and that both parents can have a Medicare card for the child.
Each parent can take up Medicare Card issues with Medicare. I will not make this order. I do not see the utility in them swapping information about their respective Medicare numbers.
There is no need to make the father’s proposed Order 30 or 32, as he consented to a similar order about notifying the other of illness and injuries (Order 19 in my orders). I will not require the parties give each other reasons for the attendances (father’s proposed Order 32) because the parents are each able to engage with the child’s medical and health practitioners. The parties also do not need an additional forum to debate the adequacy of the reasons as they have done in the past. I have already indicated I will make Order 31 adding the relevant parent is to ensure the prescribed medication is taken.
I will not make the father’s Order 33 that requires a parent to invite the other parent to medical appointments. That will be a recipe for disaster and forum for conflict. It will likely cause tension for the child too. If the child is at a health provider, the provider needs to focus on the child. I am making an order that each parent advise the other of medical appointments and an order the father can engage with health practitioners. That strikes the right balance between the father having access to health providers but maintaining the child’s health provider sessions be just that.
I will not restrain the parties from taking the child to a counsellor, psychologist or psychiatrist without the other’s consent (father’s Order 34). I have determined the mother will have sole parental responsibility, so this order is superfluous.
Grandparents
The father pressed his Orders 35 and 36. Order 35 required that if a maternal or paternal grandparent was taken ill and hospitalised, the child is to be “immediately” delivered to the relevant parent so the child could be taken to the hospital. I will not make that order because I cannot be satisfied that it would be appropriate to mandate the child attend what might be a confronting scene in say an Intensive Care Unit. I am also not prepared to make an order that may be seen to override a medical practitioner’s determination about visitors.
Order 36 mandated the child attending the funerals of the maternal and paternal grandparents. I will not make that order because I have no evidence that at this point in time, it would be age appropriate for the child to be required to do so.
Other orders sought by the father
For the father’s clarity, some of the orders accepted/proposed by the father are now included in the consent order, or I have made variations of what he sought (for example, his Orders 14‑15, 18, 23-28 and 30). I have made other orders he sought as set out above (for example, 31). The orders he sought at his 1-13, 16-17, 19-22 and 29, 32-36 have been overtaken by my reasons and orders I am making as a consequence.
Independent Children’s Lawyer Costs
The father agreed with the ICL’s order that the parties equally share the costs of the ICL in the amount of $18,909 ($9,454.50) however, he sought six months to pay, instead of the ICL’s proposed 28 days. The ICL was not opposed to a longer time frame. The ICL also highlighted that a term of the grant of aid was to seek costs at the end of trial.
The mother opposed the payment and submitted $9,454.50 would cause her financial hardship, as she is on parenting payments, is receiving minimal child support from the father, and is meeting medical costs for the child. The mother said if I was against her on payment, then she would like “as long as possible” to pay.
Both parents have funded their legal fees via their parents. The parties have had a property settlement which sees the father obtaining the balance of the proceeds from the sale of the Suburb S property, after priority payments to agent’s commission, legal and other costs of sale, and payment of the wife’s entitlement. For context, the reserve price is no less than $1,200,000.
The mother will receive approximately $400,000 by way of property settlement. However, the mother’s counsel submitted her modest funds will be used on a range of other things, such as re-training to enter the work force. She also receives little child support but has the medical and health costs for the child.
Legal Aid offers an absolutely valuable service in its provision of ICLs to the Court and I have been much assisted by the ICL and counsel in this matter. However, in the circumstances of this matter, I much prefer the mother use her resources for the betterment of the child, especially medical and health care costs. I will not make an order that the parties pay the ICL’s costs.
I certify that the preceding two hundred and forty (240) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 11 October 2023
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