PENMAN & MORGAN
[2019] FamCA 146
•15 March 2019
FAMILY COURT OF AUSTRALIA
| PENMAN & MORGAN | [2019] FamCA 146 |
| FAMILY LAW – CHILDREN – Final hearing – Where there is one child aged 13 years who is subject to the proceedings – Where the parents also have two adult children who live with the father – Where the father seeks that the child lives with him and spends time with his mother as per his wishes – Where the mother seeks the child spends time with her on specified dates – Where each parent seeks sole parental responsibility – Where there is chronic conflict between the parents and a coping mechanism has been adopted by the child and his brothers of living with the father – Where the experts say that the child has a positive relationship with his mother – Where the existing arrangements have been sufficient to sustain this positive relationship – Where orders are made for the child to live with his father and spend time with his mother as per his wishes – Where an order is made that the father have sole parental responsibility. FAMILY LAW – CHILD SUPPORT – Where the father seeks a raft of child support orders – Where the father does not identify a source of power which he contended was available to support his applications – Consideration of s 64B of the Family Law Act 1975 (Cth) – Where the father’s application is dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 64B, 65DAA |
| Mazorski v Albright (2007) 37 Fam LR 518 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Mr Penman |
| RESPONDENT: | Ms Morgan |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | SYC | 902 | of | 2011 |
| DATE DELIVERED: | 15 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 7, 8, 9 and 14 January 2019 |
REPRESENTATION
| THE APPLICANT: | Mr Penman |
| THE RESPONDENT: | Ms Morgan |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Moore |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
All existing Orders in relation to the child C born in 2005 are discharged.
The father has sole parental responsibility for C.
The father will keep the mother advised of C’s progress including but not limited to matters of C’s wellbeing, health, education and extra-curricular activities.
C will spend time with and communicate with the mother as he and the mother agree from time to time.
The father will do all things necessary to ensure that C completes his secondary education at B school.
Otherwise all outstanding applications and responses are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Penman & Morgan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 902 of 2011
| Mr Penman |
Applicant
And
| Ms Morgan |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
The proceedings
Mr Penman (“the father”) and Ms Morgan (“the mother”) are the parents of the child the subject of these proceedings, namely C born in 2005. C has two older brothers, Mr G who is aged 20 and Mr E who is 18 years of age. These proceedings concern parenting orders in relation to C and child support issues raised by the father. The mother's position in respect of child support matters was that these issues do not concern her and involve the father and the Child Support Agency.
The father sought the following orders:
(1)The final parenting orders made on 6 June 2011 by Judge Kemp be discharged.
(2)The parenting orders made on 22 August 2014 by Judge Kemp be discharged.
(3)The final parenting orders made on 5 March 2015 by Judge Kemp be discharged.
(4)The final parenting orders made on 20 May 2015 by Judge Kemp be discharged.
(5)That all and any communication in relation to the children between the Father and Mother undertaken via email or SMS be responded to within a 24 hour period.
(6)The parents do all acts and things and sign all documents necessary to ensure that [B school] records the mother's details on any school enrolment or student action form as a relevant contact parent, in any case of emergency and also ensure ALL other communication is made via the father or children.
(7)The parents do all acts and things to inform the Child Support Agency that all past and future medical expense incurred by the father for treatment of the children, [Mr G], [Mr E] & [C] be eligible as non-agency child support payments.
(8)The parents do all acts and things to inform the Child Support Agency that all of the medical expense incurred relating to the [surgery] of [Mr E] during 2015 and 2016 will be claimed by the Father as a non-agency child support payments.
(9)The parents do all acts and things to inform the Child Support Agency that all of the medical expense incurred relating to the remotely [sic] of wisdom teeth for [Mr G] during 2016 will be claimed by the Father as a non-agency child support payments.
(10)The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the purpose of obtaining passports for the children, [Mr G], [Mr E] & [C] be eligible as non-agency child support payments.
(11)The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the purpose of extra-curricular tutoring [Mr G], [Mr E] & and [C] be eligible as non-agency child support payments.
(12)The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the attendance of [Mr G], [Mr E] & [C] at [B school], be eligible as non-agency child support payments.
(13)The father have sole parental responsibility for the child [C] born 2005 ("C"):
(a)the father shall keep the mother advised of [C’s] progress including but not limited to matters of [C’s] wellbeing, health, education and extra-curricular activities;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of [C];
(c)the parents shall consult with the [sic] [C’s] school and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account the [sic] [C’s] relationships with people significant in his life, his developmental needs and his other obligations including schoolwork of [C’s] actual and proposed sporting activities; and
(d)the father shall give due regard to such matters as are raised by the mother, [C’s] school and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
(14)[C] shall live with and spend time with his parents in accordance with their views.
(15)Should either party refuse or neglect to execute any document which may be necessary or desirable to give full force and effect to the terms hereof within seven (7) days after the same shall have been tendered to either of them or their respective solicitors for that purpose THEN AND IN SUCH CASE a Registrar or Deputy Registrar of this Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly and the defaulting party shall be fully liable for the cost thereto.
The mother sought the following parenting orders:
1.That the "Further Amended Initiating Application" for final orders by the Applicant [Mr Penman] on 23rd March 2016 and orders sought by the father in court orders dated 3 September 2018 and marked with the letter "B" be dismissed.
2.That the Final Parenting Orders made on 5 March 2015 by Judge Kemp orders 1, 2, 3, 3a, 3b, 3c, 3d, 4, 8, 8a, 8b, 8c, 9, 10, 11, 12, 13, 14, 15 stand.
3.That Order 5 and 6 of the Final Parenting Orders made on 5 March 2015 by Judge Kemp be discharged.
4.That the mother shall have until 31 December 2022, sole parental responsibility for the child [C] born 2005 ("C") and:
(a)the mother shall keep the father advised of [C’s] progress including but not limited to matters of [C’s] wellbeing, health, education and extra-curricular activities;
(b)the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of [C];
(c)the parents shall consult with [C’s] school(s) and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account C’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of [C’s] actual and proposed sporting activities; and
(d)the mother shall give due regard to such matters as are raised by the father, [C’s] school(s) and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the mother shall be the person to make the final determination or decision.
5.That the Final Parenting Orders made on 22 August 2014 by Judge Kemp stay.
6.Order 8(b) of the 5/3/15 orders be altered to specify the dates of changeovers in regards to "live with arrangements" relating to C.
7.That if the mother's time with [C\ in the period from 1 January 2017 to 31 December 2023 was suspended as a result of the father preventing it, then the mother shall have make up time of the same period and the father's time will be suspended until that make up time has occurred.
8.That C live with the mother on the following dates:
C to live with Mother Pick up Drop off TERM 1 2 February 2019 4 February 2019 16 February 2019 18 February 2019 2 March 2019 4 March 2019 23 March 2019 1 April 2019 SCHOOL HOLIDAYS 4 April 2019 13 April 2019 C to live with Mother Pick up Drop off TERM 2 4 May 2019 6 May 2019 18 May 2019 20 May 2019 1 June 2019 3 June 2019 15 June 2019 17 June 2019 SCHOOL HOLIDAYS 27 June 2019 9 July 2019
TERM 3 27 July 2019 29 July 2019 10 August 2019 12 August 2019 24 August 2019 26 August 2019 7 September 2019 9 September 2019 21 September 2019 23 September 2019 SCHOOL HOLIDAYS 26 September 2019 5 October 2019 TERM 4 19 October 2019 21 October 2019 2 November 2019 4 November 2019 23 November 2019 25 November 2019 SCHOOL HOLIDAYS 3 December 2019 31 December 2019
The Independent Children's Lawyer ("the ICL") proposed the following parenting orders:
1. That all existing parenting orders be discharged.
2.That the Father have sole parental responsibility for the child [C] born 2005. (The child).
3.That the said child, when he is not attending [B School] as a boarder shall live with the Father except when he is spending time with the Mother.
4.That the child spend time and communicate with the Mother as follows:
(a)During NSW school terms 2 and 3, for a period of 2 hours each alternate Sunday at times to be agreed between the parents but failing agreement from 10am to Noon.
(b)During NSW school terms 1 and 4 each alternate weekend commencing after school on the Friday until the commencement of school on the following Monday, or Tuesday if the Monday is a school holiday.
(c)For 7 consecutive nights during each school holiday period, as agreed between the parents but failing agreement the first week of each school holidays beginning after school on the last day of school;
(d)During all school terms on school days during the child's lunch time as frequently as may be arranged with the school;
(e)During all school terms by telephoning or receiving telephone calls from the child.
5.That neither the Father and the Mother is to denigrate the other or any other person in that party's household in the hearing or presence of the child nor allow any other person to do so.
6.For the purpose of facilitating Orders 4(a), (b) and 4(c), unless otherwise agreed between the parents, the Mother or her nominee shall collect the child from the school at the commencement of the time the child spends with her and return the child to the school at the conclusion of the time.
7.Each parent is permitted to remove the child from the Commonwealth of Australia and/or travel out of the Sydney Metropolitan Area by agreement and failing agreement for such periods as the child is ordinarily in his or her care provided that the parent notify the other parent not less than 28 days prior to the date of departure of the following;
(a) the intended destination,
(b) the length of the trip,
(c) the intended return date,
(d)contact details for the child whilst overseas, including a telephone number
(e)a copy of the itinerary.
And for the purposes of this Order the child shall not travel during school time without the prior written consent of the child's school.
8.That the Father be permitted to allow the child to leave the Commonwealth of Australia for the purpose of the child attending "[a camp]" in 2019 and for the child to participate in the [sporting event] in 2019.
9.That for the purpose of Order 7, in the event that the Mother proposes to travel with the child out of the Commonwealth of Australia, then provided notification of the proposed travel is given in accordance with the Order, the child's passport shall be provided to the Mother by the Father within 7 days after notice has been received and the Mother shall then return the passports to the father within 7 days following the completion of any trip.
10.That these Orders be provided to any school the child attends and that they be deemed sufficient authority for the said school to provide any reports as to the children's schooling or other identified issues to the Mother, as requested by her.
11.That the Father and the Mother shall notify the other of the following:
(a)The names and addresses of the child's treating doctors, dentists and other health care professional,
(b)Immediately if the child is seriously ill or is to be admitted to hospital at such times as the child is living with or spending time with that party and shall provide full details of the illness or injury and permit the other parent to visit the child if hospitalised,
(c)Any medical treatment or allied health care received by the child whilst living or spending time with either parent and each parent will ensure that any medication prescribed by a health care provider is returned with the child and that the child takes the medication as prescribed whilst in their care.
12.That after the time has expired for any appeal from these Orders the Independent Children's Lawyer is discharged.
Background
The father and the mother, who are aged 48 and 44 respectively, commenced cohabitation in 1996 and separated on 20 July 2010. They were divorced by order made in 2011.
The parties have been involved in litigation concerning parenting orders and/or child support issues since 2011. On 6 June 2011 the Federal Circuit Court made the following Orders by consent:
(1)That [Ms D Penman] (the husband’s mother) is joined as a party to these proceedings.
PARENTING
(2)That the Husband (father) and the Wife (mother) have equal shared parental responsibility for [G] born 1998 and [E] born 2000 and [C] born 2005 (“the children”) including but not limited to:
(i) The school or schools that each child is to attend.
(ii) The religious instruction and upbringing of each child.
(iii) The medical treatment that each child is to receive.
(iv)The sporting and other activities that the children are to engage in that would occur when the children are to spend time with each of them.
(3)That the parent with whom the children are living with at that time is to be responsible for the day to day decisions concerning the care, welfare and development of the children.
(4)That during school terms the children [G], [E] and [C] live with the father each alternate week from after school Monday until the commencement of school the following Monday, and that the children otherwise live with the mother, such order to commence with the father on the first Monday of the school term, being Term 3, 2011.
(5)That during school holidays the children spend one half of each school holidays with each of their parents as agreed between the Husband and the Wife in writing but failing agreement for the first half with the father in holidays commencing in odd numbered years and for the second half with the father in holidays commencing in even numbered years, such time to commence in the June/July 2011 school holidays.
(6)That in order to calculate half of each of the children's school holidays the Husband and the Wife will calculate the number of days from the first day of the holiday period to the day before school returns, divide that by two and the changeover date between the Husband and the Wife date will be 10.00am the day after the middle day.
(7)The Court notes that the child [G] is currently at boarding school and that the child [E] is due to be enrolled to commence attending boarding school at [B school] in 2013.
(8)That whilst ever any of the children are attending boarding school the time that they spend with each of their parents pursuant to the orders above will be regulated by the requirements of the school.
(9)That the children spend from 9.00am until 6.00pm Father's Day of each and every year with the father, and 9.00am until 6.00pm Mother's Day of each and every year with the mother, in the event that those days are not days that the children would spend with that parent.
(10)When changeover is to occur other than at the children's schools, the father or his nominee will collect the children from the mother or her nominee at the [Petrol Station], the commencement of his time with the children and the mother or her nominee will collect the children from the father or his nominee at this same location at the conclusion of his time with the children.
(11)That each parent have liberal telephone contact with the children when they are in the other parent's care. Either party will permit telephone communication via their mobile phone should the nominated telephone number be unavailable.
(12)That the Husband and the Wife do all acts and things and sign all documents necessary to enrol [E] and [C] in [B School] as weekly boarders for their secondary schooling. That such documents be completed and forwarded to [B School] no later than the dates specified by the school.
(13)That the Husband and/or the Husband's mother [Ms D Penman] will be solely responsible for the payment of all and any school fees and expenses at [B School] and that any such payments will not be claimed by the Husband as a non-agency child support payments.
(14)That each of the parents use their best endeavours to ensure that the children are transported to and from all extracurricular activities they are involved in during the time that the children are living with that parent.
(15)That each of the parents ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. That neither parent will reasonably refuse to return such items with the children. That each parent ensure that all of the children's clothing, uniform and other equipment is returned with the children, where reasonably possible, washed.
(16)That each party notify the other of the following:
(a)The names and addresses of the children's treating doctors and dentists.
(b)The dates of parent/teacher functions, sports carnivals and details of the children's extra-curricular activities. That the Husband and the Wife shall ensure the other parent is advised of any specialist appointments or medical appointments involving the child/children so as to enable the other parents attendance and also so as to enable either parent to obtain information from the treating specialist/doctor.
(c)immediately notify the other if any child is seriously ill or is to be admitted into hospital at such times as the children are living with that party and shall provide full details of the illness or injury and permit the other party to visit the child if hospitalised.
(d)That each party shall notify the other of any medical treatment or allied health care received by the child whilst living with either parent and shall ensure that any medication prescribed by a health care provider, return with the child and that the child takes the medication as prescribed.
(e)Any intended change of residential address for the children within 28 days of the change being affected together with full details of such address.
(f)Any intended change of mobile telephone number within 24 hours.
(17)That excepting emergencies communication between the Husband and the Wife in relation to the children is to be by email or SMS.
(18)That at such times as either party takes the children on holidays outside the Sydney area that that party provide the other party with the address of where the children will be staying where reasonably possible.
(19)That the Husband and the Wife do all acts and things and sign all documents necessary to authorise any school attended by the children to release to both Husband and the Wife copies of all school newsletters, notes, school reports and school photographs.
(20)That neither party is to denigrate the other or any other person in that party's household in the hearing or presence of the child/children nor allow any other third party to do so.
(21)That both Husband and the Wife are restrained from moving the children's residence from outside of the Sydney Metropolitan Area without the prior written consent of the other parent first had and obtained.
(22)That both Husband and the Wife forthwith do all things necessary and sign all documents to enrol in a post separation parenting programme with Interrelate or other similar organization.
(23)That the Court notes that the Husband and the Wife have agreed to Order 22 above so that they may improve the communication between them so that they can more effectively co-parent the children.
…
On 3 February 2012 the father filed an Application which sought to vary these Orders. On 22 August 2014 the Federal Circuit Court made the following final Orders by consent:
(1)[C] shall live with the Mother for one half of his school holiday periods as agreed between the parents, and failing agreement for the first half of [C’s] school holidays in 2014 and each alternate year thereafter, and for the second half of [C’s] school holidays in 2015 and each alternate year thereafter.
(2) For the purpose of the previous Order, the following will apply:
(a)each school holiday period shall commence at 3.00pm on the last day of [C’s] required school attendance and shall conclude at 3.00pm on the day immediately preceding the first day of the next school term for [C];
(b)changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
(c)in the event that there are two consecutive mid-point days, then changeover is to occur at 12.00 noon on the first of those two mid-point days.
(3)When the children are not living with the Mother they shall live with the Father.
(4)In addition to the time provided for above, [C] shall spend from 9.00AM until 6.00PM Father's Day of each and every year with the Father, and 9.00AM until 6.00PM Mother's Day of each and every year with the Mother, in the event that those days are not days that [C] would normally spend with that parent.
(5)When changeover is to occur other than at the children's schools, the Father, or his nominee, will collect the children from the Mother, or her nominee, at the [Petrol Station], at the commencement of the Father’s time with the children. The Mother or her nominee will collect the children from the Father or his nominee at this same location at the conclusion of his time with the children.
(5A)In the event that both parties and the children are in attendance at the same sporting, school or other extracurricular event, changeover may take place at that venue in lieu of the venues referred to in the previous Order.
(6)Each parent shall have liberal telephone time with the children when they are in the other parent's care. Each parent will permit telephone communication via their mobile phone should a child’s mobile telephone be unavailable.
(7)Each of the parents shall ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. That neither parent will reasonably refuse to return such items with the children. That each parent ensure that all of the children's clothing, uniform and other equipment is returned with the children, and where reasonably possible, washed.
(8)All and any communication in relation to the children between the Father and Mother be conducted via email or SMS and be replied to within a 24 hour period.
(9) Each party shall notify the other of the following:
(a)the names and addresses of the children's treating doctors and dentists and shall ensure that the other parent is advised of any specialist appointments or medical appointments involving the children so as to enable the other parent to attend such appointments and also so as to enable either parent to obtain information from the treating specialist/doctor;
(b)the dates of parent/teacher functions, sports carnivals and details of the children's extra- curricular activities;
(c)immediately if any child is seriously ill or is to be admitted to hospital at such times as the children are living with that party and shall provide full details of the illness or injury and permit the other parent to visit the child if hospitalized;
(d)any medical treatment or allied health care received by the child whilst living with either parent and each parent will ensure that any medication prescribed by a health care provider is returned with the child and that the child takes the medication as prescribed whilst in their care;
(e)any intended change of residential address for the children within 28 days prior to the change being affected together with full details of such address;
(f)any intended change of mobile telephone number within 24 hours prior to the change.
(10)Each parent is permitted to remove the children from the Commonwealth of Australia and/or travel interstate by agreement and failing agreement for such periods as the children are ordinarily in their care, provided that that parent notify the other parent not less than 28 days prior to the date of departure of the following: –
(a) the intended destination;
(b) the length of the trip;
(c) the intended return date;
(d)contact details for the children whilst overseas including addresses and telephone numbers; and
(e) a copy of their itinerary
and for the purposes of this Order the children shall not travel during school time without the prior written consent of the relevant children’s school/s.
(11)Within three days of either party providing to the other a passport application and/or any other documents required in order for a passport to issue in relation to the children, then the party provided with the documents sign them and each of the parties pay one half of the passport application fee and that upon issue of the children’s passports they be held by the Father.
(12)To obtain any necessary information and/or documents about the children’s progress each parent be permitted to liaise directly with the children’s schools, sporting bodies, and medical practitioners and this Order shall act as sufficient authority to allow such liaison with any school, sporting body or medical practitioner the children may attend from time to time.
(13)Each parent is restrained by injunction from moving the children's permanent residence outside of the Sydney Metropolitan Area without the prior written consent of the other parent.
(14)In the event that either party travels with the children or any of them outside the Sydney Metropolitan area for a period exceeding 2 days than that party shall provide the other party with the address(es) at which the child(ren) will be staying.
(15)Neither party is to denigrate the other or any other person in that party's household in the hearing or presence of the children or any of them nor allow any other person to do so.
(16)Each party should do all such acts and things and sign all such necessary documents to give effect to the terms of these Orders.
(17)Should either party refuse or neglect to execute any document which may be necessary or desirable to give full force and effect to the terms hereof within seven (7) days after the same shall have been tendered to either of them or their respective solicitors for that purpose THEN AND IN SUCH CASE a Registrar of this Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly and the defaulting party shall be fully liable for the cost thereto.
By approximately December 2013 G and E had ceased to spend time with the mother in accordance with the Orders of 6 June 2011.
On 5 March 2015 the Federal Circuit Court made a third set of Orders, following a six day hearing which took place in February, August and December 2014. These Orders provided as follows:
(1)The following final parenting orders made on 6 June 2011 be discharged: being orders 2, 4, 5, 6, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22 and the remaining orders stand.
(2) The parenting orders of 22 August 2014 stand.
(3)By consent, the father have sole parental responsibility for the children G born 1998 and E born 2000 (“the older children”) and:
(a)the father shall keep the mother advised of the older children’s progress including but not limited to matters of the older children’s wellbeing, health, education and extra-curricular activities;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of the older children;
(c)the parents shall consult with the older children’s school and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account the older children’s relationships with people significant in their lives, their developmental needs and their other obligations including schoolwork) of the older children’s actual and proposed sporting activities; and
(d)the father shall give due regard to such matters as are raised by the mother, the older children’s school and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
(4)By consent, G and E shall live with and spend time with their parents in accordance with their views.
(5)The mother shall have until 31 December 2016, sole parental responsibility for the child [C] born 2005 (“C”) and:
(a)the mother shall keep the father advised of [C’s] progress including but not limited to matters of [C’s] wellbeing, health, education and extra-curricular activities;
(b)the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of [C];
(c)the parents shall consult with [C’s] school(s) and
extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account [C’s] relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of [C’s] actual and proposed sporting activities; and(d)the mother shall give due regard to such matters as are raised by the father, [C’s] school(s) and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the mother shall be the person to make the final determination or decision.
(6)The father shall have from 1 January 2017 parental responsibility for [C] (excluding [C’s] extra-curricular sporting activities), subject to the following:
(a)the father shall keep the mother advised of [C’s] progress including but not limited to matters of [C’s] wellbeing, health and education;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of [C];
(c)the father shall give due regard to such matters as are raised by the mother, [C’s] school(s) but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision; and
(d)up until 31 December 2018, the mother shall have parental responsibility to determine [C’s] extra-curricular sporting activities in relation to the appropriateness of the frequency and overall balance (taking into account C’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of [C’s] actual and proposed sporting activities and the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of [C] and the mother shall give due regard to such matters as are raised by the father, but in the event no agreement is reached between the parents, the mother shall be the person who makes the final determination or decision with respect to those extra-curricular sporting activities.
(7)The father shall have from 1 January 2019 sole parental responsibility for [C] (including [C’s] extra-curricular sporting activities), subject to the following:
(a)the father shall keep the mother advised of [C’s] progress including but not limited to matters of [C’s] wellbeing, health, education and extra-curricular activities;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of [C];
(c)the parents shall consult with [C’s] school(s) and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account [C’s] relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of [C’s] actual and proposed sporting activities; and
(d)the father shall give due regard to such matters as are raised by the mother, [C’s] school(s) and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
(8)Subject to the orders of 22 August 2014, during school term, [C] shall:
(a)while not at [B School] live with the mother each alternate week from after school on Monday until the commencement of school on the next following Monday and he shall, otherwise, live with the father, such order to continue in terms of the existing orders of 22 August 2014.
(b)while at [B School] and up until 31 December 2018, live with the mother every second weekend from school pick up time at [B School], on Friday (or from the completion of any sporting activities on Saturday) until Monday morning at school (or Tuesday morning if Monday is a public holiday) and he shall, otherwise, live with the father.
(c)while at [B School] and as and from 1 January 2019, live with and spend time with his parents in accordance with his views.
(9)For the purposes of order 10 of the orders of 22 August 2014, in the event that the mother proposes to remove the children or any of them from the Commonwealth of Australia, then provided notification of the proposed travel is given in accordance with that order, the children’s passports shall be provided to the mother by the father within 7 days after the notice is received. The mother shall then return the passports to the father within 7 days following the completion of any trip.
(10)The parents do all acts and things and sign all documents necessary to enrol [C] in [B School] as a weekly boarder for his secondary schooling, such documents to be completed and forwarded by no later than the date specified by the school and the father is to ensure that [B school] records the mother’s details on any school enrolment or student action form as a relevant contact parent, in any case of emergency contact.
(11)That if the mother’s time with [C] in the period 30 December 2014 to 15 January 2015 was suspended as a result of the father travelling overseas with [C], then the mother shall have make up time of the same period as agreed between the parties to be effected by 30 June 2015 and if there is no agreement, the said time period will form part of the mother’s time for the next two school holiday periods after 30 June 2015 and the father’s time will be suspended until that make up time has occurred.
(12)That if a party’s time with [C] is suspended for 3 days or more as a result of the other party travelling with [C], pursuant to order 10 of the orders made 22 August 2014, then that party shall have make up time for the same period as the suspended period as agreed and if there is no agreement, then that make up time shall be taken from the other party’s time in the following school holiday periods as nominated in writing by the party whose time was suspended, with such time to be fully made up within 6 months of the last day of the suspended time, to the intent that if a party’s time is suspended for less than 3 days, there is to be no make up time provided.
(13)These orders be provided to [B School] and that they be deemed sufficient authority for the said school to provide any reports as to the children’s schooling or other identified issues to the mother, as requested by her.
(14)Prior to any application for discharge of the Independent Children’s Lawyer, the Independent Children’s Lawyer will forward a copy of these orders and any existant orders to the Principal at [B School] and meet with the children so as to explain the orders and the Court’s decision herein.
(15)The proceedings be stood over to 19 March 2015 at 9.30am for mention with the Independent Children's Lawyer to notify the Second Respondent of the adjourned date.
It would appear that at least some of the Orders were intended to be interim in nature, as the Federal Circuit Court adjourned the proceedings for mention only to 19 March 2015. On 20 May 2015 the proceedings were transferred to the Family Court of Australia.
Following the Orders of 5 March 2015 the father suffered a bout of depression and was prescribed medication. He indicated that he consulted a psychiatrist "for several months" after the making of these Orders. C did not spend time with the father following these Orders until approximately November 2015.
C lived with the mother and father in accordance with the Orders of 5 March 2015 between approximately November 2015 and January 2017, when he began to attend B School as a boarder. He has lived with the father when he was not boarding and spent time with the mother when she visited him at school during lunch periods every two to three weeks. The mother indicated that the child C rings her at night from school on a regular basis.
Mr G last saw the mother at Christmas 2016 and has not spoken to her since February 2018. During 2018 Mr E saw the mother when she visited the school at lunch time every two to three weeks. Mr E visited the mother's home for dinner after he completed his Higher school Certificate in 2018. He and the child C travelled together on Boxing Day 2018 and spent one night with the mother and the maternal family.
There was a regrettable incident at B School, for which each of the parties attempted to attribute blame to the other and his and her supporters. The incident involved the mother and her partner, Mr L, and the father and the paternal grandfather Mr M Penman. I will consider the evidence in relation to this event below in these reasons.
The history in relation to child support disputation was set out in the reasons for judgment of Watts J of 24 April 2018 as follows:
15.On 12 August 2011 the Registrar, based on the June 2011 parenting orders, changed the [G’s] percentage of care to 50 per cent for each parent.
16.The father objected as he was entitled to do under the Assessment Act. On 21 October 2011 that objection was disallowed.
17.The father sought that disallowance be reviewed by the SSAT. On 23 January 2012 the SSAT confirmed a percentage of care for [G] at 50 per cent for each parent.
18.The father applied to the AAT for a review of the SSAT decision. On 28 June 2012 the AAT confirmed the SSAT’s decision (The Father and Child Support Registrar and Anor [2012] AATA 396).
19.The father appealed to the Federal Court of Australia. On 29 November 2012 Buchanan J upheld the father’s appeal on the basis that the AAT hadn’t properly considered s 54A(3) of the Assessment Act and remitted the matter for rehearing by the AAT (P v Child Support Registrar [2012] FCA 1398).
20.On 25 June 2013 the AAT, having reheard the matter, again confirmed the decision of the SSAT namely a percentage of care for G at 50 per cent for each parent (Confidential and Child Support Registrar and Anor [2013] AATA 426).
21.The father again appealed to the Federal Court of Australia. On 5 December 2013 Wigney J dismissed the father’s appeal (P v Child Support Registrar [2013] FCA 1312).
22.The father appealed Wigney J’s decision to the Full Court of the Federal Court. On 11 August 2014 that appeal was dismissed by Perram, Perry and Gleeson JJ (P v Child Support Registrar [2014] FCAFC 98). The ultimate result was that [G’s] percentage of care was confirmed at 50 per cent between his parents.
23.It can be seen that in relation to the issue of [G’s] percentage of care, the father had worked his way through the five stages of review and appeal then available under the Assessment Act and the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”).
24.Prior to January 2013 [E’s] percentage of care was assessed at 50 per cent for both parents given that the June 2011 parenting orders provided equal shared parental responsibility to both parents and that he lived week about with his parents during school term and shared school holidays equally.
25.In January 2013 [E] also started at boarding school. Under the parenting orders he was to spend weekend and holidays equally with his parents.
26.On 8 January 2013 the father sought that the Registrar change [E’s] percentage of care from 50 per cent to 77 per cent in his favour.
27.On 8 March 2013 the Registrar declined to change [E’s] percentage of care leaving it at 50 per cent for both parents.
28.The father lodged an objection which was disallowed by the SSAT either in May or July 2013 (the material has two inconsistent dates).
29.The father sought a review of that disallowance by the SSAT. On 17 April 2014 the AAT varied the percentage of care for [E] to 55 per cent in the father’s favour backdated to 8 January 2013 (P and Child Support Registrar and Anor [2014] AATA 229).
30.The father appealed the decision of the AAT to the Federal Court of Australia. That appeal was dismissed by Katzmann J on 27 February 2015 (P v Child Support Registrar [2015] FCA 116).
...
The evidence and witnesses
The father purported to rely on approximately 40 affidavits, spanning the period from 2013 until 2018, which material amounted to thousands of pages of text. I will not include a list of these affidavits in my reasons but I indicate that I have not read all of this material.
The father relied on affidavits sworn or affirmed by the following persons:
1. Mr Penman (the father);
2. Mr M Penman (the paternal grandfather);
3. Ms D Penman (the paternal grandmother);
4. Mr G (the parties' 20 year old son);
5. Mr E (the parties' 18 years old son);
6.Ms N (clinical psychologist who has been consulting with the family since 2014);
7.Ms O (speech pathologist who has been engaged with C since 2010); and
8.Ms P (ex-partner of the father).
To her credit, the mother elected not to cross-examine the parties' sons Mr G and Mr E. In my view, the mother incurred no forensic disadvantage by this decision. I will refer to the evidence of Mr G and Mr E below in these reasons.
Ms O was not available for cross-examination but the mother and the ICL consented to the admission into evidence of her affidavit and annexed report. Ms P’s affidavit was sworn on 9 July 2014 and she did not figure in the present trial at all.
The paternal grandparents both gave oral evidence by way of cross-examination. The paternal grandfather attended in person and the maternal grandmother gave her evidence by telephone.
Ms N and the Family Consultant, Ms Q, gave their oral evidence concurrently in accordance with directions which I made on 3 September 2018. The father objected to this course during the first week of the trial in January 2019, claiming that his witness Ms N "had been hijacked" and that consequently he was being subjected to "unfair treatment". The father then agreed to Ms N and Ms Q giving their evidence concurrently and they did so on 14 January 2019.
The mother relied on the following affidavits:
1. Ms Morgan (the mother) sworn on 17 April 2018;
2.Ms R (the maternal grandmother) sworn on 5 November 2018; and
3.Mr L (the mother's partner) sworn on 16 November 2018.
Mrs R was not required for cross-examination.
I had the benefit of a report dated 16 August 2018 prepared by Family Consultant Ms Q. As noted, the Family Consultant and Ms N gave their evidence concurrently on 14 January 2019.
I was asked to read the reasons for judgment of Federal Circuit Court Judge Kemp of 5 March 2015, which related to parenting issues. I was asked also to read the reasons for judgment of Watts J of 24 April 2018 in relation to child support departure issues.
Approach To These Proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2). Subsection 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA of the Act requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1) of the Act). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicality” are defined in ss 65DAA(3), (4) and (5) of the Act. There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
(Emphasis added.) Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time.”
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question.
Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…
(footnotes omitted)
The father made a number of applications during the course of the trial, for none of which he sought the leave of the court. I will not detail each of these applications, in none of which I perceived any merit.
One such application was the attempt by the father to remove the solicitor who acted as ICL during the trial and, presumably, her counsel. I could see no basis whatsoever for this application, which seemed to follow from the father becoming displeased with some action which he alleged had been taken by the ICL.
Comparably, the father took issue with certain actions taken by the then ICL during the trial before Judge Kemp. His Honour observed:
10.On the final day of the hearing, the Independent Children’s Lawyer proposed a minute of order (“ICL2B”), as referred to in paragraph 24 below, which was, substantially, accepted by the mother. The father was extremely angry and upset at its terms and, at one point, stormed out of the Court room, ordering his mother, the intervenor, to follow him. The father returned and in final submissions stated that he had been “dismayed at a change in position” of the Independent Children’s Lawyer which he said must have arisen because of his attack on Mr MacDiarmid’s professional character. This, of course, was denied by Mr MacDiarmid.
A further application was the father's insistence that the trial be adjourned so that the father could obtain a transcript of earlier proceedings in the Local Court of New South Wales. I took the view that any such transcript would be of marginal relevance and refused this application.
Primary considerations: Subsection 60CC(2)
Subsection 60CC(2) refers to the benefit to a child of a "meaningful relationship" with both parents. In Mazorski v Albright (2007) 37 Fam LR 518 at 526-527 Brown J considered the import of the phrase "meaningful relationship" for the purposes of s 60CC(2). Her Honour said:
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
I found the concurrent evidence of Ms Q and Ms N to be of considerable assistance, in terms of an assessment of the benefit to C of a meaningful relationship with both of his parents. Ms N offered this analysis of the situation with which C must contend, vis-a-vis his parents:
The only thing that I would add is some background of why [Mr G] and [Mr E] reached the decisions they did when they were 16 and 14 and why [C] chooses to follow their example, and since I’ve had some contact with the children over the years – last six years, it has – it has become obvious that [Mr G] and [Mr E] decided that given the – the very unhappy relationship between their parents, the only way they could avoid arguments and conflicts was to choose one parent to make the decisions and – until they complete their education and then they will make whatever choices they wish to make. [C] watched all that, and it becomes evident that he – and he continually tells everyone that asks him, “I will do what my brother has done.”
So this is the background to where [C] is now. Is it – and [Mr E], you know, whom I see quite frequently, continually repeats that it was the only way that we could concentrate on what – on our lives and what was important for them to do without having constant conflicts and argument. So to answer your question, this is the background, and the influence on [C] is more his two brothers and their decisions, and he observes them and feels, well, the decisions they made played okay out for them. ...
Ms N elaborated on her analysis of the experience of Mr G and Mr E in their attempts to cope with the conflict between their parents. She said:
In my opinion, and having kept contact with the two older boys or young adults now, it was that they made a conscious decision that the only way they could cope with the messy family conflict they had was to stay at the school, focus on their studies and spend heaps of times with each other and allow or approve of one parent to make all decisions concerning them. So from that perspective, at no stage did [Mr G[ or [Mr E] ever express negative feelings or opinions about their mother. They – the way that they adopted was their way of dealing with the messy situation that they could not deal with any other way.
Ms N assessed that there is "a very close sibling bond" between the three brothers. She said:
It is [C’s] wish to spend and be part of the life of his brothers. They have a very close relationship. And I have observed that since I first met them in 2013, ’14. They seem to have developed a close sibling bond that allowed them to cope with the instability in their family life. So, consequently, [C] has repeatedly and consistently told me over the years that, “All I wish to do is follow and be with my brothers.”
Ms Q was asked to comment on the adequacy of C’s current level of contact with the mother. She opined as follows:
I think it’s sufficient to maintain some form of connection with his mother. He – in those interactions with his mother, I believe he’s receiving the message from his mother along the lines of that she loves him, she’s there for him, she is wanting and willing to have a relationship with him. I think for [C] – and having spoken to [Mr E] as well – I think there – there is a relationship there, that they – they – that they don’t completely lose the relationship. So it’s sufficient to maintain some level of relationship and some level of connection, but it’s not sufficient to maintain the deeper lever [sic] of emotional connection that would be able to be maintained, if there was more frequent and substantial time spent together and experiences had together.
Both Ms Q and Ms N were asked to comment on the likely implications for C of an ongoing situation where he does not spend time with the mother by his own election. Ms Q said:
I think that for [C] – for [C] to be doing what he has done for the past two years, to - to not spend time with his mother seemingly by his own wishes, yes, I don’t think that’s a good thing for [C], psychologically.
Ms Q said further:
There is something that prevents [C] from spending time with his mother. And if it is left to him, I think the last two years tells us that he won’t spend time with his mother. And if he – if it is left to him and somehow he does decide to spend time with his mother, I think that places him in a difficult position with his father and his brothers.
The view of Ms N as to the adequacy of C’s current level of contact with his mother was that "[C] seems to feel that… he can cope with that, and I – I would listen to what [C] says at this time." She added:
I feel that, again, given [C’s] attachment – level and strength of attachment to his brothers, he would feel that if he – if their wishes were respected when they were in similar age to he – what he is now and his are not, I’m not certain how he would accept that.
Ms Q and Ms N were asked about the possibility that the father and the paternal grandparents have "alienated" [C] from the mother. The mother holds a strong belief that the father and the paternal grandparents have engaged in such "alienation". Ms Q said:
I think the use of that term – “alienation” term is difficult because the situation at the moment is that [C] is not spending regular weekend or holiday time with his mother, but he talks positively about his mother. He interacts positively with her when he does see her and when he does communicate with her.
Ms Q said further:
I think – well, that’s where the complexity is because – you know, that’s where I talk about this influence that’s over [C] as to why he makes the decisions that he makes. It’s – I mean, there’s an influence over him that one could say is possibly coming from his father, his grandparents and his brothers and his entire family circumstances. ... it’s complex because of [C’s] perceptions of his mother and his attitudes toward his mother, that it’s not what I would consider a situation where a parent has actively manipulated a child to feel negatively about another parent.
Ms Q added:
It impacts [C’s] capacity to spend time with his mother, but it doesn’t necessarily impact [C’s] feelings about his mother.
When asked about the possibility of "alienation" Ms N referred again to her analysis of the dynamics which she identified to have been adopted by Mr G and Mr E in order to deal with the parental conflict. She noted that:
…at no stage did [Mr G] or [Mr E] ever express negative feelings or opinions about their mother.
Interestingly, there was some indication in the affidavits of Mr G and Mr E that they had indeed experienced the process described by Ms N in dealing with the conflicts between their parents. Mr G deposed as follows:
10.... It is about this time that I really wanted the fighting between my parents to stop. I thought it would be easier if I just stayed with dad that way I could avoid the hassles
Mr E deposed as follows:
6.Once I started at [B School] I found it hard to spend alternate weekends with my parents. I remember telling dad that I wanted to be a full boarder after only a week at [B School].
...
8.When [Mr G] stopped going home with mum, I remember thinking that it would also be nice to avoid the hassles of going between the two homes. I thought it would be easier if I just stayed with Dad, that way I could avoid the hassles.
As to the need to protect C from harm, there was no suggestion that either party has subjected him to physical abuse or neglect. As noted above, the mother holds a firm belief that the father and the paternal grandparents have "alienated" C from her but Ms Q and Ms N offered an alternative analysis of his current situation.
The incident at the sports field in 2018 would be capable of being construed as exposure of C to family violence. The mother deposed that she, Mr L and her nephew Mr S attended C’s sports event at B School. She said that she invited C to a match with his cousin Mr S that night and the father refused to allow him to do so. The mother then deposed to the ensuing events in the following terms:
154.I saw the [C] asking his father and I saw Mr Penman shaking his head left to right to signal no.
155.[C] walked back to me in tears and said "Dad said no, I just want both my Fucking parents!" I gave [C] a big cuddle and said, I will go and talk to your father.
156.I approached [Mr Penman] and said to the words of effect "what you’re doing to your son is disgusting. [C] is in tears." At this stage [Mr Penman’s] father [Mr M Penman] pushed me with his body and right shoulder at that point, my partner [Mr L] put his arm between us moving [Mr M Penman] away.
157.[Mr Penman’s] demeanour become [sic] offensive and he was touching [Mr L] with his stomach and said "don't touch my father, if you touch my father again, I'll fucking smash your face in". I tried to intervene but could not as I got pushed out of the way again by [Mr M Penman]. This was done in front of children and parents.
158.[Mr L] did not retaliate. Instead he called [Mr Penman] a "coward" for hurting [C].
In response to questions from counsel for the ICL, the mother said that she "believes that everybody was to blame for that day". She said that she was "extremely upset and pissed off" and agreed that she "could have handled it better". She conceded that she made a decision to confront the father when C returned to her in tears, after he asked whether he could attend the match that night.
Mr L set out his version of the events of 2018 in his affidavit. He deposed that the mother invited C to a match that night and that he returned to them in tears after a conversation with the father. Mr L deposed that he heard C say "I just want both fucking parents".
Mr L deposed that the following events then took place:
19.After a moment of consoling [C], [Ms Morgan] then said "I will speak with your father", and walked towards the area where [Mr Penman] and his parents were standing. I walked behind [Ms Morgan] and to her right side.
...
21.I observed [Mr Penman], who was approximately around two meters [sic] away, turn his head walk away from [Ms Morgan]. At the same time his father whom I understand to be [Mr M Penman], walked up to [Ms Morgan] in a confronting and intimidating manner, pushing his body and right shoulder onto her front side.
22.From [Ms Morgan’s] right side, I put my right hand out onto [Mr M Penman] [sic] stomach area and pushed him off [Ms Morgan]. I do not know how hard I pushed him as it was all unexpected and happened quickly however, it was sufficient to create a gap and certainly not a brute force.
23.[Mr Penman] immediately reacted confronting me in an intimidating manner. He has a very large stomach, still wet from the sweat on his refereeing clothing – which he pushed up against my stomach. [Mr Penman] was facing me loudly screaming "don't you touch my father, I will smash your fucking face in". He continued to repeat this statement several times and very loudly.
24.I responded a few times stating "You coward how could you do this to a kid". Despite his contact and intimidation, I refrained from using any force against him.
In cross-examination by the father, Mr L denied a suggestion that he "had got out of control" in 2018. He confirmed his evidence that the paternal grandfather "assaulted" the mother.
The father gave this account of the incident of 2018 in his trial affidavit:
24.I was attending [C’s] sport event at [B School] when [Ms Morgan] started charging at me, I turned to walk away. My father, [Mr M Penman] (Dad), step [sic] behind me to stop [Ms Morgan]; however, her partner also charged after me, it was at this point that the partner of [C’s] mother punched Dad in the chest. I then try [sic] to stop any further violence from him. This incident was so distressing for [C], his mother and boyfriend behaving in such a disrespectful and bully manner in front of his teammates, school mates’ friends and teachers.
In cross-examination by counsel for the ICL, the father maintained that Mr L "pushed" the paternal grandfather and subjected him to "body blows". The father said that he did not see the paternal grandfather push the mother and maintained that "she attacked us".
The paternal grandfather gave this account of the incident:
13.I was attending one of [C’s sports event at B School] when I saw [C’s] mother charge at [Mr Penman], yelling at him. I saw [Mr Penman] turn and walk away then noticed her partner charging after [Mr Penman] so I stepped in his way. It was at this point that I was manhandled in a very threatening manner. The next thing I know [Mr Penman] was standing next to him verbally trying to douse his anger and aggressive threats and stop him from punching me.
In my view it is difficult and unnecessary that I make factual findings as to the events to which C was subjected in 2018. There was no independent evidence as to the unfortunate events in 2018. The antipathy of the father and the paternal grandfather toward the mother was demonstrated by their evidence in relation to the incident. Similarly, the mother's antipathy toward the father and the paternal grandfather was clear on the face of her evidence. In my view, however, credit is due to the mother for her adoption of some responsibility for the incident and her acknowledgement that she "could have handled it better". The same cannot be said of the father and the paternal grandfather.
Additional considerations
I will refer only to those considerations set out in section 60CC(3) which are relevant to the present proceedings. Some such considerations clearly are not apposite to these proceedings, such as a child's Aboriginal or Torres Strait heritage. The relevant additional considerations as contained in s 60CC(3) of the Act are as follows.
(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
C expressed the following views to the Family Consultant:
44.[C] said that he wants to be able to continue boarding at [B School]. [C] said that he would "probably not" spend time with his mother on weekends, even if there were Orders in place for him to do so ([C] did not indicate that he is aware of the current Orders). He said that he would not like it if he were required to spend alternate weekends with each parent as it would be "bad" and he would "prefer to stay with my brothers" (at his father's home). [C] said that he would "maybe" spend time with his mother during school holidays. He suggested that he could spend half a week with his mother during school holidays.
I have referred above to certain of the oral evidence of Ms Q and Ms N in relation to C’s views and their appropriate weight. As noted, Ms N opined that C’s views should carry very substantial weight. The following exchange occurred between counsel for the ICL and Ms N:
[MR MOORE]: Yes. Now, I asked [Ms Q] whether her view was that [Mr E’s] wishes are to be – sorry – [C’s] wishes would be determinative of the end result, and, as I understand her evidence, she said, “Well, not necessarily determinative, but, obviously, you’ve got to give it significant weight.” Is that your evidence as well?
[MS N]:Not necessarily. I - I feel that, again, given [C’s] attachment – level and strength of attachment to his brothers, he would feel that if he – if their wishes were respected when they were in similar age to he – what he is now and his are not, I’m not certain how he would accept that.
(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 Family Consultant reported as follows, concerning C’s relationships with his parents and other significant people in his life:
46.[C] spoke positively about both of his parents. He seems to be able to have fun with his father and to perceive that his father is involved in his life, particularly with his sports, describing his father as both "proud" of him and "worried" about him with regard to injury. [C] also seems able to have fun with his mother and perceives that she is "happy" and "nice" to him.
47.[C] indicated that he feels a lot of love for both his brothers and enjoys spending time with them.
48.[C] said that his paternal grandparents can be a "bit strict" but that they both have a sense of humour and he can have fun with them.
49.[C] indicated generally positive feelings for [Mr L]. He said that [Mr L] "jokes around" a lot, which can get annoying.
The Family Consultant made the following observations of the interaction of Mr E and C with the father and the mother:
50.[Mr E] and [C] appeared to be calm and pleasant when with their father before and after the interviews.
51.[Mr E] saw his mother in the waiting room prior to him leaving. They greeted each other warmly and chatted briefly. [C] seemed reluctant to see his mother, but, when [Ms Morgan] approached [C] in the childcare room, he greeted her warmly and chatted pleasantly to her, sharing recent experiences and seeming to be happy to interact with her.
I have referred above to the evidence of Ms Q and Ms N with respect to the nature of the relationship of C with the mother, the father and his brothers. Ms N, who has been involved with C and his brothers since 2013, stressed the closeness of C’s relationship with Mr G and Mr E. She emphasised also the child’s strong desire to follow the path which his brothers have taken in order to deal with the parental conflict. Ms N said:
…the problem I would see with that is that given [C’s] attachment and strong adherence to the belief that he should do what his brothers did, he expressed the opinion to me in December that, “I can’t be made to go if I don’t want to go.” That was his comment.
(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 has adopted an active role in C’s life and is very supportive of his involvement with his sports and activities at B School generally. The mother has pursued doggedly and persistently her strong wish to play a significant maternal role in C’s life, at most times in difficult circumstances.
(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
I have referred above to the lengthy history of the father's dealings with the Child Support Agency, tribunals and courts in relation to the financial support of C and his brothers. The father has caused payment of C’s school fees at B School.
The Family Consultant expressed concern at her perception of the role which child support issues have played in these proceedings. She reported as follows:
65.[Ms Morgan] alleges that [Mr Penman] will not allow [C] to spend time with her because it will affect the child support assessment. [Mr Penman] is guarded when talking about these issues, but during his interviews for this Family Report and for the Children and Parents Issues Assessment, he seemed to indicate that it is the issue of child support which has led the boys not to spend time with their mother. The Family Consultant is at a loss as to understand why the issue of child support causes [C] to be unable to have a relationship with his mother, noting that the details of the child support dispute have not been explored. [Mr Penman] has spoken with pride about the three boys growing into respectful, pleasant, high functioning young men. And yet, it seems that whatever is happening that prevents them from being able to spend time with their mother, and maintain a meaningful relationship with her, may cause them emotional problems and relationship difficulties in the future. It is difficult to understand why [Mr Penman] would allow the boys to be confronted with the possibility of such difficulties, so unnecessarily.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Ms Q and Ms N were both asked for their opinions as to the likely effect upon C of a continuation of a situation of very limited contact with the mother. Ms Q opined as follows:
...the loss or the diminishment of his relationship with his mother. For a child who up until year 7 was spending equal time with his mother, since his parents’ separation, plus a period of time of living solely with his mother, for him to then spend next to no time with his mother, other than brief periods when she visits him at school, it’s a dramatic change to his experiences with his mother. And without spending time with her, he just has – has limited capacity to maintain that relationship. And the consequences of losing or having that relationship diminished for him, in circumstances where, again, going to why that’s happening and his participation in the decision-making of that happening, with greater influences affecting those decisions, may have a long-term impact on him, in terms of the distress he may experience now and in the future at the loss of that relationship, and the guilt that he may feel as an adult for his participation in that decision-making.
Ms N expressed a less pessimistic prediction on the consequences for C of very limited contact with the mother, through his own option, based on her past experience with Mr G and Mr E when they adopted the coping mechanism which she identified to deal with the parental conflict. She said:
[MS N]:... my experience with [C] is that he is a reasonably well-adjusted child. He suffers from dyslexia, and academically, he has some battles. But beyond that, he enjoys his sport, he enjoys his school. I’ve seen him last December with his brother. They have a great relationship. I do – I cannot foresee any serious mental health – potential or real mental health issues that may be lurking any time soon.
[MR MOORE]: What do – well, do you say there will be no long-term effect on [C] if the current situation between him and his mother remains?
[MS N]:At this stage, I would say there will not be because he models himself on his brothers, and he’s extremely close to them and influenced by them.
The following further exchange occurred between counsel for the ICL and Ms N:
[MS N]:But, again, I would emphasise that given the decisions his brothers have made regarding how to deal with a very conflictual family situation, I feel that [C] should be able to adjust reasonably well.
[MR MOORE]: Right. Does it affect – would it affect him in ways such as – that is, the absence of – or the near absence of his mother in his life, affect him in ways of perhaps his ability to form long-lasting relationships?
[MS N]:Potentially it does, but, again, based on the examples of [Mr E] and – and [Mr G], they have been able to have stable friendships, relationships. I think [Mr E] has been with his girlfriend for almost two years. [Mr G] is the same. They seem to be well adjusted. They work well. [Mr G] is doing well in his study program.
The mother asked Ms Q and Ms N for their opinions as to the likely effect upon C if she elected to "cut off" all communications with him. Ms N said:
[MS N]: I think it would be unpleasant and undesirable.
[MS MORGAN]: Ms Q.
[MS N]:I really think that I certainly would not further ..... it or recommend it.
[MS MORGAN]: Ms Q.
[MS N]:I think that you are important but in this young man – young adolescent’s life and to totally cut off contact would be certainly not a desirable outcome.
[MS MORGAN]: So you think it’s great for me to continue just speaking to him on the telephone and not actually having any physical relationship with my son?
[MS N]:I’m not suggesting that at all. I’m not suggesting that at all. I think that it is desirable to have contact with all three of your children. It is their judgment of how they deal with their circumstances and this – they’ve made certain decisions that they felt that given the difficulties that you and their father had in having any communication whatever they felt that was the only way they could cope with it.
Ms Q said:
[MS Q]:I think it would have a negative impact on his mental health. I think he would feel – he would potentially feel rejected by you even in circumstances where he has potentially rejected you in some ways by not spending time with you. But if you cut off the contact that he is willing to have with you that that – he would perceive that as rejection.
[MS MORGAN]: While you’re still speaking, do you think it’s fair to take the opinion of brothers over a maternal mother – a maternal relationship, sorry?
[MS Q]: Sorry, fair to take?
[MS MORGAN]: Opinions of brothers over a maternal relationship, meaning [C] says that he wants to do what his brothers are doing. Do you think it’s fair to take the weight of that and over a possibility of having a maternal relationship with a child? Do you think which one way is heavier? Relationship with the mother, relationship with the brothers?
[MS Q]:I think that there is an importance of the relationship with the mother. I think that to – I think that understanding [C’s] feeling about his brothers and his prioritisation of the path that his brothers have taken and want him to follow that path is important to consider when looking at [C’s] expressed views and how much weight to put on those views. But I think I don’t – I wouldn’t say that it is more important, no, for [C] to be able to do what his brothers have done than for him to be able to have a relationship with his mother; no.
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
and
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parties blames the other for the difficulties in the relationship of C and his brothers with the mother. I have referred above to the oral evidence of Ms Q and Ms N in relation to the very problematic situation and in which C has been placed by exposure to the parental conflict.
Ms Q referred to this process in her report. She opined as follows inter alia:
58.It may be that [Mr G] and [Mr E] made a decision not to spend time with their mother, at least in part, in order to remove themselves from the conflict between their parents, and it may be that [C] is following their lead. It seems that [Mr E] believes that it is best for [C] not to try and maintain a relationship with their mother whilst he is at boarding school. [C] has seen his two older brothers live only with their father when on leave from boarding school and this alone would have an influence over his decision making. If, in addition, he is receiving the messages from his older brothers that he has to choose a parent and that he should not spend time with his mother, it will be difficult for [C] to think differently.
59.[C] is also exposed to the influence of his father and his paternal grandparents. Whether or not [Mr Penman] has explicitly told [C] not to spend time with his mother, [C] perceives that his father does not want him to spend time with his mother. [Mr Penman] said that he does not think that [Ms Morgan] is a "worthwhile" person. He said that he does not discuss [Ms Morgan] with [C]. He said that he has been through seven years of "hell", referring to multiple Tribunal and Court matters, and that the children have been exposed to his "mood". [Mr Penman] appears to feel disdain toward [Ms Morgan] and there is no indication that he has had any conversation with [C] that would indicate to [C] that he should spend time with his mother or that maintaining a relationship with his mother is important, or at the very least, acceptable. [Mr Penman] seems to just never mention [Ms Morgan]. This likely sends a powerful message to [C] that his having a relationship with his mother is unwelcome and not allowed ...
The Family Consultant opined further:
61.... [C] may be worried that, if he spends time with his mother, his father will reject him and consequently he will be removed from boarding school and isolated from his brothers. [C] may be more confident that his mother will never reject him and that his relationship with his mother is able to withstand his not spending time with her.
The paternal grandparents demonstrated their hostility toward and lack of regard for the mother both in their affidavits and oral evidence. The paternal grandfather deposed, inter alia, as follows:
19.When Mr Penman had the catatonic depression attack due to what at the time he believed that his rights to look after his son was being denied by his ex-wife's court antics he didn't spend much time with [C]. ... Now that the [C] has his Brothers, his Dad and a new step Mum, he is such a happy and well balanced boy.
...
24.Clearly the best way forward now for this boy now is to leave him with his brothers, dad, step mum, [B school] [sic] and his school mates. He is part of a thriving family again. Is [sic] old mum is gone, he has a new mum whom he gets on very well with ..."
While these statements have no probative value in terms of their contents, the inclusion of this material in his affidavit provides a clear indication of the negative attitude of the paternal grandfather toward the mother.
The maternal grandmother deposed inter alia:
13.Over the years Mr Penman has requested that [sic] be present when he is aware that [C’s] mother might be present at a sporting or event. In the past 8 years [C’s] mother has falsely accused [Mr Penman] of crimes and reported them to the police in an effort to have [Mr Penman] arrested.
In her oral evidence the paternal grandmother said:
It is true to say I have a poor opinion of the mother. I have described her as mendacious and a rorter of the family benefit system.
As set out above, the mother holds a firm belief that the father and the paternal grandparents have "alienated" C from her. I have referred to the opinions of Ms Q and Ms N, to the effect that a more subtle process has resulted in C’s difficulties in spending regular and extended time with the mother.
The Family Consultant summarised the attitude of the parents toward each other in her report as follows:
37.[Mr Penman] said that he tries to avoid [Ms Morgan] "like the plague", given his fear of her instigating situations and provoking him.
38.[Ms Morgan] appears to feel intense animosity toward Mr Penman for what she believes is his having "alienated" the children from her.
In my view, the deficiencies in the parenting capacity of each of the parties are illustrated by the reality of C’s situation vis-a-vis his time with the mother and the similar experience of his brothers. It seems to me to be unlikely that C’s unfortunate position in life will improve while ever each of his parents resolutely and implacably blames the other in this way for the experiences of their three sons.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It seems to me that C is likely to act upon the intention which he stated to Ms N in December 2018, to the effect that he would not spend time with the mother if the court were to make such an order. His refusal to do so may lead to contravention proceedings instituted by the mother, which in turn could subject C to more pressure and exposure to parental conflict.
Parental responsibility
Each of the parties sought an order for sole parental responsibility. They each maintain that their ability to pay C’s fees at B School is contingent upon such an order.
There was no evidence that the mother personally has the financial capacity to pay B School fees. Her partner, Mr L, said in his oral evidence that he would pay these fees. In her final submissions, however, the mother said words to the effect:
I cannot afford [B School] fees and I will not ask [Mr L] for help.
B School appears to be a sanctuary for C from the conflict between his parents. The Family Consultant and Ms N both recommended that he continue to attend this school as a boarder. Ms Q was asked by counsel for the ICL why she recommended that there be an order for sole parental responsibility to the father. She replied:
... it is my understanding that [Mr Penman] has said that if he does not hold sole parental responsibility, he will not pay the fees for [C] to continue attending at [B School]. So I made that recommendation in terms of being able to – for [C] to keep consistency and stability, in terms of his schooling and boarding at the schooling.
For these reasons both Ms Q and Ms N recommended that the father have sole parental responsibility for C. Although I do not understand clearly the nexus between sole parental responsibility and the father's ongoing willingness and/or capacity to pay C’s school fees, I will make such an order in his best interests. I do so solely for the purposes ensuring C’s ongoing attendance at B School, where he is afforded some degree of "consistency and stability", to adopt the words of the Family Consultant. I will make an order that the father keep the mother informed of C’s progress including matters of C’s wellbeing, health, education and extra-curricular activities.
Conclusion as to parenting issues
It is most regrettable that C apparently is hampered in spending an appropriate amount of time freely with his mother. Both Ms Q and Ms N identified a psychological impediment to his capacity to do so, which arises from the chronic conflict between the parents and the coping mechanism which has been adopted by C and his brothers.
While it is far from a satisfactory outcome, I consider that the preferable course is to allow C to relate to and interact with his mother to the extent that he feels able to do so at this stage in his life. I am acutely conscious of the opinion of Ms N that C "seems to feel that he can cope" with the current level of time and communication with the mother.
I am also acutely conscious of the assessments of both Ms Q and Ms N that C has a positive relationship with his mother. Evidently, the existing arrangements have been sufficient to sustain this positive relationship. It may well be the case that Ms Q is correct in her opinion that C may be concerned that the father will "reject him" and remove him from his school if he spends time with the mother. The Family Consultant opined that, simultaneously, C may be "more confident that she will never reject him" and that "his relationship with his mother is able to withstand his not spending time with her."
Ultimately, I conclude that the least unsatisfactory outcome for C is to ensure that he remains at B school and sustains contact and communication with the mother at a level with which he can cope in his present circumstances. I am most concerned at the risks for C of a change in his living arrangements as sought by the mother. In my view, C may refuse to accept such changes and his relationship with the mother may break down completely.
It is a matter for the mother as to whether she takes the course which she foreshadowed with Ms Q and Ms N, such being that she severs all contact with C. It can be hoped only that the mother heeds the expert opinions of these two experts as to the emotional damage upon C of that election on her part.
Child support issues
The orders relevant to issues of child support which were sought by the father were as follows:
(7)The parents do all acts and things to inform the Child Support Agency that all past and future medical expense incurred by the father for treatment of the children, [Mr G], [Mr E] & [Mr C] be eligible as
non-agency child support payments.(8)The parents do all acts and things to inform the Child Support Agency that all of the medical expense incurred relating to the [surgery] of [Mr E] during 2015 and 2016 will be claimed by the Father as a non-agency child support payments.
(9)The parents do all acts and things to inform the Child Support Agency that all of the medical expense incurred relating to the remotely [sic] of wisdom teeth for [Mr G] during 2016 will be claimed by the Father as a non-agency child support payments.
(10)The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the purpose of obtaining passports for the children, [Mr G], [Mr E] & [C] be eligible as non-agency child support payments.
(11)The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the purpose of extra-curricular tutoring [Mr G], [Mr E] & [C] be eligible as non-agency child support payments.
(12)The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the attendance of [Mr G], [Mr E] & [C] at [B School], be eligible as non-agency child support payments.
As outlined above the father has an extensive history of disputation involving child support issues, in terms of applications to the Child Support Agency and litigation in the Social Security Appeals Tribunal, the Administrative Appeals Tribunal and the Federal Court both at first instance and on appeal. Despite this extensive history, the father did not identify the evidence upon which he relied in support of these applications. The father did not identify a source of power which he contended was available to support his applications. The father made only very limited submissions on issues relating to child support.
The father stated in his final submissions: "I have not asked for a departure order". The father did not identify in any alternative form of order, nor any provision/s in the child support legislation which would confer jurisdiction on this court to provide his proposed relief. Effectively, the father sought orders which would compel the mother to provide certain information to the Child Support Agency for purposes which may assist him in reduction of his existing child support debt of $62,866.95 (Exhibit 5).
Counsel for the ICL suggested in final submissions that, perhaps, s 64 of the Act may provide a source of power for the relief sought by the father. I infer that counsel for the ICL referred to s 64B(2)(f) which provides as follows:
A parenting order may deal with one or more of the following:
...
(f) maintenance of a child;
…
For reasons to which I now refer, I do not consider that s 64B of the Act provides a basis for the orders of the relief sought by the father.
Firstly, s 64B of the Act applies only to children who have not attained the age of 18 years. Accordingly, the relief sought by the father in respect of Mr G and Mr E is unavailable on that basis alone.
Secondly, I do not consider that the orders proposed by the father deal with the question of "maintenance of a child". The father has an ongoing dispute with the Child Support Agency concerning alleged arrears of child support. That dispute is not a matter which concerns the mother.
Thirdly, even if the orders deal with the question of “maintenance of a child”, there is a note contained in s 64B(2) that:
Note:Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies
Similarly, s 66E states as follows:
(1) A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.
(2) Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).
(3) This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.
In these circumstances, I will dismiss those paragraphs of the father's application which relate to issues of child support.
I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 March 2019.
Associate:
Date: 15 March 2019
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